Her Majesty the Queen v. Burke [Indexed as: R. v. Burke]

53 O.R. (3d) 600

[2001] O.J. No. 1119

Docket No. C31683

Court of Appeal for Ontario

Weiler, Goudge and Simmons JJ.A.

March 30, 2001

• Note: An appeal to the Supreme Court of Canada (McLachlin C.J., Iacobucci, Major, Binnie, Arbour, LeBel, L'Heureux-Dubé, Gonthier and Bastarache JJ.) was allowed and a new trial ordered on June 21, 2002. S.C.C. File No. 28546. S.C.C. Bulletin, 2002, p. 960. This information was noted at 2002 SCC 55, 61 O.R. (3d) 256. Full text of the SCC appeal is available at [2002] S.C.J. No. 56 (2002 SCC 55) in the SCJ database.

Criminal law--Trial--Jury--Verdict--Trial judge and others in courtroom mishearing jury foreman's "Guilty as charged" verdict as "Not guilty as charged"--Trial judge recording verdict as "Not guilty" and discharging jury--Trial judge subsequently recalling jurors to inquire into verdict--Trial judge satisfying himself that foreman's verdict had been "Guilty" and that no jury tampering had taken place after verdict delivered --Trial judge's mishearing of jury's verdict constituting accidental slip which could be corrected even though trial judge was functus officio--Trial judge having jurisdiction to correct his misunderstanding of verdict.

The accused was tried on a charge of attempted murder. When the jury returned its verdict, the trial judge and other persons in the courtroom heard the foreman say, "Not guilty as charged". Ten of the members of the jury thought the foreman said, "Guilty as charged", which was what they had decided. The verdict was recorded as "Not guilty". The trial judge discharged the jury. Moments later, the court officer who escorted the jurors out of the courtroom was told by the foreman that the verdict was "guilty". The court officer informed the trial judge of the error. The foreman and a second juror were located and called back to the courthouse. The jury foreman was asked what verdict he had pronounced, and he said, "Guilty as charged". The trial judge endorsed the indictment, "in the absence of the accused, inquiry commenced as to jury's verdict." Two days later, the trial judge conducted an inquiry into the verdict. The accused was not present. The trial judge ordered the accused to appear and issued a bench warrant for his arrest. The proceedings resumed three days later in the presence of the accused. Defence counsel wished to test the credibility of the answers provided by the ten jurors who, in addition to the foreman, stated that the verdict announced in court was "guilty". The trial judge was concerned about a potential violation of s. 649 of the Criminal Code, R.S.C. 1985, c. C-46, which makes it an offence for any member of a jury to disclose any information relating to proceedings of the jury that were not subsequently disclosed in open court unless the information relates to a juror who has been charged with obstructing or perverting the course of justice. Defence counsel brought an application for relief under s. 24(1) of the Canadian Charter of Rights and Freedoms, arguing that the limitation in s. 649 on the accused's right to cross-examination in these unique circumstances violated s. 7 of the Charter. The trial judge dismissed the application, but agreed to ask each juror whether, between the giving of the verdict and their testimony at the inquiry, anything was said to them or read or heard by them that affected their testimony at the inquiry. The jurors replied in the negative. The trial judge ruled that he had jurisdiction to change the recorded verdict to "guilty as charged". He did so. The accused was sentenced to 12 1/2 years' imprisonment. The accused appealed his conviction and his sentence.

Held, the appeal should be dismissed.

Per Weiler J.A. (Simmons J.A. concurring): Once a jury has returned a verdict and is discharged, it is too late to make inquiries relating to the nature of the verdict. That rule is based on a number of policy objectives: encouraging free and frank debate in the jury room, ensuring the finality of the verdict and protecting individual jurors from post-trial harassment. In this case, the jury arrived at a complete verdict and delivered it. The finality of the verdict was not in issue. The common law rule that prohibits any inquiry into the deliberations of a jury is based on the belief that the secrecy of jury deliberations is necessary to ensure the proper and effective operation of the jury trial system. Consequently, it is the internal deliberation process, the thoughts, statements and opinions of the individual jurors during deliberation, that is protected. The rule does not, however, extend to all aspects of juror conduct. Secrecy does not attach to communications or events occurring outside the jury room. This was not a case in which the trial judge had to inquire into the jury's deliberations or what had been agreed upon in the jury room. The concern in this case was with an external event, namely, what the foreman said in open court and what the trial judge heard. The trial judge found there was no air of reality to any suggestion of jury tampering.

Once a jury has been discharged, the trial is over. Although a judicial body is functus, a clerical mistake or error arising from an accidental slip or omission can be corrected. The trial judge's error in mishearing the jury's verdict was akin to an accidental slip and could be corrected. The trial judge had jurisdiction to correct his misunderstanding of the verdict.

The accused's constitutional right to cross-examination was not violated by s. 649 of the Criminal Code and the trial judge's ruling. Section 649 prohibits the disclosure of information relating to the proceedings of the jury ". . . when it was absent from the courtroom". The word "proceedings" in s. 649 has the same meaning as "deliberations". The information disclosed in this case did not concern the deliberations of the jury. The jury had finished its deliberations. Nor did the information relate to what took place when the jury was absent from the courtroom, but the opposite. There was no violation of s. 649.

The accused's right to be present during his trial was not compromised when the trial judge commenced the verdict inquiry in his absence. The accused was aware of the proceedings and chose not to attend. Having made that choice, he could not now complain. The process crafted by the trial judge to correct the error in this case was conducted fairly.

In all the circumstances, the 12 1/2-year sentence, while at the upper end of the range, was not so high as to warrant intervention.

Per Goudge J.A. (dissenting): In a criminal case, once a jury has been discharged, it cannot be recalled to determine the true nature of its verdict and to correct any error in the transmission and recording of that verdict.

APPEAL from a conviction for attempted murder and from sentence.

