R. v. G. (R.M.), 1996 CanLII 176 (SCC), [1996] 3 SCR 362

minicounsel

R.M.G. Appellant

Her Majesty The Queen Respondent

Indexed as: R. v. G. (R.M.)

File No.: 24709.

1996: June 20; 1996: October 3.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Trial ‑‑ Charge to jury ‑‑ Sexual assault ‑‑ Defence denying assault and providing both reasons for possible fabrication of accusation and an alibi to some alleged incidents ‑‑ Trial judge charging jury only with issue of who perpetrated assault ‑‑ On objection, jury recharged on whether an assault occurred and then on the issue of who perpetrated the alleged assault ‑‑ Whether charge and recharge adequately dealt with theory of defence.

Trial ‑‑ Exhortation to jury ‑‑ Jury hung ‑‑ Trial judge urging jury to consider the public expense of a new trial, the inconvenience to all participants, the hardship to the accused and the complainant and suggesting that the minority might want to reconsider what the majority were saying ‑‑ Guilty verdict rendered short time later ‑‑ Whether exhortation objectionable or improper.

Trial ‑‑ Verdict ‑‑ Standard for setting aside verdict ‑‑ Whether standard with respect to exhortation should be any ground there was a miscarriage of justice (s. 686(1)(a)(iii)) or whether it should focus on whether an error of law was committed (s. 686(1)(a)(ii)) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(1)(a)(ii), (iii).

The trial judge in a criminal trial dealing with the alleged sexual assault by a stepfather of his minor stepdaughter first charged the jury that the sole issue before them was whether the accused was the perpetrator of the alleged assault. Counsel for the defence objected to the charge to the jury. The defence had argued during trial that the alleged incidents had been fabricated or imagined by the complainant who saw her environment as being unduly strict and who wanted to live with her natural father. An alibi was also put forward suggesting that the accused was not present when some of the alleged incidents took place. The trial judge recharged the jury instructing them that they had first to determine whether a sexual assault had in fact occurred.

The jury deliberated and the next day sent the judge a message that they had reached an impasse. The trial judge recalled them and urged them to consider the public expense of a new trial, the inconvenience which a new trial would cause to all participants and the hardship to the accused and the complainant that a new trial would engender and suggested that the minority might want to reconsider what the majority were saying. The jury returned a guilty verdict 15 minutes later. The verdict was upheld on appeal.

The issues argued before this Court dealt with: (1) the adequacy of the charge and subsequent recharge as they dealt with the theory of the defence; (2) the appropriateness and propriety of the exhortation to the jury; and (3) the standard to be applied in setting aside the verdict.

Held (L’Heureux‑Dubé and Gonthier JJ. dissenting): The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: In the course of giving directions to a jury, the trial judge must outline the defence theory and refer the jury to its essential elements in a way that will ensure the jury’s proper appreciation of the evidence. The original charge clearly took away the defence as it assumed that the sexual assault had occurred. The test for review in a recharge must be whether there is a reasonable possibility that the trial judge’s erroneous instruction may have misled the jury. Here, the recharge was sufficient to rectify the error committed in the original charge.

The sole task of a jury is to reach a verdict based exclusively on the evidence presented. The sturdy independence of jurors may be overcome and unanimity compelled by a judge’s suggesting irrelevant factors for consideration or by a judge’s exerting unwarranted pressure. In those circumstances, the verdict may no longer be based on a reasoned approach to the evidence. The exhortation given to an apparently deadlocked jury must therefore be delicately balanced and carefully crafted and must encourage the jurors to endeavour to reach a verdict by reasoning together. The purpose of the exhortation is to assist the process of deliberation, not to influence the content of the jury’s discussion. To suggest that a deadlocked jury take into account factors such as the expense, and the inconvenience occasioned by a new trial, or the hardship caused to the participants when a trial is left unresolved, or to consider carefully only the position of the majority and not the minority, introduces pressures and factors which are completely irrelevant to the jurors’ duties and therefore inappropriate in an exhortation.

The following principles can be derived from the jurisprudence. (1) Pursuant to their oath, jurors must endeavour to render a verdict based upon the evidence which has been adduced before them. (2) The strength and genius of trial by jury is that members of the community reason together to reach a verdict based solely upon the evidence. (3) A jury must therefore be allowed to deliberate without any form of pressure being imposed upon them. (4) If a jury has apparently reached an impasse, any exhortation should avoid introducing factors which are extraneous and irrelevant to the task of reaching a verdict, and should not encourage a juror, by referring to these factors, to abandon an honestly held view of the evidence. The exhortation must not interfere with the right of jurors to deliberate in complete freedom uninfluenced by extraneous pressure. (5) A juror should not be encouraged or exhorted to change his or her mind simply for the sake of conformity. (6) A deadline for reaching a verdict should not be imposed and a jury should never be rushed into returning a verdict.

The reference to expense and inconvenience should not have been referred to in the exhortation. It introduced an irrelevant, extraneous factor into the jury’s deliberations and was coercive in that it would make the minority feel that they had to agree with the majority. This factor is a significant one and would influence a juror to disregard the oath and arrive at a verdict based on factors other than the evidence produced during the trial. The error could not be cured and was sufficient in itself to warrant a new trial. Other aspects of this exhortation lead to the same result.

The reference to a possible benefit accruing to the accused and witnesses if a verdict could be reached has been correctly disapproved. With respect to the complainant, such a reference may encourage what could be an inappropriate sympathetic influence into the reasoning process of the jurors, particularly at this stage of the proceedings. With regard to the accused, the reference may be misleading since a guilty verdict as a result of the exhortation is not in the accused’s best interest.

The mere suggestion that a juror should listen to fellow jurors may not be, in itself, improper. No suggestion should be made, however, that a juror should abandon his or her honestly held view in favour of the majority position. Such a direction could well be construed as an encouragement to the dissentient minority to fall in with the majority while continuing to disagree with their views. A trial judge would better avoid putting the situation in confrontational terms of opposing sides and instead appeal to the individual jurors to once again reason together. Any such a suggestion must state that both sides should listen to each other and consider the opinions of others.

The twice repeated reminder by the trial judge that the jurors should not betray their oath may have reduced the effect of the erroneous exhortation. Nonetheless, the cumulative effect of the errors would have had a coercive effect upon the jurors. The speed with which the jury reached its verdict after the exhortation clearly indicated the significance the jury attached to the trial judge’s exhortation and demonstrated a coercive impact on the minority who had obviously been unmoved by the majority’s arguments.

Errors of law made in the course of an exhortation should be treated no differently from errors committed in any other part of the instructions to the jury, or during the trial. Not every improper reference in an exhortation will lead to a new trial. Instead, the exhortation must be viewed as a whole and in the context of the proceedings. The length of the deliberations, the nature of the question asked by the jury, and the length of the deliberations following the exhortation are all relevant. In considering all of these factors, an appellate court must determine whether there is a reasonable possibility that the impugned statements either coerced the jury or interfered with its right to deliberate in complete freedom from extraneous considerations or pressures, or caused a juror to concur with a view that he or she did not truly hold. A suggested form that an exhortation might take was set out.

The trial judge clearly committed errors of law and the accused is entitled to a new trial. Since the exhortation may have improperly coerced the jury to reach a verdict, the verdict would not necessarily have been the same absent the error. The curative provision of s. 686(1)(b)(iii) could therefore not be applied.

Per L’Heureux‑Dubé and Gonthier JJ. (dissenting): The goal of an exhortation should be to encourage the jurors, if at all possible, to strive to reach an agreement. Jurors should not take into consideration extraneous factors in rendering their judgment and a trial judge should not ask them to. The jury, and the jury alone, is to come to a verdict based solely on the strength of the evidence.

The appellate courts should treat an exhortation in a manner similar to that for reviewing charges to the jury and should refrain from interfering absent a clear error bringing the validity of the verdict into question. An exhortation is not an inflexible blueprint but rather must be tailored to a particular jury. Its nature will depend on a number of factors, including the length and complexity of the trial and the events that warranted the trial judge’s attention. The effect of the entire exhortation, as opposed to one particular reference, should be considered in determining whether an exhortation was coercive.

