Thursday Thinkpiece: Benched–Passion for Law Reform

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Benched: Passion for Law Reform

Author: Hon. Nancy Morrison
Foreword: Stevie Cameron
ISBN: 9781988824130
Page count: 336
Publication Date: November 1, 2018

Excerpt: Chapter 30: Juries, and Chapter 53: Speaking to Sentence (Court Vignettes)

Chapter 30: Juries

I am a fan of juries. Twelve persons from all walks of life who serve on a criminal trial (eight on a civil trial), twelve brains and different life experiences, who bring street and common sense into the courtroom and a citizen’s sense of justice.

November 22, 1963
The evidence in one of my criminal trials in Welland had ended, and the jury was sequestered, deliberating. It could go either way, and I was worried about my young client.

We all remember where we were when we heard the news. I was standing in a hallway of the Welland County Courthouse, on the second floor, looking out the window at a bleak November landscape. A senior sheriff came quickly down the hall, over to me. He had just heard the news, and was ashen. We were both stunned into silence, overwhelmed. John Kennedy. Gunned down by some lunatic assassin.

Suddenly, I had another grim thought, closer to home. The sheriff had turned and was moving down the hall. I called him back. “Sheriff, the jury must not hear a murmur of this until they have delivered their verdict to the court.” The sheriff understood and agreed. The sheriffs are in charge of sequestering juries, and once in deliberation, no one is to contact the jury. A very tough rule.

The sheriff was an old pro, proud of his professionalism. No one communicated this awful news to the jury. The jury acquitted my client later that day.

I have always thought the outcome could have been different if the sheriff had not been so scrupulous about his job. Because that was the day it was hard to give any transgressors the benefit of the doubt.

Women and Juries 1963
“Why aren’t women allowed on juries?”

“Aren’t they?” I said, with some surprise.

It was an evening in 1963 with a group of women in Niagara Falls. I was the guest speaker. Judy had told me that I would probably be getting requests to speak to groups, usually women, on legal matters. It would be my choice if I wanted to accept such engagements, but her advice was sound: you will find it good training; you learn when you prepare and give speeches, and it never hurts your practice.

This was one of the first of many such speeches. These evening talks were supposed to be casual, but I spent considerable time preparing for them.

The topic requested had been wills and estates. The question on juries had come out of the blue. I realized I had never seen a woman on a jury, even in Toronto. Why weren’t there any women on juries, indeed? I said I did not know, but I would find out.

At that time, other than female witnesses, there were almost never any females in any capacity in any courtroom. Only a handful of judges in Canada were female. In the courtroom, a sea of males, the clerks of the court, the court reporters, all police officers, probation and other peace officers, security guards, court attendants and sheriffs. In the three counties in Southern Ontario, Welland, Haldimand, and Lincoln, all lawyers were male, with the exception of Judy, and then me.

I learned that in Welland County, jury panels were chosen from lists of property owners, and fifty-five years ago, there were few women listed as property owners. If a woman’s name did come up as a property owner, the sheriffs told me they just struck her name off the jury list.

The importance of being a property owner was huge. It still is. In those days, the property was invariably in the husband’s name. Joint ownership of property was rare.

After that, when I spoke to a group of women, I would ask them whose name their home was in. Almost without exception, they never knew. I would explain joint tenancy, something they might want to discuss with their husbands. After lobbing that delayed grenade into the discussion, I should have been hiring security, or at least have someone start my car for me.

On occasion, a day or two after such a chat with the women, a husband would accost me on the street or in the courthouse and ask me what the hell had I been talking to his wife about, and what business was it of mine whose name his house was in.

At another one of those evening talks to a group of women in Niagara, there had been another unexpected question about juries.

“How do you pick who you want on your jury?”

This was easy. I could relax on this one. I had just finished a jury trial. Besides, after your first year of practice, you know almost everything. It is so reassuring.

“Well,” I smiled, “you may want youth, or maturity, or a professional, or a working man. You have only a name, address and occupation supplied, and you and your client probably know none of the jurors personally. So you rely on your instinct. If you just do not like the look of someone, you don’t like the cut of his jib, you just don’t trust the look in his eyes, you challenge, or reject that juror and he is out.” It seemed like a worldly explanation.

