Head v. The Queen, [1986] 2 S.C.R. 684

Alexander Albert Head Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. head

File No.: 18956.

1986: March 26; 1986: December 18.

Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and La Forest JJ.

on appeal from the court of appeal for saskatchewan

Criminal law ‑‑ Jury verdict ‑‑ Validity ‑‑ Charge of attempted murder with lesser included offences ‑‑ Jury foreman replying “not guilty” to clerk’s question ‑‑ Accused discharged and jury dismissed ‑‑ Foreman indicating possible different verdict on lesser included offences ‑‑ Trial judge finding himself functus ‑‑ Whether or not jury can be reconvened to reconsider its verdict ‑‑ Whether or not jury can be reconvened to complete or correct transmission and recording of verdict reached prior to its dismissal.

Appellant was accused of attempted murder and tried by judge and jury. The judge instructed the jury on a number of lesser included offences, in addition to the charge on the indictment. After jury returned a verdict of not guilty on the charge of attempted murder, the judge dismissed them and discharged the accused. The foreman of the jury then indicated to the judge that the jury may have found the accused guilty of a lesser included offence. The judge had the jury reassemble in the body of the courtroom, heard submissions, and then found that he was functus. The majority of the Court of Appeal found that the doctrine of functus was not properly applied here and was of the opinion that the jury verdict was not complete until all possible verdicts had been dealt with and disposed of. The acquittal was set aside and a new trial ordered on all of the lesser and included offences. At issue here is whether the jury can be reconvened after being discharged (1) to reconsider its verdict or (2) to complete or correct the transmission and recording of a verdict it had arrived at prior to discharge.

Held: The appeal should be allowed.

Per Dickson C.J. and Beetz, McIntyre, Chouinard, Wilson and La Forest JJ.: The nature of the criminal process requires that the power or duty of the trial judge to intervene when a jury verdict is returned and to inquire as to the true nature of the verdict be exercised prior to the jury's discharge.

The trial judge here could reasonably conclude that the jury had considered the included offences and that its verdict was intended to be a full acquittal on principal and included offences. The court was wholly functus when the question arose as to verdict and the matter had passed beyond any stage where any correction could be made.

Per Lamer J.: A jury, even after discharge, can be reconvened to correct an improper or incomplete transmission or registration of a verdict, but it cannot reconsider a verdict or complete its deliberations with a view to handing down additional verdicts on counts or on included offences that it had not finally determined prior to that discharge; nor can anyone go behind the verdict and make inquiries as regards the nature of the deliberations. The effect of adopting the rule, until now applicable to civil matters, is to ensure that those found guilty by the jury do not go free and, more importantly, that those found innocent by the jury are not convicted.

The error here was in not ascertaining with certainty the verdict on the lesser included offences. If that verdict were an acquittal on all or any of the included offences, the accused should not be deprived of that verdict because of error in its transmission or registration but only if error of law was committed in the reaching of that verdict. The ordering of a new trial is a remedy where the determination of guilt or innocence by the trial court is vitiated by an error.

The logical disposition of the appeal would be to allow the appeal, quash the order for a new trial, and order that the matter be returned to the trial court so that the jury's verdict might be ascertained. In view of the time elapsed since the jury's discharge, the ends of justice would be better served by allowing the appeal, quashing the order for a new trial and leaving the acquittal, as registered, undisturbed.

Cases Cited

By McIntyre J.

Distinguished: R. v. Carter, [1964] 1 All E.R. 187, 48 Cr. App. R. 122; referred to: R. v. George, 1960 CanLII 45 (SCC), [1960] S.C.R. 871; R. v. Morehouse (1982), 1982 CanLII 3702 (NB CA), 65 C.C.C. (2d) 231; R. v. Longson (1976), 1976 CanLII 1404 (BC CA), 31 C.C.C. (2d) 421; R. v. Blanchard, 1941 CanLII 269 (BC CA), [1941] 3 D.L.R. 467; R. v. Hess (No. 2) (1949), 1949 CanLII 242 (BC CA), 94 C.C.C. 57; R. v. Lonar (1893), 25 N.S.R. 124; R. v. Smith (1893), 25 N.S.R. 138; R. v. Ford (1853), 3 U.C.C.P. 209; Laforet v. The Queen, 1979 CanLII 58 (SCC), [1980] 1 S.C.R. 869; R. v. Thomas (1983), 1983 CanLII 3590 (QC CA), 5 C.C.C. (3d) 464; R. v. Bryan (1970), 1970 CanLII 1042 (BC CA), 1 C.C.C. (2d) 342; R. v. Parkin (1824), 1 Mood. C.C. 45; R. v. Vodden (1853), Dears. 229, 169 E.R. 706; Connelly v. Director of Public Prosecutions, [1964] A.C. 1254.

By Lamer J.

