It was an intense and arduous few weeks in October; Bjorn and I conducted a two week criminal jury trial at the Court of Queen’s Bench. I have, now, greater respect for my criminal trial lawyer brethren. It takes an incredible amount of time and a commensurate level of commitment to conduct a trial of this length. This effort is significant and takes a toll on the legal practitioner, both physical and mental. This is a world where there is little margin for error - there are - obviously - significant consequences for the client for any misstep by his lawyer. I'm reminded of Miyamoto Musashi's words: "the immature martial art is a source of great injury".
The process begins with the jury selection. This is far different than what we see on television - and far different than what appears to be the practice south of the border; both Prosecution and Defence have a number of peremptory challenges (depending on the type of offence); there were hundreds in the jury pool, individuals that received the jury notice through the mail. The Jury Act sets out who is eligible (you have to be a citizen, a resident of Alberta, and over 18) and those excluded from service. An individual can also seek an exemption and some sought to do so; there are penalties if an employer threatens to, or fires an employee over jury summons or duty. Once the jury was empanelled the proceedings began early the next week.
The trial began with some preliminaries; the jury was brought and sworn in and the accused was arraigned. The presiding Justice addressed the jury, advising that they are to "try the facts" and that they are the "sole judges" of the facts and had to determine the credibility and the weight of the evidence they heard. Each evening the jurors got to go home, but once the evidence was in, and they were charged, they had to remain together until they reached a verdict. There are, in essence, 13 judges; 12 to judge the facts and the presiding Justice that instructs them in the law. The jury is not to be swayed by sympathy nor consider the potential sentence; sentencing if the Accused is found guilty is up to the presiding Justice. The case began with the Crown making his opening address; our legal tradition is one of moderation and not of bombast or rhetorical excess. The Prosecution, or Crown counsel is also bound by a duty of fairness and the opening is simply a road-map of the evidence that the Prosecution expects to call.
The Prosecution bears the burden to prove the Accused committed all of the essential elements of the offence(s). The Prosecution calls evidence first; in this case they called police officers, a medical expert, the three complainants, and another (lay) witness and we had an opportunity to cross-examine all of them. If the Defence calls evidence (which we did, and thus opened them to cross-examination as well) then the Crown or Prosecution has the last word in the form of a closing address. The Justice then gave the jury his instructions (with input from both Crown and Defence); they were to ignore everything but what they heard inside Court; they were to decide the matter without sympathy or prejudice; they were told that it was their memory of the evidence, and their opinion of the evidence that ultimately counted.
No one improves by staying or being comfortable or doing what is familiar and routine. Bjorn took on this matter some time ago. Our former partner, Charles Stewart QC, a very experienced and well-regarded criminal lawyer had initial carriage of this matter. After his passing Bjorn felt it appropriate that he carry it through resolution; Bjorn conducted a trial and in the midst of that trial he sought and obtained a stay due to ongoing issues getting timely and incomplete disclosure; the Crown appealed and the matter was returned by the Alberta Court of Appeal for re-trial. The matter was set down for re-trial, this time for a judge and jury trial; and this case was heard again, many years after the charges were first laid.While it was challenging (and likely a little frustrating for our clients that couldn't reach either of us for a little while), it was also rewarding. I've always been of the opinion that it is essential for all professionals/lawyers to move towards resistance and sometimes pain to "sharpen the saw". Other, senior criminal lawyers were generous with their time when we reached out to them.
Throughout this process, starting with the jury selection and the delivery of the verdict by the foreperson and the polling of the jury, I was struck with the formality, the tradition; it is substantially different from the administrative and immigration world where accessibility is prioritized over rules of evidence.
I'm not sure when or if I will go down this path again but certainly conducting a two-week criminal jury with my partner brought together all of the disparate legal skills that I have accumulated over the years: direct and cross-examination; legal research (sometimes on very short notice) and, of course, mastering the facts and the law. Finally, giving a closing address to a jury was a unique, memorable experience.