R. v. Pan; R. v. Sawyer, [2001]
2 S.C.R. 344, 2001 SCC 42
Rui Wen Pan Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney
General of Quebec, the Attorney General of Manitoba,
the Attorney General of British Columbia and
the Criminal Lawyers’ Association (Ontario) Interveners
and between
Bradley Sawyer Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney
General of Quebec, the Attorney General of Manitoba,
the Attorney General of British Columbia and
the Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Pan; R. v. Sawyer
Neutral citation: 2001 SCC 42.
File Nos.: 27424, 27277.
2000: December 8; 2001: June 29.
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
Constitutional law –
Charter of Rights – Fundamental justice – Whether common law rule of jury secrecy and Criminal Code
prohibition on disclosure of information about “proceedings of the jury”
consistent with principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649 .
Criminal law –
Juries – Rule of jury secrecy – Common law rule of jury secrecy providing that evidence concerning
jury deliberations is inadmissible on appeal to impeach jury’s verdict – Whether common law rule of jury secrecy constitutional – Canadian Charter of Rights and Freedoms, s. 7 .
Criminal law –
Juries – Disclosure of jury proceedings – Criminal Code prohibiting disclosure of information about
“proceedings of the jury” except where disclosure is in context of obstruction
of justice proceedings involving a juror –
Whether provision constitutional – Canadian
Charter of Rights and Freedoms, s. 7 –
Criminal Code, R.S.C. 1985, c. C-46, s. 649 .
Criminal law – Abuse
of process – Fundamental justice – Double jeopardy – Whether mistrial
improperly declared at end of accused’s second trial – Whether proceedings against accused should have been stayed at
outset of third trial – Whether holding of third
trial violated principle against double jeopardy – Canadian Charter of Rights and Freedoms, ss. 7 , 11 (h).
Criminal law –
Charge to jury – Reasonable doubt – Accused convicted of first degree murder – Whether pre-Lifchus charge on reasonable doubt in substantial
compliance with principles set out in Lifchus.
The appellant P’s original trial on a charge of first
degree murder resulted in a hung jury. A second trial was held, at the end of
which the trial judge declared a mistrial. During the jury’s deliberations,
juror #1 had sent a note to the trial judge, asking him to poll the jurors
after the verdict was read out. Following the declaration of the mistrial, the
11 other jurors from the second trial wrote to the Attorney General to complain
about the jury selection process, the conduct of juror #1 and the declaration
of a mistrial. An investigation into the conduct of the jurors at the second
trial was conducted by the Attorney General, but no charges were laid.
Prior to his third trial, P brought an application for
a stay of proceedings. P challenged the constitutional validity of the common
law jury secrecy rule and of s. 649 of the Criminal Code , which
makes it an offence for a juror to disclose “any information relating to the
proceedings of the jury when it was absent from the courtroom”, except where that
information was subsequently disclosed in open court or is disclosed for the
purposes of an investigation or criminal proceedings in relation to an offence
of obstructing justice under s. 139(2) of the Code. He also sought
to admit as evidence the testimony of jurors as to what had occurred during the
jury deliberations at the second trial. The trial judge dismissed the
application for a stay of proceedings and upheld the constitutionality of both
the statutory and the common law jury secrecy rules. Evidence from jurors at
the second trial was held to be inadmissible. The third trial resulted in a
guilty verdict, which was upheld by the Court of Appeal.
The appellant S and his co-accused were convicted by a
jury of assault causing bodily harm. At the sentencing hearing, counsel for S
advised the trial judge that, subsequent to the trial, a juror had contacted S
and told him that there had been undue pressure on her to convict and that
other members of the jury had made racist comments. Counsel for S asked the
trial judge to conduct an inquiry to investigate the substance of the
allegations made by the juror. The trial judge declined to do so on the basis
of lack of jurisdiction. A request to the Ministry of the Attorney General to
conduct an inquiry was also refused. The Court of Appeal upheld the
convictions.
Held: The appeals should be dismissed.
The proposition that the jury must deliberate in
private, free from outside interference, is a principle that has deep roots in
the English common law. The common law rule of jury secrecy, which prohibits
the court from receiving evidence of jury deliberations for the purpose of
impeaching a verdict, similarly reflects a desire to preserve the secrecy of
the jury deliberation process and to shield the jury from outside influences.
Statements made, opinions expressed, arguments advanced and votes cast by
members of a jury in the course of their deliberations are inadmissible in any
legal proceedings. In particular, jurors may not testify about the effect of
anything on their or other jurors’ minds, emotions or ultimate decision. On
the other hand, the common law rule does not render inadmissible evidence of
facts, statements or events extrinsic to the deliberation process, whether originating
from a juror or from a third party, that may have tainted the verdict.
Evidence indicating that the jury has been exposed to
some information or influence from outside the jury should be admissible for
the purpose of considering whether there is a reasonable possibility that this
information or influence had an effect upon the jury’s verdict. Such evidence
should be admissible regardless of whether it is a juror or someone outside the
jury who offers the evidence. However, while jurors may testify as to whether
they were exposed to extrinsic information in the course of their
deliberations, the court should not admit evidence as to what effect such
information had upon their deliberations. While jurors appropriately bring to
their task their entire life’s experiences, if a juror, or a third party,
conveys to the jury information that bears directly on the case at hand that
was not admitted at trial, by reason of an oversight or a strategic decision by
counsel or, worse yet, by operation of an exclusionary rule of admissibility,
then it is truly a matter “extrinsic” to the deliberation process and the fact
that it was introduced into that process may be revealed.
The common law rule of jury secrecy does not infringe
the appellants’ rights under s. 7 of the Canadian Charter of Rights and
Freedoms . The common law rule, in combination with s. 649 of the Code,
helps to ensure that jurors feel comfortable freely expressing their views in
the jury room and that jurors who hold minority viewpoints do not feel
pressured to retreat from their opinions because of possible negative
repercussions associated with the disclosure of their positions. Evidence of
juror improprieties, misconduct or error, if admissible, might serve to
undermine the validity of an acquittal, rather than a conviction, and could
cast a permanent shadow over that acquittal even if it were not overturned on
appeal. In addition, it is not at all clear that evidence given by jurors
after the verdict concerning the substance of their deliberations would be a
good indication of what actually occurred in the jury room. Erosions of the
guarantees of jury secrecy beyond the existing boundaries would also result in
the eventual erosion of the integrity of the jury as decision maker in criminal
cases. The constitutional entrenchment of the right to trial by jury under
s. 11 (f) of the Charter means that jury trials will continue
to be an important component of our criminal justice system. The secrecy of
the deliberation process, both during and after the conclusion of the trial, is
a vital and necessary component of the jury system. The principles of
fundamental justice require that the integrity of the jury be preserved, and it
is best preserved by the common law rule as interpreted here.
The constitutionality of s. 649 of the Code
is only engaged if, and to the extent that, s. 649 prevents the appellants
from gathering evidence that would otherwise be admissible in legal
proceedings. Since the common law rule of exclusion would have precluded the
admission of the proposed fresh evidence, it is not strictly necessary to
address the constitutionality of s. 649 for the purposes of these
appeals. Nevertheless, s. 649 of the Code is consistent with the
common law rule, which itself meets the constitutional requirements of fairness
embodied in s. 7 . The majority of the Court of Appeal interpreted the
statutory provision correctly and in a manner consistent with Charter
requirements by concluding that the phrase “proceedings of the jury” does not
apply to a broader range of circumstances than is covered by the common law
rule. Whatever the impetus for the enactment of s. 649 , it meets the
requirements of s. 7 of the Charter in that it does not prevent a
juror from revealing any information that would be admissible in proceedings to
impeach the jury’s verdict. At the same time, it reinforces the importance of
jury secrecy, within the proper ambit of the modern common law rule.
The rules governing the secrecy of jury deliberations
do not operate in a vacuum, but in the larger context of the many other
safeguards that exist to ensure the integrity and the reliability of verdicts
in jury trials. Some of these safeguards operate during the course of the
trial, while others offer assurances of fairness in circumstances where the
verdict has already been delivered. The greatest safeguard against a perverse
jury rests in s. 686(1)(a)(i) of the Code, which allows the
court to set aside a verdict that is unreasonable or that cannot be supported
by the evidence. Another important safeguard against a perverse verdict is the
exception in s. 649(a) of the Code, which allows jurors to
disclose what occurred in the jury room in response to an investigation for
obstruction of justice under s. 139(2). With particular reference to S’s
appeal, it is worth emphasizing two other safeguards against an improper
verdict: challenges for cause under s. 638(1)(b) and the
power to discharge jurors in the course of the trial pursuant to s. 644(1)
of the Code. Together, these provisions permit a court to address
concerns about bias that may arise before or during the course of a jury
trial. Lack of impartiality, whether due to racial bias or another cause,
could, in a proper case, justify the discharge of a juror under s. 644.
The interaction between the judge and the jury is a most important safeguard of
the integrity of the jury system. The judge’s instructions provide a vital
prophylactic measure against jury misconduct and wrongful verdicts. The
requirement of a unanimous verdict is also a strong protection against
wrongful, perverse verdicts. A mistrial resulting from a jury’s inability to
reach a unanimous verdict, undesirable as this result may be, provides an
additional safeguard against a result driven by bias and prejudice.
Comprehensive research on the operations of criminal
jury trials, which is currently precluded by the jury secrecy rules and, in
particular, by s. 649 of the Criminal Code , would enhance the legitimacy
of the process and could trigger the need for change.
An improper declaration of a mistrial by a trial judge
could, depending on the circumstances of the case, lead to the conclusion that
a further trial would contravene the principles of fundamental justice. The
principle of double jeopardy might also preclude a further trial if the Crown
were to proceed unfairly in depriving the accused of a verdict. However, while
double jeopardy may be a principle of fundamental justice that could be invoked
in some circumstances prior to a verdict being rendered within the meaning of
s. 11 (h) of the Charter , these circumstances do not arise in
P’s case. The Criminal Code confers a broad discretion upon the trial
judge to declare a mistrial when he or she is of the view that the jury is
unable to agree upon a verdict. The trial judge did not act improperly in
declaring a mistrial at the second trial. P’s submissions in support of a stay
of proceedings, whether framed in terms of abuse of process, double jeopardy, or
s. 7 of the Charter , are consequently without merit.
None of the fresh evidence offered by P, even if it
were admissible under the common law jury secrecy rule as interpreted here,
would be relevant to the issue of whether the trial judge exercised his discretion
properly in declaring the mistrial, nor could it serve to support P’s request
for an acquittal or a stay of proceedings. The fresh evidence S is seeking to
introduce falls within the common law rule of jury secrecy and is accordingly
inadmissible.
The charge to the jury on the meaning of reasonable
doubt at P’s third trial was given prior to this Court’s judgment in Lifchus.
While some of the required elements in Lifchus were omitted from the
charge and some of the terms that should have been avoided were included, the
deficiencies are not such that they cause serious concern about the validity of
the jury’s verdict and lead to the conclusion that the accused did not have a
fair trial.
Cases Cited
Not followed: R.
v. Thompson, [1962] 1 All E.R. 65; R. v. Zacharias (1987), 39 C.C.C.
(3d) 280; R. v. Wilson (1993), 78 C.C.C. (3d) 568; referred to: R.
v. Henderson (1999), 134 C.C.C. (3d) 131; R. v. D. (T.C.) (1987), 38
C.C.C. (3d) 434; R. v. Nash (1949), 94 C.C.C. 288; R. v. Keyowski,
[1988] 1 S.C.R. 657; R. v. Farinacci (1993), 109 D.L.R. (4th) 97; R.
v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Sherratt, [1991] 1 S.C.R.
509; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Valente v. The Queen,
[1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56; R. v.
E. (A.W.), [1993] 3 S.C.R. 155; R. v. Dyson, [1972] 1 O.R. 744;
Vaise v. Delaval (1785), 1 T.R. 11, 99 E.R. 944; Danis v. Saumure,
[1956] S.C.R. 403; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Bean,
[1991] Crim. L.R. 843; R. v. Putnam (1991), 93 Cr. App. R. 281; R.
v. Brandon (1969), 53 Cr. App. R. 466; R. v. McCluskey (1993), 98
Cr. App. R. 216; R. v. Perras (1974), 18 C.C.C. (2d) 47; R. v.
Mercier (1973), 12 C.C.C. (2d) 377; R. v. Ryan (1951), 13 C.R. 363; Tanner
v. United States, 483 U.S. 107 (1987); R. v. Seaboyer, [1991] 2
S.C.R. 577; R. v. Armstrong, [1922] All E.R. 153; R. v. Yebes,
[1987] 2 S.C.R. 168; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R.
v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16; R. v. A.G., [2000] 1
S.C.R. 439, 2000 SCC 17; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R.
v. Sophonow (No. 2) (1986), 25 C.C.C. (3d) 415; R. v. Hahn
(1995), 62 B.C.A.C. 6; R. v. Taillefer (1995), 100 C.C.C. (3d) 1; R.
v. Lessard (1992), 74 C.C.C. (3d) 552; Anonymous Case, Lib. Assisarum
41, 11, 1367; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Starr,
[2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Beauchamp, [2000] 2 S.C.R. 720,
2000 SCC 54; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v.
Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; R. v. Conway, [1989] 1
S.C.R. 1659; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. O’Connor,
[1995] 4 S.C.R. 411; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. La,
[1997] 2 S.C.R. 680; R. v. Campbell, [1999] 1 S.C.R. 565; United
States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); United States v. Sanford,
429 U.S. 14 (1976); Richardson v. United States, 468 U.S. 317 (1984).
Statutes and Regulations Cited
Canadian Charter of Rights and
Freedoms, ss. 1 , 7 , 11 (d), (f),
(h).
