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How Google-happy jurors are derailing Ontario trials

Three recent trials in Ontario have been rocked by juror misconduct connected to the internet, reviving concerns about the challenges of ensuring a fair trial in the digital age.

Jurors in Toronto, Barrie and Ottawa were discovered conducting their own independent research, despite strict instructions from judges that they were “not to use the internet or any electronic device in connection with the case in any way.”

Because of Canadian jury privacy laws, it’s impossible to determine if these cases are the exception and whether juries are, as required by law, reaching verdicts based only on the evidence presented in court.

But the cases have justice insiders wondering if it is a more widespread phenomenon and if anything can be done, as Ontario’s top court put it in 2015, to “curb the appetite” of jurors seeking online material where there is “little quality control over content.”

In Ottawa, at a just-completed motor vehicle personal injury trial, the plaintiffs raised concerns about “extrinsic” and erroneous information that made its way into the jury room.

After eight weeks of evidence, jurors — who were not sequestered while deliberating — sent a note to the judge asking about a regulation under the Insurance Act, which wasn’t introduced during the trial. The foreman, when questioned, admitted he had consulted the internet, and in so doing, “brought the wrong law to the attention of the jury,” the factum states. The only remedy should be a mistrial, argued the plaintiff.

Superior Court Justice Charles Hackland disagreed. In his May 14 written decision, Hackland said that although he shared the plaintiff’s concern about the juror engaging in internet research, “contrary to my express instructions,” he felt his “correcting charge” was sufficient.

“To my observation this was a very engaged and diligent jury on the whole and the verdict rendered at the conclusion of this lengthy trial is well supported by the evidence,” Hackland wrote.

In the two other recent cases, however, mistrials were declared.

A Toronto murder trial had to start over after a juror did some online research. Details about the nature of the research remain covered under a publication ban until the conclusion of the followup trial.

And a lengthy manslaughter and assault case in Barrie was derailed this month after a juror shared his computer-made crime scene map with fellow jurors and sought information about the trial judge, one of the defence lawyers and the date of surrender of one of the four accused. A retrial in the death of James McCallen, who died after a fight in Bradford, is scheduled for next year.

“Six weeks down the tubes,” said Leo Kinahan, a veteran Newmarket-based defence lawyer who was the subject of the Barrie juror’s curiosity. The juror learned Kinahan used to be a cop and shared the information with his fellow jurors, one of whom sent a note informing the judge.

Superior Court Justice Guy Di Tomaso didn’t pull the plug on the trial because of online searches, finding them “relatively innocuous” and not enough to give rise to trial unfairness.

Instead it was the fact the same juror also visited the crime scene in Bradford and created a map at home on his computer, containing the dimensions and layout of the area and marking in blue lines what he believed to be surveillance camera sight lines.

How often jurors conduct their own online searches is impossible to know because, unlike in the U.S., Canadian jurors are prohibited by the Criminal Code from disclosing their deliberations to anyone.

“I think it’s still possible for juries to follow the instructions,” said Lisa Dufraimont, an associate professor at York University’s Osgoode Hall Law School. “It’s just more difficult for people who are used to being connected all the time to actually cut themselves off in that way and not google things as they might normally google.”

Kinahan isn’t sure anything can be done to stop jurors from conducting independent research into a case. He notes Di Tomaso “gave a very stern warning to the jury not to do it.”

“If we do come up with a way to police it, I don’t think it’s a country that I would want to live in because it means Big Brother has access to every conceivable thing you do on the internet,” he said.

“Do you want a system where, if they become a jury member, (they) give their passwords to somebody?”

Nor does he think jurors should be prosecuted for failing to comply with judicial instructions. Di Tomaso told the offending juror his misconduct was “condemned by this court,” but that was it.

Some jurisdictions have gone further.

In the United Kingdom, the Juries Act was amended a few years ago to make it an offence for a juror to intentionally seek information relevant to a case. In 2012, a psychology professor who served on a jury in England was found guilty of contempt of court and jailed after conducting research about an accused person.

In Australia, some states have enacted legislation prohibiting juror research. But it’s not something the Ontario government is considering.

“The presiding judge has full supervisory authority over trial proceedings, including jury trials. If there is an issue with a juror, it is up to the judge to determine next steps,” a spokesperson for Ontario’s Ministry of the Attorney General wrote in an email to the Star.

In 2015, the Ontario Court of Appeal released a decision containing a suggestion on how trial judges can “stop the curious from doing research” when the jury is not in the courtroom.

Judges can add specific examples in the instruction against research, such as telling jurors not to access legal databases. To “underscore the point,” Justice David Watt wrote that judges could also remind jurors they could potentially be found in contempt of court if they ignore explicit instructions.

Osgoode’s Dufraimont agrees that instructions to jurors “might benefit from highlighting more what they’re not allowed to do,” while reminding them their focus must be on the evidence brought out in court.

She is unaware of any Canadian examples of a juror charged with contempt of court. And contempt prosecutions, in general, are rare, she said.

“The threat of contempt is much more useful on a systemic basis than actual prosecutions for contempt. To tell the jurors that it would be contempt of court for them to do the research might have value, even if no prosecutions actually occur.”

Still, the professor can appreciate the reluctance of courts to appear “heavy-handed” with people who are performing their “civic duty” by sitting on a jury.

“Nobody wants to make criminal prosecutions of jurors who do the wrong thing a regular feature of the criminal justice system,” Dufraimont said. “That would be a disaster.”

That’s why “beefing up the instructions,” in the way cited by the Court of Appeal, might be helpful, she said, “without crossing the line of making jurors feel that they’re being punished for participating in the process.”

TORONTO STAR