Considered: Fletcher v. Thomas, 1931 CanLII 188 (ON SC), [1931] 3 D.L.R. 142; Watson v. Fitzpatrick (1967), 1967 CanLII 525 (BC SC), 65 D.L.R. (2d) 729; McCulloch v. Ottawa Transportation Commission, 1954 CanLII 309 (ON CA), [1954] 2 D.L.R. 443; Dardarian v. Schneider (1956), 1956 CanLII 438 (ON SC), 3 D.L.R. (2d) 292; Danis v. Saumure, 1956 CanLII 9 (SCC), [1956] S.C.R. 403; referred to: R. v. Clouter & Heath (1859), 8 Cox C.C. 237; R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70; R. v. Hargraves (1982), 1982 CanLII 3746 (ON CA), 69 C.C.C. (2d) 380; Re Regina and Bertucci (1984), 1984 CanLII 2297 (SK CA), 11 C.C.C. (3d) 83; R. v. Mysko (1980), 1980 CanLII 2057 (SK CA), 2 Sask. R. 342; R. v. Vodden (1853), Dears. 229, 169 E.R. 706; R. v. Carter, [1964] 1 All E.R. 187, 48 Cr. App. R. 122; Ellis v. Deheer, [1922] 2 K.B. 113; Knowlton v. Hydro‑Electric Power Com'n., 1925 CanLII 399 (ON SC), [1926] 1 D.L.R. 217; Ainey v. Regem (1930), 48 B.R. 488; Barkhouse v. Vanderploet (1976), 1976 CanLII 2454 (NS CA), 16 N.S.R. (2d) 445; Salerno v. White (1982), 28 C.P.C. 165; McCready v. Scott (1967), 1967 CanLII 535 (BC SC), 62 W.W.R. 563; R. v. Emkeit, 1972 CanLII 169 (SCC), [1974] S.C.R. 133, affirming (1971), 1971 ALTASCAD 37, 3 C.C.C. (2d) 309; Ralston Purina (Canada) Ltd. v. Thompson View Fur Farms Ltd. (1984), 1984 CanLII 3069 (PE SCTD), 12 D.L.R. (4th) 228; Nanan v. The State, [1986] 3 All E.R. 248.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1927, c. 36, s. 1025A, [en. S.C. 1938, c. 44, s. 49].

Authors Cited

Bower, George Spencer. The Doctrine of Res Judicata, 2nd ed. By Sir Alexander Kingcome Turner. London: Butterworths, 1969.

Crankshaw’s Criminal Code, 8th ed. Gary P. Rodrigues, ed. Toronto: Carswells, 1979.

Halsbury’s Laws of England, vol. 11, 4th ed. London: Butterworths, 1975.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1984), 1984 CanLII 2562 (SK CA), 13 C.C.C. (3d) 198, 34 Sask. R. 216, allowing an appeal from an acquittal granted by Hrabinsky J., sitting with jury. Appeal allowed.

June Lancaster, for the appellant.

Carol A. Snell, for the respondent.

The judgment of Dickson C.J. and Beetz, McIntyre, Chouinard, Wilson and La Forest JJ. was delivered by

[1] McIntyre J.‑‑I have had the advantage of reading the reasons for judgment prepared by my colleague, Lamer J., in this appeal. I agree with him that the acquittal recorded at trial should remain undisturbed. I arrive at this conclusion on a somewhat narrower view of the trial judge's powers on the return of a jury verdict in a criminal trial.

[2] The facts have been set out by Lamer J. and I need not deal with them at great length. I would emphasize, however, that during the course of his charge the trial judge instructed the jury on the offence of attempted murder set out in the indictment, and upon certain included offences on which the accused could be found guilty, depending upon the view the jury took of the evidence. No issue has been raised as to the adequacy of the charge. During the course of their deliberations, the jury returned to the courtroom with a request for further instruction with respect to included offences. The trial judge gave the requested direction and shortly thereafter the jury returned with its verdict of not guilty. The trial judge, having ascertained that the verdict was unanimous, discharged the prisoner, discharged the jury, and adjourned the court until its next sitting day. No question regarding the completeness of the jury's verdict arose until after the prisoner and the jury had been discharged, and at least one member of the jury left the others and entered the public part of the court.

[3] The law is well settled that a trial judge, sitting with a jury, must instruct the jury on the principal offence or offences charged in the indictment, as well as any included offences and the verdicts that may be returned upon them. This principle emerges from R. v. George, 1960 CanLII 45 (SCC), [1960] S.C.R. 871. The George case did not involve a jury but the majority of the Court held that it was the duty of a trial judge, in disposing of a criminal case, to consider all included offences of which there is evidence, whether raised by counsel or not. It follows that when sitting with a jury it is the duty of the trial judge to instruct the jury with respect to included offences. There are several cases which follow and apply this principle: see R. v. Morehouse (1982), 1982 CanLII 3702 (NB CA), 65 C.C.C. (2d) 231 (N.B.C.A.), pp. 239‑40, where R. v. George, supra, was referred to, as well as R. v. Longson (1976), 1976 CanLII 1404 (BC CA), 31 C.C.C. (2d) 421 (B.C.C.A.)