Criminal Code, R.S.C. 1985, c. C-46, ss. 139 , 638(1) (b), 644 [am.
1992, c. 41, s. 6], 649, 653, 682(1), 686(1)(a)(i).
Federal Rules of Evidence, Rule 606(b).
Authors Cited
Canada. Law Reform Commission.
Report 16. The Jury. Ottawa: The Commission, 1982.
Canada. Law Reform Commission.
Working Paper 27. The Jury in Criminal Trials. Ottawa: The
Commission, 1980.
Chopra, Sonia R., and James R. P. Ogloff.
“Evaluating Jury Secrecy: Implications for Academic Research and
Juror Stress” (2000), 44 Crim. L.Q. 190.
Pound, Roscoe. Readings on the
History and System of the Common Law, 2nd ed. Boston: Boston
Book, 1913.
Quinlan, Paul. “Secrecy of Jury
Deliberations – Is the Cost Too High?” (1993), 22 C.R. (4th) 127.
Wigmore, John Henry. Evidence
in Trials at Common Law, vol. 8. Revised by John T. McNaughton.
Boston: Little, Brown, 1961.
APPEAL from a judgment of the Ontario Court of Appeal
(1999), 134 C.C.C. (3d) 1, 44 O.R. (3d) 415, 120 O.A.C. 1, 26 C.R. (5th) 87, 62
C.R.R. (2d) 189, [1999] O.J. No. 1214 (QL), dismissing the appellant Pan’s
appeal from his conviction for first degree murder. Appeal dismissed.
APPEAL from a judgment of the Ontario Court of Appeal
(1999), 134 C.C.C. (3d) 152, 120 O.A.C. 114, [1999] O.J. No. 1215 (QL),
dismissing the appellant Sawyer’s appeal from his conviction for assault
causing bodily harm. Appeal dismissed.
Keith E. Wright
and Richard Litkowski, for the appellant Rui Wen Pan.
P. Andras Schreck
and Shayne G. Kert, for the appellant Bradley Sawyer.
Renee M. Pomerance and Catherine Cooper, for the respondent.
George Dolhai and S.
R. Fainstein, Q.C., for the intervener the Attorney General of
Canada.
Marie-Claude Gilbert
and Gilles Laporte, for the intervener the Attorney General of Quebec.
Holly D. Penner, for the intervener the Attorney General of Manitoba.
William F. Ehrcke, Q.C., and Mary Ainslie, for the intervener the
Attorney General of British Columbia.
Melvyn Green and Benson
Cowan, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
Arbour J. –
I. Introduction
1
These two appeals were heard together and are addressed together in
these reasons. The appellants in both appeals submit that the common law rule
of jury secrecy, which provides that evidence concerning jury deliberations is
inadmissible on appeal to impeach the jury’s verdict, infringes the Canadian
Charter of Rights and Freedoms and must therefore be modified. Both
appeals also challenge the constitutionality of s. 649 of the Criminal Code,
R.S.C. 1985, c. C-46 , which makes it a criminal offence for jurors to disclose
information about the “proceedings of the jury”, except where such disclosure
is in the context of obstruction of justice proceedings involving a juror.
2
The appellant Pan was originally charged with the first degree murder of
Selina Shen in May of 1989. His trial on that charge resulted in a hung jury
in July of 1990. A second jury trial was held before O’Connell J. at the end
of which the trial judge declared a mistrial. A third jury trial before Watt
J. resulted in a conviction for first degree murder, which is the subject of
the present appeal.
3
Most of the issues raised by Pan are in support of the basic contention
that the third trial should not have been held. Pan’s central position is
that the mistrial was improperly declared at the end of his second trial, and
that, if permitted to infringe upon the jury secrecy rules, he could show that
he was entitled to an acquittal by that jury. Pan therefore argues that his
conviction should be set aside on the basis that the proceedings against him
should have been stayed at the outset of his third trial. He also argues that
holding a third trial after the improper declaration of a mistrial violated the
principle against double jeopardy. The only issue raised concerning Pan’s
third trial, as such, relates to the instructions to the jury on reasonable
doubt. Pan asks this Court to enter a verdict of acquittal or, alternatively,
to declare a stay of proceedings.
4
The appellant Sawyer and his co-accused, Troy Galbraith, were convicted
by a jury of assault causing bodily harm. At the sentencing hearing, counsel
for Sawyer advised the trial judge that, subsequent to the trial, a juror had
contacted Sawyer and told him that there had been undue pressure on her to
convict and that other members of the jury had made racist comments. Counsel
for Sawyer asked the trial judge to conduct an inquiry to investigate the
substance of the allegations made by the juror. The trial judge declined to do
so on the basis of lack of jurisdiction. A request to the Ontario Ministry of
the Attorney General to conduct an inquiry was also refused.
5
Sawyer’s position is that his conviction should be quashed and a new
trial ordered on the basis of the proposed fresh evidence showing that a
miscarriage of justice has occurred. He submits that the common law rule of
jury secrecy and s. 649 of the Criminal Code violate his rights under
the Charter by preventing him from obtaining and tendering on appeal
evidence relating to the alleged improprieties in the jury’s deliberations.
Further, he submits that this infringement cannot be justified under s. 1 of
the Charter . His co-accused, Galbraith, has not appealed to this Court.
II. Factual
Background
A. The Pan
Action
6
In the Pan appeal, a publication ban was imposed by Order of the
Chief Justice, at the request of the Crown, on October 20, 2000. In the course
of these reasons, I will make occasional reference to information which is the
subject of that ban. The ban is accordingly lifted to the extent of the
information disclosed in these reasons.
7
The evidence in the Pan appeal, which is entirely circumstantial,
was thoroughly reviewed by the Court of Appeal in its reasons reported at
(1999), 134 C.C.C. (3d) 1, and a brief overview suffices for the purpose of
this appeal. Selina Shen disappeared at the end of February 1988, soon after
she ended her relationship with Pan. In early March 1988, various body parts
were discovered in Eastern Ontario, and by March 13, 1988, the police were
able to announce that the remains were those of Selina Shen. The theory of the
prosecution was that Pan, obsessed with the deceased’s past relationships with
other men, felt betrayed when she left him and decided to kill her. Evidence
was introduced regarding the nature of their relationship and their contacts
shortly before her disappearance, including a threatening letter that Pan
wrote to Ms. Shen shortly before she disappeared. There was also evidence that
Pan made comments to a friend of the victim to the effect that something
shocking was going to happen.
8
During the course of their investigation, the police placed Pan under
surveillance and intercepted a telephone conversation in which he told his
brother what to say to the police. They also observed Pan dispose of knives,
including butcher knives, a paring knife, a cooking knife and a quick cut
cleaver. Pan testified that he disposed of the knives because he feared
becoming the target of false allegations concerning the death of the victim.
The expert evidence indicated that her body had been dismembered by someone
with a knowledge of anatomy and a high level of skill in surgical
disarticulation. The Crown contended that Pan possessed the required knowledge
and skill, having taken medical courses in anatomy, pathology and surgery.
9
Pan’s first trial before Doherty J. and a jury commenced on May 28,
1990. The jury was unable to reach a unanimous verdict after four days of
deliberations and Doherty J. declared a mistrial. No concerns were raised
about the propriety of the declaration of the mistrial at this first trial. A
second jury trial commenced before O’Connell J. on February 11, 1991 and
extended over approximately 50 court days. Pan, who had not testified at his first
trial, testified over several days.
10
On April 25, 1991, O’Connell J. completed his charge to the jury and
deliberations began. On May 1, 1991, juror #1 sent a note to O’Connell J. The
note read as follows:
Your honour, will you please pole [sic] us after the virdict [sic]
is read but if you could please make it look as if this is what is done in the
courts. I have to do what I feel I was sworen [sic] to do & what I
feel is right in my heart & after what I’ve been put through in the jury
room this was the only way I could do it. Please let me say I am very sorry if
this has caused so much time & money but as I said I have to do what based
on what you said hearing what every one else said day after day & still
keeping an open mind in order to reread & go over the facts. For me I feel
I have made the right choice. Thank you for letting me serve in your court. Its
been an honour. Juror #1.
Upon receipt
of the note, O’Connell J. ordered the jury to cease their deliberations.
O’Connell J. reconvened court to discuss with counsel the implications of the
note and the appropriate course to follow. Counsel for Pan suggested that the
jury be brought back in for a gentle exhortation, and stated that the other way
of dealing with the matter was to “declare them a hung jury”. Counsel for the
Crown objected to declaring a mistrial and instead favoured bringing the jury
back for a gentle exhortation. O’Connell J. indicated to counsel that, in his
view, there were only two options: conducting an inquiry of juror #1 in the
absence of the other jurors concerning the note or declaring a mistrial. Both
counsel strongly opposed conducting an inquiry of juror #1. After retiring for
45 minutes to consider the matter, O’Connell J. returned to court, called
in the jury and declared a mistrial.
11
Following the declaration of the mistrial, the 11 other jurors from the
second trial wrote to the Attorney General to complain about the jury selection
process, the conduct of juror #1 and the declaration of a mistrial. In the
letter, the jurors alleged that during the jury selection process juror #1 had
lied about her knowledge of the case and about the severity of her visual
impairment. They claimed that she also did not disclose that she was under
psychiatric care or that she was taking medication that affected her
alertness.
12
An investigation into the conduct of the jurors at the second trial was
conducted by the Attorney General, but no charges were laid. The interviews
with juror #1 and the other jurors during the investigation revealed that juror
#1 had followed the case in the media at the time of the first trial and
reported what she knew to the other jury members. Juror #1 also asked her
doctor how long it would take someone with medical knowledge to dismember a
body and conveyed the doctor’s answer to the other jurors. It was also alleged
that juror #1 often fell asleep during the trial and acted in a disruptive
manner in the jury room.
13
Prior to his third trial, Pan brought an application for a stay of
proceedings before Watt J., the trial judge assigned to preside over the third
trial. Pan challenged the constitutional validity of the common law jury
secrecy rule and of s. 649 of the Criminal Code , arguing that the common
law rule and the Code provision precluded him from compiling relevant
evidence concerning the propriety of the mistrial declaration at the second
trial. He also sought to admit as evidence the testimony of jurors as to what
transpired during the jury deliberations at the second trial.
14
Watt J. dismissed the application for a stay of proceedings and upheld
the constitutionality of both the statutory and the common law jury secrecy
rules. Evidence from jurors at the second trial was held to be inadmissible.
The third trial resulted in a guilty verdict, declared on May 1, 1992.
15
Pan appealed his conviction to the Ontario Court of Appeal. The
majority dismissed the appeal and concluded that, properly interpreted, the
common law rule of jury secrecy and s. 649 of the Criminal Code were
constitutionally valid. Finlayson J.A. disagreed with the majority’s
conclusions on the constitutional issues, but concurred in the result.
B. The
Sawyer Action
16
Sawyer’s conviction stemmed from an assault on Jason Johnston, a friend
of the two accused, that took place on May 21, 1994. The circumstances of the
assault are not relevant to the issues before this Court.
17
Sawyer and his co-accused, Galbraith, were tried by a judge and jury.
The jury returned a verdict of guilty on March 20, 1996 with respect to both
accused. Two months later, at the sentencing hearing before Tobias J. on May
22, 1996, counsel for Sawyer raised an issue concerning events that had
transpired since the jury’s verdict. He related to the court that two days
after the verdict it came to his attention that a member of the jury had
contacted Sawyer and made certain disclosures concerning the jury’s
deliberations. The juror allegedly told Sawyer that she had been under undue pressure
to come to a verdict and that certain racial comments were made by other
members of the jury. While it is not clear to whom the alleged racist comments
referred, Sawyer is white and Galbraith is black. Sawyer’s counsel asked the
court to conduct an inquiry of the jury with respect to whether the juror’s
allegations were true. Tobias J. ruled against Sawyer’s request, concluding
that he had no inherent jurisdiction to entertain a request for such an
inquiry.
18
Following the sentencing hearing, Sawyer’s counsel requested that the
Ontario Ministry of the Attorney General launch an investigation pursuant to s.
139(2) of the Criminal Code into whether any of the jurors had attempted
to obstruct, pervert, or defeat the course of justice during the jury’s deliberations.
The Ministry of the Attorney General refused to order an investigation.
19
Sawyer and Galbraith appealed their convictions to the Ontario Court of
Appeal. Their appeals were heard together with Pan and R. v.
Henderson (1999), 134 C.C.C. (3d) 131, which raised the same constitutional
issues with regard to the common law and statutory principles respecting jury
secrecy. In joint reasons for judgment concerning the four appeals, set out in
Pan, the Court of Appeal held that the common law rule of jury secrecy
and s. 649 of the Criminal Code were constitutionally valid. As the
proposed fresh evidence in the Sawyer appeal fell within the ambit of
the exclusionary rule, the majority concluded that it was inadmissible and
dismissed the appeal: (1999), 134 C.C.C. (3d) 152.
III. Relevant
Statutory Provisions
20
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
11. Any person charged with an offence has
the right
. . .
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial tribunal;
. . .
(f) . . . to the benefit of trial by jury where the
maximum punishment for the offence is imprisonment for five years or a more severe
punishment;
Criminal
Code, R.S.C. 1985, c. C-46
139. (1) Every one who wilfully attempts in
any manner to obstruct, pervert or defeat the course of justice in a judicial
proceeding,
(a) by indemnifying or agreeing to indemnify a surety, in any
way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a
fee or any form of indemnity whether in whole or in part from or in respect of
a person who is released or is to be released from custody,
is guilty of
(c) an indictable offence and is liable to imprisonment for a
term not exceeding two years, or
(d) an offence punishable on summary conviction.
