Law, Jury Nulfication – Throughout the year many authors that we discuss emphasize the importance of understanding law as a neutral, predictable Custom Essay

Throughout the year many authors that we discuss emphasize the importance of understanding law as a neutral, predictable, and stable system of social order that guarantees the equal treatment of all citizens. This ideal is best captured in the doctrine of the Rule of Law that we discussed in the fall term.
For their part, Vago and Nelson explain that in complex diverse societies, like Canada, law is characterized by this formalism and distinguished from lesser informal mechanisms of social control like custom and morality. Hence, today the administration of law is supposed to be accomplished through systems of specialized agencies, standard techniques, and the general predictability of universal sanctions. In short, law’s formalism and institutional distance" from
the everyday affairs of everyday people is supposed to assure law’s moral and political neutrality, the equal treatment of all citizens, and crucially, its own legitimacy.
However, as a number of more critical authors have argued, this understanding of law as a neutral system accessible to all, somehow above the contingencies of everyday life, and untangled in the ambiguities of moral and political debates dramatically oversimplifies the complexity of the legal process. This obviously undermines any sincere effort to understand the actual operation and effects of the Law in contemporary societies.
Throughout the year I’ve tried to suggest, therefore, that rather than simply accepting law as this abstract system of equality, predictability and certainty, we need to begin to think more critically about the practical realities of our legal system. Might it be better to understand law as a system that, in practice, is more often inaccessible, arbitrary, and ambiguous; a system that legitimizes select social orders and relationships often characterized by domination and inequality; a system that depends on the everyday discretion of its key actors to effectively balance against the harsh effects and inefficiencies of its own ideal formalism?
One place where we can identify this inescapable tension between law’s formalism and its ability to recognize and respond effectively to the individuals caught up in its processes is in the debate about the present and future role of the jury in Canada.
The case of Grant Krieger is only the most recent case where Canadian courts have been confronted with the issue of jury nullification. The Supreme Court’s final decision in Krieger reaffirmed the possibility of jury nullification in Canada but highlighted that judges should nevertheless take reasonable steps to guard against it. In Justice Fish’s words, juries are not entitled as a matter of right to refuse to apply the law but they do have the power to do so
when their consciences permit of no other course (R. v. Krieger, [2006] 2 S.C.R. 501 para. 27).
In her earlier (dissenting) judgment on the appeal, Chief Justice Fraser of the Alberta Court of Appeal, clearly outlined the ambiguity of jury nullification in Canada’s legal system (R. v.
Krieger, 2005 ABCA 202 note: paras. 23-26).
This ambiguity or point of tension again, between the formalism of the Rule of Law, on the one hand, and a desire for justice for the accused on the other is further elaborated by Paul Butler. His controversial proposal calls for racially-based jury nullification in the U.S. as a way to undermine, or maybe by-pass, what he argues is a wholly racist criminal justice system.
For Butler, those who blindly defend law’s formalism too often fail to recognize that the system’s abstract commitment to equality has, substantively, produced grossly unequal outcomes.
What you need to do:
Drawing explicitly on: a) Justice Fraser’s judgment (on WebCT), b) the case of Leroy Reed from Inside the Jury Room (movie), and c) Paul Butler’s article on Racially based Jury Nullification (though you can certainly refer to other materials from the course) answer the following question:
Should jury nullification continue to be a recognized part of the Canadian justice system?
Should its possibility and so the power of juries be more limited, or perhaps even expanded (a la Butler), and, importantly, why? In any case, how might such changes be accomplished?
In your argument be sure to: a) explain what jury nullification is; b) discuss its justifications and its potential dangers (i.e. its strengths and weaknesses); and c) discuss how it reveals an inescapable tension between law’s formalism and law’s commitment to just outcomes for individuals as individuals.
Paul Butler’s proposal is obviously provocative but you don’t have to agree with him to argue for the inclusion, or even expansion, of jury nullification in our system. Is empowering the jury with this kind of discretion any different than empowering police officers, Crown attorneys, or judges, to seek just outcomes through the use of their discretion? Is jury nullification an example of how the law might be used, in some sense, against itself? What about the operation of jury nullification in the case of Leroy Reed? Was justice done or actually subverted in his
case?

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