Harrison v. R., [1975] 2 SCR 95

Supreme Court of Canada

Harrison v. R., [1975] 2 S.C.R. 95

Date: 1974-06-28

Ralph Thomas Preston Harrison (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1974: June 25; 1974: June 28.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Attempted murder—Charge to jury—“must be unanimous in any verdict you bring back”—“All twelve of you must agree to convict or acquit…”

The appellant was found guilty of two charges of attempted murder and a charge of possession of a weapon for a purpose dangerous to the public peace. The Court of Appeal, without giving reasons, unanimously dismissed the appellant’s appeal. Leave was given by the Supreme Court to appeal on a specific question of law as to whether the trial judge had misdirected the jury.

Held (Laskin C.J. and Spence and Dickson JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.: A trial judge is not, in law, obligated to tell the jury that they may disagree; also, a direction that whatever verdict is returned must be unanimous is not improper.

Per Laskin C.J. and Spence and Dickson JJ. dissenting: This appeal raises a problem often discussed as to the duty of the judge to charge a trial jury that although their verdict may be unanimous they have the right to report a disagreement. The words used in this case do not give sufficient indication to the jury of their right to disagree.

[Latour v. R., [1951] S.C.R. 19 distinguished; Hebert v. R., [1955] S.C.R. 120 followed]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing, without written reasons, an appeal from a judgment of Cromarty J. with a jury. Appeal dismissed, Laskin C.J. and Spence and Dickson JJ. dissenting.

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R.G. Thomas, for the appellant.

R.M. McLeod, for the respondent.

The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on November 22, 1973, whereby that Court dismissed an appeal by the present appellant from his conviction on March 29, 1973, on two charges of attempted murder and a charge of possession of an unlawful weapon for a purpose dangerous to the public peace. No written reasons for judgment were delivered by the Court of Appeal for Ontario. This appeal is taken by leave of this Court granted on February 25, 1974 upon the following question of law:

Did the Court of Appeal of Ontario err in law in failing to hold that the trial Judge erred in law in instructing the jury as follows:

You must be unanimous as to any verdict that you bring back or as to an acquittal. All twelve of you must agree to convict or acquit, and this applies to each accused and to all charges?

The portion of the learned trial judge’s charge which included the quotation repeated in the Order granting leave, I wish to cite in full:

Now, there are a number of verdicts which you can return. You can return on the first count a verdict of guilty against Harrison and Gaatch, a verdict of guilty against one or other of them, or a verdict of not guilty.

If you return a verdict of guilty against either of them, then you do not need to consider any of the included charges. If, however, you come to the conclusion that either one of them is not guilty of that charge, you must then consider the included offences of an assault occasioning bodily harm, unlawfully causing bodily harm, pointing a firearm.

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The same included offences apply in the third count against Harrison alone, that is, the charge of attempted murder of Constable Kealy. If you find him not guilty, then you must consider each of these three included offences.

With regard to the possession of an unlawful weapon, I have dealt with that; I think I need not go back to it. With regard to the fourth one, Mr. Gaatch in effect says that, “I am guilty of that offence.” You will, however, have to come to a verdict with respect to that, since it is before you.

You must be unanimous as to any verdict that you bring back or as to an acquittal. All twelve of you must agree to convict or acquit, and this applies to each accused and to all charges. What happens after you bring in a verdict is in my realm alone, and should not be considered when you are attempting to reach a verdict.

When you got out, I suggest you elect a foreman who will be your chairman to preside over your sessions, take votes, do whatever is necessary to have an orderly meeting. I will be here or nearby all the time that you are out. If you need any additional information or help, I will do my best to give it to you.

You will be accompanied by a Sheriff’s officer. Tell him if you have some question, and court will be reconvened as quickly as possible, and it will be dealt with. After you leave, it is my practice to ask counsel if they have any objections or comments to make on my charge. If they have, and I consider them to be proper ones, I will ask you to come back so that I can meet any objections they raise.

It is getting fairly close to lunch time. You are now Obliged to remain together until such time as you have given a verdict. If you will let the Sheriff’s officer know you want lunch, it will be brought up to you in your jury room. You may not depart from that room without my leave and until a verdict has been reached or whatever other disposition has to be made of the matter.