R. v. Head, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684, 53 Sask. R. 1, 35 D.L.R. (4th) 321, 70 N.R. 364, [1987] 1 W.W.R. 673, 30 C.C.C. (3d) 481, 55 C.R. (3d) 1, distd Other cases referred to Bricmont v. Mathieu (1987), 7 Q.A.C. 199 (C.A.); Chandler v. Alberta Assn. of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, 70 Alta. L.R. (2d) 193, 62 D.L.R. (4th) 577, 99 N.R. 277, [1989] 6 W.W.R. 521; R. v. Auger (1982), 1982 CanLII 3895 (QC CA), 4 C.C.C. (3d) 282 (Que. C.A.); R. v. H. (E.F.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202, 115 C.C.C. (3d) 89 (C.A.); R. v. Hanna (1993), 1993 CanLII 1425 (BC CA), 80 C.C.C. (3d) 289 (B.C.C.A.) [Leave to appeal to S.C.C. refused (1994), 179 N.R. 74n]; R. v. Hart (2000), 46 W.C.B. (3d) 430 (Ont. C.A.); R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, 90 N.R. 173, [1989] 1 W.W.R. 577, 37 C.R.R. 277, 44 C.C.C. (3d) 513, 67 C.R. (3d) 1; R. v. Pan (1999), 1999 CanLII 3720 (ON CA), 44 O.R. (3d) 415, 62 C.R.R. (2d) 189, 134 C.C.C. (3d) 1, 26 C.R. (5th) 87 (C.A.) [Leave to appeal to S.C.C. allowed (1999), 252 N.R. 198n] Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 24(1) Criminal Code, R.S.C. 1985, c. C-46, ss. 649, 743.6(1)

Susan G. Ficek, for respondent. David M. Tanovich, for appellant.

WEILER J.A. (SIMMONS J.A. concurring):--

Overview

[1] This is a most unusual case. Minutes after a jury was discharged in an attempted murder trial, the trial judge learned that he had recorded the wrong verdict. He had recorded a verdict of not guilty and acquitted the accused. The jury's unanimous verdict was actually guilty as charged. The jury was recalled. After an inquiry that confirmed the trial judge had recorded the wrong verdict, he wrote on the back of the indictment, "Inquiry as to jury's verdict concluded. Verdict: Guilty as charged. Accused convicted." In so doing, the trial judge held that he was not correcting the jury's verdict but merely correcting his mishearing of the verdict. The main issue on this appeal is whether, in the circumstances, the trial judge had jurisdiction to make the correction. For the reasons that follow I am of the opinion that the error that occurred was in the nature of an accidental slip and capable of correction by him.

[2] With respect to sentence, the appellant appeals his sentence of 12 1/2 years' imprisonment. I would also dismiss the appeal as to sentence.

The Facts

[3] In the early afternoon of October 28, 1996, the appellant walked into Action Automotive, an auto body shop where he worked, and fired a .38 calibre revolver five times at Ian Francis, who was at the body shop to inquire about buying a car. Mr. Francis was sitting behind a desk when he was shot. At least three bullets hit Mr. Francis. Two days later, the appellant surrendered to the police and was charged with attempted murder.

[4] On September 2, 1997, the appellant's trial commenced before Justice Minden. The appellant testified and admitted to shooting Mr. Francis. He presented a defence of self-defence. The appellant testified that Francis had threatened to kill him on two previous occasions and that, on the day in question, they had argued over money in connection with a joint drug trafficking enterprise.

[5] On September 17, 1997, following 20 days of evidence, the jury retired to consider its verdict. On September 18, the jury returned its verdict. Different people heard the verdict differently when the foreman first pronounced it. The trial judge, registrar, defence counsel and the Crown counsel heard the foreperson say, "Not guilty as charged." The foreperson later testified that he said "guilty as charged" but that he may have coughed or cleared his throat at the time. Ten of the members of the jury thought the foreperson said, "Guilty as charged", which was what they had decided. One juror did not clearly hear the verdict when it was first pronounced in court. The court reporter was unsure what the verdict was when he heard it in court. The reporter heard a sound before the word guilty but could not distinguish it. He thought it could have been a stutter or the juror clearing his throat or possibly the word "not". (Only later when the reporter played the tape at lower than normal speed did the noise "sound like a word that could have been 'not'".)

[6] After the foreperson announced the verdict, the Crown asked that the jury be polled. In doing so, the registrar did not read back to the jury their verdict as is often done. Instead, the members of the jury were simply asked whether they agreed or disagreed with the verdict that was rendered. All jurors stated that they agreed with the verdict. Unbeknownst to them, the verdict was then incorrectly recorded by the court as "not guilty". The trial judge thanked the jury and discharged them. The appellant was released. Court was adjourned at 2:55 p.m.

[7] Moments after the jury's discharge, court officer Kathy Smith escorted the jurors out of the courtroom. She had been present in court but did not hear the verdict so she asked the foreperson what the verdict was. The foreperson, in the presence of other jurors replied, "you're kidding, guilty". The jurors were escorted down a private elevator in order to leave the building. On her way back to her office, Kathy Smith heard that the verdict had been recorded as "not guilty". Within approximately six minutes from delivery of the verdict in court, Smith was in the judge's chambers and informed him of the error. An effort was made to locate the jurors. The foreperson and a second juror were stopped in the courthouse parking lot by police constables Bright and Low. The jurors were individually asked about the verdict and each stated that the verdict was guilty. The two jurors were called back to an ante-room of the courthouse.

[8] At 3:20 p.m., 25 minutes after the discharge of the appellant, court resumed. Both the Crown and defence counsel were present. After some discussion, the trial judge stated:

We may be able to clarify [the verdict] very quickly if the foreman affirms what we have already mistakenly or otherwise believed to be the verdict, and that should be the end of it I should think. But I would suggest that we at least do that much this afternoon. Mr. Weinstein [defence counsel], do you agree?

Mr. Weinstein: I agree. I agree completely.

[9] The foreperson was brought into court and the following discussion ensued:

THE COURT: Sir, there's been some indication to the court that has been communicated to me that there may have been some misunderstanding as to the verdict. So, we've brought you back here in order to hopefully clarify a misunderstanding, if there is one. Could you please indicate for us now what it is that you said when you were asked to announce the verdict of the jury?

JURY FOREPERSON: I said, "(inaudible) guilty, as charged."

MR. WEINSTEIN: What . . .

THE COURT: Guilty as charged?

