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July 2, 2015

What jurors can't do—and shouldn't talk about.

By Steven Z. Raber 

In most Canadian jurisdictions, jury trials are most common in criminal prosecutions. Although there are jury trials in some civil matters, they are far fewer.

Generally, by reason of Canadian law, we do not gain any insight as to what jurors speak about while alone together in the jury room. A recent Ontario case, however, brought to light certain activities by jurors and discussions among them that could have prejudiced the outcome of the trial.  That was the position of two brothers convicted by the jury.

After the brothers were convicted of drug-related crimes, one of the jurors was in a coffee shop discussing the case with a friend whose son had been charged with a criminal offence.  The juror related some of his experiences as a juror. The conversation was overheard and the juror was soon visited by investigators. They wanted to know whether the juror had been exposed to “extrinsic information”.

As a result of the investigation, the trial judge held an inquiry and questioned each juror as to whether he or she had seen or heard extrinsic information during the trial and deliberations. Some jurors were aware of the content of a four-year old article in the local newspaper that one of the jurors read soon after the trial started. Apparently, the article identified various persons charged with drug and weapons offenses. It was confirmed that one of the jurors had Googled the name of the now convicted brothers and saw an article reporting on the prosecutor’s opening statement. Two jurors had looked up the price of cocaine on the Internet.

The trial judge found that none of the activities of the jurors would have affected the outcome of the trial and maintained the conviction. The accused appealed to the Ontario Court of Appeal.

The appellate court noted that the Supreme Court of Canada had expressed the governing test, namely, whether there was any evidence indicating that the juror had been exposed to some information or influence from outside such that there is a reasonable possibility that this information or influence had an effect upon the jury’s verdict. In considering the test, the court noted that jurors are not blank slates. They are expected to use their general knowledge and to apply their entire life experiences. Yet, on the other hand, if a juror (or a third party) conveys to the jury information that bears directly on the case at hand that was not admitted at trial, it is truly a matter “extrinsic” to the deliberation process and the fact that it was introduced into the process is to be revealed and considered.

Applying the above principles, the court decided that no juror would have been disqualified for simply having read the newspaper report. Not only was the information reported to the other jurors by the one that read the report non-specific, four other jurors repeatedly reminded the others that they were to decide the case only on the evidence heard in the courtroom. Similarly, the court decided that research about the price of cocaine and reading the report about the prosecutor’s opening statement had no effect on the jury’s decision.

The appellate court also noted the trial judge’s instruction to the jury that they were to ignore extrinsic information, which instruction was stated in her opening and closing addresses. 

Finally, the court noted that the mere fact that a juror has prior information about a case or even holds a tentative opinion does not disqualify the juror.  There are many examples where a case is widely reported before trial and the jurors may have heard about the brothers and their alleged defences.

In a result, the Ontario Court of Appeal decided that in light of the nature of the information disclosed to other jurors, the fact that much of that information was largely replicated by evidence given at trial, and the instructions by the judge, there was not a reasonable possibility that the extrinsic information that was disclosed in the jury room affected the jury’s verdict. The court further found that there was no appearance of unfairness resulting from the exposure of the jury to outside information.  On this point, the court noted that there is some exposure to news reports in any significant prosecution.

In short, jurors, like judges, are presumed to govern themselves by the oath they swear to try the accused on the evidence adduced in the courtroom. The fact that they may be exposed to news reports does not mean that they will not abide by their oaths.  In this case, despite the fact that some of the jurors “Googled” information about the case, given the ubiquity of electronic devices and people’s use of them, the information gathered was benign and did not undermine the verdict or fairness of the trial.

Although the jurors in the case did not act perfectly, the brothers were given a fair trial, unaffected by the extrinsic evidence, and were found to be justly convicted. 

Steven Z. Raber is a lawyer, registered trademark agent, and trained mediator. You may reach Steven at (204) 957-8304 or by email at