Experts voice fears about jury selection in web age

HALIFAX — Jury dismissals in two highprofile Atlantic Canada court cases this week raise issues around jury vetting in the digital age, according to some legal experts.

A judge declared a mistrial Tuesday in the Dennis Oland murder case when he learned a Saint John police officer tracked all interactions would-be jurors had with police, and passed some of that information to the Crown.

Just two days later, a Nova Scotia Supreme Court judge dismissed the jury in the criminal negligence causing death trial of Halifax-area body shop owner Elie Hoyeck, after a juror questioned why a Crown prosecutor searched her LinkedIn profile.

Both trials resumed by judge alone. Nicole O’Byrne, an associate law professor at the University of New Brunswick, believes both cases point to issues currently confronting the legal system.

“I think the deeper issue is the fact in this era of social media that it’s easier to get information than ever before and that if the temptation is there people will want to get hold of that information and this is what we’ve seen in both cases,” said O’Byrne.

She said the problem is that information can be accessed without those in the legal system thinking about the bigger issues.

“One of the bigger issues is: To what extent can the state use its tools of surveillance in the trial process, and that was the issue in Oland.”

Wayne MacKay, a professor emeritus at Dalhousie University’s Schulich School of Law, said it’s rare but not unprecedented for juries to be dismissed.

MacKay said with two high-profile cases in succession, it suggests to him that people aren’t clear about what is acceptable and what is not, especially in an era marked by such easy access to digital information and social media.

That’s despite a 2012 Supreme Court of Canada decision that restricted police to checking only for criminal convictions, which is an automatic disqualification for jury duty.

In its ruling, the Supreme Court decided that prosecutors and police had acted improperly in three cases when they went beyond checking for convictions.

“I think both the ability to get that kind of information and check out jurors is greater, but also the footprint that we leave in the digital world allows other people to discover that and they can then use that as a basis to challenge the fairness of the jury process,” MacKay said.

He said it raises questions about how many other cases have had similar issues that just haven’t come to light.

“You would almost wonder in the second (case) whether it came to light in part as a result of the high-profile Oland mistrial. I would be surprised if these were the only two cases in Canada where this kind of activity occurred.”

O’Byrne agrees, and says more training is required for police and lawyers on the current laws, including a 1991 ruling that stipulates the Crown must share all information with the defence.

She said another problem is that police powers of investigation are not laid out in statute, and instead appear “piecemeal” in common law.

“So police really do push the limits,” O’Byrne said. “If we had legislation that clearly set out the parameters of the information police can access, we would have less of these situations.”

On Friday the New Brunswick Police Commission said it would investigate the police jury vetting that briefly derailed the Oland trial, after a request from the Saint John Board of Police Commissioners.

In a news release, the commission confirmed it would investigate — but not until “all criminal proceedings in this matter are completed.”

Oland’s defence lawyer, Alan Gold, said in an interview Friday he is disappointed the commission is going to wait.

“There is no reason to wait until after the case is finished,” Gold said.

“The people of Saint John are entitled to know if there are issues regarding training, practice, and improprieties or deficiencies in the education of their police officers. They are entitled to know and have shortcomings remedied as soon as possible.”