COURT OF APPEAL FOR ONTARIO DATE: 20241206 DOCKET: M55414, M55555 (COA-24-CR-0580)
Trotter, George JJ.A. and Brown J. (ad hoc)
BETWEEN
His Majesty the King Responding Party (Respondent)
and
Connor Davison Gibson Moving Party (Appellant)
Counsel: Stephen Whitzman, for the moving party Jeremy D. Tatum, for the responding party
Heard: November 21, 2024
Trotter J.A.:
(1) Introduction
[1] On December 15, 2023, after a trial by judge and jury, the appellant was found guilty of manslaughter. He was sentenced on June 20, 2024, to three and a half years’ imprisonment. He has appealed his conviction and sentence.
[2] The appellant seeks an order under ss. 683(1)(b)(ii) and (3) of the Criminal Code, R.S.C. 1985, c. C-46 that a single juror (hereafter “the juror”) be examined before a judge of the court to determine whether they [1] had a reasonable apprehension of bias at the appellant’s trial.
[3] The Crown brings a motion for a sealing order and publication ban over the materials filed on the appellant’s motion in order to protect both juror identity and deliberations. This order was made on consent.
[4] At the conclusion of the hearing, we dismissed the appellant’s motion with reasons to follow. These reasons explain why I would decline to make an order permitting the examination of the juror.
(2) Background
[5] For the purposes of this motion, little need be said about the facts of the offence. The appellant was found guilty of killing the victim by hitting him in the head with a wooden board. His evidence at trial – that he was acting in self-defence – evidently failed to raise a reasonable doubt. In his Notice of Appeal, the appellant has listed the following grounds of appeal: (1) the verdict was unreasonable; and (2) the trial judge erred in his instructions to the jury on self-defence. There is no mention of an apprehension of juror bias.
[6] The appellant’s motion to examine the juror is based on the assertion that the juror may have been influenced by a professional/employment connection to the appellant’s mother.
(a) Susan Gibson’s Affidavit
[7] The foundation for the appellant’s motion is contained in the affidavit of his mother, Susan Gibson. Ms. Gibson is the Chair of a district school board (“the Board”). She has been a member of the Board since 2018 and the Chair of the Board since 2021. Ms. Gibson was the Chair at the time of the appellant’s trial. The Board oversees 58 elementary schools, 14 secondary schools, and more than 2500 staff members.
[8] The juror was the vice-principal at a school under the Board’s jurisdiction. This information came to light shortly after the appellant was found guilty of manslaughter. Ms. Gibson states that, “I was advised in the late afternoon of December 15, 2023 [the day of the jury’s verdict] that there may have been a school vice-principal named [redacted] on the jury.” Ms. Gibson does not explain who provided her with this information, nor the circumstances of the disclosure.
[9] Ms. Gibson attended court each day of the appellant’s trial. She did not recognize the juror. On the other hand, she states that she was visible to anyone in the courtroom and “I believe it was obvious that I was part of the Appellant’s family.” She believed that the juror would have recognized her because her photograph as Chair of the Board appeared in numerous bulletins sent to the schools under the Board’s jurisdiction. Samples of such communications are included as exhibits to her affidavit. Ultimately, Ms. Gibson formed the following opinion:
As a result of the above circumstances, I have a real concern that one of the jurors was aware that I was at the time of trial and had been for two years the Chair of the Board that determines the operating plan and budget (including [their] salary) for the school of which [they were] the vice-principal, yet failed to advise the court of this. It seems to me that, even if this juror did not have an actual bias as a result of these circumstances, the appearance of fairness was compromised at the Appellant’s trial.
(b) Proceedings at Trial
[10] During the jury selection process, the trial judge explained the importance of impartiality to the jury panel. He then gave the following preliminary instruction:
A person who is or at any time has been related to or closely associated with anyone involved in this case may not be able to approach the case with an open mind despite his or her best efforts. Therefore, if any of you are related to or closely connected with Connor Gibson or the deceased in this case, William Nicholas Smith, or Crown counsel Mr. Mazin, defence counsel Mr. Whitzman or myself, Harrison Arrell, please bring that to my attention if your number is called and when you come to the front of the court and before you are chosen. [Emphasis added.]
