R. v. Burke, [2002] 2 S.C.R. 857, 2002 SCC 55
Howard Burke Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Burke
Neutral citation: 2002 SCC 55.
File No.: 28546.
2002: March 12; 2002: June 21.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier,
Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Criminal law — Trial — Verdict — Validity — Foreman
announcing a verdict — Court recording verdict as “not guilty” — Jury dismissed
and accused discharged — Trial judge informed shortly thereafter that court may
have erred in recording verdict — True verdict intended by jury may have been
“guilty as charged” — Trial judge subsequently conducting limited inquiry into
verdict and changing recorded verdict from “not guilty” to “guilty” — Whether
trial judge had jurisdiction to conduct inquiry into verdict and alter it after
discharge of jury — Whether rule in Head should be re-examined.
At the close of the accused’s trial for attempted
murder, the foreman announced the verdict. The trial judge, court registrar,
and both counsel heard “not guilty as charged”. A “not guilty” verdict was
recorded and the jury was discharged. While escorting the jurors out of the
courtroom, a court officer asked the foreman what the jury’s verdict had been.
The foreman replied, “You’re kidding, guilty”. Within approximately seven to
nine minutes after the announcement of the verdict in court, the trial judge
was informed of the apparent error. An effort was made to locate the jurors.
The foreman and another juror were found in the parking lot and brought back to
the courthouse. The court officer called the remaining jurors at their homes,
but was unable to reach two jurors. Approximately 25 minutes after the
discharge of the appellant, court resumed in order to clarify the verdict. In
the presence of both counsel and one juror, the foreman confirmed that the
verdict was intended to be guilty. The trial judge reconvened court the next
day. The full jury and both counsel were present, but the accused was not.
Each of the jurors testified that their verdict was “guilty”. The trial judge
concluded that he had jurisdiction to conduct a limited inquiry into what the
actual verdict was and into whether the court had committed an error in
recording the verdict. A temporary publication ban was imposed but two
articles describing the incident were published in two widely read newspapers.
Three days later, at the third inquiry, both the accused and the full jury were
present. The court reporter testified that he originally recorded the
foreman’s response as unclear but when he replayed the tape at normal speed, he
heard “guilty as charged”; playing the tape on more sophisticated audio
equipment, he heard “not guilty as charged” and was prepared to certify the
verdict as such. The trial judge then questioned the jury. The foreman
testified that he had cleared his throat in announcing the verdict, and that he
had in fact said “guilty as charged”. Most of the jurors testified that they
had heard something like “guilty”, but one testified that she was unable to
hear the foreman as he announced the verdict. The trial judge then asked each
juror two questions regarding taint or bias. Nine jurors indicated that their
testimony had not been influenced by the media or anyone else. Two jurors
testified that they had read or heard things in the media about the case but
had not been influenced. One juror started to allude to an item he had heard
in the media about the case, but the trial judge cut him off before he could
give a complete answer.
The trial judge distinguished R. v. Head,
[1986] 2 S.C.R. 684, and held that he had the jurisdiction to change the
recorded verdict from “not guilty” to “guilty as charged”. He found no air of
reality to the suggestion that the jurors were or may have been tainted between
the time when the verdict was announced and the time that the jurors were
reconvened and testified the next morning. The majority of the Court of Appeal
dismissed the accused’s appeal, finding that the error in this case was an
accidental slip.
Held (McLachlin C.J.
and L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting): The appeal should
be allowed and a new trial ordered.
Per Iacobucci, Major,
Binnie and LeBel JJ.: Head cannot be distinguished from the present
case. However, the evolving jurisprudence and policy concerns warrant
developing an exception to the general rule enunciated in Head that a
trial judge is functus officio and lacks jurisdiction to reconvene the
jury to inquire into an alleged error in the verdict once the jury in a
criminal trial has been discharged. A trial judge retains the limited and
exceptional jurisdiction to recall the jury and conduct a narrow inquiry into
the alleged error where the error does not require the jury to reconsider the
verdict or continue its deliberations with a view to handing down additional
verdicts. This type of error is not properly called “clerical” or
“administrative”, as those types of errors may be corrected by the judge
without recalling the jury.
The first question that a trial judge must ask
post-discharge is whether the error requires reconsideration of the verdict.
If it does, the general rule in Head applies and there are no
circumstances under which the judge will retain or otherwise possess
jurisdiction to reconvene the jury and conduct an inquiry into the alleged
error. If the error does not require the jury to reconsider its verdict, then
the trial judge possesses jurisdiction to conduct an inquiry into whether the
facts of the case disclose a reasonable apprehension of bias. In determining
whether this apprehension is raised, the trial judge must consider all the
relevant circumstances of the case, the most crucial circumstance usually being
the dispersal of the jury and its probable effect on the minds of reasonable
members of the public.
Where the trial judge concludes, post-discharge, that
the facts raise a reasonable apprehension of bias, he should declare a mistrial
if that is the necessary remedy to prevent a miscarriage of justice. In making
that order, the trial judge must consider the rights of the accused and the
public, along with the effect of not ordering a mistrial on the administration
of justice. On the other hand, if a mistrial is not necessary to prevent a
miscarriage of justice, then the trial judge should uphold the verdict as given
at trial. Where, however, the trial judge concludes that there is no
reasonable apprehension of bias, he must correct the error in the verdict; a
mistrial is not available as a remedy.
The present case falls within the exception to the
general rule in Head. The alleged error lay in the faulty transmission
and recording of the verdict and, since this error did not involve
reconsideration of the verdict, the trial judge had post-discharge jurisdiction
to conduct an inquiry into the alleged error. However, the trial judge did not
conduct the proper analysis. Instead of asking whether there was a reasonable
apprehension in the minds of right-thinking, properly informed members of the
public that the jurors might have been biased or influenced, the trial judge
conducted an actual bias test. In this case, the length of time which elapsed
between the delivery of the recorded verdict and the point at which the jury
was reconvened was substantial; the accused was discharged from custody; the
nature and the scope of the jury’s dispersal was extensive; and, lastly, the
jurors were exposed to the reaction of the public to the recorded verdict
during the period when they were absent from the courtroom and to the
potentially prejudicial media coverage of this case which appeared before and
after the temporary publication ban. When the proper test is applied and all
the relevant circumstances are considered in context, there is no question that
the facts, particularly the jury’s extensive and extended dispersal, establish
a reasonable apprehension of bias. As a result, the trial judge did not
possess the exceptional jurisdiction to correct the verdict. He retained only
the remedial jurisdiction to declare a mistrial. He was therefore in error
when he changed the verdict and registered a conviction.
Per Arbour J.: This is
an appropriate case to re-examine the rule in Head. The trial judge’s
jurisdiction to inquire as to whether the verdict was correctly recorded is
based on the fact that the trial may not have been properly concluded. A
verdict other than the intended unanimous verdict of the jury is a nullity.
If, as here, the trial judge has a reasonable concern that the verdict might be
a nullity, the trial should resume as if the verdict had not been rendered.
The trial judge should determine whether the recorded verdict was in fact null
and void and if not, the verdict should stand. If the recorded verdict was a
nullity, it should be set aside and the trial should resume. The appropriate
test is whether there is a “reasonable apprehension of taint or bias”. If
there is no reasonable apprehension of bias, then there is no perceived threat
to the impartiality of the jury and the jury is in the same position as it was
prior to the court recording the verdict. Under this approach, the jury is
free to continue deliberations if necessary. If there has been a reasonable
apprehension of bias, the trial judge’s only option is to declare a mistrial
and to order a new trial “on such terms as justice may require”. In this case,
the extent of the jury’s dispersal established a reasonable apprehension of
bias and the appropriate remedy is to order a new trial.
Per McLachlin C.J. and
L’Heureux-Dubé, Gonthier and Bastarache JJ. (dissenting): There is agreement
with Major J. that the strict rule in Head must be rejected in favour of
a more refined and flexible analysis, and with the stated test for determining
the limits of the exercise of post-discharge jurisdiction. However, whether a
verdict can be corrected post-discharge is a highly fact-specific analysis
which depends on the totality of the circumstances, including the probable
reason for the initial mistake and the length of time which has elapsed between
the original verdict and the moment the error is brought to the trial judge’s
attention. While dispersal may, in some instances, provide the most compelling
evidence on which the test will turn, it is not the deciding factor in a case
where, as here, the evidence satisfactorily establishes error in carrying out
the court’s recording of the jury’s true verdict and a failure to correct that
error would not serve the administration of justice.
In this case, a reasonable and right-minded person,
apprised of the totality of the circumstances, would not conclude that there
was a reasonable apprehension of taint. Although the nature and scope of the
jury’s dispersal and the potential exposure to media coverage raise the
possibility of taint, neither of these factors is dispositive given the credible
reason for the error and the manner in which it was brought to the court’s
attention and confirmed by the jury. Mere exposure to media or conversations
about the case does not automatically spoil the juror’s later statements,
especially where, as here, it is abundantly clear that the jury had actually
intended to find the accused “guilty”. On the particular facts of this case,
there was no reasonable apprehension of taint, and it was proper for the trial
judge to record the jury’s true verdict. To require a new trial or allow the
verdict to stand in light of the totality of these circumstances would work a
serious injustice to the interests of the state and the general public.
Cases Cited
By Major J.
Discussed: R. v.
Head, [1986] 2 S.C.R. 684; referred to: R.
v. Vodden (1853), Dears. 229, 169 E.R. 706; R. v. Cefia (1979), 21
S.A.S.R. 171; R. v. Andrews (1985), 82 Cr. App. R. 148; R. v. Follen,
[1994] Crim. L.R. 225; R. v. Loumoli, [1995] 2 N.Z.L.R. 656; R.
v. Maloney, [1996] 2 Cr. App. R. 303; R. v. Aylott, [1996] 2 Cr.
App. R. 169; R. v. Z.A., Eng. C.A., March 8, 1999, unreported; People
v. Powell, 221 P.2d 117 (1950); State v. Brandenburg, 120 A.2d 59
(1956); State v. Fornea, 140 So.2d 381 (1962); Commonwealth v. Brown,
323 N.E.2d 902 (1975); State v. Edwards, 552 P.2d 1095 (1976); Webber
v. State, 652 S.W.2d 781 (1983); Burchett v. Commonwealth, 734
S.W.2d 818 (1987); People v. McNeeley, 575 N.E.2d 926 (1991); State
v. Myers, 459 S.E.2d 304 (1995); Montanez v. People, 966 P.2d 1035
(1998); State v. Green, 995 S.W.2d 591 (1999); Martin v. State,
732 So.2d 847 (1998); United States v. Dotson, 817 F.2d 1127 (1987),
am. 821 F.2d 1034 (1987); Bricmont v. Mathieu (1987), 7 Q.A.C. 199; Chandler
v. Alberta Association of Architects, [1989] 2 S.C.R. 848; People v.
