- DATE: 20021010 DOCKET: C34211
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent)– and – COLLIS EDWARDS (aka KEVIN ALBERT)
BEFORE: DOHERTY, AUSTIN and FELDMAN JJ.A.
COUNSEL: David M. Tanovich for the appellant
Laura Eplett for the respondent
HEARD: October 3, 2002
RELEASED ORALLY: October 3, 2002
On appeal from the conviction by Justice Arthur C. Whealey, sitting with a jury, on November 19, 1999.
E N D O R S E M E N T
- [1] The appellant and co-accused were charged on a five count indictment. The jury retired to deliberate at 10.45 a.m. During the course of the day and in the early evening, they requested that certain evidence be read back to them. The re-reading after the last request was completed at 8:50 p.m. At 9:50 p.m., the trial judge reconstituted the court and advised counsel that he had sent the following note to the jury, and received the following response:
THE COURT: I sent the jury the following note:
Mr. Foreman, if the jury has reached the point where you are agreed on some verdicts and realize that you will be unable to be unanimous on other verdicts, then you may render (report) those verdicts you have been able to reach and report “unable to agree on the others”. After 11 hours it is time.
P.S. I will call you in to court as soon as you reply.
The answer: We are ready.
[2] The jury then entered the courtroom and returned guilty verdicts against the appellant on both counts. They convicted the co-accused on one count and could not reach a verdict on the other two counts.
[3] The procedure followed by the trial judge was wrong for at least four reasons. Firstly, he did not give counsel an opportunity to comment upon the propriety of sending a note to the jury, or the content of that note. Counsel learned of the existence of the note virtually as the jury entered the courtroom to return their verdicts. The trial judge’s unilateral action denied the appellant due process. Secondly, the note was an ex-parte communication by the trial judge with the jury, in the absence of the accused, and in the course of the trial. The note was not a communication in relation to an administrative matter, but rather, a communication that went to the heart of the continuation of the deliberations by the jury. Thirdly, and perhaps, most importantly, the note was an improper interference with the jury’s deliberations. The jury had not indicated they were having any difficulties in the course of their deliberations or that they had reached an impasse. The trial judge was wrong to impose an arbitrary deadline on the jury’s deliberations. Fourthly, the note placed pressure on the jury to arrive at a verdict if they had not done so by the time the note arrived.
[4] The Crown has argued that the note, although improper for the reasons outlined above, caused no prejudice. She contends that it is clear from the record that the jury had reached the verdicts against the appellant before they received the note and that the jury simply followed the direction in the note and reported those verdicts. Counsel’s interpretation of the record may be correct, but we cannot say that the jury must have reached its verdicts before receiving the note. There is uncertainty as to when the jury received the note. They could have received the note up to an hour before reaching their verdicts and returning the note to the judge at 9:50 p.m. We simply cannot say, on the basis of this record, whether the jury had reached their verdicts before receiving the note.
[5] Even if the jurors had arrived at verdicts on some counts when they received the note, this does not necessarily mean that their deliberations were over on those counts. Had they been allowed to complete their deliberations on all counts, without the pressure imposed by the trial judge’s note, it is certainly possible that the jury may have revisited one or more of the counts on which they had reached verdicts. We simply do not know.
[6] The sending of the note to the jury was wrong and resulted in a miscarriage of justice. The convictions must be quashed and a new trial ordered.
“Doherty J.A.”
“Austin J.A.”
“K. Feldman J.A.”