An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the Murder/Manslaughter of Colten Boushie

We understand the ethical duties of lawyers and judges in a criminal trial – what they ought to do, what their office requires of them. Sure, we argue about the details (e.g., me on prosecutors), but in general we know what defence lawyers, prosecutors and judges ought to do. Yet as shown by Gerald Stanley’s acquittal by a jury on charges of murder and manslaughter after his admitted killing of Colten Boushie, lawyers and judges are not the only people relevant to the functioning of a criminal trial. Juries also hear evidence and decide outcomes.

So what of jurors? Do they have ethical duties? What are they? Under what circumstances might we say that a juror acted “unethically”? And does our system do enough to ensure that jurors do what they ought?

Critics of Stanley’s acquittal make, I think, two central claims. First, they claim that the outcome in the case was simply not defensible given his admission that he killed Boushie, the weak evidence presented by the defence (National Post, February 14, 2018) and the relevant law, particularly in relation to manslaughter. Critics also note the all-white jury that tried Stanley, a jury resulting in part from defence counsel’s use of peremptory challenge to exclude indigenous jurors (National Post, February 9, 2018). This leads to the second claim – either implicit or explicit – that Stanley was acquitted for improper reasons, most obviously racial bias. Critics claim, in short, that Stanley’s acquittal was wrong in fact and law, and reached for improper reasons.

This arguably leads, though, to a third claim: that the Stanley jury acted wrongfully – that it did not act as a jury “ought to act”, that it was unethical. But assessing that claim requires answering the questions posed above – what duties did the Stanley jurors owe (if any), did they violate those duties and, if so, to what extent is there systemic responsibility for that failure?

Jurors obviously have ethical duties. They exercise a “civic duty” defined by law and discharge a public function within the legal system akin to that of lawyers and judges. We can reasonably claim that they have ethical obligations in relation to their job, and that they act wrongfully if they fail to satisfy those obligations.

But what are those obligations? What does it mean to be an “ethical juror”? This is a surprisingly hard question to answer. To a significant extent we understand the ethics of an actor in the legal system by virtue of understanding the role that actor plays in the legal system. Lawyers have a duty to clients bounded by legality because lawyers work at the intersection between the person and the system of laws. Lawyers help people access their rights and entitlements within the legal system. As a result, (1) helping clients (2) within the legal system constitutes the lawyer’s role as well as defining the lawyer’s two primary ethical obligations. Similarly, judges adjudicate claims, and their duties are those necessary for lawful and proper adjudication, most obviously independence, integrity, impartiality, diligence and respect for equality (Canadian Judicial Council’s Ethical Principles for Judges). What lawyers and judges ought to do follows in significant part from the role they play.

The problem with jurors, however, is that they play a strange role in the legal system. On the one hand, as set out by the judge in his charge in the Stanley trial, jurors are limited to assessing the evidence and applying the law as set out by the trial judge. A juror must not exercise independent judgment about what the law requires:

In this trial, I am the judge of the law. You are the judges of the facts. As a judge of the law, it is my duty to preside over this trial. I am the sole judge of the law and it is your duty to accept the law as I explain it to you. If I am wrong about the law my error can be corrected by the Court of Appeal because my instructions are recorded and will be available if there is an appeal. However, your deliberations are secret. If you wrongly apply the law there will be no record for the Court of Appeal to review. Therefore, it is important that you accept the law from me without question. You must not use your own ideas about what the law is or should be. It is your duty to decide whether the Crown has proved Gerald Stanley’s guilt beyond a reasonable doubt (Stanley trial, Charge to the Jury).

