ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIM J(F) 1423/11
DATE: 20130212

B E T W E E N:

HER MAJESTY THE QUEEN

Caroline Carrasco, for the Crown

Respondent

• and -

LOVEJEET BAINS and HARNEET PANNU

Deepak Paradkar, for Lovejeet Bains

Marie Henein and Matthew Gourlay, for Harneet Pannu

Applicant

HEARD: January 11 and February 1, 2013

APPLICATION FOR A POST-VERDICT JUROR INQUIRY

F. Dawson J.

1I presided over the jury trial of Lovejeet Bains and Harneet Pannu who were charged with possession of heroin for the purpose of trafficking. The jury reached its verdict shortly before 3:00 p.m. on Monday, December 3, 2012 after deliberating for approximately two and one half hours, which included lunch. The accused were both found guilty as charged. The jury was discharged and the accused were remanded to January 11, 2013 for sentencing.

2At approximately 3:30 p.m. on the day of the verdict a Court Services Officer (CSO) advised me that another CSO who was assigned to the jury had found a document in the jury room which he thought should be brought to my attention. I later learned the document was found in plain view when the CSO was cleaning up the jury room after he had escorted the discharged jurors to the parking lot. I was told that the document was sitting on top of the three ring binder used by juror number 8. All of the jurors had been given binders so they could take notes if they wished to. The jurors were told that the court staff would ensure that the contents of their binders were destroyed after their deliberations were completed.

3The document, later marked as Exhibit “E”, is typewritten and reads as follows:

The decision to acquit Casey Anthony of killing her daughter Caylee has shocked and baffled many people, but some experts say it’s just the latest sign of juries’ ignorance, failure to use common sense, and inability - or disinclination - to properly weigh evidence. Lloyd Grove reports. [Bolding in original]

You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law.

1To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none or all of the evidence given by a witness.

2When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it in deciding this case.

4The first paragraph, in bold type, has been determined to be an excerpt from a July 6, 2011 online article which criticized an American jury’s acquittal of Casey Anthony of murder and other charges related to the death of her daughter. The subsequent paragraphs have been determined to be taken from model jury instructions published by the Canadian Judicial Council (CJC), which are available online.

5The charge to the jury which I delivered, and which was provided to the jury in writing, was based upon the Ontario Specimen Jury Instructions (Criminal) prepared by The Honourable David Watt, with various alterations and additions of my own or from other sources.

6It is readily apparent that the jury instructions reproduced on the document found in the jury room were not taken from my charge. While almost identical paragraphs appear in my charge, some of the wording is different and the similar paragraphs in my charge had other instructions interspersed between them. (See paragraphs 28, 49 and 53 of my Charge to the Jury).

7By the time the document found in the jury room was brought to my attention the jury had dispersed and I was advised counsel had left the courthouse. The following day I had my assistant write to counsel providing them with a copy of the document and a copy of a statement prepared by the CSO who found the document. The circumstances in which the document was found were disclosed but, on my instructions, the number of the juror on whose binder the document was found was withheld.

The Position of the Parties

8Lovejeet Bains moves for a mistrial, or alternatively for a stay of proceedings. He relies on ss. 7 and 11(d) of the Charter. He submits that it is apparent that at least one member of the jury violated the instructions in both my opening remarks to the jury and in my charge, that they were to take the law from me as the trial judge and not to consult other sources of the law. He further submits that the article concerning the Casey Anthony trial is a “scathing indictment” of her acquittal, and is as well critical of jurors in other cases. Counsel for Mr. Bains submits that the finding of this “compilation document” in the jury room demonstrates a “real apprehension of bias … that cries out for the remedy of a mistrial”.

9Crown counsel submits that I am functus officio and without jurisdiction to grant a mistrial or a stay of proceedings. The jury has been discharged and this case does not fall within the narrow set of circumstances in which the court retains jurisdiction at the post verdict stage.

10On behalf of Harneet Pannu, Ms. Henein does not contest the Crown’s submission that I am without jurisdiction to declare a mistrial or direct a stay, but submits that I nonetheless have jurisdiction to conduct an inquiry, and should do so in order to create a record in a timely fashion that will be available for consideration on appeal.

11In response, Crown counsel maintains that even if I have jurisdiction to conduct an inquiry (which is not conceded) I should decline to do so. This argument is advanced on the basis that there is no doubt that the document entered the jury room and that it speaks for itself. With respect to the Casey Anthony article, Crown counsel observes that jurors are permitted to bring their opinions into the jury room with them. With respect to the reference to the CJC model charge, Crown counsel notes it is not meaningfully different in content than my charge to the jury, which the jurors had in writing. In short, Crown counsel submits that the document together with the statement of the CSO who found it, both of which are preserved as exhibits, amount to an adequate record for arguments that might be advanced on appeal. Given the adequacy of that paper record Crown counsel submits it would not be useful to conduct an inquiry which risks violating the jury secrecy rules designed to protect and enhance the jury system generally.

Applicable Principles and Analysis

(a) Jurisdiction to Grant a Mistrial or Stay of Proceedings.