The reference to the expense of trials, even when noted as not being a particularly important factor, is generally best avoided. References of this sort might suggest that the jury should consider something other than the evidence before it. Such reference is not automatically an error of law and whether it is fatal depends very much upon the circumstances. It is not prima facie coercive in that it is generally neutral and does not ask the jury to convict.

With regard to the reference that a verdict might be of benefit to both the accused and to the complainant, it was inconsequential and in the middle of a lengthy exhortation. It could not be said to have influenced the jury’s deliberative process. This factor has only been found to prejudice the jury’s deliberative process when it has been unduly highlighted or repeated in such a way as to cause sympathy for one of the parties.

The final impugned reference regarded the trial judge’s instructions that the minority should listen to the majority. An accused’s fair trial interest is only compromised when the trial judge’s instruction indicates or implies that the minority should conform its view to that of the majority. Every reference to the minority will not achieve this effect. Each statement should be considered in its proper context and should be examined for its potential effect. Here, the trial judge did not tell the minority that they must revise their decision and any confusion was corrected when the trial judge twice warned the jurors not to abandon their oath and reminded them that the jury need not agree.

The speed with which the jury reached its verdict was not demonstrative of a coercive impact on the minority. This factor is largely dependent upon the circumstances of each case. The language of an exhortation, where it is not inherently coercive, does not become so merely because an early verdict was returned. There is also the alternative possibility that the exhortation had the desired effect.

Not every improper reference in an exhortation should be treated as an error of law. The reference must be examined in the context in which it was made in order to determine whether there is a reasonable possibility that the impugned statements either coerced the jury or interfered with its right to deliberate in freedom from extraneous considerations. Any errors here were not likely to coerce members of the jury to disregard their oath.

A model exhortation would be desirable to deal with the common occurrence of a jury’s being deadlocked, absent other problems. Trial judges must feel free to depart from this formula in situations which require it.

Cases Cited

By Cory J.

Considered: R. v. Sims, 1992 CanLII 77 (SCC), [1992] 2 S.C.R. 858; Walhein (1952), 36 Cr. App. R. 167; Shoukatallie v. The Queen, [1962] A.C. 81; Watson (1988), 87 Cr. App. R. 1; R. v. Accused, [1988] 2 N.Z.L.R. 46; R. v. Littlejohn (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161; R. v. Alkerton (1992), 1992 CanLII 7421 (ON CA), 72 C.C.C. (3d) 184, aff’d 1993 CanLII 160 (SCC), [1993] 1 S.C.R. 468; referred to: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495; Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; R. v. Brydon, 1995 CanLII 48 (SCC), [1995] 4 S.C.R. 253; Penn and Mead’s Case (1670), 6 How. St. Tr. 951; Davey (1960), 45 Cr. App. R. 11; Isequilla (1974), 60 Cr. App. R. 52; R. v. Palmer, 1969 CanLII 946 (BC CA), [1970] 3 C.C.C. 402; R. v. Isaac (1979), 1979 CanLII 3018 (YK CA), 48 C.C.C. (2d) 481; R. v. Nielsen and Stolar (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39; Black v. The Queen (1993), 179 C.L.R. 44; R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 91 C.C.C. (3d) 193; R. v. Flesh (No. 2) (1993), 1993 CanLII 2877 (BC CA), 23 B.C.A.C. 194.

By L’Heureux‑Dubé J. (dissenting)

R. v. Littlejohn (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161; R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683; R. v. Brydon, 1995 CanLII 48 (SCC), [1995] 4 S.C.R. 253; R. v. Halliday (1992), 1992 CanLII 4026 (MB CA), 77 C.C.C. (3d) 481; Watson (1988), 87 Cr. App. R. 1; Buono (1992), 95 Cr. App. R. 338; R. v. Tennant, [1989] 2 N.Z.L.R. 271; R. v. Isaac (1979), 1979 CanLII 3018 (YK CA), 48 C.C.C. (2d) 481; R. v. Jackson, unreported, C.A., Crim. Div. (Eng.), March 9, 1988; R. v. Accused, [1988] 2 N.Z.L.R. 46; R. v. Alkerton (1992), 1992 CanLII 7421 (ON CA), 72 C.C.C. (3d) 184; R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 91 C.C.C. (3d) 193; Shoukatallie v. The Queen, [1962] A.C. 81; R. v. Palmer, 1969 CanLII 946 (BC CA), [1970] 3 C.C.C. 402; R. v. Nielsen and Stolar (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39; R. v. Sims, 1992 CanLII 77 (SCC), [1992] 2 S.C.R. 858.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(1)(a)(ii), (iii), (b)(iii).

Criminal Justice Act 1967 (U.K.), 1967, c. 80, s. 1.

Authors Cited

Concise Oxford Dictionary of Current English, 7th ed. Oxford: Oxford University Press, 1989, “exhort”.

APPEAL from a judgment of the British Columbia Court of Appeal (1995), 57 B.C.A.C. 81, 94 W.A.C. 81, dismissing an appeal from conviction by Dohm J. sitting with jury. Appeal allowed, L’Heureux‑Dubé and Gonthier JJ. dissenting.

David M. Rosenberg, for the appellant.

Robert A. Mulligan, for the respondent.

Cory J.

The judgment of Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

1Cory J. -- What instructions should be given by the trial judge when the jury indicates that it is deadlocked? That is the important and paramount question that must be resolved in this appeal.

Factual Background

2The appellant was charged with sexually assaulting his stepdaughter between April of 1991 and November of 1992 when she was 12 years old. The complainant testified that there were several acts of touching and four or five incidents of forced intercourse which occurred during that time. She was examined by a physician nine days after the last incident. The doctor gave evidence that there was a significant attenuation of the complainant’s hymen which strongly indicated that there had been penetration of the vagina on several occasions. He found no indications of violence such as bruising or abrasions, although he did state that any signs of a violent assault might have healed in the intervening time. The defence position was that the situation observed by the doctor could have been caused by early sexual experimentation, and that it was not the result of sexual assaults.

3There was testimony which indicated that the complainant believed that she was unduly confined in an overly strict environment and that she wished to leave and live with her natural father. The appellant’s defence was that the complainant either fabricated or imagined the incidents of sexual assault in order to get away from what she considered to be an unsatisfactory home. There was, as well, evidence put forward of an alibi which suggested that the appellant was not present when some of the alleged incidents took place.

4During his charge to the jury, the trial judge indicated that the sexual assault had been established and that the sole issue for the jury was whether the appellant was the perpetrator. An objection to this direction was taken by counsel for the defence which was acceded to by the trial judge. He recharged the jury and instructed them that they had to determine whether a sexual assault had in fact occurred.

5When the recharge was completed, the jury began its deliberations at approximately 2:20 p.m. of the first afternoon. Apart from the time taken for dinner, they continued their deliberations until 9:15 that evening. The following morning, the jury began again to consider their verdict at 9:15 a.m. but shortly before 10:00 a.m. they sent a message to the trial judge indicating that they had arrived at an impasse. The trial judge recalled the jury and urged them to consider the public expense of a new trial, the inconvenience which that would cause to all participants, the hardship to the accused and the complainant that this would engender and suggested that the minority might want to reconsider what the majority were saying. Only 15 minutes later, the jury returned with a verdict of guilty. The appeal taken was dismissed unanimously by the British Columbia Court of Appeal.

Decision Below

Court of Appeal of British Columbia (per McEachern C.J. for the Court) (1995), 57 B.C.A.C. 81, 94 W.A.C. 81

6McEachern C.J. agreed with counsel for the appellant that the trial judge’s original charge failed to outline adequately the defence position that the complainant had fabricated her evidence and that she had not been assaulted. He was of the view, at para. 10, that there was at least “some arguable basis for the defence position that no sexual assault had been proven”. In his opinion, at para. 13, this error put the case “close to the line”. However, he concluded that the recharge fairly and adequately instructed the jury on the issue with the result that this error was not a ground for a new trial.