MR. ASH: Your Honour, for the record, I would like to indicate that the gentlemen indicated g-guilty as charged. He stammered at the beginning of his comments and repeated the letter "G" twice. That obviously is what has caused the difficulty here, and it's very very unfortunate in light of what's gone on since, but that would appear to be the problem. I'd ask you once again to ask him the question one more time, and I don't want there to be any doubt at all about it. . . .

THE COURT: You have heard the exchange between Crown counsel and myself. Could you again indicate what the verdict of the jury is that you announced?

JURY FOREPERSON: Guilty as charged.

THE COURT: All right. So, guilty of the offence of attempt murder?

JURY FOREPERSON: Yes, sir. Yes.

[10] The trial judge decided to reconvene the following day with all 12 ex-jurors. He advised counsel of what he anticipated would occur:

It may also be that we'll want to do a little more of an inquiry tomorrow with the other jurors, and also perhaps it may be necessary to create on the record some evidence as to how this arose so that it will be clear for anyone looking at this just how it is that it came to people's attention that there was this misunderstanding that resulted in this situation.

[11] Crown counsel asked the trial judge to issue a warrant for the appellant's arrest. The trial judge indicated that he was concerned that he was now functus officio because he had discharged the jury and recorded the verdict. The trial judge made no order compelling the appellant to be present in court. He asked counsel to make submissions concerning his jurisdiction the next day. The trial judge endorsed the indictment "in the absence of the accused, inquiry commenced as to jury's verdict."

[12] On September 19, 1997, the trial judge conducted an inquiry into the verdict that had been delivered in court. The appellant was not present. The position of the appellant concerning his right to be present was discussed during the following exchange:

THE COURT: But you are saying on the one hand I ought not to have an inquiry in Mr. Burke's absence and on the other hand Mr. Burke has chosen to absent himself because I have no jurisdiction.

MR. WEINSTEIN: That is exactly my position, that he doesn't have to, that it would be completely voluntary were he to attend. . . .

. . . [A]s I indicated, my instructions are to come and make submissions to the Court as to the fact that the Court has no jurisdiction. Embarking on an inquiry where I am going to have to examine witnesses is outside the purview of my instructions. . . .

[13] The trial judge commenced the inquiry as to what the foreperson had said in court. Defence counsel did not cross- examine any of these witnesses because in his words, he ". . . had not instructions to do so".

[14] Following submissions, the trial judge made the following ruling concerning his jurisdiction:

I have carefully considered the evidence and the submissions of counsel. I am satisfied that I do have jurisdiction to conduct a limited inquiry as to what the actual verdict of the jury was and to decide whether or not that verdict was accurately recorded by the Court. I am satisfied that I have jurisdiction over the accused and over the offence. I do not wish to make a final decision on the ultimate issue until I have given to the accused every opportunity to be present and to have submissions made on his behalf. I have been advised by defence counsel that the accused is aware of these proceedings but that he takes the position that I am functus officio and that I have no jurisdiction to proceed with this limited inquiry. As I have indicated, I am satisfied that I do have that jurisdiction.

[15] The trial judge ordered the appellant to appear and issued a bench warrant for his arrest. The matter was adjourned until Monday, September 22, 1997. A temporary publication ban was imposed.

[16] On September 22, 1997, court proceedings resumed. The appellant, having surrendered to the police, was present. The trial judge lifted the publication ban. A transcript of evidence taken in the absence of the accused on September 19, 1997, appears to have been produced and provided to defence counsel. The trial judge asked defence counsel whether he had reviewed that evidence with his client and whether that evidence had to be repeated. Defence counsel responded as follows:

. . . we're not going to consent to the application of any evidence to this inquiry which was taken outside of the presence of Mr. Burke. As you'll recall, that evidence was taken over my objections at the time and I'm not going to consent to its application. Mr. Burke didn't hear any of it.

[17] The inquiry continued with the recalling of the witnesses who repeated the testimony they had given in the appellant's absence. At the end of the day, defence counsel raised the issue of the scope of his cross-examination of the jurors. Defence counsel wanted to test the credibility of the answers provided by the ten jurors who, in addition to the foreperson, stated that the verdict announced in court was guilty. In particular, defence counsel wanted to inquire into any possible tainting of the jurors following the verdict. The trial judge advised counsel that he was concerned about intrusive questioning and the potential for violating s. 649 of the Criminal Code, R.S.C. 1985, c. C-46. That section makes it an offence for any member of a jury to disclose any information relating to proceedings of the jury that were not subsequently disclosed in open court unless the information relates to a juror who has been charged with obstructing or perverting the course of justice. He asked c ounsel to draft one question.

[18] A notice of application was filed by defence counsel seeking relief under s. 24(1) of the Canadian Charter of Rights and Freedoms. Defence counsel argued that s. 649's limitation on the appellant's right to cross-examination in these unique circumstances violated s. 7 of the Charter. Defence counsel wanted to cross-examine the ex-jurors in order to:

. . . get into the issue of whether there were possibilities or opportunities for the jurors to be exposed to information which could have had a negative effect on them which could cause them to change -- or to be able to raise a doubt as to whether or not any of them had altered their verdict and whether, in fact, that happened on Friday, or whether or not there's even a doubt that it might have happened.

[19] Defence counsel argued that there was an "air of reality" to their concern about a "changed" verdict in light of the evidence of the registrar (who had no doubt that the verdict was not guilty) and the court reporter (who was now prepared to certify, under oath, that the verdict was one of "not guilty"). In addition, neither the Crown nor the trial judge had thought that the verdict was ambiguous or unclear when it was read out in court.

[20] Defence counsel sought to put a list of questions to the jurors concerning what information they had received or discussions they had held after their verdict was reached. The defence submitted that if meaningful cross-examination was not permitted, there should be a stay of the inquiry process or, in the alternative, the granting of a mistrial.

[21] The trial judge dismissed this application for the following reasons:

. . . In all the circumstances, in fairness to the accused I will accede to counsel's request to canvass with the ex-jury members the issues that counsel submits ought to be canvassed. I intend to do so, however, in a very limited way keeping in mind the fair and proper balancing I must endeavor to achieve between a number of factors. I must be fair to the accused in permitting him to make full answer and defence. At the same time, I must consider the sanctity of jury verdicts, s. 649 of the Criminal Code and the clear message to trial judges concerning the questioning of jurors emanating from . . . R. v. Selles . . .

