COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kum, 2015 ONCA 36

DATE: 20150123

DOCKET: C55035

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrence Kum

Appellant

Alan D. Gold and Etai Hilzenrat, for the appellant

Lisa Csele and C. Michaelson, for the respondent

Heard: June 26, 2014

On appeal from the convictions entered on November 3, 2011 and the sentence imposed on March 6, 2012 by Justice Bonnie J. Wein of the Superior Court of Justice, sitting with a jury, with reasons reported at 2012 ONSC 1194, 281 C.C.C. (3d) 553, and 2012 ONSC 1314.

Feldman J.A.:

A. Overview

[1] The appellant was convicted by a jury of trafficking cocaine and possessing the proceeds of crime. During a break in their deliberations, some jurors complained to a court deputy about the conduct of some other jurors. When, following the suggestion of the trial judge, the complaining jurors put their concerns in writing, it became clear that two jurors’ conduct during deliberations was being impugned. Earlier that morning the jury had sent a note to the trial judge saying they were at a stalemate. The note disclosed that the vote was ten to convict and two to acquit.

[2] Upon receipt of the complaints, the trial judge embarked upon a lengthy inquiry of each individual juror, and a number of further inquiries of the two impugned jurors. The trial judge ultimately discharged both jurors. Defence counsel’s motions for a mistrial were denied. Following the discharge of the second juror, after about an hour of further deliberations, the ten-member jury convicted the appellant.

[3] The main issue on this appeal is whether the discharge of the jurors resulted in an unfair trial. I have concluded that it did.

B. Background regarding the offences

[4] Between June 15 and June 18, 2007, the police intercepted a number of calls related to drug trafficking between a known suspect, Harding, a male using a 519 area code telephone number, and another male using a Jamaican telephone number. On June 18, following a few of these calls, Harding told the male on the 519 number that he was at a Tim Hortons. The male told Harding that they would meet there and then Harding could follow him in his car. The police were conducting surveillance at the Tim Hortons and observed the appellant drive up and Harding follow him in his own car. They drove to a deserted area of a local golf course.

[5] The police observed conversation between the two men, but no exchange of anything. The police followed both cars after the meeting concluded. When the police arrested the appellant a few minutes later, they found a box in his car containing $54,040. When they arrested Harding shortly thereafter, they found three bricks of cocaine, totalling 3 kilos, each in a Ziploc bag and all inside a number of other bags. The appellant’s partial fingerprint was on one of the Ziploc bags. The appellant’s effects at the police station included three cell phones, one of which had the 519 number. As the officer who seized the phones was not a witness at trial, the continuity of the cell phones was challenged.

C. The discharge of two jurors

The notes from the jury

[6] On the morning of the jury’s second day of deliberations, the jury sent the trial judge a letter indicating that it had reached a “stalemate.” Ten of the jurors voted to convict the appellant and two voted to acquit. The letter read:

Your Honour:

The jury has reached a stalemate on some key evidence and cannot yet come to a conclusion about guilty or not guilty on the charges. The vote was 10 for guilty and 2 for not guilty after we discussed all the relevant evidence.

The key sticking point (there are others) is the lack of direct evidence of who is 519. As directed by you, the issue of continuity about when the 3 phones were seized and by whom was discussed at length. The majority of the jury found the circumstantial evidence, including the items suggested by you in your charge plus our own assessments were sufficient to link Mr. Kum to the 519 phone and wiretap conversations. A minority of the jury still have doubts about the cell phone due to lack of direct evidence and insufficient (in their view) circumstantial evidence.

The jury is at the point we are going in circles on this issue.

Do you have any further guidance on this matter?

Respectfully,

“The Jury”

[7] The trial judge discussed the jury’s letter with counsel. She advised counsel that the letter disclosed how many jurors intended to convict and how many intended to acquit. Although she did not tell them the number of votes for each side at that time, she disclosed the numbers the next day during submissions on whether two of the jurors should be discharged.

[8] That afternoon the jury heard a lengthy play-back of some of the evidence. Following a recess, a court deputy informed the trial judge that some jurors had certain concerns. At the trial judge’s request, the jurors put their concerns in writing.

[9] Approximately 30 minutes later, the trial judge received notes from the jury about other jurors’ conduct during deliberations. One of the notes said:

To: [the name of the judge]

A few members of the jury have a few concerns relating to bias.

These concerns stem from comments or actions made within and out of the jury room.

This relates to two specific jury members.

