REASONS FOR DECISION

[1] The defendant-applicant, Saad Hassan seeks an order admitting the contents of the anonymous letters addressed to me, as the trial judge, but received by (his former) counsel in or about July 21, 2017. Further, Saad Hassan requests that I conduct an inquiry of the jury and administrative court constables in accordance with the case law detailed below, akin to the powers granted to the Court of Appeal under Section 683 of the Criminal Code.

[2] Finally, in the alternative, Saad Hassan requests that I order a mistrial. He was found guilty of the following offences arising from events on June 19, 2013:

robbery contrary to Section 344 of the Criminal Code;
use of an imitation firearm while committing robbery contrary to Section 85 of the Criminal Code;
attempted robbery of a second individual contrary to Section 344 of the Criminal Code;
use of an imitation firearm while committing the attempted robbery contrary to Section 85(2)(a) of the Criminal Code; and
threatening bodily harm in committing the attempted robbery contrary to Section 264.1(1)(a) of the Criminal Code.

[3] Saad Hassan proceeded to trial with a jury on the above five counts commencing May 13, 2017 until May 25, 2017. The jury deliberated from approximately 10:35 am on May 25, 2017 until 4:50 pm that day returning verdicts of guilty on each of the five counts. While not formally or individually polled, the local registrar noted all jurors were in agreement with the verdicts when collectively asked. The jurors were thanked for their efforts and discharged by me. The matter was adjourned to August 18, 2017 for preparation of a Pre-Sentence Report and submissions on sentence.

[4] In or about July 21, 2017, defence counsel received and forwarded to myself and the Crown the above described letter addressed to him and a second copy received at his office addressed to “The Hasan Family”. Given it was entitled “Dear Judge” and sought to raise concerns about the process and result, I inquired if any copy was received directly at the Court House. I have been advised by staff that this has not occurred.

[5] The day before August 18, 2017, I received a Notice of Application with a supporting affidavit of defence counsel seeking to be removed as solicitor of record. I marked the anonymous letters as Exhibits “I” and “J” in this matter. Given that there had not been a breakdown in the solicitor-client relationship between Saad Hassan and his counsel and that Saad Hassan wished to be represented, I adjourned the matter to September 12, 2017 to permit new counsel to be available. In addition, I sealed Exhibits “I” and “J” as the letters contained references to jury deliberations, a possible breach of Section 649 of the Criminal Code. I was also advised by defence counsel that Toronto Police Services had been contacted and opened an investigation. As a result, I ordered Exhibits “I” and “J” to be available to them in aid of their investigation.

[6] On September 12, 2017, Saad Hassan’s new counsel appeared, although not yet formally retained, and the matter was adjourned to October 10, 2017 to set a date for this application which proceeded as scheduled on November 2, 2017.

[7] In advance of this application, I received written Agreed Facts which counsel and I agreed should be dated October 25, 2017. The Agreed Facts outlined some of what is above adding that the Toronto Police Services investigation consisted of a request that the original defence counsel attend at the police station for an interview which was declined. Most importantly, for this application, the Agreed Facts states (at paragraph 8) that no juror had been interviewed and no other investigation into an offence under Section 139(2) of the Criminal Code had been commenced.

Position of the Parties

[8] I understand the basis for the relief sought by Saad Hassan to be that portions of the statements of the anonymous juror are extrinsic to jury deliberations and that this anonymous juror was unable to complete his or her duty due to illness or physical restrictions. Further, the content extrinsic to jury deliberations raises this same problem with other jurors. The second ground for me to intercede in the process are the statements that the foreperson and others expressed bias and an unwillingness to set aside that bias outside their deliberations.

[9] As a result, the letter purportedly contains admissible evidence which brings into question the validity of the verdict. The appropriate remedy is to declare a mistrial, or alternatively, to conduct an inquiry of the members of the jury and the court staff that interacted with them about the validity of the letter, its truthfulness, any possible health conditions that may have affected each juror’s ability to perform their task. Further, did any expressions of bias outside the deliberation process occur which influenced any juror?