[4] On the return of the jury if a clear and unambiguous verdict is given, it is the judge's duty to accept the verdict and, in accordance with the practice of his court, cause it to become a part of the record of the court. Where the verdict is one of acquittal, the prisoner is entitled to an immediate discharge unless subject to continued lawful detention by reason of another cause or matter‑‑see: R. v. Blanchard, 1941 CanLII 269 (BC CA), [1941] 3 D.L.R. 467 (B.C.C.A.), and R. v. Hess (No. 2) (1949), 1949 CanLII 242 (BC CA), 94 C.C.C. 57 (B.C.C.A.) In the Hess case, O'Halloran J.A., on a motion for bail by an accused who had been acquitted in the Court of Appeal, but who had been held pending a Crown appeal under the then s. 1025A of the Criminal Code [enacted by S.C. 1938, c. 44, s. 49], said, at p. 63:

When the appeal court quashes a conviction and does not order a new trial, and as here directs a verdict of acquittal, the former convict is entitled to walk out of Court a free man.

This principle is so well grounded in law that further authority is hardly necessary (but see: R. v. Lonar (1893), 25 N.S.R. 124 (N.S.C.A.), and R. v. Smith (1893), 25 N.S.R. 138 (N.S.C.A.) The editors of Crankshaw's Criminal Code (8th ed.) cite these cases for the proposition that upon acquittal an accused is entitled to an immediate discharge from custody. Where the verdict is one of guilt, the trial judge should proceed with the appropriate sentencing procedures in order to complete the disposition of the case.

[5] Where, on the other hand, there is ambiguity in the verdict or where there is reason to doubt that the verdict is unanimous, the trial judge should inquire into the matter to ascertain the true position and, where necessary, he should give such further directions as may be required and allow further deliberation by the jury to satisfy himself that any verdict given will indeed be unanimous, complete and expressive of the actual findings of the jury. The judge has the discretion in such a case to accept a substituted or second verdict for the first one returned. This discretion, however, is one which is to be exercised during the course of the trial, that is, in the presence of the accused and his counsel, and prior to the dissolution of the court by the discharge of the jury. In R. v. Ford (1853), 3 U.C.C.P. 209, the jury returned a verdict and after it had been discharged questions arose concerning the unanimity of the verdict. The court refused to disturb the verdict and Macaulay C.J., with whom the other two judges concurred, said, at p. 217‑18:

That a jury may correct their verdict, or that any of them may withhold assent and express dissent therefrom at any time before it is finally entered and confirmed, is clear from numerous authorities; and the judge presiding over a criminal court cannot be too cautious in being assured that, when a result so serious to the party accused as a verdict of guilty is arrived at, all the jury understand the effect and concur in the decision; and if at any moment, before it is too late, anything occurs to excite suspicious on this subject, he should carefully assure himself that there is no misapprehension in the matter.

(Emphasis added.)

Of interest on this point are Laforet v. The Queen, 1979 CanLII 58 (SCC), [1980] 1 S.C.R. 869, in this Court where the Ford case was referred to with approval and discretionary powers of the trial judge were considered, and R. v. Thomas (1983), 1983 CanLII 3590 (QC CA), 5 C.C.C. (3d) 464 (Que. C.A.); R. v. Bryan (1970), 1970 CanLII 1042 (BC CA), 1 C.C.C. (2d) 342 (B.C.C.A.) It is clear, in my view, that the power or duty of the trial judge to intervene when a jury verdict is returned and to make inquiries relating to the true nature of the verdict is one to be exercised prior to the discharge of the jury and, applying the words of Macaulay C.J. in Ford, supra, "before it is too late". It will be too late when the jury is discharged and the court created for the trial of the accused has been dissolved.

[6] It was argued that there is English authority to the contrary. The respondent cited R. v. Carter, [1964] 1 All E.R. 187, 48 Cr. App. R. 122. In that case, the two appellants were indicted on a single count, robbery with an offensive weapon. Though the prosecutor referred to an alternate verdict of robbery with aggravation, it was not left to the jury. The jury returned a verdict of not guilty of the offence charged, whereupon the trial judge discharged the prisoners. The foreman of the jury then raised the question of included offences and gave a verdict of guilty of robbery with aggravation. The trial judge entered a conviction despite the discharge of the prisoners. It was held in the Court of Appeal that the conviction should stand. The jury was entitled to render the verdict on the included offence without any direction by the judge. They had therefore not completed their verdict when the prisoners were discharged and, accordingly, the discharge was a nullity and the conviction could be recorded.

[7] This is not our case. In Carter, though the trial judge had discharged the prisoners, he had not discharged the jury, and upon this basis it could be said, in the words of Lord Parker C.J., at p. 188:

...a verdict is not complete until a jury has dealt with all the possible verdicts on the indictment, and, if a judge discharges a prisoner before the jury have completed their verdict, in the view of this court that discharge is a complete nullity.

It will be observed that in the Carter case the prisoners were discharged in the course of the trial while the court constituted for the trial remained in existence. It was therefore open to the court to correct the erroneous discharge and accept a verdict of guilt on the lesser offence. It had not at that point become, in the words of Macaulay C.J. in Ford, supra, "too late" because of the discharge of the jury.

