America has erupted in protest over the acquittal of George Zimmerman, who claimed self defense under Florida’s ‘Stand Your Ground’ law for killing young, black and unarmed Trayvon Martin in 2012. Many believe this American justice wasn’t justice at all. Would Canada have done any better?
I admit it. I’m a comic book nerd. In this era of Big Bang Theory and Netflix-enabled iPads, that’s an admission somewhat less embarrassing, and far more common, than it was even a decade ago. As a certified comic book nerd I’m familiar with the classic comic book trope for a series that might have become mired in mediocrity or trapped by its own inertia. Tired of seeing Superman save Lois Lane, AGAIN? What if The Man of Steel were suddenly allergic to peanuts instead of kryptonite? Spiderman needs a brief, if inane, refresh? What if Peter Parker had stumbled onto a radioactive platypus in that fateful lab?
It was the zany topsy-turvy world of ‘What If?’ that was running through my head when I was approached by JUST. and asked, “What if the George Zimmerman – Trayvon Martin case had happened in Canada?”
What if…there had never been a fight?
This may seem an odd place to start a comparative cross-border legal analysis but, from a sociological standpoint, it may be the single most substantive difference between a US-based Zimmerman trial and one hypothetically taking place north of the 49th parallel.
It would be foolish and arrogant to suggest that Canada does not suffer from a genuinely serious struggle with entrenched racial prejudice. Having said that, comparing the day-to-day impact of race in America to race in Canada is akin to comparing cancer to flesh eating disease; they’re both awful and they both can kill you but how many people do you know who have come down with flesh eating disease? Racial tension in the United States remains pervasive, constantly bubbling just beneath the surface. Stir that in with a culture where gun ownership is normative in many jurisdictions and individual rights and freedoms are favored over a over a more collectivist approach and you risk a toxic mix of cowboy vigilantism directed more-often-than-not at African American minorities.
While the evidence at the trial fell short of supporting a legal finding that Zimmerman’s actions were racially motivated, an uneasy odour of plausible prejudice permeated the proceedings. Reasonable people may differ on what they heard on the infamous 911 call, but the optics of an unarmed, youthful, hooded Trayvon Martin being the victim of a rush to judgment is difficult to shake.
Zimmerman, patrolling a gated community while carrying a concealed weapon on ‘neighbourhood watch’, evokes a starkly contrasting image to the meaning of that term here in Canada. In the suburban Ontario enclave of my youth, neighbourhood watch meant old man Rosenberg placed a cardboard red and white sign in his living room window to let families know he was keeping one eye on the street and you could knock on his door if you were lost. Canada has undoubtedly lost at least some of that innocence from my bygone childhood but you’d have to look long and hard before you could find fenced streets patrolled by an armed civilian with a cop-complex in the Great White North.
What if…Zimmerman wasn’t carrying a gun?
Our mythical Canadian Zimmerman, even had he been burdened with a healthy dose of racial prejudice while incubating delusional cowboy fantasies, would almost certainly not have been packing heat. Again, this is not to say that Canada is immune from the scourge of gun crimes but, in a society where lawful gun ownership is far more regulated, it is highly uncommon to come across a man wandering the streets of suburbia carrying a concealed handgun. Hunting rifles in rural country? Sure. Urban sportsmen on their way to the range? It’s been known to happen. But a lawful carry-permit for a concealed handgun? Highly unlikely under Canada’s far more rigorous regulation of firearms.
Gun control is an easy straw man and, in simplistic terms, the NRA is strictly speaking correct each time it trots out the over-used mantra, “guns don’t kill people; people do.” And yet, people without guns find it extraordinarily difficult to shoot other people. It strains credulity to think that Martin would be dead today had Zimmerman not been carrying a firearm. Had he been armed with a Taser, knife, baton, or any other weapon, the results of that tragic confrontation would almost certainly have been non-lethal.
What if…the trial still hadn’t taken place?
Despite the stereotypical penchant for politeness, Canadians take great pleasure in frequently pronouncing the superiority of our justice system. Any retrograde legislative amendments are angrily derided as a misguided turn towards ‘American-style’ justice. To be fair, Canada has much to be proud of. Our constitutional protections – though eroding recently at the hands of so-called ‘tough-on-crime’ legislation and increasingly disinterested appellate courts – remain a shining example of how to ensure fair trials. Despite the recent proliferation of mandatory minimums, our sentencing regime more-often-than-not strikes the right balance between rehabilitation, deterrence and denunciation. It is the time-to-trial metric where Canada consistently is embarrassed by the efficiency of American justice.
Arrested April 11, 2012, opening statements in the Zimmerman murder trial began on June 24, 2013. While an outsider looking in might be less than enthusiastic about a fourteen month delay to trial, anyone with experience in the Canadian system would be stunned to see a case of this severity and complexity work its way through disclosure, preliminary inquiry, and pre-trial motions in only fourteen months. In Canada, the Zimmerman trial would still be a story in progress.
What if…Zimmerman had claimed self-defence in Canada?