For example:

(1) 1 juror states this on (Nov. 2/11) that it is their belief that too many accused get wrongfully convicted due to police lying during testimony to make the facts work for them.

(2) We believe that 1 juror may have religio[u]s conflicts for passing judgement.

For example, each time we reach a critical path, a point[ed] question seems to be avoided, and in two instances, took washroom [breaks] just as the question requires response.

[10] Two jurors wrote separate notes to the trial judge. The notes read:

My interpretation is that 1 juror is appears to be unable to make a Judgement because of religious convictions.

I am paraphrasing – 1 juror is expressing the fact that he is the only brother here & he has to defend him. (The accused)

The trial judge’s inquiry into the alleged misconduct

[11] With the initial agreement of counsel, the trial judge began an inquiry into the two impugned jurors’ alleged misconduct. Those two jurors (jurors 1 and 9) were separated from the rest of the jury. The two jurors who had made the complaints (jurors 2 and 6) were told not to discuss the issue with the other jurors, and were eventually separated from the rest of the jury and from each other.

[12] The trial judge questioned the impugned jurors in open court.

[13] The trial judge asked juror 9 whether she had religious beliefs that would preclude her from deciding the case impartially. Juror 9 denied the allegation:

Q. A concern has been expressed to us that a juror, whom we believe is you –

A. Uh-huh.

Q. – may have a religious conviction which prevents her from deciding the case on the evidence, which prevents her from passing judgment on another person, on the evidence. I don’t want you to tell us anything that has gone on in the jury room, I simply want you to tell us whether you feel there is any impairment to your ability to pass judgment in this case.

A. I’m not sure where that religious aspect of it is coming from, with regards to not passing judgment based on religious belief.

Q. All right. You have no hesitations in feeling you can assess the evidence and pass judgment?

A. I don’t –

Q. All right.

A. – feel – I feel comfortable based on the evidence that I can come to a conclusion based on what’s provided to me.

[14] The trial judge also questioned juror 1 about the allegations that he was biased against the police and was biased in favour of the accused on the basis of race. Juror 1 also denied the allegations:

Q. We have a concern that’s been expressed to us that one juror, actually you, has perhaps expressed a reliance on something – an aspect of the case outside of the evidence. And I just want to make it clear, I don’t want you to tell us about anything that relates to your discussions of the case in the jury room, because that is not what we’re inquiring into. But there has been the suggestion made that you have expressed the fact that you are the only brother here and you have to defend the accused. And the concern we would have –

A. I didn’t say that.

Q. – would be that – and that was a paraphrase –

A. Your Honour, that’s not true.

Q. – the concern of course would be that a juror must not consider any sympathy or bias or prejudice, and sympathy based on race would be an outside concern.

A. It doesn’t matter if they’re black, white or whatever, I’m here to do a job –

Q. Okay.

A. – and I never said that to anyone at any time.

Q. You feel no difficulty in abiding by your oath to try the case solely on the evidence without bias, prejudice –

A. Yes, ma’am.

Q: – or partiality?

A. Yes, ma’am.

Q. All right. The other aspect of this is difficult for me to assess. If a juror were to express a belief that too many accused get wrongfully convicted due to police lying during testimony, to make the facts work, if they were simply saying let’s closely examine the police testimony because police may lie, that might be just an expression of opinion in the jury room – not interesting to us – but if a person felt that they could never assess the evidence of a police officer like the evidence of other witnesses because they just don’t believe police officers, then that would obviously be elevated to an –

A. I never said that –

Q. – outside concern.

A. – and that’s not my feeling.

Q. All right. So we have no need for concern?

A. No, Your Honour.

[15] After jurors 1 and 9 were questioned and denied the allegations made against them in the notes, Crown counsel suggested that the court hear from the two jurors who raised the complaints. At that point, defence counsel raised the concern that there was a serious conflict within the jury: the two impugned jurors had denied the accusations against them and had been separated from the others. He agreed, however, that the court should hear from the two jurors who had raised the concerns. The two complaining jurors, jurors 2 and 6, were questioned separately about their complaints. Each gave evidence in support of their allegations.

