Laforet v. R., [1980] 1 SCR 869

Supreme Court of Canada

Laforet v. R., [1980] 1 S.C.R. 869

Date:1979-12-21

Roland Laforet (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1979: March 8; 1979: December 21.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Jury trial—Bodily harm with intent to wound—Possession of a weapon, an automobile jack—Included offence—Poll of jury—Response of juror—Ambiguity of response—Whether proper course followed by judge—Unanimous verdict finally given.

Appellant indicted on two counts—of causing bodily harm with intent to wound and of having possession of a weapon, namely an automobile jack, for a purpose dangerous to the public peace—was tried before a jury. On count 1 he was found not guilty but guilty of the included offence of assault causing bodily harm. He was found guilty on count 2. His appeal to the Court of Appeal was dismissed without written reasons.

Appellant’s grounds of appeal are based on what transpired when the jury was polled after rendering the verdict of guilty. As to count 1, the third juror polled began her response “Not guilty of 1…” The Court then attempted to clarify the question being asked of her. She then reiterated “Not guilty to the first one. Somebody can explain.” After a further brief dialogue the jury retired while the judge heard submissions from counsel. Thereafter the jury returned and the judge spoke to the juror in question; the jury again retired and later returned with a unanimous verdict. Appellant’s case was in essence that the trial judge acted improperly in following the course adopted after the poll, at which point it was questionable whether the verdict given by the foreman was in fact unanimous.

Held (Dickson and Estey JJ. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Pigeon, Beetz and Mclntyre JJ.: The duty of the trial judge in such a situation is that he should carefully assure himself that there is no misapprehension on the part of the jury as to the effect of their verdict and that they concur in the decision. In

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order to succeed on the present appeal appellant must show that the trial judge failed in that duty. The judge here took steps to satisfy himself, in asking the jury to retire, then hearing the submissions by counsel, and by enquiring of the juror as to her understanding of the matter and receiving the answer that she understood. There was no error of law on the part of the trial judge. The juror’s answers though convoluted were adequate to show that she appreciated the difference between count 1 and the included offence but had difficulty in explaining. The trial judge saw and heard the juror and exercised his discretion.

The further ground raised, that the recharge of the trial judge on the question of a unanimous verdict could have caused a juror reasonably to conclude that a jury did not have a right to disagree was not justified. Considered in context the reinstruction was no more than a request that the jury again consider the issue as to whether or not they were indeed unanimous, and whether the verdict was a true one.

Finally, there was no error on the part of the judge in failing to have the jury polled on count 2. Such polling is not a legal requirement. A request to poll is usually allowed where doubt as to unanimity appears to exist. At the request of counsel the jury was polled on count 1 but no request was made as to count 2 and there was no indication that the juror was in doubt as to her verdict on that count.

Per Dickson and Estey JJ., dissenting: The only issue is whether or not on the record as revealed in the transcript the appellant was indeed found guilty by a court composed of a judge and a jury which was properly charged and delivered its unanimous verdict according to law. The difficulty arises in the juror’s initial response. She said the accused was not guilty to “the first one”; presumably the first charge. What was not clear was whether the juror meant not guilty to the charge and any lesser included offences or to the charge only. There was further ambiguity in her second response, i.e., whether or not her reference to “the second” referred to the second charge or to a lesser included offence in the first charge. Further, comments by counsel indicated a common impression by both counsel that the juror did not understand the first charge and any lesser included offences. Notwithstanding this state of affairs as revealed on the record as between counsel and Court and juror and Court the judge proceeded to address the jurors not as to the charges concerning which juror had revealed at least

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some misunderstanding but rather on the need for a unanimous verdict. It was for the appellate tribunal to determine if the circumstances revealed by the record demanded that the presiding justice reinstruct the jury on those points of law which seemed to be raised by the juror and on any pertinent segments of the evidence. In this case it seems that the judge did not adequately respond to the needs of the juror and there should therefore be a new trial.