Rushin, 194 N.W.2d 718 (1971); R. v. Budai (2001), 154 C.C.C. (3d)
289, 2001 BCCA 349; R. v. Cameron (1991), 64 C.C.C. (3d) 96, leave to
appeal refused, [1991] 3 S.C.R. x; R. v. S. (R.D.), [1997] 3 S.C.R. 484;
Committee for Justice and Liberty v. National Energy Board, [1978] 1
S.C.R. 369; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Sussex Justices,
Ex parte McCarthy, [1924] 1 K.B. 256; R. v. Taillefer (1995), 40
C.R. (4th) 287, leave to appeal refused, [1996] 1 S.C.R. x; R. v. Lessard
(1992), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205, leave to appeal refused, [1992]
3 S.C.R. vii; R. v. Woods (1989), 49 C.C.C. (3d) 20, leave to appeal
refused, [1990] 2 S.C.R. xii; R. v. Martineau (1986), 33 C.C.C. (3d)
573; R. v. Antinello (1995), 97 C.C.C. (3d) 126; R. v. T. (L.A.)
(1993), 84 C.C.C. (3d) 90; R. v. Rondeau, [1998] O.J. No. 5759 (QL).
By Arbour J.
Discussed: R. v.
Head, [1986] 2 S.C.R. 684.
By L’Heureux-Dubé J. (dissenting)
R. v. Head, [1986] 2
S.C.R. 684; R. v. S. (R.D.), [1997] 3 S.C.R. 484; Committee for
Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; R. v.
Andrews (1985), 82 Cr. App. R. 148; State v. Williquette, 526 N.W.2d
144 (1995); R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.
Statutes and Regulations Cited
Criminal
Code, R.S.C. 1985, c. C-46, ss. 644(1) , 647(1) ,
(2) , (4) .
Authors Cited
Maric, Vaso. Annotation to R.
v. Burke (2001), 41 C.R. (5th) 135.
Wigmore, John Henry. Evidence
in Trials at Common Law, vol. 8. Revised by John T. McNaughton.
Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the Ontario Court of Appeal
(2001), 53 O.R. (3d) 600, 153 C.C.C. (3d) 97, 41 C.R. (5th) 134, 143 O.A.C.
286, [2001] O.J. No. 1119 (QL), dismissing the appellant’s appeal from a
decision of the Ontario Court (General Division), [1997] O.J. No. 5568
(QL). Appeal allowed, McLachlin C.J. and L’Heureux-Dubé, Gonthier and
Bastarache JJ. dissenting.
David M. Tanovich, for
the appellant.
Susan G. Ficek, for the
respondent.
The reasons of McLachlin C.J. and L’Heureux-Dubé,
Gonthier and Bastarache JJ. were delivered by
1
L’Heureux-Dubé J.
(dissenting) — The main issue in this appeal is whether a
trial judge has jurisdiction, after discharge of the jury, to correct an
improperly recorded verdict. More specifically, the question here is whether
the trial judge had jurisdiction post-discharge to change a wrongly recorded
“not guilty” verdict to the jury’s true verdict: “guilty as charged”.
2
I have had the benefit of reading the reasons of my colleague Major J.,
and I respectfully disagree with him on two issues, namely, the elements of the
test to be applied by trial judges in these circumstances and the result he
reaches.
I. Limits
on Post-Discharge Jurisdiction
3
I agree with Major J., for the reasons he gives, that the strict rule
announced in R. v. Head, [1986] 2 S.C.R. 684, must be rejected in favour
of “a more refined and flexible analysis” that confers upon trial judges the
jurisdiction to correct a criminal verdict post-discharge in certain limited
circumstances. I also agree with Major J.’s reasons that the test for
determining the limits of the exercise of post-discharge jurisdiction is
“reasonable apprehension of taint” which requires that “an informed person,
viewing the matter realistically and practically — and having thought the
matter through — [would] conclude” that taint likely occurred. As this Court
has previously explained, the reasonable apprehension test requires a determination
that an informed person would think that it is more likely than not that
the jury upon recall after discharge would not decide fairly; “[t]he grounds
for this apprehension must ... be substantial and I ... refus[e] to accept the
suggestion that the test be related to the ‘very sensitive or scrupulous
conscience’”: see R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 31
(quoting Committee for Justice and Liberty v. National Energy Board,
[1978] 1 S.C.R. 369, at p. 395, per de Grandpré J. (writing for the
majority on this issue)).
4
I respectfully disagree, however, with the heavy emphasis Major J.
places on dispersal as an element in establishing reasonable apprehension of
taint. Whether or not a verdict can be corrected post-discharge is a highly
fact-specific analysis and one which, in every case, will depend on the
totality of the circumstances, including the probable reason for the initial
mistake and the length of time which has elapsed between the original verdict
and the moment the error is brought to the trial judge’s attention: see R.
v. Andrews (1985), 82 Cr. App. R. 148 (C.A.), at p. 154. Often, it will
not be practical to use an essentially bright-line test of dispersal to
determine whether a jury verdict can be corrected; as Lamer J. pointed out in Head,
supra, at p. 700 (quoting Wigmore on Evidence (McNaughton rev.
1961), vol. 8, at para. 2355):
It has occasionally been said that this correction
must be claimed before the jury are discharged, but this seems unsound because
such errors are seldom ascertained until after the jury have separated and
conversed out of court, and if the error is satisfactorily established, there
can hardly be any fixed time to limit its correction.
5
Given that the general rule prohibiting post-discharge jurisdiction
serves to protect the interests of justice, it is axiomatic that an exception
to that rule must serve the interests of justice in a way that adherence to the
rule could not. Where it is carefully established that an error was made in
recording the jury’s true verdict, the interests of justice will rarely be
served by prohibiting the trial judge from altering the verdict as entered.
Such a rigid adherence to procedural niceties, in my view, would undermine,
rather than strengthen, the public’s confidence in our jury system by impeding
the ascertainment of truth and justice. As the court in State v.
Williquette, 526 N.W.2d 144 (Wis. 1995), concluded, at p. 151:
It is not difficult, however, to imagine a scenario where an incorrect
verdict transcription could result in a serious injustice. The public policy
considerations of promoting a jury’s freedom of deliberation, the stability and
finality of judgments and protecting jurors against annoyance and embarrassment
are indeed noble and must be taken into account; however, these considerations
may not completely trump the ascertainment of the “truth” as actually found by
the jury.
In the
instance of an erroneously entered guilty verdict, it would be a serious
injustice to allow an innocent person to remain in prison simply because
members of the jury had separated or mingled with the public. There is no
guarantee that the Attorney General would forego the holding of a new trial,
given the limited inquiry concerning the verdict, and no certainty that a new
trial would produce the same result. Even if bail were granted, the innocent
person’s burden would be great. I believe that it is also society’s interest
that those found guilty do not go free.
6
While dispersal may, in some instances, provide the most compelling
evidence on which the test will turn, I do not think dispersal acts as the
deciding factor in a case where, as here, the evidence satisfactorily
establishes error in carrying out the court’s recording of the jury’s true
verdict and a failure to correct that error would not serve the administration
of justice.
II. Application
of the Law to the Facts of this Case
7
In stating the verdict, the foreperson coughed or stuttered, causing
listeners to hear different verdicts. The verdict as pronounced was never
repeated or confirmed by the court. Although the trial judge thought he heard
“not guilty as charged”, later that same afternoon, he admitted to having “a
raging head cold” and acknowledged that there was something “unusual” about the
verdict. The court reporter initially recorded the foreperson’s verdict as
“(inaudible) guilty as charged” and, when examined the next day, testified that
he “couldn’t be sure” what the foreperson said at the moment of hearing it.
Even after replaying the original tape in the courtroom “eight to twelve”
times, he was unable to discern what the verdict was (albeit at “normal speed”
he heard “guilty as charged”). The court officer testified that she had been
unable to understand the foreperson due to a “rumbling” or “gurgling” noise he
made while delivering the verdict. Ten of the eleven jurors testified under
oath that they heard the foreperson say “guilty”, the eleventh stated that she
was not able to hear the verdict as announced. The foreperson testified that
he sometimes stammered and also had a soft tone of voice, but that he had said
“guilty as charged”.
8
Also significant in this case is the manner in which the error was brought
to the attention of the court. After the verdict was announced on September
18, the jury was escorted by the court officer from the courtroom to the jury
room. Within about 30 seconds after leaving the courtroom, the court officer
asked the foreperson what the verdict was. At this point, all 12 jurors were
back in the jury room and still within the care and control of the court. In
the presence of all of the other members of the jury, the foreperson replied,
“You’re kidding, guilty”. Although some of the jurors were in a position to
overhear what was said, none of them contradicted the foreperson’s statement.
The jurors were then escorted down a private elevator in order to exit the
building, which is typical when there is a guilty verdict. On the way back to
her office, the court officer heard that the court deputy had said that the
verdict was “not guilty”. She testified that she knew immediately that an
error had been made.
9
Within approximately seven to nine minutes after the announcement of the
verdict in court, the court officer informed the trial judge of the error. Two
constables at the court found the foreperson and another juror in the parking
lot. Both jurors were alone and separately confirmed to one of the constables that
the verdict was guilty. Within about 25 minutes of the discharge of the
appellant, the trial judge had the foreperson and the other juror back in
court. Under oath, the foreperson confirmed to the trial judge that the jury’s
verdict was guilty and that he had pronounced a guilty verdict in the
courtroom. In my view, there is no question of the foreperson’s verdict being
altered as a result of anything he heard after returning the initial verdict;
any possibility that he was tainted after exiting the building into the parking
lot is completely mitigated by the fact that he had already disclosed the error
to the court officer while still within the care and control of the court.
10
Around the time the trial judge was questioning the foreperson, the
court officer called the remaining 10 jurors at their homes and asked them to
return to the courthouse. She also asked one of the jurors on the phone “off
the record” what the verdict was; like the foreperson and the other juror found
in the parking lot, the juror said “guilty”.
