Judge Admonishes Jury for Internet Research but Does Not Declare a Mistrial - Patterson and Peladeau, 2018 ONSC 2625 (CanLII)

June 01, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Patterson and Peladeau, 2018 ONSC 2625 (CanLII)

Date of Decision: May 14, 2018
Heard Before:  C.T. Hackland J.

JUROR FAULT: juror does research at home on internet counter to judge’s order; jury submits question to court on subject not discussed at trial; judges determines which juror accessed internet for information; admonishes jury; provides correct charge to jury; defendant objects to trial continuing;

This is a motor vehicle personal injury action tried by judge and jury.  Liability was very much in issue.  Following eight weeks of evidence and closing arguments and my jury charge, the jury began five days of deliberation before returning a verdict.  They began their deliberations on a Friday afternoon and returned Monday morning at 9:30 a.m. to continue.  They rendered a verdict at the end of the week, late on a Friday afternoon.

On the weekend just after the jury began to deliberate, juror #1, while at his home engaged in some internet legal research.  He found a regulation under the Insurance Act, known as the Fault Determination Rules.  On Monday morning he discussed this regulation with the other jurors, which resulted in a jury question conveyed in a note to the court that sought direction about the use to be made of the regulation.  Juror #1 was questioned about the circumstances leading to his obtaining and sharing this information with other jurors.  A corrective charge and admonition was delivered by me the following day, directing the jury that the Regulation was irrelevant, that they were to disabuse their minds of it and were to refrain from any further internet research pertaining to the trial.

The jury’s verdict, delivered late Friday afternoon, found the plaintiff Mr. Patterson 73% contributorily negligent in the collision and the defendant 27% at fault.  In the circumstances, the plaintiff seeks an order declaring a mistrial due to the alleged contamination of the jury by this internet information and their alleged failure to abide by the court’s correcting charge.  The defendant’s position is that the court’s correcting charge was sufficient to deal with the problem and to ensure a fair trial, and that the jury verdict was reasonable and supported by the evidence.

Issue:

1. The issue is whether a mistrial should be declared on the basis of trial unfairness resulting from the jury’s exposure to the internet information and/or due to the jury’s alleged failure to follow the correcting charge.

After hearing all of the testimony and during deliberation the jury delivered the following note to the judge:

The jury is wondering if this part of the traffick (sic) act should be considered.

2.      The Jury is wondering why there were no charges laid at the time of the accident.

3.      The Jury is stuck on what a “reasonable prudent” driver is, Considering we have heard

(a)   “Every driver has the right to assume that other drivers are obeying the law”

(b)   We have heard mention of Defensive driving.

We would like to know if either part is implied by law.

Thank you!”

In discussions with counsel it was agreed that the reference in the jury note to “… if a vehicle is stuck while illegally parked, then the parked vehicle is 100% at fault” was an obvious reference to sub-section 17(2) of the Fault Determination Rules, which is Regulation 668 under the Insurance Act.  It was agreed that this regulation was irrelevant to the liability issue in this trial and dealt with rules for the use of insurers in adjusting property damage claims.  It was further agreed that the Judge would question the jurors individually in open court to determine the circumstances under which they had obtained this information.

The first juror to be questioned by the court was juror #1.  He advised that he was the jury foreman and that it was he who had obtained the statutory references on the internet while he was home on the weekend.  He further stated that he was the only juror who was looking at the internet and that the jury had different interpretations of the law.  He believed he had found a relevant section of the Highway Traffic Act through an Ontario government website.

In the result, the jury had the Fault Determination Rules, or aspects of same, in the jury room for perhaps two hours as they discussed liability for this accident and as they formulated their questions to the court.

Following further discussion with counsel, the judge called the jury in and delivered orally (and handed out to each juror), a correcting charge answering all three jury questions and emphasizing (in bold), that accessing the internet was completely improper and must not re-occur.   

The plaintiff opposed the correcting charge and sought an order striking the jury and having the court decide the issues of liability and damages.  The plaintiff also sought to have the court question each of the jurors individually, which I declined on the basis that I considered it unnecessary and potentially prejudicial to the on-going jury deliberations.  The defendant opposed the motion to strike the jury as unnecessary. 

The Judge set out in his ruling that:

“ 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.”

In determineing not to order a mistrial the Judge referred to law which states:  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”. A mistrial can be granted only when there is a “real danger of prejudice…or danger of a miscarriage of justice”. And “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)). Other precedents were also cited by the judge in his determination not to order a mistrial.

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