CITATION: R. v. Brown, 2016 ONSC 6595
COURT FILE NO.: CR-14-202
DATE: 20161021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROHAN BROWN
P. Brissette, for the Crown
R. Rusonik, for the Applicant
HEARD: September 15, 22 and October 4, 2016
RULING ON APPLICATION FOR MISTRIAL
HEALEY J.
Nature of the Application
[1] On June 10, 2016, a jury found Rohan Brown guilty of four counts of possession for the purpose of trafficking, each in respect of a different controlled substance listed under Schedule 1 of the Controlled Drugs and Substances Act, S.C. 1996, c.19. Mr. Brown now seeks an order for a mistrial on the basis of correspondence delivered by a juror to the court following the jury’s discharge.
Background Facts
[2] Mr. Brown’s trial lasted for five consecutive days, including jury selection. Five witnesses testified for the Crown and two for the defence, including Mr. Brown. The jury was charged on the morning of June 10th. At 12:48 p.m., the court reassembled to respond to a question from the jurors relating to the evidence, which required a playback of a portion of Mr. Brown's evidence. The jury retired to continue deliberating. At 4:16 p.m., court resumed to respond to a request from the jury to hear the entire testimony of the other defence witness. The witness’s testimony, nine minutes in length, was replayed for the jurors, and they retired again at 4:27 p.m..
[3] At 6:03 p.m., court resumed to respond to another request for a playback of the evidence, this time to hear Mr. Brown's entire testimony. After ascertaining the length of that testimony, both counsel raised the issue of timing, querying how late into the day the jury may be permitted to deliberate. It was proposed by the court and agreed upon by counsel that the court would pass a note to the jury constable to inform the jury of the length of Mr. Brown’s testimony. The note asked the jurors whether they would prefer to hear it that evening, or upon resuming in the morning at 9:30 a.m.. The note further asked, if they opted to hear Mr. Brown's testimony immediately, whether they wished to continue deliberating that evening or resume in the morning. The foreperson sent it back with a response marked directly on the note, which indicated that the jurors wanted to hear Mr. Brown's testimony immediately and to continue their deliberations that evening. Neither counsel raised any further concerns about the lateness of the hour or the jury’s desire to continue deliberating that evening. The jury re-entered to listen to Mr. Brown’s testimony and retired at 7:32 p.m. to continue deliberating, a meal being provided to them at that time.
[4] At 9:11 p.m., court resumed after being notified by the jury that a verdict had been reached. The note states: "We, the jury have reached a verdict in the case of R. v. Rohan Brown". The verdict sheet that the jury foreman was instructed to complete shows a check mark in the box beside the verdict "guilty" under each of the four counts. After reading the verdict, the registrar asked Mr. Holt whether he wished the jury to be polled. He indicated that he did, and the court directed that this procedure was to be undertaken. The registrar then said, "Members of the jury, as I call your number answer ‘agree’ if you agree with the verdict as set out by your foreperson. If you disagree, say ‘disagree’". As each juror’s number was called out, he or she gave a one-word response, which was "agree". A conviction was recorded by the court for each count, and the jury was dismissed. The matter was adjourned to July 6, 2016 for sentencing.
[5] Exactly one week later, on June 17, 2016, one of those jurors delivered e-mail correspondence (the “letter”) to an employee who works in the jury office at the Barrie courthouse, addressed to "Your Honour". The letter was forwarded to the Director of Court Operations and to the Regional Senior Judge. It was then delivered to me as the trial judge, to Mr. Brissette and Mr. Holt for their consideration, and to the Executive Legal Officer at the Office of the Chief Justice for the purpose of delivering a response to the juror.
[6] As a result of having received the letter, at the July 6th attendance Mr. Holt requested an adjournment of the sentencing hearing to consider the matter, indicating that he may obtain instructions to seek a mistrial ruling. The case was adjourned to September 15, 2016.
[7] On September 15th, Mr. Rusonik, who practices at the same firm as Mr. Holt, attended the hearing and confirmed that he was seeking a mistrial declaration. No formal application had been served on the Crown. After hearing initial argument from Mr. Rusonik, the matter was adjourned to September 22nd to give counsel time to prepare submissions on the use to be made of the juror's letter and to allow Mr. Brissette to prepare to argue the mistrial application.