[R. v. Ford (1853), 3 U.C.C.P. 209; R. v. Bryan (1971), 1 C.C.C. (2d) 342; R. v. Recalls [1935] O.R. 479, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing without written reasons an appeal from convictions of assault causing bodily harm and of possession of a weapon dangerous to the public peace. Appeal dismissed, Dickson and Estey JJ. dissenting.

A.Z. Kerekes, for the appellant.

W.J. Blacklock, for the respondent.

The judgment of Martland, Ritchie, Pigeon, Beetz and Mclntyre JJ. was delivered by

MARTLAND J.—The appellant was indicted on two counts, that he:

1. …at the City of Windsor in the County of Essex, on or about the 22nd day of August, 1975, with intent to wound Brian Maskery did cause bodily harm to the said Brian Maskery, contrary to the Criminal Code of Canada;

2. …at the City of Windsor in the County of Essex, on or about the 22nd day of August, 1975, did have in his possession a weapon, to wit: an automobile jack, for a purpose dangerous to the public peace, contrary to the Criminal Code of Canada.

He was tried before a jury. On count 1, he was found not guilty of the offence charged, but guilty of the included offence of assault causing bodily harm. He was found guilty oil count 2.

His appeal to the Court of Appeal was dismissed without written reasons. He appeals, with leave, to this Court.

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The appellant’s grounds of appeal are based upon what transpired when the jury was polled after the verdict of guilty had been rendered. I quote the relevant portions of the transcript:

THE CLERK: The jurors are all present Your Honour. Members of the jury have you agreed upon your verdict. Mr. Foreman, do you find the prisoner at the bar guilty or not guilty as charged. Count No. 1.

THE FOREMAN: Not guilty as charged, but guilty of the included offence of assault causing bodily harm.

THE CLERK: And count No. 2.

THE FOREMAN: Guilty as charged.

THE CLERK: Members of the jury harken to your verdict as the court hath recorded it. You say the prisoner at the bar is not guilty as charged on Count No. 1, but guilty of assault causing bodily harm and guilty as charged on count No. 2. So say you all?

THE JURY: Yes.

THE COURT: Mr. Cottrell would you like the jury to be polled.

MR. COTTRELL: I would like to poll the jury Your Honour.

THE CLERK: Members of the jury as I call your name, would you answer guilty of assault causing bodily harm on count No. 1 or not guilty if your verdict be not guilty.

1ST JUROR—Guilty of assault causing bodily harm.

2ND JUROR—Guilty of assault causing bodily harm.

3RD JUROR—Not Guilty of 1—

THE COURT: Mrs. Sfalcin, you are being asked if on the first count in the indictment you found the accused not guilty of the original count, but guilty of the included offence of assault causing bodily harm.

3RD JUROR—Not Guilty to the first one. Somebody can explain.

MR. COTTRELL: With respect Your Honour really, perhaps this particular juror may have had some difficulty understanding.

3RD JUROR—I can understand for the second, not the first one.

THE COURT: Mrs. Sfalcin, would you stand please.

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(Juror stands)

THE COURT: Did you understand the evidence Mrs. Sfalcin?

3RD JUROR—I understand, but when they said, not the first thing, really try to do something, guilty not, but just to scare the man, in the second line of the No. 2 and the Bl say not—

THE COURT: Did you understand, did you understand the different verdicts that I read out for the jury?

3RD JUROR—Yes. Is not the first one really try to do something but the second try to scare the—(interposing)

THE COURT: Ladies and Gentlemen, I am going to ask you to retire to the jury room for a few minutes.

NOTE: Jury retires to the jury room.

The trial judge then heard submissions from counsel, which included the following:

MR. COTTRELL: With respect Your Honour, not intending any disrespect for that particular juror, but it appears from the conversation we had up to this point, she doesn’t understand. What she said, she called it A and B and has a difficulty of explaining it. I think there is a serious doubt whether she understood the evidence, obviously she is having—again with no disrespect to her, she is having difficulty explaining her position.