[10] The Crown relies on the common law jury secrecy rule known as Lord Mansfield’s rule and that the anonymous letter clearly contains statements of internal jury deliberations which are inadmissible and cannot be disclosed. The facts at hand do not permit any additional step to be taken by me. This is not a situation falling within the limited exceptions to make further inquiries or to alter the result. This is not a situation where evidence about the case from outside the courtroom seeped into the jury room or that the verdict intended by the jury was not accurately communicated to the court and the parties.

Analysis

[11] I agree with the parties position that it is within my jurisdiction to recall the jury and the court constables to conduct an inquiry at common law if, for no other reason, then to prepare a full record for the Court of Appeal. This is described by Justice Major in R. v. Burke, 2002 SCC 55 (at paragraph 23). It is contained in the third of four possible outcomes to a jury trial as a “narrow post-discharge jurisdiction” where it is found the jury did “not render the verdict it intended”. It is also stated by Justice MacPherson in R. v. Phillips, 2008 ONCA 726 (at paragraph 47). He described this option where court constables had observed a juror following a verdict and after being discharged that she was visibility upset. This was then discussed with the juror who reported being threatened by other jurors. However, Justice MacPherson goes on to state the same result could be achieved by use of Section 683(1)(d) of the Criminal Code.

[12] The content of the anonymous letter falls within two categories. Regarding the first category, about information how the jury reached its verdict, it is my view this falls squarely within the reasoning of the Supreme Court of Canada in R. v. Sawyer, [2011] 2 SCC 42 (at paragraph 75) with, for me, emphasis on the last sentence:

“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 might arise from a juror’s own thought processes. Whatever the origins of the second thoughts, they should fall squarely within the common law rule of jury secrecy and should not be admissible to impeach the verdict.”

[13] Regarding the second category, and events not related to jury deliberations and our jury system, it is my view, none of that information, while admissible, assists Saad Hassan in obtaining the relief sought. It is merely observations of a citizen who has had the privilege and responsibility to perform his or her civic duty as part of the administration of justice in our country’s constitutional democracy. I am reinforced in this conclusion by the anonymity of the letter along with the stated refusal to “ever reveal myself if asked by the court”. This significantly reduces the reliability or merit of the statements contained therein.

[14] In R. v. Henderson, 2004 CanLII 33343 (ONCA), the Court of Appeal reviewed a trial judge’s authority to declare a mistrial and noted the narrow exception where “the mistake” becomes known after the jury is discharged. The judge may recall the jury to determine whether there has been a reasonable apprehension of bias. If such has occurred, the trial judge may order a mistrial to avoid a miscarriage of justice. In my view, the facts at hand do not adequately support the apprehension of bias submitted here. If the jury were to be recalled, each juror would initially be asked if they wrote this letter. At least eleven of them would honestly and truthfully answer no. It is possible the twelfth juror could do the same. It is also possible this twelfth juror would do the same given he or she has advised (in the sixth sentence), “So I am writing anonymously and I am not going to ever reveal myself if asked to by the court.” Thus, there is an insufficient basis to conduct such an inquiry, particularly when weighed against the normal rule that the verdict is otherwise sacrosanct and the trial judge is functus. Conducting an inquiry in the circumstances before me would go beyond the “limited circumstances” and “rare residual jurisdiction” described by Justice Major in paragraph 52 of R. v. Burke, supra.

[15] In considering the submissions made on behalf of Saad Hassan, I return to the reasons of the Supreme Court of Canada in R. v. Burke, supra which canvasses the jurisdiction of a trial judge in a criminal jury matter to possibly correct an error in the verdict after the discharge of the jury.

