Section 649 of the Criminal Code makes it an offence for a juror to disclose “any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court.” This sweeping prohibition has prevented the public from knowing about the reasons for, and the process by which, juries go about making decisions. The concern addressed here relates to communications with the media by jury members following conclusion of a trial, a common feature of high profile cases in the United States. It is time to loosen these restrictions and let the sun shine into the jury room.
Juries play a crucial role in our justice system. The collective wisdom and experience brought to bear by a jury, acting as the “conscience of the community” allows them to serve as representatives of the public in dispensing justice. The jury’s role goes beyond decision-making and ensures the public has confidence in the justice system itself. As stated by Justice L’Heureux-Dubé in R. v. Sherratt,  1 S.C.R. 509, the jury “provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole.” Societal trust in the system is indeed fundamental, and is best served by permitting access to the reasons for a jury verdict in cases of public concern.
Openness is a bedrock principle of our legal system. Court proceedings must be accessible for public scrutiny. In (Re) Vancouver Sun,  2 S.C.R. 332, the Supreme Court of Canada summarized the legal principles in this area, which are relevant to the discussion here:
(a) the “open court principle” is a hallmark of a democratic society and applies to all judicial proceedings;
(b) “a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized”;
(c) the right of public access to the courts is “one of principle . . . turning, not on convenience, but on necessity”;
(d) “Justice is not a cloistered virtue”;
(e) “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”;
(f) public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”;
(g) openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Openness is a principal component of the legitimacy of the judicial process and why the parties and public abide by decisions of courts;
(h) the open court principle is inextricably linked to freedom of expression protected by section 2(b) of the Charter of Rights and Freedoms and advances its core values;
(i) the freedom of the press to report on judicial proceedings is a core value. The right of the public to receive information is also protected by the constitutional guarantee offreedom of expression;
(j) the press plays a vital role in being the conduit through which the public receives information regarding the operation of public institutions;
(k) the open court principle is thus, to put it mildly, not to be lightly interfered with.
In R. v. Pan,  2 S.C.R. 344, the Supreme Court upheld the constitutionality of the jury secrecy provisions in section 649. The Court identified two rationales which, in the Court’s view, made it essential to maintain the secrecy of jury deliberations.
First is the need to ensure full and frank debate by jurors without fear that disclosure of their deliberations might hold a juror up to ridicule or contempt. Writing on behalf of the Court, Justice Arbour stated: “This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime.” Second is the need to ensure the privacy of jurors, and keep them free from censure or harassment.
These are no doubt compelling rationales. However, they can both be dealt with by prohibiting disclosure of the identity of jurors. Juries can be told following a trial that they have no obligation to speak to the media and, if they do, it would be an offence to identify a juror. If notwithstanding, a jury member wishes to come forward and communicate with the media, they should be allowed to do so, taking care to ensure that no other jury member is identified.
There is no evidence that jury interviews in the United States have harmed the jury process. This suggests that the fears expressed by the Court in R. v. Pan can be dealt with by less intrusive means than the outright prohibition we have now. It is, of course, a basic tenet of our Charter of Rights and Freedoms that any restrictions on the fundamental rights set out therein must be proportional and narrowly tailored to meet the objectives of the matter at hand.
There is little doubt that section 649 of the Criminal Code infringes on the section 2(b) Charter rights of the media to freedom of the press. While not absolute, section 2(b) must at least extend to the media’s ability to gather information and report the news, and it goes without saying that many criminal cases are newsworthy and matters of public concern.
Even the Court in R. v. Pan said the jury secrecy provisions “come at a price” in that they go so far as to prevent academic study into the jury system. As long ago as 1982, the Law Reform Commission of Canada recommended that section 649 be amended to allow for scholarly research of jury deliberations. Justice Arbour agreed with the need for such research, stating:
Every year, several jury verdicts are reversed and expensive new trials are ordered because of the risk of a serious error in the deliberative process. We assume that errors in the admissibility of evidence, improper comments by counsel or, more commonly, misdirections on the law by the trial judge may have misguided the jury and may have had an adverse impact on its verdict. When that concern emerges, we then speculate as to whether the error is likely to have adversely affected the deliberations of the jury and, if so, we conclude that the entire trial is vitiated and that we must start again.
That entire exercise is conducted on the basis of assumptions, some very fundamental, and some more easily verifiable than others. For example, we assume that the exact wording of a jury charge will likely have an impact of the jury’s understanding of its tasks. The clearest example is the long-standing search for the proper explanation of what guilt beyond a reasonable doubt means, and how it should be conveyed to the jury. (citations omitted)
There are means by which we should be able to assess rationally, and in an informed and reliable manner, whether exposure to some information is unduly prejudicial in the sense that juries are likely to give it inappropriate weight, for example in the case of criminal records or similar fact evidence. We should also be able to measure the real capacity of juries to understand long and complex oral instructions, and to determine whether our current models of jury charges substantially accomplish their purpose. In short, we should be able to assess, in an informed and rational fashion, the likely impact of an alleged error or event on the deliberations of the jury and on the fairness and reliability of its verdict.
This call for amendment to section 649 has not been taken up. The fact that such basic research into a fundamental component of our justice system is precluded shows that section 649 is more broadly worded than it needs to be. I would go a step further and say that section 649 should be amended, with adequate safeguards, to allow for communications by jurors with the media following the conclusion of a trial.
[An abbreviated version of this entry appeared in the National Post on 8/10/13.]