Issues
[8] This application raises the following issues:
i. The extent to which counsel and the court may rely upon the contents of the juror’s letter to determine this application; and
ii. Whether the court has jurisdiction to quash the convictions and order a mistrial in the circumstances of this case, and if so, whether that jurisdiction should be exercised.
[9] The answer to these questions, respectively, may be obtained from the Supreme Court of Canada’s decisions in R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344 and R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857.
[10] However, before moving on to these central issues, I will address one other issue initially raised by the defence, but abandoned during the course of argument. At his first attendance, Mr. Rusonik communicated to the court that he intended to elicit evidence in relation to the "the reaction of the juror in question when polled". The defence was initially prepared to argue that there was a flaw in the polling process, giving rise to another basis for the mistrial application. My comments in this regard are obiter dictum, but given that the issue has not been addressed in any of the cases to which counsel have directed the court, perhaps they will assist in the development of the law in this area.
[11] In the letter, the juror described her experience when polled. She wrote that when she indicated that Mr. Brown was guilty, she instantly broke into tears, and was unsure that she could gain her composure because “the tears were just rolling down my face”.
[12] Although withdrawing this ground for the application, Mr. Rusonik’s submissions were premised upon the accuracy of this juror’s recollection and description of her reaction during the polling, characterized as an outward manifestation of her prior lack of resolve in relation to the finding of guilt. The transcript will have to speak for itself. As the record shows, Mr. Holt asked for no relief from the court, made no comment on the polling or the reaction of this juror, and brought no application for relief from this court until the juror’s letter was communicated. Mr. Brissette likewise expressed no reservations about the juror in question following the poll. These facts in and of themselves suggest reason to doubt the accuracy of the juror’s account of her demeanor in the courtroom. In my view, while the conduct of counsel is not conclusive, it does indicate that neither were of the opinion that the juror’s response or demeanor required further inquiry.
[13] But beyond that, the presiding trial judge must be assumed to have an understanding of his or her duty to ensure that there is no doubt about each juror’s agreement with the verdict, and to have executed such duty. This duty was described in R. v. Bryan, 1970 CarswellBC 214 (BC CA), at para. 6, as requiring the trial judge to assure himself that there is no misapprehension in the matter when there is reason to suspect that a verdict announced by the foreperson is not the unanimous decision of the jurors. If there is any indication of a juror’s equivocation, counsel should place their observations on the record at the time, giving the judge an opportunity to satisfy him or herself as to the unanimity of the verdict. Polling the jury is of course one method by which this can be carried out, but the law is clear that the decision to do so is not a legal requirement and remains in the discretion of the trial judge, even when requested, although is usually allowed where doubt as to unanimity exists: Laforet v. The Queen, 1979 CanLII 58 (SCC), [1980] 1 S.C.R. 869, at p. 879. Where the polling occurs, however, the judge is in the best position to assess each juror’s reaction. In R. v. Thomas, 1983 CarswellQue 346 (Que CA), at para. 16, the court stated:
I have already given my view on what I think happened. However, the judge was there and I was not. As Estey J. said in his dissent in Laforet (at p. 13 C.C.C. p. 885 S.C.R.), “the opportunity of the trial Judge to observe the demeanour of the juror is not given to the appellate tribunal”….
[14] Absent some indication on the record that a juror is hesitant or uncertain about the verdict rendered, such as in Jones v. United States, 779 A (2d) 357 (D.C. C.A. 2001) where the court was faced with hesitation from a juror and a request to ask the court a question, surely an accused cannot be permitted to challenge, after the fact, a trial judge's discretion in assessing the response given by jurors when polled. If allowed, an accused could mount a challenge to the validity of the verdict by calling into question the trial judge’s observations and assessment of each juror’s response, effectively forcing the trial judge to become a witness on the application for a mistrial. Any concern on the part of counsel about a juror’s reaction, communicated through body language or facial expression, should be placed on the record by counsel at the time. Once the jury has been dismissed, in my view courts should be extremely hesitant to permit the calling of evidence with respect to a juror’s response to a poll, absent unusual and compelling circumstances.
Issue 1: Use of the Juror’s Letter
[15] I agree with counsel’s joint submission that the court must examine the content of the juror’s letter to rule on this application. I have also ruled that that correspondence is to be sealed. The question remains, however, to what extent the information in it may be used to determine this application.
