R. v. Krieger, 2006 SCC 47, [2006] 2 SCR 501

                                                 SUPREME COURT OF CANADA

Between:

Grant Wayne Krieger

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Criminal Lawyers’ Association (Ontario)

Intervener

Coram: McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Krieger, [2006] 2 S.C.R. 501, 2006 SCC 47

Grant Wayne Krieger                                                                                      Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Criminal Lawyers’ Association (Ontario)                                                      Intervener

Indexed as:  R. v. Krieger

Neutral citation:  2006 SCC 47.

File No.:  30950.

2006:  January 12; 2006:  October 26.

Present:  McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for alberta

Constitutional law — Charter of Rights  — Right to trial by jury — Accused charged with unlawfully producing cannabis — Trial judge directing jurors to convict and indicating that they were bound to abide by that direction — Whether accused deprived of his constitutional right to trial by jury — Canadian Charter of Rights and Freedoms, s. 11 (f).

Criminal law — Appeals — Powers of Court of Appeal — Curative provision — Accused charged with unlawfully producing cannabis — Jury convicting accused following trial judge’s direction they had to convict — Whether trial judge deprived accused of his right to trial by jury — If so, whether curative provision of Criminal Code  applicable — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).

The accused suffers from a debilitating illness for which cannabis, in the form of marijuana, is a medically recognized palliative.  He has grown marijuana for his own consumption and provided it to others for their use.  He was charged with having unlawfully produced cannabis and he exercised his right under s. 11 (f) of the Canadian Charter of Rights and Freedoms  to “the benefit of trial by jury”.  However, the trial judge directed the jurors to convict and added that they were bound to abide by his direction.  After retiring, the jurors returned with a request for a copy of their oath, which they were given.  Afterward, two jurors requested to be excused, one on religious grounds and the other on grounds of conscience; these requests were denied.  The jury returned with a guilty verdict and their verdict was upheld on appeal.

Held:  The appeal should be allowed.

The trial judge deprived the accused of his constitutional right to a trial by jury when he directed the jury to find the accused guilty as charged.  The trial judge’s direction was not a “slip of the tongue” to be evaluated in the context of the charge as a whole; nor is this a matter of assessing the impact of subtle language susceptible to different interpretations.  His purpose and words were clear.  In effect, the trial judge reduced the jury’s role to a ceremonial one: He ordered the conviction and left to the jury, as a matter of form but not of substance, its delivery in open court.  Absent a guilty plea, the verdict must be that of the jury, not the judge — unless the judge finds the evidence insufficient and directs a verdict of acquittal on that ground.  Even if the evidence is overwhelming, this does not justify a directed verdict of guilty.  [6] [8] [18] [24]

While the curative proviso in s. 686(1) (b)(iii) of the Criminal Code  may perhaps be applied where there has been an imperfect trial by jury, it could not in this case because there was in effect no jury trial.  [25]

Cases Cited

Applied:  R. v. Wang, [2005] 1 W.L.R. 661, [2005] UKHL 9; disapproved:  R. v. Gill (1986), 29 C.C.C. (3d) 242; referred to:  Bushell’s Case (1670), 6 St. Tr. 999; R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774; R. v. Morgentaler, [1988] 1 S.C.R. 30.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11 (f).

Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).

Authors Cited

Devlin, Patrick.  “The Judge and the Jury”, in The Judge.  New York:  Oxford University Press, 1979.

Devlin, Patrick.  Trial by Jury, 3rd ed.  London:  Stevens, 1966.

APPEAL from a judgment of the Alberta Court of Appeal (Fraser C.J.A. and Côté and Picard JJ.A.) (2005), 52 Alta. L.R. (4th) 225, 367 A.R. 155, 346 W.A.C. 155, [2006] 2 W.W.R. 424, [2005] A.J. No. 683 (QL), 2005 ABCA 202, affirming the accused’s conviction.  Appeal allowed.

C. John Hooker and Henry S. Brown, Q.C., for the appellant.

Peter DeFreitas and Jolaine Antonio, for the respondent.

Marie Henein, for the intervener.

The judgment of the Court was delivered by

Fish J. —

I

1                                   Grant Wayne Krieger, the appellant in this case, was indicted and tried for having unlawfully produced cannabis.  On that charge, he was entitled under s. 11 (f) of the Canadian Charter of Rights and Freedoms  to “the benefit of trial by jury”.  He elected to exercise that right.  At its heart lies a verdict by one’s peers — the jury, not the judge. 

