R. v. Khan, [2000] 2 S.C.R. 915

Mohamed Ameerulla Khan Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Khan

Neutral citation: 2000 SCC 63.

File No.: 27395.

2000: June 22.

Present: Binnie J.

motion to adduce new evidence

Criminal law -- Evidence -- Fresh evidence – Supreme Court of Canada – Crown seeking to introduce fresh evidence consisting of transcript of “discussions” between trial judge and two jurors 10 days after accused convicted of first degree murder -- Motion denied.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C-46, s. 649 [am. 1998, c. 9, s. 7].

MOTION to adduce new evidence. Motion denied.

Written submissions by Martin D. Glazer, for the appellant/respondent on the motion.

Written submissions by Richard A. Saull, for the respondent/applicant.

The following is the order delivered by

[1] Binnie J. — This is an application by the respondent Crown for an order admitting new evidence and for an order extending the time to serve and file the Crown’s factum and record for 30 days beyond the date of the order disposing of the motion.

[2] The new evidence consists of the affidavit of Tracey Lord, a Crown Attorney who was initially assigned to the prosecution of the appellant in July of 1996. Her affidavit is essentially a vehicle to put before the Court a transcript of what is described as “discussions” between the trial judge and two jurors, in the presence of the jury coordinator, 10 days after the appellant was convicted by the jury of first degree murder in the death of his wife Sureta Khan on February 13, 1998.

[3] One of the grounds of the appeal is that the Khan jury was mistakenly provided with copies of conversations that took place between lawyers and the trial judge in the jury’s absence. The copies were in the possession of the entire jury for approximately seven hours. This issue created a controversy at the conclusion of the trial and was reported in the Winnipeg press. Apparently these news reports came to the attention of at least two of the jurors. According to further press reports, these two jurors then asked to meet with the trial judge. The meeting took place in open court, but neither the appellant nor his counsel (nor Crown trial counsel) was invited to attend. A transcript was made of the discussion. The Crown says that the transcripts establish that the copies of conversations given to the jury “had no impact because the jury did not read the inadmissible parts of the transcripts before they were taken away from the jury”.

[4] In my view, the transcript of the discussion by the trial judge with two jurors as to what was read or was not read while the jury was deliberating on its verdict should not be admitted as fresh evidence. The law prohibits disclosure by jury members of any information relating to the proceedings of the jury when it was absent from the courtroom “that was not subsequently disclosed in open court” (Criminal Code, R.S.C., 1985, c. C-46, s. 649). I do not think that a discussion between the trial judge and two of the jurors 10 days after the conclusion of the trial, in the absence not only of the accused but of the other 10 jurors whose activities were also the subject matter of the discussion, is a disclosure “in open court” for these purposes.

[5] The two jurors were not sworn as witnesses to give evidence. As stated, neither Crown counsel at the trial nor defence counsel nor the appellant was present. Admission of the proffered evidence would trigger a controversy as to what individual jurors did or did not review of material that was clearly, if mistakenly, provided for their consideration. The appeal would risk being converted into a juror-by-juror inquiry into the proceedings in the jury room, one of the concerns that led to the prohibition on disclosure in the first place.

[6] Even if the unsworn evidence of the two jurors was admissible, it would not convincingly put to rest any concern the Court may have with respect to the other 10 jurors.

[7] I note that the transcript was offered to Chief Justice Scott of the Manitoba Court of Appeal on October 22, 1998 during the Crown’s unsuccessful effort to have the Court of Appeal review the chambers order of Twaddle J.A. granting the appellant judicial interim release pending the hearing of his appeal against conviction. In his reasons for judgment, Scott C.J.M. stated:

I wish to make it clear, as I did to counsel during argument, that I have not had regard to para. 7 of the affidavit of Ms. Lord which adverts to the interview between the trial judge and two jurors concerning the effect of the disclosure to the jury of inadmissible evidence. Doubtless the admissibility of this information and its impact will be matters that will be fully addressed when the appeal is heard on its merits.

((1998), 1998 CanLII 5159 (MB CA), 131 Man. R. (2d) 101, at para. 9)

[8] It is common ground that the Crown did not pursue the admission of this evidence before the Manitoba Court of Appeal. This omission further weakens the Crown’s effort to have it introduced for the first time on appeal to this Court.

[9] In the circumstances, the application to admit fresh evidence is denied. The time within which the respondent is to serve and file her factum and the respondent’s record is extended to Friday, July 7, 2000.

Motion denied.

Solicitor for the appellant/respondent on the motion: Martin D. Glazer, Winnipeg.

Solicitor for the respondent/applicant: The Department of Justice, Winnipeg.