Her Majesty the Queen v. Lewis

[Indexed as: R. v. Lewis]

Ontario Reports

Court of Appeal for Ontario

MacFarland, Pardu and Trotter JJ.A.

March 17, 2017

137 O.R. (3d) 486 | 2017 ONCA 216

Case Summary

Criminal law — Charge to jury — Murder — Accused convicted of second degree murder — Crown witness of unsavoury character testifying that he, accused and six others lured deceased to apartment and that accused killed deceased in execution-style shooting — Accused denying that he was present in apartment — Crown and defence agreeing that first degree murder and manslaughter should be left with jury — Trial judge not erring in leaving second degree murder with jury.

Criminal law — Trial — Jury trial — Inquiry — Juror A claiming after accused's conviction for second degree murder that juror B made comments during deliberations that accused likely had criminal record and was in gang — Trial judge finding that those comments were juror B's opinions and that jurors were not exposed to extrinsic evidence given that extensive admissible evidence before jury that accused's criminal acts including regularly consorting with violent gun traffickers and assembling seven armed men to confront deceased — Juror A also claiming that juror B e-mailed her several days after verdict and directed her to websites about accused's criminal past — Trial judge finding that juror B conducted research after verdict to confirm his earlier opinion — Trial judge not erring in declining to inquire further into jury's deliberation process — Inquiry required only where there is credible basis for concluding that jury may have been exposed to extrinsic evidence.

Facts

The accused was convicted of second degree murder. A Crown witness, S, testified that he, the accused and six others lured the deceased to an apartment and that the accused killed the deceased in an execution-style shooting. There was evidence which supported S's testimony. The accused denied being present in the apartment. The Crown and defence counsel agreed that first degree murder and manslaughter should be left with the jury. The defence objected to leaving second degree murder with the jury.

After the conviction, counsel for one of the jurors ("juror A") filed an application on juror A's behalf for a juror inquiry. The judge warned juror A's counsel about s. 649 of the Criminal Code, R.S.C. 1985, c. C-46, which prohibits the disclosure of evidence about the deliberation process.

Counsel filed an affidavit by juror A to the effect that, during deliberations, another juror ("juror B") said that the accused was of bad character, likely had a criminal record and was in a gang. Juror A claimed that she received an e-mail from juror B several days after the verdict directing her to websites about the accused's criminal history.

The trial judge dismissed juror A's application for lack of standing. Counsel for the accused adopted the juror's application for an inquiry as his own and sought to rely on juror A's affidavit. The trial judge found that the comments made by juror B during deliberations were merely juror B's opinions and that the jury was not exposed to extrinsic evidence. He found that the e-mail from juror B resulted from post-conviction research which juror B conducted to confirm his earlier opinion. The trial judge declined to embark on a further inquiry, as the affidavit already before the court provided a sufficient evidentiary record for consideration on appeal. The accused appealed.

Decision

Held, the appeal should be dismissed.

The trial judge was correct to leave second degree murder with the jury. A reasonable jury could well have doubts that S's evidence was trustworthy enough to conclude that the accused was the shooter, but could have been satisfied, on the whole of the evidence, that he was a party to the murder. The jury could have convicted the accused of second degree murder on the basis of his foreknowledge of the shooter's intention to murder the victim and that he helped or encouraged the shooter. The jury was instructed that the accused's mere presence at the time of the murder was not enough to convict him.

The trial judge did not err in declining to embark on a further inquiry into the possibility that the jury might have been exposed to extrinsic evidence. The affidavit did not clearly establish the presence of extrinsic material during deliberations and therefore did not displace the presumption that jurors will perform their duties according to their oath or affirmation. The evidence before the jury indicated that the accused was in constant contact with violent criminals and gun traffickers, had been robbed of a gun and a kilogram of cocaine and assembled a group of seven armed men to confront the accused, which provided a factual basis for a juror to conclude that the accused was of bad character. The other comments about the accused contained in an e-mail sent after the verdict from juror B to juror A do not clearly establish that the jury was exposed to any extrinsic material about the accused during the deliberations. The tenuous nature of the evidence advanced as possibly suggesting that the jury was exposed to extrinsic evidence, and the substantial violations of the juror secrecy rule embodied in the affidavit, had to be weighed against the importance of the secrecy of jury deliberations. The need for stable and final verdicts means that there should only be an inquiry only where there is a credible basis to conclude that a jury may have been exposed to extrinsic evidence.