11
The trial judge reconvened court the following morning. The full jury
was present, and each of the jurors unequivocally testified that the verdict
was “guilty”, including the foreperson who repeated that he had said “guilty as
charged”. On September 23, the jury was again reconvened and each juror was
separately asked to repeat the verdict as pronounced as well as the verdict
they had agreed to. Once again, all responded “guilty” to both inquiries,
except for one juror who testified that she did not hear the foreperson as he
announced the verdict, but that there was “not a doubt in [her] mind at all” as
to what the actual verdict was. Although, as Major J. points out, two jurors
testified that they had read and heard statements about the case in the media,
I think it is important to stress that both unequivocally and consistently
testified that the true verdict was guilty. The first indicated that he was
certain what verdict the jury had reached: “I read the articles on the weekend
but they had no influence. The verdict was given. The verdict is what it
was. We spent almost -- close to 15 hours in deliberations. There was no
question” (emphasis added). Similarly, the latter testified that there was
“not a doubt in [her] mind at all” as to what the verdict was. The juror who
started to allude to something he had heard in the media but was prevented by
the trial judge from completing his testimony on that point was asked not only
whether he heard anything that affected, but also anything that might have
affected, his testimony in court. He replied: “Absolutely not”.
12
Taking into consideration the totality of the circumstances, I do not
think there was a reasonable apprehension of taint in this case. Although the
nature and scope of the jury’s dispersal and the potential exposure to media
coverage raise the possibility of taint, neither of these factors is
dispositive given the credible reason for the error and the manner in which it
was brought to the court’s attention and confirmed by the jury. Even though
the other jurors did not confirm the error until the next day, it is
significant that the court officer was told the jury’s actual verdict within
seconds after the verdict was pronounced and before the foreperson had any
opportunity to mingle with the public. Also significant is the fact that the
foreperson communicated the true verdict to the judge within a very short
period of time. The jurors who were recalled on September 19, the morning
after the verdict was returned, were simply confirming the correct verdict that
had already been communicated by the foreperson to the trial judge the previous
day. The evidence indicates that until they were called at home after the
trial, these jurors were under the impression that the verdict announced in
court was guilty.
13
In short, from the conclusion of the trial through the third and final
inquiry, every single juror, whether asked off the record or under oath,
consistently, repeatedly, and unequivocally confirmed that the verdict was
“guilty”. A reasonable and right-minded person, apprised of these
circumstances, would not conclude that there was a reasonable apprehension of
taint in this case; quite simply, “[t]he clear evidence of [undue influence] required
to sustain a reasonable apprehension of [taint] is nowhere to be found”: S.
(R.D.), supra, at para. 58. To require a new trial or allow the
incorrect verdict to stand in light of the totality of these circumstances
would work a serious injustice to the interests of the state and the general
public “since it forces the court to tell the jurors that despite the fact that
they have dutifully carried out the oath that they had sworn to uphold by
listening to [20] days of evidence and then rendering a unanimous and otherwise
valid verdict, their decision must be ignored”: V. Maric, Annotation to R.
v. Burke (2001), 41 C.R. (5th) 135, at p. 136. I have utmost faith in the
public’s ability to understand the error that took place here and the need for
flexibility on the part of judges to take appropriate steps to remedy errors of
this nature. It strikes me that any confusion on the part of the public will
stem from the decision to expend the Crown’s resources on another trial even
though there is no reasonable apprehension of taint and no doubt that the
jury’s true verdict was “guilty”.
14
In any event, I wholly disagree with Major J. that the trial
judge’s conclusion was incomplete and resulted in an error of law. I believe
instead that considerable deference is owed to the trial judge’s largely
fact-driven conclusion that there is “absolutely no air of reality to the
suggestion that there was or may have been tainting in respect of any one or
more of the members of the jury between the time the verdict was announced on
the afternoon of September 18, 1997 and the time the members of the jury
reconvened and testified the following morning” in this case. This conclusion
was based, not by “focuss[ing] solely on whether the jurors were actually influenced”
(emphasis in original), as Major J. suggests (at para. 89), but rather on an
objective consideration of the totality of the circumstances; indeed, the “air
of reality” test applied by the trial judge, like the reasonable apprehension of
taint inquiry, looks to the viewpoint of a reasonable person properly informed
of the situation: see R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.
The trial judge conducted an extensive three-day inquiry in which all relevant
persons, including the court reporter, the court officer, the registrar, the
court constables, and all 12 members of the jury, were carefully examined. As
Weiler J.A. noted in her reasons in the Court of Appeal, at para. 45: “The
trial judge ensured that the process in which he engaged was fair to the
accused. Having regard to the fact the accused was not present [of his own
accord] when some of the evidence was heard, he had the witnesses repeat all of
the evidence to ensure that the appellant was not prejudiced.” In my view, the
factors that the trial judge took into account, namely, the reason for the
error, the manner in which it came to his attention, and the clear and
unequivocal statements of the jurors that the verdict was “guilty as charged”,
favour dismissal. I am not persuaded that dispersal of the jury was the
overriding factor that the trial judge should have considered.
15
The trial judge was aware of the publicity surrounding the verdict as
well as the possibility that some, perhaps even all, of the jurors were exposed
to reactions by the public and the media. Unlike my colleague, however, I do
not believe that mere exposure to media or conversations about the case
automatically spoils the juror’s later statements, especially where, as here,
it is abundantly clear that the jury had actually intended to find the
appellant “guilty”. In another case with a different set of facts, we might
find dispositive the fact that a discharged juror potentially mingled with the
public or read media reports of the trial. On the particular facts of this
case, however, there was no reasonable apprehension of taint, and it was proper
for the trial judge to record the jury’s true verdict.
16
For these reasons, I would dismiss the appeal.
The judgment of Iacobucci, Major, Binnie and LeBel JJ. was delivered by
Major J. —
I. Introduction
17
At issue in this appeal are important considerations of our justice
system, particularly that of the jury.
18
In criminal cases the jury must be unanimous to convict or acquit; a
failure to reach a verdict results in a mistrial. An essential ingredient of
that process is that the presiding judge is fully aware of the decision and is
also aware that it is the decision of each and every juror.
19
Canadians repose confidence in our jury system, a system that has
remained essentially unchanged since our country was founded. The public
expects a fair and final verdict from its juries. Any departure from those
standards would, to the detriment of the country, erode that confidence. We
cannot permit that erosion.
20
This appeal arises from a unique set of circumstances which raises these
concerns. To all public appearances, the appellant Howard Burke was acquitted
by a jury on the charge of attempted murder. The foreman announced the
verdict. In doing so, he either stuttered or cleared his throat such that
different people in the courtroom heard different versions of the verdict. The
trial judge heard “not guilty” and recorded the verdict as such. The jury had
actually intended to find the appellant “guilty”.
21
The trial judge excused the jury, and shortly after their exit,
discharged the accused. Soon after the jury’s discharge, a court officer
discovered that the foreman believed that the jury had delivered a verdict of
guilty. Upon being informed of the error, the trial judge held several
inquiries into what had taken place. The trial judge concluded that he had
jurisdiction to change the recorded verdict to “guilty as charged” and register
a conviction.
22
The issue at the heart of this appeal is whether a trial judge has
jurisdiction in a criminal trial to inquire into and possibly correct an error
in the verdict after the discharge of the jury, and if so, the extent to which
such jurisdiction exists. I conclude that such jurisdiction may exist in
certain unusual circumstances.
23
There are four possible outcomes of a jury trial:
(1) The jury renders the verdict that it
intended. The jury is discharged and the trial has concluded. This is the
usual result.
(2) The jury does not render the verdict it
intended. The jury is not yet discharged. The trial judge retains
jurisdiction to record the intended verdict.
(3) The jury does not render the verdict it
intended. The jury is discharged by the trial judge but, unlike the strict
rule in R. v. Head, [1986] 2 S.C.R. 684, the trial judge retains a
narrow post-discharge jurisdiction to recall the jury for the purposes of an
equally narrow inquiry into the alleged error, the focus of the inquiry being
whether there is a reasonable apprehension of bias. This jurisdiction to
recall the jury for an inquiry exists only for unintended errors; the trial
judge cannot recall the jury to make any changes to the verdict that require
further jury deliberation. If there is no reasonable apprehension of bias, the
trial judge can and should correct the erroneous verdict.
(4) The jury does not render the verdict it
intended. The jury is discharged, the trial judge recalls them for an inquiry,
and the inquiry establishes a reasonable apprehension of bias. Normally, such
an apprehension is only likely to arise where the jury has dispersed.
Dispersal of the jury means that the jury has ceased to operate as a single
unit, and has separated and mingled (or had the opportunity to mingle) with the
public. Dispersal is a crucial factor in determining whether or not there is a
reasonable apprehension of bias. If the trial judge concludes that there is a
reasonable apprehension of bias, the trial judge cannot record the intended
verdict, because the trial, in a manner of speaking, has reached the end of the
road. However, in order to prevent a miscarriage of justice, the trial judge
retains the ability to order a mistrial or to maintain the originally
communicated verdict.
24
This appeal falls within the fourth category, above. The jury had
mistakenly rendered an unintended verdict. The jury had been discharged and
had dispersed into the community for a lengthy period of time. The overall
circumstances establish that there was a reasonable apprehension of bias. The
duration of the jury’s dispersal is an important factor in finding a reasonable
apprehension of bias in this case. Given these circumstances the trial judge
ought to have ordered a mistrial, as maintaining the originally recorded
verdict would result in a miscarriage of justice. Therefore, I would allow the
appeal and order a new trial.
II. Facts
25
The appellant was charged with attempted murder. The charge stemmed
from events that took place on October 28, 1996, in which the appellant shot
Ian Francis. The dispute between the appellant and Francis concerned an unpaid
debt relating to a drug trafficking enterprise, in which Francis and the
appellant were joint partners. The appellant claimed the shooting was
done in self-defence. The trial was presided over by Minden J. of the Ontario
Court (General Division). The trial commenced on September 2, 1997. The jury
retired to consider its verdict on September 17.
