The Concept and Development of Criminal Law - Essay Example

The history of criminal law is comprised of an abundance of issues. The concept, origin, and development of law all exemplify the indigenous character of criminal law. It is very fortunate that Canada has had the opportunity to model off of other various governments and criminal justice systems. Canada has benefited from the fact that it has inherited a diverse attitude towards its government and criminal justice system. It would not be the great country it is today if it wasn't for its influential predecessors. Discussion The jury selection process in Canada ensures that there is no bias among the jurors or purposeful misrepresentation of ethnic groups. This fact has been affirmed by extensive research conducted by many organizations. The Law reforms commission of Canada addressed the jury selection process in its 1980 working paper The Jury in Criminal trials, and its 1982 Report, The jury. The Commissions basic conclusion was that no drastic revision of the process was called for (Granger, 153). "There is a good reason historic, political, intellectual, and pragmatic - to retain the jury system" (Law reforms commission of Canada) Furthermore, the protocols established through common law nullify the possibility of bias being induced into jurors. In R. v. Caldough, it was established that, any communications with jurors are to be considered an interference with justice (Granger, 157). This was further expanded on in R. v. Papineau, where the court ruled that such conduct was to be considered contempt of court, and obstruction of justice (Schreck, Web Source) These rules apply whether the juror has been sworn, discharged, or whether the prospective juror has just merely been summoned to serve. A violation of the rule can result in discharge, of the juror, a mistrial, a citation for contempt of court, or a criminal charge (Granger, 157). Also, "a juror must not only be impartial, but manifestly be seen to be impartial" (Granger, 158). These various protocols, while observed by some as extreme, ensure that jurors remain unbiased, and as such, provide the accused with a fair trial. Supplementing these protocols, counsels have the ability to ensure that the entire jury panel or individual jurors do not have predispositions on the case. Firstly, they can remove jurors that have been influenced by the media. The [counsel] may [also] challenge the jury panel only on the ground of partiality, fraud or willful misconduct on the part of the sheriff or other officer by whom the panel was returned. (C. C. C, s. 629(1)) Counsel can also challenge any number of individual jurors on grounds that the juror(s) is not indifferent between the crown and the defense, has been convicted of an offence, is an alien, is unable to, even with the services provided under section 627, perform properly the duties of a juror (C. C. C, s. 638(1)). Therefore, the presence of these procedures and protocols, prior to, during, and after the jury selection process, ensure that juries are as neutral as possible, and as such provide the fairest trial achievable to the accused. The jury system and trials by juries provide protections to numerous aspects of the Canadian justice system. Firstly, they provide Canadian citizens with protection against arbitrary and oppressive laws and law enforcement (Granger, 8), and in the process, help us make better laws that further promote peace and order. "Juries have been argued to be a check on the power of government, represented by prosecutors and judges" (Barro, 20). Jurors are a representation of the wants of the citizens, and as such, their findings in cases often encompass what the society expects from the law. In other words, they help bring what the common citizen wants from the laws, to the laws. Secondly, jury trials ensure us our civil liberties and fundamental freedoms (Granger, 8). While these are guaranteed and protected by the justice system, juries further enhance their protection. The jurors act as a sort of "onlooker", observing the trial process and ensuring that it is just and proper. They ensure that the verdict they deliver is free from any influence, outside of society's values and the law of the land. Jury trials are an affirmation of the rights of the accused. By providing the accused the right to be tried by his peers; i.e. the citizens, we are giving the accused the right to be viewed by and judged by the very people for which the laws that the accused broke were created. By doing so, the accused is given the opportunity to be judged based, not only on written laws, but on the imprinted values of the community. As a result of all of these influences over the justice system, juries in some senses are said to "humanize" the justice system (Granger, 9). Trials by jury are advantageous in yet another aspect - they are free from certain fallbacks of trials by judge. Firstly the judge is unfortunately disadvantaged by the fact that he is a professional (Granger, 7). He is exposed to a myriad of cases, many of which are similar to the one on trial. These previous cases often leave a prefabricated opinion on the issue at hand. The judge may not display this outwardly; but inside, this preconception does play a role in the way the judge views the case, inadvertently mitigating the fairness of the trial. Furthermore, a judge does not have an advantage present by a juror - 11 other peers with which to deliberate (6 in civil cases). The judge has to deliberate on the issues of a case by himself, and although he is highly qualified in law, "he is but one human individual, with all personal biases and faults" (Granger, 8), which might cause him to provide a slightly less objective ruling than what a jury of 12 people (or 6) would. Juries are also expedient in that, they positively affect the verdict of the trial. Juries are useful because they are exempt from certain proceedings of the trial, resulting in an increase in the fairness of the trial. That is, "in cases in which important evidence must be excluded because it infringes a rule of evidence, the evidence will usually be excluded in the jury's absence and thus their decision will be untainted by its existence "(Law reforms commission of Canada). Also, the verdict put forth by