Article content continued

Jurors don’t volunteer. It is a civic duty imposed upon them. Jury members are prohibited from discussing their deliberations. They can’t explain why they decided the way they did. The judge is similarly restrained from commenting. To throw ugly labels on those unable to respond is unfair. No matter how you look at it, the jurors in the Stanley case have been branded as racists, including by people in positions of power. They do so without any hard evidence of this, knowing that the 12 jurors who decided the case cannot respond.

The justice system is not perfect. Just ask David Milgaard. There is always room to improve. We see this in the dynamic nature of the law. Indeed, it was the justice system which first acknowledged the injustices facing Aboriginal people when the Supreme Court of Canada in R. v. Gladue directed that these disadvantages be taken into account when sentencing Aboriginal offenders. Further judicial innovations include the use of sentencing and healing circles to augment the work done in criminal courtrooms. Further evolution may be warranted to ensure better Aboriginal representation on juries, particularly when an Aboriginal accused’s liberty is at stake.

There is a legal adage that hard cases make bad law. Changes to the system should not be rushed in a reactionary fashion to satisfy a perceived injustice. Change should come from careful consideration with a view to strengthening the integrity of due process. Unfortunately, opportunistic and inflammatory statements made by those in power have rushed any careful or constructive consideration of the issues and have made it more difficult to have the dialogue that is so badly needed in this country.

James Korpan is a lawyer with the McDougall Gauley LLP Criminal Law Practice Group. This piece is written on behalf of the entire group.