THE COURT: She is having difficulty in expressing herself no question about that. I am very concerned about her, if she fully understood the evidence as it was stated, and fully understood the distinction between the original charge and the included offence.

Following the completion of the submissions by counsel, the jury returned and the judge spoke to Mrs. Sfalcin and to the jury, as follows:

THE COURT: Mrs. Sfalcin, I am just going to ask you one question, I don’t want to get into any discussion with you. I just want you to answer the question that I will ask. Did you understand clearly, the evidence that was given in this trial?

THE JUROR: Yes.

THE COURT: Ladies and gentlemen of the jury, as I explained to you at the outset, it is necessary that this verdict be unanimous. I want to make it clear that everyone has agreed on the verdict that you will render to insure that there is a true verdict. I am going to ask you to bear with me, and to retire to the jury room for another fifteen minutes, at which time if you feel that

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there is a complete unanimity amongst you, with reference to the verdict, you will come back and render the verdict again.

A further submission was made by counsel for the accused at the end of which the judge said:

. It is my view that the situation that confronts this court is that I am not satisfied that the verdict of the jury is unanimous, as I feel that I am entitled to require the jury to return to the jury room to consider the question that is before them, and to arrive at a unanimous verdict, if that is possible, and that is what I intend.

The jury returned later and the transcript reads:

THE CLERK: Members of the jury have you agreed upon your verdict. Mr. Foreman, do you find the prisoner at the bar guilty or not guilty as charged on count No. 1.

THE FOREMAN: We find, not guilty as charged, but guilty of the included offence of assault causing bodily harm, and count No. 2 guilty as charged. And it is unanimous.

THE COURT: Mr. Cottrell, do you wish to have the jury polled.

MR. COTTRELL: Yes Your Honour.

THE CLERK: Members of the jury, as I call your name would you please answer guilty if your verdict be guilty, or not guilty as charged but guilty of assault causing bodily harm or not guilty.

ALL THE JURORS SAID: Not guilty as charged, but guilty of an offence assault causing bodily harm.

THE COURT: Ladies and Gentlemen of the Jury, I wish to thank you for the kind attention you have paid to the evidence in this case. I must say that on the evidence as I have heard it, I do agree with your verdict that you have arrived at. Thank you again for taking part in the administration of justice in the country. You are free to retire.

The appellant has raised a number of grounds but the principal ones are, in essence, that the trial judge acted improperly in following the course which he adopted after the difficulty arose in respect of the answer made by Mrs. Sfalcin, hereinafter referred to as “the juror”, to the Clerk when the jury was polled. At that point it was questionable whether the verdict of guilty in

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respect of the offence of assault causing bodily harm, which had been delivered by the foreman, was, in fact, unanimous.

The duty of the trial judge in such a situation was stated many years ago by Chief Justice Macaulay in R. v. Ford[1], at p. 217:

That a jury may correct their verdict, or that any of them may withhold assent and express dissent therefrom at any time before it is finally entered and confirmed, is clear from numerous authorities; and the judge presiding over a criminal court cannot be too cautious in being assured that, when a result so serious to the party accused as a verdict of guilty is arrived at, all the jury understand the effect and concur in the decision; and if at any moment, before it is too late, anything occurs to excite suspicion on this subject, he should carefully assure himself that there is no misapprehension in the matter.

The task of the trial judge is stated in this passage as being that he should carefully assure himself that there is no misapprehension in the matter. This statement was adopted by McFarlane, J.A., in the Court of Appeal for British Columbia in R. v. Bryan[2], at p. 344.

That case involved an appeal by the Crown following an acquittal on a charge of indecent assault. When asked by the Clerk if the jury had arrived at a verdict, the foreman stated that they had and that the verdict was not guilty. The Clerk then asked if that was the verdict of all of them, and to rise to indicate that they were unanimous. A member of the jury stated “I’m not”, but then arose with the rest of the jurors. The trial judge held that the verdict had been given. The Crown appealed on the basis that the trial judge had erred in holding that a verdict had been given when one juror had stated that she was not in agreement with the verdict. The appeal was dismissed.

