Ellard case doesn't make show need for jury system change

VICTORIA - You'd have thought the halls of justice were crumbling around us by some of the reaction to the Kelly Ellard case.
There's been much debate about the jury system since Ellard's second trial for the murder of Reena Virk ended in a hung jury.
The jury system is fundamental to justice. You have the right to have your case decided not by a judge, appointed by the state, but by a randomly selected panel of your peers. All 12 members of the jury have to agree that the Crown proved its case beyond a reasonable doubt before you're found guilty.
We should treasure that right.
But the Ellard case sparked a lively, passionate and useful debate. Some people decided that the case showed the jury system doesn't work. A single juror was unconvinced by the Crown's case, and stuck to her position. The result was a hung jury, and the need for another trial.
The critics' arguments around the Ellard case are dubious. They weren't in the court and didn't hear evidence or arguments, but have apparently decided Ellard should have been found guilty, so the system is somehow broken.
But it could be argued that the jury system worked perfectly. The Crown made its case, but couldn't convince all the jurors of guilt. They reported that to the judge. That's what's supposed to happen.
But what if one juror is perversely, unreasonably blind to the facts, the critics say.
Fair argument. Attorney General Geoff Plant said it might be time to look at having smaller juries - perhaps eight people - to allow a greater chance of unanimity.
Or, he said, juries could make their decision on a majority vote, without requiring all to agree. Judges in England can accept a jury decision based on a 10 to two vote.
But the arguments for change are weak, in large part because it's not even clear if this happens often enough to be a concern. B.C. doesn't track hung juries, but the best estimate is that fewer than three per cent of criminal jury trials end up in am mistrial as a result of a deadlocked jury. That doesn't seem like a problem; just part of the checks and balances.
That's another objection to those changes, which Plant says the first ministers will discuss this fall. They are basically designed to make it easier for the Crown to convict people; perhaps it's as important to keep people safe from wrongful conviction. After all the Crown has the chance to try the case again is a jury is split, while a person wrongfully convicted is off to jail.
Plant also suggested simplifying the judge's instructions to juries, which have become increasingly long and complex. The judge's instructions in the Ellard case, delivered after a lengthy trial, ran to 165 pages, all read to the jurors before they started deliberating.
Supreme Court Justice John Bouck agrees. He wrote The Times Colonist in Victoria arguing for a system of simpler, shorter instructions. As appeal courts have overturned verdicts because juries were not properly instructed in the law, judges have been forced to add more and more detail. "Jurors become glassy eyed and unreceptive to the judge's strange legal words as they valiantly try to stay awake," he observes.
The instructions don't just add to jurors' confusion. They also are a fertile ground for appeals, by both Crown and defence. Verdicts are overturned and retrials ordered far more often because of problems with jury instructions than because of hung verdicts.
Bouck studied a useful U.S. alternative. Under the guidance of a high court, judges, lawyers, academics and public representatives agree on what juries need to be told about the law in different situations. The resulting instructions are short and clear, and can not be the basis of an appeal. Some method of simplifying instructions to juries seems a useful exercise.
But beyond that, it's hard to see any dramatic need for change.
Footnote: Plant took a lot of unfair criticism from people who said his comments on the jury system undermined Ellard's right to a fair trial next time around. Rubbish. He was asked about a policy issue and he responded. That's his job, and he did it. The last thing we need are more silent politicians.