2                                   Unfortunately, the trial judge usurped the jury’s function.  He directed the jury to convict and said they were bound “to abide by [that] direction”.  In substance, their verdict was that of the judge; it was theirs only in form.  Mr. Krieger was thereby deprived of his constitutional right to the jury trial he had chosen.

3                                   I would allow the appeal and order that he now be given that right.

II

4                                   Mr. Krieger suffers from a debilitating illness for which cannabis, in the form of marijuana, is a medically recognized palliative.  He has grown marijuana for his own consumption and provided it to others for their use.

5                                   For this, he was indicted on September 29, 1999, in the Court of Queen’s Bench of Alberta, on two counts.  The first, for unlawful possession of cannabis, was quashed by Acton J. of the Court of Queen’s Bench of Alberta.  The second, for unlawful production of cannabis, proceeded to trial.  Mr. Krieger was convicted and his appeal against the conviction was dismissed by the Alberta Court of Appeal ((2005), 52 Alta. L.R. (4th) 225, 2005 ABCA 202).  Fraser C.J.A., dissenting, would have allowed the appeal, quashed the conviction and ordered a new trial.  So, too, would I.

6                                   There are only two real issues on this appeal.  The first is whether the trial judge deprived Mr. Krieger of his right to a trial by jury when he directed the jury to find Mr. Krieger guilty as charged.  The second is whether this error, if committed by the trial judge, can be cured under the harmless error proviso of s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 : In virtue of that provision, an appellate court may, notwithstanding a wrong decision at trial on any question of law, dismiss the appeal if it is satisfied “that no substantial wrong or miscarriage of justice has occurred”.

7                                   On the first issue, the Crown conceded from the outset that the trial judge erred in this case by directing the jury “to retire to the jury room to consider what I have said, appoint one of yourselves to be your foreperson, and then to return to the court with a verdict of guilty”.  (Here and elsewhere, unless otherwise indicated, the emphasis is mine.)  And the Crown ultimately conceded as well, in oral argument, that a new trial must be had if the Court concludes that the trial judge, in directing the jury as he did, in substance took away their decision from them.  Accordingly, all that remains to be determined on this branch of the matter is whether, on the record before us, we are persuaded that the trial judge instructed the jury that they had no choice but to render the verdict that he had directed them to return.

8                                   Let me say at once that this is not a case of a “slip of the tongue”, to be evaluated in the context of the judge’s charge as a whole.  Nor is it a matter of assessing the impact of subtle language susceptible to different interpretations.  The judge’s purpose was as clear as the words he used to achieve it.  He evidently considered it his duty to order the jury to convict and to make it plain to the jurors that they were not free to reach any other conclusion.  In effect, the trial judge reduced the jury’s role to a ceremonial one: He ordered the conviction and left to the jury, as a matter of form but not of substance, its delivery in open court.

9                                   I begin by recalling the terms used by the judge in instructing the jury as to the available verdicts.  As I have already mentioned, he directed the jurors “to retire to the jury room . . . and . . . to return to the court with a verdict of guilty”.  To the judge himself this direction left no other course open to the jury.  When two jurors later asked to be excused, the judge stated, in the jury’s presence:

I have a matter that the jury raises.  It is apparent that some of the members either didn’t understand my direction this morning, that is that they were to return a verdict of guilty . . . or they refused to do so.

And then, lest the jury be left in doubt as to the binding effect of his direction, the judge added:

And once they [the jurors] are directed to do that [to return a verdict of guilty], it’s up to them to bring in — to abide by the direction.

III

10                               As I mentioned earlier, the Crown conceded that a new trial should be ordered if the jury, though it did pronounce the verdict, was in substance entirely deprived of its role.  The Crown thus agreed with the outcome in R. v. Wang, [2005] 1 W.L.R. 661, [2005] UKHL 9, where the House of Lords ordered a new trial following a directed verdict of guilty.  The Crown sought, however, to distinguish Wang on the ground that the jury in this case retired and deliberated for ten hours.  In Wang, on the other hand, after the judge directed a guilty verdict, the jury was not so much as invited to leave the courtroom to confer. (See Wang, at para. 6.)