In addition, the affidavit presented by counsel for the juror, after she had been warned about jury secrecy rules by the trial judge, contained a lot of information that disclosed the content of the deliberations, in apparent violation of s. 649 of the Criminal Code, R.S.C. 1985, c. C-46. Counsel put her client and herself in legal jeopardy by setting out the juror's complaints about the deliberation process. Counsel should have referred only to publicly available information and left it to a judge or a commissioner appointed to question the jurors to elicit the evidence to be placed before the appellate court, pursuant to s. 683 of the Criminal Code, if an inquiry was warranted.

Reasons for Decision

A. The Crown Theory

[1] PARDU J.A.: — The appellant was convicted of second degree murder. He submits that the trial judge erred in two respects:

(1) leaving second degree murder with the jury when there was no air of reality to that offence on the particular facts of this case; and

(2) failing to conduct a more expansive inquiry into the possibility that the jury may have been exposed to extrinsic evidence.

[2] The Crown theory was that the appellant killed Kerlon Charles in retaliation for the victim having robbed him of a kilogram of cocaine, a firearm and money a few days earlier.

[3] The appellant met Cleavon Springer, a key Crown witness, and six others in a hotel room. Each one was armed with a gun. The appellant had a TEC-9 handgun. They devised a plan to lure the victim to a vacant apartment. The appellant put on a bulletproof vest. The appellant and six others drove to the apartment. According to Springer, the appellant hid in a closet with his gun. The others secreted themselves in the apartment.

[4] Once the victim was in the apartment and the door was locked, a melee ensued. The deceased was on the floor and tried to pull a gun out of his pants. Springer testified that someone bumped into him, causing his own cocked firearm to fall out of his pocket and discharge when it hit the floor, coming to rest within reach of the victim. Springer testified that as he bent down to retrieve his gun, a gunshot went off behind him and he was sprayed with blood from the deceased. He turned to see the appellant pointing his TEC-9 at the deceased.

[5] All but three fled the apartment. According to Springer, the appellant said, "I hit him once. Let me make sure that he's finished." Springer said that the appellant walked back into the living room where the deceased was lying on the floor and fired five or six shots in rapid succession at the deceased. The remaining three fled from the apartment.

[6] Springer testified that, when he met up with the appellant after the shooting, the appellant told him that he had been chased through a cemetery and had discarded the TEC-9 in a dumpster or garbage can.

[7] There was evidence supporting Springer's evidence:

(1) Surveillance video recordings from the hotel showed the appellant leaving the hotel with the other participants right before the shooting.

(2) The video shows the appellant wearing a black toque with a brim. A hat like this, with DNA corresponding to the appellant's, was found close to the scene of the killing, together with a bulletproof vest said to have been worn by the appellant. The TEC-9 was also found close by.

(3) The victim had 11 gunshot wounds, all caused by the TEC-9.

(4) The appellant was in constant telephone contact with the other persons present in the apartment before the meeting in the hotel room.

B. The Defence Position

[8] The defence position at trial was that the appellant was not in the apartment at the time of the shooting. The defence urged the jury to conclude that Springer was a liar, that Springer's own inconsistent statements about how the shooting took place, his criminal history and his own participation in the events made his evidence unbelievable. Springer volunteered information about the appellant four years after the killing, after he was himself charged with a serious offence. Springer was never charged for his participation in the killing of Kerlon Charles. Springer had a motive to frame the appellant in order to protect himself and one of the others with whom he had a profitable criminal association. He was proven to have lied under oath in the past.

[9] Springer was the only witness who testified that the appellant shot Kerlon Charles. The trial judge gave the jury a strong warning about the dangers associated with Springer's evidence.