Courts “view jury nullification as a pernicious element in the criminal justice system… the jury’s official role in court proceedings is limited solely to judging the facts of the case and applying the law as given by the judge to those facts” (Travis Hreno, “Necessity and Jury Nullification” (2007) 20 CJLJ 351 at para. 2)

On the other hand, jurors have the power and even the responsibility to review and sometimes ignore what the law requires. They are the “conscience of the community” and the “bulwark against oppressive laws or their enforcement” (R v Sherratt [1991] 1 SCR 509). While courts do not acknowledge or encourage jury nullification, judges take “no steps…to prevent jurors from nullifying, jurors are not subject to legal sanction for nullifying, and verdicts that are the result of nullification are not subject to review” (Hreno, at para. 2)

In his 2013 Report on First Nations Representation on Ontario Juries, Justice Iacobucci noted that historically juries could be fined for reaching results “contrary to the evidence and contrary to [the judge’s] instructions” (para. 75). That is no longer the case, however. Today jurors have the privilege of reaching a “perverse verdict,” and while a judge can direct an acquittal, a judge has no power to direct conviction even if the evidence warrants it ((Benjamin Berger, “The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination” (2011) 61 UTLJ 579 at 600). As the Supreme Court has also recognized, “It has since then been well established that under the system of justice we have inherited from England 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 SCC 47 at para. 27, emphasis in original)

In light of this brief summary, and paraphrasing Justice Fish’s point from Krieger, one could perhaps say that jurors have the responsibility as a matter of right to assess evidence and apply the law as set out by the trial judge, but also enjoy the power to refuse to apply the law “when their consciences permit of no other course”.

But putting it this way indicates why the ethical duties of a juror are so hard to explain. If jurors only had the official responsibility set out by the trial judge in Stanley, their ethical duties would be straightforward, and very similar to those of a judge – to be impartial, diligent, principled, respectful of equality, and fair in their assessment of the evidence in light of the law set out by the trial judge. But the power jurors enjoy, their role as the conscience of the community and as a bulwark against the enforcement of oppressive laws, means that their duties cannot be expressed purely in adjudicative terms. Jurors are, arguably, the only actors in the courtroom not bound by legality, empowered instead to follow the dictates of conscience and morality apart from legality.

That suggestion raises, however, some obvious and significant problems. Why would we create a system of laws to settle our moral disagreements only to have that settlement altered because 12 folks in a room reject it as a matter of “conscience”? To put it in terms that may plausibly relate to the Stanley trial, why would we allow our collective decision to prohibit killing people even when they threaten our property not to apply in a particular case because the jurors in that case think the rules should be different? Mere disagreement with the law seems an insufficient basis for refusing to apply it.

The response may be that we do not in fact accept the legitimacy of jurors refusing to apply the law just because they don’t agree with it. A jury that does so acts improperly. Rather, we ask jurors to assess the evidence in light of the law set out by the trial judge. However, in exceptional cases, when acting as the conscience of the community and as a bulwark against oppressive laws and their enforcement, jurors may properly refuse to apply the law as written.

That response suggests two components to the juror’s ethical duty. The first attaches to the juror’s quasi-judicial adjudicative role, and requires the juror to impartially and fairly assess the evidence respecting the law as set out by the trial judge. The second attaches to the juror’s quasi-legislative role exercising the community conscience. It requires the juror to respect the legitimacy and authority of the law, and to only refuse to apply the law in the exceptional case where, assessed as a representative for the community as a whole, such a refusal is essential for justice (with justice defined in light of our laws and constitution).

If this explanation of the juror’s ethical duties is right, however, it leads to the question of whether we structure the process of jury decision-making in a way that encourages jurors to act ethically. The Stanley trial, as well as other features of criminal justice that I have observed, make me worry that we do not.

For starters, I find it remarkable that courts and judges essentially lie to jurors about what they are empowered to do. The judge in the Stanley case – and in this he acted in a completely normal way – told the jurors that it would be improper for them to do anything other than apply the law as he described it. Yet the Supreme Court has explicitly recognized that jurors have the power to refuse to apply the law, are the conscience of their community, and serve as a bulwark against oppressive laws and their enforcement. It may be that the best way to ensure jurors exercise their power ethically is to pretend they don’t have it rather than telling them when and how they ought to exercise it– because of the fear that if you tell them they have it they will inevitably choose to exercise it more than they ought – but it’s certainly not obvious that that’s the case. Indeed, it is the judicial equivalent of abstinence education.