“Is that why you rejected my husband this week? You didn’t trust the look in his eye? You didn’t like the cut of his jib?”

Oh Lord, she was hostile. My public speaking needed more work. Judy had been right — you do learn when you give speeches. My attention to juries also needed work.

G. Arthur Martin
In my second year of practice, I had the extraordinary good fortune to do a one-week preliminary hearing in Welland with the incomparable G. Arthur Martin. It was a scrap metal fraud case of some magnitude. Two of the accused could hire the best, Martin and another eminent lawyer from Toronto. The third accused, less affluent, hired me.

That week was a seminar in criminal law for me. Martin spent considerable time every day with me, during and after the hearing. I have no doubt that he was making sure I did not screw things up for his client, or for my own.

Every day after court, the two senior lawyers and I would repair to the best cocktail bar in town, wind down, and discuss the case. Some days, I was also included in dinner. My education continued. My admiration for this great lawyer grew. His respect for the law, the court, his utter courtesy in court, and his restraint in posing questions at a preliminary left an indelible imprint on me.

Martin might ask twelve or fourteen questions in a day. No more. He reminded me we were there to learn what the Crown’s case was. We were not there to impress the provincial court judge or an imaginary future jury. Or give away our defence unnecessarily. We were there to get the information we needed to investigate further in order to defend our clients. Grandstanding at a preliminary hearing was never done, or justified.

It may have been during that week that I became aware Martin believed that you could do no better than pick the first twelve when choosing a jury.

Choosing Jurors
Things did not improve for women on juries over the years, even when women were placed on the large jury panels, from which the jury for each case was picked. Most lawyers refused to have women on juries. Even some women lawyers took this attitude. In the mid-seventies, I had a spirited argument with Jessie McNeill, a fine prosecutor and lawyer in Vancouver, who told me she would never allow a woman to be on a rape trial jury. I argued that the ideal jury would be half women and half men, regardless of the charge.

In the late seventies or early eighties, there was an article in The Vancouver Sun where the reporter interviewed some well-known criminal lawyers. “How do you pick a jury?” They were asked. One told the reporter, ”Never pick a teacher. You can’t trust them.” Another cautioned to “avoid hard-eyed women.” Yet another affirmed, “Never have a woman on a jury, especially if sexual crimes are involved.”

And what defence counsel would put an ex-policeman on a jury? I did, unknowingly. It was my last trial in Welland in 1966. A wonderful caring but naive Irish doctor and his wife were charged with sixteen counts of fraud in what was probably the first Medicare case to be tried in Ontario, or Canada. I knew my clients were innocent, but I was consumed with worry that the jury might not do the right thing. A finding of guilt on even one count would be the end of my client’s professional life, let alone his personal life and reputation.

The trial took three weeks, unusual in those years. After the jury filed out to begin their deliberations, one of the court officers came over and said, “Nancy, we didn’t want to tell you this during the trial, but the foreman of your jury is a former Sgt. of Scotland Yard.” The foreman’s former occupation would not have shown up on the jury list, just his name and current occupation. Sick with concern for my clients, I kept that news to myself.

After twenty-three hours of deliberation over two or three days, the jury came in with not guilty verdicts on all sixteen counts. My clients were vindicated. I was later told that the foreman had led the jury painstakingly through all of the evidence, to make sure they grasped it all, and led them to the verdict. So much for the wisdom on keeping police officers off juries. Later I thought, who better to judge credibility than a seasoned police officer?

The last jury trial I did before going onto the British Columbia Provincial Court bench in 1972 was defending a clean-cut-looking young man on an armed robbery charge. John Hall, now retired from the British Columbia Court of Appeal but then an experienced and fine lawyer, was prosecuting. We set about picking a jury. There were women in the jury panel, and the only challenges I made were to try and get at least a few women on the jury. John was relaxed about women on the jury, and we quickly ended up with eight men and four women.

The judge adjourned court briefly to allow the chosen jurors time to make the necessary phone calls to homes and businesses. The sheriff in charge of the large jury panel came over and thanked John and me profusely, for ‘allowing’ women on our jury.