It will be seen that this appeal raises a problem often discussed as to the duty of the judge to charge a trial jury that although their verdict may be unanimous they have the right to report a disagreement and therefore a failure to arrive

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at a verdict. Counsel for the appellant, of course, relied on the statement by Fauteux J. (as he then was), in Latour v. The King[1].

This is all that was said on the subject. If one of the jurors could have reasonably understood from this direction—and it may be open to such construction—that there was an obligation to agree upon a verdict, the direction would be bad in law. For it is not only the right but the duty of a juror to disagree if, after full and sincere consideration of the facts of the case, in the light of the directions received on the law, he is unable conscientiously to accept, after honest discussion with his colleagues, the views of the latter. To render a verdict, the jurors must be unanimous but this does not mean that they are obliged to agree, but that only a unanimity of views shall constitute a verdict bringing the case to an end. The obligation is not to agree but to co-operate honestly in the study of the facts of a case for its proper determination according to law.

In the presence of the misdirections above discussed, their gravity and their combined effect, I am unable to say that the respondent has affirmatively shown that there was, in the result, no substantial wrong and that justice was done according to law. And, as above indicated, the judgment rendered by the Court is that the appeal is allowed, the verdict of murder is quashed and a new trial is ordered.

The statement has been described in Hebert v. The Queen[2], to which reference is to be made hereafter, and elsewhere as a dictum but I am unable to so regard the statement in view of Fauteux J.’s conclusion:

In the presence of the misdirections above discussed, their gravity and their binding effect. . .”

I am of the opinion on the clear language of Fauteux J.’s statement that it was one of several rationes decidendi and I believe that the test set out by Fauteux J.:

If one of the jurors could reasonably have understood from this direction—and it may be, open to such construction, that there was an obligation to agree upon a verdict, the direction would be bad in law.

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is the test which should be applied to determine the appropriateness of a trial judge’s charge upon this issue. I am aware that in the Hebert case that not only was Fauteux J.’s statement regarded as a dictum but five of the nine judges upheld the charge in that particular case, specifically stating that there was no obligation upon a trial judge to explain to the jury that they could disagree. In Latour v. The King, the only statement made by the trial judge in his charge was this:

This is an important case and you must agree upon a verdict. This means that you must be unanimous.

On the other hand in the Hebert case the trial judge said:

[TRANSLATION] Gentlemen: You must remind yourself that the verdict that you will bring back whatever it be must be a unanimous verdict. That is to say that all twelve of you must be of the same opinion and bring back the same verdict.

Kerwin C.J. said that at p. 122:

The terse manner in which the trial judge in that case had referred to the matter is to be noted. In the present instance the trial judge made it quite clear to the jury what were their duties. He stated, more than once, that they must be unanimous and again, more than once, explained the various conclusions at which they could unanimously arrive. These conclusions are the verdicts enumerated above. To give effect to the appellant’s argument would mean that a trial judge should invite a jury to disagree. This is a far different matter from an intimation, veiled or otherwise, that, notwithstanding the views of one or more jurors, it was necessary that one of certain defined conclusions be arrived at, or verdicts returned. After going over the trial judge’s charge in its entirety, I am satisfied that there is no basis for the argument on the first point.

Similar statements were made by Rand J. and Estey J. Fauteux J., however, expressed in Hebert the same view as his brethren that the whole of the charge must be considered and having so considered he was not of the opinion

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that the right to disagree had been excluded. A similar view is taken in the Court of Appeal of British Columbia in Rex v. Schlosser[3], per O’Halloran J.A. at p. 191:

In days long since juries were not permitted to disagree (cf. R. v. Neal (1949), 33 Cr. App. R. 189), but the pendulum cannot yet have swung to the opposite extreme of encouraging them to disagree.

In the Court of Appeal for Manitoba in Regina v. Wedge[4] Matas J.A. for the Court expressed the same view as to a charge which read:

. . . to render a verdict you must be unanimous; that is, the verdict you bring in must be the verdict of all of you.