[16] Both the defence and the Crown initially agreed that the trial judge would question the remaining jurors about the allegations against jurors 1 and 9. However, after a break, defence counsel had changed his view and objected to continuing with any further inquiry of the jurors. He submitted that it was clear that there was a hung jury and a mistrial should be declared. The trial judge dismissed that motion. A standard question was drafted which inquired into the allegations and included a warning not to disclose “differences of opinion among jurors in the jury room”. The question asked:

Specific concerns have been raised about some jury members. All jurors are entitled to take different views of the evidence and bring their own world experiences and views into account, and this is a welcome part of our jury system. But all jurors take an oath to well and truly try the case and deliver a true verdict based on the evidence and only on the evidence without sympathy, prejudice or bias. We do not want to inquire, and cannot inquire about differences of opinion among jurors in the jury room, but we need to know if one or more jurors are unable or unwilling to fulfill their duties as jurors for reasons of sympathy, prejudice or bias. Have you seen anything during your deliberations, or outside of your deliberations, that leads you to believe that any of your fellow jurors is unable or unwilling to fulfill their oath, for example because they are unable or unwilling to participate in the proceedings, or have fixed views that prevent them from assessing the evidence with an open mind?

[17] The trial judge decided to put this question, together with further inquiries, to the remaining jurors as well as to the impugned jurors, 1 and 9. The jurors gave detailed opinions about the comments and perceived motivations of fellow jurors in the deliberations. In her questioning, the trial judge probed the jurors on whether they thought other jurors were incapable of properly assessing the evidence because of sympathy, bias or prejudice. For example, in questioning juror 12 about his or her concerns about jurors 1 and 9, the trial judge asked:

Q: Okay. But apart from that are the concerns you’ve told us about related in any way to something you would call sympathy or prejudice or bias as opposed to a decision on the evidence that disagrees with yours?

A: No, I won’t say that. All – all I will say, the – they felt sorry for one – for the person.

Q: So that would be a sympathy.

A: That would be sympathy, okay.

[18] Some of the jurors’ answers supported the allegations in the complaint letters. For example, several jurors said that in his deliberations juror 1 took into account the consequences of a guilty verdict, such as the potential punishment or the impact of the conviction on the appellant’s family. One juror said that juror 9’s value system would prevent her from deciding the case, but another said that she was making an effort to reach a decision.

The trial judge dismisses juror 1 but permits juror 9 to continue

[19] Following the further examination of each juror, defence counsel objected to the discharge of either of the impugned jurors. He submitted that the jury was deadlocked. It was at this time that the trial judge told counsel that the original note from the jury had stated that the vote was ten to convict and two to acquit. This information confirmed defence counsel’s apprehension of the situation from the questioning. He submitted that the two jurors were entitled to dissent and again asked for a mistrial. Crown counsel asked that both jurors be discharged on the basis that they were unable to carry out their duties.

[20] The trial judge dismissed juror 1, but not juror 9, and gave oral reasons. Dealing first with the defence motion for a mistrial, the trial judge stated that, while a mistrial would be an easy outcome, the jurors had sat for many days and they were “entitled to give judgment if they are at all able to.” Further, “for obvious public policy reasons…the actions of one, or in this case potentially two jurors, should not be allowed to hijack the process if the court can be satisfied that the remaining jurors can come to a just and proper verdict on the evidence.” With respect to juror 1, based on the testimony of the other jurors, the trial judge concluded that he had sympathy for the accused that was not based on the evidence, and that he was concerned about punishment. Furthermore, based on the testimony of the other jurors and of juror 1 himself, the trial judge concluded that he had a bias with respect to police “that has caused that juror to speculate in a way that is inconsistent with the evidence.” The trial judge was not, however, satisfied that juror 9 would not abide by her oath.

[21] In her written reasons delivered after the trial, the trial judge stated that juror 1 had consistently made the kinds of remarks referred to in the complaint letters. She did not believe him when he denied making the impugned remarks. The trial judge agreed with the concerns raised by the other jurors and said it was clear to her that juror 1 was trying to “hijack” the deliberations by considering extraneous factors, such as the impact the potential punishment might have on the accused. The trial judge was concerned that juror 1 would not follow her legal instructions “because he felt he had to support the accused who was of the same race”, and concluded that further legal instructions would be futile. The trial judge observed that juror 1 was “very probably” one of the two jurors who intended to acquit the appellant, but said this consideration was irrelevant to her decision to discharge him.

Juror 9 requests her own dismissal

[22] A few hours after juror 1 was discharged, juror 9 sent the trial judge a note advising that she was no longer able to decide the case impartially. She wrote:

[Trial judge],

I find that I am no longer able to continue as a juror in this case because I find that I am no longer able to remain open minded. I’ve come to the realization that I am factoring outside experience into the deliberation and unable to separate the two.

