At the opening of a civil trial in Ottawa two years ago, the judge warned the jury against conducting any research on the internet.
“It will just introduce into the trial information that’s not properly evidence,” Justice Charles Hackland told the jury on Jan. 9, 2018. And that, he added, “could in some cases torpedo the trial if it’s a serious enough matter.”
Nevertheless, eight weeks after all the evidence had been heard about the vehicle collision that led to the trial, the jury foreperson googled the law about the central issue in the case: liability.
Next month, the Ontario Court of Appeal will consider whether the judge erred when he turned down a request to declare a mistrial on that basis. It’s believed to be the first time any appellate court in Canada has considered arguments about internet use by jurors in a civil case.
Despite judge’s instructions against hunting for information online, juror googling continues to bedevil the justice system, sometimes forcing mistrials or worse, verdicts that could be based on misleading or false information gleaned from the internet.
Yet with dozens of jury trials scheduled in 2020 at downtown Toronto’s Superior courthouse, some legal insiders feel not enough is being done to ensure jurors not conduct their own research into a case.
There are no easy fixes.
“The difficulty is that strongly emphasizing that jurors should not do Google searches will only intrigue them more,” said Toronto defence lawyer Daniel Brown, a vice-president of the Criminal Lawyers’ Association.
In the Ottawa case, the jury sent a note to the judge which included a question about something called “fault determination rules,” which state that if a vehicle is struck while illegally parked, then the operator of the parked vehicle is 100 per cent at fault. “The jury is wondering if this part of the (Highway) traffick (sic) act should be considered,” the note said.
They were wondering because, in the case before them, Ronald Patterson was suing Pascal Peladeau after Peladeau’s vehicle crashed into his on a rural road — and Patterson’s car was parked illegally at the time.
But the fault determination rules are not part of the Highway Traffic Act; rather, they are a regulation under the Insurance Act intended to resolve property damage disputes.
In his appeal, Patterson’s lawyers wrote that not only were the rules not relevant, but that considering them was “highly prejudicial” against Patterson, who was awarded $310,000 after the jury concluded that he was 73 per cent responsible for the collision. Thomas Connolly and Joseph Obagi are now asking the province’s top court for a new trial, arguing the judge should have agreed to their request for a mistrial, failed to conduct a proper inquiry of the jury by questioning only the foreman, and failed to determine the prejudicial effect of the googling on the verdict.
Peladeau’s lawyer believes the appeal should be dismissed. The judge “properly took steps to ensure the that fairness and the perception of fairness owed to both parties remained intact,” Joseph Griffiths wrote, and was right not to pry into the jury’s deliberations, which might have undermined “the secrecy and sanctity of the deliberative process.”
Connolly and Obagi noted that the jury foreman told the judge that other jurors were “trying to understand how to interpret things” and were “struggling and stuck” on the issue of liability.
It’s not usual for juries to get hung up on legal concepts.
During a recent, high-profile sex assault trial in Toronto, the jury sent the judge a note asking about what the Criminal Code says about “consent,” while another jury deliberating in a murder case wanted to know the legal definition of “deliberate.”
Given the complexity of trials, which can include experts testifying about medicine, engineering, or accounting, and judges’ charges on the law that can last for days, it’s no surprise jurors would turn to the internet for answers, Brown says.
“Jurors are given a near impossible task to correctly interpret and apply complex laws to complex facts. Even highly trained and experienced judges occasionally make mistakes in this area,” he wrote in a text message.
However, only a judge’s mistakes can be corrected on appeal. “For better or worse, we will never know how or why the jury reached the verdict they did, Brown noted, “Their deliberations — including any erroneous application of the law — will always remain shielded from public scrutiny.”
And when jurors seek information that hasn’t been heard during a trial, a mistrial is sometimes the result.
That’s what happened a day after the Crown opened its case against Calvin Nimoh, who fatally stabbed cancer researcher Mark Ernsting in downtown Toronto on Dec. 15, 2015.
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Ignoring the judge’s instructions, a juror looked up the accused online, discovered that he had an outstanding charge involving violence, and told fellow jurors about it. One of them alerted the judge, who declared the mistrial.
That meant Ernsting’s husband, who had just gone through a wrenching day of testimony in the first trial, would eventually have to come back to tell his story a second time.
“It was so, so awful, like I do remember I was so nervous I was shaking,” Robert Iseman recalled of Nimoh’s first trial. “They called my name and it felt tunnel vision-y walking up to the stand. I don’t think I looked at the jurors. I can’t recall any of their faces.”
The next day, Iseman was horrified when the judge revealed a juror had broken the rules, and because of that, a mistrial was being declared. “In my brain I thought (Nimoh) was free to go, and I just broke down,” said Iseman. “I just about lost it.”
That wasn’t the case — but, the prosecutors explained, Iseman and other witnesses who had already testified would have to go through the whole exercise again.
“I had to wipe my mind and just kind of reset,” he said.
Iseman doesn’t hold what happened against the juror. “I think he really, truly had the best intentions and didn’t quite understand repercussions,” he said, but adds that every prospective juror should consider the anguish that can result from mistrials caused by googling.
At the start of every jury trial, the judge reads instructions to the jurors about the law they need to apply to reach a verdict. Those instructions, which were created by a special committee of the Canadian Judicial Council, tell jurors they are not to use the internet or any electronic device in connection with the case, and remind them that their task is to decide the case based solely on the evidence heard in the courtroom. Some Toronto judges are known to go “off script” by beefing up their instructions by warning specifically about the perils of googling.
But Brown, the defence lawyer, believes it would help if the instructions had some teeth. In the United Kingdom and some American states, jurors can face criminal sanctions if they Google during a trial.
“The government would likely need to legislate it as a crime to ensure compliance as they have done with maintaining secrecy in jury deliberations,” he wrote.
Another proposal would see jury members sign an undertaking to fulfil their obligations without access to the internet or evidence not heard in court.
A law student who studied what he called the “runaway jury” phenomenon in Canada — borrowing from the title of a John Grisham novel — concluded jurors might also benefit from hearing about the rules of evidence. That might help them understand a judge’s gatekeeping function to determine admissibility based on relevance, reliability or where its’ prejudicial effect exceeds its’ probative value, Keith W. Hogg wrote in his 2019 paper “Runaway Jurors: Independent Juror Research in the internet Age.”
It might also help them understand why evidence must be tested in court, where the accused has an opportunity to respond.
“Jurors’ insufficient appreciation of the goals of evidence law may also contribute to the problem,” Hogg wrote. “All these matters could be addressed more explicitly by the trial judge.”