What John Hall and I had not realized was that this was the last case and jury to be picked from the same large jury panel over a period of several weeks. With all of the preceding trials, every time a woman was called forward, either the defence lawyer or the prosecutor had rejected each and every woman. It had become very apparent to the entire jury panel that none of the lawyers would allow any woman on any jury. The sheriff knew he had a revolt brewing.

Our trial lasted two to three days. My innocent-looking client had a long and similar record of robberies; he did not take the witness stand. The evidence against him was circumstantial. The jury must have taken reasonable doubt to heart, and they acquitted my client. As I was leaving the courtroom, the four women jurors followed me quickly down the hall, and thanked me for letting them be on the jury.

Corrections with regard to juries evolved when women became full participants as jurors. Other corrections will occur, in our diverse country. But our jury systems remains a pillar of our justice system and democracy.

…

Chapter 53: Speaking to Sentence (Court Vignettes)

When I was prosecuting in Vancouver, two defence lawyers invoked the same thought when either walked into the courtroom: “I’m going to learn something today. I just don’t know what it is yet.” Those two lawyers were Larry Hill and Josiah Wood.

Larry Hill belonged in a Damon Runyon tale, smart, streetwise and ethical and deceptively casual. He came into court one day to defend a run-of-the-mill case. Or at least I thought it was run-of-the-mill. Larry sat down at the counsel table, first courteously acknowledging the judge. Then instead of opening a court binder, he pulled out a small matchbook, opened the tiny item and laid his pen alongside. He had no other books, papers or writing material with him at the counsel table.

I called the first policeman to testify, carefully going through the evidence with the experienced officer. Larry, pen in hand, made a tiny note on the inside of his tiny matchbook, then indicated he had no questions for the officer.

Rarely in such a case would I examine the second policeman, but would call the officer to make him available for defence counsel to cross examine if they wished. However, Larry was making me nervous. Was I missing something? So I called the second policeman, who had been present with the first officer at the time of the arrest, and he gave the same account, only in his own words. Again, Larry made a little notation on the inside of his matchbook cover, and again indicated, “No questions.”

I told the judge that was the case for the Crown. Larry carefully closed his tiny fold-over matchbook, stood up and told the judge of a new and precedent-setting case that had just come out of the Supreme Court of Canada that morning, R. v. Piche. The case had yet to reach our prosecution office; it was one of those cases that changed the way police evidence would be gathered and given in the months and years to come. My evidence could not sustain a conviction.

Larry courteously nodded to the court and me as he and his client left the courtroom.

Josiah Wood, known to all as Joe, was the finest lawyer I ever saw in any courtroom. When he ambled casually into the courtroom, most people smiled. The court officers liked him, the police respected him, the judges were delighted to have him in the courtroom, and the prosecutors knew they were probably going to lose their case. Joe was wonderfully smart, and as a defence counsel, he was able to bring not only his impressive grasp of the law, but also his easy manner into the courtroom. He was always prepared, he knew the law inside out, he never misled the court, his respect for the judge and everyone else in the courtroom was exemplary.

Joe seldom lost a case, but if he did, or if, rarely, his client pleaded guilty to a lesser charge, Joe spoke to sentence more effectively than almost any other lawyer. He knew his clients well, and he obviously liked them, warts and all. By the time Joe finished telling the court all about his client, I, the prosecutor, was ready to strike a medal for this poor accused. I did not have to; the judge had already been won over.

Joe went on to become a Justice of the BC Supreme Court and then a Court of Appeal judge, writing a number of precedent- setting judgments. He later served as a provincial court judge on Vancouver Island, forging valuable relationships with First Nations within the judicial system. He died too soon, June 9, 2014, at age seventy-three.

When I later exchanged my days as a prosecutor and defence counsel for life as a judge on the provincial court bench, submissions on sentencing yielded surprises, drama, and sometimes even laughs.

A case before me in North Vancouver in the mid-seventies involved a Canadian Pacific Airlines pilot on the Lima, Peru to Vancouver run, charged with importing and trafficking in cocaine. Significant quantities of cocaine from Lima were cached by the pilot in ingenious areas of the airplane, and detected only through a combination of luck and good police work.