7McEachern C.J. then considered the exhortation. He noted that it included a number of passages that had been judicially disapproved. These included the reference that the jury should consider the public expense involved in a new trial; the suggestion that a verdict might benefit the accused and the suggestion that the minority consider what the majority were saying. However, he found that the trial judge’s direction that the jurors were not to betray their oath and that they did not have to agree was sufficient to remedy the defects. He expressed the opinion that the exhortation considered as a whole was not unfavourable to the appellant. Nor, in his opinion, would it have coerced any members of the jury to reach an improper verdict. Essentially, he was of the view that although there were errors in the exhortation, it was saved by the trial judge’s reminder to the jury of their oath and the statement made on two occasions that he was not asking them to betray their oath.

Analysis

Issues

8Three issues were argued on this appeal.

Did the charge and subsequent recharge to the jury adequately deal with the theory of the defence?
Was the exhortation to the jury objectionable or improper?
Did the Court of Appeal err in the standard it applied for setting aside the verdict?

The Failure to Outline the Position of the Defence

9In the course of giving directions to a jury, it is essential that the trial judge outline for them the theory or position of the defence and refer the jury to the essential elements bearing on that defence in such a way that it will ensure the jury’s proper appreciation of the evidence. See Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495; Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739. The original charge of the trial judge very clearly took away the defence put forward that the complainant had not been sexually assaulted at all and that she had fabricated the entire story. It assumed that the sexual assault had occurred, and left the jury to decide only whether the assailant was the appellant or whether the assault was occasioned by some unidentified person. Like McEachern C.J., I am of the view that this error might have been fatal had it not been adequately corrected in the recharge.

10The approach that should be taken by appellate courts in reviewing a recharge has recently been set out in R. v. Brydon, 1995 CanLII 48 (SCC), [1995] 4 S.C.R. 253. In that case, Lamer C.J., writing for the Court, stated at p. 266 that the test for review must be whether “there is a reasonable possibility that the trial judge’s erroneous instruction may have misled the jury”. Here the trial judge, in his recharge, clearly told the jury that while his earlier comments had only been a suggestion on his part, he was in error in putting the issue in those terms. He specifically instructed the jury to disregard his earlier suggestion that a sexual assault had been proven and told them that it was for them to determine whether a sexual assault had in fact taken place. Thus the jury would have understood that they had first to decide whether a sexual assault had occurred and only if satisfied on that point would they then go on to determine whether the Crown had satisfied them that the appellant was responsible for the assault. The recharge was, in my opinion, sufficient to rectify the error committed in the original charge. It follows that this ground of appeal cannot be accepted.

The Jury Exhortation Used in this Case and the Objection Taken to it

11When the jury informed the trial judge that they were at an impasse, he instructed or exhorted them in these words:

Each of these trials take [sic] a piece out of counsel and a piece out of the judge. They are serious matters. They are serious for all those concerned, not the least of which is the accused.

These trials are expensive to operate in their conduct. That is not a particular [sic] important ingredient for trying to come to a decision in this matter, but it is a factor for your consideration.

More importantly, in all likelihood, if you are unable to arrive at a verdict, there will be another trial. That is not in my hands. That’s up to the Crown, and maybe not Mr. McKimm [Crown counsel] either. But in all likelihood there would be another trial.

If that takes place, the accused would have to go through this again as would the witnesses, not the least of which is the young lady. It would not be easy for anybody to have to redo what we have done since Monday of this week.

You are members of the jury in as good a position as any other twelve persons who would be hearing this case to render verdicts in this case.

You took an oath when you commenced your duties in this case, and I am by no means asking you to betray that oath, but perhaps the minority of you might want to reconsider what the majority are saying. But again, I remind you -- I emphasize -- that I am not asking you to betray your oath. There are occasions when twelve people cannot decide. This may be one of them. There will be no aspersions cast on you people for not [sic] able to do so.

12Counsel for the appellant submitted that the following three errors are apparent in these instructions. First, there is the improper and unnecessary reference to public expense and inconvenience. The second was the reference to the benefit to all, including the accused, of a verdict being reached. The last but certainly not the least important was the error of the trial judge in suggesting that the minority reconsider what the majority was saying without any reference or suggestion that the majority might equally consider what the minority was putting forward.

The Significance and the Importance of the Jury System in Canada

13The jury system is clearly a significant factor in many democratic regimes. This is emphatically true in Canada. It is extremely important to our democratic society that jurors as representatives of their community may make the decision as to the guilt or innocence of the accused before the court based solely on the evidence presented to them. There is a centuries-old tradition of juries reaching fair and courageous verdicts. That tradition has taken root and been so well and fearlessly maintained that it has flourished in this country. Our courts have very properly stressed the importance of jury verdicts and the deference that must be shown to those decisions. Today, as in the past, great reliance has been placed upon those decisions. That I think flows from the public awareness that 12 members of the community have worked together to reach a unanimous verdict.

14In reaching a verdict, jurors have heeded the wisdom of the prophet Isaiah whose advocacy of a reasoned approach to solving problems has echoed through the ages in the moving and memorable words “Come now, and let us reason together . . .”: Isaiah 1:18. Of course, it is the great strength and virtue of the jury system that members of the community have indeed come together and reasoned together in order to reach their unanimous verdict. It is truly a magnificent system for reaching difficult decisions in criminal cases. It has proven itself in the centuries past and continues to do so today. Yet, this system is fragile.

15If the process is subjected to unwarranted pressures, or to unnecessary distractions, the delicate reasoning process may be thwarted. The sole task of a jury is to reach a verdict based exclusively on the evidence presented. The sturdy independence of jurors may be overcome and unanimity compelled by a judge’s suggestion that irrelevant factors be considered or by the judge’s exerting unwarranted pressure. In those circumstances, the verdict may no longer be based on a reasoned approach to the evidence. It follows that the instructions given to an apparently deadlocked jury must be delicately balanced and carefully crafted. If they are not, the jury system as a bulwark of democracy will all too easily be breached. The importance and significance of the instructions or exhortation to an apparently deadlocked jury cannot be overemphasized. The jurors at this stage are tired, probably frustrated and certainly disgruntled. They have given so much of their time and laboured so hard with the difficult issues that they are entitled to a careful and balanced instruction.

The Nature and Aim of an Exhortation

16The instructions given to the jury at this stage have been referred to as the exhortation. According to The Concise Oxford Dictionary (7th ed. 1989), “exhort” means to “admonish earnestly; urge (person to do, to a course of action)”. What an exhortation must do is encourage the jurors to endeavour to reach a verdict by reasoning together. The task of the jury is to determine guilt or innocence on the basis of the evidence which they have heard. Irrelevant and extraneous circumstances should not be introduced into a task which is already fraught with difficulties. To suggest that a deadlocked jury take into account factors such as the expense, and the inconvenience occasioned by a new trial, or the hardship caused to the participants when a trial is left unresolved, or to consider carefully only the position of the majority and not the minority, introduces pressures and factors which are completely irrelevant to their duties as jurors and are therefore inappropriate in an exhortation.

17The purpose of a jury exhortation was eloquently expressed by McLachlin J. in R. v. Sims, 1992 CanLII 77 (SCC), [1992] 2 S.C.R. 858. She stated at p. 865:

The purpose of an exhortation is to impress on the jury the need to listen to each other and consider each other’s views in order to avoid disagreement based on fixed, inflexible perceptions of the evidence that one or other of them may have developed. The purpose of an exhortation is not to suggest to the jury that one view of the evidence may be preferable to another, or that this inference as opposed to that inference should be drawn from the evidence. To put it another way, the focus of the exhortation is the process of deliberation which is the genius of the jury system. An essential part of that process is listening to and considering the views of others. As a result of this process, individual views are modified, so that the verdict represents more than a mere vote; it represents the considered view of the jurors after having listened to and reflected upon each other’s thoughts. It is on that process that the exhortation should focus.