(2) Every one who wilfully attempts in any manner
other than a manner described in subsection (1) to obstruct, pervert or defeat
the course of justice is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years.
(3) Without restricting the generality of
subsection (2), every one shall be deemed wilfully to attempt to obstruct,
pervert or defeat the course of justice who in a judicial proceeding, existing
or proposed,
(a) dissuades or attempts to dissuade a person by threats,
bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or
other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a
bribe or other corrupt consideration to abstain from giving evidence, or to do
or to refrain from doing anything as a juror.
644. (1) Where in the course of a trial the
judge is satisfied that a juror should not, by reason of illness or other
reasonable cause, continue to act, the judge may discharge the juror.
(2) Where in the course of a trial a member of the
jury dies or is discharged pursuant to subsection (1), the jury shall, unless
the judge otherwise directs and if the number of jurors is not reduced below
ten, be deemed to remain properly constituted for all purposes of the trial and
the trial shall proceed and a verdict may be given accordingly.
649. Every member of a jury who, except for
the purposes of
(a) an investigation of an alleged offence under subsection
139(2) in relation to a juror, or
(b) giving evidence in criminal proceedings in relation to such
an offence,
discloses any information relating to the proceedings of the jury when
it was absent from the courtroom that was not subsequently disclosed in open
court is guilty of an offence punishable on summary conviction.
653. (1) Where the judge is satisfied that
the jury is unable to agree on its verdict and that further detention of the
jury would be useless, he may in his discretion discharge that jury and direct
a new jury to be empanelled during the sittings of the court, or may adjourn
the trial on such terms as justice may require.
(2) A discretion that is exercised under subsection
(1) by a judge is not reviewable.
IV. Judgments
Below
A. Ontario
Court (General Division): The Pan Action
21
In two separate rulings prior to the commencement of the third trial,
Watt J. dealt with Pan’s application for a stay of proceedings. In the
first ruling of December 20, 1991 on the constitutional issues, Watt J. dealt
with the threshold issue of whether or not ss. 649 and 653(2) of the Criminal
Code were constitutionally invalid because they precluded Pan from calling
jurors from his second trial as witnesses to show that the second trial was
improperly terminated. As to s. 653(2) , Watt J. concluded that it did not
prevent the court from inquiring into the propriety of a mistrial in order to determine
the validity of a claim of abuse of process. With regard to the prohibition on
the disclosure of proceedings of the jury imposed by s. 649 of the Code,
Watt J. concluded that it did not violate any principles of fundamental justice
and, at worst, would be a reasonable limit within s. 1 of the Charter .
Furthermore, he found that the proposed evidence of the jurors concerning their
deliberations was not relevant to the issue of whether or not the mistrial was
improperly declared. As a result, excluding such evidence, whether on the
basis of lack of relevance, the common law rule of inadmissibility, s. 649 of
the Code or the cumulative effect of all three, did not infringe any Charter
right.
22
In his second ruling of February 5, 1992, for which written reasons were
released on November 21, 1995, Watt J. dealt with the substance of the
application for a stay of proceedings. Pan’s position was that a stay of
proceedings was warranted because further proceedings would constitute an abuse
of process and/or an infringement of his rights under ss. 7 and 11 (d) of
the Charter . Watt J. proceeded on the basis that because the alleged Charter
violations were subsumed within the claim of abuse of process, the decision on
the abuse of process claim would also decide the issue of whether or not there
had been an infringement of the appellant’s Charter rights. He noted
that the abuse of process claim rested on the argument that O’Connell J.
had improperly declared a mistrial at the second trial. Watt J. found that,
despite s. 653(2) of the Code, the trial judge’s discretion was
reviewable on the authority of R. v. D. (T.C.) (1987), 38 C.C.C. (3d)
434 (Ont. C.A.), but concluded that O’Connell J. had not exercised his
discretion improperly. Given that no factors other than the mistrial were
raised by Pan in support of the abuse of process claim or alleged Charter
violation, Watt J. dismissed Pan’s application. Furthermore, Watt J. found
that even if he were wrong in his conclusion that the second trial was not
improperly terminated, this was not one of the “clearest of cases” in which a
stay of proceedings should be granted.
B. Ontario
Court of Appeal
23
As indicated earlier, the Pan appeal was argued before the Ontario
Court of Appeal along with the appeals in Sawyer, supra, and Henderson,
supra. In each of these appeals, the constitutionality of the statutory
and common law jury secrecy provisions was challenged. Each of the appellants
sought to admit fresh evidence from jurors on matters related to the jury’s
deliberations. The Court of Appeal addressed the constitutionality of the jury
secrecy rules in its reasons in Pan in relation to all of the appeals.
1. The Pan Action (1999), 134 C.C.C. (3d) 1
(i) McMurtry C.J.O., Osborne, Labrosse and Charron JJ.A.
24
The majority of the Ontario Court of Appeal held that the common law
rule of exclusion of evidence applies to all matters intrinsic to the
deliberation process, including “statements made, opinions expressed, arguments
advanced, or votes cast by members of a jury in the course of their
deliberations in any legal proceedings” (para. 140). The common law rule,
however, does not render inadmissible evidence extrinsic to the
deliberation process, such as evidence that the jury went to the theatre and
mingled with the crowd during its deliberations: R. v. Nash (1949), 94
C.C.C. 288 (N.B.C.A.). The majority concluded that compelling policy
considerations weighed in favour of upholding the common law rule. In
particular, maintaining the secrecy of jury deliberations fosters free and
frank debate among jurors, ensures the finality of the verdict and protects
jurors from harassment, censure or recrimination.
25
On the constitutionality of s. 649 of the Criminal Code , the
majority concluded that the relevant question was whether s. 649 impeded the
accused’s access to evidence of jury misconduct that would be admissible at
common law. It is only to the extent that s. 649 prevents jurors from
disclosing information that would otherwise be admissible at common law that an
issue would arise under s. 7 of the Charter . The majority concluded
that the phrase “proceedings of the jury” in s. 649 referred to the
deliberation process protected by the common law rule, and that any evidence
which s. 649 prevented from being disclosed would also be inadmissible under
the common law rule. Without deciding whether s. 649 would amount to an
unconstitutional infringement of s. 2 (b) of the Charter , which
was not in issue in this case, the majority therefore concluded that s. 649 was
constitutionally valid as it did not impede an accused’s access to admissible
evidence.
26
In light of its findings concerning the common law rule and s. 649 of
the Code, the majority dismissed the application to introduce fresh
evidence on the basis that the proposed fresh evidence fell squarely within the
scope of the common law rule of exclusion.
27
Having disposed of the constitutional issues, the majority considered
the other issues raised in the Pan action. Pan submitted that Watt J.
erred in dismissing the motion for a stay of proceedings prior to the
commencement of the third trial. Pan’s position was that O’Connell J. erred in
declaring a mistrial at the second trial and that he had been unjustly deprived
of the verdict of that jury. He claimed that it was therefore an abuse of
process to proceed with a third trial, in light also of the two preceding
mistrials.
28
The majority noted that it is within a trial judge’s discretion to
discharge the jury if and when the trial judge is satisfied that the jury is
unable to reach a verdict, pursuant to s. 653(1) of the Criminal Code .
The majority concluded that it would have been preferable for O’Connell J. to
have asked the jury in open court whether it had reached a verdict prior to
declaring a mistrial. However, the majority agreed with Watt J. that “it was
open to the trial judge to conclude that there was not, as announced, ‘a
verdict’, rather an inability of the jurors to agree” (para. 231). As a
result, they concluded that the second trial was not improperly terminated.
29
As to the argument that the third trial constituted an abuse of process
and should have been stayed, the majority noted that a stay of proceedings is
an exceptional remedy, which should only be granted in the clearest of cases.
They also referred to this Court’s judgment in R. v. Keyowski, [1988] 1
S.C.R. 657, in which it was held that a third trial on a serious criminal
charge did not per se result in an abuse of process. Given the fact
that there was no prosecutorial misconduct in the present case, the majority
held that Watt J. did not err in dismissing Pan’s application for a stay of
proceedings.
30
Before the Court of Appeal, Pan also raised a number of other grounds of
appeal concerning the rulings made by Watt J. at the third trial and alleged
errors in his charge to the jury. All of these other grounds of appeal were
dismissed by the Court of Appeal. Only one of these grounds of appeal is
raised before this Court, namely the charge to the jury on reasonable doubt.
(ii) Finlayson J.A., Concurring in the Result
31
In his reasons, Finlayson J.A. only addressed the constitutional issues
concerning the common law rule of jury secrecy and s. 649 of the Criminal
Code . In contrast with the majority, Finlayson J.A. concluded that the
combined effect of the common law rule and s. 649 of the Code was to
prevent accused persons from establishing an evidentiary basis for arguing that
they were deprived of their constitutional right to a trial by an impartial and
independent tribunal. He found that the common law rule should be relaxed and
that the court should adopt a flexible, case-by-case approach to the
admissibility of evidence where allegations of jury misconduct are raised.
32
As to s. 649 of the Code, Finlayson J.A. disagreed with the
Crown’s submission that it was simply a codification of the common law rule.
After surveying the scant legislative history surrounding the enactment of s.
649 , Finlayson J.A. concluded that its purpose was at least partly to prevent
the disclosure of information concerning jury deliberations to the press, and
that it was not a codification of the common law rule. In light of his view
that the common law rule should be ameliorated to allow evidence of jury
deliberations to be admitted in evidence in appropriate circumstances, Finlayson
J.A. found that s. 649 prevented the disclosure of potentially admissible
evidence. He concluded therefore that s. 649 was overbroad in its application
and constituted an infringement of s. 7 of the Charter which could not
be saved under s. 1 .
33
Finlayson J.A. concurred with the majority, however, in the disposition
of the appeal in Pan. In his view, no constitutional issue arose with
regard to the proposed fresh evidence of the jurors from the second trial. The
proposed evidence was directed to the validity of the ruling of Watt J. on the
stay application, not to the integrity of the jury verdict at the third trial.
Furthermore, far from establishing the impropriety of the mistrial at the
second trial, the proposed evidence showed that the jury was irremediably
stalemated and that a mistrial was the only conceivable ruling. Therefore,
while Finlayson J.A. favoured modifying the common law rule and declaring s.
649 of the Code to be unconstitutional, he concluded that the
circumstances of the Pan action did not warrant such a result.
2. The Sawyer Action (1999), 134 C.C.C. (3d) 152
(i) McMurtry C.J.O., Osborne, Labrosse and Charron JJ.A.
34
The constitutionality of the common law rule and s. 649 of the Code
were the only issues raised in the Sawyer action. As a result, the
majority’s conclusions on these issues in the Pan action also disposed
of the Sawyer and Galbraith actions.
(ii) Finlayson J.A., Dissenting
35
With respect to the Sawyer and Galbraith actions, Finlayson
J.A. concluded that the trial judge did have jurisdiction to conduct an inquiry
of the individual jurors concerning the alleged complaints conveyed to defence
counsel by one of the jurors, and that whether he chose to do so on the facts
of the case was within his discretion. Finlayson J.A. concluded that the
impediments to such an inquiry posed by the common law rule and s. 649 of the Code
were unconstitutional, and that Sawyer and Galbraith had been denied their
right to attempt to expose the partiality of the jury that convicted them. In
the result, Finlayson J.A. would have quashed the conviction and ordered a new
trial for both Sawyer and Galbraith.
V. Issues
36
The following constitutional questions were stated by the Chief Justice
with respect to the Pan appeal:
1. Does s. 649 of the Criminal Code
infringe the rights and freedoms guaranteed by s. 7 , 11 (d) or 11 (f)
of the Canadian Charter of Rights and Freedoms ?
2. If the answer to Question 1 is yes, is s.
649 of the Criminal Code a reasonable limit, prescribed by law, that can
be demonstrably justified in a free and democratic society, pursuant to s. 1 of
the Canadian Charter of Rights and Freedoms ?
3. Does the common law exclusionary rule,
precluding the admission of evidence relating to the deliberations of a jury,
infringe the rights and freedoms guaranteed by s. 7 , 11 (d) or 11 (f)
of the Canadian Charter of Rights and Freedoms ?
4. If the answer to Question 3 is yes, is the
above-noted common law rule a reasonable limit, prescribed by law, that can be
demonstrably justified in a free and democratic society, pursuant to s. 1 of
the Canadian Charter of Rights and Freedoms ; and if not, ought the said
common law rule to be modified to conform with the said Canadian Charter of
Rights and Freedoms ?
5. Does s. 653(1) of the Criminal Code
and/or the common law power of a judge to declare a mistrial, during or
following the deliberations of the jury, violate the protection against double
jeopardy which is guaranteed by s. 7 of the Canadian Charter of Rights and
Freedoms ?
6. If the answer to Question 5 is yes, is s.
653(1) of the Criminal Code , or the said common law power to declare a
mistrial, a reasonable limit, prescribed by law, that can be demonstrably
justified in a free and democratic society, pursuant to s. 1 of the Canadian
Charter of Rights and Freedoms ; and if not, ought the common law power to
be modified to conform with the said Canadian Charter of Rights and Freedoms ?
7. Does s. 653(2) of the Criminal Code
violate s. 7 , 11 (d) or 11 (f) of the Canadian Charter of Rights
and Freedoms ?
