A technical gripe:
It is annoying that the reports on this describe the jury trial having been requested and "granted". It is a constitutional right that was elected by the accused. The accused get to either choose a jury or not.
On to more interesting notes:
- Making the election of judge alone or jury? It is one of the most difficult decisions to actually make in a sexual assault trial...mostly because there is no real way to guess which mode of trial may increase your odds.
And there is a whole extra layer of complexity when you have to conduct a challenge for cause procedure when picking jurors on the basis of the massive pre-trial publicity surrounding a case like this one.
As it relates to sexual assault in particular, if you think that your client cannot or will not testify it is probably still correct that a jury will tend to pay more attention to that (in a negative way) than most judges would.
And there is one narrow extra way you can win with a jury that you cannot with a judge (at least not overtly) - nullification. You can be blatantly guilty according to law and a jury still has the power to acquit (even though they are violating their oath to do so). Of course you cannot actually tell them that so you have to hope they figure it out on their own.
- Mistrials due to hung juries are not that uncommon, but the majority of jury trials for anything other than homicides just do not get reported on. I would say most of the time the accused takes more comfort in knowing there can be differences of opinion among reasonable people and when you elect judge alone you just get that one person. If they do not see it your way you lose and go to prison. A jury allows for up to 12 chances to have one person on your side and prevent a conviction.
A mistrial is not a technical win but for an accused any day you are not yet convicted you are still 'winning' in practical terms. And just because a trial can be re-run does not mean it will be. There are many reasons that might lead a prosecutor to not do trial #2 after a hung jury mistrial. One of the most significant in a primarily credibility case is there is now a full transcript that is available for impeachment of the complainant at trial #2 that did not exist before. The second trial seldom gets clearer for the Crown and often gets much more messy.
- The question regarding appeal strategy has been answered...and I agree the likelihood of a successful appeal is lower on a jury verdict than for judge alone trial (which applies both to an accused or Crown appeal). Increasingly, appeal-protecting an acquittal at trial is a much more realistic factor for an accused to consider than ever before...and Crown appeals of jury acquittals are far less likely to even be filed let alone won. In part this is because Crown appeals are limited to issues of law alone...but when you have lengthy written reasons of a trial judge, issues of fact and mixed fact and law somehow seem to find their way into things when they ought not to.
- As to the suggestion that they will run a 'boys will be boys' defence...I really do not know where that is coming from. But what it emphasizes for me is how little the general public has yet to comprehend how drastically Canadian law has recently skewed against the accused - only in the area of sexual assault.
- The federal government has made sexual assault easy to successfully prosecute, correspondingly difficult to raise reasonable doubt, and even has imposed mandatory judicial training on sexual assault that they refuse to disclose to the public what the judges are told is the "correct" information to guide them. In my experience at least, rarely is any type of 'boys will be boys' narrative even attempted anymore - and if it is - it is shut down abruptly.
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