In other words, the goal of an exhortation is to assist the process of deliberation as opposed to influencing the content of the jury’s discussion. With the importance of the exhortation in mind, let us approach the issue by first reviewing the cases from various jurisdictions which have considered this very problem.

A Review of the Cases Dealing with Jury Exhortations

18There has always been a strong judicial urge to assist, or indeed in the early days to compel, a jury to reach a verdict. Centuries ago jurors were instructed that they must agree and could not be discharged until they did so. A jury was sequestered in the jury room without food, drink or heat until they reached a verdict. See Penn and Mead’s Case (1670), 6 Howell’s State Trials 951, at pp. 962-966. This dictatorial approach has moderated over the years perhaps owing as much to the sturdy independence of jurors as to the increasing sensitivity of judges. Today, it is beyond question that no measure of coercion will be acceptable.

The United Kingdom

19In England, an exhortation to a jury was referred to for many years as a Walhein direction. It was in Walhein (1952), 36 Cr. App. R. 167, a case arising from a charge of conspiracy to utter forged notes, that the Court of Criminal Appeal approved the following instructions at p. 168:

You are a body of 12 men. Each of you has taken an oath to return a true verdict according to the evidence, but, of course, you have a duty not only as individuals, but collectively. No one must be false to that oath, but in order to return a collective verdict, the verdict of you all, there must necessarily be argument, and a certain amount of give and take and adjustment of views within the scope of the oath you have taken, and it makes for great public inconvenience and expense if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest. Having said that, I can say no more. If you disagree in your verdict in relation to one or other of these men, you must say so.

20In reviewing this instruction Lord Goddard observed, at p. 168, that jurors “may talk the matter over, subordinate their views to those of the majority and concur in the verdict”. However, this direction was later rejected on the grounds that its use might coerce juries by introducing irrelevant considerations: see Davey (1960), 45 Cr. App. R. 11; Isequilla (1974), 60 Cr. App. R. 52.

21Later the comments of Lord Denning in Shoukatallie v. The Queen, [1962] A.C. 81 (P.C.), were considered by Canadian courts to be the model for an exhortation direction. In that case the accused faced the charge of murder. Lord Denning, at p. 91, set out the manner in which an exhortation should be given in these words:

[The trial judge] reminds [the jury] that it is most important that they should agree if it is possible to do so: that, with a view to agreeing, they must inevitably take differing views into account; that if any member should find himself in a small minority and disposed to differ from the rest, he should consider the matter carefully, weigh the reasons for and against his view, and remember that he may be wrong; that if, on so doing, he can honestly bring himself to come to a different view and thus to concur in the view of the majority, he should do so, but if he cannot do so, consistently with the oath he has taken, and he cannot bring the others round to his point of view, then it is his duty to differ, and for want of agreement, there will be no verdict.

This form of direction was followed in a number of cases: see R. v. Palmer, 1969 CanLII 946 (BC CA), [1970] 3 C.C.C. 402 (B.C.C.A.); R. v. Littlejohn (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.); R. v. Isaac (1979), 1979 CanLII 3018 (YK CA), 48 C.C.C. (2d) 481 (Y.T.C.A.); R. v. Nielsen and Stolar (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39 (Man. C.A.).

22However, Lord Denning’s suggested directions put forward in Shoukatallie, supra, were ultimately replaced by the English Court of Criminal Appeal in Watson (1988), 87 Cr. App. R. 1. That decision was rendered subsequent to the enactment of the Criminal Justice Act 1967, 1967 (U.K.), c. 80. Section 1 of that Act introduced the concept of a majority verdict, but provided that the jury must have had not less than two hours of deliberation before a majority verdict, reached by at least 10 members of the jury, could be accepted. In the Watson case, the court stressed the importance of allowing the jury to deliberate without imposing any form of pressure upon it. The Walhein direction was criticized for introducing extraneous considerations such as time and expense, and for including suggestions about the possible benefit to the accused if the jury were to reach a unanimous verdict.

New Zealand

23The New Zealand Court of Appeal undertook a very careful and extensive review of the law pertaining to exhortations in R. v. Accused, [1988] 2 N.Z.L.R. 46. In that case the accused was charged with sexual violation by rape. The decisions in Shoukatallie, supra, Watson, supra, and the Canadian decisions including Littlejohn, supra, were considered. The New Zealand court then set out what it considered to be the three fundamental factors which must be taken into consideration in the drafting of an acceptable exhortation. Namely, (1) the jurors have a responsibility to accept their duty of endeavouring to give a verdict according to the evidence; (2) that collective deliberation and exchange of views is the essence of the jury system; and (3) that no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by the other jurors.

Canada

24Canadian courts have also struggled with the problem of the appropriate direction which ought to be given to a jury which appears to be deadlocked. In Littlejohn, supra, Martin J.A., on behalf of the Ontario Court of Appeal, observed at p. 168 that in exhorting a jury, “the trial Judge must avoid language which is coercive, and which constitutes an interference with the right of the jury to deliberate in complete freedom uninfluenced by extraneous pressures”. He held, at p. 168, that in determining what was coercive and what was permissible, “the entire sequence of events leading up to the direction which is assailed, must be considered”.

25The reasoning in Littlejohn, supra, was followed in R. v. Alkerton (1992), 1992 CanLII 7421 (ON CA), 72 C.C.C. (3d) 184, affirmed 1993 CanLII 160 (SCC), [1993] 1 S.C.R. 468. In that decision, the Ontario Court of Appeal once again noted that the exhortation should not be given in a manner which tempts a juror to abandon an honestly held view of the evidence by a reference to extraneous matters. It was emphasized that where deadlock occurs a juror should not be encouraged to avoid the oath sworn to bring in an honest verdict based upon the evidence.

Principles to be Derived From These Cases

26The following principles can, I believe, be derived from these cases. (1) Pursuant to their oath, jurors must endeavour to render a verdict based upon the evidence which has been adduced before them. (2) The strength and genius of trial by jury is that members of the community reason together to reach a verdict based solely upon the evidence. (3) It follows from the last principle that it is important to allow a jury to deliberate without imposing any form of pressure upon them. (4) If a jury has apparently reached an impasse, any exhortation given should avoid introducing factors which are extraneous and irrelevant to the task of reaching a verdict, and should not encourage a juror, by reference to extraneous considerations or by exerting unwarranted pressures, to abandon an honestly held view of the evidence. The exhortation must not interfere with the right of jurors to deliberate in complete freedom uninfluenced by extraneous pressure. (5) It follows that a juror should not be encouraged or exhorted to change his or her mind simply for the sake of conformity. (6) A deadline for reaching a verdict should not be imposed and a jury should never be rushed into returning a verdict.

Application of the Principles to this Case

I. Reference to Public Expense and Inconvenience

27It will be remembered that during the exhortation given in this case, the following references to public expense appeared:

Each of these trials take [sic] a piece out of counsel and a piece out of the judge. They are serious matters. They are serious for all those concerned, not the least of which is the accused.

These trials are expensive to operate in their conduct. That is not a particular [sic] important ingredient for trying to come to a decision in this matter, but it is a factor for your consideration.

28In the Watson case when disapproving the Walhein direction, the Criminal Court of Appeal held that a reference to the expense and inconvenience of a new trial had an undesirable coercive effect and created a potent incentive for the minority to agree with the majority. Without deciding that such a direction would always constitute a form of coercion, the English Court of Appeal put its position in this way at p. 7:

One starts from the proposition that a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so.

29The New Zealand Court of Appeal was even more emphatic in the opinion it expressed in Accused, supra. It took the position that such a reference should be avoided. This view was expressed in these words at p. 58:

. . . a reference to great public inconvenience and expense, even when coupled as in Walhein with “if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest”, is, in our opinion, best avoided. Inconvenience and expense should not be measured against justice.

30I am in complete agreement with this finding. The model exhortation devised by the New Zealand Court of Appeal specifically, and correctly in my view, stipulated that jurors should not give in or withdraw from their position merely for the sake of avoiding inconvenience.