McFarlane, J.A., after referring to the statement in the Ford case, went on to say that there are no rules to bind the judge as to how he should

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assure himself that there is no misapprehension in the matter. In that case it was pointed out that the jury could have been polled, but that procedure was not required by law. McFarlane, J.A., continued as follows, at pp. 344-45:

I think that in order to succeed on this appeal the Crown must satisfy this Court that the learned trial judge failed to so assure himself. I find no assistance in determining this question from the report made to this Court under Code, s. 588 [am. 1960-61, c. 44, s. 10; 1968-69, c. 38, s. 58] in which the learned trial Judge says that he accepted the verdict:

…but upon reflection, I feel that I ought not to have done so: it would have been better, probably, to have sent the jury back for further deliberation.

The fact that on reflection the Judge feels another course might probably have been better does not show that in accepting the verdict, as he did, he had failed at the time to be satisfied in his own mind that the doubt about unanimity was resolved. It may be significant that the verdict was rendered on February 13, 1969, and that the learned Judge’s report is dated March 11, 1970.

Counsel for the respondent has pointed out, quite properly, that Crown counsel at the trial remained silent and did not suggest a poll or any other procedure. In my view, this conduct of Crown counsel is not conclusive, but it does indicate to me that counsel too was of the opinion that the jurywoman who said “I’m not” had, by standing with the other jurors and by her demeanour given her assent to the verdict of acquittal. It is impossible to rely on speculation as to her gestures and facial expression after she had risen and was standing with the other jurors. These were observed by the learned trial Judge and are not disclosed by the written record.

The learned Judge’s remark, “Well, I’m afraid the verdict has been given” is important. It was made after some interval of time. I do not know how long or how short. The words, “I’m afraid” are equivocal. I do not think I should infer from them that there remained a doubt in the Judge’s mind that the verdict was unanimous, especially as they are followed immediately by the unequivocal statement “the verdict has been given”.

The matter is not entirely free from doubt, but on the whole, I am not persuaded the Judge failed to assure himself that the doubt raised by the jurywoman’s remark was not really removed by her subsequent conduct. On that view the appeal of the Crown should be dismissed.

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In order to succeed on the present appeal, the appellant must show that the trial judge failed to assure himself that there was no misapprehension in the matter. In the present case, unlike the Bryan case, the trial judge did take steps in order to satisfy himself. He asked the jury to retire and then heard submissions by counsel. Before the jury retired he had received the juror’s statement, in answer to his question, that she understood the evidence.

Near the beginning of the discussion with counsel, the judge stated that the juror had difficulty in expressing herself and that he was concerned as to whether she understood the evidence and fully understood the distinction between the original charge and the included offence. He proceeded to hear the submissions of both counsel. Counsel for the appellant contended that the juror did not comprehend the charges and that she had difficulty in understanding the evidence.

The Court then rose and the trial judge had an opportunity to consider the situation. That situation was that he had clearly told the jury in his charge that if the Crown had not proved to their satisfaction the element of intent to wound, or if they had a reasonable doubt on that point, they must consider whether the appellant had committed an assault causing bodily harm. He clearly defined that offence. The jury had returned a verdict of guilty of that offence, but the juror’s answer on the poll raised a question as to her concurrence in that verdict.

The jury was recalled. The juror was asked again whether she clearly understood the evidence and she answered “yes”. He then instructed the jury that everyone had to agree if there was to be a true verdict. The jury retired. Counsel for the appellant made further submissions. The judge then said:

It is my view that the situation that confronts this court is that I am not satisfied that the verdict of the jury is unanimous, as I feel that I am entitled to require the jury to retire to the jury room to consider the question that is before them, and to arrive at a unanimous verdict, if that is possible, and that is what I intend.

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The jury returned later with a verdict of guilty of the included offence of assault causing bodily harm. They also found the accused guilty on Count 2. The jury was polled on the finding in relation to Count 1 and confirmed the verdict.