Regards

Juror #9

[23] Defence counsel objected to any further questioning of juror 9. He pointed out that in the previous inquiries she had said that other jurors had made up their minds before the jury charge and addresses of counsel, and he believed that now she felt isolated and was making excuses in order to be discharged. He pointed to the unfairness to his client, given that this was this was the second juror who had been complained about, and if she were discharged only the ten jurors who voted for conviction would remain. He again asked for a mistrial. He submitted that any further questioning of the jurors would negatively affect the jury’s independence and would be perceived as pressure to give a verdict. He acknowledged that the trial judge did have the discretion to question the jury further.

[24] The trial judge decided to question juror 9 again in court. The juror indicated that her deliberations were affected by her outside experiences. The trial judge then asked her if she was biased and she answered, “I don’t feel that I’m coming to an unbiased conclusion.” Eventually, she acknowledged in answer to a question suggested by defence counsel that she felt pressured inside the jury room. The trial judge told her not to feel pressured and sent her back to deliberate further with the rest of the jury. After juror 9 was sent out of the courtroom, defence counsel again objected and applied for a mistrial on the basis of juror 9’s statement that she felt pressured to reach a verdict. The trial judge allowed the jurors to continue deliberating.

[25] Approximately 80 minutes later, however, the trial judge received two further letters, one from juror 9 and one from the “jury majority”. Juror 9 wrote:

[Trial judge],

I am again indicating that I am unable to continue deliberation. As based on your example of the red hair in terms of a bias, I am finding that I am falling into example 1. (The example of bias based on all red head[s] are liars, and I feel that this is having…an impact on my decision.

Juror #9

[26] The “jury majority” wrote the following:

[Trial judge,]

The majority of the jury has listened to the below concerns regarding the case.

• Cellphone seizure

• [L]ack of evidence of the process of arrest

• [N]o pictures of transaction

• [W]ire taps

• [S]urveillance at the time of arrest

• [L]ack of total evidence

• [L]ack of credible witnesses

However, after much explanation she has not been able as per your directions to give us reasonable doubt or a logical common sense inference/explanation.

She does not at this point wish to consider alternative explanations. She says ‘I’m done.’

Respectfully

The Jury Majority

[27] The Crown’s position was that the trial judge should discharge juror 9 and proceed with the remaining ten jurors. The trial judge questioned juror 9 once again in open court. Despite juror 9’s previous statement that she felt pressured, she now denied being under pressure from other jurors. After juror 9 left the courtroom, defence counsel once again sought a mistrial. He predicted that if both jurors 1 and 9 were discharged, conviction would be a foregone conclusion. He also submitted that the majority of the jury would have succeeded in removing the minority in order to achieve a guilty verdict. The trial judge again refused to declare a mistrial. She concluded that juror 9 was biased and discharged her.

[28] The trial judge instructed the remaining ten jurors on juror 9’s dismissal and sent them to continue their deliberations.

[29] The jury retired from the courtroom at 5:13 p.m. on November 3, 2011.

[30] At 6:20 p.m., they returned to the courtroom with the guilty verdict.

[31] Following the trial, on February 23, 2012, the trial judge issued written reasons for her decisions on discharging the jurors and on the mistrial application.

D. Issues

[32] The appellant raises a number of grounds of appeal arising from the trial and sentence relating to: inadmissible police opinion evidence; unreasonable verdicts; the co-conspirators’ exception to the hearsay rule; the length of the sentence; and the DNA order. However, as the outcome of the appeal turns on the issues that arose from the discharge of the two jurors, it is unnecessary to address the other issues raised by the appellant except for the unreasonable verdicts ground of appeal, because an unreasonable verdict may result in an acquittal.

[33] On that ground, the appellant submits that the evidence against him at trial was weak and, as a result, the verdicts against him are unreasonable. For example, he points to the fact that the officers who observed him and Harding at the golf course never saw anything being exchanged. However, while the case against the appellant was circumstantial, I cannot say, given the evidence presented at trial, that the verdicts were unreasonable.

[34] The two issues that I will address in detail are: 1) Whether the extent of the trial judge’s inquiries of the jurors led to improper disclosure of their deliberations; and 2) Whether the discharge of the two jurors resulted in an unfair trial.

E. The applicable legal principles

Overview of s. 644 of the Criminal Code

[35] An accused has the common law right to be tried by a jury of twelve who reach a unanimous verdict. Section 644 of the Criminal Code, R.S.C. 1985, c. C-46, describes the exceptional circumstances when a maximum of two jurors may be discharged. It provides:

644. (1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.

