W A R N I N G—PUBLICATION BAN

THE COURT HAS ISSUED A BAN PROHIBITING PUBLICATION OF ANY INFORMATION THAT WOULD CONTRAVENE THE JURY SECRECY RULE, INCLUDING, BUT NOT LIMITED TO, REFERENCE TO ANYTHING THAT WAS SAID DURING THE JURY’S DELIBERATIONS, OR THE EFFECT OF ANYTHING THAT WAS SAID ON ANY OF THE JURORS’ MINDS, EMOTIONS OR ULTIMATE DECISION.

DATE: 2012-02- 16

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – CHRISTOPHE LEWIS

Andrew Sabbadini and Heather Davies , for the Crown

Donald F. McLeod and Monte MacGregor, for the Accused

HEARD: February 9, 2012
RELEASED: February 16, 2012

mcCOMBS J.

RULING—MOTION FOR INQUIRY INTO JURY DELIBERATIONS

OVERVIEW

1 . Mr. Lewis was tried by a jury for first-degree murder. On Thursday, December 15, 2011, the jury began its deliberations. The following day, they returned a verdict of guilty of second-degree murder.

2 . After the verdict was announced by the foreperson in open court, counsel for Mr. Lewis did not initially request that the jurors be polled. Accordingly, I proceeded to instruct the jurors, pursuant to s. 745.2 of the Criminal Code , to provide their recommendations concerning the appropriate period of parole ineligibility. The jurors were then excused to deliberate on the issue. They returned ten minutes later, ready to announce their recommendations.

3 . During the jury’s absence from the court, counsel for Mr. Lewis requested that the jurors be polled.

4 . The jurors were polled immediately upon their return to the courtroom. They each separately indicated their agreement with the verdict as announced by the foreperson [1] . After the jurors were polled, the foreperson was asked to announce the jury’s recommendations concerning parole ineligibility. The foreperson answered “we all recommend the ten years”.

5 . After the jury was excused, counsel for Mr. Lewis indicated that he proposed to call expert evidence at the parole ineligibility hearing, and required time to obtain the evidence. It was agreed that the matter should be spoken to on January 9, 2012 to fix a date for the hearing.

6 . Before adjourning to January 9, 2012, I imposed the mandatory sentence of life imprisonment upon Mr. Lewis, and advised him that the issue of parole ineligibility would be addressed at a separate hearing.

7 . On the January 9, 2012 return date, I was informed that two days after the verdict, on Sunday, December 18, 2011, Mr. McLeod, counsel for Mr. Lewis, had received a call at his office from a juror. I was informed that upon realizing that the caller was a juror, Mr McLeod had advised her that he could not discuss her concerns with her. He informed Crown counsel Mr. Sabbadini of the situation, and arranged for the juror to have independent counsel. The case was remanded one week to January 16, 2012, in order to permit counsel for the juror to attend.

8 . Before entering court on January 16, 2012, I was made aware that an article had appeared in that morning’s edition of the Toronto Star newspaper about the matter, under the headline: “Juror Alleges Coercion—Woman claims fellow jurists bullied her into second-degree murder verdict in Lewis trial”.

9 . Ms. Leora Shemesh appeared that morning as counsel for the juror (juror #4), and advised that she intended to bring an application on behalf of juror #4 for an order that I conduct an inquiry and hear from the juror.

10 . I raised the issue of the newspaper article in court because at that point I had been provided no specific information about the nature of the juror’s claims, and I had concerns about the propriety of a report about the issue appearing in the media, before a judicial determination had been made about whether there should be a publication ban in light of the jury secrecy provisions contained in s. 649 of the Criminal Code . My concern was in part to preserve the confidentiality of the allegations until I had had a chance to consider them. I indicated that if an application were to be brought, “it strikes me that the first thing that should happen should be an affidavit placed before the court”. I went on to state:

If I come to the conclusion that there is no basis for conducting a judicial inquiry in this matter, then the affidavit would be sealed and available for review in a different forum rather than having it all laid out in the materials, with no opportunity for a court to determine to what extent, if at all, it should be released to the public. There should be a judicial determination about the issue of whether these allegations should be made public, it seems to me.

11 . I also expressed reservations as to whether a juror had standing to bring such an application:

I am not certainly aware of any occasion where a juror has brought an application. Certainly, nothing comes to my mind. I haven't been assisted by counsel as to whether there is any precedent. There may well be, but I am unaware of it. So when the standing issue arises, I will deal with it at the time.

