How frequently do jurors conduct their own research of the issues involved in a trial, despite being instructed to not do so? We will never fully know the answer to this.
As the Ontario Court of Appeal's decision in Patterson v. Peladeau, 2020 ONCA 137, shows, improper research by jurors does happen.
The plaintiffs appealed the trial judge's dismissal of motions to strike the jury and to declare a mistrial in a motor vehicle personal injury action. The motions arose from a juror improperly conducting an internet search.
The jury foreperson revealed that he had found a statutory provision on an Ontario government website on the weekend at the beginning of the deliberations and shared it with the other jurors. The statutory provision, which dealt with fault for automobile accidents, was irrelevant and inapplicable to the case. However, if it did apply, it could impact the apportionment of liability.
As the foreperson revealed that the statutory provision was the full extent of the extrinsic information and that no other juror had used the internet in relation to the case, the trial judge determined that he did not need to question the other jurors. Instead, he dealt with the issue through a correcting charge. He dismissed the appellants' motions to strike the jury and declare a mistrial.
The appellants appealed on the basis that the trial judge had failed to conduct a proper inquiry as to what extrinsic information the jury had obtained and failed to analyze its prejudicial effect. They argued that the trial judge should have polled every juror or permitted counsel to question them.
The Court of Appeal disagreed. It noted that a jury verdict may be impeached where the jury acquires extrinsic information if there is a "reasonable possibility" that the information had an effect on the jury's verdict. This test involves a "contextual, case-by-case analysis" that requires a link between the extrinsic information and the jury's verdict.
The Court of Appeal added that, where the trial judge learns that the jury acquired extrinsic information before the jury's verdict, and then conducts an inquiry and decides whether the individual jurors or the jury as a whole are suitable to continue with the trial, the Court of Appeal will defer to the trial judge's decision, absent "legal error, misapprehension of the evidence, or patent unreasonableness."
The Court of Appeal found that the trial judge did conduct a proper inquiry and made findings as to the nature and extent of the extrinsic information the jury received. While the appellants also argued that the exchanges between the judge and the jury foreperson suggested the possibility that other laws in addition to the statutory provision in question might also have been researched, the Court of Appeal found that the trial judge was entitled to believe the juror's answers and to reach the conclusions he did.
With respect to whether the trial judge had analyzed the prejudicial effect of the extrinsic information, the Court of Appeal noted that the trial judge must have considered the prejudicial nature of the extrinsic information, hence him giving the jury a correcting charge.
In addition, the Court of Appeal again emphasized that absent legal error, misapprehension of the evidence, or patent unreasonableness, an appeal court should defer to a trial judge's decision to provide a correcting charge rather than declare a mistrial.
The appeal was dismissed.
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