Two months of ongoing criticism of the guilty verdict that sent Dennis Oland to prison — and of the character and motives of jury members who delivered it — is raising questions about rules in Canada that gag jurors after a trial, says Toronto lawyer Allan Rouben.
"In the case of a jury, we don't find anything out about the process by which a decision was reached so in some cases this information vacuum causes members of the public to question the legitimacy of a jury verdict," said Rouben, a long-time advocate of ending enforced jury secrecy.
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"Having jurors able to communicate their reasons for a decision will benefit the system itself by showing the public that jurors take their responsibilities very seriously."
It is a criminal offence in Canada for jurors to disclose anything about how or why they reached a verdict.
The secrecy is designed partly to protect those on trial, who are ultimately found not guilty and partly to free jury members to express their opinions during deliberations without fear those discussions will later be subject to scrutiny and criticism.
helps ensure that jurors feel comfortable freely expressing their views in the jury room and that jurors who hold minority viewpoints do not feel pressured to retreat from their opinions because of possible negative repercussions associated with the disclosure of their opinions," wrote former Supreme Court Justice Louise Arbour in explaining and upholding the concept in 2001.
"Evidence of juror improprieties, misconduct or error, if admissible, might serve to undermine the validity of an acquittal, rather than a conviction, and could cast a permanent shadow over that acquittal."
But Rouben said he believes jury secrecy also creates uncertainty about why a verdict was reached and allows unfounded speculation about what might have happened in the jury room.
'I was appalled'
Judith Meinert is one of a handful of people unconnected to the Oland case who attended the trial daily and said she has been disturbed by attacks against those who served on the jury.
"I was appalled. I thought this is the cornerstone of our justice system and people are slagging them online," said Meinert.
"I haven't heard any gossip about how fed up they must be but if I had been on that jury and I was reading and listening to some of the stuff that's going on now I would be quite upset."
On Friday, CBC's the fifth estate aired an hour-long review of the Oland murder case, which included familiar criticisms by Dennis Oland supporters that the jury found him guilty without sufficient evidence to support a conviction
"I didn't hear one thing through all of that [trial] that would shake my belief in his innocence," said Oland friend Kelly Patterson.
"There was nothing and in fact what happened was day after day of the testimony you realized like this is really ridiculous. Of course he's going to get off."
Larry Cain, who was also featured in the broadcast, agreed and said the jury's verdict made no sense..
"We were in shock for several days. Still. You just can't process it," said Cain
For weeks online opponents of the guilty verdict have offered any number of opinions that the "dim dozen" as one derisively called the jury were more concerned with Christmas shopping than justice, didn't understand the instructions they were given, had a bias against wealthy people or were forced into a conviction by imaginary bullies in their group.
Questions circulated online
In January, jury critics were circulating a link to an online poll asking the question "Was Dennis Oland proven to be the murderer of his father?" which included a lengthy explanation of how the actual jury got the answer wrong.
," it said.
The poll's sponsor reported 95 votes against the jury verdict and 10 in favour.
Two weeks ago trial Justice Jack Walsh was so bothered by attacks on the jury's decision in pre-sentencing letters he received from supporters of Oland he had several thrown out.
"For people to go to the extent some did is offensive," said Walsh.
Meinert said as she sat in court during that sentencing hearing she once again heard the accusation that jury members likely rushed a decision on Dec. 19 to get themselves home for Christmas.
"They're questioning their integrity, their intelligence," said Meinert.
"I would watch the jury [during the trial] and they were so attentive all the time. They made copious notes. They really immersed themselves in the job. It just seemed to me they took their job very, very seriously. They were just so professional all the time and I just really grew to admire them."
Still, in the face of even unfounded criticism jury members themselves are not permitted to speak up, either to explain the verdict or defend their own part in it, even if they want to.
Rouben said that is a disservice to jurors who might want to speak and to the public which has an intense interest in knowing everything it can about high-profile cases.
"I think if jury members chose to come forward voluntarily, which they are not permitted to do in any way shape or form now, and explained the basis for their decision then that would serve to enhance the validity and legitimacy of their verdict," he said.