It began as a trial, and after a few days of evidence, the lawyer for the pilot announced there would be a change of plea, to guilty on the trafficking charge.

Defence counsel began speaking to sentence. He explained that his client, at a relatively young age, had gained a reputation as an excellent pilot. He outlined the pilot’s personal background, never in trouble, that he was married, and came from a distinguished family, and he listed the accomplishments of the pilot’s father, grandfather and great-grandfather. Counsel said, “Unfortunately, my client is the end of the line for his family, as he has only two daughters.”

No matter how much a judge tries to keep a poker face through court proceedings, there are times when you fail miserably. I know this had to be one of them. The pilot had been watching me carefully throughout, and when his lawyer made that statement, the pilot started to laugh. So did I, and so did defence counsel.

In spite of having no criminal record, the pilot received a tough sentence from me. Fairly early into serving his sentence, I was consulted, as the sentencing judge, on whether I had any objections to him being moved from a maximum-security prison to a medium- or minimum-security prison. I had none.

A year or so later, a parcel arrived at the North Vancouver courthouse for me. It had been ripped apart by the RCMP before being delivered to me. It was a beautiful pottery bowl, with a well executed lid. But it had been wrapped in a box that had contained a kettle. The police were nervous about the box, as the previous year a young Asian couple were killed when a bomb in a booby-trapped electric kettle exploded. I’m not sure if the box was chosen randomly, or with a smile.

In prison, the pilot had become a skilled potter, and had sent me this gift, with a note, “from one of your contrite accused.” One of the RCMP narcotics officers brought it to me, smiling and saying, “This is just the right size for a hash stash, your Honour.”

On another day in North Vancouver, a young defence lawyer, Leo McGrady, admired for his gravitas and good looks, treated the court to a seminar on how to speak to sentence. His client was one of the young men who was in the distribution chain that had been set up by the CP pilot to traffic the cocaine.

The accused pleaded guilty at the beginning of the proceedings, and McGrady had booked a day to speak to sentence. He began to call witnesses to testify about his twenty-three-year-old client. The young man sat beside Leo at the counsel table, looking miserable and anxious. He had never been in trouble with the law. His mother was seated in the first row of the small courtroom, sobbing quietly.

One of the first witnesses called was a high school teacher, who said the accused was a good student, always respectful, hard-working. He was not at the top of his class by any means, but he worked hard, completed his assignments, and was liked by fellow students and teachers. He had never been involved in trouble during his school years, and the teacher had been shocked to learn of his charge of trafficking in cocaine.

The young man had gone to work for a small company after high school, and his employer was in court to testify. The employer, in business for many years, said that the young man was an excellent employee, in all respects. He had worked for him for several years; there was never a hint of any problem, not with drugs, absenteeism, sloppy work. He was a fine young man, and yes, the employer realized the accused would have toserve some time in jail, but he had assured his young employee that his job would be waiting for him when he got out of jail. The sad mother continued quietly to cry into her handkerchief. The employer stepped down.

Other witnesses were called to fill in the picture of a young man caught up in a drug culture where he did not belong. The last witness McGrady called was the young man’s father. He was tall and dignified, well spoken. In response to questioning, the father told the court what a fine son this young man was. That from an early age, he had always been there to help his mother, as well as others; that he had never caused a moment of trouble in the home, that he and his wife had always been proud of him. They had no idea he had been involved in such activities. He had been living on his own the last few years.

“Have you talked to your son about this crime when you learned of it after his arrest?” McGrady asked. The father affirmed that they had indeed talked about it, and his son had told his parents everything that he had done.

Then McGrady asked, “Do you think your son has true remorse for what he has done?” This reserved, composed businessman suddenly broke down completely and cried out, “Oh God, yes!” The young man, watching his father in such agony, also broke down, tears streaming down his face. The effect of this father’s distress was overwhelming, for everyone in the room, including me.

“We’ll take a short break.”

McGrady gave speaking to sentence the time and importance it deserved. His advocacy was reserved, skillful and ultimately, effective.