Steering Committee on Justice Efficiencies and Access to the Justice System

3.5 Issues related to jury deliberations

The Steering Committee examined three issues relating to the procedure for jury deliberations:

  • the rule on sequestration of juries while they deliberate;
  • publication of information by the media during deliberation;
  • the rule on the confidentiality of deliberation relating to the possibility of doing research on the jury.

3.5.1 Mandatory sequestration of juries during deliberation

The current law (s. 647 Cr.C.) states: “The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.”The judge may have discretion to allow jurors to separate up to the start of deliberation, but the rule is that the jury be sequestered throughout the trial and until there is a verdict. While they deliberate, jurors must be sequestered.

It may be the rule in theory, but sequestration of juries prior to deliberation has for some time been more the exception, particularly because of the length of trials. [62] Some members of the Steering Committee suggested that the rule of mandatory sequestration during deliberation be reviewed because of the burden it places on jurors and the logistics and costs it creates for the administration of justice (hotels, transportation, security, etc.).

The original purpose of sequestering juries was to compel jurors to reach a verdict quickly by denying them water and food. Fortunately, that approach is a thing of the past! Today, juries are sequestered because of the real or perceived risk of outside influence.

However, as the New Zealand Law Commission noted in a comprehensive study of trial by jury:

  • a person who truly wanted to influence the jury's verdict might not wait until the very end of the trial;
  • sequestration during deliberations creates added inconvenience for jurors with family commitments; [63] a 1995 study in New York State showed that, before sequestration rules were relaxed, potential jurors who would otherwise have been excused on family or religious grounds could now serve;
  • sequestration can put undue pressure on jury members who might want to reach a verdict in order to avoid spending another night with their fellow jurors. [64]

The New Zealand Law Commission recommended abolition of automatic sequestration at the deliberation stage, and the law was recently amended to give effect to that recommendation [65]. The new legislation states that a jury may be separated after one day of deliberation unless the judge orders otherwise if he or she deems such an order to be in the interest of justice. In addition, jurors are specifically prohibited from discussing the case with anyone except during deliberation. In England, mandatory sequestration at the deliberation stage was changed in 1994 to allow the judge to permit jurors to be separated during deliberation[66]. In Australia, six states allow judges to permit the separation of jurors while they deliberate[67].

The applicable law in these jurisdictions, where criminal law is rooted in the British system of justice, the formula can vary. The law may state that a jury can be separated ex officio during deliberation after a specified period of time unless the judge orders otherwise, or sequestration may apply unless the judge allows the jury to be separated.

If the rule of mandatory sequestration during deliberation is reviewed, it might be appropriate to also review the rule of sequestration prior to deliberation in order to bring it in line with current practice.

3.5.2 Publication of information by the media during deliberation

Section 648 Cr.C. currently prohibits the publication of information regarding any portion of a trial at which the jury is not present before the jury retires to consider its verdict. Some members of the Committee suggested that this restriction be extended until the verdict is read even if the jurors were sequestered while they deliberated. Similar proposals were adopted by the Uniform Law Conference of Canada in 1999 and 2003.

Apparently, there have been incidents were jurors became privy to information adverse to the accused while the jury was deliberating. Owing to the proliferation and miniaturization of means of communication, it is increasingly difficult to control the information that jurors can access while they deliberate.

This issue obviously raises questions about the protection of freedom of the press and freedom of expression set out in paragraph 2(b) of the Charter. Section 648 Cr.C., as it currently stands, has already been challenged from that standpoint, and its full application has been restricted in some judgments based on the Dagenais/Mentuck test that applies generally to publication bans. Otherwise stated, by that reasoning, section 648 cannot prohibit outright the publication of information presented when the jury is absent and the media could obtain permission to publish information that cannot “reasonable be considered to give the jury a negative impression of the accused” [68]

In a more recent case, the Court of Appeal of Alberta was asked to determine the validity of section 517 Cr.C. in respect of paragraph 2(b) of the Charter. S. 517 Cr.C. states that a justice must, on application by the accused, make an order that evidence presented at the hearing on interim release not be published. The Court of Appeal ruled that while such mandatory prohibition is at odds with paragraph 2(b) of the Charter, it is a reasonable restriction in a free and democratic society given the temporary nature of the restriction:

46. It is also relevant that the section does not impose a “publication ban”, but merely defers publication until after the trial. While it is clear that a deferral of publication is itself an infringement of s. 2(b), it is nevertheless a lesser infringement than a total ban, which is a factor that can be taken into account in the analysis of minimal impairment. [69]

The fact that the proposed amendment to section 648 Cr.C. would simply delay the publication of information a few days - or even a few hours, in many cases - might actually work in favour of the constitutional validity. One of the factors that has to be taken into account, however, is that the risk of violating the right of the accused to a fair trial is diminished by sequestration, which should be considered in seeking a balance between opposing rights. It should also be noted that most case law recognizes the trial judge as having the inherent authority to ban publication at his or her discretion during deliberation if specific circumstances warrant [70]. The issue therefore demands more detailed analysis.

3.5.3 Confidentiality of deliberation

Section 649 Cr.C. as currently worded prohibits jurors from disclosing the content of their deliberation except for the purpose of examining the workings of a jury.

This restriction probably does not preclude general studies of former jurors on issues that would not lead them to make a determination on the deliberation process. In England, a prohibition similar to the one set out in section 649 did not stop studies on issues like their general understanding of evidence produced, their understanding of the legal concepts explained in the instructions, their assessment of compensation and accommodations, the impact of the trial on their personal lives and their families' personal lives and their perception of the legal system [71].