C. The Charge to the Jury

[10] The Crown and defence agreed that first degree murder and manslaughter should be left with the jury. The defence objected to leaving second degree murder with the jury. According to Springer's evidence, this was an execution committed by the appellant, after confinement of the victim. The defence submitted that no interpretation of Springer's evidence could lead to a conclusion that the appellant was not the shooter. If the jury was not convinced that events unfolded just as described by Springer, an acquittal was necessary. Leaving second degree murder with the jury would invite them to settle on an unprincipled compromise verdict, without determining whether Springer's evidence proved the appellant's guilt of the crime embodied in the Crown's theory of the case beyond a reasonable doubt.

[11] The trial judge disagreed. It was common ground that whoever the shooter was, that person was guilty of first degree murder. The trial judge instructed the jury that the appellant could be guilty as a party to the murder, even if they had a reasonable doubt that he was the shooter. He instructed the jury that guilt on this basis could follow if they were convinced beyond a reasonable doubt that the appellant helped or encouraged the shooter while knowing that the shooter's intention was to commit murder. He told them mere presence at the scene was not enough.

D. Analysis

[12] The appellant renews the same argument concerning the jury charge on appeal. I do not accept that argument.

[13] The trial judge was correct to leave second degree murder with the jury. A reasonable jury could well have doubts that Springer's evidence was trustworthy enough to conclude that the appellant was the shooter, but could be satisfied, on the whole of the evidence, that the appellant was in the apartment to add force to the attack and that he knew the victim was to be murdered.

[14] The video surveillance evidence showing the appellant in company with the others, leaving the hotel just before the shooting, the location of the black toque with DNA matching the appellant's genetic profile, the appellant's motive and the phone calls all could have persuaded the jury that it was safe to rely on Springer's evidence that the appellant was in the apartment and to conclude that it was proven beyond a reasonable doubt that he was there to assist in the murder.

[15] This was not a case like R. v. Walker (1994), 18 O.R. (3d) 184, where the Crown asked the jury to disbelieve its own witness and come to a verdict for which there was no evidentiary foundation. Nor was this a case like R. v. Wong, 209 C.C.C. (3d) 520, where no reasonable view of the evidence could cause a jury to acquit on the offence as charged, but to convict on an included offence. Here, the jury could well have believed all of Springer's evidence about what happened that night. However, given Springer's unsavoury character, the jury might have felt it unsafe to convict on first degree murder. This would have been a rational approach to the evidence, the burden of proof and the trial judge's Vetrovec warning.

E. Jury Issues

[16] After conviction, when the matter came before the trial judge for sentencing, defence counsel told the trial judge that one of the jurors had made an anonymous call to him to say that "a true verdict was not rendered". Defence counsel terminated the discussion, arranged for another lawyer to communicate with the juror and informed the Crown.

[17] On January 16, 2012, counsel for the juror, Ms. S, attended before the trial judge and advised of her intention to bring an application for a juror inquiry. The trial judge warned counsel of the provisions in the Criminal Code, R.S.C. 1985, c. C-46 relating to dealings jurors after a verdict and warned her to be very careful: "I am asking you to think carefully whether it is appropriate that it be filed in affidavit form." He told Ms. S that the law "precludes discussion of activities in the jury room" and recommended that she think it over and discuss it with her colleagues.

[18] The Crown asked for a factual record to be placed before the trial judge; the trial judge indicated that something should be provided to him in affidavit form. Ms. S. intended to file an affidavit as a factual basis for her proposed application.

[19] Ms. S. filed an application record on behalf of the juror which indicated:

The applicant intends to argue that this Honourable Court hold an inquiry of [the juror at issue in this appeal] in order to determine whether there has been a miscarriage of justice in that, she has not rendered a true verdict, voluntarily.

[20] Ms. S. filed an affidavit by the juror to the effect that the juror had been coerced and bullied by the other jurors during deliberations. Although when polled the juror had expressed agreement with the verdict, and despite participating in making a parole eligibility recommendation, the juror swore in her affidavit this was all a result of being intimidated, indicating "I was a weak and fragile individual who did not have the strength to withstand the aggression, the bullying and the hostility in the closed off jury room." The juror mentioned feeling pressured to agree so that the jurors could go home to their families. The juror also mentioned being "forced to listen to and take in information about the accused person that was not heard in the courtroom and this I knew to be wrong". The matter was adjourned.

