The Presumption of Jury Competence: Sarrazin's New Acknowledgment of Cognitive Biases and Its Implications for Counsel
Freeman, Hannah, University of Toronto Faculty of Law Review
ABSTRACT I INTRODUCTION II CORBETT AND THE PRESUMPTION OF JURY COMPETENCE III THE PRESUMPTION OF JURY COMPETENCE IN OTHER AREAS OF EVIDENCE LAW IV THE PRESUMPTION OF JURY COMPETENCE AND THE CURATIVE PROVISO V SARRAZIN: A BLOW TO THE PRESUMPTION OF JURY COMPETENCE? VI THE IMPACT OF SARRAZIN A Foothold for Questioning Cognitive Biases A Shift in the Burden of Proof VII CONCLUSION
We should maintain our strong faith in juries which have, in the words of Sir William Holdsworth, "for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense". (1)
When instructions from a trial judge are flawed, the risk of prejudice to an accused is clear and a verdict can be overturned on appeal if necessary. However, when the legal instructions are proper but jury deliberations remain opaque and undisclosed, courts have questioned how well juries can comprehend the law and how accurately juries can apply the law to the facts at hand. The Supreme Court of Canada's opinion on the adherence of juries to their legal instructions has dramatically shifted over the past twenty years since R v Corbett, (2) from affirming trust in juries' capabilities to expressing doubts about the impact of subconscious influences on their decisions. The balance appears to be shifting in the direction of concerns about the frailties of the human reasoning process rather than the impact that questioning jury competence may have on public confidence in the Canadian justice system.
I will first examine the common-law basis for the presumption in Canada that juries act properly according to their instructions. I will then trace the effect and evolution of this presumption through other areas of evidence law and in the application of section 686(1)(b)(iii) of the Criminal Code, (3) commonly referred to as the curative proviso. Finally, I will examine the Supreme Court of Canada's recent decision in R v Sarrazin, (4) where the majority and dissent differed on the existence of the presumption of jury competence, and more importantly, on fundamental questions about the nature and capabilities of Canadian juries. The decision in Sarrazin is most known for reaffirming the current test for the curative proviso, but it also struck a significant blow at the presumption of jury competence. The majority accepted, based on "human experience", that the range of verdicts open to jurors may affect their decision. (5)
The reasoning in Sarrazin may impact the application of the curative proviso in two ways. First, the presumption that juries will act according to their instructions may have shifted from a presumption in favour of the Crown to an issue that must be argued evenly by both parties. Second, defence counsel may be able to successfully argue--without providing an evidentiary foundation other than common human experience--that a risk of prejudice exists where there is a risk that cognitive bias led the jury astray.
II CORBETT AND THE PRESUMPTION OF JURY COMPETENCE
The clearest foundation for a presumption that juries act according to their instructions emerged in Corbett, where the Supreme Court of Canada considered whether to permit cross-examination of an accused on his or her prior criminal record. While such cross-examination might be necessary to present a clear picture of the accused's credibility, there is a danger that bringing up past convictions might prejudice the jury against the accused. Chief Justice Dickson, for the majority, upheld section 12 of the Canada Evidence Act, which permitted such cross-examination. He reasoned that any risk that a jury might use evidence of prior convictions for an impermissible purpose could be corrected by providing "a clear direction as to the limited use they are to make of such information". (6)
The majority expressed significant concern about the troubling impact of putting "blinders" over the eyes of jurors as they carry out the truth-seeking function of the court. …