[16] Justice Major (at paragraph 23), sets out the four possible outcomes. A statement that guided me in these reasons was in the third possible outcome. The trial judge can only recall a discharged jury for unintended errors and cannot recall them “to make any changes to the verdict that require further jury deliberation”. With regard to the possibility or concept that the jury did not render the verdict it intended, I rely on the fourth and last possible outcome described in paragraph 23 in R. v. Burke, supra, in which the jury in that matter was recalled on three occasions over the five days (at paragraph 32) following the unintended verdict. This is described by Justice Major as a “lengthy period of time” (at paragraph 24) for the jury to have been dispersed into the community. This leads me to wonder how to describe the 57 days that lapsed between the discharge of the jury in this matter and receipt of the letter on or about July 21, 2017 which has now been extended to almost five months since receipt of the letter until now given the circumstances described above. It can only be an irreparable length of time.

[17] More recently, in 2015, the Court of Appeal evaluated this issue in R. v. Pannu, 2015 ONCA 677 where there was physical evidence of a juror having brought information into the jury room that was subsequently discovered by a court constable after the verdict was rendered. The trial judge conducted an inquiry, concluded no miscarriage of justice had occurred, maintained the guilty verdict and proceeded to sentence each defendant. Again, the situation was discovered within an hour of the verdict (at paragraph 28) and, although not specifically indicated, the clear inference is that the decision to conduct the inquiry was made within a few days.

[18] In my view, the situation before me is quite different. The delay is too lengthy and the anonymous nature of the letter with the promise not to admit writing it makes it too unreliable to warrant my conducting an inquiry. I am reinforced in this conclusion by the process which was followed, including:

my opening remarks to the jury panel, and to raise any concerns about health or personal hardship with me if called upon;
the affirmation or oath taken by each juror to perform their duties as jurors;
my opening remarks to them which described the irrelevance of prejudice and sympathy;
the presumption they will follow the instructions given to them in the charge; and
my stated availability to answer any questions any of them might have and to report any misconduct to me.

[19] What is important for my purposes is that the trial judge retains the ability to order a mistrial to prevent a miscarriage of justice. In my view, no miscarriage of justice has occurred. The jury heard evidence from both victims which supported each element of each charge. They weighed that evidence against that of Saad Hassan who testified and gave an alternate version of events. I agree, as stated (at paragraph 53) of the reasons in R. v. Burke, supra, that I do not have jurisdiction to inquire into an alleged error “when the alleged error is of the type such that its correction would involve the jury reconsidering its verdict or completing its deliberations”.

[20] I am reinforced in this conclusion by the powers granted to the Court of Appeal in Section 683 of the Criminal Code to conduct such an inquiry if they see fit and as occurred in R. v. Zvolensky, 2017 ONCA 273.

[21] The charge I provided to the jury and what was provided to them in writing, marked as an exhibit, and thus available to them in their jury room was based on the Manual of Criminal Jury Instructions (Criminal) prepared by Justice Watt with minor variations made by me as required. It contained the usual instructions on the presumption of innocence, the burden of proof, what is reasonable doubt, the need to consider only the evidence and to do so impartially without prejudice or fear. It also expressly stated to not change one’s mind to get the case over with or to agree only for the purpose of returning a unanimous verdict.

Conclusion

[22] The application for a mistrial is dismissed. The application for me to conduct an inquiry of the jury and court constables in control of them is also dismissed.

[23] I am prepared to allow the contents of the letters to continue to be available for the use of each party. They were marked as lettered exhibits and were part of this application as well as part of post-verdict submissions and shall remain as such. This makes them part of the court record and available for future reference by either party.

Mr. Justice G. Dow

Released: December 19, 2017

CITATION: R. v. Hassan, 2017 ONSC 5085

COURT FILE NO.: CR-16-10000-466-00000-0000

DATE: 20171219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SAAD HASSAN

REASONS FOR JUDGMENT

Mr. Justice G. Dow

Released: December 19, 2017

R. v. Hassan, 2017 ONSC 5085

Case Summary

REASONS FOR DECISION

Position of the Parties

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 1