(2) Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly.

[36] In Basarabas and Spek v. The Queen, 1982 216 (SCC), [1982] 2 S.C.R. 730, at p. 741, Dickson J. emphasized that in interpreting s. 573, the predecessor of s. 644, the “accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons.”

[37] Under s. 644(1), the trial judge may discharge a juror who “should not...continue to act”. The two possible criteria for discharge are illness and “other reasonable cause”. The latter has been flexibly interpreted to allow a trial judge the necessary discretion to deal with circumstances as they may arise: see R. v. Giroux (2006), 2006 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at paras. 27, 30, leave to appeal refused, [2006] 2 S.C.R. viii.

[38] When deciding whether to discharge a juror, the trial judge is entitled to make inquiries of jurors: Giroux, at paras. 35-36. However, that process is subject to strict limitations in order to protect two critical aspects of a jury trial: 1) the integrity of the process that ensures the accused is not lightly deprived of the right to be tried by a jury of twelve who reach a unanimous verdict, and 2) the secrecy of the jury’s deliberations.

The secrecy of the jury’s deliberations

[39] In R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, Arbour J. discussed in detail the rules regarding jury secrecy. Under the common law rule of jury secrecy, also known as Lord Mansfield’s rule, evidence of what occurred in the jury room among the jurors is not admissible in subsequent proceedings: Pan, at para. 54. The issue often arises when the jury’s verdict is sought to be impeached, as in the Pan and Sawyer cases.

[40] In Pan, Arbour J. also discussed the policy reasons behind the jury secrecy rules, which, she pointed out, have evolved over time. The common law jury secrecy rule, together with the prohibition on disclosing information relating to the jury’s proceedings under s. 649 of the Criminal Code, promotes candour and “free and frank debate among jurors, protecting jurors from harassment, and preserving public confidence in the administration of justice”: Pan, at para. 89. As she stated at para. 50: “While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred.”

[41] However, there is an exception to Lord Mansfield’s rule. Evidence that the jury was exposed to some extrinsic information or influence from outside the proceeding is admissible: Pan, at para. 55. But even if jurors are allowed to testify about whether they were exposed to any extrinsic information, the court should not admit evidence from the jurors as to what influence that information had on their deliberations: Pan, at para. 59.

[42] Justice Arbour concluded her discussion by restating a modern version of Lord Mansfield’s common law jury secrecy rule as follows at paras. 77 and 78:

[77] In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield’s rule is as follows: statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors’ minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict.

[78] This modern formulation of the rule, which reflects the approach of the majority of the Court of Appeal, best ensures that the sanctity of the jury’s deliberations is preserved by promoting in equal measure the secrecy and confidentiality indispensable to the deliberation process and the exposure of serious matters casting doubt on the integrity of the verdict.

The law on discharging jurors under s. 644

[43] Along with the confidentiality of jury deliberations, Arbour J. referred to s. 644, together with the challenge for cause procedure, as two other safeguards against an improper verdict. The latter two guard against lack of impartiality in a juror, from bias or another cause. The common law rule prohibits any post-verdict inquiry into whether a juror was biased, as that is not an extrinsic matter. However, prior to a verdict being reached, the court is entitled to conduct an inquiry into bias under s. 644 to determine whether a juror should be discharged: see Pan, at para. 94.

[44] In discussing s. 644, Arbour J. pointed to an important qualification on the court’s approach to the use of that section: it is intended to be used for serious issues only. It was not meant to encourage jurors to bring to the trial judge trivial complaints or minor concerns about their fellow jurors:

[97] [T]here are limits to the use of s. 644 of the Code as a mechanism for discharging jurors in the course of the trial. Section 644 only permits jurors to be discharged in the course of the trial where a serious issue arises as to their fitness as a juror. It is not designed to encourage jurors to bring trivial complaints about their fellow jurors to the attention of the trial judge in the course of the trial, nor does it contemplate the discharge of jurors over minor concerns.

[45] In R. v. Cioppa, 2012 ONSC 6832, defence counsel asked the trial judge to conduct an inquiry under s. 644, after observing one of the jurors turn his back on the accused during his entire testimony in chief, make impatient motions during counsel’s closing, and shake his head in a negative manner at the accused when counsel admitted that the accused had a knife on the evening in question. The trial judge refused to conduct an inquiry. He referred to the above passage from Pan and also stated, at paras. 10-11:

[10] There have been instances in the past where events have taken place that have warranted a court embarking on an inquiry as to whether a specific juror should be discharged. Instances of unusual conduct during the course of deliberations is one example. Possible contamination of an individual juror, or the whole jury, arising from improper contact with other individuals is another example.

