COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vivian, 2012 ONCA 324

DATE: 20120516

DOCKET: C53086 and C53303

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devon Vivian

Appellant

and

Anthony Grant

Appellant

Peter Copeland, for the appellant Devon Vivian

Michael Lacy, for the appellant Anthony Grant

Robert Gattrell, for the respondent

Heard: April 11, 2012

On appeal from the convictions entered on July 6, 2010 by Justice W. Brian Trafford of the Superior Court of Justice, sitting with a jury.

MacPherson J.A.:

A. introduction

[1] The appellants Devon Vivian and Anthony Grant were each charged with one count of first degree murder and four counts of attempted murder relating to a shooting in Toronto on June 9, 2007. The trial proceeded in the Superior Court of Justice before Trafford J. sitting with a jury. On July 6, 2010, the jury returned verdicts of guilty of first degree murder and guilty of four counts of attempted murder against both men. The appellants were sentenced to life in prison without eligibility for parole for 25 years.

[2] On these appeals, the appellants do not challenge anything about the seven-week trial up to the time the jury began its deliberations, including the trial judge’s voir dire and trial rulings and jury charge.[^1]

[3] However, the appellants submit that the trial judge made two serious errors during the jury deliberations, which lasted six days. First, the appellants submit that the trial judge erred in his third exhortation to the apparently deadlocked jury, specifically by misapprehending a question from a single juror and then improperly singling her out for critical commentary. Second, the appellant contends that the trial judge erred by summoning the same juror to the courtroom to advise her of a health concern relating to her husband. The appellants contend that the summons introduced extraneous considerations into the juror’s deliberations with the potential consequence of putting undue pressure on her to return a quick verdict of guilty.

B. FACTS

(1) The trial generally

[4] In light of the grounds of appeal, it is only necessary to set out a brief description of the events leading to the murder charges against the appellants.

[5] On June 9, 2007, a blue Honda Civic with five occupants was shot at 13 times while driving on John Garland Boulevard in northwest Toronto. Three of its passengers were wounded by the bullets while one passenger, Jose Hierro-Saez, was killed. None of the surviving victims could identify who shot them. However, several eyewitnesses stated that the perpetrators were driving a silver Mercedes sport utility vehicle (SUV).

[6] Prior to the shooting, the victims’ group attended a nearby flea market. While there, they got into an altercation with the appellants that was broken up by flea market security. The appellants arrived at and departed from the flea market in a silver Mercedes SUV. Moreover, cell phone records suggested that the appellants were in the vicinity of the crime scene at the time of the shooting.

[7] A police investigation revealed that the appellant Grant was associated with a 1999 silver Mercedes SUV. On June 10, 2007, the police issued a news release asking for the assistance of the public in locating a silver Mercedes SUV that may have been at the crime scene. On June 12, 2007, both appellants flew to Jamaica. On June 13, 2007, the silver Mercedes SUV was seen parked in an industrial area of Brampton but then disappeared and was not found thereafter.

[8] The appellants did not return to Toronto on their scheduled return flight. The lead police officer, Detective Daniel Sheppard, took steps to locate the appellants in Jamaica.

[9] On August 26, 2007, Detective Sheppard received information that the appellant Grant was in police custody in Jamaica. Detective Sheppard travelled to Jamaica to take custody of Grant and brought him back to Canada.

[10] In April 2009, Detective Sheppard began to prepare a public appeal in Jamaica for information concerning the appellant Vivian. On April 6, 2009, Detective Sheppard received information that Vivian had voluntarily surrendered to the Jamaican authorities. Vivian was returned to Canada.

[11] The appellants’ trial unfolded over about seven weeks, starting in the spring of 2010. After the rulings on the final voir dires were delivered, the accused were arraigned before the jury on May 31. The Crown called its evidence; the defence called no evidence. On June 29, counsel made their closing submissions. On June 30, the trial judge delivered his charge to the jury, orally and in writing, and the jury began its deliberations.

(2) Jury deliberations: June 30 – July 5, 2010

[12] On the evening of July 3, the jury sent a note to the court:

We have come to an impasse on the issue of Devon Vivian’s hair, the testimony of Fazel Baksh, and the security video tape evidence. We are unable to agree on this evidence being exculpatory or not, and there is no reasonable expectation of resolving this impasse. We require your assistance and guidance on this matter.

