Let the jurors talk
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 a jury’s decision, and the process by which it was reached. The law prevents members of the media from interviewing 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 of a jury allows them to serve as representatives of the public in dispensing justice. The jury’s role, however, goes beyond decision-making — it ensures that the public has confidence in the justice system itself. The Supreme court of canada has stated that juries provide a means by which the public increases its knowledge of the criminal justice system, thereby ensuring “societal trust in the system as a whole.” Societal trust 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. The Supreme court has repeatedly emphasized that openness is integral to both public confidence in the justice system and the legitimacy of the judicial process. The court has also stated that open courts are inextricably linked to free- rationales which, in its 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. Second, is the need to ensure the privacy of jurors, and keep them free from censure or harassment.
Canada needs to reform the law that makes it illegal for a member of a jury to discuss how, and why, a verdict was reached
dom of expression guaranteed by section 2(b) of the charter of rights and Freedoms.
yet in R. vs. Pan, the Supreme court upheld the constitutionality of the jury secrecy provisions in Section 649. The court identified two
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 choose to do so, it would be an offence to identify a juror.
There is little doubt that Section 649 infringes on the charter rights of the media to freedom of the press. While not an absolute right, a free press must permit the media 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 Supreme court in R. vs. 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. 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.
Section 649 is undoubtedly well-intentioned. but it badly needs improvement. There is no evidence that jury interviews in the united States have harmed the jury process. This suggests that the fears expressed by the Supreme court in R. vs. Pan can be dealt with by less intrusive means than the outright prohibition we have now. A basic tenet of our charter of rights and Freedoms is 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. Section 649 does not meet that requirement. It’s time to open up our jury rooms to a little scrutiny.