The rules for use of Twitter, Facebook and other social media in Canadian courts are still being ironed out.
Most Canadian courts permit accredited journalists to use electronic devices -- laptops, tablet computers, smart phones -- in the courtroom, unless a judge restricts their use. Saskatchewan, Alberta and British Columbia are the only provinces that have formal rules that allow, and govern, journalists tweeting or messaging from trials and appeals. In Manitoba, most courts permit reporters' live Twitter feeds to media web pages.
But their use by everyone else -- jurors, witnesses and courtroom spectators -- is pretty much left to the discretion of the individual judge hearing a case.
Putting some across-the-board rules in place, especially for jurors, is past due.
That jury members should be barred from accessing social media and Internet websites to view, or generate, content about an accused or the trial via smart phones or tablet computers is pretty much universally agreed.
How to enforce that prohibition is the rub.
A judge can order jurors not to use digital devices to access or post information about the trial. But monitoring and enforcing that order is nearly impossible. Flocks of sheriff's officers would have to watch jurors day and night to prevent, or catch, breaches of the order.
On the other hand, an outright ban on jurors' use of cellphones, iPads and laptops during a trial isn't going to endear jurors to the workings of the criminal justice system.
Both Crown prosecutors and defence counsel have in the past argued against removing jurors' cellular devices. Each side expressed the same fear -- that jury members will blame it for stripping them of their digital lifelines.
The risks posed by digital devices to an accused's right to a fair trial are many.
Jurors with smartphones and iPads have been known to Google definitions of legal terms. However, they may misunderstand what they're reading. Or, worse, they may rely on bogus legal information or non-Canadian law, both abundant on the Internet.
More worrisome still, they can access a universe of web pages of newspaper and electronic-media reports and skewed commentary about the very case they're hearing.
Jurors' motives in doing their own research are usually benign. But it's fundamentally wrong. They are supposed to decide cases solely on the evidence heard within the four walls of the courtroom.
There's growing anecdotal evidence that, despite judges' express directions to jurors to not do any independent research or investigate anyone involved in the case, they still Google the crime scene, accused, defence counsel, Crown prosecutor and even the judge.
The other risk is a juror will update his or her Facebook pages with untoward comments about a trial in progress, thus providing grounds for a mistrial. And now, with the advent and popularity of Twitter, jurors can even tweet reactions to unfolding evidence live from the jury box.
Late last year, the Canadian Centre for Court Technology, a non-profit corporation created by judicial, court-administration and legal-education organizations to promote courtroom use of technology, took the first step in addressing Canada's patchwork of provincial policies.
It issued proposed national guidelines that favoured liberal courtroom use of electronic devices by both media and spectators.
It largely demurred, however, to comment when it came to jurors. It recommended jurors be "not permitted to use electronic communication devices in the courtroom." But the guidelines did not address the prickly issue of the mechanics of enforcing that prohibition.
Contamination of the trial process by jurors accessing inadmissible evidence, misinformation or biased reporting, blogging and tweeting -- or even generating some of those -- is too easy, absent controls being in place.
The courts must move with the times. And it may be that hard and fast rules aren't the answer for an ever-evolving technology. But, at very least, a protocol of best practices should be put in place to help judges manage the risks.
The threats to a fair trial are just too obvious.
Douglas J. Johnston is a Winnipeg lawyer.