[11] That said, there appears to be considerable authority for the proposition that the secrecy and confidentiality of jurors and their conduct is to be jealously guarded. Consequently, the test for when the court should embark upon an inquiry under s. 644 is a high one.

[46] The trial judge went on, at para. 13, to reinforce an important concept for the operation of the jury process. Even if the juror’s observed conduct meant that the juror had formed an opinion contrary to the accused’s position,

[13] …that did not mean, in and of itself, that the juror would not honour his oath and do his duty including listening to the views of his fellow jurors. It is not realistic to expect that each and every juror will go into deliberations with a completely open mind as to the ultimate verdict. Jurors can be expected to form views and opinions regarding the evidence and they may well develop an inclination towards a particular verdict. That is human nature and there is nothing wrong with it as long as each juror maintains an open mind regarding the final conclusion and is receptive to the views of their fellow jurors. This concept is recognized and explained to jurors when they are given the preliminary instructions at the outset of a trial. We routinely tell jurors:

As the trial proceeds, you may discuss the case amongst yourselves when all of you are together in your jury room. You must not, however, come to any conclusions about the case during those discussions. Keep an open mind.

[47] Most recently in this court, in Giroux, at para. 28, Blair J.A. emphasized the necessity of taking care in conducting inquiries under s. 644, where one or more jurors complains about another juror or jurors. The trial judge must respect the confidentiality of the jury’s deliberations, and must ensure that a majority faction of jurors is not attempting to dismiss a dissenting minority faction from the jury:

[28] [C]ases involving internal strife amongst jurors pose particularly problematic issues, and must be dealt with in a careful and sensitive fashion…. It is imperative that neither the court, in addressing the situation, nor the jury, in responding to it, violates the rule preserving the confidentiality of jury deliberations. However, adherence to this cardinal principle constrains the court’s ability to make inquiries about the internal strife. In addition, the court must be alert to the possibility that the internal strife in question is merely reflective of an inability on the part of the jury to agree, as opposed to an inability to deliberate. There is always the potential that the request to eliminate the strife issue is merely an attempt by a majority of jurors to cast off a dissenting minority opinion. Finally, the court must be conscious of the danger that the entire jury may be tainted by the internal strife – not just the particular juror or jurors who are subject to the inquiry – and its ability to deliberate compromised, thus impairing the integrity of the jury deliberation process.

[48] It follows that, when addressing concerns about jurors’ alleged misconduct, the trial judge should consider whether a recharge on the duties of jurors, or on relevant aspects of the evidence or process, would be the best initial approach. For example, in R. v. Peters, 1999 BCCA 406, 137 C.C.C. (3d) 26, both the foreman of the jury and one juror wrote notes to the trial judge, indicating that the juror felt uncomfortable judging his fellow man and that God would be the judge. The trial judge decided to examine the juror in court, where he said that he “would feel unable to carry on any further since…I feel that my only conclusion will be acquittal.” Although the court of appeal upheld the trial judge’s decision to discharge the juror, McEachern C.J.B.C. stated, at para. 78, that the better procedure would have been to exhort the jury and await further developments:

[78] I am most uneasy about this entire procedure, and I think (with the benefit of hindsight) that it might have been better for the trial judge to instruct the jurors again on their duty and responsibility as the sworn judges in this case, and to await further developments.

[49] The trial judge’s decisions whether to conduct an inquiry and discharge a juror under s. 644, and whether to declare a mistrial are discretionary and subject to considerable deference on appeal: see Giroux, at para. 27; R. v. Jojic, 2010 BCCA 577, 266 C.C.C. (3d) 42, at paras. 11, 15-16; and R. v. Lessard (1992), 1992 3103 (QC CA), 74 C.C.C. (3d) 552 (Que. C.A.), at p. 563, leave to appeal refused, [1992] 3 S.C.R. vii. However, those decisions are subject to challenge when the inquiries result in an intrusion on the confidentiality of the jury’s deliberation process, threaten the integrity of that process, or result in the appearance of unfairness in the trial: Giroux, at para. 35.

F. Application to this case

The initial inquiries

[50] After receiving the jurors’ complaints, the trial judge properly consulted with counsel about the process to follow, and decided to make inquiries of the two impugned jurors first.