the jury is more acceptable, both for the general public and the defendant. This is because citizens realize that it was a common person, just like one of them, and not and isolated law professional who delivered the verdict. This has also been acknowledged by the Law reforms commission of Canada, which stated that, "the jury protects the court by deflecting the criticism that the public might make of judges in individual cases" (Law reforms commission of Canada). This acceptability is also present in the case of the defendant. He too feels more assured during the trial because a panel of 12 jurors, instead of just one Judge, is judging him. Therefore jurors, in the process of augmenting fairness in trials, also augment the acceptability of their verdicts. While trials by jury provide a number of features to an accused, it also ensures that in the process, counsel is unable to tailor the jury to suit his or her needs. Firstly, there are protocols established that prevent counsel from tailoring the jury using challenges to the array. "Where there has been an absence or insufficient number on the jury panel of prospective jurors from ethnic minorities[...], the challenge to the array procedure has almost invariably been unsuccessful" (Granger, 162). Also, during a challenge, "questions as to race, national origin, politics, religion, creed, membership in minority groups or moral positions are considered improper" (Granger, 179). For instance, in R. v. Zundel, "Mr. Zundel elected trial by jury[...]having so elected, the public notoriety he has attracted himself does not, of itself, in the absence of anything further, entitle him to use any of [these] questions to challenge his prospective jurors for cause in order to tailor [the] jury to suit him" (Granger, 181). "Hypothetical questions as to what a juror would or would not decide on supposed evidence are also not permissible" (Granger, 184). There are established procedures to ensure that during a "charge to the jury", a judge is unable to bias the jury either unintentionally or inadvertently. Even if the judge follows protocol, if the case goes before an appellate court, the court will look at "the general sense which the words used must have conveyed, in all probability, to the mind of the jury, not whether a particular formula was recited by the judge" (Linney. v. R). This fact of looking at the effect of the charge as a whole has been recognized by this statement - there will "probably never be a perfect charge or one to which objection might not be taken after careful scrutiny to a particular passage" (R. v. Andrade). Therefore, through these established protocols, it is not viable for a defendant or crown prosecutor to tailor the jury panel to suit his or her needs. In a trial by jury, established procedures ensure that juries are not set back by their lack of prior knowledge on law. Firstly, whatever jurors lack in their knowledge of law is compensated for during the charge to the jury when the judge instructs them on various aspects of the law pertaining to the case. This keeps them focused on the issue at hand, which benefits the process of reaching at the truth. Secondly, jurors are not set back by the presence of a complicated set of evidences and testimonies. The trial judge should not only explain the relevant sections of law, but also relate those evidences to the law; so that the jurors can appropriately appreciate the gravity those evidences hold over the issue (Azoulay. v. R). "It is not sufficient that the whole evidence be left to the jury in bulk for valuation" (R. v. Stephen). A failure to so correlate the law to the evidence may well leave a jury in a state of confusion and hence necessitate a new trial (R. v. Hladiy). As a result of these processes, the juries in trials are always compensated, for their lack of prior knowledge on law. Conclusion A trial by juries' myriad of advantages proves how valuable this system is. The justice system has implemented effective procedures and protocols that ensure that juries are not biased, and at the same time, prevent the defense and crown from taking advantage of the system and tailoring the jury to suit their needs. These procedures also ensure that juries are not at a disadvantage because of their lack of prior knowledge in law. As a result of all of these protocols, trials by jury, ultimately become exempt from fallbacks of trial by judge, and thus deliver a more accurate and acceptable verdict. Juries ensure us of our fundamental liberties and rights, and are consequently, the best means of providing a fair trial. Therefore, it becomes clear that the current system of trials by jury is indispensable. Each and every year society changes due to many internal and external influences. If society, as a whole, varies continuously the statutes and bylaws have to accompany the society, and vice versa, to conceive a happy medium. Some contributing factors which change a society are: race, class, gender, culture, and ethnicity. If the laws and statutes were the exact same as one hundred years ago, in my eyes I do not think Canada would have evolved and matured into the great and diverse country it is today. Some examples of federal statutes are: Young Offenders Act, Food and Drug Act, Canadian Evidence Act, Controlled Drug and Substance Act, and Corrections and Conditional Release Act. Various provincial statutes are: Game and Fish Act, Highway Traffic Act, Canadian Automobile Insurance Act, and Motorized Snowmobile Vehicle Act. Finally municipal bylaws include issues on: parking tickets, animals, noise, and smoking. Works cited Azoulay. V. R. (1952), 15 C.R. 181 (S.C.C.) Barro, Robert J. "Pleading the case for a paid-Jury system". Business Week 22 July 2002: 20 Granger, Christopher, Louise Charron, and Paul Chumak. Canadian Criminal Jury trials. Toronto: The Carswell Co. Ltd., 1989 Law Reform Commission of Canada, The Jury in Criminal Trials, Working paper 27 (1980) Linney v. R., [1978] 1 S.C.R. 646 at 650 per Dickinson, J. R. v. Andrade (1985), 18 C.C.C. (3d) 41 at 66 (Ont. C.A.). R. v. Hladiy (1952), 15 C.R. 255 (Ont. C.A.) R. v. Stephen (1944), 81 C.C.C. 283 at 293 (Ont. C. A.). Schreck, Andras. "Issue #62". 16 July 1999. Accessed on 13-04-2009 from http://www.crimlaw.org/defbrief62.html Read More