[13] In response, the trial judge, with the agreement of all counsel, delivered a standard exhortation, encouraging the jury to do their best to reach a verdict in accordance with their oaths.

[14] In mid-afternoon on July 5, the jury sent another note to the court:

We have reached an impasse, we have made progress from a 9-3 vote to a 11-1 vote yesterday.

We do not feel further discussion will change this result. All jurors have reviewed their position multiple times. One juror has a question which is submitted separately. We are awaiting further direction before proceeding.

[15] In a separate note, juror No. 11 stated:

Your Honour

As you know from the foreman we are at an impasse.

In an effort to get past the impasse perhaps you could help me decide whether it is possible to be too objective, or to attach too much significance to “presumption of innocence” and to “benefit of the doubt”.

I.E. if I discount the presumption of innocence and give no benefit of the doubt and choose to apply a “cultural” aspect to activities that drove the situation and discount one witness account then it might be possible to feel something more than the present state of feeling that the Crown has only satisfied me that they could have done it.

I have agonized over this as I abhor the waste of the Court’s time as well as the time and effort of my fellow jurors.

If your speaking to me would help (or even be possible) I would be very happy to do so. I have reviewed your instructions in the binder and do believe I am following the directions.

Please note: these questions/concerns were put to the group and they felt you should hear them.

[16] After an extensive discussion with counsel, both before and after drafting a potential response, the trial judge, with the agreement of all counsel, called the jury into the courtroom and re-read his original charge concerning impartiality and the presumption of innocence.

[17] The trial judge, again with the concurrence of counsel, then made comments directed at the single juror’s note:

[T]he third paragraph of the second note speaks of “discounting the presumption of innocence”, “giving no benefit of the doubt” and “choos(ing) to apply a cultural aspect to activities that drove the situation”. All of these phrases are erroneous. Do not discount the presumption of innocence. The defendants are entitled to a reasonable doubt, not any doubt. There is no evidence of any cultural factors that may be considered in your deliberations. Limit your deliberations to the evidence in this case. [Emphasis in original.]

[18] The trial judge also told the jury not to be concerned about wasting the court’s and fellow jurors’ time and resources if they failed to reach a verdict. He concluded by, once again, giving a standard exhortation to the jury.

[19] The jury resumed its deliberations at 5:55 p.m. and continued until court was adjourned at 7:00 p.m.

(3) Jury deliberations: July 6, 2010

[20] During the previous days of jury deliberations, the husband of juror No. 11 had sent various notes to his wife. He also demanded to speak to her, but was not permitted to do so. Court staff described him as rude and belligerent, calling court staff names and threatening to call the police. The trial judge, with the agreement of counsel, decided not to bring his messages to the attention of juror No. 11 nor to interrupt the jury deliberations.

[21] On July 6, the picture changed. When court opened at 9:26 a.m., the trial judge informed counsel that juror 11’s husband had called court staff to report that he was in a hospital with a cardiac condition and wanted his wife to come to the hospital. Court staff turned the telephone over to the trial judge who spoke to the husband and some hospital staff members for about 10 minutes at about 8:30 a.m. The trial judge said that the husband was agitated and angry and demanded that his wife be present at the hospital immediately. The trial judge informed the husband that he would not release his wife from the jury without further information about his medical condition. The trial judge also spoke to a nurse who said that she would ask the husband’s treating physician to call the judge.

[22] The trial judge then advised counsel that just as he was about to walk into the courtroom, he received a note from the jury stating:

After re-examination of our positions and a fresh discussion of the case, there is no reasonable expectation we will reach a unanimous verdict.

[23] Immediately after bringing these developments to the attention of counsel, the trial judge said:

Now, let me say this. I anticipated that today I would have another note from them saying that they are not able to resolve this case. It was my expectation that they would be exhorted one more time to make an appropriate effort to resolve this difference.

This juror has not understood principles of reasonable doubt. That’s clear from her note to the Court. She has deliberated for six days under an incorrect understanding of what principles of reasonable doubt are. It will take some time to disabuse her of that erroneous interpretation and cause her to fix on a correct interpretation of what she is supposed to be doing in this jury. So my expectation was that it was going to take one more exhortation to make sure that she was fixed on a correct definition of principles of reasonable doubt, and could otherwise decide the case as she sees fit.

