Justice must be done—and must be seen to be done


At the end of October, the Ontario Court of Appeal ruled that a juror (in fact, the jury foreman) in an aggravated sexual assault trial who appeared on a “shock-jock” radio show and made disparaging comments about the criminal justice system and LGBTQ individuals (the accused and complainants in this case identify as being LGTBQ) “created a reasonable apprehension of bias such that a new trial should be ordered” (http://www.canlii.org/en/on/onca/doc/2016/2016onca801/2016onca801.html?autocompleteStr=R.%20v.%20Dowholis%2C%202016%20ONCA%20801&autocompletePos=1 at para 2).

The case of R v Dowholis, 2016 ONCA 801, was so tainted by the conduct of one of its jurors that the conviction originally entered after the jury returned with its verdict was quashed. If the Crown wishes to proceed with the prosecution at this stage, an entirely new trial will be required, meaning that everything will essentially start again from scratch.

It should be noted that at this stage, the accused—Joshua Dowholis—has essentially served out the bulk of his original six-year sentence, having just recently been paroled (http://www.citynews.ca/2016/10/31/new-trial-man-juror-gave-radio-interviews-original-proceeding/). So even if the Crown decides to proceed with this prosecution again, the accused is unlikely to serve any additional time behind bars. There is no doubt that the Crown will have to give a great deal of thought to the question of whether it would be in the public interest to proceed again, presenting all of the necessary evidence for a second time, in light of the unique circumstances involved.

This case highlights some of the potentially significant pitfalls associated with jury trials.

 

“not only must justice be done; it must also be seen to be done.”

 

As has been argued many times before, it seems highly bizarre to entrust such an important decision to laypersons, who have no legal training and no expertise in evaluating evidence or making court findings.

Judges, in contrast, are quite obviously legal experts. In addition to having graduated from law school, in order to be a judge, one must first be a practicing lawyer for a very significant period of time, gaining relevant experience in the process. Potential candidates for appointment to the bench are then screened thoroughly to ensure legal expertise and strength of character; this strict process ensures (with a great deal of success overall) that judges are highly qualified to hear potentially complex cases and make sound judgements. Cases of inappropriate behaviour from members of the judiciary are exceedingly rare and often dealt with quite swiftly.

In recent decades, many countries—such as Russia and Britain—have moved to restrict the use of juries in criminal trials (http://www.economist.com/node/13109647). South Africa eliminated the use of juries in 1969, instead bringing in “assessors” (legal experts, somewhat like professional jurors) in certain cases to assist judges with their findings (http://www.businessinsider.com/heres-why-oscar-pistorius-wont-get-a-jury-trial-2014-4).

 

A commonly quoted legal maxim is that “not only must justice be done; it must also be seen to be done.” This means that fair and transparent processes and procedures are just as important as the results themselves.

Clearly, the juror’s actions in the context of the Dowholis case risk bringing the administration of justice into disrepute. For all intents and purposes, in the context of a jury trial, “A juror is a judge” (R v Dowholis at para 18). We must hold jurors to high standards. The juror’s conduct in this case fell far short of what was expected and required to ensure that justice is both done and seen to be done.

 

To quote Mark Twain, the modern era’s use of jury trials constitutes “the most ingenious and infallible agency for defeating justice that human wisdom could contrive” (http://www.economist.com/node/13109647). Perhaps it is time to reassess our approach.


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About Katrina Trask

Katrina Trask is a graduate student at the University of Toronto’s Faculty of Law. Prior to beginning her graduate studies, she was a legal research lawyer at the Newfoundland and Labrador Court of Appeal. Katrina’s undergraduate and law degrees are both from the University of Manitoba.