[11] Shortly afterwards, the trial judge said:
A person who is or at any time has been related to or closely associated with any witness in this case may also not be able to approach the case with an open mind, despite his or her best efforts. I will now have Crown counsel read a list of the names of potential witnesses you may hear from during this trial. Please listen carefully to each name. If you are or at any time have been related to or closely associated with anyone whose name is read out, or if you think you may be or may have been, please bring that to my attention if your number is called and when you come to the front of the court and before you are chosen. Mr. Mazin, please read out a list of the potential witnesses. [Emphasis added.]
[12] Ms. Gibson was not a witness. Her name was not read out by the Crown. When the juror was called, they raised no concern with the trial judge about being “related to or being closely associated” with anyone involved in the trial.
[13] The appellant’s trial counsel (who is also counsel on appeal) was aware of the juror’s occupation. It was indicated on the jury panel list. Counsel’s copy of this document includes a notation next to the name of the juror – “not great”. No concerns were raised with the trial judge about the juror’s qualifications or impartiality.
[14] Although she was not a witness, Ms. Gibson’s name was referred to on two separate occasions. First, her name appeared in an Agreed Statement of Fact (“ASF”). The ASF attached the appellant’s cellphone records. They showed that he made a number of calls during the aftermath of the incident giving rise to the charge. Before calling the police, he placed calls to his grandmother and made four calls to a phone number associated with his mother. The calls to his mother ranged between two and four seconds in length. Second, the appellant’s mother was mentioned during the evidence of Alex Francis, the appellant’s friend. The witness testified that after the incident, the appellant called his mother who told him to call the police.
[15] As the appellant’s counsel points out, at no point during the trial did the juror advise the trial judge of any “connection” to Ms. Gibson.
(c) Post-Trial Events
[16] As noted above, Ms. Gibson learned about the identity of the juror shortly after the verdict. The appellant’s counsel had some communications about the situation with the Crown Law Office (Criminal) and the office of the trial Crown. Both offices, quite rightly in my view, declined to investigate the juror for fear of running afoul of the juror secrecy rule, reflected in s. 649 of the Criminal Code.
[17] On a subsequent appearance, the appellant’s counsel raised the matter with the trial judge. He did not ask the trial judge to expand the record concerning the juror. The trial judge held that he lacked jurisdiction to provide any relief.
[18] After the appellant was sentenced, there was further communication between the appellant’s counsel and the Crown Law Office (Criminal). It is not necessary to detail these exchanges. It is sufficient to say that the appellant initially brought this motion before Nordheimer J.A., sitting in chambers. However, Nordheimer J.A. determined that only a panel of “the court”, as contemplated by s. 683 of the Criminal Code, had jurisdiction to provide the relief sought. The motion was subsequently argued before us.
(3) Analysis
[19] The appellant submits that he has provided a sufficient foundation to warrant an examination of the juror to determine whether there was an apprehension of bias. The Crown opposes the motion on the basis that the claim is speculative, and because the examination of the juror would involve an impermissible incursion into the jury secrecy rule.
[20] Two foundational principles are at play when a request is made to examine a juror, whether at trial or on appeal.
[21] First, as with judges, there is a strong presumption of juror impartiality in Canada and a heavy burden on the party seeking to rebut this presumption: see R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18; R. v. Godwin, 2018 ONCA 419, at paras. 12-13; and R. v. Zhou, 2024 ONCA 658, at para. 47. In R. v. Necan, 2024 ONCA 751, Fairburn A.C.J.O. reaffirmed this principle, at para. 58:
There exists a deep body of jurisprudence that reflects a strong and well-earned presumption of juror impartiality….This presumption is both a reflection of and a testament to the fact that when 12 citizens are brought together to judge a case, they take their responsibilities seriously and have historically lived up to the trust placed in them. [Citations omitted.]
See also R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 61.
[22] The second foundational principle is the sanctity of secrecy in jury deliberations. The secrecy rule promotes open and frank debate among jurors in reaching their verdicts. It furthers the goal of finality in criminal proceedings. The rule also seeks to shelter jurors from harassment, censure, and reprisals: see R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, at paras. 50-52. As Arbour J. wrote in Pan, at para. 53:
I am fully satisfied that a considerable measure of secrecy surrounding the deliberations of the jury is essential to the proper functioning of that important institution and that the preceding rationales serve as a useful guide to the boundaries between the competing demands of secrecy and reviewability.