If I am satisfied that she has a correct understanding of those principles and she has applied herself diligently and chooses, as she is empowered to, to decline to reach a verdict, then I will declare a mistrial in this case, but I think it is premature to do that at this stage. They were given the correct definition of reasonable doubt directed specifically at her last night at about 6:30 p.m. They left at 7:00 p.m. That gives them one-half hour to deliberate on the whole case with a correct understanding of those principles in mind.

They were back here at 9:30, thereabouts, and they had a note shortly afterwards. That’s not a diligent application of the principles of reasonable doubt in the circumstances of the case that this supports, in my view, so they will be exhorted one more time at least. I will not declare a mistrial at this stage in those circumstances, so the notes relating to her become a live issue at this stage.

My instinct is that she should be told what the situation is. If her husband’s life is seriously at risk, as it may be for all I know – I suspect it isn’t, but it may be – she should know about it. If it is her preference to leave and go to be with her husband, then we have to decide whether I should discharge her at this time. [Emphasis added].

[24] This disclosure by the trial judge of his initial instincts about both issues was followed by a brief discussion with all counsel. All three counsel recommended that the trial judge not inform juror No. 11 of her husband’s medical condition without better medical information. The trial judge said that he would try to reach the husband’s physician and that he would draft an exhortation that was “more pointed than it has been” for counsel to consider.

[25] Court resumed at 11:25 a.m. The trial judge reported that he had spoken to the husband’s cardiologist who has been treating him for many years. As described by the trial judge, the cardiologist reported that:

[The husband] has been in tears because his wife is not around him... this is a stress-related condition. The presence of his wife would likely be helpful from a medical perspective. However, [the husband] is being properly cared for at the Trillium Health Centre. He does not regard his life being at risk in these circumstances.

[26] The trial judge then provided counsel with a draft copy of his proposed exhortation. Both defence counsel strongly objected to it on the basis that the trial judge was wrong in saying that juror No. 11 did not understand the concept of reasonable doubt and wrong to instruct the other jurors to correct her misunderstanding.

[27] The trial judge did not accept defence counsels’ objections or suggestions about possible wording of the exhortation. The court recessed at 11:57 a.m. and reconvened at 12:07 p.m. with the jury present. The trial judge provided this instruction and exhortation to the jury, which I set out in full:

Members of the jury, this morning around 9:30 a.m. I received a note from your foreperson advising me that you were still at an impasse and, further, that at this stage of the trial there is no reasonable prospect of a verdict.

This note is a troubling one for the Court, for several reasons.

First, you were exhorted last night in terms that I will not now repeat, to resume your deliberations in accordance with your oath or affirmation. The exhortation was completed around 6:30 p.m.

Second, you advised the court staff that you would end your deliberations for the day at 7 p.m. I’m assuming that you did, thus deliberating for an additional 30 minutes on a case that took four weeks to present to you, with one additional day for the addresses of counsel and one additional day for the charge to the jury.

Third, your deliberations began this morning around 8:30 a.m., meaning you deliberated for a further period of about 60 minutes on this case. So, in effect, you have deliberated for an additional 90 minutes after the last exhortation. That additional 90 minutes is not acceptable to the Court.

It is not acceptable to the Court because the one juror who disagrees with the rest of you clearly had an incorrect understanding of the onus on the Crown to prove its case beyond a reasonable doubt. She regarded the burden as “proof beyond any doubt.”

There is a huge difference between “proof beyond a reasonable doubt” and “proof beyond any doubt.” “Proof beyond a reasonable doubt,” as previously given to you, involves reason and common sense in the context of the evidence as a whole.

If the burden on the Crown was to prove its case “beyond any doubt”, few, if any, people would be convicted of any crime, including serious crimes, where the case for the Crown is based upon circumstantial evidence, especially if you could consider any part of the evidence in isolation from the rest of it. That is not the law of Canada, nor is it the law of any other free and democratic society like Canada.

This error by the one juror is so fundamental that in my view it can only be corrected by a comprehensive review of the entire case as a whole, not isolating any one part of it from the rest of it in deciding the value of the one part.

