May 22, 1977

The Honourable Otto Lang
House of Commons
Ottawa, Ontario

Dear Mr. Minister,

Re: Appeal Court powers after jury verdict

Our Association has noted with dismay the entry of a conviction on appeal in the Morgentaler case after a jury of is peers had found the accused not guilty. We write to ask you to introduce immediately an amendment to the Criminal Code to prevent the substitution by any appeal court of a conviction for a jury verdict of not guilty. We consider that the power to order a new trial where the Crown shows that a substantial error of law has occurred at a jury trial is a sufficient assurance that criminal justice will be administered according to the law.

The unusual, and perhaps unprecedented use in the Morgentaler case of the powers conferred by Criminal Code s.613(4)(b)(i), is of course now the law of the land according to the tenor of the Supreme Court of Canada decision. Because the result offends against basic concepts of the jury’s role while relying on the current statutory provision, we believe that the Code must be amended and the Morgentaler decision on this point should be statutorily overruled.

The “general verdict” of not guilty, a verdict for which the jury need not account by explaining what element remains unproven, has historically been a bulwark of personal liberty. In the long run a pattern of such verdicts has more than once pointed out the need to bring the law into accord with the conscience of the community. The excessive reliance on the death penalty for trivial offences in late eighteenth century England was reformed by Parliament largely because juries would refuse to convict of such “capital” offences as theft of goods valued at over five shillings, no matter how clear the evidence. The difficulty of the reconciliation of the individual consciences of the jurors with their oath was described by the legal writer Blackstone as “pious perjury”. But the jury’s power to render a general verdict of not guilty was never abridged. It was ultimately the law rather than the conscience of the jury that had to give way.

Whether a properly jury in the Morgentaler case would on a retrial have taken the course of acquitting for reasons which they might consider sufficient is more than any Court of Appeal can say. But to remove from the Courts of Appeal and the Supreme Court of Canada the power of entering a conviction on appeal from a jury acquittal would confer no new or strange powers on the jury. Instead it would recognize and enhance the central role of the jury as being the layman’s living presence in the law. The right of the jury to determine a case entrusted to its consideration is recognized in Coke on Littleton, Blackstone’s Commentaries, and finally in Stephen’s Commentaries, in these words:

The verdict must be general, i.e. “guilty” or “not guilty;” or it may be special, setting forth all the circumstances of the case, and praying the judgement of the court c) – whether, on the facts stated, it be murder, manslaughter, a nuisance, or no offence at all. The jury find such special verdict where they doubt the matter of law, and therefore leave it to the determination of the court; but the jury have in all cases an unquestionable right to determine upon all the circumstances, and to find a general verdict.

I appreciate that there are legitimate differences of opinion on the Code provision that Dr. Morgentaler was charged with violating. The statutory change for which we are asking here, however, relates not to charges such as Morgentaler’s only, but to an appeal procedure which substantially erodes the power of the jury to pronounce a final verdict of acquittal.

Yours very truly

Dave Robertson
President