11                               In support of its point, the Crown pointed the Court to R. v. Gill (1986), 29 C.C.C. (3d) 242, at p. 251, where the Alberta Court of Appeal held that:

Nevertheless, no miscarriage of justice occurred here because the jury, after this direction, did retire and deliberate for some time before bringing in a verdict of guilt. There is no reason to believe that the jurors thought that the issue had been taken away from them, or that the final decision did not rest with them.

12                               In fact, one cannot conclude that a jury duly renders a verdict, by the sole fact that the jury “did retire and deliberate for some time”.  Duration alone tells little about the substance or significance of the deliberations.  And speculation in this regard is particularly perilous in this case.

13                               After the jurors had been directed by the judge to retire and return to court with a guilty verdict, they returned instead with a request: They asked for a copy of the oath they had taken upon assuming their duties as jurors.  They had sworn by that oath  to presume the accused innocent throughout the trial, which would end with their verdict. Yet now, even before they could begin to deliberate, they were directed by the judge not just to presume — but in fact to conclude — that the accused was guilty as charged.  In that light, the jurors were understandably concerned to ascertain the nature and consequences of their oath.

14                               Some time after receiving a copy of their oath, two jurors asked to be excused from the panel (one on religious grounds, the other on grounds of conscience). The trial judge denied their requests.  I am satisfied that he exercised his discretion judicially in this regard but I am troubled by his accompanying comments.  As Fraser C.J.A. put it in her dissenting reasons, the judge’s comments and questions “amounted to a reaffirmation of the direction to convict” (para. 14) and their cumulative effect was that “the jury was obliged to follow the instructions given earlier and convict Krieger” (para. 18):

In the case of Juror No. 12, the direction was express.  When she started to explain why her conscience prevented her from judging the appellant, she stated . . .

A    Here in the — in our — in our group, we — there are only two choices to — yes or no, or to be guilty or not guilty.  So . . .

Q    Actually there is one choice and that is guilt.

                   A    Guilty, yeah.  So to me it’s difficult to say that he’s guilty.

. . .

As for Juror No. 8 who said he wished to be excused on religious grounds, his answers to the questions posed demonstrate that he too was under no illusions as to the instructions the trial judge gave — the jury was to convict regardless.  This juror was asked to explain why his conscience prevented him from making a decision.  His answer at AB 223 demonstrates why this Court ought not to conclude that despite the error of law here, there is no reasonable possibility that the verdict would have been different nor for that matter that the result of a new trial would clearly be a conviction:

When I look at this case and all the facts presented, I think I understand the legal parameters in which I must remain. I feel this man is not a guilty man, and I can’t say guilty, even though I understand your charge, and I’m struggling with this, and I can’t bring myself to say guilty.

Juror No. 8 concluded his testimony before the trial judge stating at AB 224:

I believe that I could not live with myself if I was part of a conviction of this man.

15                               In these exchanges, the trial judge further undermined the role of the jury in the eyes of the two members who sought to be excused and ultimately, we may safely presume, in the eyes of the jurors they then rejoined.  Moreover, I agree with Fraser C.J.A. that “[t]his record clearly reveals from events following the charging of the jury that the jury did not understand that it had the final call on Krieger’s guilt or innocence” (para. 11).

16                               The Crown’s reliance on the length of the deliberations hardly indicates the contrary.  They could hardly have spent that time deliberating on the facts, which were not in dispute.  Brief deliberation might thus have indicated their agreement with the guilty verdict they were directed by the judge to deliver.  If the time the jury spent deliberating indicates anything at all, it might well be resistance to — not agreement with — the verdict imposed on them by the judge.

IV

17                               By his plea of “not guilty”, Mr. Krieger exercised his right under s. 11 (f) of the Charter  to a determination of his guilt by the jury, not the judge. 

18                               The Crown submits that Mr. Krieger’s testimony and defence counsel’s submissions in the course of the trial are tantamount to a guilty plea.  It is true, of course, that the fate of the accused will often be sealed by their own testimony and admissions, or by the concessions and submissions of their counsel.  But absent a plea of guilty, the need for a verdict remains.  And in a trial by judge and jury, the verdict must be that of the jury, not the judge — unless the judge finds the evidence insufficient and directs a verdict of acquittal on that ground.

19                               The trial judge in this case well understood these rules.  After concluding  that there was no reasonable basis for putting Mr. Krieger’s proposed defence of necessity to the jury, the judge offered this suggestion to defence counsel:

Well, there are alternatives. One is that having no defence to this by reason of my finding, and an admission, you can enter a plea of guilty before the judge alone without the necessity of the jury hearing it.

