Winnipeg Free Press - PRINT EDITION

Sanctity of juries upheld

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Late last week, the Supreme Court of Canada made it clear a jury's decision as to who and what to believe in a criminal trial is final, and that an appellate court has no business substituting its verdict for that of a properly instructed jury.

In a unanimous decision, the Supreme Court of Canada rightly reminded Newfoundland and Labrador's highest court that in our criminal justice system, the jury has ultimate responsibility for assessing witness testimony, not a panel of appellate-court judges reviewing trial transcripts years later.

The Supreme Court restored a Newfoundland jury's conviction of a man -- described only as "W. H." so as not to disclose the victim's identity -- for sexual assault of his niece while she was between the ages of 12 and 14.

The original conviction before a jury had been overturned by the Newfoundland and Labrador Court of Appeal. And that court didn't just order a new trial, it outright acquitted the girl's uncle.

The Appeal Court, in its ruling, expressed concern about inconsistencies in the girl's evidence.

The Supreme Court decision emphasized that the jury was well aware of contradictions in her evidence, having been reminded of them by the trial judge. And the inconsistencies notwithstanding, the jurors believed the core of her evidence and therefore properly convicted the uncle.

The Supreme Court pointed out the obvious: that the jury had a critical advantage the Appeal Court did not -- seeing the witnesses, hearing their testimony and appraising their demeanour.

Justice Thomas Cromwell, writing for the whole court, upbraided the Appeal Court, stating it shouldn't presume to play "13th juror."

"Trial by jury must not become trial by appellate court on the written record," he wrote.

He also criticized it for concocting a bogus new legal test for review of a jury's verdict. The Newfoundland judges decided to consider the trial-record evidence as if they were hearing the case themselves. They reasoned that an experienced judge hearing the evidence would have found the accused not guilty. But creating, as Justice Cromwell put it, "an imaginary trial judge" as the yardstick for deciding guilt is a mug's game, absent the benefit of having seen the witnesses and weighed their credibility.

The Supreme Court's ruling sent out a ringing message that the collective judgment of 12 ordinary citizens, properly instructed by a judge, is still the best way to determine the guilt or innocence of an accused. The court, to its eternal credit, rebuked a startlingly ill-conceived attempt to jettison the jury's long and rich history as decider of an accused's fate.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition April 23, 2013 A8

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