With a smartphone in every pocket, and easy access to the law in every home, when does independent research by a juror become sufficient for a mistrial? The Ontario Superior Court of Justice recently explored this issue during a personal injury trial in Patterson v. Peladeau, where Justice Hackland dismissed the motion for mistrial.
At issue for the mistrial motion was an unusual jury question on the first day of deliberations. The content of the note inferred that the jury had been discussing the liability issue at trial, but in an context of a statutory reference that was not at stake. On questioning of the jury foreman, the judge identified that this individual had looked up the statutory references when at home over the weekend.
Although the internet is a powerful tool, it is also easily misused, and in this case the foreman had thought he had found a relevant section of the statute through a government website. In fact, he had identified a regulation to the act that is used by insurers to determine the fault of its own insured for property damage in collisions.
In response to the jury question, Justice Hackland set out a correcting charge that included the following:
2. The jury question reflects that a jury member has accessed the internet to look at laws and regulations. As I instructed you at the opening of the trial, it is completely improper to research or Google law and there must be no reoccurrence of this. Your verdict must be based exclusively on the evidence entered into the record in this trial and on the legal directions which I have given to you. The explanation and direction as to the law must come from the judge. There is to be no independent research conducted by any juror. I will answer any questions you have on the law or on any other matter.
[emphasis in original]
The correcting charge was opposed by the plaintiff, who instead sought that the court should strike the jury and determine the issue of liability and damages directly. Justice Hackland’s ruling on the mistrial motion was as follows:
I believe that the answers provided by juror number one yesterday adequately reflect that no other jurors were involved in accessing internet information. I also note that the question itself makes it clear that what the jury was intending to do was to seek the further direction of the Court with respect to the information that they had. I am satisfied that we have adequate information from my polling of juror number one to determine what went on here and the scope of the problem arising from this internet information.
In my opinion, considering all of the circumstances, the problem which arises from the internet information can be adequately remediated, or addressed at least, by a proper response to the jury question combined with a strong admonition about the impropriety of any further efforts to research the case outside the four corners of the evidentiary record. It is my decision, therefore, that the jury will be called in without further questioning and I will read a written response to the jury questions including the admonition which I referred to earlier. I will then instruct the jury to continue with their deliberations and to return a verdict.
Because the jury was asked to determine the extent of the negligence of each of the defendant and the plaintiff contributed to the latter’s injuries, the plaintiff inferred from the apportionment of 73% contributory negligence to the plaintiff to a continued reliance of the jurors on these regulatory provisions. The plaintiff also pointed to some of the language that the jurors used, which also appeared to come from the regulation in question.
Justice Hackland rejected these arguments, noting that the jury’s language could have been derived from the jury charge and the act itself, and the apportionment of liability did not follow the regulations, and was a finding based on the evidence at trial. more importantly, the jury sought direction from the court as soon as the internet evidence was raised, which he found “is a strong indication of their willingness and intention to follow the court’s further direction,” including the correcting charge.
To apply these facts to the case at hand, Justice Hackland referred to Pena v. Ontario Corp. No. 261660, where the principles of a mistrial were summarized as follows,
21. I rely on the following principles of law governing whether the court should order a mistrial:
(i) Trial judges are only to order a mistrial “as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned: (R v. Jeanvenne, 2010 ONCA 706 (CanLII), 2010, ONCA 706 (Ont. C.A.)(“Jeanvenne”), at para. 58, summarizing R. v. Toussaint, 2007 ONCA 773 (CanLII), 2007 ONCA 773 (Ont. C.A.) (“Toussaint”), at para. 9; see also R. v. Moffit, 2015 ONCA 412 (CanLII), 2015 ONCA 412 (Ont. C.A.) (“Moffit”), at para. 93);
(ii) A mistrial can be granted only when there is a “real danger of prejudice…or danger of a miscarriage of justice” (Carleton v. Beaverton Hotel, 2010 ONSC 898 (CanLII), 2010 ONSC 898 (Ont. S.C.J.) (“Carleton”), at para. 3, citing R. v. Burke, 2002 SCC 55 (CanLII), 2002 SCC 55 (S.C.C.), at para. 74);
(iii) A mistrial can only be granted when (i) “a correcting instruction to the jury cannot cure the prejudice” (Gilvert v. South, 2015 ONCA 712 (CanLII), 2015 ONCA 712 (Ont. C.A.), at para. 22); and (ii) the jury “can no longer fairly adjudicate upon the case because of the release of information that has the potential to irremediably prejudice one of the parties” (Carleton, at para. 4, citing Ferguson J. in Ontario Courtroom Procedure, 2d ed (Markham: LexisNexis 2009));
(iv) A court faced with a mistrial motion must address three questions. First, it must consider whether the admissible evidence or improper statements to the jury “are properly characterized as inappropriate and/or inflammatory. Second, it must consider how serious the likely prejudice is to the other party and whether the impugned comments or actions might prevent the jury from properly approaching its task. Finally, it must consider the appropriate remedy and whether a remedy short of a mistrial might suffice” (Bonaiuto v. Pilot Insurance Co. 2010 ONSC 1624 (CanLII), 2010 ONSC 1624 (Ont. S.C.J.), at para. 60, summarizing Landolfi v. Fargione [2006 CarswellOnt 1855 (Ont. C.A.)]. 2006 CanLII 9692 (ON CA), 2006 CanLII 9692, at paras. 99 – 107);
(v) “[T]rial judges are particularly well-placed to assess the impact of inadmissible and potentially prejudicial evidence in the context of the trial dynamic, including the effectiveness of any warning that may be issued (Jeanvenne, at para. 3);
(vi) It is proper for a trial judge not to declare a mistrial but instead instruct a jury that an article has been published which contains “false” information that had nothing to do with the case to be tried and that they were to disregard it” (Kinkead, at paras. 38-44); and
(vii) The court should trust that the jury will follow an instruction from the judge (Moffit, at para. 100).
Applying these principles, the motion for mistrial was dismissed, as “this was a very engaged and diligent jury on the whole and the verdict rendered at the conclusion of this lengthy trial is well supported by the evidence.” The relevant consideration was not whether the exposure to the extrinsic material should give rise to a new trial, but whether the correcting charge was sufficient in the circumstances.
In R. v. Toutissani, the Ontario Court of Appeal endorsed the statement of Justice Nordheimer that, ““[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.”
The reason for this, as explained in Gilbert v. South, is that “It results in extra costs and delays the resolution of the parties’ dispute.” In an era of judicial scarcity and the backdrop of Jordan and Cody, these resource considerations are even more significant.
The Court’s reference at para 116 in Jordan references “all participants in the justice system” working in concert to address judicial scarcities, limited resources, and integrity of the trial. Jurors were not explicitly referenced here, or in the Court of Appeal’s decision in R. v. Omar cited in this same paragraph, but the rationale is equally applicable.
The risk with this case is that future jurors, who may also be inclined to research the implications of their outside research, may not fully appreciate the gravity of disregarding a jury charge. Hopefully this decision adequately emphasizes the importance of disclosing to the court where such conduct has occurred, and what is at stake to the parties, and to the justice system as a whole.