26
On September 18, the foreman announced the verdict. The trial judge,
court registrar and both counsel heard “not guilty as charged”. The Crown
asked that the jury be polled. The court registrar did not repeat the verdict
to the jurors, but instead asked each juror if they agreed or disagreed with
the verdict as announced. This polling method was prescribed by a court
practice manual. All of the jurors stated that they agreed. The court
recorded a verdict of “not guilty”, and discharged the jury. The jury exited
the courtroom. Shortly thereafter the appellant was discharged and court was
adjourned at 2:55 p.m.
27
While escorting the jurors out of the courtroom, a court officer asked
the foreman what the jury’s verdict had been. In the presence of other jurors,
the foreman replied, “You’re kidding, guilty”. The jurors were then escorted
down a private elevator in order to exit the building. On the way back to her
office, the court officer heard that the verdict had been recorded as “not
guilty”. Within approximately seven to nine minutes after the announcement of
the verdict in court and the jury’s exit from the courtroom, the court officer
informed Minden J. in his chambers of the apparent error.
28
An effort was made to locate the jurors. The foreman and another juror
were found in the parking lot and brought back to the courthouse. The court
officer called the remaining jurors at their homes, but was unable to reach two
jurors. She asked one of the jurors on the phone “off the record” what the
verdict had been; the juror said guilty.
29
At 3:20 p.m., 25 minutes after the discharge of the appellant, court
resumed in order to clarify the verdict. This was the first of three
inquiries. The appellant was not present. Both counsel were present, as well
as the foreman and the other juror who had been found in the parking lot. The
foreman confirmed that the verdict was intended to be guilty. The other juror
was not asked to confirm the verdict. Minden J. stated that he had a head cold
and that he could have misunderstood the verdict as announced. Although he
thought he had heard “not guilty”, he acknowledged that there was “something
about it that was unusual”.
30
Minden J. reconvened court on September 19, 1997. The full jury was
present, but not the accused. Each of the jurors testified that their verdict
was “guilty”. The foreman testified that he sometimes stammered and also had a
soft tone of voice, but that he had said “guilty as charged”. The trial judge
concluded that he had jurisdiction to conduct a limited inquiry into what the
actual verdict was, and into whether the court had committed an error in
recording the verdict. He ordered the appellant to appear and issued a bench
warrant for his arrest. Court was adjourned until September 22, 1997. A
temporary publication ban was imposed.
31
Two articles describing the incident were published in two widely read
Toronto papers, the Star and the Sun. One article appeared on
September 19, 1997, and the other on September 22, 1997.
32
On September 23, court reconvened for the third and final time with both
the appellant and jury present. The court reporter was called to testify. The
transcript of the original proceedings reads as follows:
COURT REGISTRAR: How do you find for the accused, guilty or not guilty
as charged?
JURY FOREPERSON: (inaudible) guilty as charged.
The court
reporter stated that he originally recorded the foreman’s response as unclear.
When he replayed the tape at normal speed, he heard “guilty as charged”.
However when he played the tape again on more sophisticated audio equipment, he
heard “not guilty as charged” and was prepared to certify the verdict as such.
33
The jury was questioned. The foreman testified that he had cleared his
throat in announcing the verdict, and that he had in fact said “guilty as
charged”. He again stated that he was soft spoken, and that he had a tendency
to stammer when nervous. The trial judge asked the remaining 11 jurors
whether they heard the verdict when it was announced and if so, what they
heard. Most of the jurors testified that they had heard the verdict as it was
announced, and that they had heard “guilty”. One juror testified that she was
unable to hear the foreman as he announced the verdict. Another juror stated
that “as near as I could tell”, she heard the foreman say “guilty as charged”.
There was some variation among the jurors’ testimonies as to whether they heard
the foreman say “guilty as charged”, “guilty” of the offence of “first degree
murder”, “guilty of attempted murder”, or “guilty as accused”.
34
Counsel for the defence requested that he be permitted to cross-examine
the jurors in order to test their credibility and examine the possibility of
bias. The trial judge did not permit defence counsel’s cross-examination.
Instead, he asked each juror two questions regarding taint or bias:
1. Between the giving of your verdict last
Thursday afternoon and your testimony on Friday, was anything said to you by
anyone, either by family, friends, court officials, fellow jurors or anyone
else that influenced you so as to affect your testimony here in court?
2. Between the giving of your verdict last
Thursday afternoon and your testimony on Friday, did you read or hear anything
in the media that influenced you so as to affect your testimony here in court?
35
Two jurors testified that they had read or heard things in the media
about the case but had not been influenced. One juror started to allude to an
item he had heard in the media about the case, but was cut off by the trial
judge before he could give a complete answer. The remaining nine jurors
replied in the negative to both of the above questions. The inquiry ended on
September 24, 1997.
III. Judicial
History
36
Minden J. held that he had the jurisdiction to change the recorded
verdict from “not guilty” to “guilty as charged”. He considered the Supreme
Court decision in Head, supra, which if applied would result in
him being functus officio. Minden J. found that Head was
distinguishable from the present case, because “[t]he issue in Head was
whether or not a jury could be reconvened to vary or reconsider its ... verdict
after the jury had been discharged. . . . The issue here is:
what was the jury’s verdict and was an error made . . . in recording
that verdict?”
37
He found no air of reality to the suggestion that the jurors were or may
have been tainted between the time when the verdict was announced and the time
that the jurors were reconvened and testified the next morning. The jury’s
true and unanimous verdict was “guilty”. The mandate of a trial judge is to
accurately record the jury’s true verdict; the trial judge failed to follow his
mandate in this case. Therefore, the inaccurate recording of the verdict and
the discharge of the jury and accused constituted a “nullity”. Minden J.
recorded the verdict as “guilty” and registered a conviction. He sentenced the
appellant to 12½ year’s imprisonment.
38
Weiler J.A. (Simmons J.A. concurring) for the Court of Appeal for
Ontario dismissed the appeal: (2001), 53 O.R. (3d) 600. She concluded that
the rule in Head makes it clear that once the jury has been discharged,
it is too late to inquire into the nature of the verdict. This rule is based
on policy reasons such as protecting jurors from post-trial harassment,
encouraging open discussion in the jury room, and ensuring the finality of the
verdict. However, Weiler J.A. held, at para. 37, that although a judicial body
is normally functus officio once a jury has been discharged, sometimes a
“clerical mistake or error arising from an accidental slip or omission” can be
corrected. She concluded that the error in this case is an accidental slip.
She also concluded that Head does not govern this case. Head
dealt with an internal event, the jury’s deliberations, which are protected to
encourage free and frank debate by the jurors without fear of reprisal. Unlike
Head, the error in the present case was caused by events external to the
jury deliberations: what the foreman said in open court and what was heard by
the trial judge. As Head is distinguishable, its policy reasons were
not applicable to this case.
39
Goudge J.A. dissented. He would have allowed the appeal and restored
the originally recorded acquittal. Goudge J.A. disagreed with Weiler J.A.’s
conclusion that Head was inapplicable to this case. Both Head
and the present case were about whether, post-discharge, a jury can be
reconvened to determine the true nature of the verdict in order to correct an
error in the recording of the verdict. An approach which would permit an
inquiry into the true verdict in some cases would “inevitably encompass the
post-discharge contacts and experiences of jurors and the appearance of
possible outside influence that may arise as a consequence. The inquiry will
have to engage in the difficult task of evaluating that appearance” (para.
67). In contrast, the principle in Head eliminates any need for such
complex inquiries. He concluded, at para. 69, that although it may indeed be
that an “accidental slip” not requiring the recall of the jury can be corrected
post-discharge, that was not the case here.
IV. Issues
40
(a) Does a trial judge in a criminal case have jurisdiction to conduct
an inquiry into the verdict and alter the verdict after the discharge of the
jury?
(b) If the answer to (a) is “yes”,
what are the parameters guiding or limiting this post-discharge jurisdiction?
(c) If a trial judge has post-discharge
jurisdiction, what is the scope of the trial judge’s remedial jurisdiction?
(d) Did the trial judge in this case
err by correcting the verdict and entering a conviction?
V. Analysis
41
These reasons refer to a number of cases dealing with the reasonable
apprehension of bias. As the test for taint is the same, and for ease in
reading, the use of the term “bias” in these reasons can be interpreted as
raising the same issues as “taint”. Taint is in essence a form or subset of
bias. Taint and bias are intended here to be, and should be, interchangeable.
A. The
Rule in Head
42
The common law rule was enunciated by this Court in Head. There,
the trial judge mistakenly discharged the jury before they had delivered their
complete verdict. The foreman pronounced the accused not guilty of the charge
as laid. The jury was discharged. Immediately after discharge, the foreman
said: “we thought we could find the Defendant not guilty of the charge as laid,
but guilty of a lesser charge, is that right?” (Head, supra, at
p. 696). McIntyre J. for the majority of the Court found that, upon discharge
of the jury, the trial judge was functus officio and did not have the
jurisdiction to correct the verdict. He stated, at pp. 688-90:
On the return of the jury if a clear and
unambiguous verdict is given, it is the judge’s duty to accept the verdict and,
in accordance with the practice of his court, cause it to become a part of the
record of the court.
.
. .
Where, on the other hand, there is ambiguity in the
verdict . . ., the trial judge should inquire into the matter to ascertain the
true position . . . . The judge has the discretion in such a case to
accept a substituted or second verdict for the first one returned. This
discretion, however, is one which is to be exercised during the course of the
trial, that is, in the presence of the accused and his counsel, and prior to
the dissolution of the court by the discharge of the jury. . . . It is
clear, in my view, that the power or duty of the trial judge to intervene
when a jury verdict is returned and to make inquiries relating to the true
nature of the verdict is one to be exercised prior to the discharge of the jury .
. . . [Emphasis added.]
For the
majority in Head, discharge of the jury is the point of no return beyond
which the trial judge in a criminal case cannot alter the recorded verdict.
43
Lamer J. (as he then was) approached the issue differently in a
concurring opinion. He would have permitted a limited post-discharge
jurisdiction to inquire into and correct errors made in the conveying or
recording of the verdict, but no jurisdiction to correct errors that would
involve the jury reconsidering its verdict or completing its deliberations.
This approach had been used in civil but not criminal cases.