[21] Crown counsel, defence counsel and Ms. S appeared again before the trial judge. Ms. S. indicated that there was some suggestion from the responding materials filed (presumably from the Crown) that the juror had violated s. 649 of the Criminal Code and "may be in some jeopardy". Ms. S. indicated that defence counsel should be the one to pursue the argument for a juror inquiry. The Crown and defence counsel, as well as Ms. S., agreed that the juror did not have standing to make the application. Defence counsel indicated "we are fundamentally joining the motion that has been brought by Ms. S in substance".

[22] There was discussion between the Crown, defence and the trial judge about whether the trial judge should conduct an inquiry to establish an evidentiary record for consideration by this court. The Crown suggested that if the defence wanted to establish a record for that purpose, they should appeal and make use of s. 683 of the Criminal Code, which sets out various methods of placing evidence before a court of appeal.

[23] Defence counsel indicated that he proposed to rely on the affidavit of the juror that had already been filed. Defence counsel asked for clarification of the Crown's position:

Is it the Crown's position that if, without conceding, that the Court were to conclude that there was a limited jurisdiction creating evidentiary foundation that that evidentiary foundation is contained in the affidavit itself that's now before the court?

[24] The Crown responded that that was correct.

[25] The trial judge dismissed the juror's application for lack of standing, and indicated that counsel for the appellant wished to bring an application and "will file the appropriate notice of supporting materials". The trial judge made an order sealing the documents which had been filed on the juror issue. The matter was adjourned to deal with two questions: first, whether the trial judge had jurisdiction to embark on an inquiry; and second, whether he ought to do so.

[26] The trial judge heard from the Crown and defence counsel and released reasons on February 16, 2012, which are reported at R. v. Lewis, [2012] O.J. No. 742, 2012 ONSC 1074. The record before this court does not contain any new application materials filed on behalf of the appellant. However, the reasons of the trial judge specify, at para. 13, "Mr. Lewis asks that I commence an inquiry aeto ascertain whether an irregularity occurred that questions whether a true and unanimous verdict was rendered'". The appellant argued that the juror's affidavit gave rise to a reasonable concern that the verdict as rendered was not a "true" verdict, given that a verdict not based exclusively on the evidence and the law is not a true one.

[27] The trial judge accepted that he had jurisdiction to embark on a further inquiry but concluded that he should not do so in this case. In his opinion, the affidavit already before the court provided a sufficient evidentiary record for consideration on appeal.

[28] He referred to R. v. Pan; R. v. Sawyer, [2001] 2 S.C.R. 344, 2001 SCC 42, dealing with the juror secrecy rule, at para. 77:

[S]tatements 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.

[29] He noted Arbour J.'s observation, at para. 59, that expressions of opinion arising from a juror's life experiences are intrinsic to the jury's deliberation process, but a juror's introduction of information not properly before the court by reason of an exclusionary rule or other reasons would be extrinsic evidence and would be admissible for review on appeal to determine "whether or not there is a reasonable possibility that this information or influence had an effect on the jury's verdict".

[30] The trial judge concluded that the allegations in the juror's affidavit referred to matters intrinsic to the jury's deliberations and were inadmissible to impeach the properly recorded unanimous verdict.

[31] The trial judge found that the comments attributed to one of the other jurors -- namely, that "the accused was of bad character, likely had a criminal record and was in a gang" -- did not suggest that the juror conducted research outside of court and introduced the evidence into the jury deliberations. Rather, if the comments were made, they appear to have been expressions of opinion by the juror. In his reasons, at para. 30, he cited Pan; Sawyer for the principle that "[j]urors are entitled to express their opinions based upon their life experiences and inferences they draw from the evidence properly adduced in court". He noted further that the juror at issue in the present case acknowledged in the affidavit an awareness that the expressions of opinion did not constitute evidence heard in the courtroom.

[32] In the affidavit, the juror mentioned receiving an e-mail several days after the verdict. The affidavit explains that the juror

received an email from the specific juror that had taken control of the room and . . . had forwarded numerous websites about Christophe Lewis and his prior involvement in a 2005 murder, many other pages associated with his criminal record and his bad character. I was provided with numerous news stories and alike. This was the information that [the other juror] had been alluding to.