12 . On January 23, 2012, an application came before me brought by counsel for the juror seeking an order compelling a judicial inquiry of juror #4. The application record contained an affidavit from juror #4. I accepted the Crown’s argument, conceded by counsel for Mr. Lewis, that the juror did not have standing, and dismissed the application. I also ordered that the materials filed on behalf of the juror be sealed. Counsel for Mr. Lewis advised that he intended to bring a similar application, and after issuing directions concerning the filing of materials, including the use to be made of the affidavit of juror #4, I directed that the hearing proceed on February 7, 2012. On that date, the hearing was adjourned at the request of defence counsel to February 9, 2012.

THE APPLICATION

13 . Mr. Lewis asks that I commence an inquiry “to ascertain whether an irregularity occurred that questions whether a true and unanimous verdict was rendered”, and for “such further and other Order(s) that the court deems just”.

14 . I have concluded that the application must be dismissed.

THE LAW

(a) The general rule

15 . In R. v. Burke [2002] S.C.R. 857, the majority held that the general rule is that after a verdict has been received and the jury has been discharged, a trial judge is “ functus officio”; that is, the judge has no authority to revisit the verdict.

(b) Exception to the general rule

16 . However, in Burke, at paras 68-70, the court recognized a limited exception to the general rule in circumstances where the jury is not being asked to reconsider its verdict. The court held that if the alleged error would require redeliberation of the verdict, “there are no circumstances under which the judge will retain or otherwise possess jurisdiction to reconvene the jury and conduct an inquiry into the alleged error. The trial has concluded and the jury’s function is finished. The jury is not then permitted to change its mind.”

17 . On the other hand, where the error is in the recording of the intended verdict, a trial judge has a limited and exceptional jurisdiction to recall the jury for the purposes of conducting a narrow inquiry into the alleged error, which may result in correction of the recorded verdict: Burke, supra, paras 69-76.

18 . Mr. Lewis does not claim there was an error in the recording of the intended verdict. Instead he argues that Juror #4’s affidavit gives rise to a reasonable concern that the verdict as rendered was not a “true” verdict. Where a verdict was not based exclusively on the evidence and the law, the verdict is not a “true” verdict: R. v. Sinclair 2011 SCC 40 () , [2011] S.C.J. No. 40 at para 30 ; R. v. Morrissey (1995), 97 C.C.C. (3d) (Ont. C.A.) at p. 221.

19 . I conclude that I am functus officio with respect to the properly recorded unanimous verdict of the jury. The appeal court is the proper forum for determination of whether the properly recorded verdict was a “true” verdict: R. v. Halcrow , ( 2008) 2008 ABCA 319 () , 236 C.C.C. (3d) 363 (Alta. C.A.) , at para 33 ; R. v. Grant, (2009) 2009 MBCA 9 () , 240 C.C.C. (3d) 462, at para 17 . (Man. C.A.).

(c) Discretion to conduct inquiry to create a record for consideration on appeal

20 . R. v. Phillips 2008 ONCA 726 () , [ 2008] O.J. No. 4194 , 242 O.A.C. 63 suggests, at para. 47, that a trial judge who is functus officio with respect to the verdict of the jury may still have the discretion to conduct an inquiry and hear evidence in order to create a record for consideration on appeal.

21 . I accept that I have the discretion to conduct an inquiry, but I have concluded that I should not do so in this case. In my opinion, the affidavit already before the court under seal provides a sufficient evidentiary record for consideration on appeal.

22 . My conclusion has been informed in large part by my understanding of the law concerning the importance of, and limits upon, the principle of jury secrecy. In order to explain my conclusion, it is necessary to make reference to the law concerning jury secrecy and its limits.

(d) The Importance of, and limitations upon, the principle of jury secrecy

23 . The decision of the Supreme Court of Canada in R. v. Pan; R. v. Sawyer, 2001 SCC 42 () , [2001] S.C.J. No. 44 provides guidance concerning the importance of and limitations upon the principle of juror secrecy. After discussing the policy considerations informing the jury secrecy rule, Arbour J., writing for a unanimous court, articulated the limits of the rule in this way, at para 77:

…statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors' minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party,that may have tainted the verdict. (emphasis added).

24 . Arbour J. emphasized the importance of jury secrecy further at para. 83:

…erosions of the guarantees of jury secrecy beyond the existing boundaries would also result in the eventual erosion of the integrity of the jury as decision maker in criminal cases. The constitutional entrenchment of the right to trial by jury under s. 11(f) of the Charter means that jury trials will continue to be an important component of our criminal justice system. The secrecy of the deliberation process, both during and after the conclusion of the trial, is a vital and necessary component of the jury system. Given that the right to a trial by jury is guaranteed by the Charter, it is not open to us to adopt an approach that would threaten the jury's ability to carry out its role fairly and diligently. The principles of fundamental justice require that the integrity of the jury be preserved, and, in my opinion, it is best preserved by the common law rule as interpreted above.