See also R. v. Lewis, 2017 ONCA 216, 137 O.R. (3d) 186, at para. 44.
[23] In general, the common law rule, reflected in s. 649 of the Criminal Code, provides that matters that are intrinsic to a jury’s deliberations – such as statements, opinions, arguments and votes cast by jurors, as well as information about a juror’s state of mind – are inadmissible in court proceedings, both at trial and on appeal: see R. v. M.B., 2020 ONCA 84, 387 C.C.C. (3d) 34, at para. 5. Matters that are extrinsic to jury deliberations may be admissible to challenge the jury’s verdict. As Arbour J. explained in Pan, at para. 77:
In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield’s rule [2] 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. [Emphasis added.]
[24] Relying on these two broad foundations – the presumption of juror impartiality and the juror secrecy rule – the court in M.B., at para. 8, set out the approach to determining when an order to examine a juror is warranted:
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.
[25] In Lewis, at para. 44, Pardu J.A. held that: “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 the jury may have been exposed to extrinsic evidence” (emphasis added).
[26] In my view, the appellant has not established a sufficient basis to warrant an examination of the juror. The claim is vague and speculative. There is no credible evidence that the juror had any association with the appellant’s mother before, during or after the trial, that the two had ever met or spoken, that the juror knew who Ms. Gibson was, and if so, that the juror recognized her during the trial. This record leaves the appellant’s claim miles away from establishing the proposition that Ms. Gibson’s role as Chair of the Board influenced the deliberations of the juror. Indeed, the claim is so speculative that it is unclear that, if there were any such influence, whether the impact would have been favourable or unfavourable to the appellant.
[27] The appellant submits that he would only need to ask two questions of the juror on an examination under s. 683 of the Criminal Code – whether they knew Ms. Gibson and, if so, whether it would have influenced their deliberations. But this reverses the effective sequence of events. The appellant must first provide a credible foundation to justify the examination of a juror; he is not entitled to use an unwarranted examination of a juror to create that foundation.
[28] It may be that the professional connection between the juror and Ms. Gibson is an extrinsic and admissible “fact”, as understood in Pan, at para. 77 (reproduced above at para. 23). However, even if this “fact” is properly characterized as extrinsic, it is not a sufficient justification to examine the juror on the issue. Practical difficulties would quickly arise. Assuming for the sake of argument that the juror acknowledged knowing of Ms. Gibson and her role, any further inquiry would inevitably devolve into an impermissible examination concerning matters intrinsic to the deliberation process: see Godwin, at para. 10; and R. v. Ferguson, 2006 ABCA 36, 57 Alta. L.R. (4th) 37, at para. 52. And in the words of Arbour J. in Pan, at para. 46, any further probing of the issue would raise concerns “about the difficulty of reconstructing after the fact, and with hindsight, the integrity of the reasoning process that led to the original decision.”
[29] Lastly, in Ms. Gibson’s affidavit, and in the submissions of counsel, the juror is criticized for not raising with the trial judge their so-called “connection” to Ms. Gibson. On the existing record, this criticism is unwarranted. It assumes that the juror recognized Ms. Gibson, when this is far from clear.
[30] The appellant has failed to establish a sufficient basis to warrant examining the juror in question.
(4) Disposition
[31] The motion is dismissed.
Released: December 6, 2024 “G.T.T.” “Gary Trotter J.A.” “I agree. J. George J.A.” “I agree. Michael F. Brown J. (ad hoc)”
[1] Gender-neutral pronouns are used to assist in protecting the juror’s identity.
[2] The reference to Lord Mansfield’s rule is traced back to the case of Vaise v. Delaval (1785), 1 T.R. 11, 99 E.R. 944 (K.B.), where the rule that a court could not receive affidavits from jurors attesting to their own misconduct was established. As Arbour J. noted in Pan, at para. 48, this rule was adopted by the Supreme Court of Canada in Danis v. Saumure, [1956] S.C.R. 403.