If Ferguson Saga Were To Happen In Canada

Protesters light a candle during a demonstration in response to the Ferguson decision, in Toronto on Sept. 25. Angela Mullins/Metro

Kate Puddister | MetroWhen a grand jury looked at the shooting death of Michael Brown, it was not assessing the guilt or innocence of Officer Darren Wilson, but rather if the prosecution could lay a charge against him and what that charge should be.

In the U.S., grand jury deliberations are controlled by the prosecution and done in secret. The prosecution presents evidence and explains the law to the jury and how it applies to the particular case. The defence does not participate in a grand jury and thus, there is no cross-examination of witnesses. The findings of a grand jury do not have to be unanimous; in Missouri, nine out of 12 jurors must support indictment for a charge to be laid.

Prosecutor Robert McCulloch did not have to go the grand jury route. He could have laid charges and proceeded to a preliminary hearing, a process also used in Canada for serious offences. Unlike a grand jury, a preliminary hearing takes place in an open court, is supervised by a judge, and allows for the cross-examination of witnesses by the defence.

Canada does not use a grand jury process. Instead, in most Canadian provinces the police have the power to lay charges in criminal matters (with the exception of B.C. and Quebec). Once charges have been laid, it is up to the Crown prosecutor to decide which charges will be pursued in court. The Crown must decide based on the evidence if the prosecution is in the public interest and if there is a likelihood of conviction. Had this incident taken place in Ontario, the Special Investigations Unit (an independent civilian agency), would investigate and determine if criminal charges should be laid, as was the case most recently in the police shooting death of Sammy Yatim in Toronto, who, in an incident caught on tape, was shot eight times by police on a streetcar. The officer in the Yatim case, James Forcillo, was charged with second-degree murder by the SIU and is currently awaiting trial.

It is difficult to know whether the outcome would be different had the Ferguson case taken place in Canada. Arguably, in an Ontario scenario, the process would have been less controlled by the prosecution, there would have been a SIU investigation, the evidence presented would be subject to more restrictions and cross-examination by the defence. Finally, the decision to prosecute would not be left to a secret decision made by 12 anonymous individuals.

Kate Puddister is a Doctoral Candidate in the Department of Political Science at McGill University. Her research focuses on law and politics and Canadian criminal justice policy.