The Internet and the Law Series, Part 2 – The Rogue Juror

Simon Fodden – English Court Sanctions Jurors Who Used Internet

(Part 1 in the series here.)

Next in this series, I’m taking a look at another Slaw post, this time from Simon Fodden – English Court Sanctions Jurors Who Used Internet. The title in this one somewhat spoils the ending, but it’s definitely still worth a read for its educational value.

The matter involved a young man serving on a jury for a sexual offense trial. At the end of the first day, he posted the following update on Facebook:

Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to Fuck up a paedophile & now I’m within the law!

Two of his four-hundred or so friends even went so far as to “Like” his status update. Another Facebook friend sent an email to the Crown’s office informing them about the problem. The next day, the judge removed him from the jury.

Of particular interest to me (and to the court that granted leave for a committal order against the young man) was the trial judge’s subsequent (re-)warning to the jury about following the man’s example online. In the High Court’s view, the trial judge went a bit too far in telling the jury that they “should not use the internet.” The Court concluded that the inconsistent language of the warnings given to jurors about use of the internet contributed to some of the confusion involved in this case. They then recommended that the rules and material that are presented to juries before a trial be reviewed by the Criminal Procedure Rules Committee.

The High Court of England’s concern led to me to wonder what Canadian jury instructions had to say about the interaction between juries and the internet. I haven’t had the opportunity to serve on a jury, so instead I turned to the Canadian Judicial Council’s “Model Jury Instructions” for an idea of what sorts of information is given.

Under a section titled “Conduct of Jury,” the instructions set out that jurors should not discuss the case with anyone who is not a jury member. If anyone else tries to discuss any part of the case with a juror, they should not. Then it gets more specific, saying that jurors should “not use the Internet or any electronic device in connection with this case in any way. … Do not read or post anything about this trial.” This particular document, though, did not give any details about what would happen if a juror failed to comply with these instructions.

The Juries Act provided some more insight in that regard. Section 42 of the Act specifies that the sheriff in charge of the jury is required to post up in the courtroom, jury room, and entrance hall copies of s.139(2) of the Criminal Code (obstructing justice, an indictable offence for which someone can be liable to imprisonment for up to 10 years).

One of the more interesting cases of a juror tried under s.139(2) of the Code involved a juror who was found to have had a romantic relationship with the accused (at whose trial she was a juror).

Dealing more specifically with internet-related juror misconduct similar to Mr. Davey’s circumstances above, section 644 of the Criminal Code is also helpful. Section 644 allows a judge to discharge a juror if the judge is satisfied that the juror should be discharged “by reason of illness or other reasonable cause.” One such reasonable cause is if there is a reasonable apprehension of bias from a juror (R. v. Budai, 2001 BCCA 349, para 31).

So it seems that here in Canada, if a juror had made that sort of comment online, it’s likely they would be at least discharged and (depending on the content and context) maybe even charged with obstruction of justice. Either way, it’s definitely a bad idea – jurors serve an important role in the criminal justice system.

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