It's time to let Canadian jurors speak freely about their verdicts, experts say

In Canada, jurors are prohibited by law from making any public comment about their deliberations or reasons for a verdict. But is it time to change the law and allow jurors to speak?

Unlike in the U.S., juries in Canada are prohibited from disclosing any information about deliberations

Mark Gollom · CBC News · Posted: Feb 15, 2018 4:00 AM EST | Last Updated: February 15, 2018

Jurors at O.J. Simpson's armed robbery and kidnapping trial in Las Vegas speak to the media after their guilty verdict in October 2008. In Canada, it's against the law for jurors to comment about their deliberations. (Jae C. Hong/Associated Press)

The jury's rationale for acquitting Gerald Stanley of second-degree murder in the death of 22-year-old Cree man Colten Boushie will likely remain a mystery.

That decision has sparked widespread anger and calls for reform of the justice system, and many Canadians want to know how the jury came to its conclusion.

But in Canada, jurors are prohibited by law from making any public comment about their deliberations or their reasons for a verdict, according to Section 649 of the Criminal Code. The penalty for running afoul of this law is a summary conviction, meaning the possibility of six months in prison, a fine of $5,000 or both.

Allan Rouben, a Toronto-based lawyer who has blogged and written about this subject, believes it's time to change the law in Canada and allow jurors to speak.

"I feel strongly about the issue," he said, "and I feel that way from the belief that the jury system is extremely important, and we need to have confidence in our institutions, and that fostering communication by the jury with the media will enhance confidence in the jury system."

'Helps the public to understand'

Rouben points to the United States, where jurors are allowed to speak freely to the press following a verdict.

"[It] helps the public to understand why a verdict was made, and to dispel any feelings there could be that the jury verdict was irrational or stained by some improper purpose," he said.

A Saskatchewan jury's decision to acquit Gerald Stanley of second-degree murder in the death of Colten Boushie prompted anger, and questions by some as to how the jury reached its verdict. (Jason Franson/Canadian Press)

Jury secrecy in Canada is rooted in old English common law, but its validity has since been upheld by the Supreme Court of Canada, which looked into the constitutionality of Section 649 in 2001.

Jury secrecy, Justice Louise Arbour wrote in that decision, "promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making."

Jurors "should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred," she wrote.

Jury duty: Unfair burden or civic obligation?

Jurors concerned about possible negative public exposure may be less inclined to argue for a verdict perceived as unpopular, Arbour wrote.

It's also important that jurors who hold minority viewpoints do not feel pressured to retreat from their opinions because of potential repercussions associated with the disclosure of their positions, she wrote.

'Overly broad'

Rouben agrees the Supreme Court offered "compelling" reasons for preserving jury secrecy provisions but says those provisions "are overly broad."

"I think there are ways of preserving the features of the secrecy provisions but at the same time allowing the public to better understand how jury verdicts are arrived at."

Section 649 of the Criminal Code says it's 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.' (CBC)

For instance, he said, judges could instruct jurors that they have no obligation to speak to the media, and that it's strictly voluntary.

Under current Canadian law, judges are also granted discretion in ordering a publication ban on the identities of jurors if they feel it's warranted.

"I kind of think the concern is either overblown or exaggerated," Rouben said.

Yet some jurors in the U.S. have spoken about fears for their safety after delivering a controversial decision. Some of the jurors in the 2011 Casey Anthony trial, for example, who found Anthony not guilty in the death of her two-year-old daughter, reportedly went into hiding after the unpopular verdict.

Some of the jurors in the Casey Anthony 2011 trial, for example, who found Anthony not guilty in the death of her two-year-old daughter, reportedly went into hiding after the unpopular verdict. (Red Huber/Pool/Getty Images)

It is rare for a judge to impose restrictions on identifying jurors in the U.S., where that information is generally made available to the media and the public, but it has been done. Just last week, a New York judge made such an order in the trial of accused Mexican drug lord Joaquin "El Chapo" Guzman, fearing for the jurors' safety.

U.S. District Judge Brian Cogan said the U.S. government "presented strong and credible reasons to believe that the jury needs protection." He wrote that the significant media attention on the case could raise the potential for juror names to become public, exposing jurors to the risk of intimidation or harassment.

Freedom of speech

Eugene Volokh, a law professor at UCLA, said there's always been a risk of public backlash to jury verdicts, but that shouldn't override freedom of speech.

"It's always been a danger, it's always been a cost of the jury system," he said. "That generally isn't a reason to restrict speech. It takes a lot to overcome free speech protections."

Another reason for allowing jurors to speak is that the judicial process is viewed as a governmental process, so it should be transparent, Volokh said.

"It's a government decision-maker that made an important decision, and he or she should be free to speak about why he or she made the decision," he said.