8. If the answer to Question 7 is yes, is s.
653(2) of the Criminal Code a reasonable limit, prescribed by law, that
can be demonstrably justified in a free and democratic society, pursuant to s.
1 of the Canadian Charter of Rights and Freedoms ?
37
With respect to the Sawyer appeal, the Chief Justice stated four
constitutional questions on September 22, 1999. These are virtually identical
to questions 1 through 4 stated in the Pan action above and, as a
result, the answers to questions 1 through 4 in the Pan appeal will also
dispose of the Sawyer action.
VI. Analysis
A. Introduction
38
There is a large measure of common ground in these appeals on the
jury secrecy rules, which comprise the common law rule and s. 649 of the Criminal
Code . All agree that a measure of secrecy is essential to ensure the independence
and effectiveness of the jury. There is also agreement that the jury secrecy
rules must be compatible with the requirements of the Charter and, in
particular, with the s. 7 requirement of fundamental fairness in criminal
proceedings. The only issue is whether the current state of the law – common
law and statute – conforms with the constitutional requirement of fairness.
This, in turn, requires a balance between, on the one hand, preserving the
secrecy of deliberations to permit the effective functioning of the jury
system, and, on the other hand, ensuring that accused persons are not at risk
of being convicted as a result of a perverse process. Along the spectrum
between secrecy and openness lies the constitutionally acceptable limit on
access to information pertaining to how the jury arrived at its verdict.
39
A preliminary question was raised in the Court of Appeal as to whether
societal interests competing against the liberty interest of the accused must
be weighed within the s. 7 analysis, or whether the weighing should be done
under s. 1 of the Charter . In my view, this issue is not relevant here,
and the question poses a false dilemma. The jury secrecy rules are on their
face neutral. They could just as easily be invoked by an accused seeking to
bar scrutiny of a jury deliberation process that led to an acquittal which the
Crown wishes to impeach on appeal.
40
The question is not one of balancing the individual rights of the
accused against the rights of others, or against a larger societal interest, in
order to decide whether the jury secrecy rules that curtail review of verdicts
infringe the principles of fundamental justice, and therefore s. 7 . Rather,
the true question is whether the methods of reviewability of jury deliberations,
including the jury secrecy rules, are fair and just. This, in turn, assumes
either a constitutionally mandated self-standing right of review, as discussed
in R. v. Farinacci (1993), 109 D.L.R. (4th) 97 (Ont. C.A.), or a
constitutional principle that, when review is granted, it must proceed fairly.
For the purpose of this appeal, I am prepared to assume both. In other words,
to test the constitutionality of the jury secrecy rules under s. 7 , one must
assume that some review of conviction is required as a principle of fundamental
justice, or that, if it is not, any review provided for by statute or at common
law must proceed fairly. It cannot be arbitrary, irrational or unjust.
B. The Common Law Rule of Jury Secrecy
1. The Role of the Jury
41
The jury trial is a vital component of our system of criminal justice.
Its importance in our justice system is described by Cory J. in R. v. G.
(R.M.), [1996] 3 S.C.R. 362, at para. 13, as follows:
Our courts have very properly stressed the importance of jury verdicts
and the deference that must be shown to those decisions. Today, as in the
past, great reliance has been placed upon those decisions. That I think flows
from the public awareness that 12 members of the community have worked together
to reach a unanimous verdict.
42
The various rationales underlying the continued vitality of the jury as
decision maker in our criminal justice system are summarized in the majority
judgment of this Court in R. v. Sherratt, [1991] 1 S.C.R. 509, by
L’Heureux-Dubé J. as follows (at p. 523):
The jury, through its collective decision making, is an excellent fact
finder; due to its representative character, it acts as the conscience of the
community; the jury can act as the final bulwark against oppressive laws or
their enforcement; it provides a means whereby the public increases its
knowledge of the criminal justice system and it increases, through the
involvement of the public, societal trust in the system as a whole.
43
The jury is a judicial organ of the criminal process. It accomplishes a
large part of the function exercised by judges in non-jury criminal cases. In
a jury trial, the jury is the “judge” of the facts, while the presiding judge
is the “judge” of the law. They, judge and jury together, produce the
judgment of the court. The jury hears all the evidence admitted at trial,
receives instructions from the trial judge as to the relevant legal principles,
and then retires to deliberate. It applies the law to the facts in order to
arrive at a verdict. In acting as fact-finders in a criminal trial, jurors,
like judges, bring into the jury room the totality of their knowledge and
personal experiences, and their deliberations benefit from the combined
experiences and perspectives of all of the jurors. One juror may remember a
detail of the evidence that another forgot, or may be able to answer a question
that perplexes another juror. Through the group decision-making process, the
evidence and its significance can be comprehensively discussed in the effort to
reach a unanimous verdict.
44
While the jury, unlike a judge, does not provide reasons for its
ultimate decision, the jury’s deliberations can nevertheless be likened to the
reasoning process in which a judge would engage prior to releasing oral or
written reasons explaining his or her decision. A judge’s written reasons only
reveal the judge’s ultimate rationale for deciding the case as he or she did.
They do not necessarily reveal all the thought processes, the hesitations, the quaeres
and the revisions leading up to those final written reasons. Likewise, the
thoughts and discussions of the jurors that occur in the course of their
deliberations are not revealed – only the jury’s ultimate verdict is made
public.
45
A judge’s decision may be challenged on appeal, but judges cannot be
compelled to testify as to how and why they arrived at a particular judicial
decision: MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Valente v. The
Queen, [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R.
56. In fact, as a general rule, reviewing courts do not seek information from
the courts whose judgments they are reviewing in order to assess the likely
impact of apparent errors. The limited exception to this is s. 682(1) of the Criminal
Code , which requires the trial judge to “report” to the court of appeal at
the request of the court of appeal. As noted by Cory J. for the majority of
this Court in R. v. E. (A.W.), [1993] 3 S.C.R. 155, at p. 192, the
court of appeal should only request such a report “in those rare circumstances
where something has occurred which is not reflected on the record upon which
opposing counsel cannot agree”. In any event, it is neither designed nor used
to probe into the deliberative process of the decision maker, be it judge alone
or jury.
46
Viewed in that light, the jury secrecy rules are not totally at odds
with the methods of review of all fact-finding decisions. While the jury’s
verdict may be challenged through the normal appeal process, the jury’s reasons
for arriving at the verdict cannot be inquired into. This reflects, in part,
the sound concern about the difficulty of reconstructing after the fact, and
with hindsight, the integrity of the reasoning process that led to the
original decision.
2. Origins of the Common Law Rule
47
The proposition that the jury must deliberate in private, free from
outside interference, is a principle that has deep roots in the English common
law. In earlier times, the restrictions imposed on juries during the
deliberation process were quite severe: Coke on Littleton (1789), vol.
II, para. 227b, as quoted in R. v. Dyson, [1972] 1 O.R. 744 (H.C.), at
p. 745:
By the law of England a jury, after their evidence
given upon the issue, ought to be kept together in some convenient place,
without meat or drinke, fire or candle, which some bookes call an imprisonment,
and without speech with any, unlesse it be the bailife, and with him onely if
they be agreed.
48
The common law rule of jury secrecy, which prohibits the court from
receiving evidence of jury deliberations for the purpose of impeaching a
verdict, similarly reflects a desire to preserve the secrecy of the jury
deliberation process and to shield the jury from outside influences. The
common law rule, also referred to as Lord Mansfield’s rule, can be traced back
to the case of Vaise v. Delaval (1785), 1 T.R. 11, 99 E.R. 944 (K.B.),
in which Lord Mansfield ruled that the court could not receive affidavits from
jurors attesting to their own misconduct in reaching a verdict by lot: see Wigmore
on Evidence (McNaughton rev. 1961), vol. 8, § 2352, at p. 696. The rule
was explicitly adopted by this Court is Danis v. Saumure, [1956] S.C.R.
403, in the context of a civil jury trial.
3. The Evolving Rationales for the Jury Secrecy Rule
49
The policy justifications underlying Lord Mansfield’s rule have evolved
over time. The original rationale for the rule was that, because the violation
of the juror’s oath was a high misdemeanour, affidavits of jurors themselves
were inadmissible as they were self-incriminatory. As this rationale fell into
disuse, others were advanced. The main policy concerns advanced in support of
keeping secret forever the deliberations of the jury have been canvassed by the
Court of Appeal.
50
The first reason supporting the need for secrecy is that confidentiality
promotes candour and the kind of full and frank debate that is essential to
this type of collegial decision making. While searching for unanimity, jurors
should be free to explore out loud all avenues of reasoning without fear of
exposure to public ridicule, contempt or hatred. This rationale is of vital
importance to the potential acquittal of an unpopular accused, or one charged
with a particularly repulsive crime. In my view, this rationale is sound, and
does not require empirical confirmation.
51
The Court of Appeal also placed considerable weight on the second
rationale for the secrecy rule: the need to ensure finality of the verdict.
Describing the verdict as the product of a dynamic process, the court
emphasized the need to protect the solemnity of the verdict, as the product of
the unanimous consensus which, when formally announced, carries the finality
and authority of a legal pronouncement. That rationale is more abstract, and
inevitably invites the question of why the finality of the verdict should
prevail over its integrity in cases where that integrity is seriously put in
issue. In a legal environment such as ours, which provides for generous review
of judicial decisions on appeal, and which does not perceive the voicing of
dissenting opinions on appeal as a threat to the authority of the law, I do not
consider that finality, standing alone, is a convincing rationale for
requiring secrecy.
52
The respondent, as well as the interveners supporting its position and,
in particular, the Attorney General of Quebec, place great emphasis on the
third main rationale for the jury secrecy rule – the need to protect jurors
from harassment, censure and reprisals. Our system of jury selection is
sensitive to the privacy interests of prospective jurors (see R. v. Williams,
[1998] 1 S.C.R. 1128), and the proper functioning of the jury system, a
constitutionally protected right in serious criminal charges, depends upon the
willingness of jurors to discharge their functions honestly and honourably.
This in turn is dependent, at the very minimum, on a system that ensures the
safety of jurors, their sense of security, as well as their privacy.
53
I am fully satisfied that a considerable measure of secrecy surrounding
the deliberations of the jury is essential to the proper functioning of that
important institution and that the preceding rationales serve as a useful guide
to the boundaries between the competing demands of secrecy and reviewability.
4. The Ambit of the Common Law Secrecy Rule
54
Under Lord Mansfield’s rule, evidence relating to what occurs among the
jurors in the jury room is not admissible. Although the rule was originally
expressed to preclude the evidence of the jurors themselves being tendered to
expose their deliberations, subsequent authorities have held that evidence
pertaining to jury deliberations cannot be admitted even where the evidence
originates from someone outside the jury who overheard the jurors discussing
the verdict, as was the case in R. v. Bean, [1991] Crim. L.R. 843
(C.A.).
55
As the English cases show, the rule seeks to preserve the secrecy of the
jury’s deliberations, while ensuring that those deliberations remain untainted
by contact with information or individuals from outside the jury. As a result,
where the evidence establishes that the jury has been exposed to outside
information or influences, it will generally be admissible. The situations in
which evidence has been admitted under the rule in the English cases include:
evidence that someone tried to bribe one of the jurors in the course of the
trial: R. v. Putnam (1991), 93 Cr. App. R. 281 (C.A.); evidence that a
jury bailiff may have made remarks to a jury revealing the fact that the
accused had previous convictions: R. v. Brandon (1969), 53 Cr. App. R.
466 (C.A.); and evidence that a juror had used a cellular telephone to call
someone at his place of business from the jury room: R. v. McCluskey
(1993), 98 Cr. App. R. 216 (C.A.).
56
The application of the rule in the English cases has resulted, at times,
in incongruous results. For example, evidence that a jury bailiff told the
jurors of the accused’s previous convictions has been held to be admissible (Brandon,
supra), whereas evidence that the jury foreperson told the other jurors of
the accused’s previous convictions has been held to be inadmissible (R. v.
Thompson, [1962] 1 All E.R. 65 (C.C.A.)). The rationale for the different
result in these two situations is presumably that, in the former, the
prejudicial information emanated from a source outside the jury room while, in
the latter, the information, though equally prejudicial, was furnished by one
of the jurors. In each case, however, the information is the same and its
effect upon the jury is likely the same.
57
In Canada, with the exception of the case of R. v. Zacharias
(1987), 39 C.C.C. (3d) 280 (B.C.C.A.), discussed below, the courts have applied
Lord Mansfield’s rule to exclude evidence of the jury’s deliberations. In R.
v. Perras (1974), 18 C.C.C. (2d) 47 (Sask. C.A.), the sheriff overheard a
discussion by the jury in the jury room to the effect that they were going to
decide the case by majority vote. A few minutes after this conversation, the
jury rendered a guilty verdict. The appellant sought leave to examine the
jurors for the purpose of impeaching their verdict. The court concluded that
Lord Mansfield’s rule was equally applicable to the evidence of a stranger as
to the jury’s deliberations, and declined to allow an inquiry of the jurors.
As with the English cases, where the evidence relates to an intrusion into the
jury deliberation process by an outside influence, the courts have admitted the
evidence. For example, in R. v. Mercier (1973), 12 C.C.C. (2d) 377, the
Quebec Court of Appeal held that evidence from a juror showing that a Crown
attorney had entered the jury room in the absence of the jury and erased words
from the blackboard was admissible, but that evidence concerning the effect of
this act upon the jury was not admissible. The courts have also held that
where the jury has had contact with third parties during the course of its
deliberations, for example by calling home or mingling with the crowd at the
movies, evidence concerning these irregularities is admissible: R. v. Ryan
(1951), 13 C.R. 363 (B.C.C.A.); Nash, supra.
