Pot activist to get new trial

October 26, 2006

Kirk Makin, Globe and Mail

Jurors have an unassailable power to refuse to convict accused people if they sense that a law or prosecution is unjust, the Supreme Court of Canada ruled yesterday.

A 7-0 majority ordered a new trial for a Calgary medical marijuana activist -- Grant Wayne Krieger -- concluding that Mr. Krieger was deprived of a probable acquittal when a judge instructed two conscience-stricken jurors that they had no choice but to convict him.

"Unfortunately, the trial judge usurped the jury's function," Mr. Justice Morris Fish wrote for the court. "He evidently considered it his duty to order the jury to convict, and to make it plain to the jurors that they were not free to reach any other conclusion."

Mr. Krieger, a 52-year-old man who suffers from multiple sclerosis, admitted the essence of the offence at his trial. He proceeded to throw himself on the mercy of the jury, explaining that he produced and distributed the illegal drug in order to alleviate the suffering of others.

This rarely used legal tactic -- known as jury nullification -- has succeeded from time to time in cases where jurors sympathized with the plight of an accused person who was being prosecuted under a controversial law. Those who favour it believe that jury nullification is a vital safeguard against oppressive laws and unjust prosecutions.

"It is a topic that courts don't like talking about," said Alan Young, a law professor at York University's Osgoode Hall Law School.

The Supreme Court stressed yesterday that a jury cannot be openly urged to ignore a law or the evidence in a case -- they must arrive at that decision on their own. Judge Fish said that jury nullification should be seen not as a right, but as "the power to do so when their consciences permit of no other course."

"This is a marvellous decision that truly enshrines the right of a Canadian to have a jury trial," Mr. Krieger's lawyer, C. John Hooker, said in an interview. "This is an incredibly important right."

Mr. Krieger said that he now intends to run a similar defence at both his retrial for the production charge and at a separate trafficking trial he faces in Winnipeg.

"As far as I'm concerned, the only way I am going to stop doing this is if they give me life in prison without parole," he said. "My main concern is the sick, the injured and the dying. I have such a conviction within me that I am not able to stop what I do."

Police raided Mr. Krieger's house in 1999 and seized 29 marijuana plants. At his 2003 trial, one of the two upset jurors told the trial judge: "I believe that I could not live with myself if I was part of a conviction of this man."

After the judge rejected their entreaties, the jury returned a guilty verdict. Mr. Krieger was sentenced to one day in jail.

Yesterday, Judge Fish endorsed a long-ago House of Lords judgment which stated: "No matter that the guilt of the accused cries out to the heavens through the voices of all the judges in England. This is the first and traditional protection that the law gives to an accused."

The most famous instance of jury nullification in Canada involved abortion doctor Henry Morgentaler, who was acquitted of performing illegal abortions by several juries in the 1970s and 1980s, even though he freely admitted having broken the law.

Prof. Young said the Krieger ruling is a major relief. "I'm happy about the ruling because, over the past 10 years, we have seen more and more cases where courts are questioning the importance of juries."

Under the law, individuals can legally possess marijuana for personal medicinal purposes. However, advocates such as Mr. Krieger complain that despite having the legal right to grow pot, obstacles remain -- such as obtaining house insurance or growing a supply when one is too sick to function.

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