[33] I take it from the trial judge's conclusions that he did not consider that this amounted to evidence that extrinsic material had been placed before the jury during deliberations. Rather, it appears more likely that this was material unearthed after the verdict to demonstrate that the juror's opinion that the appellant likely had a criminal record and was in a gang was correct.

F. Analysis of Jury Issue

[34] The appellant submits that the affidavit from the juror established that extrinsic material was placed before the jury during deliberations. I do not agree.

[35] I begin with the premise that the trial judge was in an ideal position to assess whether the affidavit showed that extrinsic material had been placed before the jury. He had the advantage of listening to all of the evidence. Moreover, there was a factual basis for the juror's opinion in the trial evidence. According to some of the evidence at trial, the appellant was in constant contact with known violent criminals and gun traffickers; the appellant had been robbed of a gun and a kilogram of cocaine; and he was able to assemble a group of seven armed men to confront the victim. The trial judge concluded that the jury was not exposed to extrinsic material.

[36] With the benefit of a written record, I agree with the trial judge's interpretation of the affidavit. As the trial judge held, at most the affidavit suggested that some jurors formed an opinion as to the appellant's bad character, criminality or gang affiliation or conducted external research after the jury rendered its verdict. The affidavit did not clearly establish the presence of extrinsic material during deliberations and therefore did not displace the presumption that "jurors will perform their duties according to their oath or solemn affirmation": R. v. Bains (2015), 127 O.R. (3d) 545, 2015 ONCA 677, at para. 61.

[37] I repeat the juror secrecy rule referred to by the trial judge and articulated in Pan; Sawyer, at para. 77:

[S]tatements 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.

[38] In Danis v. Saumure, [1956] S.C.R. 403, Kerwin C.J.C. wrote, at p. 406 S.C.R., that "[s]tatements or affidavits by any member of a jury as to their deliberations or intentions on the matter to be adjudicated upon are never receivable".

[39] Other jurisdictions have concluded that this kind of evidence is inadmissible. In R. v. Frebold, [2001] B.C.J. No. 537, 2001 BCCA 205, 87 B.C.L.R. (3d) 221, a juror wrote a letter to the trial judge complaining that they "felt bullied into the guilty verdict and regrets joining in that verdict": para. 29. The juror complained that the other jurors made up their minds right away and were "impatient and aggressive, even verbally abusive at time with those who were undecided and wanted to review the evidence carefully": para. 29. The British Columbia Court of Appeal concluded that the allegations were intrinsic to the deliberation process and inadmissible. Donald J.A. wrote, at para. 40:

The letter also engages each of the three policies supporting the secrecy rule. Assuming the letter to be true, the dynamics of the process as described were hardly edifying, but judges cannot monitor juries for good manners and polite discourse. Jurors have a difficult enough job without running the risk that their comportment in the jury room will become the subject of public scrutiny. Some jurors may be stubborn, overbearing, hyperaggressive, dismissive of others or many other bad things in wording towards a decision, despite the directions of the trial judge to listen carefully to the views of others in the jury room, but that is a problem inherent in a jury system. It should be remembered that the right to a jury has been constitutionally enshrined in s. 11(f) of the Charter.

[40] Similarly, in R. v. Ferguson, [2006] A.J. No. 175, 2006 ABCA 36, 384 A.R. 318, a juror wrote a letter to the trial judge to say that "[their] decision did not reflect [their] true feelings" and blamed pressure by other jurors for their agreement in court to the verdict: para. 13. The Alberta Court of Appeal found these were matters intrinsic to the jury deliberation process and inadmissible. O'Brien J.A. stated, at para. 46, the three rationales to jury secrecy rule outlined in Pan; Sawyer: (1) the promotion of full and frank debate by the jurors free from potential extrinsic pressures; (2) the assurance of finality and the authority of a verdict; and (3) the protection of jurors from repercussions. O'Brien J.A. concluded, at para. 52:

In the end, an inquiry into the matters disclosed by the juror in her letter would necessarily invite an examination into the inner workings of the deliberative process and would necessarily require disclosure of what went on within the confines of the jury room. As already noted, sound policy reasons exist for rejecting an attempt by any juror to impeach a verdict either through disclosure after the public verdict of any private and secret reservations at the time of the vote or by repudiating the vote count by that juror in the discharge of his or her duties because of a change of mind in the days following the jury verdict.