44
McIntyre J. disagreed with this position. He preferred to retain the
bright-line rule that there is no jurisdiction to inquire into the alleged
error and to alter the verdict post-discharge, regardless of the type or cause
of error. He correctly stated that there are different policy concerns
animating criminal law matters that are absent from civil matters, such as the
interests of the state and the general public in the outcome of a criminal case
(Head, supra, pp. 691-92). Although McIntyre J. did not go on to
specify other relevant policy concerns, the courts below in this case articulated
some of the policies animating the bright-line rule in Head, including:
preserving the finality of the verdict and the certainty of the trial process;
shielding jurors from post-trial harassment and promoting free and frank jury
discussions by protecting the secrecy of their deliberations; and preventing
the administration of justice from falling into disrepute by ensuring that the
jury is not biased. These different considerations warrant a more stringent
approach in the criminal law sphere.
45
The courts below held that Head was distinguishable from this
case. I do not agree. In both Head and this appeal, the juries
intended verdicts that were misunderstood by the trial judge. The jury in Head
was not reconsidering its verdict; they had already decided to find the accused
guilty on the included charge and not guilty on the charge as laid, and,
similar to this case, failed to make their intentions successfully known prior
to discharge. The internal-external distinction drawn by Weiler J.A. is
unclear. In both cases, the courts had to determine what the intended verdict
was, and in doing so, both courts had to inquire into what had been agreed upon
in the jury room. Therefore, the error in this case was as “internal” as that
in Head. Head cannot be distinguished from this appeal.
46
That being so, this appeal presents the Court with an opportunity to
revisit the rule articulated by McIntyre J. in light of the approach now used
in various common law jurisdictions. In my opinion, the common law rule in Head
must be reformulated. Otherwise, apparent absurdities might result. For
instance, where the error in recording the verdict is discovered immediately
after the discharge of the jury but before the jurors have left the jury box, Head
would say that the error could not be corrected.
47
I do not think that result can be right. Where the error is rapidly
discovered after discharge but prior to the jury having separated or dispersed,
many of the policy concerns supporting the rule in Head are not
engaged. If the error is discovered immediately after discharge, then it would
seem that the passage of time has been so slight that the finality of the
verdict is not a pressing concern. An immediate discovery of the error would
mean that the accused and the court could not have been under the illusion of
the incorrectly recorded verdict for very long. An error made only in
conveying or recording the verdict can be corrected without exposing the
deliberations of the jury to undue scrutiny and subjecting them to the risk of
post-trial harassment. If the jury has not dispersed beyond the jury box, then
there is no realistic possibility that outside influences have tainted the
jury. Thus, there is no danger to the administration of justice.
48
To the contrary, the administration of justice would be brought into
disrepute by barring the court from correcting a recorded verdict where there
is no perceptible injustice to the accused and no reasonable apprehension of
bias. See V. Maric, Annotation to R. v. Burke (2001), 41 C.R. (5th)
135, at pp. 136-37, where it was observed:
Such rigidity jeopardizes the integrity of the jury system since it
forces the court to tell the jurors that despite the fact that they have
dutifully carried out the oath that they had sworn to uphold by listening to
days of evidence and then rendering a unanimous and otherwise valid verdict,
their decision must be ignored. . . . [T]he interests of the
state and the general public would not be served . . . .
In those
circumstances, not only would the policy issues used to justify the standard in
Head not come into play, but the application of the rule in Head
to this specific situation would run contrary to one of its own underlying
policy concerns, namely the administration of justice.
49
If policy concerns animating the bright-line rule in Head are not
at risk in the hypothetical facts outlined above (at para. 47), then there is
no remaining rationale for prohibiting the trial judge from reconvening the
jury to inquire into the alleged error, and possibly altering the verdict in
those limited circumstances.
50
Head proposes a blanket approach that fails to respond to the
nuances of specific contexts. Errors can vary from the jury wanting to
reconsider its verdict, to a mere administrative slip, from the error being
discovered immediately, to where it is not revealed until several days later,
from the situation where the jurors have not yet stepped foot outside of the
jury box or courtroom, to where the jurors have gone home. It appears obvious
that an absolute rule with no exceptions is not attuned to modern, lengthy and
expensive jury trials. Lamer J.’s separate reasons in Head are more
responsive to variances in the facts noted above.
51
There is a wealth of authority supporting the adoption of a more refined
and flexible analysis of this sort of problem, similar to the contextual
approach suggested by Lamer J. The law in the United Kingdom has evolved
to permit the clarification of a verdict in rare circumstances, after the jury
has been discharged: R. v. Vodden (1853), Dears. 229, 169 E.R. 706; R.
v. Cefia (1979), 21 S.A.S.R. 171 (S.C.); R. v. Andrews (1985), 82
Cr. App. R. 148 (C.A.); R. v. Follen, [1994] Crim. L.R. 225
(C.A.); R. v. Loumoli, [1995] 2 N.Z.L.R. 656 (C.A.); R. v.
Maloney, [1996] 2 Cr. App. R. 303 (C.A.); R. v. Aylott,
[1996] 2 Cr. App. R. 169 (C.A.); R. v. Z.A., Eng. C.A., March 8, 1999,
unreported. Although American case law diverges widely on this issue, several
courts have held that in certain situations verdicts can be revisited after the
trial judge tells the jury that it is discharged: People v. Powell, 221
P.2d 117 (Cal. Dist. Ct. App. 1950); State v. Brandenburg, 120
A.2d 59 (N.J. County Ct. 1956); State v. Fornea, 140 So.2d 381 (La.
1962); Commonwealth v. Brown, 323 N.E.2d 902 (Mass. 1975); State v.
Edwards, 552 P.2d 1095 (Wash. Ct. App. 1976); Webber v. State, 652
S.W.2d 781 (Tex. Crim. App. 1983); Burchett v. Commonwealth, 734 S.W.2d
818 (Ky. Ct. App. 1987); People v. McNeeley, 575 N.E.2d 926 (Ill. App.
Ct. 1991); State v. Myers, 459 S.E.2d 304 (S.C. 1995); Montanez v.
People, 966 P.2d 1035 (Colo. 1998); State v. Green, 995 S.W.2d 591
(Tenn. Crim. App. 1999).
52
These cases affirm the same general rule used by this Court in Head,
i.e., that post-discharge, a trial judge is functus and has no authority
to alter a recorded verdict. However, the case law in these jurisdictions also
recognizes an exception to the general rule and permits a rare residual
jurisdiction to inquire into the proper verdict in limited circumstances. In
addition to the evolving jurisprudence, policy concerns warrant moving beyond Head
to develop an exception to the general rule. A movement away from the rigidity
of the Head rule is timely, given both the policy issues involved and
the bulk of modern case law on this point. In my opinion, although Head
forms the general rule that prohibits changes to a criminal verdict post-discharge,
we should not foreclose the possibility of a limited and exceptional
jurisdiction remaining with the trial judge to recall the jury for the purposes
of inquiring into the alleged error, which may result in correction of the
recorded verdict. The question then is under what circumstances should this
jurisdiction be exercised.
B. Post-Discharge
Jurisdiction to Conduct an Inquiry
53
The trial judge does not have the exceptional jurisdiction to inquire
into the alleged error post-discharge when the alleged error is of the type
such that its correction would involve the jury reconsidering its verdict or
completing its deliberations: Head, supra, per Lamer J.,
at pp. 702-3. This limited residual jurisdiction may only be exercised where
the errors do not “challenge the ‘validity’ of the verdict or the deliberation
or mental processes of the jurors”: Martin v. State, 732 So.2d 847
(Miss. 1998), at p. 851. The rationale is that, once the jury has delivered
its verdict, it should not be permitted to change its mind. If the error
requires the jury post-discharge to reconsider its earlier conclusion or
continue its cogitations on the matter, the error cannot be corrected, because
the trial process has concluded and the judge is functus officio.
54
It is only where the error does not engage the deliberations of the jury
that the exceptional jurisdiction may be exercised. It is unwise to
characterize these types of errors as “clerical errors” or “accidental slips”,
given the vague meaning of these terms. “Clerical errors” or “accidental
slips”, as those terms are commonly understood, are administrative and may be
corrected by the judge without recalling the jury: United States v. Dotson,
817 F.2d 1127 (5th Cir. 1987), modified upon rehearing 821 F.2d 1034 (5th Cir.
1987); Bricmont v. Mathieu (1987), 7 Q.A.C. 199, and Chandler v.
Alberta Association of Architects, [1989] 2 S.C.R. 848. These slips would
be minor, such as correcting dates and duties of a similar nature. However,
the error in the present appeal and similar cases necessitates a recall of the
jury in order to confirm the true and unanimous verdict and the discrepancy
with the announced and recorded verdict. Therefore, rather than use the label
“clerical error”, it is preferable to say that the exceptional post-discharge
jurisdiction can only be exercised where the correction of the error, although
it requires the presence of the jury, does not require the jury to reconsider
its verdict or complete its deliberations with a view to handing down
additional verdicts: Head, supra, per Lamer J., at pp.
702-3.
55
If an irregularity has been detected and the jury has been discharged,
the first question a trial judge should ask is whether the nature of the error
is such that it would involve the jury reconsidering its verdict or completing
its deliberations. If yes, then the general rule in Head applies and
the trial judge is functus officio. If no, the trial judge has a narrow
and exceptional jurisdiction to recall the jury for the purposes of inquiring
into the alleged error.
C. The
Nature of the Inquiry and its Limitations
56
If it is concluded that the error does not require reconsideration of
the verdict by the jury, the trial judge has an exceptional jurisdiction to
recall the jury for the purposes of conducting an inquiry. However, it remains
to be determined whether the trial judge has remedial jurisdiction to
change the originally recorded verdict. In some cases, it may simply be too
late to change the verdict, even though the error does not involve
reconsideration of the verdict. What then is the appropriate cutoff point
beyond which the verdict cannot be altered? The post-discharge inquiry
determines this cutoff point.
57
In the courts that permit post-discharge alteration of a verdict, the
most common rule is to preclude clarification and correction of the verdict
once the jurors have dispersed. The case law expresses its concern with
dispersal in various ways, focussing at some times on whether the jurors have
“separat[ed] from the presence and control of the trial court” and at others on
the “opportunity for outside contact or influence”: Green, supra,
at pp. 609 and 612.
58
Some courts have taken a rigid stand on dispersal, and concluded that
even the briefest exit from the courtroom eliminates any possibility of
changing the verdict: Brandenburg, supra; People v. Rushin,
194 N.W.2d 718 (Mich. Ct. App. 1971). For instance, in Green, supra,
the jury was reassembled 58 seconds after their discharge; it was held to be too
late for the trial judge to correct the verdict. This appears to me to be too
narrow and rigid an approach to defining the circumstances under which the
remedial jurisdiction to correct the verdict exists. If the “discharge” rule
in Head is to be varied, it would make no sense to replace that
inflexible test with one of equal rigidity.