31In fact, the authorities are unanimous in their condemnation of any reference to such extraneous concerns as inconvenience and expense. See also Black v. The Queen (1993), 179 C.L.R. 44 (Aust. H.C.); Alkerton, supra; Isaac, supra; R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 91 C.C.C. (3d) 193 (Ont. C.A.). In the case at bar, the trial judge not only referred to inconvenience and expense but indicated that it was a factor for the jury’s consideration even though he stated that it might not be an important factor.

32In my view, the reference to expense and inconvenience introduces an irrelevant, extraneous factor into the deliberations of the jury. It is, as well, coercive in that it is bound to make the minority feel that they must agree with the majority in order to prevent the expense of a new trial and to avoid wasting the cost incurred in the trial in which they have participated. It is a significant factor which would influence a juror to disregard the oath and arrive at a verdict based on factors other than the evidence produced during the trial. It is an element that should not be referred to in an exhortation. Nor do the subsequent references by the trial judge that he was not asking any of the jurors to betray their oath rectify the situation. At the end of the trial, this completely irrelevant and highly coercive element was specifically introduced as a factor to be considered in the jury’s deliberations. In my view, the error was such that it could not be cured and it was sufficient in itself to warrant a new trial. However, there are other aspects of this exhortation which lead to the same result.

II. The Benefit of a Verdict to the Accused

33The exhortation in this case inferred that a verdict might be of benefit both to the accused and to the complainant. It was put forward in this way:

34This type of reference to a possible benefit accruing to the accused and witnesses if a verdict could be reached has also been correctly disapproved. The concern expressed has been twofold. First, with respect to the complainant, it has been held that such a reference may encourage what could be an inappropriate sympathetic influence into the reasoning process of the jurors, particularly at this stage of the proceedings. With regard to the accused, the reference may be misleading since if the result of the exhortation is a verdict of guilty, it is obviously not in the best interest of the accused that a verdict be rendered.

35The position was put in this way by the New Zealand Court of Appeal in Accused, supra, at pp. 58-59:

A specific reference to a further ordeal for the accused seems somewhat out of touch with the likely reality of the accused’s preferences. Although it may do little harm, we think it best avoided. Similarly, on balance we think it will be better in future if express reference to the ordeal for other witnesses, including a complainant, is omitted.

Similarly, in the English case of Watson, supra, the Court gave the following caution at p. 8:

Hints that it may be of benefit to the defendant if the jury can only sink their differences may be misleading if, as is usually the case, the minority are for an acquittal. Agreement will in those circumstances mean conviction, continued disagreement will mean at the worst a retrial with the consequent chance of acquittal.

36I agree with these conclusions. Quite simply such a reference should not be included in the exhortation. In the case under consideration this error in itself may not have unduly influenced the jury and thus warrant a new trial. However, it is simply another factor which supports the conclusion that a new trial must be ordered.

III. The Suggestion that the Minority Should Consider What the Majority Were Saying

37The trial judge instructed the jury that the minority might want to reconsider what the majority are saying. There is much to be said for the position that the mere suggestion that a juror should listen to fellow jurors may not be, in itself, improper. What is essential is that there should not be any suggestion that a juror should abandon his or her honestly held view in favour of the majority position. In Watson, supra, the English Court of Appeal specifically considered a unilateral direction given by a trial judge to those in the minority to listen to the majority. The Court, correctly in my view, concluded at p. 3 that such a direction could well be construed as “an encouragement to the dissentient minority to fall in with the majority whilst continuing to disagree with their views”.

38McLachlin J., in Sims, supra, sagely observed at p. 866 that “[t]ypically, an accused’s fair trial interest has been found to have been prejudiced when the judge’s remarks indicated to the jurors that they ‘should be’ or ‘ought to be’ unanimous or that minority members should conform to the opinion of the majority”.

39Similarly, in Littlejohn, supra, Martin J.A. held at p. 168 that:

The trial Judge equally must avoid the use of language which is likely to convey to a juror that, despite his own doubts, genuinely entertained, he is, none the less, entitled to give way and agree with the majority of his colleagues in the interest of achieving unanimity: see R. v. Davey (1960), 45 Cr. App. R. 11.

40In my view, it would be preferable for a trial judge to avoid putting the situation in confrontational terms of opposing sides. Rather the exhortation should appeal to the individual jurors to once again reason together. At the very least, if such a suggestion is made, it must state that both sides should listen to each other and consider the opinions of others. If that is not done, the jury may quite rightly assume that the trial judge is directing them that the majority opinion is right simply because it is the view of the majority and that the minority should no longer try to convert the majority to their point of view.

41In the case at bar, the effect of this aspect of the erroneous exhortation may have been reduced as a result of the twice repeated reminder by the trial judge that they should not betray their oath. Nonetheless, the cumulative effect of this error when taken together with the others, must have had a coercive effect upon the jurors. This conclusion, I think, is supported by the fact that it took just 15 minutes following the exhortation for the jury to return with a guilty verdict.

The Significance of the Short Time Elapsed Between the Exhortation and the Return of the Guilty Verdict

42The speed with which the jury reached its verdict after the exhortation seems to me to be a clear indication of the significance the jury attached to the trial judge’s exhortation. It demonstrates that it must have had a coercive impact on the minority who up to that time had obviously been unmoved by the arguments of the majority.

43The same conclusion was reached by Bull J.A. in Palmer, supra, where once again the verdict was returned 15 minutes after an impugned exhortation. This led Bull J.A. to write at p. 412:

. . . exhortations, no matter how benevolent in tone and purpose, must be examined with the greatest of care to ensure that no prejudice to the accused has resulted therefrom. This may be particularly so where, as in this case, an exhortation to strive to reach a verdict given after many hours of apparent disagreement is followed very shortly by a guilty verdict. [Emphasis added.]

44When a verdict is reached very shortly after the exhortation has been given, an appellate court may reasonably infer that something was said which induced one or more members of the jury to change their position. This was the inference drawn in both R. v. Flesh (No. 2) (1993), 1993 CanLII 2877 (BC CA), 23 B.C.A.C. 194, where the jury returned after 10 minutes and in Alkerton, supra. In the latter case, the jury had deliberated for six and a half hours after hearing relatively clear and straightforward evidence which strongly suggested the guilt of the accused. Nonetheless, a verdict of not guilty was delivered just 14 minutes after the trial judge gave an exhortation which could be taken as arousing sympathy for the accused and his wife, and thereby encouraging a jury verdict based on factors other than the evidence adduced.

45In this case, the very short interval of 15 minutes between the exhortation and the rendering of the verdict suggests that the decision was made, not on the basis of the reasoning together of members of the community, but as a result of some jurors abandoning their honestly held view. It seems highly unlikely that a deadlocked jury could, by reasoning together, have resolved their differences so quickly. Certainly the verdict could not have been reached as a result of reasoned discussion. Rather it would seem that the majority position was simply adopted. This could well have resulted from the extraneous factors introduced into the deliberations by the exhortation.

46The announcement by a jury that it is deadlocked indicates that it is having a problem performing its ultimate function. The exhortation then given by the trial judge is of vital importance. It is the last word that the jury will have on the issue. It is therefore essential that the exhortation must be free of anything that would lead to the undermining of the jurors’ oath to give a true verdict according to the evidence.

47In my view, the reference to inconvenience and expense introduced such extraneous and irrelevant elements into the jury’s deliberations and placed such unwarranted pressure upon the jurors that it could not be cured by the reference to the jurors’ oath and in itself necessitates a new trial. Further, that error, coupled with the reference to the benefit of a verdict to the accused and complainant and the improper suggestion that the minority consider what the majority was saying without the reciprocal instruction to the majority, had the cumulative effect of requiring a new trial. That must be the result of the erroneous exhortation given in this case.