[41] O'Brien J.A.'s opinion in Ferguson alludes to how jurors' second thoughts may be inherently unreliable. Indeed, as Arbour J. observed in Pan; Sawyer, at para. 82:

In addition, it is not at all clear that evidence given by jurors after the verdict concerning the substance of their deliberations would be a good indication of what actually occurred in the jury room. As the majority of the Court of Appeal notes at para. 148:

It is also questionable how reliable a post-verdict reconstruction of a jury's understanding of the evidence and the law would be. Memories are likely to fade. Individual jurors could be subject to pressure from litigants who want to influence the process. Further, some jurors, for any number of reasons, may want to revisit their decision and hence, unwittingly or not, could tailor their recollection accordingly.

This is particularly true if jurors are made aware, after the verdict, of the existence of properly excluded evidence which may lead them to reassess the facts in a different light.

[42] The appellant argues further that the affidavit was at the least ambiguous and that on that ground the trial judge should have embarked on a more extensive inquiry. I do not agree.

[43] Preservation of the secrecy of jury deliberations is of vital importance to the proper administration of criminal justice. As Arbour J. noted in Pan; Sawyer, the rule "helps to ensure that jurors feel comfortable freely expressing their views in the jury room" (para. 81), and, further, "The secrecy of the deliberation process, both during and after the conclusion of the trial, is a vital and necessary component of the jury system" (para. 83). Arbour J. stated, at para. 80:

If jurors know that the views they express in the jury room may eventually come to light, they may be less inclined to argue for a verdict that may be perceived as unpopular. For example, a juror who has serious concerns about the foundations of a conviction might rapidly accede to the majority viewpoint of convicting an accused charged with a horrible crime rather than attempt to argue for, or even explore out loud, the arguments favouring an acquittal, fearful of possible negative public exposure.

[44] In the case at hand, the trial judge did not err in declining to inquire further into the jury's deliberative process as the appellant submits. The tenuous nature of the evidence advanced as possibly suggesting that the jury was exposed to extrinsic evidence, and the substantial violations of the juror secrecy rule embodied in the affidavit, must be weighed against the importance of the secrecy of jury deliberations. For the trial judge to have enlarged the inquiry would have necessarily meant examining other jurors, as questioning only the juror who was the author of the affidavit would be unlikely to produce a balanced view of what went on in the jury room. This would have been a substantial intrusion on the other jurors who had already made an enormous contribution to their community by serving as jurors. The need for stable and final jury verdicts means that there should be an inquiry only where there is a credible basis to conclude that a jury may have been exposed to extrinsic evidence.

[45] Where a trial judge has not conducted an inquiry, or a party considers that the inquiry did not go far enough, but there is a sufficient basis to consider that a jury was likely exposed to extrinsic influence, the party's remedy is to move to expand the record on appeal pursuant to s. 683 of the Criminal Code.

[46] Here, the affidavit prepared by Ms. S was replete with inadmissible evidence about the deliberations. Section 649 of the Criminal Code makes it an offence for any juror to disclose "any information relating to the proceedings of the jury when it was absent from the courtroom". Ms. S put herself and the juror in jeopardy by filing an affidavit detailing the juror's complaints about the deliberation process. The affidavit was expressed in language one would expect from a lawyer, not a lay juror who might not be aware of the criminal offence. This made it more difficult to evaluate the authenticity of the juror's claims.

[47] Counsel prepare an affidavit like this at their peril. The better course is to avoid all but publicly available information in the affidavit and leave it to a judge or commissioner to control the questioning of a juror, either in the course of an inquiry by the trial judge or by the means set forth in s. 683 of the Criminal Code for placing evidence before a court of appeal.

G. Conclusion

[48] For these reasons, I would dismiss the appeal on both grounds. To protect the secrecy of juror deliberations, there will be a publication ban prohibiting the publication of any information which could identify a juror in this case and continuing the sealing order in relation to the documents filed in this court dealing with the jury issues.

Appeal dismissed.

End of Document