In my opinion there was no error of law on the part of the trial judge in adopting the course of procedure which he followed. He took the steps which, in his discretion, he deemed necessary to assure himself that the jury was rendering a unanimous verdict of guilt in respect of the included offence. After considering the submissions of counsel, he decided that it was not necessary to recharge the jury regarding the included offence. This was his decision to make. The jury had already been properly charged on that issue. The juror’s answers, though convoluted, did show that she appreciated the difference between the offence charged in Count 1 and the included offence, but had difficulty in explaining.

Not guilty to the first one. Somebody can explain.

Is not the first one really try to do something but the second try to scare.

To me this discloses that she did not find the appellant guilty of Count 1, as charged, but did not clearly indicate a finding of guilt of the included offence although she attempted to distinguish it from the first Count.

The trial judge saw and heard the juror and could reach a conclusion as to the necessity for a recharge on the law to the whole jury. After careful thought he exercised his discretion. In making the decision which he did, I do not find any error in law on his part.

This was the unanimous view of the Court of Appeal.

Another ground of appeal raised on behalf of the appellant is that the recharge of the trial judge on the question of a unanimous verdict could have caused a juror reasonably to conclude that the jury did not have a right to disagree.

In my opinion the trial judge’s recharge as to unanimity cannot be said to have that effect.

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Considered in the context of the events which led up to this recharge, and in light of the trial judge’s comments in his initial charge, the re-instruction can be seen as no more than a request that the jury again consider the issue as to whether or not they were unanimous in their verdict in order to ensure that the verdict rendered was a true verdict in accordance with their duty as jurors. The trial judge had already made it clear to the jury, in his initial comments to them, that they had the right to disagree.

It was further contended that there was error in law on the part of the trial judge in failing to have the jury polled with respect to Count 2. The polling of the jury after rendering its verdict is not a legal requirement (R. v. Recalla[3]). A request to poll is usually allowed where doubt as to unanimity appears to exist. At the request of counsel for the appellant the jury was polled as to Count 1. No additional request was made for a poll in respect of Count 2. There was no indication that the juror was in doubt as to her verdict on Count 2.

For these reasons, in my opinion, the appeal should be dismissed.

The reasons of Dickson and Estey JJ. were delivered by

ESTEY J. (dissenting)—I have had the opportunity of reading the reasons for judgment of my brother Martland in this appeal and for reasons which I will now set out I must respectfully come to a different result. Martland J. has set out the principal portions of the evidence dealing with the issue with which we are here concerned as well as the charges upon which the appellant was tried and found guilty.

The only issue, of course, is whether or not on the record as revealed in the transcript, the appellant has indeed been found guilty by a court composed of a judge and a jury which was properly charged and delivered its unanimous verdict according to law.

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The difficulty arose when, at the request of defence counsel, the jury was polled. In the course of the polling of the third juror, Mrs. Sfalcin, made the following responses:

3RD JUROR—Not Guilty of 1—

THE COURT: Mrs. Sfalcin, you are being asked if on the first count in the indictment you found the accused not guilty of the original count, but guilty of the included offence of assault causing bodily harm.

3RD JUROR—Not Guilty to the first one. Somebody can explain.

MR. COTTRELL: With respect Your Honour really, perhaps this particular juror may have had some difficulty understanding.

3RD JUROR—I can understand for the second, not the first one.

THE COURT: Mrs. Sfalcin, would you stand please.

(Juror stands)

THE COURT: Did you understand the evidence Mrs. Sfalcin?

3RD JUROR—I understand, but when they said, not the first thing, really try to do something, guilty not, but just to scare the man, in the second line of the No. 2 and the Bl say not—

THE COURT: Did you understand, did you understand the different verdicts that I read out for the jury?

3RD JUROR—Yes. Is not the first one really try to do something but the second try to scare the—(interposing)

Following this exchange the jury was directed to retire and a discussion ensued between Court and counsel. Upon the return of the jury the following exchange took place:

THE COURT: Mrs. Sfalcin, I am just going to ask you one question, I don’t want to get into any discussion with you. I just want you to answer the question that I will ask. Did you understand clearly, the evidence that was given in this trial?