Suggested Direction to the Jury

48I put forward the following example as one way in which an exhortation could be given to a jury. It is not meant to be followed slavishly as a magic incantation, but rather it is simply a suggestion that may be helpful to trial judges confronted with the need to give some direction to a jury which appears to be deadlocked. The direction might be given along these lines:

Members of the Jury, you are having difficulty reaching a unanimous verdict. While it is not imperative that you do so, it is obviously desirable. You have sworn to give a true verdict based upon the evidence and that you must do your utmost to achieve. I have the discretion to discharge you from giving a verdict where it appears that further deliberation would be futile. However, this power should not be exercised lightly or too quickly. Frequently when juries are given more time to deliberate they are able to reach an agreement.

My objective is not to convince you to change your minds but rather, to encourage you to present your own view of the evidence to your fellow jurors to ensure that everyone’s opinion has been duly considered. While you may have already formed an opinion as to the proper verdict I would ask that you still keep an open mind and carefully consider your colleagues’ viewpoints. However, in reconsidering your position I remind you that at the beginning of the trial each of you took an oath to return a true verdict according to the evidence. It is crucial that no one betray that oath. Therefore, your verdict must be based on the evidence alone and you must not allow yourselves to be influenced by any extraneous considerations.

The essence of the jury system is the process of reasoning together by exchanging views and deliberating together. It is expected that you will pool your views of the evidence and listen carefully to one another. This means that there must be some give and take in the exchange of opinions. I must emphasize that this does not mean you should subordinate your own genuinely held view of the evidence for the sake of reaching a consensus. It is of course desirable that a unanimous verdict be rendered; yet this may be one of those occasions where you are unable to do so. This will not reflect badly upon you provided that you have made an honest effort to try the case to the best of your abilities.

Therefore, I would ask you to try once again to reach a verdict. This is a time to reflect further on the evidence to see if, by listening to each other, by carefully considering the various positions, and by reasoning together, you can come to an agreement and render a unanimous verdict.

I would add that although such a direction would be appropriate in this case and others like it, the situation presented in another case may require a different type of direction.

The Test for Appellate Review of Instructions Given to the Jury as an Exhortation

49Counsel for the respondent contended that consideration of the jury exhortation should fall under s. 686(1)(a)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, to determine whether “on any ground there was a miscarriage of justice”, rather than under s. 686(1)(a)(ii) where the focus would be on whether an error of law was committed. The Court of Appeal adopted this approach and concluded that there was no miscarriage of justice since the appellant had not established that the exhortation was unfair. With the greatest respect, I cannot agree with this position. In my view, there is no basis for treating the errors of law made in the course of an exhortation any differently from such errors committed in any other part of the instructions to the jury, or during the trial.

50Not every improper reference in an exhortation will lead to a new trial. Instead, the exhortation must be viewed as a whole and in the context of the proceedings. The length of the deliberations, the nature of the question asked by the jury, and the length of the deliberations following the exhortation are all relevant. In considering all of these factors, an appellate court must determine whether there is a reasonable possibility that the impugned statements either coerced the jury or interfered with its right to deliberate in complete freedom from extraneous considerations or pressures, or caused a juror to concur with a view that he or she did not truly hold.

51There is a preponderance of authority which has properly concluded that it is improper for a trial judge to refer, in a jury exhortation, to the public expense and inconvenience resulting from a mistrial, the benefit of a verdict to the accused or a witness, the hardship of another trial for all parties concerned, or to suggest that the minority consider what the majority is saying. When the impugned statements are considered in the context of the exhortation as a whole, together with the short time which elapsed prior to rendering the verdict, I have no difficulty concluding that the exhortation must have interfered with the jury’s ability to deliberate free from extraneous considerations. Further, it may have induced or coerced the jurors in the minority to subordinate their own genuinely held views simply for the sake of achieving unanimity. Thus, the trial judge clearly committed errors of law and the accused is entitled to a new trial. The appeal must be allowed unless the curative provision embodied in s. 686(1)(b)(iii) applies.

52The exhortation was made at a critical and delicate point in the trial. It arguably had a greater impact on the verdict than any other instructions to the jury. Once it is determined that the exhortation may have improperly coerced the jury to reach a verdict, it cannot be said that the verdict would necessarily have been the same in the absence of the error. This is the test that must be met pursuant to s. 686(1)(b)(iii). Since the exhortation may have improperly affected the jury’s verdict it would not be appropriate to apply the curative provision set out in the section.

Conclusion

53It follows that I would allow the appeal and direct a new trial.

L’Heureux-Dubé J.

The reasons of L’Heureux-Dubé and Gonthier JJ. were delivered by

54L’Heureux-Dubé J. (dissenting) -- This appeal concerns the proper instructions which should be given to a jury by a trial judge once the jury has declared that it is deadlocked and cannot reach a verdict. In addition, it also raises the question of the appropriate standard of appellate review where those instructions are alleged to be deficient.

55My colleague has determined that the exhortation by the trial judge to the jury in this case was improper, and that it must have interfered with the jury’s ability to deliberate freely. He also concludes that the exhortation may have been coercive. I disagree.

56The facts and judgments of the lower courts have been recounted by Justice Cory and I need not reproduce them. Given the focus of this appeal, however, I believe it would be useful to set out the trial judge’s exhortation to the jury in its unedited form. The version set out by Cory J. in his reasons contains only the impugned portions cited by the appellant. The full exhortation lasted a total of 15 minutes and reads as follows:

Members of the jury. I received a note this morning from the Sheriff from you which indicates that you appear to have reached an impasse. You would like some advice and some options.

Well, members of the jury, there are no options in these matters, save two: That of concluding the matter in the usually [sic] way of rendering verdicts or being unable to do so. Those are the options and the only options.

Now, in that regard I think I should make some observations to you. These sort of trials are not easy on any of the participants, and you are twelve of the participants.

Each of these trials take [sic] a piece out of counsel and a piece out of the judge. They are serious matters. They are serious for all those concerned, not the least of which is the accused.

These trials are expensive to operate in their conduct. That is not a particular [sic] important ingredient for trying to come to a decision in this matter, but it is a factor for your consideration.

You are members of the jury in as good a position as any other twelve persons who would be hearing this case to render verdicts in this case.

But before you reach that point of saying to me, to the court, that we were unable to agree, there will have to be some more time spent. Putting it bluntly to you, I do not intend to let you off the hook this early.

You commenced your deliberations sometime in the afternoon. There was the supper hour. You did some work last evening, I think until 9 o’clock, and you retired for the evening. That’s a long time. I am not one of those judges who let people go, let juries go in a matter of a few hours. There is just too much involved here. We would have to go through all this again, probably.

I appreciate that this is not an easy case. That when credibility is in issue, as it is in this case, it’s not easy. It’s not easy at all. But the accused has chosen you twelve people to make that determination. He hasn’t asked the judge about that. He has asked for you twelve, twelve people from the community.

As I say, you are in as good a position now as any other twelve people would be to determine the guilt or innocence of this individual.

So, I have told you what the options are that you have asked me, and I have exhorted to make an effort, a new effort, to determine whether you can arrive at verdicts in this case. We will adjourn.

57It is worth noting that the second half of the exhortation was not challenged in any way by the appellant. In my view, this portion is essential in appreciating the exhortation’s total effect. Here, the trial judge concentrated upon the specific circumstances of the case and urged the jury to arrive at a verdict if it was at all possible to do so. With that in mind, I turn to the questions before us.

Analysis

58For ease of reference, I will restate the issues raised on this appeal as set out by my colleague:

Did the charge and subsequent recharge to the jury adequately deal with the theory of the defence?
Was the exhortation to the jury objectionable or improper?
Did the Court of Appeal err in the standard it applied for setting aside the verdict?

1. Was there a Failure to Outline the Position of the Defence?

59On this issue, I am in agreement with Cory J. that any error made by the trial judge in his original charge to the jury was corrected in the subsequent recharge. I have nothing whatsoever to add. I will therefore proceed directly to the question of whether the trial judge’s exhortation to the jury was improper.