12In R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 the Supreme Court of Canada reviewed and modified the previous bright-line rule in R. v. Head, 1986 8 (SCC), [1986] 2 S.C.R. 684, which held that a trial judge is functus once a jury’s verdict has been recorded. However, the court’s modification of the rule in Head went only so far as to permit a trial judge to correct an error in the recording of a jury’s verdict in circumstances which would not require the jury to reconsider its verdict or continue its deliberations. As explained in Burke at paras. 53-54, and elaborated upon in the subsequent case of R. v. Henderson (2004), 2004 33343 (ON CA), 189 C.C.C. (3d) 447 (Ont. C.A.) at paras. 27 and 30, where a mistake has been detected in recording the verdict a jury intended to render, if the mistake becomes known before the jury is discharged the trial judge retains the jurisdiction to correct the record to reflect the verdict the jury intended. However, if the recording mistake is not detected until after the jury is discharged the judge may recall the jury and conduct an inquiry to determine whether there is a reasonable apprehension of bias arising from the fact that the jury has dispersed and may have been exposed to extraneous materials. If on the inquiry the court determines that a reasonable apprehension of bias exists, the trial judge may not record the verdict but does have the jurisdiction to declare a mistrial to prevent a miscarriage of justice.

13In Henderson the court held that it was only in these circumstances, or in a situation where the accused wishes to raise the defence of entrapment pursuant to R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, 44 C.C.C. (3d) 513, that a trial court retains jurisdiction to grant a mistrial or order a stay of proceedings after a jury has rendered its verdict. Consequently, in Henderson the court allowed a Crown appeal from a mistrial granted by a trial judge who concluded after a guilty verdict had been rendered that the Crown’s failure to preserve certain documents amounted to an abuse of process and a violation of s. 7 of the Charter.

14A similar conclusion was reached in R. v. Halcrow, 2008 ABCA 319, 236 C.C.C. (3d) 363. At para. 24 the court noted that “[t]he weight of appellate authority both before and since Burke … suggests that a trial judge generally has no jurisdiction to hear a motion for mistrial once a jury has been discharged”.

15In view of these authorities I conclude I have no jurisdiction to declare a mistrial or enter a stay of proceedings. I am unable to accept Mr. Paradkar’s argument that the jurisdictional issue here is somehow distinguishable because he also invokes s. 11(d) of the Charter. In my view there is nothing in any of the authorities to support that proposition.

The Jurisdiction to Hold a Post-Verdict Inquiry

16The first point to be made is that it does not follow from my determination that I have no jurisdiction to grant a mistrial or enter a stay that I have no jurisdiction to conduct an inquiry. In R. v. Phillips, 2008 ONCA 726, [2008] O.J. No. 4194, the Court of Appeal was concerned with how evidence regarding a juror’s post-verdict utterances could be preserved in a non hearsay form for use on an appeal. MacPherson J.A. held on behalf of the court, at para. 47:

The trial defence counsel could have asked the trial judge at the hearing on February 1, 2005 to conduct an inquiry and compel Ms. W., and possibly other jurors, to attend and testify about the matters presented by Ms. W.’s conversations. If this had happened, even if the trial judge could not have interfered with the verdict because he was functus, a record would have been created for this court’s consideration on the appeal. Alternatively, appeal counsel could have achieved the same result by invoking s. 683(1)(d) of the Criminal Code, which would authorize this court to hear the same testimony.

17In R. v. Lewis, 2012 ONSC 1074, [2012] O. J. No. 742 (S.C.J.), at paras. 20-21, McCombs J. cited para. 47 of Phillips in support of his conclusion that he had jurisdiction to conduct a post-verdict inquiry although he was functus officio.

18Crown counsel submits that whether I have jurisdiction to hold an inquiry post-verdict turns on the application of the common law jury secrecy rule. While I am inclined to see the jury secrecy rule as impacting whether an inquiry should be held in other than jurisdictional terms, I will address the issue under this rubric as it was presented as a jurisdictional argument.

19The jury secrecy rule renders inadmissible any evidence concerning matters intrinsic to a jury’s deliberation. However, it does not render inadmissible evidence of matters which are extrinsic to that process. The jury secrecy rule was explained by Arbour J. in R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, as follows at paras. 59 and 77-78:

59 ... Evidence indicating that the jury has been exposed to some information or influence from outside the jury should be admissible for the purpose of considering whether or not there is a reasonable possibility that this information or influence had an effect upon the jury's verdict. Such evidence should be admissible regardless of whether it is a juror or someone outside the jury who offers the evidence. However, while jurors may testify as to whether or not they were exposed to extrinsic information in the course of their deliberations, the court should not admit evidence as to what effect such information had upon their deliberations.

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.

78 This modern formulation of the rule … best ensures that the sanctity of the jury's deliberations is preserved by promoting in equal measure the secrecy and confidentiality indispensable to the deliberation process and the exposure of serious matters casting doubt on the integrity of the verdict.