In my view, I ought to proceed in the following manner: in addition to the questions which I previously posed relating to the verdict itself and relating to what each juror heard the foreperson say when the verdict was announced, I will ask each juror these two additional questions:

1. Between the giving of your verdict last Thursday afternoon and your testimony on Friday, was anything said to you by anyone, either by family, friends, court officials, fellow jurors or anyone else that influenced you so as to affect your testimony here in court?

2. Between the giving of your verdict last Thursday afternoon and your testimony on Friday, did you read or hear anything in the media that influenced you so as to affect your testimony here in court?

The one exception to this procedure will be in the case of the foreperson of whom I will ask questions concerning his pattern of speech and anything that in his view might have affected either the way in which he communicated the verdict or the way in which his words were understood. I will also attempt, as cautiously as I can, to ascertain the nature of the additional information which the foreperson indicated he wished to convey to me as per his telephone message to which I have referred.

[22] The trial judge also indicated that he proposed to caution each juror not to reveal anything about their deliberations. He later ruled that no additional questions to the ex-jurors would be permitted.

[23] The verdict inquiry continued. The jurors all replied in the negative to the two questions posed by the trial judge in his s. 24(1) ruling. The foreperson's pattern of speech was further explored by the trial judge. The foreperson testified that he now believed that the court did not correctly hear his verdict because he was clearing his throat as he read the verdict.

[24] On September 24, 1997, the inquiry into the verdict was completed.

The Trial Judge's Decision

[25] On September 25, 1997, the trial judge held that he had the jurisdiction to change the recorded verdict to "guilty as charged" for the following reasons:

The Supreme Court of Canada's decision in R. v. Head (1986), 1986 CanLII 8 (SCC), 30 C.C.C. (3d) 481 was canvassed in argument before me. The issue in Head was whether or not a jury could be reconvened to vary or reconsider its "Not Guilty" verdict after the jury had been discharged. The situation before me is very different. The issue here is: what was the jury's verdict and was an error made by the Court in recording that verdict?

The limited inquiry I have conducted has been in respect of that issue. The evidence from the members of the jury in this matter was clear and unequivocal. The jury's unanimous verdict was "Guilty as charged." The jury's manifest intention was to find that the accused is guilty of attempted murder. There is in my view absolutely no air of reality to the suggestion that there was or may have been tainting in respect of any one or more of the members of the jury between the time the verdict was announced on the afternoon of September 18th, 1997 and the time the members of the jury reconvened and testified the following morning. I have no doubt whatsoever in finding these facts.

The jury has not corrected its verdict. The jury has corrected my understanding of its verdict. On all the evidence, it is clear to me that an error was made in the Court's recording of the true verdict. The error was based on a misapprehension as to what the verdict was. That misapprehension was caused by the Court hearing something other than what the foreperson intended to convey to the Court. I am convinced beyond any doubt that it was the Court's misapprehension which led to the error. . . .

In my view, I have jurisdiction in these circumstances to correct the error in the Court's recording of the jury's true and unanimous verdict. It is also my opinion that given my conclusions as to what occurred, the interests of justice can only be served by the accurate recording by the Court of the true and unanimous verdict of the jury. Indeed it is my view that for me to do otherwise would tend to bring the administration of justice into disrepute. . . .

I will therefore record the verdict of the jury. That verdict is "Guilty as charged."

Issues Relating to the Appeal from Conviction

[26] In his factum, the appellant raised three issues:

I. Did the trial judge have jurisdiction to change the recorded verdict once the jury had been discharged?

II. Was the appellant's constitutional right to cross- examination violated by s. 649 of the Criminal Code and by the trial judge's ruling?

III. Was the appellant's right to be present during his trial compromised when the trial judge commenced the verdict inquiry in his absence?

[27] On the hearing of this appeal, the appellant subsumed the second and third arguments as part of his overall submission that the trial judge did not have jurisdiction to change the verdict. I prefer to deal with the arguments separately.

Analysis

I. Did the trial judge have jurisdiction to change the recorded verdict once the jury had been discharged?

[28] The jurisdictional question was discussed by the Supreme Court of Canada in R. v. Head, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684, 30 C.C.C. (3d) 481, a case in which the accused was also charged with attempted murder. Following their deliberations, the jury returned with a "not guilty" verdict. The trial judge told the jury that they were free to leave and discharged them. After the jury had been discharged, the foreperson informed the judge that while the members of the jury had found the accused not guilty of attempted murder, they had agreed that he was guilty of a lesser included offence. The issue before the Supreme Court was whether the trial judge had the jurisdiction to re- open and clarify the verdict.

[29] Justice McIntyre, writing for five other members of the panel, held that a verdict can only be varied prior to the discharge of the jury. After discharge, the trial judge is functus and the recorded verdict must stand. McIntyre J. held at pp. 688-90, 694 S.C.R., pp. 484-85, 488 C.C.C.:

On the return of the jury if a clear and unambiguous verdict is given, it is the judge's duty to accept the verdict and, in accordance with the practice of his court, cause it to become a part of the record of the court. . . .

Where, on the other hand, there is ambiguity in the verdict or where there is reason to doubt that the verdict is unanimous, the trial judge should inquire into the matter to ascertain the true position and, where necessary, he should give such further directions as may be required and allow further deliberation by the jury to satisfy himself that any verdict given will indeed be unanimous, complete and expressive of the actual findings of the jury. . . . This discretion, however, is one which is to be exercised during the course of the trial, that is, in the presence of the accused and his counsel, and prior to the dissolution of the court by the discharge of the jury. . . . It is clear, in my view, that the power or duty of the trial judge to intervene when a jury verdict is returned and to make inquiries relating to the true nature of the verdict is one to be exercised prior to the discharge of the jury, and applying the words of Macauley C.J. in Ford [(1853), 3 U.C.C.P. 209 at 217-18], "before it is too late". It will be too late when the jury is discharged and the court created for the trial of the accused has been dissolved.