25 . While emphasizing the important policy reasons for the general rule protecting the secrecy of jury deliberations, Arbour J. observed that where matters extrinsic to the deliberation process were introduced, the principle of jury secrecy must give way to concerns about trial fairness and the integrity of the verdict. Arbour J. also pointed out, at para 60, that “the distinction between intrinsic and extrinsic matters is not always self-evident and it is not possible to articulate with complete precision what is contemplated by the idea of a matter “extrinsic” to the jury deliberation process.”

26 . Arbour J. observed, at para 59, that expressions of opinion arising from a juror’s life experiences are intrinsic, but a juror’s introduction of information not properly before the court by reason of an exclusionary rule or other reasons would be extrinsic evidence and would be admissible for review on appeal to determine “whether there is a reasonable possibility that this information or influence had an effect upon the jury’s verdict”

27 . I turn now to an explanation as to why I have concluded that the allegations in the affidavit of juror #4 refer to matters that are intrinsic to the jury’s deliberations, and are therefore inadmissible.

APPLICATION OF THE LAW TO THE CIRCUMSTANCES OF THIS CASE

(a) Overriding principles

28 . Preservation of public trust in the integrity of the criminal justice system depends upon the vigilance of the courts in guarding against miscarriages of justice. If the verdict rendered by the jury in this case may have been affected by extrinsic evidence demonstrated to have been introduced during the jury’s deliberations, then it was not a “true” verdict, and it must be set aside. If the verdict in this case was not a “true” verdict, then it can only be corrected on appeal.

(b) Does the affidavit give rise to concerns that the verdict was tainted by “extrinsic” information?

29 . If the affidavit before me were to give rise to a concern that the verdict was tainted by extrinsic information, the case for conducting a further inquiry would be stronger. However, on my reading of the affidavit in the light of the law as I understand it to be, I am satisfied that the concerns of the juror relate to matters intrinsic to the jury’s deliberations and are therefore inadmissible to impeach the properly recorded unanimous verdict.

30 . The impugned comments attributed to one of the jurors that “the accused was of bad character, likely had a criminal record and was in a gang”, do not suggest that the juror had conducted research outside of court and introduced the evidence into the jury deliberations. Rather, if the comments were made, they appear to have been expressions of opinion by the juror. Jurors are entitled to express their opinions based upon their life experiences and inferences they draw from the evidence properly adduced in court. Moreover, the evidence adduced at trial, particularly that of Cleavon Springer, an important Crown witness, albeit of disreputable character whose evidence attracted a strong Vetrovic warning, constituted evidence that the motive for the confrontation leading to the victim’s murder was retribution for the accused having been robbed of drugs and guns by the victim. It was open on the evidence of Springer and from other evidence adduced at trial, for a juror to come to the impugned opinion she allegedly expressed. Expressions of opinion of this type are intrinsic to the jury’s deliberations. Moreover, the affidavit of juror #4 acknowledges, at paragraph 15, that she was aware that the expressions of opinion did not constitute evidence heard in the courtroom and that she knew this “to be wrong”.

CONCLUSION

31 . I conclude that, having regard to all the circumstances, the affidavit evidence of juror #4 does not support the contention that extrinsic evidence was introduced into the deliberations of the jury.

32 . In the result, I decline to conduct an inquiry into the allegations of juror #4. As I stated earlier, the affidavit presently before the court under seal provides, in my opinion, a sufficient evidentiary foundation for appellate review. In the circumstances, it is desirable that every step be taken to ensure that the matter is brought on for appeal expeditiously.

33 . The application is dismissed.

McCombs J.

[1] Through inadvertence, each juror was not asked to repeat the verdict that the foreperson had announced. This is the preferable procedure: R. v. Burke [2002] S.C.R. 857, at para 78. However, I have no doubt that jurors were all fully aware of and indicated their agreement with the verdict that had been announced by the foreperson. Right after the verdict was announced, they were instructed under the Criminal Code s. 745.2 commencing with the words: “[y]ou have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused…”. When the members of the jury were polled, they had just returned from the jury room after a ten-minute discussion of their recommendations concerning the appropriate period of parole ineligibility. They could have been in no doubt about the verdict that had been announced in court.