The Court of Public Opinion - Sandra Barkho

One of the fundamental rights that Canadians have in a democratic society is the right to be presumed innocent until proven guilty in a fair trial. Section 11(d) of the Charter states that “any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

This right is particularly important in the context of criminal law because individuals’ liberties are at risk and must be protected by ensuring a fair system. In criminal law, more serious crimes have more serious penalties. Considering the serious nature of the rights at stake in criminal prosecutions, the burden of proof on the Crown is higher and thus convictions are more difficult. This difficulty reflects the severity of criminal penalties such as imprisonment, which violate an individual’s section 7 Charter rights to life, liberty and security of the person. When these rights are at risk, there is a greater burden on the Crown to prove that the defendant is guilty.

The court of public opinion

With the rise of technology and social media, the "court of public opinion" has become a common way to hold individuals accountable and find them "guilty" prior to facing a fair trial. The broad reach of social media can destroy someone's reputation, career and personal life in just one day. As we progress as a society, the standards we hold each other too are increasing. Consequently, when someone acts in a way that goes against those higher standards, they are immediately judged and tried by the public without full knowledge of accurate facts or evidence.

One of the criminal law objectives that fall under public purpose is morality. Since criminal laws are often a reflection of what society finds morally wrong, it is possible that the “court of public opinion” can have a positive impact in criminal law by helping it become more progressive and better reflect social values. However, while this progress can be seen as a good thing, it can also pose a threat to the Charter rights of an accused as mentioned above.

Balancing Charter rights

Some may argue that the law may not always hold certain individuals accountable and it is up to us as a society to demonstrate that we will not tolerate certain behaviour. Some argue that this process of condemning others so quickly and without a trial is unjust and potentially even in violation of sections 7 and 11(b) of the Charter. I would argue that, while the accused has a right to a free trial and is innocent until proven guilty, we as individuals also have freedom of expression under section 2(b) of the Charter.

Trying to balance these rights with each other, especially when the expression of opinions is happening on such a large scale and with potentially harmful effects, becomes difficult. Balancing the right to a free trial and the presumption of innocence against the right to freedom of expression can become especially problematic when the accused may not be guilty and when the alleged facts available to the public may not be accurate. If serious consequences are faced by an accused as a result of public shaming, it is possible that their Charter rights have been violated. For example, if an individual’s life is in danger or if media coverage influences potential jury members, the accused’s rights under sections 7 and 11(d) of the Charter may have been violated.

A possible solution

These issues regarding the “court of public opinion” and the rights of an accused raise many questions. For example, should false accusations or misleading statements that result in harm for the accused be punishable? With the rise of social media and online platforms, it has become very easy to make harmful statements and potentially spread them on a large scale. Thus, perhaps there should be some form of deterrence against making inaccurate statements that can cause harm to innocent individuals. This solution, however, would also raise concerns regarding where we draw the line on limiting freedom of expression.

Furthermore, there are millions of social media users online, many anonymous and in different jurisdictions worldwide. How would they be held accountable? Should online platforms be responsible for monitoring these issues or would that be treading too close into censorship? Should we just accept the “court of public opinion” as society evolving and progressing? Should we all just be extra cautious of our actions knowing anyone could be found guilty online? Even if we are cautious, what is to stop others from sharing misleading statements and assumptions in the media and potentially harming innocent individuals? These are just some of the concerns that are raised in relation to this issue.

An example from recent case law

I will be examining some of these concerns using the case Canadian Broadcasting Corp. v. Morrison, M.J. (2020) as an example (“Morrison"). This case is about an episode of a CBC program that aired regarding Peter Nygard, which allegedly damaged his reputation. Morrison involved charges of defamatory libel contrary to ss. 300 and 301 of the Criminal Code of Canada and an issuance of a publication ban on the episode.

One of the concerns brought up in Morrison was the balancing of freedom of expression with the rights of the individual in this case, which belonged to Nygard. The preliminary inquiry judge said that the episode could lead to citizens being tainted and could also potentially influence future jurors. Additionally, the judge said that the information mentioned in the episode could be concerning to the public and could affect the chances of a fair trial.

When considering the preliminary inquiry judge’s statements, the judge in Morrison (McKelvey J.) noted the importance of considering that the matter regarding Nygard will not proceed before a jury for a considerable period of time. Additionally, a potential juror’s online searching of Nygard could also impact their impartiality. Therefore, the conclusion that potential jurors could or would be influenced as a result of the episode was found to be speculative. Judge McKelvey also found that all jurors are instructed regarding pre-trial publicity and that they may be asked whether they have any previous knowledge of the case which would affect their ability to be fair and impartial during the trial. Further, jurors are also told not to conduct any internet searches, other research, or access the media or social media once they become jurors.

Although jury instructions might help eliminate some prejudice, in some cases that are very public, this might prove more difficult in practice. While jurors may not be actively searching for information about the case, they may be exposed to it nonetheless. Thus, even if jurors might be trying to remain impartial, the media could still create some prejudice and effect the administration of justice by influencing jurors. Judges in other cases have addressed this issue by “proceed[ing] on the assumption that the individual citizen's sense of responsibility and obligation to their duty as a potential juror will result in their compliance with those instructions.”

Charter rights and the modern court of public opinion

It is clear that there are many issues regarding how the public can impact the fairness of a criminal trial. The media, as well as individuals, can have the power to influence the public and potential jurors regarding a particular case. This is also dangerous because of the possibility of innocent individuals being harassed by the public due to misleading information and without a fair trial. An individuals’ rights under sections 7 and 11(d) of the Charter are essential in the administration of justice in a democratic society and there should be more measures put in place in order to protect them. However, as mentioned above, this can prove difficult in relation to the internet, social media, and the limits on the freedom of expression under s2(b) of the Charter. Should the “court of public opinion” continue to become an alternate means of achieving justice or should it be limited in order to ensure a fair and legal justice system?