Majority Jury Verdicts and the Charter of Rights and Freedoms

University of British Columbia Law Review, Vol. 39, pp. 333-369, 2006

31 Pages Posted: 12 Sep 2006  

Peter Sankoff

University of Alberta - Faculty of Law

Abstract

Canada will soon be the last nation in the world to require unanimous jury verdicts for every criminal trial held within the country. Even in Australia and the United States, where unanimous verdicts are preferred, there are jurisdictions where majority verdicts are permitted. Given this unique status, it is perhaps only a matter of time before Canada revisits its decision to require unanimous verdicts in all criminal jury trials. Certainly, calls for such a move are not unheard of, and over the years cries for reform have come sporadically from members of the public, the press and politicians. Still, any move to transform Canada's requirement for unanimous verdicts will not be a decision rooted solely in policy. Any alteration of this nature is likely to run into stiff opposition and, inevitably, a challenge under the Charter of Rights and Freedoms. Section 11(d) of the Charter requires that the defendant be presumed innocent until proven guilty. Section 11(f) guarantees the right to the benefit of trial by jury. Both of these sections are likely to be implicated by any proposal to eliminate the unanimous jury requirement.

In this article I propose to examine the Charter implications of altering Canada's current requirement for unanimous jury verdicts. Given the absence of jurisprudence directly on point, it is difficult to reach firm conclusions about the constitutionality of such a proposal. Nonetheless, there is good reason to believe that any attempt to move to majority verdicts would infringe s. 11(f) or s. 7 of the Charter, though s. 11(d) is not likely to be violated. Consequently, the constitutionality of such a measure would depend upon there being a sufficient s.1 justification for the change — a task that would be assisted considerably by the fact that so many similar regimes exist in free and democratic societies around the world.

Keywords: Juries, Jury, Charter, Constitution, Constitutional, Reasonable Limits, Fair Trial, Majority Verdict

Suggested Citation

Sankoff, Peter, Majority Jury Verdicts and the Charter of Rights and Freedoms. University of British Columbia Law Review, Vol. 39, pp. 333-369, 2006. Available at SSRN: https://ssrn.com/abstract=929396

Peter Sankoff (Contact Author)

University of Alberta - Faculty of Law ( email )

Edmonton, Alberta T6G 2H5
Canada

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