Or you can have the matter go before the jury and the jury can decide whether he [be] guilty or not.

20                               Mr. Krieger did not change his plea.  He instead persisted in exercising his constitutional right to place his fate in the hands of the jury.

21                               Counsel on both sides understood as well the limited import of the admissions that had been made by the defence.  Defence counsel took care not to go beyond the agreed statement of facts, which consisted in three paragraphs concerning Health Canada’s procedures for obtaining exemptions permitting the growth and possession of cannabis.  And the Crown, in response to a comment by the judge, made clear its understanding that the joint admissions made did not dispense with the need for additional proof (still less, I would add, for the verdict of the jury):

Well, I believe my friend had indicated that his client would admit that in his evidence, sir, but I don’t recall at any point in time the two of us saying that those were — that we are proceeding on the basis of an agreed statement of facts. Otherwise, I would not have called the evidence that I did.

22                               A clear distinction must in any event be drawn between admissions of fact covering all of the prosecution’s allegations and the ultimate question of guilt or innocence that is answered by the verdict alone.  This was well explained by Sir Patrick (later Lord) Devlin:

It [referring to the British precedent of Stonehouse v. D.P.P.] could not be said that the whole question of innocence or guilt was taken out of the jury’s hands. If it had been, would it have made a difference? Logically it should not. If a single issue can be withdrawn from the jury on the ground that the facts relating to it lead in the eyes of the judge to one conclusion only, then, if the same thing can be said of all the other issues, they too should be withdrawn. But suppose that at the end of the evidence in such a case the judge was, without summing up at all, simply to direct the verdict of Guilty in the same way as he directs a verdict of Not Guilty when the prosecution has failed to make out a case. This would mean that there had not been even the semblance of a trial by jury. Whatever formula may be devised to facilitate the application of the proviso, the statutory requirement is that there should be no miscarriage of justice. It would be going very far to say that there was no miscarriage in a process which deprived an accused entirely of his constitutional right to trial by jury.

(“The Judge and the Jury”, in The Judge (1979), at pp. 142-43)

And later:

In my idea no conviction can stand that is not based on the verdict of a jury given after a full and proper trial. No matter that the guilt of the accused cries out to the heavens through the voices of all the judges of England. This is the first and traditional protection that the law gives to an accused. The second and more recent protection, given in the way I have chronicled, is that even such a verdict will not be enough if on the evidence the appellate judges find the lurking doubt which they consider that the jury has missed. But the second is an addition to the first and not a substitute for it. [p. 157]

23                               I share these views and consider them to be a complete answer to both points raised by the Crown. 

24                               The overwhelming nature of the evidence can hardly justify a directed verdict of guilty.  When, if not in such cases, would a verdict of guilty be directed?  Would it be permitted whenever the evidence is overwhelming in the eyes of the judges?  Under our Constitution, the plain answer to this last question is “no”.

25                               And finally, little needs to be said about the proviso set out in s. 686(1) (b)(iii) of the Criminal Code .  That provision may perhaps be applied where there has been an imperfect trial by jury but not where, as here, there has in effect been no trial by jury at all.

V

26                               In another era, the usual enticement to quick agreement consisted of locking the jury up without “meat, drink, fire and tobacco”.  Jurors who gave verdicts thought unacceptable by the court were punished in Star Chamber or by the trial judge himself: see Devlin, Trial by Jury, at pp. 68-69 and 76.  In Bushell’s Case (1670), 6 St. Tr. 999, the jurors were fined and imprisoned for their verdict of “not guilty”.

27                               It has since then been well established that under the system of justice we have inherited from England juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course. 

28                               The matter was put this way long ago by Lord Mansfield in R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824 (cited by Dickson C.J. in R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 78):

It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.

29                               In this case, with the sole intention of “showing the jury how to do right”, the trial judge unfortunately deprived the jurors of the responsibility that was by law theirs alone.  The appellant was thereby deprived of his constitutional right, in virtue of s. 11 (f) of the Charter , “to the benefit of trial by jury”.

30                               I would therefore allow the appeal, quash the appellant’s conviction and order a trial before judge and jury in accordance with his election on the indictment that concerns us here.

Appeal allowed.

Solicitor for the appellant:  C. John Hooker, Calgary.

Solicitor for the respondent:  Attorney General of Canada, Toronto.

Solicitor for the intervener:  Queen’s University, Kingston.