59
In addition, there may be circumstances where it would be inappropriate
for the trial judge to correct the verdict, even though the jury has not yet
dispersed or separated. For instance, a discharged jury which has not yet
left the jury box could be influenced or tainted by the strong reactions of the
accused or the public gallery to the initially announced verdict (see Follen,
supra). Therefore, as other factors impinge on whether the recorded
verdict should be corrected, it seems that dispersal cannot be the sole
determinative test for the trial judge’s remedial jurisdiction to correct the
verdict.
60
The appropriate cutoff point beyond which the verdict cannot be
corrected is found in the rationale underlying the “dispersal” case law. The
reason for using dispersal as the outside limit is that once the jurors have
dispersed, they are no longer functioning as a single, cohesive unit, and are
exposed to outside contacts which may reasonably raise the apprehension of
bias. The jury’s dispersal is relevant only insofar as it establishes the
presence or absence of the reasonable apprehension of bias. Logically, if the
jurors have left the controlled courtroom environment, then the more time that
has passed between the announcement of the verdict and the reconvening of the
jury, the more convincing the argument becomes for establishing a reasonable
apprehension of bias. Similarly, “reasonable apprehension of bias” is the test
used by trial judges in deciding whether to discharge a juror (s. 644(1) of the
Criminal Code, R.S.C. 1985, c. C-46 ; R. v. Budai (2001), 154
C.C.C. (3d) 289, 2001 BCCA 349), and in determining whether there has been
improper contact between a sequestered jury and the outside world (s. 647(1)
and (2) of the Criminal Code ; R. v. Cameron (1991), 64 C.C.C.
(3d) 96 (Ont. C.A.), leave to appeal refused, [1991] 3 S.C.R. x). In my
opinion, if the dominant consideration driving the “dispersal” case law, the
law on sequestering and the law on the discharge of jurors is the fear of a
tainted or biased jury, or the appearance of unfairness, then this driving
consideration should form the relevant test for the trial judge’s
post-discharge jurisdiction to reconvene the jury and inquire into the alleged
error.
61
The appropriate post-discharge inquiry into an alleged error is
“reasonable apprehension of bias”. In determining whether this apprehension
exists, the trial judge should examine the circumstances of the individual
case. This contextual approach has a basis in the English case of Andrews,
supra, at p. 154:
[T]he judge has a discretion whether to allow the alteration [to the
verdict] to be made. In exercising that discretion he will, it goes without
saying, take into account all the circumstances of the case; in particular the
important considerations will be the length of time which has elapsed between
the original verdict and the moment when the jury express their wish to alter it,
the probable reason for the initial mistake, the necessity to ensure that
justice is done not only to the defendant but also to the prosecution. The
fact that the defendant has been discharged from custody is one of the factors
but is not necessarily fatal to the judge’s discretion to alter the verdict to
one of guilty.
As stated in R.
v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11, the precise phrasing of the
test is not crucial, if the substance is plain. It is interchangeably
expressed as a “reasonable apprehension”, “real likelihood” or “real danger” of
bias, a “reasonable suspicion” of prejudice or taint, and so forth. Whatever
the exact formulation of the test, the essence of the inquiry is the same;
namely, the test is “what would an informed person, viewing the matter
realistically and practically — and having thought the matter through —
conclude”: Committee for Justice and Liberty v. National Energy Board,
[1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.
62
The list of factors in Andrews does not purport to be
exhaustive. All circumstances relevant to determining reasonable apprehension
of bias in an individual case should be considered. By way of illustration, a
trial judge may wish to consider whether the jury was exposed to an immediate
and strong reaction to the recorded verdict by the public (as in Follen,
supra) and/or the media.
63
Although the above-listed factors may be useful to take into account, I
think that in many cases a significant element in establishing reasonable
apprehension is dispersal. It is very important for the trial judge to examine
the nature and extent of the jury’s dispersal. How much dispersal has
occurred? Did the jury merely step back into the jury room, which is not
accessible to the public? Or did the jury leave the courthouse and enter
public spaces? The trial judge should take care to examine the length of time
during which the jury was separated, because obviously the jury’s absence from
the courtroom for a few seconds or minutes is often less indicative of a
reasonable apprehension of bias, as compared to a more extended absence. If a
jury has dispersed for a relatively lengthy period of time, such as several
days, I would think that a trial judge would almost always conclude that this
extensive degree of dispersal would raise a reasonable apprehension of bias.
In my opinion, the evidence on dispersal will in many cases provide the most
compelling evidence on which the reasonable apprehension of bias determination
will turn. Dispersal may often be the linchpin of the reasonable apprehension
of bias test.
64
Dispersal may in some cases be reparable but in the circumstances of
this case, the wide media coverage and the public statements that it was
“scary” that the judge could acquit the accused and then “change his mind”, and
that the process was “a joke” (infra, at para. 84) is some evidence that
the legal process was unsatisfactory. The public confidence in the jury system
would be diminished and undermined by these circumstances.
65
As the test is the reasonable apprehension of bias, the concern
in determining whether there has been dispersal is not whether there has been
the opportunity for momentary outside influence, but whether there is a reasonable
apprehension of bias. Similar to judges, juries should be presumed to be
impartial. There are numerous procedural safeguards designed to ensure the
impartiality of jurors (R. v. Barrow, [1987] 2 S.C.R. 694, at p. 714).
Section 647(1) of the Criminal Code ensures that the jury remains
sequestered, stating that the trial judge can permit the jury to separate only prior
to entering deliberations and rendering the verdict. Section 647(4)
contemplates a mistrial if this rule is violated. In addition, there are other
safeguards, such as jury selection, the process that requires jurors to swear
an oath to give a true verdict according to the evidence, and the judge’s
instructions in the form of his or her charge to the jury.
66
As a result, the presumption of impartiality should not be displaced by
the slightest suspicion of outside influence. As an allegation of bias or
outside contact calls into question the entire integrity of the jury and the
overall administration of justice, the impartiality of the jury should only be
impugned where on the evidence there is a reasonable apprehension of this
bias. The same standard also applies to judges or administrative tribunals
when there are allegations of bias: S. (R.D.), supra, at paras.
109-15. Courts should be reluctant when presented with a whisper of bias to
immediately conclude that the system ensuring impartial decisions has failed;
consequently, we should not be quick to find a biased jury unless there is
evidence to support a reasonable apprehension of the allegation.
67
Along those lines, the nature of the post-discharge inquiry into the
alleged error does not require proof of actual bias of the jury. The test is
“reasonable apprehension of bias”, not a “certainty of bias”. Not only
are there practical concerns about the difficulty of ever being able to prove
actual bias, but it is also unnecessary to say that it is important to maintain
a high degree of public confidence in the integrity of the criminal justice
system. Actual bias is not the appropriate test. Instead we should look
again, albeit unimaginatively, to Lord Hewart’s famous admonition that it “is
of fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done”: R. v. Sussex Justices, Ex parte
McCarthy, [1924] 1 K.B. 256, at p. 259.
68
In summary, the jurisprudence has shifted since Head. The
general rule has been that after the jury in a criminal trial has been
discharged, the trial judge is functus officio and lacks jurisdiction to
reconvene the jury and inquire into the alleged error in the verdict.
69
However, an exception to the general rule exists where the error is one
that does not require the jury to reconsider the verdict or continue its
deliberations with a view to handing down additional verdicts; there the trial
judge retains the limited jurisdiction to recall the jury and conduct a narrow
inquiry into the alleged error. This type of error has sometimes been called
“clerical”, but given the mixed meanings of such phrases as “clerical error” or
“accidental slip”, the description is inadequate.
70
The first question that a trial judge must ask post-discharge is whether
the error is one that requires reconsideration of the verdict. If it requires
redeliberation of the verdict, there are no circumstances under which the judge
will retain or otherwise possess jurisdiction to reconvene the jury and conduct
an inquiry into the alleged error. The trial has concluded and the jury’s
function is finished. The jury is not then permitted to change its mind. If
the error does not require the jury to reconsider its verdict, then the trial
judge possesses jurisdiction to conduct an inquiry, the nature of the inquiry
being whether the facts of the case disclose a reasonable apprehension of
bias. In determining whether this apprehension is raised, the trial judge must
consider all of the relevant circumstances of the case, an important
circumstance usually being the dispersal of the jury and its probable effect on
the minds of reasonable members of the public. If the facts disclose a
reasonable apprehension of bias, the trial judge’s remedial jurisdiction is
necessarily limited, such that the trial judge cannot alter the originally
recorded verdict. The scope of the trial judge’s remedial jurisdiction is
discussed in detail in the next section.
D. Remedial
Jurisdiction of the Trial Judge
71
As in some cases a trial judge may possess a residual jurisdiction to
conduct an inquiry into the verdict post-discharge, it is logical that there
exists a concomitant remedial jurisdiction. The question is the content of
this remedial jurisdiction.
72
In my opinion, the trial judge is, as is frequently the case, in the
best position to select the appropriate remedy based on the particular
circumstances of the case. Having seen the trial through to the discharge of
the jury, the trial judge is in a superior position vis-à-vis appellate
courts to determine the probable reason for the error and to assess the
resulting damage, if any. The trial judge should have the discretion to settle
upon the proper remedy for the irregularity that occurred under his or her
supervision.
73
The trial judge must of course be aware of the policies animating the
general rule of “discharge is too late” and the rule permitting exceptional
jurisdiction to inquire into certain errors. If the trial judge concludes
that, in the circumstances, there exists a reasonable apprehension of bias, then
he or she cannot correct the verdict because in order to reach that conclusion
the trial judge has found that the jury has ceased to function as a single,
cohesive unit, resulting in potential exposure to outside influence. To
attempt to correct the verdict in the face of a reasonable apprehension or
perception by the public that the system is biased or prejudiced is not
allowed.
74
However, a conclusion that there is a reasonable apprehension of bias
does not mean that the verdict as originally announced must always stand.
