Q: I read about a decision made by prosecutors not to proceed with a third trial against a person accused of sexual assault. In the first trial he was found not guilty but a new trial was ordered, and in that trial there was a hung jury. What does that mean, and why won’t a third trial be going ahead?
A: In Canada, criminal juries are composed of 12 people selected randomly. They must not know anyone involved in the case or have any interest in it so they will be impartial and the trial will be fair. Juries on criminal cases are governed by federal law.
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Juries hear all the evidence and make a decision on the charges. After hearing the evidence, the arguments of the lawyers and the instructions of the trial judge, the jury goes into a room and discusses the matter in private. A jury must come to a decision that is unanimous. All 12 must agree that the accused person is guilty or not guilty of the crime he is accused of committing. In Canada, deliberations of jurors are private and are not to be revealed.
If this unanimity cannot be reached, then it is called a hung jury. When the jury cannot agree and is hopelessly deadlocked, the accused cannot be convicted. At this point a mistrial is declared, meaning the trial comes to an immediate end. The legal effect is as if that trial had never even happened.
In those circumstances, the prosecutors have to decide whether to prosecute the case again. Often, they do. That decision is based on a number of factors.
In Canadian law, one of the key questions is whether there appears to be little or no chance of obtaining a conviction. Then the prosecution has a right to decide not to proceed with a case. The prosecutors do not need the permission of the victim or the police although they may consult with those persons. In the case you raise, after two attempts at trials resulting in no convictions, the odds are strong that a third jury would not convict.
Also remember that prosecutors do not “win” or “lose” cases. Whatever the verdict, justice has been done, as long as the trial was fair and the case was well presented. Prosecutors do not have a personal stake in the outcomes of trials, although some cases can have a personal effect on them.
Deciding on a retrial is a tough decision for prosecutors to make. They have to assess what is best for all involved. Frequently, the public forgets that a witness or victim must appear and testify over and over again. In a sexual assault case they must relive what happened and speak of it, publicly and repeatedly.
Prosecutors frequently are criticized in the media for making plea bargain deals or refusing to prosecute. They do so to see that justice is done.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