[8] Some support for the course of action followed in Carter may be found in two early English cases: R. v. Parkin (1824), 1 Mood. C.C. 45, and R. v. Vodden (1853), Dears. 229, 169 E.R. 706. They are cited in support of the statement in Halsbury’s Laws of England (4th), vol. 11, p. 187, para. 321:

321. Correction of verdict. If a verdict is entered which is not in accordance with the intention of the jurors, the mistake may be corrected and a verdict entered in accordance with their intention, or they may retire and reconsider the question and bring in another verdict.

It is to be observed, however, that in neither of the two cases does it appear that the jury had been discharged before it gave its corrected verdict and these cases merely support the proposition, stated above, that prior to the discharge of the jury corrections may be made.

[9] As has been noted by Lamer J., a wider discretion has been accorded to judges presiding over civil trials than that accorded in criminal trials. He has referred to authoritative cases where judges, even after a discharge of the jury, have recalled jurors for the purpose of rectifying error or for the clarification of recorded verdicts. I am unable, however, to find any authority binding on this court which has ever extended such a power to trial judges in criminal cases and I am of the opinion that no such extension of the judicial control over juries should be allowed in criminal cases. There is sound reason for this difference of approach to civil matters. The civil trial results from a dispute between private parties. The Crown is not involved. The state takes no part in the resolution of the dispute‑‑beyond creating the forum for its settlement‑‑and the public generally has no interest. The parties come to court and, if a jury has been chosen as a part of the process, each party has a vital interest in securing its verdict in order to bring to an end the expense and the asperities of litigation. It is in pursuance of this objective that trial judges have been accorded the wider discretion which is justifiable, since its purpose and effect is to resolve a private dispute that is not otherwise of interest to the general public. The criminal case is different. Here, the state and the general public have vital interests in the administration of justice. The accused, of course, has a vital interest in the outcome of his case. Accordingly, sound policy requires a strict approach to the criminal process which will serve to recognize and protect both the interests of the state and the public, and the particular interest of the accused.

[10] Turning to the case at bar, it must be accepted that the charge to the jury was adequate, both as to the principal offence and as to the included offences. When the jury returned its verdict, the foreman gave a clear anc completely unambiguous verdict of acquittal and it was acknowledged, in accordance with accepted practice, by each member of the jury. The jury had been charged once on included offences and had returned to the courtroom after commencing deliberation for further instruction. It was then in these circumstances a reasonable conclusion on the part of the trial judge that the jury had considered the included offences and that the jury's verdict was intended to be a full acquittal, including the principal and any included offences. Even in these circumstances, it might have been wiser for the trial judge to inquire from the foreman whether they had any verdict or verdicts respecting the included offences, but I cannot say that it was reversible error on his part to do as he did and discharge both the prisoner and the jury.

[11] I am aware that in Longson, supra, I said, at p. 425, that it was the duty of the trial judge to tell the jury that:

...if they are not satisfied upon the guilt of the accused on the specific offence they must then consider the included offence or offences of which they have been informed and render a verdict upon them.

In the case at bar, however, where it was evident that the jury had considered the included offences, and although to convict on one or more of the included offences verdicts to that effect would be required, the clear verdict of not guilty on the principal offence would justify the trial judge in accepting the verdict as a complete acquittal and it would have that effect.

[12] This view finds support in Bower, The Doctrine of Res Judicata (2nd ed. 1969), where the learned author, in referring to the significance of a general acquittal when the offence charged included other offences, said, at p. 273:

And there are other cases in which the jury is authorized by statute, or the Common Law, to acquit the accused of the offence of which he is charged, and to convict him of some other offence of less degree. In such cases, if the jury return a verdict of acquittal, the judgment following the verdict, whereby the accused is acquitted of the major offence, is deemed to carry with it a judgment of acquittal on the minor offence also.

The same proposition was expressed by Lord Morris of Borth‑y‑Gest in Connelly v. Director of Public Prosecutions, [1964] A.C. 1254, at p. 1305, in these words:

In my view, both principle and authority establish: (1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; (2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted....

and later, at p. 1312, he quoted:

Thus, an acquittal upon an indictment for murder may be pleaded in bar of another indictment for manslaughter: and an acquittal upon an indictment for burglary and larceny may be pleaded to an indictment for the larceny of the same goods; because, in either of these cases, the prisoner might, on the former trial, have been convicted of the offence charged against him in the second indictment.

I am aware that Lord Morris was in the minority in the Connelly case, but his views on this particular question were not out of harmony with the majority. The same principle has found statutory expression in s. 537(2) of the Criminal Code.

[13] Lord Morris, Bower (2nd ed.), and s. 537 (2) of the Criminal Code all deal with the special plea of autrefois acquit and that plea is not in issue in the case at bar, but the references are helpful in that they illustrate the finality of a general acquittal and support the position of the appellant.