Where the trial judge has concluded that the apprehension is raised and, on
these circumstances, the verdict cannot be corrected, the trial judge retains
the remedial jurisdiction and has the discretion to declare a mistrial. There
are broad common law powers to declare a mistrial. Mistrials have been ordered
or considered as a potential solution in a range of situations: where a jury
member is discharged (R. v. Taillefer (1995), 40 C.R. (4th) 287 (Que.
C.A.), leave to appeal refused, [1996] 1 S.C.R. x; and R. v. Lessard
(1992), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205 (C.A.), leave to appeal refused,
[1992] 3 S.C.R. vii); where inadmissible evidence is adduced during trial which
might influence the jury (R. v. Woods (1989), 49 C.C.C. (3d) 20 (Ont.
C.A.), leave to appeal refused, [1990] 2 S.C.R. xii); where there is
inadmissible communication between a witness and a juror causing prejudice (R.
v. Martineau (1986), 33 C.C.C. (3d) 573 (Que. C.A.)); where disclosure is made
immediately prior to or during the trial (R. v. Antinello (1995), 97
C.C.C. (3d) 126 (Alta. C.A.); R. v. T. (L.A.) (1993), 84 C.C.C. (3d) 90
(Ont. C.A.)); and where the jury had already rendered a verdict but had not
decided on the issue of mental disorder, making it impossible for the judge to
enter the intended conviction without “taint” (R. v. Rondeau, [1998]
O.J. No. 5759 (QL) (Gen. Div.)). The common theme running through this case
law is the test of whether there is a [translation]
“real danger” of prejudice to the accused or danger of a miscarriage of
justice: Lessard, supra, at p. 562 C.C.C.
75
In declaring a mistrial, the trial judge therefore turns his or her mind
to the question of whether a mistrial is needed to prevent a miscarriage of
justice. This determination will necessarily involve an examination of the
surrounding circumstances. Injustice to the accused is of particular concern,
given that the state with all its resources acts as the singular antagonist of
the individual accused in a criminal case. This factor should be balanced
against other relevant factors, such as the seriousness of the offence,
protection of the public and bringing the guilty to justice. It may be fitting
to allow the announced verdict to stand where the period the accused has been
at liberty and under the mistaken impression that he or she had been acquitted
has been lengthy, and where the charge is not so egregious as to bring the
administration of justice into disrepute. As has already been stated, the
trial judge is in the best position to assess the circumstances of each
individual case and select the most appropriate remedy.
76
Where, however, the trial judge concludes that, on the facts, a
reasonable apprehension of bias is not raised, then the trial judge can and
should correct the error and register the proper verdict. It is difficult to
think that a mistrial would be available in those circumstances. There is no
need to declare a mistrial where the trial judge has retained jurisdiction, if the
fear of the reasonable apprehension is not engaged. Declaring a mistrial may
lead to a new trial. Given the time, cost and resources expended on new
trials, where a trial judge has found no reasonable apprehension of bias,
simply correcting the error is a more efficient and fair result, without any
prejudice to the accused or the state.
77
In summary, where the trial judge concludes, post-discharge, that the
facts raise a reasonable apprehension of bias, then the trial judge should
declare a mistrial, if that is the necessary remedy to prevent a miscarriage of
justice. In making that order, the trial judge considers the rights of the
accused, the public, and the effect of not ordering a mistrial on the
administration of justice. On the other hand, if a mistrial is not necessary
to prevent a miscarriage of justice, then the trial judge should uphold the
verdict as given at trial. Where, however, the trial judge concludes that
there is no reasonable apprehension of bias, the trial judge must correct the
error in the verdict; a mistrial is not available as a remedy.
E. Application
to this Appeal
78
Before commencing an analysis of the substance of the appeal, I observe,
as an aside, that the method of polling prescribed in the court practice manual
and used in this case was flawed. Polling the jury is an optional safeguard
designed to ensure the true unanimity of the verdict. Merely asking the jurors
to assent or dissent with “the verdict as announced” does not ensure that each
juror actively confirms the verdict and the unanimity of the verdict. Where
polling is requested, the procedure for polling should be for the court clerk
to ask each juror to repeat the verdict that the foreman has announced, or for
the court clerk to repeat the verdict to each juror and ask if he or she
agrees.
79
Applying the principles outlined above to the facts of this case, the
appeal should be allowed, and a new trial ordered. The general rule is that,
post-discharge, a trial judge in a criminal matter is functus officio
and does not have jurisdiction to conduct an inquiry into the alleged
irregularity. However, the present case falls within the exception to the
general rule. Namely, the error at issue in this case is one that, while
necessitating the recall of the jury, does not involve the jury reconsidering
its verdict. The alleged error in this case lay in the faulty transmission and
recording of the verdict, rather than in the deliberations leading to the
verdict. A residual jurisdiction to inquire into the irregularity exists where
the error in question did not involve recalling the jury to continue or
complete its deliberations.
80
As the error in this case is one that does not involve reconsideration
or redeliberation of the verdict, the trial judge had post-discharge
jurisdiction to conduct an inquiry into the alleged error. However, the trial
judge did not conduct the proper inquiry. As I concluded above, the nature of
the inquiry is directed to whether there is a reasonable apprehension of bias.
The trial judge instead conducted an actual bias test. Furthermore, an
assessment of the relevant circumstances by applying the contextual analysis
outlined above (at paras. 60-66) leads me to conclude that the apprehension of
bias is raised in this case. In particular, the extent of the jury’s dispersal
provides the most compelling evidence establishing a reasonable apprehension of
bias.
81
A careful analysis of the relevant circumstances of this case supports
the conclusion that a reasonable apprehension of bias was raised. First, the
length of time which elapsed between the delivery of the recorded verdict and
the point at which the jury was reconvened was substantial. Although a court
officer discovered the potential error soon after the delivery of the original
verdict, the jury was not reassembled as a single entity until the next day.
Second, the accused Burke was discharged from custody.
82
Third, and perhaps most telling, the nature and the scope of the jury’s
dispersal in this case was extensive. This was not a case where the jurors had
momentarily separated, or where the jury had not strayed outside of or far from
the courtroom, as in Aylott, supra, Brandenburg, supra,
Edwards, supra, and Webber, supra. Instead, by the
time the court had discovered the error, the entire jury had left the
courtroom, and some had left the courthouse. The jurors were free until the
next day to mingle with members of the public. Two jurors were found in the
courthouse parking lot. The other ten had left the vicinity of the courthouse,
and gone home or elsewhere. Only eight of these jurors were contacted directly,
when the court officer telephoned them at home later that day. The whereabouts
of two of the jurors that day remains unknown, because the court officer making
the phone calls could not reach them. The jury was not together as a cohesive
unit until the next day when, in the absence of the accused, they confirmed the
guilty verdict. The combined circumstances indicate that the nature of the
dispersal in this case was wide and uncontrolled. The relatively extensive
degree of separation of the jurors in this case is evidence capable of
establishing a reasonable apprehension of bias.
83
Other circumstances also shed light on the nature and extent of the
jury’s dispersal. Although the foreman confirmed the verdict at the first
inquiry, the other juror found in the parking lot was not then questioned as to
the intended verdict. He was simply told to return the next day. In addition,
when the court officer called the jurors at their homes, she did not have a
prepared response to the jurors’ questions about why they were being asked to
return to the courtroom the next day. She asked one of the jurors on the phone
“off the record” what the verdict had been. During polling, one juror assented
to the verdict although she later testified that she had not heard the verdict
as announced. There is evidence that defence counsel had spoken with two of the
jurors in the hallway after the jury was discharged. Two constables at the
court had discussed the verdict with the foreman and another juror before escorting
them back to the courthouse for the first inquiry.
84
Fourth, not only were the jurors exposed to the reaction of the public
to the recorded verdict during the period when they were absent from the
courtroom, but they would also have been exposed to the potentially prejudicial
media coverage of this case which appeared before and after the temporary
publication ban. The police issued a press release explaining what had
occurred and citing the reason for the error. Two newspaper articles were also
published, one dated the day of the second inquiry. This article was quite
likely available that morning, before the jurors confirmed their intended
verdict. Indeed there was a possibility that there were media reports of the
incident the night prior to the September 19 inquiry. For instance, juror
number one testified on September 19, that he had “information” that the
incident “has already been leaked to the press this morning or last night”.
The second article was dated the day that the third and final inquiry began.
The report described the joyous reaction of the accused to the verdict as
announced, which he thought was “not guilty”, and also referred to “news
reports” that the accused had “bolt[ed]” from the courtroom. The articles called
the inquiries conducted by the trial judge “unprecedented” and quoted the
defence counsel as saying that it is “scary” that the judge could acquit the
accused and then “change his mind”. One article also quoted a police source
calling the whole incident “a joke”.
85
While the trial judge concluded that there was no “air of reality” to
the proposition that there was or may have been bias or taint, his conclusion
was, with respect, incomplete and resulted in an error of law. The inquiry he
conducted did not constitute a full and proper investigation of the reasonable
apprehension of bias. It is true that all of the jurors testified that no one
had said anything to them during their dispersal that influenced their
testimony on the verdict. Two jurors testified that they had read and heard
things in the media but that they were not influenced by them. One juror
started to allude to something he had heard in the media but was prevented by
the trial judge from completing his testimony on that point.
86
Although the jurors all testified that they had not been influenced by
anything in the media or by any conversations with the public, their testimony,
as elicited, is of little use. As previously stated, the relevant inquiry is
not whether the jurors were actually biased, but whether there was a
reasonable apprehension in the minds of right-thinking, properly informed
members of the public that the jurors might have been biased or influenced. As
has already been stated, in applying the reasonable apprehension of bias test,
the trial judge should consider all factors that might lead to the apprehension
of bias. Of necessity, the most significant consideration will be the length
of time that the jury has been dispersed. In order to maintain the confidence
of the public in the important function of the jury, its verdict must be
unanimous and bring finality to the trial.
87
While the trial judge is in most cases in the best position to assess
the consequences of the length of dispersal and other relevant factors, he or
she must be careful not to apply a subjective test. An example of the
potential mischief created by the subjective test is where the recorded
verdict is corrected weeks or months after the jury has been allowed to
separate. In my opinion, the period of separation does not have to be very
long before the public would grow uneasy about the efficacy of the jury system,
and the apprehension of bias then arises.
