|The late Chief Justice of Canada|
The historical rationale for the determination of verdict by majority vote is expediency. For example, the military may be conducting a court martial during times of war, civil strife or other hostilities where the on-going deliberations of a “hung” panel would not be feasible. However, there are serious problems associated with the majority verdict. The greatest problem lies with the diminished role of fact-finding during the deliberations of the panel. If a majority verdict is acceptable, the process of fact-finding may be reduced as the minority could be, in essence, ignored in deliberations. See, for example, Working Paper 27 published by the Law Commission of Canada entitled The Jury In Criminal Trials:
"Empirical research relating to the jury’s deliberative process suggests: first, that minority views are more likely to be expressed and considered under the unanimity rule; and second, that the quality of discussion is superior. From these findings, the greater likelihood of an accurate decision under the unanimity rule can be inferred."46
The reduction in deliberation as it applies to a finding of guilt based on majority vote can therefore be seen to reduce the perceived accuracy of the verdict both in the eyes of the public and the accused. Once again, we should strive to offer a better system than merely that which cannot be constitutionally denied.
Indeed, efficiency must be balanced with the safety of the verdict and fairness to the accused. In the case of a verdict based on a majority vote, the safety of the verdict and fairness to the accused must take precedence. In the case of a panel that cannot reach a unanimous verdict, the NDA must grant the Court Martial Administrator the authority to convene a fresh panel upon direction of a military judge who is satisfied that the jury is unable to agree on its verdict.
46 Law Reform Commission of Canada, Working Paper 27: The Jury in Criminal Trials, (Ottawa: Minister of Supply and Services Canada, 1980) at 29.
The change was implemented in 2008 (S.C., c.29, s.14). The protection offered by a unanimous vote was extended to unfitness to stand trial and a verdict of not responsible on account of insanity.