It follows from what I have said that the accused is entitled to his acquittal. As described above, he was discharged and the jury was discharged. The court was then adjourned. Accordingly, the court which had jurisdiction to try the accused had been dissolved. It was wholly functus. When the question arose as to the verdict, the matter had passed beyond the stage where any correction could be made.

In Head, Justice Lamer observed in a concurring decision at pp. 698-99 S.C.R., p. 492 C.C.C.:

Once the verdict has been registered and the jury has been discharged, the jury cannot be recalled and sent back to reconsider its verdict but, I hasten to interject, there is a difference between reconsidering a verdict and correcting an error made in its conveyance to, or registration by, the court.

[30] After referring to civil law cases, Justice Lamer concluded at p. 700 S.C.R., p. 493 C.C.C.:

Although the jury cannot be allowed to reconsider its verdict after it has been discharged, it may be allowed to rectify errors that were made in the transmission or recording of its verdict notwithstanding the discharge and, indeed, even if the jury members have interacted with the public. If it has become apparent, after the discharge of the jury, that the foreman erred or, as in this case, might have erred in delivering the verdict, and that, as a result, the record may well not reflect the decision arrived at in the jury room, the jury is allowed to correct the error. Wigmore on Evidence (McNaughton rev. 1961), vol. 8 explains at paragraph 2355, that the reason for allowing the jury to correct the recording of the verdict, after the jury has been discharged, is a practical one:

It has occasionally been said that this correction must be claimed before the jury is discharged, but this seems unsound because such errors are seldom ascertained until after the jury have separated and conversed out of court, and if the error is satisfactorily established, there can hardly be any fixed time to limit its correction.

[31] At pp. 702-03 S.C.R., pp. 495-96 C.C.C., Justice Lamer adds:

The state of the case law until now is as follows. Even after discharge, a jury can be reconvened to correct an improper or incomplete transmission or registration of a verdict, but cannot reconsider a verdict or complete its deliberations with a view to handing down additional verdicts on counts or on included offences it had not finally determined prior to that discharge; nor can anyone go behind the verdict and make inquiries as regards the nature of the deliberations.

I should like to make a final observation before disposing of this case. Given that the case law upon which I rely has mainly developed in non-criminal matters, I initially thought that the rule governing criminal jury verdicts might preferably be different, and be as follows: in criminal matters, as of the discharge of the jury, the judge and jury would be functus even to correct an error in the transmission of the verdict. The rationale for this rule could be to leave the error, subject to appeal, to inure to the benefit of the accused. I would have no difficulty with this approach until I wondered what would happen if the error was the other way, a verdict of guilty being erroneously entered against an accused who had, in fact, been acquitted by the jury. Once functus the court could not vary the registering of the verdict either way. . . . It is out of concern for the really innocent that I have come to adopt the rule applicable until now to civil matters. Its effect is to ensure that those found guilty by the jury do not go free, which is not a bad result but, more important, that those found innocent or not convicted by the jury not be convicted.

[32] The approach of Justice Lamer, however, was rejected by the remaining members of the panel in Head. Writing for the rest of the court, Justice McIntyre had this to say about Justice Lamer's concerns at pp. 691-92 S.C.R., pp. 486-87 C.C.C.:

As has been noted by Lamer J., a wider discretion has been accorded to judges presiding over civil trials than that accorded in criminal trials. He has referred to authoritative cases where judges, even after a discharge of the jury, have recalled jurors for the purpose of rectifying error or for the clarification of recorded verdicts. I am unable, however, to find any authority binding on this court which has ever extended such a power to trial judges in criminal cases and I am of the opinion that no such extension of the judicial control over juries should be allowed in criminal cases. There is sound reason for this difference of approach to civil matters. The civil trial results from a dispute between private parties. The Crown is not involved. The state takes no part in the resolution of the dispute -- beyond creating the forum for its settlement -- and the public generally has no interest. The parties come to court and, if a jury has been chosen as part of the process, each party has a vital interest in securing its verdict in order to bring to an end the expense and the asperities of litigation. It is in pursuance of this objective that trial judges have been accorded the wider discretion which is justifiable, since its purpose and effect is to resolve a private dispute that is not otherwise of interest to the general public. The criminal case is different. Here, the state and the general public have vital interests in the administration of justice. The accused, of course, has a vital interest in the outcome of his case. Accordingly, sound policy requires a strict approach to the criminal process which will serve to recognize and protect both the interests of the state and the public, and the particular interest to the accused.

(Emphasis added)

[33] More recently, in R. v. H. (E.F.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202, 115 C.C.C. (3d) 89 (C.A.), application for leave to appeal to the Supreme Court dismissed September 18, 1992, Charron J.A. recognized the distinction between the approaches of Justices Lamer and McIntyre in a footnote at p. 207 O.R., p. 95 C.C.C.:

[In R. v. Head, Lamer J. stated] in a concurring opinion: "I hasten to interject, there is a difference between reconsidering a verdict and correcting an error made in its conveyance to, or registration by, the court." The majority judgment of the court agreed that a verdict could be corrected but, while Lamer J. would have allowed the jury to be reconvened to do so even after discharge, the majority was of the view that it was too late after the jury was discharged.

[34] The decision in Head makes it clear that once a jury has returned a verdict and the jury is discharged, it is too late to make inquiries relating to the nature of the verdict. The rule precluding inquiry into the nature of the verdict is based on a number of policy objectives: encouraging free and frank debate in the jury room; ensuring the finality of the verdict; and protecting individual jurors from post-trial harassment: R. v. Pan (1999), 1999 CanLII 3720 (ON CA), 44 O.R. (3d) 415 at pp. 454-55, 134 C.C.C. (3d) 1 at p. 47 (C.A.).