On the other hand the Court of Appeal for Ontario in Regina v. DeMarco[5], considered a charge reading:

The other thing is, and most important if anything is, that all twelve jurors must agree. It has to be a unanimous jury; that means that everybody has to be of the one opinion whether the accused is guilty or not guilty.

Martin J.A. said that at p. 374:

We are of the view that this comes perilously close to the type of instruction that was held by the Supreme Court of Canada to be error in the case of Latour v. The King (1950), 98 C.C.C. 258. This is quite a different direction to instructing the jury that they must be unanimous with respect to any verdict that they return to the Court.

It would seem to be the consistent course of the Courts that a judge is not required to charge a jury that they may disagree. Perhaps O’Halloran J.A. was correct and the pendulum has not yet swung to the opposite extreme. I can see no serious objection to such a charge, accompanied as it usually is by the judge’s admonition that the jurors should realize the serious consequences which accompany a disagreement and

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attempt to resolve their differences. It is said that the mere mention of disagreement to the charge in a jury is to invite the jury to disagree. I do not subscribe to that fear and I am of the opinion that a jury properly charged will strive to arrive at an unanimous verdict in accordance with their oath despite the fact that they know that if they have an irreconcilable difference they may report disagreement.

However, that may be and whether trial judges should or should not be required to tell juries that they may disagree, I am strongly of the opinion that to tell a jury that it cannot disagree is a major fault which causes a mistrial and as Fauteux J. pointed out in Latour:

If one of the jurors could reasonably understand from the direction that there was an obligation to agree upon a verdict then the juror has been told that he cannot disagree.

I turn now to the actual words of the charge. In the earlier parts of his charge, the learned trial judge has stressed to the jury their own individual duty to consider the evidence and come to their conclusion but in the portion that I have cited the emphasis was taken in unanimity with two possible exceptions. The first is in this sentence: “What happens after you bring in a verdict is my realm alone, and should not be considered when you are attempting to reach a verdict”. The word “attempting” may be considered as indicating a possible failure to reach a verdict but in my opinion it lacks sufficient clarity to ensure that, as Fauteux J. put it, a juror would not understand that there was an obligation upon him to reach a verdict. The second is in the last sentence quoted in the charge:

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You may not depart from that room without my leave until a verdict has been reached or whatever other disposition has to be made of the matter.

Again, a lawyer would quickly assume that the learned trial judge was referring to a possible disagreement but jurors are not lawyers, lawyers are not eligible to be jurors and a person who is not a lawyer might quite fail to understand that in that sentence the learned trial judge was referring to a possible disagreement.

In each of these cases in my view the line is a very thin one. In some cases it has been and should have been held that the charge gave to the jury a sufficient indication of their right to disagree. In other cases, very similar words have been held by other Courts not to give such sufficient indication. I am of the opinion that this case falls in the latter category and I cannot say that no juror hearing the charge in this particular case would understand that he was under an obligation to bring in a verdict. It is regrettable that this result should occur. A proper charge in my opinion can be given without any danger that the jury will seize the opportunity to disagree in disregard of their oath. I would allow the appeal and direct a new trial.

The judgment of Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by

MARTLAND J.—This appeal is brought, by leave of this Court, on a single question of law. The Court of Appeal for Ontario had unanimously dismissed the appellant’s appeal from his convictions on two charges of attempted murder and a charge of possession of a weapon for a purpose dangerous to the public peace, after trial by a jury.

The question of law is as follows:

Did the Court of Appeal of Ontario err in law in failing to hold that the trial Judge erred in law in instructing the jury as follows:

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“You must be unanimous as to any verdict that you bring back or as to an acquittal. All twelve of you must agree to convict or acquit, and this applies to each accused and to all charges”?

The Court of Appeal did not deliver reasons for its dismissal of the appeal, but we were advised by counsel for the appellant that the question now in issue was argued on the appeal to that Court.

The appellant relies mainly on the reasons delivered on behalf of the Court by Fauteux J., as he then was, in Latour v. R.[6], at p. 30, which conclude with the following statement:

The other matter in which comments may be added, although the point was not raised by the appellant, is related to the following direction given to the jury:

“This is an important case and you must agree upon a verdict. This means that you must be unanimous.”

