Pot activist Grant Wayne Krieger had his conviction overturned by the Supreme Court of Canada in a 7-0 decision. It is no wonder. Here is The Honourable Mr. Justice Fish recalling part of the charge to the jury:
I begin by recalling the terms used by the judge in instructing the jury as to the available verdicts. As I have already mentioned, he directed the jurors “to retire to the jury room ... and ... to return to the court with a verdict of guilty”. To the judge himself this direction left no other course open to the jury. When two jurors later asked to be excused, the judge stated, in the jury’s presence:
I have a matter that the jury raises. It is apparent that some of the members either didn’t understand my direction this morning, that is that they were to return a verdict of guilty . . . or they refused to do so.
Fish J. then went on:
After the jurors had been directed by the judge to retire and return to court with a guilty verdict, they returned instead with a request: They asked for a copy of the oath they had taken upon assuming their duties as jurors. They had sworn by that oath to presume the accused innocent throughout the trial, which would end with their verdict. Yet now, even before they could begin to deliberate, they were directed by the judge not just to presume — but in fact to conclude — that the accused was guilty as charged. In that light, the jurors were understandably concerned to ascertain the nature and consequences of their oath.
Some time after receiving a copy of their oath, two jurors asked to be excused from the panel (one on religious grounds, the other on grounds of conscience). The trial judge denied their requests. I am satisfied that he exercised his discretion judicially in this regard but I am troubled by his accompanying comments. As Fraser C.J. put it in her dissenting reasons, the judge’s comments and questions “amounted to a reaffirmation of the direction to convict” (para. 14) and their cumulative effect was that “the jury was obliged to follow the instructions given earlier and convict Krieger” (para. 18):
In the case of Juror No. 12, the direction was express. When she started to explain why her conscience prevented her from judging the appellant, she stated . . .
A. Here in the — in our — in our group, we — there are only two choices to — yes or no, or to be guilty or not guilty. So . . ..
Q. Actually there is one choice and that is guilt.
A Guilty, yeah. So to me it’s difficult to say that he’s guilty.
. . .
As for Juror No. 8 who said he wished to be excused on religious grounds, his answers to the questions posed demonstrate that he too was under no illusions as to the instructions the trial judge gave — the jury was to convict regardless. This juror was asked to explain why his conscience prevented him from making a decision. His answer at AB 223 demonstrates why this Court ought not to conclude that despite the error of law here, there is no reasonable possibility that the verdict would have been different nor for that matter that the result of a new trial would clearly be a conviction:
When I look at this case and all the facts presented, I think I understand the legal parameters in which I must remain. I feel this man is not a guilty man, and I can’t say guilty, even though I understand your charge, and I’m struggling with this, and I can’t bring myself to say guilty.
Juror No. 8 concluded his testimony before the trial judge stating at AB 224:
I believe that I could not live with myself if I was part of a conviction of this man. (paras. 15, 19-20)
In these exchanges, the trial judge further undermined the role of the jury in the eyes of the two members who sought to be excused and ultimately, we may safely presume, in the eyes of the jurors they then rejoined. Moreover, I agree with Fraser C.J. that “[t]his record clearly reveals from events following the charging of the jury that the jury did not understand that it had the final call on Krieger’s guilt or innocence” (para. 11).
No great victory for the "decriminalize it" or "legalize it" supporters (of which I am one). Instead, this is just a victory for the administration of justice. (Believe it or not, the Alberta Court of Appeal upheld the conviction.) Here is the CBC report.
If anyone knows the name of the trial judge, let me know.