58
As noted by the majority of the Court of Appeal, Lord Mansfield’s rule
has been applied restrictively in some Canadian cases so as to preclude the
admission of evidence emanating from one of the jurors even where this evidence
concerns the alleged influence of a third party on the jury deliberations. For
example, in R. v. Wilson (1993), 78 C.C.C. (3d) 568 (Man. C.A.), the
appellant claimed that an RCMP officer had communicated information to a juror
about the appellant’s co-conspirator and that this information was conveyed to
the other jurors. This evidence was sought to be admitted through the
testimony of the jury foreman. The court held that the foreman’s evidence as
to comments made in the jury room was inadmissible. This is similar to the
English case of Thompson, supra, in which the rule was applied
restrictively to preclude the admission of evidence that the foreman had
produced a list of the accused’s previous convictions during the
deliberations.
59
I am in agreement with the majority of the Court of Appeal that Lord
Mansfield’s rule should not be applied in such a restrictive manner. Evidence
indicating that the jury has been exposed to some information or influence from
outside the jury should be admissible for the purpose of considering whether or
not there is a reasonable possibility that this information or influence had an
effect upon the jury’s verdict. Such evidence should be admissible regardless
of whether it is a juror or someone outside the jury who offers the evidence.
However, while jurors may testify as to whether or not they were exposed to
extrinsic information in the course of their deliberations, the court should
not admit evidence as to what effect such information had upon their
deliberations. As I indicated earlier, reviewing courts do not probe into the deliberative
process of trial judges, beyond what is revealed in their oral or written
reasons, even when these reasons reveal very little. Whether this sound
practice is based on a respect for the independence of the original
adjudicator, or on the more pragmatic conclusion that the exercise would likely
be futile, it applies with equal force to the deliberations of a jury.
Clearly, in some cases, evidence that would be admissible under the extrinsic
distinction would also fall within the meaning of obstructing justice in s.
139(2) of the Criminal Code and could therefore be disclosed pursuant to
an investigation under s. 139(2) of the Code.
60
The majority of the Court of Appeal defined the jury deliberation
process as including “statements made, opinions expressed, arguments advanced,
or votes cast by members of a jury in the course of their deliberations in any
legal proceedings” (para. 140). The majority found that it was this core of
jury secrecy and nothing more that Lord Mansfield’s rule sought to protect.
While I agree that this definition accurately reflects the current application
of the common law rule in Canada, I think that it requires further
clarification as to the distinction between matters intrinsic to the
deliberation process, which cannot be revealed, and extrinsic matters which
would be admissible without infringing the secrecy rule. The distinction
between intrinsic and extrinsic matters is not always self-evident and it is
not possible to articulate with complete precision what is contemplated by the
idea of a matter “extrinsic” to the jury deliberation process.
61
Jurors are expected to bring to their task their entire life’s
experiences. It is on the basis of what they know about human behaviour,
knowledge that they have obviously acquired outside the courtroom, that they
are requested to assess credibility and to draw inferences from proven facts.
Even though not the object of evidence tendered in the trial, an opinion, a
piece of general information, or even some specialized knowledge that a juror
may reveal in the course of the deliberations, is not an extrinsic matter.
Typically, such information would not be the object of evidence tendered at
trial. It would be viewed as either irrelevant, too remote, or as attempting
to usurp the functions of the jury. On the other hand, if a juror, or a third
party, conveys to the jury information that bears directly on the case at hand
that was not admitted at trial, by reason of an oversight or a strategic
decision by counsel or, worse yet, by operation of an exclusionary rule of
admissibility, then it is truly a matter “extrinsic” to the deliberation
process and the fact that it was introduced into that process may be revealed.
62
The line between matters of general knowledge and information that bears
directly on the case may not always be evident. For example, if a juror shares
with his fellow jurors his detailed familiarity with the location where the
crime was alleged to have been committed, this may be viewed as an intrinsic
matter protected by the secrecy rule. If the same juror, however, went on a
visit to the site, took photographs and brought them back to the jury room to
support his interpretation of the facts at issue, this may be extrinsic,
outside information that falls outside the secrecy rule. In my view, the
limits of the secrecy rule as it exists at common law are properly expressed by
the distinction between intrinsic and extrinsic evidence even though that
distinction itself is at times difficult to discern. What remains to be
determined is whether or not the common law rule of exclusion, as expressed
above, should be modified or whether, in its present form, it is consistent
with the principles of fundamental justice.
C. Should
the Common Law Rule Be Changed?
63
The Crown’s position is that Lord Mansfield’s rule should be strictly
applied and that the line should be drawn at the jury room door. In the
Crown’s submission, any information emanating from the jurors themselves, even
evidence that one juror told the others that the accused has a previous
criminal record, as was the case in Thompson, supra, should be
inadmissible. According to the Crown, a clear, bright line is required in this
area of the law and nuances based on whether evidence is extrinsic or intrinsic
to the deliberation process should therefore be avoided.
64
The appellants’ position is that the flexible, case-by-case approach
advocated by Finlayson J.A. in his reasons in Pan should be preferred.
When difficult cases present themselves in which the operation of Lord
Mansfield’s rule may be unjust, Finlayson J.A. concludes that “it is incumbent
on the court to do more than maintain blind allegiance to a rule that may work
an injustice” (para. 369). Instead, according to Finlayson J.A., the court
must fashion a remedy that works justice in the particular circumstances of the
case, even if that requires modifying Lord Mansfield’s rule.
65
In support of this approach, Finlayson J.A. refers to the case of Zacharias,
supra. In that case, the appellant was convicted of fraud by a jury.
After the trial, the foreman of the jury contacted defence counsel and told him
that third parties had communicated false prejudicial information about the
appellant to members of the jury. Defence counsel referred the matter to Crown
counsel and an investigation was conducted in which 11 members of the jury were
questioned. The investigation of the allegations did not reveal any evidence
of an offence under what is now s. 139(2) of the Code. However, the
investigation did disclose that the jurors believed that they would be kept in
deliberations for two or three weeks if they told the judge that they were
unable to agree, and that they also believed that they could not ask the trial
judge for clarification as to what constitutes a hung jury.
66
The Court of Appeal in Zacharias concluded that the investigators
were wrong in not preventing the jurors from revealing evidence of their
deliberations. However, the Court also concluded that the disclosed information
supported the conclusion that the jurors rendered a verdict of guilty because
they did not fully understand the options open to them. In the result, the
Court of Appeal, while noting that the “peculiar circumstances of this case
ought to strip it of any precedent-setting value for probing a jury’s
deliberations in other cases”, held that the conviction should be quashed and a
new trial ordered (p. 284). The Zacharias case appears to be the only
Canadian decision that has allowed the disclosure of jury deliberations for the
purpose of impeaching the verdict: see Wilson, supra, at p. 574.
67
Under the case-by-case approach advocated by the appellants and
Finlayson J.A., the court could admit any evidence of irregularities in the
jury proceedings for the purpose of impeaching the verdict where it considered
that such evidence may have affected the outcome of the trial. The advantage
of this approach is obviously that it ensures a thorough review of the
integrity of the verdict by shedding light on any impropriety or error that may
have tainted the jury’s deliberations. The evidence can be admitted regardless
of whether the alleged impropriety results from some outside influence or
emanates from inside the jury room. Taken to its logical conclusion, this
approach would suggest that, for the purposes of facilitating the best possible
reconstruction of the deliberation process, should such reconstruction be
required, minutes or some form of record of the jury’s deliberations should be
kept. Even without going that far, I do not think that this approach is
sound.
68
While the case-by-case approach ensures that no occurrences of jury
misconduct are shielded from review, it also undermines, in a fundamental way,
the very concept of jury secrecy. If the confidentiality of the jury
deliberation process is contingent on whether any allegations of impropriety
are later raised following the conclusion of the trial, jury secrecy will be an
illusory concept. We would be doing jurors a disservice, in my view, to tell
them, on the one hand, that everything they say in the course of their
deliberations is private and confidential, and, on the other hand, to decide
after the deliberations are over whether in fact we will give effect to our
guarantee of confidentiality. Given the importance of preserving the secrecy
of jury deliberations in order to foster free and frank debate in the jury room
and to protect jurors from harassment, we should not adopt an approach that
determines whether the deliberations of the jury will remain secret after the
fact, on a case-by-case basis. More certainty and predictability is required
for jury secrecy to be meaningful.
69
The interpretation of the common law rule adopted by the majority of the
Court of Appeal is similar to the statutory rule of evidence in the United
States set out in Federal Rule 606(b). Rule 606(b), or a modified version
thereof, has been adopted in many U.S. states. It provides that:
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or statement occurring
during the course of the jury’s deliberations or to the effect of anything upon
that or any other juror’s mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or concerning the juror’s
mental processes in connection therewith, except that a juror may testify on
the question whether extraneous prejudicial information was improperly brought
to the jury’s attention or whether any outside influence was improperly brought
to bear upon any juror . . . . [Emphasis added.]
70
The Rule is essentially a rule of exclusion. It renders inadmissible
matters internal to the deliberation process, including the effect of anything
on a juror’s mind. Subject to that prohibition, it permits the introduction of
evidence of “extraneous prejudicial information” and “outside influence”. The
Rule, which applies in both civil and criminal cases, appears to have generated
considerable litigation in the United States. This may in part be due to the
fact that there is no equivalent of s. 649 of the Criminal Code to
prevent jurors from public disclosure of their deliberations. The revelations
that are often made by jurors after the trial, to the parties and to the press,
may provide fertile ground for impeachment of the verdict, yet that impeachment
is still subject to Rule 606 (b). It is also important to remember that there is
generally no appeal from acquittal under U.S. law, and that improprieties in
jury deliberations leading to an acquittal, even when revealed publicly by the
jurors themselves, are no basis for redress.
71
In light of the above, it is unnecessary to review extensively the
American jurisprudence on this point. On its face, the Rule does not render
information concerning internal jury deliberations admissible, even where this
evidence indicates concerns about the performance of the jury. For example, in
Tanner v. United States, 483 U.S. 107 (1987), the majority held that
evidence that jurors had consumed drugs and alcohol during the course of the
trial was not admissible. The approach to admissibility embodied in Rule
606(b) is similar to the approach in Canada, as described by the Court of
Appeal, which focuses on whether the evidence relates to information or an
influence originating from outside of the jury deliberation process.
72
The Law Reform Commission of Canada in its Working Paper 27 entitled The
Jury in Criminal Trials (1980) formulated a different approach to the
protection of the secrecy of deliberations. The proposed Recommendation reads
as follows (at p. 149):
27.1 The validity of a verdict may not be inquired
into except upon an application to the Minister of Justice.
27.2 The Minister of Justice may, upon an
application by or on behalf of a person who has been convicted by a jury, order
a new trial, if after inquiry he is satisfied that some irregularity or
misconduct occurred during the jury deliberations which indicates that the
verdict did not reflect the judgment of all jurors.
27.3 Upon an inquiry into the validity of a
verdict, a juror may not give evidence concerning the effect of anything
upon his or any other juror’s mind or emotions as influencing him to assent or
to dissent from the verdict or concerning his mental processes in connection
therewith. Nor may his affidavit or evidence of any statement by him
indicating an effect of this kind be received for these purposes. [Emphasis
added.]
This
Recommendation was not included in the final report of the Law Reform
Commission on the jury: Report 16, The Jury (1982). The reasons for
its exclusion from the final report are not indicated.
73
The procedural aspect of this Recommendation, dealing with a review by
the Minister of Justice, is obviously not before us. I simply turn to the way
in which the Commission articulated the ambit of jury secrecy. The
Recommendation seeks to maintain the prohibition against probing into the
mental processes of jurors, while permitting exposure of irregularities or
misconduct, presumably by the jurors or anyone else, that indicate that the
verdict does not “reflect the judgment of all jurors”. Standing alone, the
Commission’s Recommendation would not permit review of a verdict which may
“reflect the judgment of all jurors”, but which may have been tainted by an
outside influence or extraneous prejudicial information. In contrast, such
extrinsic evidence would be admissible under the American rule and under the
common law rule as set out by the Court of Appeal.
74
The Commission’s formulation of the rule of admissibility has appeal
because it renders admissible evidence of facts or events, beyond the ones
classified as “extrinsic” by the Court of Appeal, that may reveal that the
verdict was arrived at improperly, such as by a coin toss or majority vote.
However, an exception that renders admissible evidence that the verdict “did
not reflect the judgment of all jurors” may also capture circumstances where it
is not the collective decision-making process of the jury that is alleged to be
improper, such as arriving at the verdict by a coin toss, but rather the
possibility that the decision of one or more of the jurors was influenced by
something other than the relevant facts and law. For example, an allegation by
a juror that he or she suppressed a dissenting view because of undue pressure
from the other jurors, or that others arrived at their decisions because of
biased and prejudicial opinions, might be admissible under this exception, as
it suggests that the verdict may not have been the result of a unanimous
decision of all jurors based on the facts and evidence. Such allegations could
be interpreted as suggesting that the verdict did not “reflect the judgment of
all jurors”.
75
It is not uncommon for jurors to have second thoughts, after the trial
is over, as to whether or not they should have delivered the verdict that they
did. At that point they may come forward and state that they did not agree
with the verdict delivered by the jury, although they expressed their agreement
at the time the verdict was delivered. These second thoughts may result from
information obtained following the conclusion of the trial, such as exposure to
evidence excluded during the course of the trial, or they may arise from a
juror’s own thought processes. Whatever the origins of these second thoughts,
they should fall squarely within the common law rule of jury secrecy and should
not be admissible to impeach the verdict.