[16] This first issue raises the common law rule of judicial secrecy, otherwise referred to as Lord Mansfield's Rule. The Rule was defined in Pan as a rule of exclusion, rendering inadmissible those matters internal to the deliberation process, including the effect of anything on a juror’s mind. It does, however, permit the introduction of evidence of “extraneous prejudicial information” and “outside influence”: para. 70.
[17] The Rule exists to preserve the effective functioning of the jury system so that jurors can have full, open and frank discussions without concern that those discussions will be revealed, and to ensure finality of the verdict: Pan, at paras. 38, 50 and 51. The common law rule of judicial secrecy prohibits the court from receiving evidence of jury deliberations for the purpose of impeaching a verdict. “[S]tatements made, opinions expressed, arguments advanced and votes cast by members of the 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”: Pan, at para. 77. The only admissible evidence is facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, which may have tainted the verdict.
[18] The juror's letter does not comment on or raise any facts extrinsic to the deliberation process of the sort that would cause the court concern about whether the jury's verdict was tainted by impermissible influences prior to the verdict being reached. The only potential concern referenced in the letter comes in the opening sentence, in which the juror remarks that the court could improve the experience for jurors by not allowing “the sequestered time to go on for so long”. The juror went on to suggest in the letter that, if a verdict has not been reached by 5:00 p.m., deliberations should be discontinued until the following day. The juror pointed to the length of the deliberations as a basis for feeling pressured to change her mind. Given the jury’s own decision to continue its deliberations after being presented with the option to resume in the morning, this remark cannot affect the validity of the verdict.
[19] Beyond that, the juror’s correspondence focuses on the deliberations in the jury room, and her experience arising from the polling of the jury.
[20] Central to this application, Mr. Rusonik argues that the letter reveals that the verdict did not reflect the unanimous judgment of all jurors, because it infers that the juror in question never found, beyond a reasonable doubt, that the evidence supported a finding of guilt. He argues that her letter can only be accepted as a sincere statement, beyond reproach in its veracity. He submits that no juror would expose herself to potential humiliation by coming forward to confess that she had never reached a belief beyond a reasonable doubt, if it was not true. Ultimately, he submits that despite this juror’s lack of belief going “undetected” at the time of polling, the letter must be taken as undisputed evidence that the juror had always remained undecided on the question of Mr. Brown’s guilt.
[21] These submissions are contradicted by the content of the verdict sheet, the note from the foreperson indicating that the jury had reached a unanimous decision, and the results of the polling. Because of the secrecy of the deliberations, no inquiry may be made into the process by which the verdict was reached, and it is therefore impossible to determine whether the juror’s comments are a re-write of history or an accurate rendition of her lack of conviction at the time. After the fact, we have no way of knowing. As compelling as her misgivings may sound, at this point their origin and basis can never be determined with certainty, and therefore cannot form a reliable basis for setting aside a verdict. As stated in the majority decision rendered by the Ontario Court of Appeal in R. v. Pan, 1999 CanLII 3720 (ON CA), at para. 172:
The verdict would be fragile indeed if the consensus were not crystallized in time but could be revisited by the individual juror who, for whatever reason, had second thoughts on the matter. Even if such revisiting were allowed, there are several reasons why juror disclosures about the deliberation process may not provide a reliable or proper basis to set aside a verdict duly recorded and assented to in open court. The reliability of juror accounts about the deliberation may be tainted by emotion, personality clashes with other jurors, subsequent regret over the verdict or any number of human responses.
[22] This view was endorsed by the Supreme Court in Pan, at para. 75, where the majority stated:
It is not uncommon for jurors to have second thoughts, after the trial is over, as to whether or not they should have delivered the verdict that they did. At that point they may come forward and state that they did not agree with the verdict delivered by the jury, although they expressed their agreement at the time the verdict was delivered. These second thoughts may result from information obtained following the conclusion of the trial, such as exposure to evidence excluded during the course of the trial, or they may arise from a juror's own thought processes. Whatever the origins of these second thoughts, they should fall squarely within the common law rule of judicial secrecy and should not be admissible to impeach the verdict.