THE JUROR: Yes.

We are therefore concerned with whether or not the presiding justice responded according to the tenets of criminal law to the comments or answers given by the third juror. The difficulty arises in the juror’s initial response. First of all she said that the accused was not guilty “to the first one”. Presumably this means the first

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charge but does not indicate whether the juror means not guilty to the charge and any lesser included offences or the charge only. She did twice state one way or another that the accused was not guilty of the first one.

Her second response presumably dealt with the second charge which she apparently professed to understand. In so stating, however, she said in as many words that she could not understand the first “one.” The ambiguity arising from this comment of course relates to whether or not she refers to the second charge or a lesser included offence in the first charge when she refers to “the second.” The problem becomes more serious when one tries to discern a meaning from her final comments. The difficulty of ascertaining the true meaning of the juror’s response was either caused or greatly increased by the Clerk of the Court when, in addressing the jury on the poll, he confined his question entirely to the first count. In the first instance, the Clerk’s words to the jury were:

THE CLERK: Members of the jury as I call your name, would you answer guilty of assault causing bodily harm on count No. 1 or not guilty if your verdict be not guilty.

On the second occasion the Clerk spoke as follows:

THE CLERK: Members of the jury, as I call your name would you please answer guilty if your verdict be guilty, or not guilty as charged but guilty of assault causing bodily harm or not guilty.

ALL THE JURORS SAID: Not guilty as charged, but guilty of an offence assault causing bodily harm.

Thus it appears that the jurors were never polled on count no. 2.

It is interesting to note the response of both Court and counsel to the unexpected response by juror no. 3 to the polling by the Clerk. In the absence of the jury, the following discussion occurred:

MR. COTTRELL [counsel for the accused]: With respect Your Honour, not intending any disrespect for that particular juror, but it appears from the conversation we had up to this point, she doesn’t understand. What she said, she called it A and B and has a difficulty of explaining it. I think there is a serious doubt whether she understood the evidence, obviously she is having—again with no disrespect to her, she is having difficulty explaining her position.

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THE COURT: She is having difficulty in expressing herself no question about that. I am very concerned about her, if she fully understood the evidence as it was stated, and fully understood the distinction between the original charge and the included offence. (underlining added)

MR. COTTRELL: She indicated sir, I believe, the first one meant to try and kill him and the second one was to scare him. I believe she said that B meant to scare, that certainly is not assault bodily harm, it is not an element of assault bodily harm. I think we have to be concerned whether she understood the evidence, as she certainly does not understand the charge itself on count one.

THE COURT: Mr. Hunter.

MR. HUNTER [counsel for the Crown]: She stated quite clearly she understood the evidence. I think she stated quite clearly, there is doubt in her mind that the accused is guilty of count No. 2. I think she indicated that he was guilty of count No. 2.

THE COURT: Count No. 2 is not the included offence.

MR. HUNTER: I understood her to say that, she went along with count No. 2.

THE COURT: But we are concerned with count No. 1. That was my understanding, she has not been asked about count No. 2.

MR. HUNTER: In that case it is a question of whether he is not guilty of count No. 1 as charged, but guilty of the included offence of count No. 1, or is she referring to count No. 2.

THE COURT: I don’t know what she is referring to. (Underlining added.)

MR. HUNTER: Perhaps if we can go into that a little more, she realises there is an included offence in count No. 1.

THE COURT: I don’t want to cross-examine her in what she means, this is a difficulty obviously, since the jury has returned, at least it must have been the impression amongst the other jurors, that they have reached a unanimous verdict. It places the court in a difficult position to start asking her questions.

MR. HUNTER: Well, Your Honour, when the jury is brought back in, I would ask that perhaps you will explain the included offence in count No. 1 again, and ask the jury to return again sir.