[14] It follows from what I have said that the accused is entitled to his acquittal. As described above, he was discharged and the jury was discharged. The court was then adjourned. Accordingly, the court which had jurisdiction to try the accused had been dissolved. It was wholly functus. When the question arose as to the verdict, the matter had passed beyond the stage where any correction could be made. I would therefore allow the appeal and restore the acquittal.

The following are the reasons delivered by

[15] Lamer J.‑‑The issues in this case are the following: Once discharged, can a jury be reconvened to, 1. reconsider its verdict; or 2. complete or correct the transmission and recording of a verdict it had arrived at prior to discharge?

The Facts

[16] The facts that gave rise to this appeal are straightforward. The appellant was accused of attempted murder and was tried by judge and jury. In his charge to the jury, Hrabinsky J., of the Court of Queen's Bench for Saskatchewan, informed the jury that "in addition to the charge on the Indictment, ... there are lesser included offences of which you may find the accused guilty or not guilty". He indicated that if the jury found the accused not guilty of attempted murder, they would have to decide whether or not the accused was guilty of, 1. causing bodily harm by discharging a firearm with intent to wound, maim or disfigure; 2. causing bodily harm by discharging a firearm with intent to endanger the life of any other person; 3. unlawfully causing bodily harm, or; 4. assault causing bodily harm.

[17] After its deliberations the jury returned to the court room and indicated that it had reached a verdict. The foreman announced that the jurors had found the accused not guilty. It is, I think, helpful to reproduce the relevant parts of the record of the events that took place in the court room.

COURT CLERK: Ladies and Gentlemen of the Jury, have you agreed upon your verdict.

FOREMAN: Yes, we have.

COURT CLERK: How say you, is the prisoner guilty or not guilty?

FOREMAN: The prisoner is not guilty.

COURT CLERK: Harken to your verdict as the Court records it, you find the prisoner not guilty.

FOREMAN: Yes.

COURT CLERK: And so say you all?

JURORS: Yes.

THE COURT: Ladies and Gentlemen of the Jury, I thank you for your careful attention given to this case and the care that you took in reaching your decision...You are free to leave, but you must return on Monday, October seventeenth at ten a.m. Thank you again. If you wish to stay in the court room, you may, if you want to move into the court room.

(Emphasis added.)

[18] The trial judge then turned to the accused and told him that he had been found not guilty and that he was discharged. The clerk of the court then said: "Court is adjourned until ten o'clock Monday morning". The following conversation then took place between the judge and the foreman of the jury:

THE COURT: Oh, just a moment, the jury foreman, did you wish to say something?

FOREMAN: Well, when we discussed this we thought we could find the Defendant not guilty of the charge as laid, but guilty of a lesser charge, is that right?

THE COURT: Well, I believe I'm functus officio. That means that I have nothing further. That is why I spelled out very clearly to you the various things that you were to find. However, I'll hear submissions from counsel.

[19] Counsel were then invited to make submissions regarding what had occurred. It was revealed during the oral submissions that by the time the foreman had spoken to the judge, one of the jurors had gone past the bar and was in the body of the court room.

[20] Hrabinsky J. then made the following comments:

THE COURT: Sheriff, would you call the jury in, but have them sit in the body of the court room.

JURY RETURN.

THE COURT: Now, what has transpired here today is most unusual indeed, and it is very disappointing after a number of days of jury trial to end in this manner. However, I have concluded that because I discharged the jury before the jury spoke up and said, "Oh, oh, wait, we have something else to say", and I tried to be cautious to give the jury lots of time to do this, nothing was said even while I was saying that I will discharge you until October seventeenth and so on. The jury even went so far as to go, most of them, back into the jury room, when the foreman made a motion and said something to me and then indicated that although they had found the accused not guilty of attempted murder they had a lesser offence to deal with. Unfortunately they did not bring this to the attention of the Court when they were asked, "How say you?". Under the circumstances, I am of the opinion that I am functus, that is, without jurisdiction once having discharged the jury and the accused. The Crown may have a remedy, and I emphasize may have a remedy, by way of an appeal which might, if successful, entail a new trial so that justice will be done. But under the circumstances, as I have already stated, I feel that I am functus and disappointing as it may be, it is my opinion that that is the law and if there is any consolation in a situation such as this, I suppose it can be said it is better to err in favour of the accused if one is to err.

The Court of Appeal for Saskatchewan

[21] The majority of the Court of Appeal held that the trial judge erred in applying "the doctrine of" functus officio to the facts of the case. According to Tallis J.A., with whom Vancise J.A. concurred, the jury verdict was not complete as the jury had not dealt "with all possible verdicts open to them on the indictment". Since the trial judge had instructed the jury on the lesser and included offences, the majority of the Court of Appeal was of the opinion that the jury verdict was not complete until it was clear that all of the possible verdicts had been dealt with and disposed of and held that in such a situation the trial judge has an obligation to recall the jurors in order to take their complete verdict. Tallis and Vancise JJ.A. set aside the acquittal and ordered a new trial on all of the lesser and included offences.

