WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

The unredacted Reasons for Decision in this matter, released to the parties on February 4, 2020, may contain information protected from disclosure by the common law jury secrecy rule and s. 649 of the Criminal Code.

Upon the release of the decision to the parties this court therefore ordered that subject to a further decision of this court in this matter, these unredacted reasons shall not be disclosed to any other persons except for the parties and their counsel and shall not be published in any manner.

With the assistance of submissions from counsel for the parties, the court has determined that the attached redacted version of the reasons should be released to the public. The full reasons along with the rest of the Court of Appeal file remain under seal, subject to further order of this court.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.B., 2020 ONCA 84

DATE: 20200204

DOCKET: M50979 (C66940)

Roberts, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Applicant

Andrew Menchynski and Jill R. Presser, for the applicant

Elise Nakelsky and Katie Doherty, for the respondent

Heard: January 10, 2020

Reasons for Decision

[1] The applicant seeks the appointment of a special commissioner under s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46, to inquire into allegations of juror misconduct that came to light following his conviction for first-degree murder. The trial judge dismissed his application for a post-verdict inquiry.

[2] Specifically, the applicant seeks an examination before a special commissioner of the juror who, in the days following the verdict, communicated allegations to defence counsel, the trial judge and Crown counsel that during jury deliberations, this juror was subjected to undue pressure, verbal abuse and other mistreatment [16 words redacted]. This juror also alleged that the jury was exposed to extrinsic information [11 words redacted] through the comments expressed by other jurors.

[3] The Crown opposes this application on the ground that any inquiry would be impermissible because of the jury secrecy rule, and that there is an inadequate foundation that extrinsic misconduct occurred to warrant inquiry.

[4] We agree with the Crown’s position on this application.

[5] It is useful to lay out some foundational principles concerning the jury secrecy rule. At common law, matters intrinsic to the deliberation process such as statements, opinions, arguments and votes made by jurors in the course of their deliberations, as well as information about a juror’s state of mind or emotion, or a juror’s ultimate decision, are inadmissible in court proceedings: R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 64; R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, at para. 77. Disclosure of this kind of information may engage criminal liability under s. 649 of the Criminal Code.

[6] Jury secrecy is widely acknowledged as important to maintain the integrity of the trial by jury. Jury secrecy advances three central goals: (1) to promote full and frank deliberations free from extrinsic pressures; (2) to assure the finality and authority of the verdict; and (3) to protect jurors from repercussions: Pan, at paras. 50-52.

[7] The scope of the jury secrecy rule is not, however, without limits. Facts, statements and events extrinsic to the process of jury deliberation are not caught by this rule: Pan, at para. 77. Therefore, evidence that the jury was exposed to outside information or influence may be admissible. There is also a statutory exception in s. 649 of the Criminal Code for investigations and court proceedings related to obstruction of justice charges pursuant to s. 139(2) of the Criminal Code in relation to a juror.

[8] The question for our determination on this application is whether the applicant has met his burden of demonstrating that there is “a sufficient basis to consider that a jury was likely exposed to extrinsic influence” or that an obstruction of justice occurred, such that the record should be expanded through further inquiry for the purposes of appeal: R. v. Lewis, 2017 ONCA 216, at para. 45.

[9] We are not persuaded that the applicant has met this burden.

[10] Much of the information disclosed in the application relates to statements, opinions, arguments and votes made by jurors in the course of their deliberations, as well as jurors’ states of mind or emotion, and their ultimate decisions. This information is intrinsic and protected from inquiry by the jury secrecy rule.

[11] Moreover, assuming for our analysis that the complaining juror’s allegations are true, [sixteen words redacted], [the content of the allegations] does not approach the threshold necessary to warrant an investigation under s. 139(2) of the Criminal Code. Rather, [they] can be understood as expressive of the frustrations that sometimes erupt in the ordinary course of jury deliberations. [Two words redacted] [Inappropriate expressions of frustration], while regrettable, can be an inherent problem and are therefore intrinsic to the very difficult job that a jury must undertake to reach a well-considered verdict. As stated by Donald J.A. in R. v. Frebold, 2001 BCCA 205, 152 C.C.C. (3d) 449, at para. 40, leave to appeal refused, [2001] S.C.C.A. No. 342:

[J]udges 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 working 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.

[12] Similarly, [five words redacted] [the content of the allegations] described by the juror arose in the course of a debate during deliberations and is thus intrinsic to the deliberation process. Again, on this record, while not to be condoned, [four words redacted] [the content of the allegations] does not appear to be more than another expression of frustration. Based on the complaining juror’s description of events, there is an insufficient evidentiary foundation for concluding that [three words redacted] [it] represented an assault or an attempt at intimidation contrary to s. 139(2) of the Criminal Code.

[13] Finally, the opinions of other jurors about [three words redacted] seem to be no more than opinions, which are intrinsic to jury deliberations. Nor is there any information about the source of the information shared by the jurors about [three words redacted]. There is therefore no basis for apprehending that extrinsic information tainting the deliberation was brought into the jury room.

[14] In consequence, there is not a sufficient evidentiary basis to warrant the requested inquiry. We therefore dismiss the application.

[15] On the agreement of the parties, we continue the trial judge’s publication prohibition and sealing orders with respect to the application record, including the application judge’s reasons, and the parties’ facta in order to protect the identities of the jurors and the secrecy of their deliberations.

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”

“A. Harvison Young J.A.”