Court of Appeal for Ontario

CITATION: R. v. Zerebecki, 2008 ONCA 844

DATE: 2008-12-12

DOCKET: C45108

BEFORE: Sharpe, Blair and Rouleau JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Robert Zerebecki

Appellant

COUNSEL:

Michael W. Czuma for the appellant

K. Papadopoulos for the respondent

Heard and released orally: December 5, 2008

On appeal from the convictions imposed by Justice Barry H. Matheson of the Superior Court of Justice, sitting with a jury, on November 24, 2005.

ENDORSEMENT

[1] This is an appeal from convictions for sexual assault, assault and threatening death following a jury trial. The sole issue on this appeal is whether the trial judge erred by failing to respond properly to the questions the jury asked during their deliberations and prior to delivering the guilty verdict.

[2] It is conceded that the trial judge properly instructed the jury during his charge on the unanimity requirement and on the jury’s right to disagree. After several hours of deliberations, the jury submitted the following questions to the trial judge:

What happens if we cannot come to an agreement on one of the steps for an indictment?

Do we need full consensus or does this automatically determine the defendant not guilty?”

[3] The trial judge attempted to answer these questions by recharging the jury on how they should deal with the elements of the offences charged. He then asked the jury if he had properly answered their questions. The foreperson for the jury replied that he had not and the following exchange occurred:

Foreperson: No Sir, what we wanted to know was, if there was one of us that finds reasonable doubt, do all 12 of us have to agree that there’s reasonable doubt or only one of us can say that there is reasonable doubt and that…

Trial judge: No, No, all 12 of you must find reasonable doubt. It has to be unanimous. Does that answer your question?

Foreperson: Yes.

[4] The jury ultimately returned a verdict of guilty.

[5] The appellant submits that by answering the jury’s questions the way he did, the trial judge thereby effectively removed the right of a dissenting juror’s right to disagree and the right of the jury not to render a verdict.

[6] We agree with the appellant’s submission. In our view, this case falls squarely within the principles enunciated in R. v. Latour, 1950 CanLII 12 (SCC), [1951] S.C.R. 19 and R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122. In Latour, Fauteux J. stated, at p. 30:

If one of the jurors could have reasonably understood from this direction - and it may have been open to such construction - that there was an obligation to agree on a verdict, the direction would be bad and wrong.

[7] In Naglik, Lamer J. stated at para. 28:

The trial judge’s answer to the jury’s question, which gave the jury the impression that they had no right to disagree, superseded the initial instruction in the minds of the jury. Accordingly, it is possible, if not likely, that the jury members resumed their deliberations with the mistaken impression that they were required to reach a verdict, and that they had misunderstood the earlier reference to their right to disagree. Given this error, a new trial must be ordered on both counts.

[8] In this case, the jury’s first question asked what should happen if a juror disagrees. The answer ultimately given by the trial judge failed to explain that a juror had the right to disagree and conveyed the impression that there was an obligation to agree on a verdict. In our view, the answer given in this case falls squarely within the concerns expressed in Latour and Naglik.

[9] The appeal is allowed, the convictions and ancillary orders under s. 109 of the Criminal Code and the Sexual Offender Information Registration Act are set aside and a new trial is ordered.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”