[22] Hall J.A., in dissent, was of the opinion that the record indicated that the accused was acquitted of the principal charge and all of the included offences and to have him stand trial on any of the included offences would place him in double jeopardy. He concluded his brief reasons as follows:

In any event, if a new trial should be ordered, in my opinion, it must be limited to the least of the included offences.

Under the circumstances, I would dismiss the Crown's appeal.

[23] The disagreement below appears to me to be factual. Tallis and Vancise JJ.A. were of the view that the jury had not completely transmitted its verdict to the court while Hall J.A. was of a contrary view.

[24] They all agreed that until the jury had given its full verdict the judge was not functus.

The Law

[25] It is generally accepted that a trial judge sitting without a jury is not functus officio until he has finally disposed of the case. Where the accused is acquitted the trial judge will have exhausted his jurisdiction when the accused is discharged and the trial judge cannot then reopen the case. Following a finding of guilt, however, the judge's duties are not spent until after a sentence is imposed. The trial judge can, in exceptional circumstances and before the imposition of the sentence, reopen the case to permit the accused to tender further evidence. This principle, stated over one hundred years ago in R. v. Clouter & Heath (1859), 8 Cox C.C. 237, has recently been reaffirmed in Canada (see for example, R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.); R. v. Hargraves (1982), 1982 CanLII 3746 (ON CA), 69 C.C.C. (2d) 380 (Ont. C.A.); Re Regina and Bertucci (1984), 1984 CanLII 2297 (SK CA), 11 C.C.C. (3d) 83 (Sask. C.A.); and R. v. Mysko (1980), 1980 CanLII 2057 (SK CA), 2 Sask. R. 342 (C.A.)) If the judge, sitting alone, were functus as regards the determination of guilt as of the moment of that determination, he would have no jurisdiction to reopen the case.

[26] In cases where the trial is before a court composed of a judge and a jury the rule cannot be the same. The jury, as the trier of fact, decides whether the accused is guilty or not guilty. Even though the verdict is unanimous, if it is unclear, the trial judge may refuse to register it and may require that the jury reconsider its verdict. Up until the time it is discharged, the jury may correct an error in its verdict, even if the accused has been discharged (see R. v. Vodden (1853), Dears. 229, 169 E.R. 706; R. v. Carter, [1964] 1 All E.R. 187, 48 Cr. App. R. 122). But once the jury verdict has been recorded and the jury has been discharged, the assessment of guilt is, subject of course to an appeal, final. The judge, by then sitting alone, cannot reopen the case. All that remains, where the accused has been found guilty, is for the judge to sentence the accused.

[27] Once the verdict has been registered and the jury has been discharged, the jury cannot be recalled and sent back to reconsider its verdict but, I hasten to interject, there is a difference between reconsidering a verdict and correcting an error made in its conveyance to, or registration by, the court. In Fletcher v. Thomas, 1931 CanLII 188 (ON SC), [1931] 3 D.L.R. 142, the jury had been discharged after their verdict but still remained in the court room. A few jurors approached counsel for the plaintiff and stated that they had misunderstood two of the questions that had been put to them and that the verdict did not reflect their intentions. Logie J. of the Ontario Supreme Court refused to reconvene the jury. He stated, at p. 146:

I would go further than this and say that to allow a jury functus officio to re‑assemble and alter or purport to explain a verdict already given by them would be a scandal on the administration of justice and cannot be permitted at any time after they have given their verdict and been discharged. If a higher Court should see fit to order a new trial, that is quite a different matter, and I conceive that such a course would be taken only on the clearest proof of a grave miscarriage of justice.

[28] In Watson v. Fitzpatrick (1967), 1967 CanLII 525 (BC SC), 65 D.L.R. (2d) 729, after the jury had been discharged, Ruttan J. of the British Columbia Supreme Court was asked to consider a motion by the plaintiffs to set aside the jury verdict and to direct a new trial. The sole reason for the motion was that the damage award was "inordinately low". Ruttan J. refused to grant the motion stating that "The jury has been discharged and cannot now be recalled to consider their decision". The error, if there was one, was in the deliberations of the jury and it was held that that cannot be grounds for recalling the jury to reconsider its decision. (See also Ellis v. Deheer, [1922] 2 K.B. 113 (C.A.); Knowlton v. Hydro‑ Electric Power Com'n., 1925 CanLII 399 (ON SC), [1926] 1 D.L.R. 217 (Ont.); Ainey v. Regem (1930), 48 B.R. 488 (Que. K.B.); Barkhouse v. Vanderploet (1976), 1976 CanLII 2454 (NS CA), 16 N.S.R. (2d) 445 (C.A.); Salerno v. White (1982), 28 C.P.C. 165 (Ont. H.C.))