It is for this reason that it is my view that a further deliberation of about 90 minutes is not an appropriate response to the last exhortation by the Court.

It is important for the one juror, with the assistance of the rest of you, to disabuse her mind of her erroneous understanding of the burden on the Crown, to firmly fix her mind on a correct understanding of it, and to review the entire case. It is of critical importance to the administration of justice that you do so with intelligence and integrity, honouring your oath of office, and respecting all of the legal principles and values at play in this case. For these reasons, you will not be discharged now.

As I have said, my objective is not to convince you to change your minds, but rather to focus on your process in the deliberations. Each of you must present your own view of the evidence to your fellow jurors. Ensure that everyone’s opinion has been duly considered.

While you may have already formed an opinion as to the proper verdict, I would ask that you still keep an open mind and carefully consider your colleagues’ viewpoints. However, in reconsidering your position, I remind you that, at the beginning of the trial each of you took an oath or affirmation to return a true verdict according to the evidence.

It is crucial that no one betray their oath or affirmation. Therefore, your verdict must be based on the evidence alone. You must not allow yourselves to be influenced by any extraneous considerations, including any erroneous interpretation of the burden on the Crown to prove its case beyond a reasonable doubt.

The essence of the jury system is the process of reasoning together by exchanging views and deliberating with one another: depersonalize your deliberations; be polite and constructive in your exchanges with other jurors; listen carefully to the views of the others; make sure you understand the opinions of the others and the reasons they hold them; examine them thoughtfully and objectively; be reasonable.

Do not be intimidated by the task at hand. There is real strength in the collective wisdom of the 12 of you. Sometimes, the majority of the jurors is correct; sometimes, the majority of the jurors is incorrect. I must emphasize that this does not mean that you should subordinate your own genuinely held view of the evidence for the sake of reaching a consensus. Cast aside your pride.

If you are satisfied you were incorrect, admit it and move on in your deliberations. A unanimous verdict would be desirable, but you may be unable to reach one in this case. You are only required to make an honest and diligent effort to try the case to the best of your abilities, based upon a correct understanding of the burden of the Crown to prove its case beyond a reasonable doubt, not beyond any doubt.

Therefore, I would ask you try once again to reach a verdict. This is the time to reflect further on the evidence, to see if, by listening to each other, by carefully considering the various positions, and by reasoning together, you can come to an agreement and render a unanimous verdict.

Obey your own conscience and your oath or affirmation. If you want to ask any questions that further describes the nature of your stalemate, I will, with the assistance of counsel, be able to help you more.

Thank you. [Emphasis added.]

[28] Having heard this exhortation, the jury retired at 12:18 p.m. The court recessed to await the jury verdict.

[29] At 3:25 p.m., the court reconvened and both defence counsel applied for a mistrial on, inter alia, the basis that the emphasized portion of the recharge/exhortation set out above was improper. As expressed by Grant’s counsel in his submission on the application for a mistrial:

It is our position that your exhortation re-charge that was done earlier this morning, along with a specific criticism of one particular member, a particular member of the jury, was not proper, and, in effect, acted to suggest to the juror that she change her vote and find the accused guilty.

It is our position that your exhortation/re-charge advising the other jury members to act as a group to correct and disabuse her of her point of view and certain alleged understandings of the law was not proper.

And that the result of this exhortation, the way it was phrased to the jury, will be to place significant tremendous pressure, unfair pressure, on that jury member to change her mind.

[30] Crown counsel requested a recess before responding to the mistrial application. The court recessed at 4:12 p.m. and resumed at 5:56 p.m.

[31] Upon resumption, the trial judge stated:

Further developments in relation to the juror; 5:08 tonight, her daughter called, and said she respects the court system.

The court officers that she has spoken to over the last few days have been helpful. However, it is an emergency and her mother should come home immediately. Asked what the emergency was, she responded that the whole situation is very stressful to the family, and it is affecting her father’s heart condition. He is now in hospital and she needs to be home.... That was at 5:08 p.m.

At 5:15 p.m. the juror herself has approached the staff wanting to know if any of her family have contacted her and why she hasn’t heard from them....

[32] Both defence counsel took the position that there was no new medical information and, therefore, juror No. 11 should not be told about her husband’s condition and behaviour. Crown counsel submitted that the daughter’s communication changed the picture and that juror No. 11 should be apprised of her husband’s situation.

