The right to a trial by jury is a fundamental right in many proceedings. In a trial by jury, the lay jurors consider the evidence led at trial and make factual determinations based on the admissible evidence. Trials by jury, however, involving 12 (or 6 in the civil context) lay people as triers of fact can easily get complicated in a wired world where access to additional facts outside of the trial process is widely available.
Take, for example, the recent decision in R. v. Graham. There, the two accused were charged with fraud over $5,000 in relation to an alleged fraud and misappropriation of over $2m from a lawyer’s trust account.
In the course of the trial before a jury, one juror asked to be excused, as he learned that his child’s school was near where one of the accused lived. He feared for his and his family’s safety in the event that they bumped into the accused or her family in their neighbourhood. He was excused. Then there were 11.
A second juror was subsequently excused. That juror had accessed the LinkedIn profile of one of the accused. The juror admitted that she had done so, but said that she did the searches at the beginning of the trial, in July 2019. However, a LinkedIn printout showed that she had done so in September, 2019. The juror had also searched the lawyers involved in the case. She was excused. Then there were 10.
As there was an issue as to what the other jurors may have learned or have been told, the trial judge conducted an inquiry of the other jurors. They were asked if they did research into any of the participants in the trial, what they found, and what they told or were told by other jurors. The judge learned that three of the jurors had conducted “research”, despite the trial judge’s instruction not to. One searched the lawyers on LinkedIn, one searched the lawyers on Facebook. A third was told by other jurors about where one of the lawyers went to school.
The trial judge found that while the two jurors had breached her instructions, the breach was not one that should lead to their discharge. Unlike the juror who was discharged, the other inquisitive jurors did not search for information on the accused, just their counsel.
The trial judge noted that if further jurors were discharged, there would be a mistrial: a jury with less than 10 members was not permitted.
In the criminal context, the Supreme Court of Canada in R. v. Khan at para. 72 stated that “…the accused is not entitled to a perfect trial. He is entitled to a fair trial, but it is inevitable that minor irregularities will occur from time to time. The trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance.” In other words, we can’t let perfection be the enemy of the good.
The trial judge referred to this quote, and ordered that a discharge of the two further jurors or a mistrial was not warranted, and that a further, strong, mid-trial instruction to the jurors advising them that they are not to investigate, research or seek out information about the case or anyone involved in it, including the accused or any of the lawyers was sufficient.
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