[29] Although the jury cannot be allowed to reconsider its verdict after it has been discharged, it may be allowed to rectify errors that were made in the transmission or recording of its verdict notwithstanding the discharge and, indeed, even if the jury members have interacted with the public. If it has become apparent, after the discharge of the jury, that the foreman erred or, as in this case, might have erred in delivering the verdict, and that, as a result, the record may well not reflect the decision arrived at in the jury room, the jury is allowed to correct the error. Wigmore on Evidence (McNaughton rev. 1961), vol. 8 explains at paragraph 2355, that the reason for allowing the jury to correct the recording of the verdict, after the jury has been discharged, is a practical one:

It has occasionally been said that this correction must be claimed before the jury are discharged, but this seems unsound because such errors are seldom ascertained until after the jury have separated and conversed out of court, and if the error is satisfactorily established, there can hardly be any fixed time to limit its correction.

[30] At paragraph 2356, he emphasizes that the statements of the jurors are inadmissible if being tendered for the purpose of explaining or changing the substance of the verdict:

...after the verdict has been pronounced by the jury and accepted by the judge and the jury has been discharged, the verdict is final as regards its meaning and effect. Hence, no statements by the jurors, either unanimously or individually, can be resorted to for explaining or changing its meaning or legal effect.

[31] McCulloch v. Ottawa Transportation Commission, 1954 CanLII 309 (ON CA), [1954] 2 D.L.R. 443 (Ont. C.A.), illustrates this point. In that case, which was an action for damages due to negligence arising from the operation of motor vehicles, one of the tasks of the jury was to apportion liability between the plaintiff and the defendant. The apportionment of the degree of negligence was set forth by the jury as 80% to the plaintiff and 20% to the defendant. The jury was then discharged. While the judge was discussing the question of costs with counsel, a juryman, through a constable in attendance in the court‑room, brought to the attention of the plaintiff's counsel that there had been an error made in presenting the degrees of the apportionment. The judge, despite being aware of the error, entered judgment in accordance with the original findings. Citing Wigmore, Hope J.A., of the Ontario Court of Appeal, allowed the appeal and corrected the judgment. In his reasons for judgment, concurred in by both Hogg and F. G. MacKay JJ.A., he stated, at p. 445:

I agree thoroughly ... that no evidence can be received by way of affidavit or otherwise after the delivery of the verdict to explain some error or mistake which occurred during the deliberation of the members of the jury in the jury‑room before arriving at a verdict. However, I think the cases are quite clear that where a verdict has been reached by a jury, a unanimous verdict, as in this case, and some clerical error has occurred either in recording that verdict in the juryroom or by the jury in reporting it to Court, then affidavits may be received, in the interest of justice, to disclose what the true verdict of the jury was.

[32] Similarly, in Dardarian v. Schneider (1956), 1956 CanLII 438 (ON SC), 3 D.L.R. (2d) 292 (Ont. H.C.), the jury's finding as to the percentage degree of fault between the plaintiff and the defendant was reversed when it was presented by the foreman to the court. The jury members were discharged, left the jury box, and retired "in a body as far as the outside of the door leading from the court room" where, in conferring amongst themselves, they realized that an error had been made. Having spoken to no one except the constable, and having taken only four minutes from the time of their discharge to the time they returned to the jury box, they were allowed to correct the error that was made in the transmission of the verdict.

[33] This Court has had occasion to address this question but found, on the facts of the case before it, that the error was not in the transmission of the verdict. In such a situation the affidavits of the jurors could not be accepted. In Danis v. Saumure, 1956 CanLII 9 (SCC), [1956] S.C.R. 403, the appellant contended that the verdict arrived at by the jury was perverse. The appellant also sought to file affidavits signed by nine members of the jury purporting to show that the findings made by the jury were not the findings intended to be made by them. This Court refused to admit the affidavits and dismissed the appeal. Although he recognized that statements made by jurors are admissible to show that the written answers do not correspond to the actual decision arrived at by the jury, or to indicate that there was an error in the transmission of the verdict, Kerwin C.J., with whom Rand and Abbott JJ. concurred, was of the view that the affidavits that were being submitted addressed the actual deliberations or intentions of the jurors. Since a jury cannot be reconvened either to explain its verdict or to reconsider the substance of its deliberations, the affidavits were not receivable.

[34] Kellock and Locke JJ. also dismissed the appeal. In their opinion, even assuming that they were entitled to look at the affidavits, the affidavits did not suggest an error in the transmission of the verdict. Since it was "not a case of error arising between the verdict which the jury had agreed upon and that which was actually rendered and formed the basis for the judgment delivered", the statements by the jurors were inadmissible. See also McCready v. Scott (1967), 1967 CanLII 535 (BC SC), 62 W.W.R. 563 (B.C.S.C.); R. v. Emkeit (1971), 1971 ALTASCAD 37, 3 C.C.C. (2d) 309 (Alta. C.A.), aff'd 1972 CanLII 169 (SCC), [1974] S.C.R. 133; Barkhouse v. Vanderploet, supra; Ralston Purina (Canada) Ltd. v. Thompson View Fur Farms Ltd. (1984), 1984 CanLII 3069 (PE SCTD), 12 D.L.R. (4th) 228 (P.E.I.C.A.)