76
In my view, the Commission’s Recommendation should not form part of the
common law rule of exclusion. While it has the advantage of capturing the coin
toss and majority verdict cases, which arise rarely but raise serious concerns
about the integrity of the verdict, it would unduly complicate the existing
rule and would result in greater uncertainty as to when it is appropriate to
inquire into the secrecy of jury deliberations. I conclude therefore that the
Commission’s Recommendation should not be integrated into the common law rule
of jury secrecy, whether in place of the extrinsic evidence exception contained
in the common law rule as set out below, or in addition to the common law rule.
77
In light of the above, in my view a proper interpretation of the modern
version of Lord Mansfield’s rule is as follows: statements made, opinions
expressed, arguments advanced and votes cast by members of a jury in the course
of their deliberations are inadmissible in any legal proceedings. In
particular, jurors may not testify about the effect of anything on their or
other jurors’ minds, emotions or ultimate decision. On the other hand, the
common law rule does not render inadmissible evidence of facts, statements or
events extrinsic to the deliberation process, whether originating from a juror
or from a third party, that may have tainted the verdict.
78
This modern formulation of the rule, which reflects the approach of the
majority of the Court of Appeal, best ensures that the sanctity of the jury’s
deliberations is preserved by promoting in equal measure the secrecy and
confidentiality indispensable to the deliberation process and the exposure of
serious matters casting doubt on the integrity of the verdict.
D. Does
the Common Law Rule Infringe the Charter ?
79
The appellants submit that the common law rule of jury secrecy infringes
their rights under ss. 7 , 11 (d) and 11 (f) of the Charter .
In my view, it is unnecessary in the present case to address the appellants’
arguments concerning ss. 11 (d) and 11 (f) of the Charter .
I agree with the Court of Appeal that the alleged Charter violations in
the present appeals are more properly dealt with under s. 7 of the Charter
and that nothing would be gained by also analysing the alleged violations under
ss. 11 (d) or 11 (f). I will therefore confine my analysis to
whether the common law rule and s. 649 of the Criminal Code are
consistent with the principles of fundamental justice enshrined in s. 7 of
the Charter .
80
The starting point of the appellants’ arguments concerning jury secrecy
is that the secrecy of jury deliberations is a problem from the accused’s
perspective, and that allowing accused persons to access evidence of jurors
concerning the deliberation process would provide greater assurance of fairness
to the accused. In some circumstances, this may no doubt be true. It is
important to emphasize, however, that modifying the common law rule in the
manner suggested by the appellants would not necessarily benefit accused
persons in all cases. If jurors know that the views they express in the jury
room may eventually come to light, they may be less inclined to argue for a
verdict that may be perceived as unpopular. For example, a juror who has
serious concerns about the foundations of a conviction might rapidly accede to
the majority viewpoint of convicting an accused charged with a horrible crime
rather than attempt to argue for, or even explore out loud, the arguments
favouring an acquittal, fearful of possible negative public exposure.
81
The common law rule of jury secrecy, in combination with s. 649 of the Code,
helps to ensure that jurors feel comfortable freely expressing their views in
the jury room and that jurors who hold minority viewpoints do not feel
pressured to retreat from their opinions because of possible negative
repercussions associated with the disclosure of their positions. It is of
course also possible that evidence of juror improprieties, misconduct or error,
if admissible, would serve to undermine the validity of an acquittal, rather
than a conviction, and could cast a permanent shadow over that acquittal even
if it were not overturned on appeal.
82
In addition, it is not at all clear that evidence given by jurors after
the verdict concerning the substance of their deliberations would be a good
indication of what actually occurred in the jury room. As the majority of the
Court of Appeal notes, at para. 148:
It is also questionable how reliable a post-verdict
reconstruction of a jury’s understanding of the evidence and the law would be.
Memories are likely to fade. Individual jurors could be subject to pressure
from litigants who want to influence the process. Further, some jurors, for
any number of reasons, may want to revisit their decision and hence,
unwittingly or not, could tailor their recollection accordingly.
This is
particularly true if jurors are made aware, after the verdict, of the existence
of properly excluded evidence which may lead them to reassess the facts in a
different light.
83
In my view, erosions of the guarantees of jury secrecy beyond the
existing boundaries would also result in the eventual erosion of the integrity
of the jury as decision maker in criminal cases. The constitutional
entrenchment of the right to trial by jury under s. 11 (f) of the Charter
means that jury trials will continue to be an important component of our
criminal justice system. The secrecy of the deliberation process, both during
and after the conclusion of the trial, is a vital and necessary component of
the jury system. Given that the right to a trial by jury is guaranteed by the Charter ,
it is not open to us to adopt an approach that would threaten the jury’s
ability to carry out its role fairly and diligently. The principles of
fundamental justice require that the integrity of the jury be preserved, and,
in my opinion, it is best preserved by the common law rule as interpreted
above.
E. Does
Section 649 of the Criminal Code Infringe the Charter ?
84
The appellants submit that s. 649 of the Criminal Code violates
their rights under ss. 7 , 11 (d), and 11 (f) of the Charter .
Section 649 of the Code makes it an offence for a juror to disclose “any
information relating to the proceedings of the jury when it was absent from the
courtroom”, except where that information was subsequently disclosed in open
court or is disclosed for the purposes of an investigation or criminal
proceedings in relation to an offence of obstructing justice under s. 139(2) of
the Code.
85
In the appellants’ submissions, s. 649 is unconstitutional because it
precludes an accused person from gathering the “evidentiary bricks”, as this
Court used that term in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 608,
which are necessary to demonstrate that improprieties occurred during the
jury’s deliberations that call into question the validity of the verdict. The
majority of the Court of Appeal held that the term “proceedings of the jury” in
s. 649 of the Code refers to the deliberation process as defined at
common law, namely “statements made, opinions expressed, arguments advanced, or
votes cast by members of a jury in the course of their deliberations in any
legal proceedings” (para. 140). Under this interpretation, the type of
information that jurors are prohibited from disclosing under s. 649 is the same
type of evidence that the common law renders inadmissible. I agree with the
majority of the Court of Appeal that s. 649 prohibits the disclosure of
information which lies at the core of jury secrecy to which the common law rule
of exclusion applies.
86
The majority of the Court of Appeal concluded, in my view correctly,
that the constitutionality of s. 649 is only engaged if, and to the extent
that, s. 649 prevents the appellants from gathering evidence that would otherwise
be admissible in legal proceedings. I concluded above that, properly
interpreted, the common law rule of exclusion is constitutionally sound. That
rule would have precluded the admission of the proposed fresh evidence in both
the Pan and Sawyer appeals. As a result, it is not necessary to
address the constitutionality of s. 649 for the purposes of the present
appeals. Since the evidentiary bricks that Pan and Sawyer seek to gather would
at any rate be inadmissible, it cannot be said that they have been prejudiced
by being denied access to inadmissible evidence.
87
Nevertheless, I think that it is helpful to discuss the relationship
between s. 649 and the common law rule. Finlayson J.A. undertook a
thorough and helpful review of the legislative history of the Code
provision. Although that history suggests that its enactment was prompted by
concerns about juror disclosures to the media, rather than by a desire to
codify the common law rule, it does not follow, in my view, that there is no
connection between the common law rule of exclusion and s. 649 of the Code.
Rather, the two must, if possible, be reconciled in a coherent fashion and in
accordance with the requirements of the Charter .
88
In my view, the majority of the Court of Appeal interpreted the
statutory provision correctly and in a manner consistent with Charter
requirements by concluding that the phrase “proceedings of the jury” in s. 649
of the Code does not apply to a broader range of circumstances than is
covered by the common law rule. Whatever the impetus for the enactment of s.
649 of the Code, it meets the requirements of s. 7 of the Charter
in that it does not prevent a juror from revealing any information that would
be admissible in proceedings to impeach the jury’s verdict. At the same time,
it reinforces the importance of jury secrecy, within the proper ambit of the
modern common law rule.
89
The common law rule of jury secrecy, in combination with the mirror prohibition
on disclosure under s. 649 of the Code, serves to further the policy
goals of promoting free and frank debate among jurors, protecting jurors from
harassment, and preserving public confidence in the administration of
justice. The role of each juror in respecting the confidentiality of the deliberation
process serves to maintain public confidence in the criminal justice system.
This was expressed as far back as 1922, in R. v. Armstrong, [1922] All
E.R. 153 (C.A.), at p. 157, where Lord Hewart C.J. said:
If one juryman might communicate with the public upon the evidence and
the verdict, so might his colleagues also, and if they all took this dangerous
course, differences of individual opinion might be made manifest which, at the
least, could not fail to diminish the confidence that the public rightly has in
the general propriety of criminal verdicts.
90
While the common law rule and s. 649 seek to prevent disclosure by
different means, and arguably for different reasons, they both aim to preserve
the confidentiality of the core of jury deliberations. Thus, while it is not
strictly necessary to dispose of the constitutionality of s. 649 in the context
of this appeal, even in the limited context of s. 7 of the Charter , I
find it consistent with the common law rule which itself meets the constitutional
requirements of fairness embodied in s. 7 .
F. Jury
Secrecy in Context
1. Safeguards in the Jury System
91
The rules governing the secrecy of jury deliberations do not operate in
a vacuum, but in the larger context of the many other safeguards that exist to
ensure the integrity and the reliability of verdicts in jury trials. Some of
these safeguards operate during the course of the trial, while others offer
assurances of fairness in circumstances where the verdict has already been
delivered.
92
The majority of the Court of Appeal surveyed many of the features of
the criminal trial process that ensure the fairness of the jury system,
including: the availability of peremptory challenges and challenges for cause,
the requirement of the juror’s oath, the judicial exclusion of prejudicial
evidence, judicial instructions to the jury, the sequestration of jurors during
deliberations, the non-publication of proceedings taking place in the absence
of the jury, the requirement of unanimity, and the polling of individual jurors
after the verdict is read. In my view, several of these safeguards warrant
emphasis in the context of the present appeals.
93
The greatest safeguard against a perverse jury rests in s. 686(1) (a)(i)
of the Criminal Code , which allows the court to set aside a verdict that
is unreasonable or that cannot be supported by the evidence: R. v. Yebes,
[1987] 2 S.C.R. 168; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R.
v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16, and R. v. A.G.,
[2000] 1 S.C.R. 439, 2000 SCC 17. Another important safeguard against a
perverse verdict is s. 649 (a) of the Criminal Code , which allows
jurors to disclose what occurred in the jury room in response to an
investigation for obstruction of justice under s. 139(2) of the Code.
94
With particular reference to the Sawyer appeal, it is worth
emphasizing two other safeguards against an improper verdict: challenges for
cause and the power to discharge jurors in the course of the trial pursuant to
s. 644(1) of the Criminal Code . Together, ss. 638(1)(b) and
644(1) of the Criminal Code permit a court to address concerns about
bias that may arise before or during the course of a jury trial. Thus, it is
only at the post-verdict stage that there is a restriction on the ability to
probe into allegations of bias by virtue of the operation of the common law
rule of exclusion.
95
As discussed by this Court in Sherratt, supra, and Williams,
supra, a trial judge should permit challenges for cause under s. 638(1)(b)
where there is a “realistic potential” of the existence of partiality on the
part of jurors. In order to establish a realistic potential of juror
partiality, the accused must generally show that there is widespread bias in
the community and that some jurors may be incapable of setting aside their
partiality despite trial safeguards: R. v. Find, [2001] 1 S.C.R. 863,
2001 SCC 32, at para. 32.
96
With respect to s. 644 of the Criminal Code , when it comes to the
attention of the trial judge that a juror has been subject to improper external
influences or is unable or unwilling to properly fulfil his or her role as a
juror, the judge may hold a hearing to ascertain the nature of the problem, if
any, and has the discretion to discharge the juror where the circumstances so
warrant: R. v. Sophonow (No. 2) (1986), 25 C.C.C. (3d) 415 (Man. C.A.); R.
v. Hahn (1995), 62 B.C.A.C. 6; R. v. Taillefer (1995), 100 C.C.C.
(3d) 1 (Que. C.A.); R. v. Lessard (1992), 74 C.C.C. (3d) 552 (Que.
C.A.). Lack of impartiality, whether due to racial bias or another cause,
could, in a proper case, justify the discharge of a juror under s. 644 .
97
There are limits to the availability of challenges for cause and other
pre-trial safeguards, just as there are limits to the availability of
post-trial remedies. Likewise, there are limits to the use of s. 644 of the Code
as a mechanism for discharging jurors in the course of the trial. Section 644
only permits jurors to be discharged in the course of the trial where a serious
issue arises as to their fitness as a juror. It is not designed to encourage
jurors to bring trivial complaints about their fellow jurors to the attention
of the trial judge in the course of the trial, nor does it contemplate the
discharge of jurors over minor concerns. Trial judges can be left to decide
how best to instruct the jury on these issues. Ideally, trial judges should
satisfy themselves that jurors understand that their decision is an exercise in
personal conscience and judgment and that they are entitled to respect from the
criminal justice system for the bona fide exercise of their judgment.
In instructing the jury on the requirement of unanimity, judges often emphasize
that jurors have an obligation to be attentive to and respectful of the
opinions of their fellow jurors, and that they should maintain the integrity of
their own opinions while yielding when appropriate to the collective wisdom
emanating from the deliberation process. Jurors should understand that the
trial judge is there to assist them with any serious difficulty that may arise
in the course of their deliberations that they are unable to resolve.
