Yesterday, the Supreme Court of Canada affirmed the power of the jury to acquit an accused even where the evidence allows for no other conclusion but that he is guilty. In R. v. Krieger, the accused was charged with unlawfully producing cannabis. He freely admitted having done so and there appeared to be no viable defence. The trial judge directed the jury to return with a guilty verdict and persisted in this direction even when some jurors expressed discomfort at the result. The Supreme Court held that the judge's direction was in error, and that trial judges have no power to direct a guilty verdict - to do so effectively undermines the right to a jury trial protected by s. 11(f) of the Charter.

An important concept underlying the decision in Krieger is that of "jury nullification"; i.e. the ability of a jury to acquit an accused on the basis that the law under which he or she is prosecuted should not be followed in the particular case. Defence counsel are not allowed to ask for an acquittal on this basis but our courts have never denied that the nullification power exists. Krieger simply affirms that power, albeit implicitly. The result does not, however, mean that we can expect a surfeit of nullifying acquittals. It is only in a very rare case that jurors will ever do so. In Krieger itself, the accused suffered from illnesses and used cannabis to ease his pain. In Canada's most famous case of jury nullification, Henry Morgentaler was acquitted of abortion-related charges in cricumstances that made it clear that the jury was refusing to apply the law. So, while Krieger is an interesting case that affirms the important role of the jury in our criminal justice system, it is unlikely to lead to any palpable change in the way that the system operates.