Further, if juries act as the conscience of the community, it is wrong to have juries that so obviously – as in the Stanley case – do not represent the demographics of their community (In 2011, 18% of Saskatchewan’s population was Indigenous). I am not challenging the existence of peremptory challenges given their support in the criminal bar, and nor do I accept the position that a defence lawyer has any duty in relation to the exercise of such challenges beyond ensuring the best interests of her client. However, peremptory challenges do create the risk – a risk that materialized in the Stanley trial – that a jury will be troublingly unrepresentative. In 1980 the Law Reform Commission of Canada said:

the peremptory challenge has been attacked and praised. Its importance lies in the fact that justice must be seen to be done. The peremptory challenge is one tool by which the accused can feel that he or she has some minimal control over the make up of the jury and can eliminate persons for whatever reason, no matter how illogical or irrational, he or she does not wish to try the case.

However, the Inquiry found that this power to exclude potential jurors for ‘illogical or irrational’ reasons has undesirable effects on the racial make-up of jury panels (Iacobucci Report, paragraph 1560

From my own perspective, I do not see how a jury that as obviously does not represent the community as did the Stanley jury can legitimately serve as its conscience. Whatever they do in relation to peremptory challenges, every level of government in Canada should take seriously the recommendations set out by Justice Iacobucci in his 2013 Report to increase Indigenous representation on juries (summarized at para 44 and para. 374-387).

Our jury system also lacks transparency. We do not know why the Stanley jurors decided as they did because they can’t tell us. The sort of power the Supreme Court has acknowledged juries have – to be the one official actor in the legal system able to ignore the law in favour of conscience – ought to at least be subject to the scrutiny that results from a public conversation about why and how the jury decided as it did.

Finally, I am troubled by us asking so much of our jurors when we treat them so badly. We disrupt jurors’ lives – sometimes significantly – we pay them badly or not at all (Saskatchewan is amongst the more generous at $80/day for a criminal trial), and we ask them to occupy a central position in a criminal trial and subject them to public scrutiny, while denying them the ability to explain themselves. It is perhaps unsurprising that there is a thread on “Wikihow” devoted to “How to Get Out of Jury Duty”. I wonder whether we can realistically expect people to carefully discharge a serious legal and ethical responsibility while treating their own time and interests as of no real value.

Did the Stanley jurors act unethically? On the one hand, there is reason to be concerned that they may have done. The evidence against Stanley was so significant, and the evidence for this having been an accident that occurred despite his proper handling of the firearm so weak, the decision to acquit of manslaughter seems on its face unreasonable. One can speculate about the role of racial bias and stereotypes in the jury’s reasoning, and whether it simply refused to apply the law, preferring instead the position that killing is justified when people come on your property and make you afraid – i.e., that they refused to apply the law not as the conscience of their community, but because they disagreed with applying it here.

On the other hand, the lawyer for the Boushie family, Chris Murphy, has said “…the jurors took an oath to render a fair and just verdict. Based on the evidence they heard, the submissions made and the charges that the judge gave to the jury, a route of acquittal was a possibility.” If the evidence admitted raised a reasonable doubt in the jury’s mind, and the jury acquitted on that basis, their decision was proper, whether or not we agree with it.

In my view it’s simply impossible to know whether the Stanley jurors acted unethically. But the certain lesson to be learned here is that we need to ensure our juries are representative of the community, that we provide them proper instructions so that they understand their powers and how to exercise them, that we allow them to explain themselves, and that we treat them with the respect and consideration they deserve. Jurors do have ethical duties; it’s our job to help ensure they satisfy them.


  1. Thank you. Great writing and thoughtful exposition of the issues.

  2. Susan Anderson Behn

    I have served on two juries, and been called as a potential juror in six other cases where I was not chosen. I would do it again any time. Its the most direct and important public service you can give. Given the current situation, Government has to look at the Iaccobucci Report, and work with the Provinces so that jury selection is more representative.
    Thats a given, but think its overdue to include the perspective of those who have to act as jurors, and work through the evidence presented, and the directions given by the Judge. There is value in retaining the silence required of jurors. If there was any public discussion allowed about how complex and difficult it can be within the jury, to ensure that everyone shares an understanding both of the facts and the law as presented, plus other direction from the Bench, even those who know the need for fair and equitable juries, might try and avoid serving.