98
The interaction between the judge and the jury is a most important
safeguard of the integrity of the jury system. The judge’s instructions
provide a vital prophylactic measure against jury misconduct and wrongful
verdicts. The need for the trial judge to provide clear instructions to the
jury, not just about the applicable legal principles, but also about the
procedural aspects of the jury trial, is illustrated by the circumstances that
arose in the Sawyer appeal as well as in the Zacharias case, supra.
As discussed above, the inquiry held in the Zacharias case revealed that
the jury was under a misconception about how long they would remain sequestered
before a mistrial could be declared on the basis of a hung jury. Similarly, in
the Sawyer action, the juror who contacted Sawyer alleged that she was
under undue pressure to convict because she was told that the jury would have
to be sequestered for at least three weeks before a hung jury could be
declared. In my view, regardless of whether there is any substance to the
allegations made by the juror in Sawyer, the similarities between
jurors’ misconceptions in Zacharias and in Sawyer illustrate the
desirability of clear and explicit explanations by the trial judge about the
mechanics of the deliberation process.
99
The requirement of a unanimous verdict is a central feature of our jury
system. The first recorded case where unanimity was required was in 1367,
when an English court refused to accept a majority verdict of guilty: Anonymous
Case, Lib. Assisarum, 41, 11, translated and reprinted in R. Pound, Readings
on the History and System of the Common Law (2nd ed. 1913), at pp. 123-24.
Although the historical reasons for the unanimity rule are not clear, it
remains a strong protection against wrongful, perverse verdicts: Law Reform
Commission of Canada, Working Paper 27, supra, at p. 19. As noted by
the majority of the Court of Appeal in the Pan appeal, the strength of
the jury’s verdict “lies not in the assessment of the evidence by each
individual juror or in each juror’s vote but, rather, in its unanimity” (para.
142). This being said, I acknowledge and agree with the concern raised in Williams,
supra, at para. 11, that there is a risk that the views of a biased
juror may infect the jury’s deliberations and create a risk that the verdict is
not solely based on the evidence and law. Clearly, the requirement of unanimity
is not a complete remedy for jury partiality or juror misconduct.
Nevertheless, the possibility of a biased juror having a decisive effect upon
the verdict is reduced in a legal system such as ours that imposes unanimity,
as opposed to a system that permits majority verdicts. Undesirable as this
result may be, a mistrial resulting from a jury’s inability to reach a
unanimous verdict provides an additional safeguard against a result driven by
bias and prejudice.
2. Jury Research in Canada
100
As noted by McLachlin C.J. in Find, supra, trial by jury
is a cornerstone of our criminal justice system and Canadian jurors, since our
country’s earliest days, have met the challenge of judging their peers fairly
and impartially. Nevertheless, some cases do raise concerns that incorrect
judicial instructions, jurors’ disregard of the evidence or other factors may
have improperly affected the verdict. The jury secrecy rules,
and more particularly the narrow scope of access to jurors provided for in s.
649 of the Criminal Code , have prevented the scientific community from
conducting empirical research indigenous to the Canadian judicial environment.
Researchers cannot carry out studies involving real Canadian juries to
gain more insight into the mechanics of the jury process and the effect of
judicial instructions upon the deliberations and verdict of the jury. Instead, we are made to rely upon extrapolations from American
studies and from simulated exercises to test the assumptions upon which many of
our rules develop.
101
In its 1982 Report on the Jury, supra, the Law Reform
Commission of Canada recommended that an exception be introduced into s. 649 of
the Code to permit access to jury deliberations for the purpose of
scientific research. Although the idea received some support, it was not acted
upon. The desirability of permitting social science research involving real
juries to take place has also been expressed more recently by academic
commentators: see P. Quinlan, “Secrecy of Jury Deliberations – Is the Cost Too
High?” (1993), 22 C.R. (4th) 127; S. R. Chopra and J. R. P.
Ogloff, “Evaluating Jury Secrecy: Implications for Academic Research and Juror
Stress” (2000), 44 Crim. L.Q. 190.
102
The jury secrecy rules, which are essential to the proper functioning of
the jury as an institution, come at a price. Not only is it impossible to
ascertain whether a particular jury has acted in accordance with its oath and
the requirements of the law, but we cannot measure in any meaningful way
whether the procedures that we have in place to ensure that it does function
properly are effective.
103
Every year, several jury verdicts are reversed and expensive new trials
are ordered because of the risk of a serious error in the deliberative
process. We assume that errors in the admissibility of evidence, improper
comments by counsel or, more commonly, misdirections on the law by the trial
judge may have misguided the jury and may have had an adverse impact on its
verdict. When that concern emerges, we then speculate as to whether the error
is likely to have adversely affected the deliberations of the jury and, if so,
we conclude that the entire trial is vitiated and that we must start again.
104
That entire exercise is conducted on the basis of assumptions, some very
fundamental, and some more easily verifiable than others. For example, we
assume that the exact wording of a jury charge will likely have an impact of
the jury’s understanding of its tasks. The clearest example is the
long-standing search for the proper explanation of what guilt beyond a
reasonable doubt means, and how it should be conveyed to the jury: see for
example R. v. Lifchus, [1997] 3
S.C.R. 320; R. v. Starr,
[2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Beauchamp, [2000] 2 S.C.R. 720,
2000 SCC 54; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; and R.
v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.
105
There are means by which we should be able to assess rationally, and in
an informed and reliable manner, whether exposure to some information is unduly
prejudicial in the sense that juries are likely to give it inappropriate
weight, for example in the case of criminal records or similar fact evidence.
We should also be able to measure the real capacity of juries to understand
long and complex oral instructions, and to determine whether our current models
of jury charges substantially accomplish their purpose. In short, we should be
able to assess, in an informed and rational fashion, the likely impact of an
alleged error or event on the deliberations of the jury and on the fairness and
reliability of its verdict.
106
The recent case of Find, supra, raises the issue of the
lack of reliable social science research concerning the effect of juror
attitudes on the deliberation process and verdict. The accused in Find,
who was charged with the sexual assault of children, argued that the nature of
the charges gave rise to a realistic possibility that some jurors might harbour
prejudice against him and be incapable of acting impartially. He therefore
sought to challenge jurors for cause. This Court held that challenges for
cause should not be permitted as the alleged “generic prejudice” arising from a
charge involving sexual assault of children had not been established. With
respect to the prohibition on disclosure of jury deliberations imposed by s.
649 of the Code and its effect upon research into the jury process, the
Chief Justice said (at para. 87):
More comprehensive and scientific assessment of this and other aspects
of the criminal law and criminal process would be welcome. Should Parliament
reconsider this prohibition [s. 649 ], it may be that more helpful research into
the Canadian experience would emerge.
107
Parliament, after input from the social science community, the judiciary
and the bar, could design appropriate parameters for this type of research to
ensure respect for the concerns that inform the present jury secrecy rules, as
well as most other rules governing jury trials. Such research would add to the
legitimacy of the existing rules and, if need be, would trigger judicial or
legislative modifications.
108
These appeals, and many others in the past decades, illustrate
the difficulty and the importance of the tasks that citizens are compelled to perform
when called for jury duty. We should protect jurors from unjustified intrusion
into their personal lives and we should also be able to give them assurances
that the guidance they receive from the judge is based on the best knowledge we
have about the way to a fair and just verdict.
G. Did Pan’s Third Trial Constitute an Abuse of Process?
109
As indicated at the outset of these reasons, the main thrust of the
appellant Pan’s argument in the present appeal is that the declaration of the mistrial
by O’Connell J. at his second trial was improper. It follows from this, Pan
says, that the third trial before Watt J., which resulted in his conviction for
first degree murder, violated the principle against double jeopardy and
constituted an abuse of process. The appellant submits that the appropriate
remedy is for this Court to order a stay of proceedings. In order to establish
the impropriety of the mistrial, Pan seeks to have admitted as fresh evidence
in the appeal the testimony of jurors from his second trial. For the reasons
above, I have concluded that the appellant is barred by the common law jury
secrecy rule from adducing such evidence. I will return to this issue below.
1. Section 653(2) of the Criminal Code
110
As a threshold matter on the abuse of process issue, the appellant Pan
challenges the constitutional validity of s. 653(2) of the Code, which
provides that a judge’s exercise of discretion to declare a mistrial on the
basis that the jury is unable to agree upon a verdict is “not reviewable”. In
addition to his arguments on the double jeopardy issue, the appellant submits
that s. 653(2) of the Code violates ss. 7 , 11 (d) and 11 (f)
of the Charter because it purports to insulate from review the decision
of a judge to declare a mistrial on the basis of a deadlocked jury.
111
The Crown has not disputed the ability of this Court, the Court of
Appeal or Watt J. to review the mistrial declared by O’Connell J. I do not see
how declaring s. 653(2) to be constitutionally invalid would advance the
appellant’s position. The propriety of the mistrial before O’Connell J. has
been, and continues to be, under review. The fact that no issue was taken by
the Crown with the appropriateness of this review may relate to the statement
of Martin J.A, speaking for the Ontario Court of Appeal in D. (T.C.),
supra, at p. 447, in which he said:
Notwithstanding the common law limitations on the
ability to challenge the judge’s discretion to terminate a trial before
verdict, I am satisfied that the propriety of a decision to declare a mistrial
is subject to Charter scrutiny where a second trial, after the improper
termination of the first trial, would contravene principles of fundamental
justice.
While I agree
with this statement, I do not think that the constitutional issue needs to be
resolved in the present case.
2. The Effect of the Second Mistrial
112
The law is clear that a third trial will not, without more, constitute
an abuse of process: Keyowski, supra; R. v. Conway,
[1989] 1 S.C.R. 1659. It is also clear that a stay of proceedings should only
be entered in the “clearest of cases”: R. v. Jewitt, [1985] 2 S.C.R.
128; Conway, supra; Keyowski, supra; R. v.
O’Connor, [1995] 4 S.C.R. 411; R. v. Carosella, [1997] 1 S.C.R. 80; R.
v. La, [1997] 2 S.C.R. 680; R. v. Campbell, [1999] 1 S.C.R. 565. Where
a claim of abuse of process is made, it is necessary to examine the particular
facts of the case in order to determine whether, in all the circumstances, it
would offend the principles of fundamental justice to proceed further. In
Pan’s case, there has been no suggestion of prosecutorial misconduct or of
systemic failure. Pan’s abuse of process argument therefore rests solely on his
contention that O’Connell J. acted improperly in declaring a mistrial at the
second trial, and that the third trial offended the principle against double
jeopardy, for which the appropriate remedy is a stay of proceedings.
113
In my view, an improper declaration of a mistrial by a trial judge
could, depending on the circumstances of the case, lead to the conclusion that
a further trial would contravene the principles of fundamental justice. I
entirely agree with the remarks of Martin J.A. in D. (T.C.), supra,
at pp. 447-48:
Section 11 (h) of the Charter enshrines the
principles underlying the pleas of autrefois acquit and autrefois
convict which are applicable, as previously indicated, only where the first
trial has proceeded to verdict and do not apply where the first trial has
proved abortive. In my view, however, s. 7 of the Charter constitutionalizing
the requirement of “fundamental justice” might, in some circumstances, bar a
second trial where the first trial has been improperly terminated. By way of
example only, I consider that if, upon a breakdown of the Crown’s case, a judge
were to declare a mistrial in order to give the prosecution an opportunity to
strengthen its case against the accused by endeavouring to find additional
witnesses thereby depriving the accused of an acquittal where the Crown’s
initial preparation had been negligent, a second trial in those circumstances
would contravene the principles of fundamental justice.
114
The principle of double jeopardy might also preclude a further trial if
the Crown were to proceed unfairly in depriving the accused of a verdict. For
example, if the Crown were to enter a stay of proceedings at a late stage of
the trial in order to preclude the jury from acquitting the accused in light of
the deficiencies in the Crown’s case, it seems to me that the principles of
fundamental justice could preclude further proceedings, despite the fact that
double jeopardy within the meaning of s. 11 (h) of the Charter may
not apply. However, while double jeopardy may be a principle of fundamental
justice that could be invoked in some circumstances prior to a verdict being
rendered within the meaning of s. 11 (h), these circumstances do not
arise in the appellant’s case.
115
In support of his submissions on the double jeopardy issue, Pan relies
heavily on the American jurisprudence, which only permits a subsequent trial
following the declaration of a mistrial where circumstances of “manifest
necessity” exist. The obvious example of such a situation would be where the
jury is hopelessly deadlocked: United States v. Perez, 22 U.S. (9
Wheat.) 579 (1824); United States v. Sanford, 429 U.S. 14 (1976); Richardson
v. United States, 468 U.S. 317 (1984). Pan submits that the declaration of
a mistrial in this case did not meet the standard of “manifest necessity” and
that it was therefore improperly declared. In my view, the American
jurisprudence is of limited assistance given the differences in our respective
constitutions and case law on the double jeopardy issue. However, even if the
American test of “manifest necessity” were applied to the Pan appeal, it
would not appear to assist the appellant since it too allows for re-prosecution
after a deadlocked jury trial.
116
The Criminal Code confers a broad discretion upon the trial judge
to declare a mistrial when he or she is of the view that the jury is unable to
agree upon a verdict. Watt J., following a voir dire at the outset of
the third trial, reviewed the circumstances under which O’Connell J. had
declared a mistrial. He rejected the suggestion that the mistrial was declared
because the judge was aware that the jury had reached a verdict of acquittal.
Rather, Watt J. found that O’Connell J., after canvassing the views of counsel,
came to the conclusion that the jury was irremediably deadlocked. The Court of
Appeal found no basis to interfere with the conclusions of Watt J. on this
point, and neither do I. Watt J. made several critical findings of fact that
are dispositive of this ground of appeal.