20Crown counsel concedes that a trial judge does have jurisdiction to conduct a post-verdict inquiry into extrinsic matters as described by Arbour J. However, Crown counsel submits that I am without jurisdiction to conduct an inquiry in the present case because inquiring into the document found in the jury room will intrude on matters intrinsic to the jury’s deliberative process.

21In support of her argument Crown counsel points to a number of decided cases in which courts have reached the conclusion that a particular subject matter or concern that arose post-verdict was intrinsic to the deliberation process. For example, in R. v. Ferguson, 2006 ABCA 36, [2006] A.J. No. 175 (C.A.) a juror wrote to the trial judge four days after the verdict to say that her vote did not reflect her true feelings. In R. v. Holmes, [2009] O.J. No. 392 (S.C.J.), a juror wrote to the trial judge two weeks after the verdict to express second thoughts. In each case the court held the matter was internal to the deliberative process and ruled that an inquiry should not be held. Crown counsel combines her reference to these cases with a submission that reference to the Casey Anthony article falls within the realm of general information and expression of opinion within the community that a juror may take with them into the jury room. It is something that a juror might choose to refer to during discussions with fellow jurors. The fact that it is in written form is immaterial.

22When I consider the whole of the document found in the jury room against the background of my various instructions to the jury that they were not to conduct their own research or consult other sources of the law, I find I am not persuaded by Crown counsel’s submissions. In reaching this conclusion, however, I place my emphasis on the references to the CJC model charge and not to the reference to the article about the verdict in the Casey Anthony case.

23It is clear from the contents of the document that at least one juror was consulting outside sources of the law in contravention of my clear and repeated instructions not to do so. This is as much an extrinsic matter as would be conducting internet research into the antecedents of an accused, for example. I add that the fact that the portion of the CJC model charge which was reproduced in the document found in the jury room closely parallels what I said in parts of my charge does not detract from the fact that at least one juror was conducting independent legal research. The purpose of an inquiry would be to determine, amongst other things, whether such research was more extensive than we are currently aware of, and whether such legal research was conveyed to the other jurors.

24I am inclined to view the reference to the Casey Anthony article as something that is at least much closer to an intrinsic matter. However, the reference to that article was compiled into a document that also contained extrinsic legal instructions. Those instructions were excerpted from their greater context, which included instructions on the presumption of innocence and other aspects of the meaning of proof beyond a reasonable doubt and focus selectively on the instruction that the Crown need not prove anything to an absolute certainty. Given the tenor of the Casey Anthony article, the juxtaposition of the CJC model charge extracts in the same document strengthens the argument that the consultation of extrinsic legal information has tainted the appearance of justice. Whether it rises to the level of a miscarriage of justice will be for the Court of Appeal to decide. However, this unusual combination of factors makes it more difficult to view the extrinsic legal material as completely insignificant even though it closely resembles portions of my charge. I say this only to explain why I conclude that there is a significant extrinsic component to the contents of the document. In these circumstances I am unable to accept the Crown’s argument that jurisdiction to conduct an inquiry is precluded by the jury secrecy rule.

Should an Inquiry be Held in the Circumstances of this Case?

25Crown counsel submits that the document and the written statement from the CSO who found it provide a sufficient evidentiary record for the Court of Appeal to consider. There is no doubt that the document was in the jury room and because we are dealing with information reduced to writing it is submitted that there is no need to hold an inquiry. However, when I asked Crown counsel whether she was prepared to concede that it follows from the document’s presence in the jury room that it was shared with other jurors she was not willing to make that concession.

26It will be for the Court of Appeal to determine whether and to what extent the sharing of the document amongst the jurors impacts the outcome of the appeal. However, I can conceive of circumstances related to whether the document was disseminated amongst the jurors that would strengthen or weaken the arguments on either side of this question. Consequently, it seems to me that this is at least a relevant factual matter that should be inquired into.

27It also seems to me that given that it has been demonstrated that at least one juror was conducting independent legal research and bringing it into the jury room, an inquiry is warranted into whether other extrinsic research was undertaken, and if so, whether it was shared with other members of the jury. The timing of when any such events took place in relation to other events at the trial, such as the addresses of counsel and the charge to the jury, could also become relevant to arguments that might be advanced by either side on the appeal. The questions for the jurors can be formulated to avoid violating the jury secrecy rule.

Conclusion

28I will proceed with an inquiry. We will begin by hearing under oath from the CSO who found the document. Counsel will conduct those examinations but the questioning must be conducted in such a way as not to reveal anything about the juror’s deliberations.

29I have arranged for the juror upon whose binder the document was located to attend for the inquiry. I will question the juror. I have invited counsel to exchange and submit proposed questions for my consideration.

30I may or may not expand the inquiry to other jurors depending upon the evidence developed during the initial stage of the inquiry.

Addendum

31Since preparing the foregoing reasons, but prior to their release to counsel, the inquiry commenced and evidence was taken from the CSO who found the document and from the juror upon whose binder the document was found. That juror testified that another juror brought the document into the jury room during the course of the trial and handed out copies of the document to the other jurors. That took place prior to the charge to the jury. The inquiry will continue with the questioning of the other 11 jurors.

F. Dawson J.