[33] The trial judge agreed with the Crown position. All counsel agreed that the trial judge should be the person to inform juror No. 11 of the family situation, that the court reporter should be present and a record made, and that the conversation between the trial judge and the juror should take place in camera, outside the presence of the accused and all counsel.

[34] At 6:35 p.m., juror No. 11 met the trial judge in the courtroom. He began by saying “Your husband is fine” and then reviewed all of the messages from her husband and family. Juror No. 11 thanked the trial judge for the information, expressed confidence that the doctors and her daughters could handle the situation, voluntarily stated that she was fine and could continue to participate in the jury deliberations which were “falling into place”, and that the news about her husband is “not going to affect the speed with which I address anything.” Juror No. 11 returned to the jury room at 7:02 p.m.

[35] The trial judge summarized for counsel his meeting with juror No. 11. Crown counsel then made submissions on the application for a mistrial. Defence counsel made brief replies. No counsel said anything about the trial judge’s in camera meeting with juror No. 11. The trial judge reserved his decision on the application for a mistrial.

[36] The court recessed at 7:32 p.m. At 8:12 p.m., court resumed and the trial judge announced that the application for a mistrial was dismissed, with written reasons to be released in the near future.

[37] The jury returned and rendered verdicts of guilty on all counts against both accused.

[38] On July 9, 2010, the trial judge released his reasons for dismissing the application for a mistrial. He said: “I disagree with the characterization of the impugned exhortation, and the legal analysis of its significance advanced by the defence.... The exhortations by the Court were measured and appropriate in the circumstances of the case.”

[39] Both appellants appeal their convictions. They do so on two grounds, both of which relate to the events described above that unfolded during the jury deliberations.

C. Issues

[40] The issues are:

(1) Did the trial judge deliver an improper recharge/exhortation to the jury on July 6, 2010?

(2) Did the trial judge err by summoning juror No. 11 to the courtroom to apprise her of her family situation on July 6, 2010?

D. analysis

(1) The third exhortation

[41] The jury reported, for the third time, that it had reached an impasse on the morning of July 6, 2010, its sixth day of deliberations.

[42] The first time the jury reported an impasse, on July 3, the trial judge, with the agreement of counsel, provided a standard exhortation.

[43] The second time the jury reported an impasse, on July 5, the trial judge, again with the agreement of counsel, re-read his original charge concerning impartiality and the presumption of innocence.

[44] The jury’s second report of an impasse was coupled with the separate note from juror No. 11 that provided an insight into both her reasoning process and her current position, namely leaning towards an acquittal of the accused. The trial judge and counsel worked together and agreed on an appropriate response to juror No. 11’s note, including an instruction to the jury not to discount the presumption of innocence and not to apply cultural factors to their analysis. As part of this instruction, the trial judge said: “The defendants are entitled to a reasonable doubt, not any doubt.”

[45] The trial judge’s first two exhortations were exemplary. They were careful, sensitive, general in the sense of being directed at all jurors, yet simultaneously responsive to the specific concerns of juror No. 11. Defence counsel, properly, agreed with them at the time. Appellate counsel, properly, do not challenge them.

[46] When the jury reported an impasse for the third time, on July 6, they were in their sixth day of deliberations. Obviously, this was a sensitive time, calling for the trial judge and counsel to continue to display the same focus and care they had brought to formulating a proper response to the two previous reports of impasse. As explained by Cory J. in R. v. R.M.G., 1996 CanLII 176 (SCC), [1996] 3 S.C.R. 362, at para. 15:

The importance and significance of the instructions or exhortation to an apparently deadlocked jury cannot be overemphasized. The jurors at this stage are tired, probably frustrated and certainly disgruntled. They have given so much of their time and laboured so hard with the difficult issues that they are entitled to a careful and balanced instruction.

[47] The appellants contend that the trial judge’s third exhortation was not a careful and balanced instruction for two reasons: (1) it proceeded on the basis of a misconception that a single juror did not properly understand the principle of reasonable doubt; and (2) it improperly pitted the single juror against the majority.

[48] I agree with both of these submissions.

