By Lisa Silver
The #MeToo Movement could not be so prolifically successful without social media. If the burgeoning presence of the internet is a sign of our times, then the hashtag is the sign of a social media event. This character, a metadata tag known to us old schoolers as the pound key, generates the ad infinitum effect so central to the social media ethos. We don’t just say it on social media; we create a chain reaction by curating our thoughts and feelings through a hashtag by-line.
The hashtag is not just personal. It can gain momentum and “go viral” by being passed from person to person throughout cyberspace. When a hashtag like #MeToo goes “viral,” the tagline becomes a societal lifeline. The #MeToo hashtag becomes a #MeToo Movement, which reveals a pressing and urgent message reflecting who we are as a society. Criminal law, too, invokes societal messaging; it underlines our shared fundamental values by giving a voice to what we care about in society, delineating conduct we find intolerable in a free and democratic society.
But what happens when social media and criminal law collide in the trial arena? The intersections between the two, like cyberspace, can be limitless, but this article engages only a slice of the byte as we consider the impact of the #MeToo Movement on jury impartiality.
Our jury system enjoys a long pedigree having been in use since the Middle Ages in England, a decidedly pre-electronic era. But longevity cannot be equated with foolproof. During many years of use questions have arisen over every aspect of the jury system. In Canada, many of these recent controversies have revolved around systemic racial discrimination embedded in our jury system, eroding the concept of jury impartiality. This concern for fairness has finally created change to the jury selection process through recent amendments to the Criminal Code. In choosing a jury, counsel can no longer rely on peremptory challenges, i.e., challenging without cause. Counsel can still, however, challenge a potential juror for cause. Although that regime has been tweaked by the amendments, it is clear, pursuant to s. 638(1)(b) of the Code that counsel can challenge a potential juror for not being impartial.
An independent and impartial decision-maker is a core concept of our adversarial system. It finds its expressive voice through s. 11(d) of the Charter. That section guarantees the right of an accused person to be tried by an independent and impartial tribunal; a safe place where judges do not pre-judge, where the concept of arms-length justice is armed by the presumption of innocence requiring the state to prove an individual’s guilt beyond a reasonable doubt. Jurors, as decision-makers, are also a key part of this constitutional protection.
Impartiality does not preclude the decision-maker from applying their life experiences to a case. Judges must be impartial and unbiased, but they are not expected to be neutral. Decision makers bring their life experiences to their judicial tasks. Similarly, jurors bring their collective common sense to the deliberation process. Even so, we cannot abide decisions based on stereotyping and biases that masquerade as good sense and logic. Such decision making is contrary to the rule of law, being born out of intolerance and personal prejudices. The law requires both judges and jurors to apply the applicable law to the facts as found in the courtroom. A case is to be tried on the evidence heard in court, which is subject to our proof systems. This requires delicacy: to view trial evidence impartially and yet to view the evidence through the lens of experience.
Bias and partiality can also be enhanced and spread by media and publicity, another ground for the challenge for cause. This side of the impartiality challenge does not depend on the potential juror bringing their prejudices to decision making. Rather, a pre-trial publicity challenge is concerned with ready-made influences created by media stories. Still, both kinds of impartiality involve the potential for decision-making based on preconceived notions unconnected to the evidence and the weight of the evidence.
The legal test for challenging jury impartiality considers the out-of-court landscape and the ability of the judge to eradicate bias in court through proper instructions to the jury. These instructions serve to call out biases; to remind jurors of their duty to render a verdict based on the evidence and not on their own personal prejudices or learned biases. Whether this caution actually protects the integrity of the system by persuading an otherwise biased individual to set aside those biases in the name of the law, is another matter. Hopefully, members of the legal system will have a frank discussion about this concern. Change can only occur when issues, however hidden, are recognized and discussed.
In any event, the law presumes jurors are impartial and will abide by instructions. To raise impartiality concerns, such that the judge will permit the potential jurors to be challenged or questioned on their biases, requires evidence. That evidence can come in the form of judicial notice, where the bias is so notorious and well-known, the judge takes notice of the prejudice without proof. Or the evidence can come in the form of testimonial or documentary evidence, which is subject to proof. Whatever the form that evidence takes, a challenge for cause will only be allowed, per R v Williams, “where there is a realistic potential of juror partiality,” which cannot be remediated through proper instructions.
In a series of Alberta cases, R v Fuhr, R v Shirvastava and R v Way, jury selection and the Twitter sensation of #MeToo, and other derivative hashtags, such as #IBelieveHer and #IBelieveYou, brought into question the ability for jurors, awash in this wave of social media, to be impartial. In all three decisions, the application to challenge for cause was dismissed. All applications were brought in the context of sexual offences. Generally, the applications leaned on both sides of the impartiality argument. First, it engaged the issue of personal prejudice as the hashtags were a shorthand for unquestionable acceptance of sexual assault narratives. Second, that these sloganized campaigns were so widespread and so readily accessible that the prejudicial effect was pervasive and uncontainable. In other words, this double bias created an atmosphere contrary to the sentiments expressed in s. 11(d) with its focus on trial evidence and burden of proof. It deflected the jury from the ultimate issue of whether this accused committed this offence beyond a reasonable doubt.
The Court in all three decisions disagreed. They found those using the hashtags may have their own personal reason for doing so, but the general objective of the hashtag campaigns was to increase awareness of sexual assault and promote support for sexual assault survivors. Further, there was little evidence of widespread or pervasive bias. There was simply no proof that adding a #MeToo tag to a Tweet implied a biased mentality. In short, there was no connection between social media support for sexual assault reporters and the ability of potential jurors to fulfill their decision-making responsibilities.
Notably, in the Fuhr application, counsel referenced comments made by Madame Justice Molloy in the Nyznik case, in which she acquitted three police officers of sexual assault. At paragraph 17, Justice Molloy remarked on sloganism in the courtroom, like “believe the victim,” having “no place in a criminal trial.” Taken out of context, this suggestion appears to support the applicants’ concern with potential jurors as purveyors of this message. Read in context, this caution is consistent with all we have discussed thus far; that cases are only to be decided on the evidence introduced at trial and upon application of our standard of proof.
Justice Molloy’s caution also represents a different slogan, one for which our adversarial system is known for, which suggests “proof is truth.” What we believe is credible and truthful outside of the courtroom cannot be equated with what a decision maker finds credible and truthful within the bounded space of the courtroom walls. Inside those walls, we apply legal principles and rules, put in place to safeguard and protect our principles of fundamental justice. This may run counter to our everyday lives where we accept and reject information based on innumerable factors and reasons – some justifiable and others not. But when it comes to depriving an individual of their liberty, when it comes to labelling someone as a criminal, our legal rules, although imperfect, are there to ensure justice is done.
This article discusses how a societal expression of justice does not necessarily equate with impartiality in the justice process. But, like the huge societal tent that is #MeToo, the Movement is not defined by the potential impartiality tag placed on it by the justice system. Rather, the #MeToo Movement reveals the strength of a grassroots online community as drivers of societal change. Instead of a banner of bias, it can be an emblem for fairness and balance in our system. Recent cases, such as R v Barton, reinforce the importance of legal rules that create systemically fair practices for all those affected by the justice system. We want community through social media, and we want fair trials consistent with our constitutional protections. Movements like #MeToo can open the way for conversations about our community sense of justice both in and out of the courtroom.
LISA SILVER is an Assistant Professor at the University of Calgary, Faculty of Law, where she teaches criminal law, evidence and advocacy. Lisa also writes on everything that is criminal law on her own award-winning blog at www.ideablawg.ca and produces a podcast series on the Criminal Code.