[35] This is a case where the jury arrived at a complete verdict and conveyed it. There was no need for the jury to deliberate further. The finality of the verdict is not in issue. The common law rule that prohibits any inquiry into the deliberations of a jury is based on the belief that the secrecy of jury deliberations is necessary to ensure the proper and effective operation of the jury trial system. Consequently, it is the internal deliberation process, the thoughts, statements and opinions of individual jurors during deliberation, that is protected. The rule does not, however, extend to all aspects of juror conduct. Secrecy does not attach to communications or events occurring outside of the jury room. There is a distinction between those matters that are internal to the deliberation process and those that are external to deliberations. Matters that are external to the jury's deliberations are within a permitted zone of inquiry: Pan at pp. 454-55 O.R., p. 47 C.C.C.

[36] In Head, the error occurred between the verdict the jury had agreed upon in the jury room and the verdict that was actually pronounced in court. To correct that error, the trial judge would have had to inquire into what had been agreed upon in the jury room and the jury may have needed to deliberate further. The decision in Head was concerned with the internal deliberation process of the jury. The concern in this case is with an external event, namely, what the foreperson said in open court and what the trial judge heard. The trial judge did not inquire into the jury's deliberations; the inquiry was with respect to what was said in open court. The trial judge found there was no air of reality to any suggestion of jury tampering. The fact that the foreperson was still with the courtroom attendant and had not left the courthouse before repeating what his verdict was supports the trial judge's finding. To summarize, the decision in Head, supra, does not govern this case. The policy reasons underlying the Supreme Court's decision in Head have no direct application to this case. The trial judge misheard the foreman's verdict.

[37] Once a jury has been discharged, the trial is over. [See Note 1 at end of document] Although a judicial body is functus, a clerical mistake or error arising from an accidental slip or omission can be corrected: Bricmont v. Mathieu (1987), 7 Q.A.C. 199 at para. 28 (C.A.), leave to appeal to the S.C.C. refused; Chandler v. Alberta Assn. of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, 62 D.L.R. (4th) 577. [See Note 2 at end of document] Indeed, the appellant concedes that clerical errors or an error from an accidental slip can be corrected after a jury has been discharged but submits that this was not the nature of the error that occurred. The trial judge found that he misheard the jury's verdict. I am of the opinion that the trial judge's error in mishearing the jury's verdict is akin to an accidental slip and can be corrected.

[38] The trial judge had jurisdiction to correct his misunderstanding of the jury's verdict because this error was in the nature of an accidental slip and an accidental slip can be corrected even if the tribunal is functus.

II. Was the appellant's constitutional right to cross- examination violated by s. 649 of the Criminal Code and the trial judge's ruling?

[39] The appellant submits that the fact that s. 649 of the Criminal Code precludes the questioning of jurors about their deliberations provides yet another policy reason for not permitting verdicts to be corrected once the jury has been discharged. The inability to cross-examine jurors makes it impossible, it is submitted, to ascertain whether a verdict that has been wrongly recorded is the result of innocent error or malfeasance.

[40] The short answer to this submission is that s. 649 prohibits the disclosure of information relating to the proceedings of the jury, ". . . when it was absent from the courtroom". In Pan at p. 473 O.R., p. 65 C.C.C., this court held that the word "proceedings" in s. 649 has the same meaning as deliberations. The information disclosed in the case on appeal does not concern the deliberations of the jury. The jury had finished its deliberations. Nor did the information relate to what took place when the jury was absent from the courtroom, but just the opposite. There was no violation of s. 649.

[41] I would also point out that in R. v. Hanna (1993), 1993 CanLII 1425 (BC CA), 80 C.C.C. (3d) 289 (B.C.C.A.), leave to appeal to the S.C.C. refused, Wood J.A. held that the trial judge was correct in refusing to permit defence counsel to put questions to a juror during an inquiry to determine whether the juror should be discharged. The juror had fainted during the trial. He stated at p. 312:

. . . I am strongly of the view that the issue of whether a juror should continue to act is not one that should be subject to the normal rules of the adversarial system which otherwise characterize the conduct of a criminal trial. Once sworn, jurors assume the role of judges. While they must necessarily submit to any proper inquiry conducted by the "other" judge in the process, they ought never to become witnesses in the ordinary sense of that term, in the very proceeding in which they have been sworn to "well and truly try and true deliverance make" of a verdict, any more than the trial judge should ever assume such a role.

. . . Counsel should be free to participate by suggesting questions which the trial judge might consider putting to the juror whose capacity to continue is in issue, and by making submissions when all proper inquiries have been made. But no juror should ever be subjected to direct cross-examination by counsel.

[42] The words of Woods J.A. are equally apt here. I do not consider the judge's inquiry to be an exercise based strictly on the adversarial model. The jurors were not "witnesses" in the traditional sense. I would dismiss this ground of appeal.

III. Was the appellant's right to be present during his trial compromised when the trial judge commenced the verdict inquiry in his absence?

[43] When the trial judge decided to commence the inquiry into the verdict and to hear evidence, he made no order compelling the appellant to appear in court. The appellant submitted that he did not waive his right to be present by not attending in court the following day. The appellant submitted that he did not consent to the calling of evidence in his absence. In Head, at p. 689 S.C.R., p. 485 C.C.C., the Supreme Court stated that the inquiry was to be conducted in the presence of the accused. The appellant submits that the fact he was not present deprived him of the opportunity to make full answer and defence at a critical time in the proceedings.

[44] The appellant was aware that the judge would decide the question of jurisdiction to conduct an inquiry into the verdict and that in doing so evidence would be received from certain witnesses. The appellant chose not to attend. In my opinion, the appellant, having chosen not to attend at that time, cannot now complain. The trial judge was not required to compel the appellant to attend court. A somewhat analogous situation arose in R. v. Auger (1982), 1982 CanLII 3895 (QC CA), 4 C.C.C. (3d) 282 (Que. C.A.), leave to appeal to the S.C.C. refused, where the court held that it was within the powers of the trial judge to permit the accused to be out of court during the whole or part of the trial. The accused, at whose request the judge made the order to view the scene of the crime, could not, however, invoke his non- participation as a ground of appeal.