THE COURT: Thank you Mr. Hunter. Mr. Cottrell.

MR. COTTRELL: With all respect to Mr. Hunter, it appears that they have come to a verdict, and have come

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in and said not guilty of the main offence in count No. 1, but guilty of assault causing bodily harm. They performed a function, and on being polled, that particular juror has indicated to the court, she said, not guilty of one, because that means to kill him, and No. 2 or B that means to scare him.

THE COURT: I didn’t hear her say that means to kill him. I heard her say that means to scare him.

MR. COTTRELL: I believe she said Count 1, the main charge of wounding or to try and kill him, I would say that from what she said before Your Honour, before you retired the jury the second time, it appears she has no comprehension of the charges. Coupled with the fact again with no dis-respect of that particular juror, she obviously has a difficulty in communicating in the English language. There is also that substantial possibility, she may have had difficulty understanding the evidence. I think that is a reasonable problem before the court, giving that the conversation that Your Honour has had with her a few minutes ago, I can’t say for sure—I believe the reporter could verify that, when she first started to explain, I believe she used the word to the effect not guilty, that means trying to kill him, but guilty of either two or B, because that means just to scare him. That might indicate she is saying not guilty completely of count 1, but guilty of count 2.

The foregoing comments by counsel and like comments as revealed on the record which were made after the discourse between juror and Court indicate a common impression by both counsel that the juror did not understand the first charge and any lesser included offences. Notwithstanding this state of affairs as revealed by discussion between counsel and the Court, and indeed between juror no. 3 and the Court, the learned trial judge proceeded to address the jurors not with respect to the charges concerning which the juror had obviously revealed at least some misunderstanding, but rather on the need for a unanimous verdict.

It is the treatment by the trial judge of the situation which arose from the foregoing interchanges which must determine whether or not there has been in law a unanimous verdict of the jury on the charges. In examining the record at trial in such circumstances, an appellate tribunal must be constantly aware of the advantage enjoyed by the trial judge in seeing the juror in question

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and in measuring his or her reaction to the questions put by the Court. On the other hand, the right of the defendant to a fair trial in every phase and aspect of the proceedings in the courtroom is paramount, and however inadvertent a remark, observation or a direction may be, if it is open to an inference which places the authenticity of the juror’s determination in doubt, then the appellate tribunal may not, in my view, assume that the mind of the juror has been unequivocally reflected in the juror’s response to the poll.

There are numerous situations in which a juror’s conduct may frustrate the attempt by the Court to obtain a clear and unanimous verdict from the jury. For example, if a juror is found not to understand English the verdict must be set aside. See Ras Behari Lal et al. v. The King-Emperor[4]. A somewhat similar circumstance arose in the Ontario Court of Appeal in R. v. Ellison (February 9, 1976, unreported), where a juror, upon being polled, said “Guilty, Your Honour—but with some doubt”. In response to a request by the trial judge as to whether the juror meant guilty or not guilty, the juror replied “Guilty Your Honour”. The Court went on to record the verdict of the jury as being “guilty”. The Court of Appeal directed a new trial being of the opinion that the trial judge should not have accepted the verdict of the jury in such a circumstance without further enquiries. Kelly J.A., speaking for the Court, stated:

In some cases the matter may be resolved by a simple enquiry from the trial Judge to the jury. It is not desirable, however, that the trial Judge should enter into dialogue with the members of the jury. It is preferable that the trial Judge re-instruct the jury on those points upon which he has reason to believe there may have been misunderstanding of his earlier instruction and send the jury back to reconsider the evidence in the light of the re-instruction.