2. Was the Exhortation Objectionable or Improper?

60This ground of appeal focuses upon the instructions made by the trial judge to the jury once it had announced it was deadlocked. The appellant contends that the exhortation was inappropriate in that it contained references which improperly coerced the jury to come to a verdict, when the proper result would have been a hung jury. As a result, the validity of the verdict cannot be maintained, and a new trial should be ordered.

61To begin with, I would note that I am in substantial agreement with Cory J. regarding the general purpose of an exhortation. The goal should be to encourage the jurors that, if it is at all possible, they should strive to come to an agreement. It is up to the jury, and the jury alone, to come to a verdict based solely on the strength of the evidence. As a general rule, jurors should not take into consideration extraneous factors in rendering its judgment, and a trial judge should not ask them to.

62Nevertheless, an exhortation is not read from an inflexible blueprint which remains forever fixed in stone. Often, trial judges will be called upon to give an exhortation which is tailored to that particular jury. The nature of the direction given will be dependant on a number of factors including the length and complexity of the trial as well as events which occurred that warrant the attention of the trial judge. (See, for example, the situation which occurred in R. v. Littlejohn (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.)). There is no better person to assess what should be stated in an exhortation than a trial judge. It is he or she who has been with the trial since its inception and is able to gauge the mood and tenor of the particular jury. In my view, an exhortation should be treated by appellate courts in a manner similar to the way charges to the jury are currently reviewed. While few exhortations will be perfect, appellate courts should refrain from interfering unless there has been a clear error which brings the validity of the verdict into question: R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683; R. v. Brydon, 1995 CanLII 48 (SCC), [1995] 4 S.C.R. 253. If there is no damaging effect to the deliberations of the jury, we should be extremely hesitant to overturn a verdict, even where the instructions fall short of perfection.

63Moreover, as to the general approach which should be taken by appellate courts in reviewing exhortations, I agree with the observations of Martin J.A. on behalf of the Ontario Court of Appeal in R. v. Littlejohn, supra, at p. 168, that in determining whether an exhortation was coercive, “the entire sequence of events leading up to the direction which is assailed, must be considered”. I would merely add that in making this assessment we should consider the effect of the entire exhortation, and not unduly isolate or highlight one particular reference; see R. v. Halliday (1992), 1992 CanLII 4026 (MB CA), 77 C.C.C. (3d) 481 (Man. C.A.), at p. 494, per Scott C.J., regarding this approach.

64With that introduction, I will proceed to examine the exhortation at issue in this case. The appellant contends that there were three major flaws in the trial judge’s instructions. I propose to deal with each in turn.

Reference to Public Expense and Inconvenience

65The appellant contends that during the exhortation a number of the trial judge’s remarks dealt with the potential cost of a new trial to the public. The following are the impugned passages:

Each of these trials take [sic] a piece out of counsel and a piece out of the judge. They are serious matters. They are serious for all those concerned, not the least of which is the accused.

These trials are expensive to operate in their conduct. That is not a particular [sic] important ingredient for trying to come to a decision in this matter, but it is a factor for your consideration.

66The reference of particular concern to the appellant is the statement of how expensive trials are to conduct, and the implication that it would be a burden on the public if a new trial were to be held. While the phrase was limited in that the trial judge added that it was not a particularly important factor to consider, I agree that such statements are generally best avoided. As Cory J. points out, references of this sort might suggest that the jury should consider something other than the evidence before it. Nevertheless, I do not agree with his reasons to the extent that they state that any such reference is prima facie coercive. In my view, this statement is unfounded.

67The authorities set out by Cory J. are virtually unanimous in the belief that references to the cost or expense of trials is an unacceptable practice. However, this unanimity is not also present in the interpretation of the effect of such a reference. On several occasions, the same courts cited by Cory J. have stated that a mention of public expense, while best avoided, cannot be said to have coerced the jury or caused any prejudice to the accused: Watson (1988), 87 Cr. App. R. 1 (C.A.), at p. 7; Buono (1992), 95 Cr. App. R. 338 (C.A.); R. v. Tennant, [1989] 2 N.Z.L.R. 271 (C.A.), at p. 276; R. v. Isaac (1979), 1979 CanLII 3018 (YK CA), 48 C.C.C. (2d) 481 (Y.T.C.A.).

68Indeed, the English Court of Appeal, who were perhaps the first to denounce this practice of referring to public expense in Watson, supra, have firmly stated that such an error cannot automatically be said to be coercive. In R. v. Jackson, unreported, (C.A., Crim. Div. (Eng.), March 9, 1988), this theory was clearly refuted. At trial, the jury returned a guilty verdict 10 minutes after an exhortation which included a reference to “a lot of waste of time and a lot of expense”. Nevertheless, the court denied the appeal, stating:

We take the view that any possible pressure which might have been imposed upon the jury by the Recorder mentioning waste of time and expense was cured by his emphasising immediately afterwards that the jury’s primary consideration must be to bring in a verdict according to their oath. Accordingly, despite the short length of their retirement after that direction, we do not think there was any material irregularity which obliges us to allow the appeal. The appeal is accordingly dismissed.

69Therefore, it would appear that whether or not such a reference is fatal will depend very much upon the circumstances in which it occurs. Clearly, there are different degrees of these types of errors and not everyone should be approached in exactly the same way. The preeminent concern is the perceived effect of the error, which can be analyzed by examining a number of factors including, inter alia, the prominence of the reference, whether it was repeated, and whether other comments might have cured any harmful effect. I will return to this during the discussion of the proper standard of review.

70As a final note, I merely wish to add that a reference to public expense, except to the extent discussed above, is not inherently prejudicial to the accused. It is a neutral factor and does not, unlike some of the more coercive types of directions, in any way ask the jury to convict. It may just as well have the effect of guaranteeing an acquittal.

71On balance, however, I am prepared to accept that this reference is one that should not have been made. That does not, of course, raise it automatically to an error of law. We must first examine the rest of the exhortation in order to ascertain whether this error was compounded by others, or minimized by the effect of other remedial factors.

The Benefit of a Verdict to the Accused

72The appellant’s second contention is that the exhortation included a reference that a verdict might be of benefit to both the accused and to the complainant. In particular, he cites the following:

73I must say that I find it somewhat difficult to comprehend how this innocuous reference in the middle of a 15 minute-exhortation could be said to have any influence at all on the jury’s deliberative process. On this point I am substantially in agreement with the approach of the New Zealand Court of Appeal in R. v. Accused, [1988] 2 N.Z.L.R. 46 (C.A.). There (at p. 54), the trial judge delivered an exhortation which contained the following statement:

It is of tremendous importance that a jury should reach a verdict at a trial such as this if this can properly be done. If you do not the case has to be tried again and that of course is a burden on everyone concerned, the witnesses, the accused and in this case particularly, the complainant. If at all possible, it would obviously be undesirable that she should have to give her evidence again.

74In dismissing the appeal, the Court stated at pp. 58-59:

A rather more difficult question is whether there should be an express reference to the ordeal of witnesses if there is a new trial. A specific reference to a further ordeal for the accused seems somewhat out of touch with the likely reality of the accused’s preferences. Although it may do little harm, we think it best avoided. Similarly, on balance we think it will be better in future if express reference to the ordeal for other witnesses, including a complainant, is omitted. The jury is likely to be alive to this when told of the prospect of a new trial; to state it expressly could perhaps be regarded as unnecessarily underlining it.

Reference to the Minority

78Finally, the appellant contends that the trial judge erred when he referred to the jurors who were in the minority in the following way:

79For many years, a reference to “a minority” of the jury was quite commonplace, as illustrated by this passage from Lord Denning in Shoukatallie v. The Queen, [1962] A.C. 81 (P.C.), at p. 91:

He reminds them that it is most important that they should agree if it is possible to do so: that, with a view to agreeing, they must inevitably take differing views into account; that if any member should find himself in a small minority and disposed to differ from the rest, he should consider the matter carefully, weigh the reasons for and against his view, and remember that he may be wrong; that if, on so doing, he can honestly bring himself to come to a different view and thus to concur in the view of the majority, he should do so, but if he cannot do so, consistently with the oath he has taken, and he cannot bring the others round to his point of view, then it is his duty to differ, and for want of agreement, there will be no verdict.

