Tuesday, March 01, 2011

Thinking for the jury

One of the requirements for a fair trial is the correct application of the law. When a jury has doubts about what the relevant law is, it may ask the judge for guidance. In R v Miljevic, 2011 SCC 8 (16 February 2011) the Supreme Court of Canada split 4-3 on whether the judge had correctly responded to questions from the jury.

In this case there was no need for the court to decide new law. There was no doubt about what the applicable law was. The jury had to choose between murder and manslaughter, depending on what it found the accused's state of mind to be. The law on this is settled, but the jury wanted clarification.

The jury had asked: "In 'layman terms' what is the difference between murder 2 and manslaughter? Examples? … A specific definition of manslaughter?"

The judge answered not by giving examples or by giving a definition of manslaughter, but instead by repeating the definition of murder. He did not address manslaughter because he did not want to confuse the jury, and because he did not want the jury to disobey his instruction to convict on one charge by acquitting on both.

The minority (Fish J, with McLaughlin CJ and Deschamps J concurring) held [8]:

"...no 12 jurors should be required by a trial judge to convict the accused placed in their charge of one or the other of two offences without understanding how the elements of both might relate to the evidence before them (see R. v. MacKay, 2005 SCC 75 (CanLII), 2005 SCC 75, [2005] 3 S.C.R. 607, at para. 1, citing Azoulay v. The Queen, 1952 CanLII 4 (S.C.C.), [1952] 2 S.C.R. 495, at p. 503). Yet that is what happened here."
There may be occasions where only one of the two available alternatives needs to be decided, but was this a case where the mens rea for murder could be determined without comparing it to the mens rea for manslaughter? The jury had to assess foreseeability of serious bodily harm (and it seems the judge misdirected on this: [22]) in the context of the accused's impairment through intoxication. Given that intoxication does not excuse the failure to foresee harm that a reasonable person would have foreseen (for manslaughter), could a direction on manslaughter possibly have made any difference here?

The majority (Cromwell J, with Abella, Charron and Rothstein JJ concurring) agreed with the majority in the Alberta Court of Appeal, holding that on the agreed facts the accused was guilty of manslaughter (he had thrown what he claimed was a heavy baseball bat into a group of people), so the only issue at trial was whether the accused was guilty of murder. Also, the judge had invited the jury to ask questions if they had difficulty.

The Court of Appeal had not addressed the question of whether the only issue in the case could be decided without comparison with the mens rea for manslaughter. The Supreme Court majority concluded [3]:

"...There is no reasonable possibility that the jury could have misunderstood what had to be proved in order for them to return a guilty verdict on the charge of second degree murder."
This treatment of the single-issue without comparison with the criteria for the alternative is wrong. A direction on manslaughter, even though the accused was guilty of this at a minimum, could have helped the jury understand the mens rea for murder. Intoxication may have had a bearing on what the accused knew of the likely consequences of his act, and the fact that a reasonable person, who is by definition sober, would have recognised the risk is not quite the same thing. Comparison with manslaughter would have clarified the subjective nature of the requirements for mens rea in murder.