[45] The judge conducting an inquiry of this nature is faced with crafting procedures for which there may be no precedent but which are required to meet the exigencies of the case. The trial judge ensured that the process in which he engaged was fair to the accused. Having regard to the fact the accused was not present when some of the evidence was heard, he had the witnesses repeat all of the evidence to ensure that the appellant was not prejudiced. I have already held that the trial judge had jurisdiction to correct his error in mishearing the verdict. The process the trial judge crafted to correct the error was conducted fairly. I would dismiss the appeal as to conviction. [See Note 3 at end of document]

IV. The appeal as to sentence

[46] The appellant was born on September 19, 1962. He was 35 years old at the time of sentencing. He completed Grade 10 in high school and worked in the auto body business. At the time of the shooting, the appellant operated his own business. He has the following criminal record: assault causing bodily harm; theft under; possession of an unregistered restricted firearm; possession of a narcotic and assault.

[47] The appellant served approximately 11 months in pre- trial custody.

[48] The defence asked the trial judge to impose a sentence in the range of six to eight years. The Crown asked that a sentence in the range of 12 to 15 years be imposed.

[49] The trial judge imposed an actual sentence of 121/2 years for the following reasons:

-- the offence involved the use of a firearm which was never recovered;

-- the offence was planned and considered. The trial judge was satisfied that the appellant knew that Francis would be at the auto body shop the afternoon of the shooting and that the shooting related to an unpaid drug debt; and

-- the calm and cool manner in which the appellant left the scene of the shooting. As the trial judge put it "[w]hat is noteworthy is that the accused left the scene of this cold- blooded shooting apparently as coolly and as calmly as if he had been heading to the local convenience store to make a routine purchase."

[50] The trial judge gave the appellant 22 months' credit for his pre-trial custody and took into account as a mitigating factor the appellant's surrender following his acquittal. The trial judge did not delay the appellant's eligibility for parole under s. 743.6(1) of the Criminal Code.

[51] The appellant submits that the sentence imposed by the trial judge was outside the appropriate range of sentence for attempted murder involving the use of a firearm. He submits that an appropriate range of sentence, after taking into account pre-trial custody on a two-for-one basis, and the appellant's surrender following his acquittal, is seven or eight years.

[52] The trial judge found that, following an argument with Mr. Francis relating to the payment of an alleged drug debt, the appellant left the office and returned with a handgun which he immediately began firing directly at Mr. Francis from a distance of five or six feet. Mr. Francis was struck by three bullets in the chest, elbow and knee. Seconds after Mr. Francis fell to the floor bleeding, the appellant moved towards his prone victim, aimed the gun at him and repeatedly pulled the trigger. The trial judge stated, "But for the fact that the gun had already been emptied of bullets, I have no doubt that the accused would have faced a charge of first degree murder."

[53] Despite the able submissions of counsel, I have not been persuaded that, considering all the circumstances of this case, the sentence, although at the upper end of the range, was so high as to warrant intervention. Accordingly, while I would grant leave to appeal sentence, I would dismiss the appeal as to sentence.

[54] GOUDGE J.A. (dissenting):--I have had the benefit of reading the reasons for judgment of my colleague Weiler J.A. With respect, I disagree with her conclusion because in my view this case is governed by R. v. Head, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684, 30 C.C.C. (3d) 481. As I read it, that case precludes the trial judge from proceeding as he did here. I would therefore allow the appeal, set aside the conviction and restore the verdict of acquittal as originally recorded.

[55] My colleague has comprehensively laid out the relevant circumstances of this matter and I need not repeat them. I agree with her that this is a most unusual case. Moreover, in addressing the extraordinary situation facing him, the trial judge clearly proceeded in a very careful and thoughtful way. I simply disagree with his conclusion and that of my colleague about the impact of Head on this case. In my view, Head is binding authority which requires that the original acquittal be restored.

[56] For my purposes, the relevant facts in Head are as follows. The accused was charged with attempted murder. The trial judge instructed the jury on that offence and on certain included offences on which the accused could be found guilty, depending on the view the jury took of the evidence. The jury returned the verdict of not guilty. The trial judge discharged the jury, and told the accused that he had been found not guilty and that he was discharged. Almost immediately, but not before one of the jurors had left the jury box and entered the body of the courtroom, the following exchange took place:

THE COURT: Oh, just a moment, the jury foreman, did you wish to say something?

FOREMAN: Well, when we discussed this we thought we could find the Defendant not guilty of the charge as laid, but guilty of a lesser offence, is that right?

THE COURT: Well, I believe I'm functus officio. That means that I have nothing further. That is why I spelled out very clearly to you the various things that you were to find. However, I'll hear submissions from counsel.

[57] Following submissions, the trial judge confirmed his conclusion that he was functus. The Court of Appeal for Saskatchewan set aside the acquittal and ordered a new trial on all of the lesser and included offences. The Supreme Court of Canada allowed the appeal and restored the acquittal as originally recorded.

[58] The broad issue canvassed by the Supreme Court was whether the trial judge was correct in determining that he was functus or whether he could have recalled the jury to determine if the recorded verdict was not the one arrived at by the jury because the accused had been found guilty of an included offence and, if so, to correct the error.

[59] Lamer J., writing for himself, was of the view that although a jury cannot be allowed to reconsider its verdict after it is has been discharged, it may be allowed to rectify errors that were made in the transmission or recording of its verdict notwithstanding the discharge. He put it this way at pp. 702-03 S.C.R., p. 495 C.C.C.:

Even after discharge, a jury can be reconvened to correct an improper or incomplete transmission or registration of a verdict, but cannot reconsider a verdict or complete its deliberations with a view to handing down additional verdicts on counts or on included offences it had not finally determined prior to that discharge; nor can anyone go behind the verdict and make inquiries as regards the nature of the deliberations.

[60] Lamer J. then went on to say that the logical remedy would not be a new trial, but the return of the matter to the trial court so that the jury's true verdict could be ascertained. However, given the considerable lapse of time since the jury was discharged, Lamer J. found that the ends of justice would be best served by leaving the recorded acquittal undisturbed.

[61] McIntyre J., writing for the other five members of the court, determined that the trial judge was correct. He differed with Lamer J. not over the prohibition on a jury reconsidering its verdict after discharge, but over whether, after discharge, the jury could be reconvened to complete or correct the transmission and recording of its true verdict. He put it this way at pp. 690-91 S.C.R., pp. 485-87 C.C.C.:

It is clear, in my view, that the power or duty of the trial judge to intervene when a jury verdict is returned and to make inquiries relating to the true nature of the verdict is one to be exercised prior to the discharge of the jury and, applying the words of Macauley C.J. in Ford [(1853), 3 U.C.C.P. 209] "before it is too late". It will be too late when the jury is discharged and the court created for the trial of the accused has been dissolved.