[51] Although she was entitled to take this approach, the case law cautions that s. 644 should not be made into an easy avenue for jurors to tattletale on other jurors, with a view to having a “dissenting minority” juror discharged: Giroux, at para. 28. Rather, the trial judge should take a cautious approach, and consider carefully whether the allegations raised are serious enough on their face to engage s. 644. Furthermore, as McEachern C.J.B.C. observed in Peters, at para. 78, the trial judge should consider whether exhorting the jurors on their duties and awaiting further developments would be the best initial approach.

[52] In other cases where a juror was discharged for bias or inability to decide the case fairly, there was evidence directly from the juror indicating an inability to discharge his or her duties: see Peters; R. v. Hahn (1995), 1995 674 (BC CA), 62 B.C.A.C. 6 (B.C.C.A), leave to appeal refused, [1996] S.C.C.A. No. 139; and R. v. Gordon, 2012 ONCA 533. The trial judge did not need to conduct probing inquiries of the jury regarding the content of their deliberations. In this case, in the initial interviews, the two impugned jurors completely denied the allegations made against them, and denied any other problems.

[53] When the two complaining jurors were then asked to explain their allegations against jurors 1 and 9, they gave inconclusive evidence to substantiate those allegations.

[54] Both confirmed that juror 9, whom they accused of being unable to decide the case for religious reasons, had never mentioned any religion. They only assumed from her reluctance to answer questions and to join in the purchase of lottery tickets that she had religious beliefs that prevented her from judging other people. Juror 2 speculated that juror 9 was a Jehovah’s Witness.

[55] With respect to the allegations against juror 1, juror 6 did not directly hear juror 1 make comments indicating a racial bias in the appellant’s favour. Rather, juror 6 said juror 1’s comments were made to another juror, and were in turn passed through a number of other jurors. Juror 6 did not know the exact wording of juror 1’s alleged comments, “but it was along the line of I’m the only brother in here…so I have to defend, you know, my brothers.” When the trial judge asked juror 2 whether other jurors were being influenced by “considerations outside the evidence including race, bias against the police and possible religious inability to pass judgment”, juror 2 replied, “I agree on the last two you said.…Race I didn’t put down.”

[56] Regarding the police issue, juror 6 said that it was the other juror who knew more because it was that juror who was sitting beside juror 1, but that juror 1 kept bringing up the point that “there’s so many people wrongly accused, et cetera…you know, you can’t believe them – meaning the police officers.” When questioning juror 2, the trial judge asked whether juror 1 had expressed “an inability to believe the police in any circumstances? I mean there’s a difference between saying let’s look closely at police evidence because I just have a concern, and saying I’m not going to believe the police no matter what the evidence tells me.” Juror 2 replied, “Not expressed the way you just put it…but expressed in a general sense that there’s been too many cases of wrongful convictions based on police evidence, and they’ll find a way to make ‘A’, ‘B’ and ‘C’.”

After questioning the impugned and the complaining jurors, the trial judge should have exhorted the jury on their duties and ceased the inquiry

[57] After questioning the complaining jurors, the trial judge was faced with the following confluence of factors:

• She knew from the first note that the jury was deadlocked with ten voting to convict and two to acquit.[^1]

• It was clear that the two impugned jurors were the two who were voting to acquit.

• When questioned, they each denied the allegations against them.

• The two complaining jurors had not heard any mention of religion by juror 9, but had inferred their religious concerns from her behaviour. Only one reported the racial concern about juror 1, and that was based on hearsay. The police bias report was a general concern by juror 1 about whether police lie, but not that juror 1 said he would never convict based on police testimony.

• After initially agreeing, defence counsel had objected to any further questioning of the remaining jurors.

[58] In those circumstances, in order to preserve the secrecy and sanctity of the jury deliberation process and the fairness and perception of fairness of the trial, the trial judge should have exhorted the jury on their duties and allowed them to continue their deliberations. Given the above factors, there was a real concern that this was the type of situation contemplated by Blair J.A. in Giroux, where there was internal strife because the jury could not agree, and the majority was attempting to “cast off” the dissenting jurors when they were unable to convince the dissenters of their view.

[59] Instead, the trial judge decided to question the remaining jurors, as well as the impugned jurors, about the allegations.

[60] With respect to the trial judge, in this case, the effect of the extensive questioning of the jurors about the conduct of the two impugned members was to intrude upon the jury’s secret deliberation process.