This is all that was said on the subject. If one of the jurors could have reasonably understood from this direction—and it may be open to such construction—that there was an obligation to agree upon a verdict, the direction would be bad in law. For it is not only the right but the duty of a juror to disagree if, after full and sincere consideration of the facts of the case, in the light of the directions received on the law, he is unable conscientiously to accept, after honest discussion with his colleagues, the views of the latter. To render a verdict, the jurors must be unanimous but this does not mean that they are obliged to agree, but that only a unanimity of views shall constitute a verdict bringing the case to an end. The obligation is not to agree but to co-operate honestly in the study of the facts of a case for its proper determination according to law.

This Court had to consider the application of the statement in Latour in Hebert v. R.[7] The

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whole Court sat in this case, and it included all of the judges who had been members of the Court in the Latour case, save one.

In the Hebert case the trial judge, in instructing the jury, had said this:

[TRANSLATION] Gentlemen: You must remind yourself that the verdict that you will bring back whatever it be must be a unanimous verdict. That is to say that all twelve of you must be of the same opinion and bring back the same verdict.

Kerwin C.J., with whom Taschereau J., as he then was, and Abbott J. agreed, at p. 122, referred to the appellant’s reliance upon the passage from Latour, cited above, which he described as an obiter dictum, and went on to say:

The terse manner in which the trial judge in that case had referred to the matter is to be noted. In the present instance the trial judge made it quite clear to the jury what were their duties. He stated, more than once, that they must be unanimous and again, more than once, explained the various conclusions at which they could unanimously arrive. These conclusions are the verdicts enumerated above. To give effect to the appellant’s argument would mean that a trial judge should invite a jury to disagree. This is a far different matter from an intimation, veiled or otherwise, that, notwithstanding the views of one or more jurors, it was necessary that one of certain defined conclusions be arrived at, or verdicts returned. After going over the trial judge’s charge in its entirety, I am satisfied that there is no basis for the argument on the first point,

Estey J., at p. 131, said:

A disagreement is not a verdict. It exists only because of the inability of the jury to arrive at a decision and, therefore, a verdict. In this context the jury would understand that he was discussing a verdict as a decision and not in any way referring to the possibility of a disagreement or denying their right to disagree. There is no obligation upon a judge to explain to a jury they may disagree. In fact, a trial judge does not accept a disagreement until he is satisfied that

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there is no reasonable possibility of the jury arriving at a unanimous decision.

Fauteux J., who dissented on other matters, said, at p. 143:

[TRANSLATION] It is, however, with respect to the judge’s charge as a whole that the matter must be weighed. So considered, I do not think that one can, in the present case, say that the right to disagree has been excluded.

With these reasons Locke J., who also dissented on other matters, concurred.

None of the members of the Court upheld the appellant’s submission on this point. None of them expressed the view that the direction under consideration was improper if one of the jurors could reasonably have understood that there was an obligation to agree upon a verdict.

This judgment negatives any suggestion that a trial judge is, in law, obligated to tell the jury that they may disagree. It also holds that a direction that whatever verdict is returned must be unanimous is not improper. In my opinion that is all that the trial judge did in the present case. I will repeat the passage from his charge cited in the question of law on which leave was granted and add to it his next following sentence:

You must be unanimous as to any verdict that you bring back or as to an acquittal. All twelve of you must agree to convict or acquit, and this applies to each accused and to all charges. What happens after you bring in a verdict is in my realm alone, and should not be considered when you are attempting to reach a verdict.

The emphasis is my own.

In my opinion the second sentence, which is the one of which the appellant complains, cannot be read in isolation. The essence of the direction is that a verdict to convict or to acquit must be unanimous. The words underlined show

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that the jury was not being told that it had to reach a verdict.

In my opinion, on the basis of the judgment of this Court in Hebert, the appeal should be dismissed.

Appeal dismissed, LASKIN C.J. and SPENCE and DICKSON JJ. dissenting.

Solicitor for the appellant: Ronald G. Thomas, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.