A report that some Quebec defence lawyers are using Facebook to identify jurors and tailor their cases accordingly has prompted the province’s justice minister to create a working group to look into a situation she calls “worrisome.”
Le Journal de Montréal reported this week that some lawyers were routinely using a Facebook feature that recommends potential contacts to identify jurors who had a smartphone with them.
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Lawyers explained the Facebook algorithm would eventually reveal the identity of those jurors after a few days in the same courtroom.
Attorneys who were not named told the newspaper they could then glean publicly available information from a juror’s profile that could help in crafting a defence strategy based on criteria such as age, family status and opinions.
The report doesn’t make clear how widespread the practice is, but it raised concerns for Justice Minister Stephanie Vallée and some members of the legal community.
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Vallée has convened a working group to delve into the matter and adapt procedures to cope with new technologies.
“We’ll try to come up with a solution to better protect jurors because a situation like this is quite worrisome,” she told reporters in Quebec City on Wednesday.
A spokesman for the Crown said they were also alarmed and were looking at any related legal issues.
Under Canadian law, jurors cannot be identified and are often assigned a number.
Lawyers know little about them aside from their profession and their answers to a few cursory questions.
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But Daniele Roy, president of an association of defence attorneys, said knowing more about jurors could be useful if the rules are properly defined.
She said it’s not surprising that lawyers — Crown and defence attorneys alike — would want to know more about the people hearing cases, noting it is common in the United States.
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“If we know more about jurors, we can know how to present our arguments,” Roy said.
“You don’t present your arguments the same way to everybody.”
Roy said she was unaware of the tactic before this week and stressed the security of jurors is paramount. But she said she doesn’t initially see any legal issues.
“What would be illegal is trying to contact — directly or indirectly — any jurors,” she said.
In Canada, jury cases are rare and typically reserved for serious criminal offences which can carry prison sentences of more than five years, while the vast majority of civil cases are tried by judge alone — but there are exceptions for both.
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The courts have increasingly had to navigate emerging technology as social networking has expanded its reach in recent years and creeped into the judicial system.
Lauren Shadley, a Montreal defence lawyer, said she’d never heard of the mining tactic, but added posts in the public domain should be fair game as long they are not obtained through unethical means.
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As for what information the public chooses to make available online, that’s a broader, larger societal issue, she said.
“We do live in a society where technology and social media platforms keep increasing,” Shadley said.
“I don’t think we can really have a justice system that lives in a vacuum not taking into account all these technological changes.”
Allen Mendelsohn, a lawyer and McGill lecturer who specializes in internet law, says no specific law appears to have been broken in the Quebec example.
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But he said it might put pressure on the judiciary to take corrective action — and some of the solutions could be as simple as turning off location services on smartphones for the duration of a trial or locking the phone in a different part of the courtroom.
Vallée said solutions will come from an assembled group that includes representatives from the province’s judiciary, law society and Justice Department as well as Crown officials.
The group will also look at the matter from an ethical perspective, she said.
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