Perhaps the most misunderstood legal distraction in the trial was the repeated confusion between Florida’s 2005 “stand your ground” law (SYG) and the more generally available recourse to traditional self-defence. The controversial SYG permits a person who is not engaged in criminal activity and who is lawfully in a place to respond to a perceived threat to his life with deadly force without first making an effort to retreat to safety. SYG differs in subtle but important ways from the classically understood right to self-defence by permitting the use of deadly-force in the absence of any attempt to withdraw from a confrontation. The law was intended to have been used as a pre-trial defence in which an accused could put forth a motion setting out his recourse to SYG and, if accepted by the motions Judge, would see all criminal and civil liability blocked. In other words, win the motion and there would never even have been a trial.
Instead, Zimmerman’s defence team chose to reserve its right to argue SYG as part of a blended trial along with the self-defence claim being presented to the jury. At first glance this might seem like an inordinate risk to be taken by the defence but it permitted Zimmerman to assess the entirety of the prosecution case without having to first testify under oath as to his version of events as part of the SYG motion. This left the prosecution to prepare its case in the dark as to what Zimmerman’s version of the facts would be. More importantly, it allowed Zimmerman’s defence team to attack in cross-examination while leaving open the option of exercising his right to silence if it felt that the prosecution had failed to meet the legal burden at the close of its case. The defence systematically dismantled the prosecution case with the comfort of knowing that it could deploy the volatile weapon of stand-your-ground should it feel outgunned at the close of the prosecution case. In the end, it was a shot Zimmerman’s defence team never had to fire.
The legal requirements for a successful claim of self-defence are largely the same on both sides of the border. While American self-defence law varies moderately from state to state, the fundamental test remains largely the same: a person may use deadly force when in reasonable fear of serious injury or death. While some states impose a duty to attempt a retreat prior to authorizing deadly force in self-defence, SYG laws serve to circumvent that requirement.
Canada’s self-defence laws are a patchwork of Criminal Code sections that attempt to foresee any of the myriad fact-scenarios that might give rise to such a claim. There are sections permitting the use of force to prevent the commission of an offence (s. 27), to curtail excessive use of force by authorized law enforcement officials (s. 26), and to defend one’s personal property or home (sections 38-41). There are sections permitting the use of force to respond to an unprovoked assault (s. 34), an assault (s. 37) and even an assault where the defendant is guilty of having provoked the violence by commencing his own assault (s. 35). The thread that runs through all these permutations of self-defence is the requirement of proportionality. In every circumstance – even where the accused was the initial aggressor – a proportionate response to the threat is legally justified. Case precedent has long established that an accused is not required to engage in a precise surgical exercise to gauge the minimal amount of force necessary to repel a threat against him and a great deal of latitude is given to persons who are found to be responding to violence with violence.
Conflicting evidence at the trial left the suggestion that Zimmerman at one point was being straddled by the taller (but lighter) Martin who was raining punches down on him. Similarly inconclusive evidence from a litany of witnesses left doubt as to whether it was Zimmerman or Martin screaming for help on a 911 recording. What was never reasonably in dispute were the injuries Zimmerman suffered during the altercation. With a visibly bloodied nose and substantial trauma to the back of his head, the defence had ample evidence to suggest that Zimmerman harbored a reasonably held fear of grievous bodily harm at the time that he made the decision to react with lethal force. Like Canada, America shares a presumption of innocence and saddles the prosecution with a strict burden of proof to prove its case beyond a reasonable doubt. Seen through that lens it becomes easy for the dispassionate legally-educated observer to understand – though maybe not celebrate – the jury’s verdict.
What if…the verdict had been rendered by a Canadian jury?
The most obvious visual difference would be the expanded jury box. Whereas Florida law called for a six-person jury, Canadian law insists on twelve-person panels in all criminal jury trials. The verdict itself would have been unlikely to change north of the border, but the subsequent coverage and media frenzy that accompanied the trial’s conclusion are unprecedented in the Canadian legal landscape.
While Canadian judges have been inching towards more media-friendly courtrooms (sometimes permitting journalists to live-tweet in high-profile trials) the hour-by-hour televising of a sensational case is unheard of. If the esoteric plodding of robed barristers speaking arcane legalese is your idea of reality-show adventure, CPAC will titillate you with hours of Supreme Court of Canada submissions but if you want to hear the sordid details of the country’s most gruesome murder, you’re out of luck.
The absence of cameras in the courtroom serves not only to deflate the showmanship and arrogance of our criminal bar, but it puts personalities like grim-faced Anderson Cooper and shrill prosecutorial crusader Nancy Grace out of a job. Even the post-trial analysis lacks the star-studded cast that followed the Zimmerman case when former jurors inked (and then back-tracked on) book deals, appeared on television, and issued statements. A Canadian juror who had the audacity to give a post-verdict interview would almost certainly find herself back in the grip of the criminal justice system – but this time as an accused. Section 649 of the Criminal Code makes it a crime in Canada for jurors to disclose any information relating to their deliberations.
The more things change, the more they stay the same
Would a hypothetical Canadian Zimmerman trial have turned out any differently than the original, which has left such an ugly scar across the American psyche? The legal differences are largely cosmetic but the sociological ones demonstrate a chasm that belies the thin imaginary line separating our two countries. Gun control, gated communities, race relations, a voraciously aggressive media, reality-show jurors. It’s not the law that makes American justice so much different than its Canadian counterpart; it’s the people.
About the Author
Edward Prutschi practises criminal law with the firm Adler Bytensky Prutschi Shikhman in Toronto.