I think you are absolutely right. The bigger issue here is the law’s continued insistence on insulating the truth about what actually happens in the jury room from any meaningful scrutiny. Beyond the right of jurors to freedom of expression, which is obviously curtailed by the prohibition, s. 649 has the same effect on any academic who wants to do this sort of research.

Beyond asking jurors about how they in fact assessed the mens rea requirement for the offence, I would love to speak to them much more generally about how they approached the fact-finding enterprise, their understanding of the judge’s charge, and the dynamics of the jury’s deliberative process.

I appreciate the rationale for the prohibition, to ensure a free flow of information between jurors and to insulate jury verdicts from “collateral” attack. But surely those objectives could be achieved by a prohibition that carved out an exception for research. Until we have such an amendment to s. 649 of the Code, as you recognize, what really happens in the jury room is anyone’s guess.

I recently read Krieger on the heels of the decision in Saskatchewan where the judge refused to declare a mistrial in the Yorkton vigilantism case. After reading Krieger, I wondered on what basis the Saskatchewan Judge ruled that it was proper for the jury to continue deliberating under the parameters of her charge. In that case, the judge demanded the only decision for the jury was the degree of guilt between manslaughter, or 1st or 2nd degree murder. Interestingly, the Edmonton Sun is taking the credit on behalf of all journalists for being smarter than the Judiciary and the Bar.

The other side of the coin is hidden behind CC s. 649. If the jury is entitled to disregard proof beyond a reasonable doubt, it is likely that they may also take normative steps towards a guilty Mens Rea. That is to say that Krieger as an absolute rule can (and likely does) cut both ways and we are none the wiser.