Juries Behaving Badly

August 22, 2018 | Lyndsay Hone

Jury duty is an – often dreaded – civic duty central to the justice system in Canada.  A juror’s duty is to listen to the evidence and argument, and to deliver an independent, impartial decision based on the case presented to him or her. Unfortunately, however, jurors don’t always abide by the directive to be impartial and independent. Despite charges routinely cautioning jurors not to conduct independent research on the case, such instructions are sometimes flouted.  With the increased ease of access to information, juries behaving badly is an increasingly prevalent issue. In a case that addressed the issue of jurors conducting independent research, the Ontario Court of Appeal acknowledged the risk, stating “[i]n this information rich age, devices able to access the internet are ubiquitous.”

In a recent case arising from a motor vehicle collision, Patterson v Peladeau (“Patterson”), the jury returned a question to the trial judge shortly after retiring, which neatly tracked the language of section 17(2) of the Insurance Act’s Fault Determination Rules.  The only statutory reference in the judge’s charge had been to the Highway Traffic Act. The Fault Determination Rules had not been raised by either party – namely because they had no application whatsoever to this personal injury action.  

The court questioned the jury about this wording; Juror #1 admitted to having completed internet searches. The plaintiff sought an order striking the jury for the unauthorized research.  The court declined this relief, finding the problem could be remedied with a strong admonition and a clear response to the jury’s question. The court rebuked the culprit for his independent research and issued a corrective charge.  The jury ultimately found the plaintiff 73% contributorily negligent and the defendant 27% negligent.

Upon receiving the decision, the plaintiff brought a motion for mistrial based on trial unfairness; plaintiff’s counsel argued that Juror #1’s unauthorized independent research contaminated the jury.

In reviewing the law on the motion for mistrial, the court confirmed that a mistrial is a last resort only to be employed where a correcting charge is insufficient to ensure trial fairness.  There is a rebuttable presumption that juries understand and follow the instructions they are given. The court did not find sufficient evidence to allow a mistrial, stating it was “of the view that the jury respected [its] correcting charge and disabused themselves of any further consideration of the Fault Determination Rules obtained from the internet.”

In the United Kingdom, the Juries Act penalizes jurors who intentionally seek relevant information during trial or deliberations, or share information with fellow jurors[1].  An offending juror is guilty of an indictable offence and may be sentenced up to two years imprisonment.   While there are no legislated penalties imposed on offending jurors in Canada, Canadian judges do have discretion to find a juror in contempt of court for failing to obey their instructions.

Save for contempt of court and sequestration, there are limited ways the Canadian judicial system can ensure jurors’ own research is not informing their decisions.  Under section 649 of the Criminal Code of Canada (“Criminal Code”), jurors are prohibited from discussing their deliberations, which makes catching bad behaviour all the more difficult.  Prohibitive legislation for independent information gathering, along the lines of the UK’s Juries Act, would help balance the Criminal Code’s requirement for secrecy, however there do not appear to be any such plans from the legislature at present.

The risk of an investigative jury is something counsel must bear in mind.  Trial preparation of diligent counsel should include internet searches of their clients to determine whether they need to get in front of any potential issues from a curious juror.  If there is real risk that media reporting will impact the client, section 638 (1)(b) of the Criminal Code allows defence counsel to file a challenge for cause based on pre-trial publicity, however there is no clear civil equivalent[2].  The jury charge is the judge’s responsibility, however defence counsel can, and perhaps should, emphasize the scope of the jury’s role in their closing.

While instances of juror misbehaviour may make for amusing anecdotes, it should be remembered that a mistrial is an expensive and time consuming use of public resources.  Even where they are not found out, independent jury research can cause problems for parties.  Had the jury in Patterson not sent a note to the judge, it might have applied Juror #1’s poorly conducted independent research, which could have resulted in an improper finding the basis for which might have gone undetected.

Jury instructions have become a tool of key importance in ensuring proper behaviour among jurors.  A trend toward specific references in jury charges against internet research may be forthcoming.  Although the Supreme Court of Canada has yet to comment on the issue, juror research and its impact on decisions is likely to be on the mind of our highest court and could be the subject of future case law.

[1] 1974 c 23 at ss 20A an 20B.

[2] Nemchin v Green, 2017 ONSC 2126 at paras 22 to 27.


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