Section 649 Cr.C. did not prevent a similar study in Canada under the auspices of the Law Reform Commission of Canada. [72]Because of s. 649, the questions had to be very general and they were carefully prepared to prevent the jurors from talking about the deliberations in a specific case, namely: How did you find the presentation of evidence? Do you feel that juries generally are able to understand and evaluate the evidence? How did you find the instructions that were given to you by the judge? Do you feel that juries generally understand judges' instructions? Some general questions also dealt on the meaning of proof beyond a reasonable doubt. To diminish the risk of contravening the rule of deliberation secrecy and being placed in a situation of offence, the authors of the study had their questionnaire approved beforehand by the Justice Department of Canada in addition to obtaining the agreement of the chief judge of the courts involved.[73]

As mentioned by the authors of the study, the scope of the results obtained in response to this type of question remains limited. [74] The amendment of section 649 Cr.C. to authorize studies on the deliberation process per se would certainly provide a better gauge of the appropriateness of changes to be made to the institution.

In New Zealand, where the common law rule has not been consolidated in the form of a formal ban, unlike in Canada and England, the New Zealand Law Commission conducted a study that was unique for a jurisdiction with a British-based criminal justice system. The study, in which 312 jurors out of a sample of 48 trials were interviewed, focused on the following issues:

More specifically, the objectives of the research were:

  • to examine the extent to which, and the way in which, jurors individually and collectively assimilate and interpret the evidence and identify the issues in the case;
  • to identify the problems which jurors experience during the trial process;
  • to assess the extent to which jurors individually and collectively understand and apply the law, and to investigate how their perception of the 'law' modifies and influences their approach to the 'facts';
  • to explore the processes used by the jury to reach a decision, including their strategies for resolving disagreement and uncertainty;
  • to identify the impact and effects of pre-trial and trial publicity on the attitudes and responses of each individual juror to the case he or she is dealing with; and
  • to describe jurors' reactions to, and concerns about, their experience as a juror. [75]

The results of this study made it possible to make a significant number of concrete recommendations, justify a series of legislative amendments (concerning the confidentiality of jurors' identity, majority verdicts, separation during deliberation, the right to trial by jury for long trials) and correct misperceptions, particularly with regard to the impact of the media on the decision-making process.

In Australia, six states specifically allow research involving the disclosure of aspects of the deliberation process [76]. In five of those states, research must be authorized by the Minister of Justice or the Attorney General. In the sixth, research must be authorized by a court on such conditions as court deems appropriate, subsequent to an application by the Attorney General.

Similar studies have been conducted in other jurisdictions, but they are very limited in scope in the context of Canada because of differences in culture, rules of evidence and procedure (in particular rules governing case management), the role and attitudes of judges and lawyers, etc.

The Supreme Court of Canada has often criticized the fact that this restriction makes it difficult to measure, for purposes of challenge with cause, the real impact of jurors' attitudes and bias on their judgment:

The attempt of Vidmar and others to conduct scientific research on jury behaviour is commendable. Unfortunately, research into the effect of juror attitudes on deliberations and verdicts is constrained by the almost absolute prohibition in s. 649 of the Criminal Code against the disclosure by jury members of information relating to the jury's proceedings. More comprehensive and scientific assessment of this and other aspects of the criminal law and criminal process would be welcome. Should Parliament reconsider this prohibition, it may be that more helpful research into the Canadian experience would emerge. But for now, social science evidence appears to cast little light on the extent of any 'generic prejudice' relating to charges of sexual assault, or its relationship to jury verdicts. [77]

One of the recommendations in Honourable Justice MacCallum's report on the wrongful conviction of David Milgaard also provides an interesting illustration of the usefulness of such studies to a reform of rules of evidence and procedure:

The Criminal Code should be amended to permit academic inquiry into jury deliberations with a view to gathering evidence of the extent to which jurors accept and apply instructions on the admissibility of evidence, particularly relating to inconsistent out of court statements. Amendments to s. 9 of the Canada Evidence Act should then be considered. [78] (Recommendation 5)

The principles underlying the traditional rule of the secrecy of jury deliberation (foster free and frank debate among jurors; protect jurors from harassment, censure or recrimination at the hands of convicted persons and their families; and ensure the finality of the verdict [79]) could be preserved by maintaining the confidentiality of the identity of respondents and depersonalizing answers and observations so that they cannot be linked to a particular trial.[80]

Also worth citing are Honourable Justice Lamer's findings on section 649 Cr.C. in his report on the wrongful convictions of Ronald Dalton, Gregory Parsons and Randy Druken:

It is possible to isolate a number of specific factors and to draw some general conclusions. However, the picture will always be incomplete without at least some insight into what happened in the jury room. [...] There have been some studies done in the United States on jury behaviour as well as some Canadian studies on “simulated” juries. But much of our knowledge of juries is based on assumptions. [...] Here, the challenge is to maintain the benefits that section 649 affords while obtaining the benefits of better insight into jury deliberations. That would be especially valuable where a serious injustice has occurred. [81]

Recommendations

14 - Examine more thoroughly the advisability and feasibility of legislative amendments

  • 1. (a) to make it possible for jurors to be separated during deliberation when appropriate and, if so, to continue the publication ban prescribed in section 648 Cr.C. until the verdict is returned;

  • to confirm the discretion of the trial judge to extend a media ban on publication of information related to a portion of the trial at which the jury is not present until the verdict is returned, based on the implications arising from the rights protected by paragraph 2(b) of the Charter

  • to amend the rule of secrecy of jury deliberations to permit studies of how juries work by providing the necessary framework without compromising the principles underlying the rule.


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