88
I think the present appeal amply illustrates this point. The trial
judge concluded that there was no apprehension of taint or bias. He did not
consider the nature of the dispersal in this case. The jury had gone their
separate ways in the large metropolitan areas of Toronto; they were potentially
exposed to a great amount of media coverage. While it is true that each juror
may correctly have believed they had not been influenced or tainted, the
inquiry should not end there. The question the trial judge should have asked
himself is not whether any juror felt tainted, but rather would a reasonably
informed person conclude that in the period of dispersal spanning two days, the
apprehension of bias could occur. Instead, the trial judge’s question of “Did you
read or hear anything that influenced you?” was essentially asking the jury
member to come to their own conclusion about whether he or she was biased. A
jury member faced with that question could have thought that although he had
read the news reports and spoken with his neighbours about the case, he did not
think that they had influenced him. Therefore, he would answer “no” to the
question.
89
In short, we do not know how many of the jurors actually spoke with
people about the case, or how many of the jurors read or heard reactions or
items in the news about the case, because the judge’s style of questioning
permitted the jurors to draw the conclusions themselves about whether they were
influenced. The trial judge should not have left the jurors to perform
internal evaluations on bias. Jurors do not know the legal test of reasonable
apprehension of taint. A juror is not responsible for canvassing what he has
heard or read in the media, and then conducting the legal inquiry of whether a reasonable
person would conclude that there was bias. A juror is not in a position where
he can detach himself and objectively conclude that he was not biased, even
though he, the juror, adamantly and honestly believed that he himself was not
biased. Rather, this legal test is something that the trial judge is
responsible for applying, and failed to do in this case, because he focussed
solely on whether the jurors were actually influenced, rather
than on the correct question, which is whether a reasonable person would
apprehend influence. The distinction is significant, for it demarcates the
difference between an actual bias inquiry and a reasonable apprehension of bias
inquiry. The reasonable apprehension of bias inquiry is much less forgiving,
for justice must manifestly be perceived to have been done.
90
A preferable way to conduct the inquiry about reasonable apprehension of
bias would have been for the trial judge to ask whether the juror read or heard
anything in the media or spoke to anyone about the case, rather than whether
they had read anything that had influenced them. This is desirable because it
establishes the existence of any media coverage, and places the trial judge in
a position to assess the credibility of the jurors regarding potential bias,
rather than requiring the juror to do it for him- or herself. Indeed, in some
cases the trial judge may not even need to ask the jurors themselves if they
have read or heard anything in the media or spoken to anyone, if the press
coverage of the case has been particularly prominent. As it stands in this
case, although we know that at least two and possibly three jurors heard things
in the media about the case, we do not know if any other jurors were exposed to
reactions by the public and the media. Given the inflammatory nature of the
news reporting, which at least a few of the jurors admitted to having read, and
the fact that the jurors were separated for almost 24 hours and had the
opportunity to mingle with the public, in my opinion, the evidence supports a
finding of a reasonable apprehension of bias.
91
The error in this case is such that it was not a matter of the jury
reconsidering its verdict or completing their deliberations. Therefore, the
trial judge had post-discharge jurisdiction to reconvene the jury and conduct a
limited inquiry into the alleged error. However, the trial judge in this case
did not conduct the proper and relevant inquiry, namely whether there was a
reasonable apprehension of bias. Given the combination of circumstances in
this case, there is in my opinion no question that the facts, particularly the
jury’s extensive and extended dispersal, establish a reasonable apprehension of
bias. As a result, the trial judge did not have remedial jurisdiction to
correct the verdict. He was, therefore, in error when he changed the verdict
and registered a conviction. The only two remedies available to the trial
judge, given that the facts of this case disclosed a reasonable apprehension of
bias, were to let the original acquittal stand, or to declare a mistrial.
92
The appropriate remedy in these circumstances would have been for the
trial judge to use the broad common law power to declare a mistrial. A
mistrial is necessary to prevent a miscarriage of justice. It is not an
injustice to the accused in these circumstances to declare a mistrial and order
a new trial. While the accused was discharged, he was notified of the error by
his defence counsel the same day that he was mistakenly acquitted. The time of
the notification will have some effect in the period he was at liberty. It is
obvious that being notified immediately imposes minimal harm as opposed to
being notified days or weeks later. The assessment of the effect of the time
the accused was at liberty is one more factor that should be left to the trial
judge.
93
There is no doubt that the public would wonder what had happened to the
administration of justice in this case. A verdict of not guilty had been
announced, the accused was released, the jury discharged, and left to mingle
with the community and wander the streets of one of Canada's largest
metropolitan areas, where they were subject to media comments and questions
from the curious. This uncertainty as to what had transpired continued on and
off for two days. Then, inexplicably, to the public at least, there were three
additional hearings, one of which was held in the absence of the accused. The
most natural impression would be that something had gone wrong. This is an
impression that should not be left with the public, as it would erode public
faith in the jury and in the general propriety of criminal verdicts. The
clumsy sequence of events in this case cannot help but result in confusion in
the community, as well as skepticism about the efficacy of the jury system.
The importance of the public's confidence in the Canadian jury system and in
the administration of justice cannot be overstated. This public trust, respect
and acceptance if eroded will be at great cost to the effective operation of
the criminal justice system. Therefore, the acknowledgment of the errors in
this case and the order for a new trial will hopefully assuage these concerns
and go towards restoring public confidence in our jurisprudence and in the
function of the jury in particular. The memory of recent miscarriages of
justice suffered by David Milgaard, Donald Marshall and Guy Paul Morin, to name
only three, have raised concerns about the efficacy of our system, where years
after conviction and imprisonment of an accused, the convicted person has been
cleared of the crime. A truncated proceeding such as that which occurred here
will only heighten that concern.
94
The appeal is allowed and a new trial is ordered.
The following are the reasons delivered by
95
Arbour J. — The central
issue in this appeal is whether a trial judge has jurisdiction to correct an
error in the recording of a jury’s verdict after the jury has been discharged.
This involves, in turn, the preliminary question of whether the trial judge even
has jurisdiction to inquire into the verdict to determine if it was correctly
recorded. I agree with my colleague Major J. that jurisdiction to inquire into
and correct an error exists. However, I find that this jurisdiction is based
on the fact that in such a case the trial has not, contrary to appearances,
been properly concluded.
96
The common law rule that after the discharge of the jury the trial judge
lacks jurisdiction to alter a recorded verdict was enunciated by this Court in R.
v. Head, [1986] 2 S.C.R. 684. McIntyre J., for the majority of the Court,
held that the trial judge only had the power to make inquiries relating to the
true nature of the verdict prior to the discharge of the jury. Once the jury
was discharged, the court lacked jurisdiction to make any correction of the
recorded verdict. The Court concluded that once the jury has been discharged,
the trial court is functus (p. 694).
97
I agree with Major J. that Head cannot be distinguished from this
appeal. I also agree that this is an appropriate case in which to re-examine
the rule in Head and formulate a new rule that better accommodates the
various interests and policy concerns at stake.
98
In Head, discharge was the point after which it was “too late” to
alter or amend a recorded verdict because the Court was focussed on
jurisdiction. Major J. does not address directly this jurisdictional concern
that plagued the Court in Head. Rather, he identifies a rare residual
jurisdiction remaining with a trial judge to conduct an inquiry into the jury’s
intended verdict and possibly correct an error post-discharge, provided it is
not necessary for the jury to reconsider its verdict or deliberate further.
This exceptional residual jurisdiction is to be exercised only when there is no
reasonable apprehension of taint or bias of the jury.
99
In the normal course of a trial, jurors are sequestered once they begin
their deliberations until they return a verdict: s. 647 of the Criminal
Code, R.S.C. 1985, c. C-46 . I believe that this case is best characterized
within this context. The jury in this appeal communicated its intended verdict
to the court. The court recorded a different verdict. It was brought to the
trial judge’s attention that an incorrect verdict might have been recorded. It
is the duty of the trial judge to ensure that the court records the intended
verdict of the jury upon its return from deliberations (Head, supra,
at p. 688). A verdict other than the intended unanimous verdict of the jury is
a nullity. If the trial judge has a reasonable concern that the verdict might
be a nullity, the trial should resume as if the verdict had not been rendered.
The trial judge should determine whether the recorded verdict was in fact null
and void and if not, the verdict should stand. If the trial judge concludes
that the recorded verdict was a nullity, he or she should set it aside and the
trial should resume. In such a case, the provisions of s. 647 of the Code
come into play and the question is whether a jury which should have remained
sequestered has dispersed, and if so, what the consequences of dispersal ought
to be. In these circumstances, I agree that the appropriate test is, as
enunciated by Major J., “reasonable apprehension” of taint or bias. If the
trial judge determines that there is no reasonable apprehension of bias, then
there is no perceived threat to the impartiality of the jury and the jury is in
the same position as it was in prior to the court recording the verdict.
100
Under this approach, I would conclude, contrary to Major J., that, if
there is no reasonable apprehension of bias, the jury is free to continue
deliberations if necessary. Assume, for example, that there is a trial on an
indictment containing two counts of murder. The jury returns a verdict in
count one and finds the accused not guilty. However, nothing is said by anyone
about count two involving a different victim. Before the jury is discharged,
it is clear that the trial judge may ask the jury whether they have a verdict
on count two. If the jury indicates that they simply forgot to deliberate on
count two, there is no impediment to sending them back to continue their
deliberations on that count. I see no difference if the same scenario were to
occur after the jury has been discharged but prior to the point in time at
which there is a reasonable apprehension of bias or taint. In such a case, I
would see no impediment, in principle, to asking the jury to resume
deliberations on count two. In other words, the critical moment should be the
point at which there is a reasonable apprehension of bias, as identified by my
colleague, and not the jury’s discharge.
101
When the trial judge finds that there has been a reasonable apprehension
of bias, the situation is the same as if the jury had not remained properly
sequestered pending the completion of its deliberations and the rendering of
its verdict. In such a case, the trial judge’s only option is to declare a
mistrial and to order a new trial “on such terms as justice may require” (s.
647(4)(b) of the Code).
102
I concur with the conclusion of Major J. that, in this case, the extent
of the jury’s dispersal established a reasonable apprehension of bias and that
the appropriate remedy is to order a new trial.
Appeal allowed, McLachlin
C.J. and L’Heureux-Dubé,
Gonthier and Bastarache JJ. dissenting.
Solicitors for the appellant: Pinkofsky Lockyer, Toronto.
Solicitor for the respondent: The Attorney General for Ontario,
Toronto.