80Canadian courts adopted this statement as accurate and until quite recently, references to the minority were routine and accepted: see, for example, R. v. Palmer, 1969 CanLII 946 (BC CA), [1970] 3 C.C.C. 402 (B.C.C.A.). Indeed, in some cases, the exhortation included a prolonged and concerted attempt to get jurors in the minority to reconsider the validity of their opinion, and was still considered adequate; R. v. Nielsen and Stolar (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39 (Man. C.A.), at pp. 73-74.

81This approach, however, was reevaluated by this Court in R. v. Sims, 1992 CanLII 77 (SCC), [1992] 2 S.C.R. 858, where we determined that an improper reference to the minority would be in error. McLachlin J. stated at p. 866:

Typically, an accused’s fair trial interest has been found to have been prejudiced when the judge’s remarks indicated to the jurors that they “should be” or “ought to be” unanimous or that minority members should conform to the opinion of the majority.

82My colleague Cory J. interprets this to mean that any reference to the minority will have an adverse impact as it may lead jurors in that position to conclude that the trial judge is directing them that the majority opinion is right simply because it is the view of the majority. As a consequence, they will feel that they should no longer try to convert the majority to their point of view. With respect, I disagree. In my view, the ratio of Sims is clearly that an accused’s fair trial interest is only compromised when the instruction indicates or implies that the minority should conform to the majority. This is not nearly the same as saying that every reference to the minority will achieve this effect.

83Once again, rather than taking a blanket approach, it is useful to consider each statement in its proper context and examine its potential effect. In this case, the trial judge did not tell the minority that they must revise their decision. On the contrary, all he did was ask them to go back and listen to the views of the majority one more time. In case there was any confusion in this regard, it must have been corrected when the trial judge warned the jurors not to abandon their oath. He did so not once, but twice, and coupled this with a reminder that the jury need not agree. The words of Bull J.A. regarding a similar situation in Palmer, supra, at p. 415, are apposite:

This direction did not mean that the majority was right because they were a majority, without regard to the soundness of their reasoning, and was not capable of being so understood by any intelligent juror who had listened to the charge as a whole. Nor was it wrong to tell the minority that they should consider whether the views of the majority were more in accord with the evidence than their own. That is nothing more than a quite proper direction to consider that the one view might be the right one on the evidence and the other the wrong one.

84While I agree that to avoid any concerns, it is better not to make any references of this kind, the standard of review where they are made should be in accordance with Sims. Where the remarks of the trial judge fail to indicate that there must be an agreement, and that jury members holding a minority opinion should agree with the majority, it cannot be said that any wrongdoing occurred.

85In my view, assuming there was an error made here, a conclusion of which I have serious doubt, it was corrected by the references to the jurors’ oath and their right to disagree. Therefore, in the circumstances, I find that there was no harm caused by this reference, and that it could not have affected the jury’s ability to deliberate free of outside influences.

86In summary, I find that the only reference which could possibly have affected the jury’s deliberations was that regarding the public expense and inconvenience if a new trial were to be held. Before proceeding to consider whether this reference constituted an error of law, I wish to examine briefly the significance of the jury’s quick return after receiving the trial judge’s exhortation.

Significance of the Short Time Elapsed Between the Exhortation and the Return of the Verdict

87Cory J. attaches a great deal of significance to the short lapse of time between the exhortation and the return of the verdict. In his view, at para. 42, the speed with which the jury reached its verdict “demonstrates that it [the exhortation] must have had a coercive impact on the minority who up to that time had obviously been unmoved by the arguments of the majority”.

88In my view, this statement overlooks two important factors. First, where the language of an exhortation is not inherently coercive, it does not become so merely because an early verdict was returned. Second, there is an entirely different conclusion which can equally be drawn by the jury’s early return, that being that the exhortation had the desired effect; see for example, Tennant, supra, at p. 277; Palmer, supra; Halliday, supra; Littlejohn, supra, at p. 170. I note that in Palmer, supra, at p. 415, which is cited by my colleague to demonstrate that a quick return can indicate coercion, the Court of Appeal came to exactly the opposite conclusion and found that the verdict was legitimate.

89Furthermore, I am in agreement with the respondent who states in his factum:

Where, however, it is concluded the effect of the exhortation as a whole could not have been anything other than the proper influence of that type of jury address, an early verdict means only that the need for it was wisely assessed and that it was effective in meeting its legitimate objective.

90It follows therefore, that this factor is largely dependent upon the circumstances of each case. Its significance will depend upon the overall effect of the exhortation and the gravity of any potential error made by the trial judge. I propose therefore, to analyse these factors next.

3. Did the Court of Appeal Err in the Standard it Applied for Setting Aside the Verdict?

91My colleague Cory J. has discussed the appropriate standard of review in this matter, and I am in substantial agreement with this portion of his reasons. I agree that not every improper reference in an exhortation should be treated as an error of law, and that the reference must be examined in the context in which it was made in order to determine whether there is a reasonable possibility that the impugned statements either coerced the jury or interfered with its right to deliberate in freedom from extraneous considerations.

92The British Columbia Court of Appeal, in dismissing the appellant’s appeal, found that any errors made were not likely to coerce any members of the jury to disregard their oath and thus, the verdict was not improper. In my view, this finding was correct.

93In its entirety, this exhortation lasted 15 minutes, and contained numerous warnings to the jury that they must stay true to their oath and decide this case solely on the evidence before them. It also reminded them that they had the obligation to disagree if that was the proper result. Balanced against these factors is a one line reference to the inconvenience and expense to the public if a new trial were to be held. In these circumstances, I conclude that there is not a reasonable possibility that this reference had any influence on the jury’s verdict.

94As a result, I am unable to conclude that any error of law occurred. That would normally be sufficient to dispose of this matter; however, given the comments made by Cory J. with regard to the need for a model exhortation, I propose to consider briefly this issue as well.

Model Exhortations

95The adoption of a model exhortation has occurred in several common law countries including England, New Zealand and Australia. Such a development is seen as desirable in that it cuts down on the number of appeals in this area by providing a certain stability in the law. Nevertheless, as with any “model” form, this stability comes at a certain price. As I mentioned at the outset of my reasons, no two trials are exactly alike and the panoply of situations which can arise often results in the need for different exhortations.

96To illustrate, I will contrast the situation which occurred in this case with that in Littlejohn, supra. In the latter case, the jury sent the trial judge a note which expressed the fact that one juror knew of guilt but was unwilling to express it so as to make the jury unanimous. As a result, the judge gave an exhortation which focused on the importance of the oath, as well as his thought that someone may have been avoiding the duty they had sworn to do. It is evident that this type of exhortation would not have been necessary or appropriate in the case at bar. Similarly, neither the exhortation given in this case nor the model exhortation proposed by Cory J. would have been proper to deal with that type of situation. I believe, therefore, that in setting out a model exhortation we must urge trial judges to feel free to depart from this formula in situations which require it, as they are the people best able to assess the needs of each individual case.

97Nevertheless, I can see how a model exhortation would be desirable to deal with the common occurrence where a jury is deadlocked, and the trial judge is not concerned by any additional problem needing to be addressed. In this type of situation, I believe the exhortation suggested by Cory J. would be acceptable. In my view, however, an exhortation along the lines proposed by the New Zealand Court of Appeal in Accused, supra, is preferable as it is more likely to achieve the important goal of urging a jury to reach a verdict.

Conclusion

98As I have concluded that there was no error of law made in the courts below, I would dismiss the appeal.

Appeal allowed, L’Heureux‑Dubé and Gonthier JJ. dissenting.

Solicitors for the appellant: Rosenberg & Rosenberg, Vancouver.

Solicitor for the respondent: The Attorney General of British Columbia, Victoria.

on appeal from the court of appeal for british columbia

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