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In a new ruling that found Judge Wein wrongly poked into the sanctity of the jury room, the Ontario Court of Appeal voided the conviction and ordered a new trial.

‘We walk a fine balance between letting the jurors be themselves, and asking them to be more objectively judicial’

“The trial judge’s numerous inquiries of the jurors necessarily probed the content of their deliberations and undermined the secrecy of the deliberative process,” the appeal court ruled. “These inquiries breached the secrecy of the jury’s deliberations and impugned the integrity of the jury process and the fairness of the trial itself.”

The case highlights the difficulties courts face in asking jurors to set aside their personal biases and backgrounds and deliberate in total secrecy, while still ensuring the accused gets a fair trial, untainted by legally irrelevant concerns.

“If the law had been obeyed, the jurors would never have been let go or withdrawn, because there was no objective basis to think they couldn’t do their job,” said Kum’s appeal lawyer, Alan D. Gold. “The judge should have just given them further instructions and either they would have changed their votes or there would have been a hung jury and then a mistrial. That’s what should have happened. But because the judge intruded and allowed the jurors to talk about what was being discussed and their opinions of each other and what they thought was wrong with each other, this was all on the public record.”

Canada has strict rules about the secrecy of jury deliberations.

A judge may only properly inquire into external influences, such as bribes or threats.

Jurors may complain about other jurors, but a judge should only caution and advise based on the law, and “what will be will be,” Mr. Gold said. “What they say to themselves while they’re discussing the case, no one else is ever supposed to know or hear about.”