[49] On the first point, it is important to note that the trial judge did more than provide a third exhortation when the jury reported an impasse for the third time. He also returned to juror No. 11’s note from the previous day and expressly linked her misunderstanding, as he saw it, of reasonable doubt to the continuing impasse. In doing this, the trial judge characterized juror No. 11’s question as indicating her belief that the burden of proof on the Crown was “proof beyond any doubt”.

[50] With respect, there is nothing in juror No. 11’s question to suggest such a belief on her part. Although she used the words “benefit of the doubt” in her note, this does not mean that she was inserting the word “any” instead of “reasonable” in her thinking. The trial judge had used the words “reasonable doubt” more than 100 times in his charge. In her note, the juror said that she had reviewed the written charge in the binder, which was identical to the oral charge. Moreover, the contents of the note – “if I discount the presumption of innocence and give no benefit of the doubt... then it might be possible to feel something more than the present state of feeling that the Crown has only satisfied me that they could have done it” – suggest that the juror was aware of the relevant principles and was analyzing them in a proper context.

[51] In addition, I observe that although the trial judge usually used the words “reasonable doubt” in his charge, in several places he employed the exact words used by juror No. 11 in her note, namely, “benefit of the doubt”.

[52] Finally, and of particular importance, it needs to be recalled that in his second exhortation the trial judge specifically addressed juror No. 11’s separate note. In doing so, he said explicitly: “The defendants are entitled to a reasonable doubt, not any doubt.” A fair inference is that juror No. 11, who had written a reasonably long note, would have listened carefully to the trial judge’s direct response to her question.

[53] Nevertheless, the trial judge insisted that juror No. 11 continued to misapprehend the concept of reasonable doubt even after his second exhortation. His insistence led him to conclude that the relatively short time of further deliberations signified that juror No. 11 still had an incorrect understanding of the Crown’s onus. He did not pause to consider that his second exhortation might have caused the short deliberation time. Juror No. 11’s note asked if she could “discount the presumption of innocence [and] apply a ‘cultural’ aspect to activities that drove the situation” so that “it might be possible [for her] to feel something more than the present state of feeling that the Crown has only satisfied [her] that they could have done it.” Having been told by the trial judge in the second exhortation that she was not to “discount the presumption of innocence” and that there was “no evidence of any cultural factors that may be considered in [her] deliberations”, a real possibility is that juror No. 11 maintained her opinion to acquit, leading to the continuing impasse.

[54] For these reasons, I conclude that the trial judge’s immediate response to the jury’s report of a continuing impasse on July 6 – “This juror has not understood principles of reasonable doubt. That’s clear from her note to the Court. She has deliberated for six days under an incorrect understanding of what principles of reasonable doubt are” – was, with respect, incorrect. The day before, the trial judge had responded properly, with the assistance of all counsel, to juror No. 11’s note. On July 6, over the strenuous and proper objections of both defence counsel, he misconceived juror No. 11’s understanding of the law.

[55] On the appellant’s second point, the starting point is Martin J.A.’s caution in R. v. Littlejohn (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.), at p. 168:

The trial Judge equally must avoid the use of language which is likely to convey to a juror that, despite, his own doubts, genuinely entertained, he is, none the less, entitled to give way and agree with the majority of his colleagues in the interest of achieving unanimity.

[56] In a similar vein, in R.M.G. at para. 40, Cory J. stated that “it would be preferable for a trial judge to avoid putting the situation in confrontational terms of opposing sides.”

[57] With respect, I do not think that the trial judge heeded these cautions. In his third exhortation, he said that further deliberations of only 90 minutes after the second exhortation are not acceptable “because the one juror who disagrees with the rest of you clearly had an incorrect understanding of the onus on the Crown to prove its case beyond a reasonable doubt.” In his third exhortation, the trial judge went on to state that it was “important for the one juror, with the assistance of the rest of you, to disabuse her mind of her erroneous understanding of the burden on the Crown, to firmly fix her mind on a correct understanding of it, and to review the entire case.”

[58] In my view, the likely interpretation of this by all members of the jury is fairly clear: juror No. 11 is wrong in her understanding of the crucial legal principle in this trial; the other jurors have a proper understanding of the principle; juror No. 11 must “disabuse her mind” of her error; and the other jurors should assist her in doing this. Since the court knew from a previous note that the tentative vote was 11-1, with only juror No. 11 leaning towards acquittal, the language chosen by the trial judge in his third exhortation, read in a common sense way, did pit the majority and minority against each other. The trial judge was saying, quite bluntly, that 11 jurors were right and juror No. 11 was wrong.