117
With regard to the alleged communication by James Woodside, the deputy
at Pan’s trial, to O’Connell J. to the effect that the jury was split 8-4 in
favour of acquittal, Watt J. says this:
The substance of James Woodside’s evidence, as well
the manner in which he gave it, do not satisfy me that he communicated his
speculative conclusion about the division of the jurors to the trial judge as
he appeared to indicate in his evidence. I do not accept his evidence
on the point. It lacked certainty and clarity of recollection. It appears,
equally, the result of speculation. [Emphasis in original.]
118
Watt J. also found that O’Connell J. was not informed that the jury had
reported having reached a “verdict” on the evening of April 30, 1991. On the
morning of May 1, 1991, the day of the declaration of the mistrial, O’Connell
J. was informed that one of the jurors was claiming to have been pressured in
the course of the jury’s deliberations and had written a note that she wished to
convey to the trial judge. Upon receipt of the note, O’Connell J. read it and
then convened court to discuss the note with counsel. Watt J. concluded that
at no time before the declaration of the mistrial was O’Connell J. aware of the
nature of the “verdict” that the jury had reached. What O’Connell J. did know
was that the jury had reached a “verdict” and that one of the jurors did not
agree with it and wished O’Connell J. to poll the jury following the reading of
the verdict so that she could voice her disagreement at that time. While the
note itself indicates that a verdict has been reached, it also indicates that
juror #1 disagreed with it.
119
In O’Connell J.’s discussions with counsel concerning the appropriate
course of action to take in response to the note, no one ever suggested that
the jury be brought in and asked to deliver their verdict. On this point, Watt
J. says:
It is worthy of observation that, notwithstanding
the plain reference in the note of juror #1 that the jury had reached a verdict,
none of the persons conducting the case, whether prosecuting, defending or
presiding, considered that a verdict had been achieved. The only logical
inference to draw is that what is now asserted to be a verdict of which the
[appellant] has been wrongly deprived was not then, at the time, thought to be
so.
Counsel for
Pan suggested that it might be advisable for O’Connell J. to give the jury a
“gentle exhortation” to reach a verdict, and said that “the other way” was “to
declare them a hung jury”. Counsel for the Crown favoured a gentle exhortation
and strongly objected to the mistrial option. Both counsel strongly disagreed
with O’Connell J.’s suggestion that juror #1 be brought in for an inquiry on
her own concerning the contents of the note, which could conceivably have led
to her being discharged as a juror. O’Connell J. subsequently decided to
declare a mistrial, thereby ending Pan’s second trial.
120
As Watt J. notes, the issue is not whether O’Connell J. could have
exercised his discretion differently than he did. Clearly, he could have. For
example, he could have taken the verdict and made an inquiry as to the
unanimity of the verdict in light of the note from juror #1. Had juror #1
repudiated her agreement with the verdict at that stage, the result would have
been a mistrial. The only issue is whether, in exercising his discretion and
declaring a mistrial, O’Connell J. can be said to have acted improperly. On
this point, Watt J. says:
The trial judge would have been entitled to
exercise his discretion differently than by declaring a mistrial. The mere
existence of alternatives, however, does not mean that, in choosing the course
he did, the learned trial judge improperly terminated trial proceedings. It is
doubtless that if a trial judge discharges the jury when further deliberations
may produce a fair verdict, the accused is deprived of his valued right to have
his trial completed by a particular tribunal. On the other hand, a failure to
discharge a jury which is unable to reach [a] unanimous verdict after
protracted and exhausting deliberations creates a significant risk that a
verdict may result from pressures inherent in the situation, rather than the
considered judgment of all the jurors. [Emphasis in original.]
121
It is abundantly clear from Watt J.’s reasons that O’Connell J. did not
act improperly in declaring a mistrial at the second trial. As a result, I
find Pan’s submissions in support of a stay of proceedings, whether framed in
terms of abuse of process, double jeopardy, or s. 7 of the Charter , to
be without merit.
H. The
Fresh Evidence
1. The Pan Action
122
The Court of Appeal was unanimous in concluding that the proposed fresh
evidence in the Pan action would have no bearing on the propriety of the
declaration of a mistrial by O’Connell J. The proposed fresh evidence
indicates that there was a deadlock among the jury and that the atmosphere in
the jury room had degenerated into hostility. Even if the common law rule were
changed in order to permit the admission of such evidence, it would only serve
to support O’Connell J.’s decision to declare a mistrial. The only extrinsic
evidence that seems to be disclosed by the juror interviews is the fact that
juror #1 asked her doctor how long it would take to dismember a body if one had
medical training, and then conveyed the doctor’s response to this question to
the other members of the jury. However, even if this extrinsic evidence had
been disclosed in the course of Pan’s trial and had been found to have had a
potentially prejudicial effect on the jury, the appropriate remedy would have
been to declare a mistrial, which was the result of the trial in any event.
Consequently, I conclude that none of the fresh evidence offered by Pan, even
if it were admissible under the common law jury secrecy rule as interpreted
above, would be relevant to the issue of whether or not O’Connell J. exercised
his discretion properly in declaring the mistrial, nor could it serve to
support the appellant’s request for an acquittal or a stay of proceedings.
2. The Sawyer Action
123
Sawyer seeks to adduce as fresh evidence an affidavit setting out the
substance of a telephone conversation he had with one of the jurors after the
verdict. The gist of the conversation was that the juror told him that the
verdict was “eating her inside” and that she had been subjected to undue
pressure in coming to the verdict and, in particular, was told by other members
of the jury that they would have to be sequestered for at least three weeks
before a hung jury could be declared. The juror also allegedly told the
appellant that racial slurs were made by some jurors in the course of the
deliberations. The majority of the Court of Appeal concluded, in my view
correctly, that this evidence fell within the scope of the common law rule of
jury secrecy and was inadmissible on appeal. Accordingly, the Court of Appeal
was correct in rejecting Sawyer’s application to adduce fresh evidence.
124
Before this Court, Sawyer focussed his submissions on the alleged racist
comments made by members of the jury. He submits that these comments show that
the jury relied on impermissible considerations in arriving at its verdict and
that the jury secrecy rules should not apply in such circumstances.
125
Applying the common law of jury secrecy as discussed above, such evidence
is clearly inadmissible. Delving into the accuracy of such allegations would
intrude into the secrecy of the deliberation process as it requires an inquiry
into the “statements made, opinions expressed or votes cast” by members of the
jury. In the words of the Law Reform Commission of Canada, with which I agree,
to permit an inquiry into the reasons why jurors voted as they did “could lead
to endless and unresolvable disputes” (Working Paper 27, supra, at p.
150). The only situation in which the substance of such allegations should be
explored is where they raise concerns serious enough to warrant an
investigation under s. 139(2) of the Criminal Code , which was not
pursued in the present appeal.
126
It is important to note that this is not one of those borderline cases
where the proposed evidence could conceivably be admissible on a broad
interpretation of the common law rule of admissibility as defined above. If
indeed racist comments were made in the jury room by one or more of the jurors,
these would fall squarely within the scope of the common law exclusionary
rule. Such comments are clearly intrinsic to the jury’s deliberations and do
not relate to any contact with information or persons outside of the jury.
I. Charge
to the Jury in Pan’s Third Trial
127
In addition to the grounds of appeal discussed above, Pan submits that
the trial judge at the third trial erred in his instructions to the jury on the
meaning of reasonable doubt. At the conclusion of the third trial, Watt J.
charged the jury on the meaning of reasonable doubt as follows:
What is meant by “proof beyond a reasonable
doubt”? It has been said, members of the jury, that the term explains itself.
It is achieved when you, as jurors, feel sure of the guilt of the
accused. It is that degree of proof which convinces the mind and satisfies the
conscience so you, as conscientious jurors, feel bound or compelled to
act upon it. You must be able to say to yourself, “He is really guilty. Of
that I am morally certain.” I said morally certain, not mathematically
certain, for it is not the obligation of the prosecution in this or any
criminal case to prove guilt to a mathematical certainty.
On the other hand, should the evidence which you
have heard leave you, as a responsible juror, with some lingering or nagging
doubt with respect to the proof of some essential element of the offence with
which the accused is charged or any offence which is included in it, so that
you are unable to say to yourself that the Crown has proven the guilt of the
accused in respect of that offence beyond a reasonable doubt, as I have defined
those words, your duty is then to find the accused not guilty in respect
of the offence about which you have such reasonable doubt.
The doubt, members of the jury, I emphasize, must
be reasonable. It must be a reasonable doubt based upon the evidence that you
have heard in this case. It must not be a speculative, fanciful,
imaginary or illusory doubt conjured up in the mind of a timid juror so that he
or she may avoid their plain duty or responsibility. It must be, as well, with
regard to an essential element of the crime, not in respect of some unessential
matter. It must not be a doubt born of sympathy for or of prejudice
against either the accused or the deceased. To put the matter shortly, it must
be a reasonable doubt founded upon the evidence adduced, neither speculative,
fanciful, illusory, imaginary, born of sympathy, nor animated by prejudice.
[Emphasis in original.]
128
In reviewing Watt J.’s charge on the meaning of reasonable doubt, the
Court of Appeal noted that the trial took place prior to this Court’s judgment
in Lifchus, supra, and, as a result, Watt J. did not have the
benefit of Cory J.’s discussion concerning the elements that should be included
and those that should be avoided in explaining reasonable doubt to the jury.
For its part, the Court of Appeal did not have the benefit of this Court’s
reasons in the recent cases of Starr, supra, Beauchamp, supra,
Russell, supra, and Avetysan, supra, concerning the
application of the Lifchus principles to cases decided prior to Lifchus.
While some of the required elements in Lifchus were omitted from Watt
J.’s charge and some of the terms that should have been avoided were included,
I do not think that the deficiencies are such that they “cause serious concern
about the validity of the jury’s verdict, and lead to the conclusion that the
accused did not have a fair trial”: Russell, supra, at para.
23. For the reasons given in the recent cases from this Court, I agree with
the Court of Appeal’s conclusion that this ground of appeal should be
dismissed.
VII. Conclusion
and Disposition
129
For these reasons, I would dismiss the appeals and answer the
constitutional questions for both the Pan and Sawyer actions as
follows:
1. Does s. 649 of the Criminal Code
infringe the rights and freedoms guaranteed by s. 7 , 11 (d) or 11 (f)
of the Canadian Charter of Rights and Freedoms ?
Answer: It is unnecessary to answer this question.
2. If the answer to Question 1 is yes, is s.
649 of the Criminal Code a reasonable limit, prescribed by law, that can
be demonstrably justified in a free and democratic society, pursuant to s. 1 of
the Canadian Charter of Rights and Freedoms ?
Answer: Given the answer to question 1, it is unnecessary to
answer this question.
3. Does the common law exclusionary rule,
precluding the admission of evidence relating to the deliberations of a jury,
infringe the rights and freedoms guaranteed by s. 7 , 11 (d) or 11 (f)
of the Canadian Charter of Rights and Freedoms ?
Answer: No.
4. If the answer to Question 3 is yes, is the
above-noted common law rule a reasonable limit, prescribed by law, that can be
demonstrably justified in a free and democratic society, pursuant to s. 1 of
the Canadian Charter of Rights and Freedoms ; and if not, ought the said
common law rule to be modified to conform with the said Canadian Charter of
Rights and Freedoms ?
Answer: Given the answer to question 3, it is unnecessary to
answer this question.
5. Does s. 653(1) of the Criminal Code
and/or the common law power of a judge to declare a mistrial, during or
following the deliberations of the jury, violate the protection against double
jeopardy which is guaranteed by s. 7 of the Canadian Charter of Rights and
Freedoms ?
Answer: No.
6. If the answer to Question 5 is yes, is s. 653(1)
of the Criminal Code , or the said common law power to declare a
mistrial, a reasonable limit, prescribed by law, that can be demonstrably
justified in a free and democratic society, pursuant to s. 1 of the Canadian
Charter of Rights and Freedoms ; and if not, ought the common law power to
be modified to conform with the said Canadian Charter of Rights and Freedoms ?
Answer: Given the answer to question 5, it is unnecessary to
answer this question.
7. Does s. 653(2) of the Criminal Code
violate s. 7 , 11 (d) or 11 (f) of the Canadian Charter of Rights
and Freedoms ?
Answer: It is unnecessary to answer this question.
8. If the answer to Question 7 is yes, is s.
653(2) of the Criminal Code a reasonable limit, prescribed by law, that
can be demonstrably justified in a free and democratic society, pursuant to s.
1 of the Canadian Charter of Rights and Freedoms ?
Answer: Given the answer to question 7, it is unnecessary to
answer this question.
Appeals dismissed.
Solicitor for the appellant Rui Wen Pan: Keith E. Wright,
Toronto.
Solicitors for the appellant Bradley Sawyer: Buhr &
Kert, Toronto; Pinkofsky Lockyer, Toronto.
Solicitor for the respondent: The Attorney General for
Ontario, Toronto.
Solicitor for the intervener the Attorney General of
Canada: The Department of Justice, Ottawa.
Solicitor for the intervener the Attorney General of
Quebec: The Department of Justice, Sainte-Foy.
Solicitor for the intervener the Attorney General of
Manitoba: The Department of Justice, Winnipeg.
Solicitor for the intervener the Attorney General of British
Columbia: The Ministry of the Attorney General, Vancouver.
Solicitors for the intervener the Criminal Lawyers’ Association
(Ontario): Sack Goldblatt Mitchell, Toronto.