[35] The state of the case law until now is as follows. Even after discharge, a jury can be reconvened to correct an improper or incomplete transmission or registration of a verdict, but cannot reconsider a verdict or complete its deliberations with a view to handing down additional verdicts on counts or on included offences it had not finally determined prior to that discharge; nor can anyone go behind the verdict and make inquiries as regards the nature of the deliberations.

[36] I should like to make a final observation before disposing of this case. Given that the case law upon which I rely has mainly developed in non‑criminal matters, I initially thought that the rule governing criminal jury verdicts might preferably be different, and be as follows: in criminal matters, as of the discharge of the jury, the judge and jury would be functus even to correct an error in the transmission of the verdict. The rationale for this rule could be to leave the error, subject to appeal, to inure to the benefit of the accused. I had no difficulty with this approach until I wondered what would happen if the error was the other way, a verdict of guilty being erroneously entered against an accused who had, in fact, been acquitted by the jury. Once functus the court could not vary the registering of the verdict either way. This latter concern of mine is not merely theoretical but has, since I wrote this judgment, been shown to be justified by a recent decision of the Privy Council in Nanan v. The State, [1986] 3 All E.R. 248, a case in which the accused's conviction for murder was left undisturbed notwithstanding the fact that it was the result of the jury foreman's not understanding the meaning of the word "unanimous" when asked by the clerk of the court whether the verdict was unanimous. It is out of concern for the really innocent that I have come to adopt the rule applicable until now to civil matters. Its effect is to ensure that those found guilty by the jury do not go free, which is not a bad result but, more important, that those found innocent or not convicted by the jury not be convicted.

[37] Now to address the present appeal. I should first say that I would be remiss if I did not acknowledge that the trial judge was faced with a situation where the applicable law was very uncertain. Therefore, anything I say as regards what he should have done is with the obvious advantage of hindsight, and the retrospective effect of the law once stated. Given the very clear instructions by the judge regarding the possible subsidiary verdicts, the blanket statement of "not guilty" by the foreman would normally have ended the matter had it not been for the doubt cast on its accuracy by the foreman's remarks, where he said: "when we discussed this we thought we could find the Defendant not guilty of the charge as laid, but guilty of a lesser offence, is that right?" What had until then been rightly considered a complete and clear verdict became uncertain. As of the moment of that statement the trial judge should have inquired further into this comment by the foreman. He should have had all the jury members recalled to the jury box and, with all of them present, he should have addressed the jury with a view to ascertaining the precise nature of the problem.

[38] There are various ways of doing this. As an example, he could have first ascertained whether they had, prior to their being discharged, arrived at a verdict and wanted to correct or complete the transmission of the verdict at which they had arrived. If such was the case he could then have instructed the clerk of the court to register that verdict. If, through questioning, he had found out that they had not come to a final verdict prior to their discharge, then the trial judge could not permit them to reopen their deliberations; for once they had recorded a verdict and had been discharged, their jurisdiction to make findings was spent. The problem could then only be dealt with in the Court of Appeal.

[39] As the trial judge did not inquire further into the statement by the foreman, we do not know whether the jury wished to continue their deliberations or whether the foreman was merely indicating that the recorded verdict was not the one arrived at in the jury room, and that the accused had been found guilty of an included offence.

The Remedy

[40] Not knowing what the situation is exactly, though one might suspect that the verdict was incomplete, is the remedy a new trial as was ordered by the majority in the Court of Appeal? I do not think that a new trial should be ordered. Hall J.A. appears to be uneasy when ordering a new trial and touches upon the problem when he says that in any event he would have ordered a new trial on the lesser of the included offences. The problem is that we now do not know with certainty what the verdict is on the included offences. If that verdict is actually an acquittal on all or even any of the included offences, the accused should not be deprived thereof because of error in the transmission or registration of the verdict, but only if error of law was committed in the reaching of that verdict. So the ordering of a new trial was not the preferable course to follow. The ordering of a new trial is a remedy where the determination of guilt or innocence by the court of first instance is vitiated by an error. Here the error was in not ascertaining with certainty what the verdict was.

[41] The logical disposition of this appeal would be to allow the appeal, quash the order of the Court of Appeal for a new trial, and order that the matter be returned to the trial court so that the jury's verdict be ascertained, either in the manner I suggested by reconvening the jurors, or in any other way that generally meets the purpose of that endeavour. But logic is not always practical and occasionally will operate unfairly.

[42] A considerable amount of time has elapsed since that jury was discharged. When considering all of the circumstances of the case, I think that the ends of justice will best be served by allowing this appeal, quashing the order of the Court of Appeal and leaving the acquittal, as registered, undisturbed.

[43] I should add one final observation. Fortunately, situations such as this will surely be few in future. Indeed, since the events of this case took place, many jurisdictions throughout Canada have, I am told, adopted a procedure long followed by some. The question put to the jury now specifies each and every possible verdict the Court requested the jury to consider and is not general, as was the question in this case.

Appeal allowed.

Solicitors for the appellant: Lancaster, Tracey & Dickson, Melfort.

Solicitor for the respondent: D. Murray Brown, Regina.