[59] The Crown contends that, even if the components of the third exhortation discussed above were wrong, there were other elements of the exhortation and the surrounding context that offset the error. The Crown argues, as Cory J. said in R.M.G., at para. 50: “Not every improper reference in an exhortation will lead to a new trial. Instead, the exhortation must be viewed as a whole and in the context of the proceedings.”

[60] The Crown points out that the jury was given the correct legal test with respect to reasonable doubt throughout the jury charge and the various exhortations, that the jury continued its deliberations for about seven hours after the third exhortation before returning their verdicts, that the jury charge and the first two exhortations were exemplary, and that the words in the third exhortation after the impugned words – namely, a return to the words in the standard exhortation – cured the problem. The Crown adds that, fortuitously, there was a meeting later that afternoon between the trial judge and juror No. 11 in which the juror said that she was fine, the jury deliberations were “falling into place”, and the news about her husband would not “affect the speed with which I address anything”. The Crown submits that these factors, taken together, belie any suggestion that the challenged words in the exhortation, even if improper, actually affected the integrity of the jury deliberations.

[61] I do not accept this submission. The Crown’s submission that later events go to show that juror No. 11 was not actually affected, even if accepted, misses the point. The question to be asked is not whether the words used by the trial judge actually affected the juror’s decision; rather, the question is whether the words used had a real potential to do so. In my view, they clearly did. The singling out of juror No. 11, the misconception by the trial judge about her understanding of reasonable doubt, and the strong instruction to her to “disabuse her mind” do not constitute, in the language of R.M.G., “a careful and balanced instruction.” The trial judge’s error in the wording he chose in the third exhortation is simply too substantial to pass by.

[62] For these reasons, I would allow the appeal on the first ground of appeal.

(2) The meeting between the trial judge and juror No. 11

[63] In light of my conclusion on the first ground of appeal, it is not necessary, strictly speaking, to consider the second ground of appeal. However, because it was raised and argued, and in the interest of completeness, I will address it briefly.

[64] The appellants submit that the trial judge erred by summoning juror No. 11 to the courtroom in the late afternoon of July 6, 2010 to apprise her of her family situation, namely, that her husband was in hospital with a potential cardiac issue. I note, parenthetically, that the appellants do not suggest that the structure (in camera in the courtroom with the trial judge and a court reporter) or contents of the communication between the trial judge and juror No. 11 were inappropriate. Indeed, all counsel agreed with these aspects of handling a tricky issue at a sensitive time.

[65] I do not accept the appellants’ submission on this issue. In my view, the trial judge handled this unusual issue well from start to finish. He spoke to the family cardiac physician and was assured that the juror’s husband was receiving good care and was not in any danger. Accordingly, he decided not to inform juror No. 11 of her husband’s situation. However, many hours later, the message from one of the juror’s daughters saying that there was now a family “emergency”, inclined him to a different view:

My sense is that this is an explosive situation at this stage from the family’s perspective, and that it is a prudent step to advise her of everything at this stage.

[66] I cannot say that it was unreasonable for the trial judge to exercise his discretion in this fashion. Moreover, in a sense, the proof is in the pudding. The trial judge handled the conversation with juror No. 11, from his opening “Your husband is fine” to his assurance near the end “This is not meant to put any pressure on you at all” in impeccable fashion. And juror No. 11 was grateful to receive the information, confident that her daughters could handle the situation, and completely content to stay on the jury. Finally, after the trial judge reported to counsel the tone and content of his discussion with the juror, none of the counsel objected.

[67] For these reasons, I would reject this ground of appeal.

E. disposition

[68] I would allow the appeals and order a new trial.

Released: May 16, 2012 (“D.D.”)

“J.C. MacPherson J.A.”

“I agree Doherty J.A.”

“I agree Robert J. Sharpe J.A.”

[^1]: In their Amended Notices of Appeal and in their joint factum, both appellants submitted that the trial judge erred by failing to instruct the jury on the legal defence of provocation. At the oral hearing of the appeals, the appellants abandoned this ground of appeal.