[61] The inquiry required the jurors to disclose statements made by other jurors and views expressed in the course of deliberations. The inquiry also asked jurors to give their own opinion about other jurors’ ability to fairly decide the case.

[62] The intended purpose of the inquiry was to determine whether the two impugned jurors could faithfully discharge their duty to render a true verdict based on the evidence, or whether they were instead determined to act on sympathy, prejudice or bias, matters extrinsic to the record. However, unless the jurors made direct declarations of such a determination, which they did not, the inquiry necessarily required an improper parsing of a juror’s thought and reasoning process.

[63] In particular, the jurors should not have been asked to opine on their fellow jurors’ subjective motivations in the deliberation process and ability to decide the case fairly. As Arbour J. observed in Pan, at para. 61, jury members are expected to bring their entire life’s experience to their deliberations and to apply it to the decision-making process. Chief Justice McLachlin also discussed this principle in detail in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 43.

[64] Furthermore, as Nordheimer J. stated in Cioppa, jurors may develop views of the evidence as the case progresses, including a negative view of the accused or of any witness, such as a police witness. This is not inconsistent with jurors’ duties as long as they remain open to listen to the views and approaches of others, and to consider them along with their own views before reaching a conclusion. In the end, jurors are not precluded from applying their life experiences when assessing credibility, or the likelihood of a conclusion to be drawn from circumstantial evidence.

[65] The secrecy and sanctity of the jury deliberation process is intended to allow and encourage the free expression of ideas and concerns based on the evidence and on the life experience of the jurors. In this case, there was circumstantial evidence about the appellant’s possession of the 519 cell phone. In assessing that evidence, jurors were entitled to take into consideration any concerns they had about the credibility of the police witnesses. What they were not entitled to do was to close their mind to the possible inferences on the basis of a firm belief that police always lie to obtain a conviction.

[66] With respect to juror 9, we cannot know what occurred in her mind over the course of this process. When the trial judge questioned her again after she first requested her own dismissal because she now felt that she was biased, she stated that she felt pressure from the other jurors. Later, after she wrote her second note, and the “jury majority” sent a separate note to the trial judge about her, she said she no longer felt pressured. She had told the other jurors by then that “I’m done”.

[67] However, this took place after juror 9’s conduct and statements in the jury room became the subject of inquiries directed at her and the other jurors. She was supposed to be able to speak freely and confidentially with her fellow jurors. The inquiry resulted in her being separated from them, then being asked to deliberate with them once again, ultimately as the sole juror in favour of acquittal. Although affected jurors will normally be segregated during the inquiry process, in this case, the cumulative effect of all of these actions could only have negatively affected her attitude to the process and her role in it.

[68] These inquiries breached the secrecy of the jury’s deliberations and impugned the integrity of the jury process and the fairness of the trial itself.

[69] The trial judge stated in her subsequent written reasons that she was not influenced by knowing how the two jurors intended to vote when she dismissed them. There is no issue in that regard.

[70] However, the concern is with the appearance of trial fairness. It was clear on the record, and defence counsel raised the issue numerous times, that the two jurors being discharged were almost certainly the two who had voted in favour of an acquittal and that once they were discharged, the jury would quickly return a conviction. That is exactly what occurred.

[71] In deciding not to declare a mistrial, the trial judge referred to the hard work that the balance of the jurors had done and fairness to them. However, it is fairness to the appellant and the appearance of fairness in the process that are the governing factors.

G. Conclusion

[72] This was a case of juror strife, where the jury panel was unable to agree on an outcome. The trial judge’s numerous inquiries of the jurors necessarily probed the content of their deliberations and undermined the secrecy of the deliberative process. The inquires led to the discharge of one juror, then to the discharge of the second juror at her own request, when all knew that they were very likely the only two holdout jurors voting to acquit.

[73] Although the trial judge’s individual decisions are discretionary and would be owed deference on appeal, the extensive inquiries into the jury’s deliberations and the discharge of the two jurors who appeared to be the ones in favour of acquittal resulted in a breach of the sanctity of the jury deliberation process, the appearance of unfairness, and ultimately, an unfair trial.

[74] I would therefore set aside the convictions and order a new trial.

Released: “GS” Jan 23, 2015

“K. Feldman J.A.”

“I agree. G.R. Strathy C.J.O.”

“I agree. David Watt J.A.”

[^1]: In the future, jurors should be warned not to disclose the results of votes when asking the trial judge questions. This will be reflected in a new edition of Watt’s Manual of Criminal Jury Instructions, to be published in February, 2015.