It is apparent that one alternative source of confusion in the mind of the juror was the relationship to the first count and charges included therein. The unsettled state of her mind as revealed by her comments in the course of the polling operation called for the presiding justice, in my view, to

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re-instruct the jury in the manner suggested in the Ellison case, supra. The learned trial judge on the other hand proceeded to refresh the memory of the jurors on the need to be unanimous in their verdict. I find nothing in the juror’s comments, however, which would indicate any confusion on the subject of the need for unanimity. Indeed, Mrs. Sfalcin, in her comments, indicates quite the contrary in one possible interpretation, i.e., that there is not unanimity in at least one phase of one count of the charges. It may well be that a jury reporting its decision in a civil tribunal might, under similar circumstances, be able to retire and come in with a verdict beyond challenge. In the criminal arena where the liberty of a subject is at stake, such latitude is not traditionally found in the law. The tribunal in question consists of a court comprising the jury and the presiding justice. The jury as the ultimate tribunal of fact must pronounce its verdict precisely in the manner prescribed by law. Here there is a serious question as to whether the jury has pronounced a unanimous verdict in respect of each of the two charges. In such a circumstance, what is the role of the appellate tribunal? As I have mentioned, the opportunity of the trial judge to observe the demeanour of the juror is not given to the appellate tribunal. Furthermore, of necessity, latitude must be given to the presiding justice in the manner of communication with the jury. What is not, however, in my view, open to the appellate tribunal is the right to speculate as to what the juror intended when communicating his or her vote on the verdict when being polled. At that stage I adopt the views expressed in the Ellison case, supra. On principle, the appellate tribunal must determine whether or not the circumstances as revealed by the record demanded that the presiding justice re-instruct the jury on those points of law which seem to be raised by the juror’s comments, and on any segments of the evidence which may be related thereto. It is, of course, a function in the nature of a recharge normally called for by counsel for prosecution or defence. In some circumstances no doubt, the briefest re-assertion or repetition of the explanation given as to the law applicable to the charges in question will suffice. In the circumstances revealed by this record it is my view that the learned trial

judge did not adequately respond to the needs of the juror as revealed by her comments and I therefore would direct a new trial.

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Having come to such a conclusion, it is not necessary to deal at length with the challenge advanced by the appellant concerning the recharge on the question of unanimity. If I were called upon to do so, I would, with respect, adopt the comments of my brother Martland. The duty incumbent upon the instructing judge when dealing with the necessity for unanimity has been fully dealt with by this Court on earlier occasions (Hébert v. The Queen[5]; Harrison v. The Queen[6] and Latour v. The King[7]) and to review these cases once again would add nothing to the law.

I am assisted in reaching this conclusion with respect to the charge concerning unanimity by the fact that the learned trial judge, in his initial charge, dealt with the subject fully, fairly and accurately, and in his general observations anticipated the possibility of a recharge and instructed the jury to consider the charge and any recharge as an entire instruction, or in his words, to consider “the totality of the charge”.

Counsel for the appellant made reference to s. 573 of the Criminal Code which makes provision for the discharge of a juror for “illness or other reasonable cause”. This section is prefaced “Where in the course of a trial…”. Here the difficulty arose after these proceedings had come down to the last act, the recording of the jury’s verdict. The appellant, however, did not go so far as to submit that difficulty in communicating a verdict by a juror during a poll would amount to “reasonable cause” for the discharge of a juror by a judge under the section. This Code provision does not, in my view, provide the solution in these circumstances.

Finally, it is said by the appellants that the reference by the learned trial judge in his final comments to the jury: “I am going to ask you to bear with me and to retire to the jury room for

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another 15 minutes...” imposed a time element upon the jury. Such a practice was condemned in R. v. McKenna[8] and in R. v. Davidson[9]. In the proceedings now before the Court, however, the reference to time cannot reasonably be construed as imposing a limit on any deliberations which the jury might wish then to undertake. Rather, it was couched in terms of the overriding concern of the trial judge with the issue of unanimity with which I have dealt. I would not, if it were required in disposing of this appeal, come to any conclusion different to my brother Martland with respect to this aspect of the appeal.

For the reasons set out above, I would therefore allow the appeal, set aside the conviction entered at the trial court, and direct a new trial.

Appeal dismissed, DICKSON and ESTEY JJ. dissenting.

Solicitors for the appellant: Kerekes, Collins, Toronto.

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