  3. I think you confuse powers and rights in your analysis when speaking of the duties of juries. What Justice Fish seemed to be saying was that juries have an obligation to apply the law but that it is within their power not do so. That does not make it an obligation to ignore the law in cases where the outcome offends the jurors, merely a possibility which has to be acceptable as part of the structure of the system, really a structural defect. Whether it is done for good or bad reasons who is to say but there seems no requirement to act as the conscience of the community, as you hint at. That is not the function of the jury. Nor should it be since it introduces an element in the decision making to prefer the rights of the community or state in favour of the rights of the accused. You are in essence setting up a sort of inverse to the rule of law that says the law doesn’t apply to you if the community doesn’t like it. That may happen from time to time but not as a structural matter.

    It is important to note that Justice Fish also quotes with approval the following from Lord Mansfield

    It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.

    That doesn’t always mean justice is always served in an individual case, but it preserves the likelihood of justice in a broader sense.

  4. Thanks for the comment Toby. I think it’s important also to look at the comments of the Court in Krieger, where they also say a jury is a bulwark against oppressive laws and the conscience of the community. Of course the power to refuse to apply the law is not one to be used lightly, but I think it’s also not a “bug” in the system, it’s a feature. A case like Morgentaler I think speaks to that particularly well – the juries were ahead of the legislature in their refusal to convict a man granting woman the right to choose the SCC would later recognize was theirs.

    Further, once you recognize that juries have a power, then the question arises – what duties attach to that power? That’s the question I am answering The point is obviously not to suggest an inverse of the rule of law – indeed, that’s why this power so obviously needs to be constrained by duties. But since it exists and is more than simply a possible wrong a jury could commit, then we have to think seriously about whether we do enough to ensure it’s exercised only when it ought to be – i.e., as a bulwark against oppressive laws and the conscience of the community.

  5. Susan, thanks for your comments. I’m not sure the concern you identify is all that significant, given that the US has allowed juries to speak for years, and juries are far more widely used in the US, particularly in the civil context. I don’t know that people are more reluctant to serve there than here (they are pretty reluctant everywhere given how incredibly little it is paid and onerous it can be).

    I agree though that the juror perspective is a valuable one – perhaps that’s why I’d like to hear more of it rather than the almost zero we hear now.

  6. The article is interesting in terms of putting jury ethics in terms of legal theory, but I do find it lacks a few things and makes one serious mistake.

    First, it doesn’t really add anything to the social conversation. If the jury was biased on racial grounds, everybody else already agrees that would be a bad thing. You’ve just specified her where exactly it would intersect with jury ethics, which is perhaps worth an academic point. But we all knew it would be unethical. Nobody knows for sure whether racial grounds were an issue in the decision though, despite some rather public declarations by people (including law professionals) who claim that they do know.

    Second, you ask, “Why would we create a system of laws to settle our moral disagreements only to have that settlement altered because 12 folks in a room reject it as a matter of “conscience”? I don’t see anywhere in your analysis where you identify the issue of of imperfection of knowledge. Yes, judges and law can define discrete boundaries in the space of possible activities, but reality is a continuum and the imperfection of language, concepts, and evidence means there are fuzzy boundaries of what violates a given law, fuzzy boundaries as to what the actual circumstances are claimed to have been, and fuzzy evidence to the accuracy of those claims. The primary purpose of the jury is to determine which side of this multi-dimensional fuzziness the judgment should fall as we do have a discrete, and binary, decision to make as to guilt.

    Third, and most concerning to me, is where you state, “if juries act as the conscience of the community, it is wrong to have juries that so obviously – as in the Stanley case – do not represent the demographics of their community “. And further, “From my own perspective, I do not see how a jury that as obviously does not represent the community as did the Stanley jury can legitimately serve as its conscience. ”

    These statements are seriously problematic because, as you also state, ethical behaviour of the jury “requires the juror to impartially and fairly assess the evidence respecting the law as set out by the trial judge”. But what you are saying is that a jury that is not demographically representative cannot be impartial. More directly, your statement claim that they cannot represent the conscience of the community if they are not demographically representative.

