How social media changed the practice and perception of law | Hodine Williams

By Hodine Williams ·

Law360 Canada (January 29, 2025, 1:22 PM EST) --
Hodine Williams
A sense of duty, morality and impartiality once made serving on a jury a sacred act. In this epoch, to have such ideals is naïve, as the jury box is simply a venue for personal bias.

We live in a society where jurors, sworn to fairness and impartiality, are assaulted with constant social media feeds, soaking up rumours, skewed headlines and viral ideas that infect their conscience long before they even set foot in a courtroom. Has justice lost its grip on impartiality, quietly handed over to the algorithms that thrive on sensational conflict and controversy? Do fair trials still exist? If it’s not dead, can a fair trial survive in an age where every view is aired, and rumours are spread like wildfire?

Courts are no longer restricted to four walls; the distinct kitchen and living room has morphed into this “open concept” where Twitter feeds, Reddit discussions, Instagram and Facebook groups now share a single space where strangers and followers alike serve as jurors way before any evidence is given. The longstanding pillar of impartiality that justice requires is slipping away; stolen by the rapid, opinion-shaping power of social media. How then can Canada’s judicial system combat this often-unseen effect, and what happens when the holy obligation of impartiality is undermined by algorithms meant to promote biases? What exists now is a race against time to preserve the dignity of the jury process.

The 2018 trial of Alek Minassian, whose van attack in Toronto sparked public outrage, highlighted the harsh reality of social media in influencing public opinion before and during a trial. Yes, the usual “warning” to jurors before they leave the courtroom exist, but that practice was appropriate centuries ago and not for this unconscionable interconnected world. Jury bias isn’t new but is now exacerbated by the prevalence of social media. The ostrich (Canada's legal system) must pull its head from the hole and find creative ways to ensure that legal practice contends with the realities of modern society. Failure to do so would reduce the court to an expensive redundant theatrical performance. It’s simply of no moment!

It is undeniable that, in many high-profile cases, jurors often start a trial with preconceived notions about guilt, responsibility and who should be held liable. The courts and their officers have the ugly task of shifting these mindsets. Failing to even attempt it, jurors could never be expected to deliver impartial verdicts.

The jury’s penchant to be influenced outside of the courtroom by social media is antithetical to the right of fair trial, the Constitution, and the foundations of Canadian jurisprudence. The ubiquitous and quick nature of social media certainly threatens the efficacy of rigorous court orders, warnings, directions (sometimes not understood) and sequestration. The access to smartphones and invariably news, views including dis-/misinformation shapes perceptions in subtle but debilitating ways. How then can an accused be guaranteed trial by a fair and impartial jury of his peers? In the Minassian trial, social media coverage sparked concerns that potential jurors may already have biased opinions. Can anyone in good conscience dispute this? It surely demonstrates the difficulty of reconciling jury impartiality with a social media-dominated culture.

Ontario’s Juries Act and the Criminal Code govern jury conduct, emphasizing the importance of impartiality. However, judges and academics have expressed unease, positing that these provisions are insufficient in the digital era due to social media exposure which leads to jury bias, as online debates are impossible to manage or trace. Likewise, the legal community has advocated for an update to the current rules and, to a lesser extent, digital literacy training and robust monitoring in relation to jurors.

Pre-trial publicity isn’t new, but it’s worse now. An American study (2021) revealed that 90 per cent of persons use the Internet and social media to access the news today. In Ontario, high-profile cases often attract significant attention on platforms like X (Twitter) and Instagram, leading to sensationalized debates. For instance, Dellen Millard’s trial for Tim Bosma’s murder generated widespread social media buzz, potentially biasing jurors before the trial began. Can we without a doubt say that the jurors were truly impartial? The challenge is to balance this risk while still supporting free speech. What now emerges is the critical need for novel bias-reduction strategies.

An ultra conservative bench will not tackle the influence social media has on jurors. One consideration is to provide jurors more comprehensive instructions highlighting the dangers of social media disinformation and misinformation and the importance of avoiding online debates. Also, improving juror screening processes might aid in identifying potential biases so courts can better screen for impartiality. Sequestration protocols may need to be tightened, with jurors being extensively barred from accessing the Internet during deliberations. Admittedly drastic, these procedures may be necessary. Another option is social media surveillance. All of these measures raise ethical problems regarding privacy, but they are worth consideration.

A balancing act

Little can be done about public discourse on active trials, especially with respect to Charter rights. Consequently, any effort to restrict social and traditional media dialogue will be vehemently rejected by the public. The media, no doubt, plays an important role in informing the public, but it must acknowledge its impact on the legal system. This is much more straightforward for traditional outlets such as television and print media but in the realm of unregulated social media platforms it will be problematic. Legislative change might include harsher penalties for juror misconduct connected to social media usage, but such measures must be considered carefully to avoid overreach.

Ultimately, the prevalence of social media has produced new hurdles for the judicial system, eroding the reality of fair trials. While conventional precautions are good, they are outdated in this era. Persons aren’t as confined, honest or noble anymore. So there is an urgent need to update our legislative framework, implementing new techniques, which balances free speech and judicial integrity. If our courts fail to face these issues head-on it may very well foster a justice system that people have no confidence in — simply a “system” where justice has no place.

Hodine Williams has over 20 years of experience in law, corporate governance, and regulatory compliance across the legal, financial, hospitality, and engineering sectors. A former prosecutor and expert in digital forensics, financial crimes and cyber law, he has advised corporations in Jamaica, Canada, and the United Kingdom. Holding a master of laws in international business law from Osgoode Hall Law School, along with degrees in management and economics and law, Williams is also an educator, philanthropist, and advocate for youth development and racialized communities. You can reach him at hodine.williams@gmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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