As has been noted by Lamer J., a wider discretion has been accorded to judges presiding over civil trials than that accorded in criminal trials. He has referred to authoritative cases where judges, even after a discharge of the jury, have recalled jurors for the purpose of rectifying error or for the clarification of recorded verdicts. I am unable, however to find any authority binding on this court which has ever extended such a power to trial judges in criminal cases and I am of the opinion that no such extension of the judicial control over juries should be allowed in criminal cases.

[62] Neither McIntyre J. nor Lamer J. cast the slightest doubt on the proposition that the jury, once discharged, cannot be reconvened to reconsider its verdict or otherwise deliberate further to vary its verdict. Head, like this case, was not about a discharged jury reconvening to vary or reconsider its verdict. Rather Head, like this case, was about whether after discharge, the jury can be recalled by the trial judge to ascertain the true nature of its verdict so that any error in recording that verdict can be corrected. While Lamer J. did not agree, the majority judgment in Head finds that the trial judge in a criminal case has no power to do so.

[63] In summary, I think Head stands for the proposition that in a criminal case, once a jury has been discharged, it cannot be recalled to determine the true nature of its verdict and to correct any error in the transmission and recording of that verdict.

[64] As the trial judge candidly acknowledged in this case, that was exactly the issue which faced him here after the jury was discharged: what was the jury's true verdict and was an error made by the court in recording that verdict. In my opinion, Head prevents the jury from being recalled to make this inquiry once it has been discharged. The trial judge had no power to inquire as to the jury's true verdict and to determine that he had erred in recording that verdict, and he could not therefore substitute a conviction for the originally recorded acquittal.

[65] McIntyre J. founded his bright line approach on the special policy imperatives of the criminal law that do not apply in civil matters. He said this at pp. 691-92 S.C.R., p. 487 C.C.C.:

There is sound reason for this difference of approach to civil matters. The civil trial results from a dispute between private parties. The Crown is not involved. The state takes no part in the resolution of the dispute -- beyond creating the forum for its settlement -- and the public generally has no interest. The parties come to court and, if a jury has been chosen as a part of the process, each party has a vital interest in securing its verdict in order to bring to an end the expense and the asperities of litigation. It is in pursuance of this objective that trial judges have been accorded the wider discretion which is justifiable, since its purpose and effect is to resolve a private dispute that is not otherwise of interest to the general public. The criminal case is different. Here, the state and the general public have vital interests in the administration of justice. The accused, of course, has a vital interest in the outcome of his case. Accordingly, sound policy requires a strict approach to the criminal process which will serve to recognize and protect both the interests of the state and the public, and the particular interest of the accused.

[66] While he does not expand on the policy reasons supporting his approach, I think McIntyre J. may well have had in mind several considerations. First, his approach accords full recognition to the important value of finality in the criminal law. By contrast, the approach of Lamer J. means that after the jury's verdict is recorded and announced, the liberty of the accused may be left under a cloud of uncertainty for an indeterminate period of time.

[67] Second, McIntyre J.'s approach strengthens the jury system by minimizing any risk to the secrecy of its deliberations and removing any possibility of the appearance of outside influence on the jury. As exemplified by this case, the inquiry sanctioned by Lamer J. will inevitably examine what the jury's true verdict was, because without this, discerning an error in the originally recorded verdict is impossible. Such an examination creates an inevitable tension between the due process rights of the accused and the protection afforded to the jury's deliberations by s. 649 of the Criminal Code. Moreover, any inquiry like the one done in this case will inevitably encompass the post-discharge contacts and experiences of jurors and the appearance of possible outside influence that may arise as a consequence. The inquiry will have to engage in the difficult task of evaluating that appearance. On the other hand, the approach of McIntyre J. eliminates any risk to the secrecy of the jury's deliberations and any possibility of the appearance of outside influence on the jury after it was discharged.

[68] In taking the position he did, Lamer J. expressed concern about the mirror image of this case, namely the erroneous recording of a conviction where the true verdict was not guilty. In my view, this concern does not require the rejection of the lead judgment in Head. Rather, I think the concern would be met by the application of the Charter and Charter values to the common law rule enunciated by McIntyre J. in order to protect against wrongful conviction.

[69] In conclusion, I disagree with my colleague that the error in this case could be corrected after the discharge of the jury. While it may be, as the appellant acknowledged, that an accidental slip not requiring the recall of the jury could be corrected after discharge, that is not this case. I think the law as enunciated in Head is clear, can be defended in policy terms, and is applicable to this case. Unless and until it is changed by the Supreme Court of Canada, we are bound to follow it.

[70] I would therefore allow the appeal and restore the acquittal as originally recorded.

Appeal dismissed.

Notes

Note 1: It should be noted, however, that where the accused alleges entrapment by the police or an agent of the state, the trial judge is entitled to consider the accused's application for a stay of the proceedings after the jury has found the accused guilty and its members have been discharged. The rationale for such a step is that the court should exercise its inherent power to protect its integrity. To do otherwise would bring the administration of justice into disrepute: see R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903 at pp. 919-20 and 938-42, 44 C.C.C. (3d) 513 at pp. 525-26 and 539-42. An accused is entitled to lead more evidence at the hearing on the issue of entrapment than heard at the trial proper before the jury: R. v. Hart (2000), 46 W.C.B. (3d) 430 (Ont. C.A.).

Note 2: The five members of the Supreme Court were unanimous that errors due to clerical mistakes or arising from an accidental slip or omission could be corrected even after a tribunal was functus. The Court split 3-2 on the question of whether the Board could continue the original proceedings once it had rendered a final disposition, with the majority holding that it could do so.

Note 3: A further ground of appeal raised in the appellant's supplementary factum was whether the trial judge had properly charged the jury on reasonable doubt. This ground of appeal was abandoned.