    You have created both a terrible view of human beings, but also a contradiction. Your claim only make sense if two juries, made up of different demographics, would result in different verdicts in at least some cases. That is a direct claim that a jury *cannot be* impartial, as a matter of policy. If a jury was impartial, then its demographics are irrelevant to the verdict. If the demographics are relevant to the verdict, then it can’t be impartial.

    Hence, by definition, you are claiming that all juries will necessarily be violating their “quasi-judicial adjudicative role” to be impartial. Impartiality means, by definition, “not partial or biased; unprejudiced”. If you think their racial profile matters, then you are claiming they can’t be impartial. If they can’t be impartial, then *all* juries are, by your own definition, unethical.

    Yes, you put it in terms of the “community conscience” ethical issue, which you put in terms of jury nullification only, but that doesn’t make it independent of the adjudicative role. If they are impartial, the demographics are irrelevant to the verdict by definition.

    You can’t have it both ways. If matching demographics of juries to the community matters, then your claim isn’t that the members are suddenly impartial. Rather, your de facto claim is that the jury members are all individually biased and that juries should represent the statistical biases of the community instead. That is a much different claim, and you didn’t state it here, and it requires a much deeper discussion on psychology of individuals, psychology of groups, and statistical methods for making the least biased decisions. For that discussion, we need psychometricians and statistical modelers, not lawyers.

  7. Chad, I don’t think you read the article very carefully. (Or you did, but you have another axe to grind.)

    I’m very interested to hear from you about what you say the real problem is, and how psychometricians and statisticians can help improve justice.

  8. Dear Chad,

    Thanks for your comments. On your first point, I think the jury could potentially have engaged in nullification here for grounds that are not racist. We are in the purely speculative here, but it is possible that the jury simply thinks a person can defend their property with force, including lethal force, and the race of the victim was not a factor in the acquittal. And that is something our legal system permits, and even empowers them to do – i.e., to refuse to convict even when the law requires it. Should it? And if juries have that power, what duties attach to it, and in what circumstances might we say it’s improperly exercised?

    Further, on racism the interesting issue is not whether it’s OK for juries to be racist. As you point out, it obviously isn’t. The interesting issue is how we structure juries to decrease the probability of racist decision-making. All of us have implicit biases and prejudices that can make it difficult to inhabit other perspectives empathetically, and that can lead us to making racist decisions or acting in racist ways. How do we avoid that? How do we structure juries to make racism less likely to infect our decisions?

    Interestingly, I think your second and third points contradict each other – on the one hand you note psychological imperfections and language issues making a jury necessary, and on the other hand you suggest juries are so capable of reasoned impartiality that we should be unconcerned with their representativeness. In my view the duty of a jury is reasoned impartiality, but we also need to recognize that our ability to be impartial is never perfect – indeed, that’s why we have laws governing adjudicator bias. It’s not an unduly negative view of humanity. I believe in human capacity to be reasoned and impartial. I just think it’s a capacity we exercise better when the conditions for success are set up. A more representative jury is more likely to be able to consider issues objectively than one which is slanted to a particular subjective perspective.


  9. I sat on a jury that heard a criminal trial twenty-five or more years ago. The alleged conduct included no violence but it seemed to us clear that the accused if found guilty would likely be sentenced to a term of imprisonment. One juror was so stressed by the responsibility that she became ill and had to be excused. None of us, I believe, had ever served on a jury before. I don’t think any of us were aware of a concept that entitled us to deliver a verdict of not-guilty if we had concluded that the accused was guilty beyond a reasonable doubt. That jurors don’t know that strikes me as just more evidence that citizens called to do their civil duty aren’t respected.

    Earlier this week I would have been present at another call for jury duty, but there were reasons (of no consequence here) why it wasn’t practical for me to serve, and so I was excused.

    It doesn’t yet seem to have occurred to anyone in the legal establishment that arrangements that were largely settled a great many years / decades / even centuries ago are no longer serving us. I’ve suggested an entirely new arrangement in a comment posted here:

    I think that deserves some serious consideration.

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