[23] Mr. Rusonik argues that this is not a case in which a juror has changed her mind after voting for a verdict, as was the case in R. v. Ferguson, 2006 ABCA 36, 384 A.R. 318 and R. v. Holmes, 2009 CanLII 2914 (ON SC), but rather one in which it has been revealed that the juror was never satisfied that the Crown had met its onus of proof. Instead, as described in her letter, she “caved” due to feeling pressure “to change my not guilty to guilty”. Absent some indication that other jurors were acting inappropriately so as to interfere with this juror’s ability to deliberate freely, of which there was none, it must be stressed that this juror’s thought processes and feelings during the deliberations are not something that anyone should be privy to, due to the jury secrecy rule. Her discomfort with the process is a potentially unavoidable part of the jury process. The British Columbia Court of Appeal stated in R. v. Freebold, 2001 BCCA 205, 152 C.C.C. (3d) 449, at para. 40:
In my judgment the content of the juror’s letter in this case is solely taken up with deliberations and as such bears directly on intrinsic matters covered by the secrecy rules…Jurors have a difficult enough job without running the risk that their comportment in the jury room will become the subject of public scrutiny. Some jurors may be stubborn, overbearing, hyperaggressive, dismissive of others or many other bad things in working towards a decision…but that is a problem inherent in a jury system. It should be remembered that the right to a jury has been constitutionally enshrined in s. 11(f) of the Charter.
[24] It is important to note that my charge to the jury contained the following standard instruction:
During your discussions, do not hesitate to reconsider your own opinions. Change your mind, if you find that you are mistaken. Do not give up your honest beliefs, however, just because others think differently. Do not change your mind only to get the case over with.
[25] Each juror received a copy of the charge before it was delivered and was permitted to keep it in the jury room during deliberations.
[26] In summary, on the basis of Pan, I conclude that the content of this juror’s letter should not be used as the basis for reconsidering the jury's verdict. The juror’s concern about the length of the deliberations should not disturb the ultimate verdict, in the circumstances of this case. The balance of the comments focus on the deliberations with respect to the evidence within the jury room, and the juror’s own thought processes during and since deciding this case, and are therefore not admissible to impeach the verdicts reached.
Issue 2: Does this court have jurisdiction to quash the jury’s verdict?
[27] This is not a case in which clarification of the verdict is required, as was the case in R. v. Head, 1986 CanLII 8 (SCC) and Burke. Rather, it stems from a communication from a juror one week after a clear and unanimous verdict, in which, post-verdict, the juror raises doubts about her certainty.
[28] Burke reaffirms the general rule set out by the Supreme Court's earlier decision in Head, which prohibits changes to a criminal verdict post-discharge, other than a limited and exceptional jurisdiction remaining with the trial judge to recall the jury for the purposes of inquiring into an alleged error, which may result in correction of the recorded verdict. Burke makes clear that this limited residual jurisdiction may only be exercised where the "error" does not require the jury to reconsider its verdict or complete its deliberations with a view to handing down additional verdicts: paras. 52-55. Additional appellate cases include R. v. Henderson, 2004 CanLII 33343 (ON CA) and R. v. Gostick, 1999 CanLII 3125 (ON CA), both cases ruling that the trial judge was functus officio in respect of the jury’s verdict following its recording.
[29] Defence counsel has not requested that the court conduct an inquiry, as it is obvious that such a step would be inappropriate given the passage of time since the delivery of the impugned verdict.
[30] Mr. Rusonik argues that Burke does not limit the trial judge’s discretion to grant a mistrial to only those cases in which the jury’s verdict was misheard. He submits that such discretion should extend to cases such as this, where a verdict was recorded “erroneously”, because the jury was not legally unanimous. The fault in this submission is that it takes us circularly back to the issue of this juror’s deliberations in the jury room, which should not be disclosed other than to expose extrinsic influences, and is premised on the juror’s recounting of her state of mind at the time that she voted for the verdict and was polled. That state of mind is incapable of proof or even examination at the point in the proceeding at which it has been volunteered. To allow a juror’s post-verdict thoughts or reconsiderations to form the basis of a mistrial ruling contravenes the requirement of finality in jury verdicts and would constitute an error of law in light of Burke and Pan.
[31] This case does not involve an error in recording the proper verdict, nor uncertainty about the verdict that the jury intended to render, despite misgivings by a juror communicated after the fact. Accordingly, the general rule articulated in Head and Burke applies, making the trial judge functus officio and therefore without jurisdiction to declare a mistrial.
[32] For the foregoing reasons, the application is dismissed.
HEALEY J.
Released: October 21, 2016