Two criminal cases prompt this article, one in the United States, the other in Canada.

• In Washington DC, Richard Barnett was convicted of all eight felony and misdemeanor charges following from his activities in the US Capitol Building on January 6, 2021.   After his conviction, his lawyer argued that Barnett had not received a fair trial by a jury of his peers, and suggested the conviction would be appealed*.  The alleged unfairness was the trial took place in Washington DC, where the crimes took place, rather than in the State of Arkansas, where Barnett resides.  The trial judge had rejected a request that the venue of the trail be moved.

• In Ottawa, Canada, Randy Hillier is facing nine charges following upon his alleged activities during the freedom convoy occupation of downtown Ottawa in January and February 2022.  Hillier’s lawyer argues that it would be impossible to seat an “unpolluted” jury in the City of Ottawa*.

Both cases have elements in common, including criminal aspects.

But here I ask you consider the challenges by the respective lawyers that a fair trial cannot take place in the city where the crime took place.  Press reporting does not present the detailed arguments of the lawyers but their point appears to be that a jury, selected from residents of the city where the alleged crimes were committed, cannot be fair in its deliberations.

In both countries, juries are empowered to make findings of fact.  As examples: in Barnett’s case the jury determined that he was guilty of “interfering with a police officer”; in Hillier’s case a jury would determine whether he assaulted a police officer.  There are no questions of law here.  The scope for interpretation of the actions is quite limited.

So the lawyers seem to be arguing that a local jury could not come to a fair judgement of the facts.   That is a quite extraordinary assertion, indeed a grave accusation.  In good conscience, such an assertion requires documentation or evidence that local jurors would not make a fair judgement on the facts.  The location of the jurors’ residence is not in itself evidence to that effect.

The lawyers’ assertions also ignore an important element of the jury selection process.  Juror selection can be challenged in both countries.  Questions can be posed.  In other words, there is an opportunity to ascertain whether jurors are likely to be so biased that they would not make a fair judgement on the facts.

In any case, there is an argument based on the history of jury trials that residents of local communities should serve on juries for local criminal charges.  The involvement of local communities in trials reflects the principle that justice is seen to be done by those affected by a criminal event.  In the US, the Constitution explicitly provides that trials shall take place in the State where such crimes are committed (Article 3, Section 3).

It is quite reasonable for defence counsel to explore all possible modes and methods in service of their clients.  However, some evidence and argument is required to impugn the integrity of jurors.  It cannot be accepted by fiat.  Let us wait to hear from the judges on appeal in the United States and prior to trial in Canada.

*

RE: Barnett:
Pointing to what he called the “political nature of the case,” Mr. McBride said in an interview on Monday that it had been impossible for Mr. Barnett to get a fair trial in Washington, where he said that jurors are overwhelmingly supportive of President Biden. He said his motions to have the trial moved out of Washington had all been rejected by the judge.

RE: Hillier

If the trial is in Ottawa, there’s no chance the polarizing Hillier would get an unpolluted jury, his defence lawyer said.

“Of course we are asking to change the venue. We had the mayor, the prime minister, and others in high positions demonizing the Freedom Convoy in various media across the City of Ottawa — often invoking facts that later turned out to be debunked,” Anber told this newspaper.

“There’s a class action suit naming large chunks of the city as so-called victims of the convoy. How are we supposed to pick an unbiased jury from this community after that?” Anber asked.