Court File and Parties
COURT FILE NO.: CR-20-30000477-0000
DATE: 20220517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PETER WIGHT, O’NEIL THOMPSON and FANTASIA HOO-HING
Accused
Julie Battersby and Anna Gilmer, Counsel for the Crown
Lydia Riva and Leah Shafran, Counsel for Peter Wight
Monte MacGregor and Amanda Warth, Counsel for O’Neil Thompson
Steven Stauffer and Kateryna Zadorozhnya, Counsel for Fantasia Hoo-Hing
HEARD: April 9, 2022
M.A. CODE J.
Reasons for judgement relating to eight notes or questions from jurors during deliberations
A. OVERVIEW
[1] The three accused, Peter Wight, O’Neil Thompson, and Fantasia Hoo-Hing, were jointly charged with the murder of Edwin McGowan. Wight and Thompson were alleged to be co-principals who beat McGowan to death while McGowan was confined in his own apartment. Hoo-Hing was alleged to be an aider or abettor who assisted or encouraged the co-principals in various ways. I have previously summarized the facts of the case and the main issues in Reasons for Judgement that relate to the admissibility of evidence concerning Thompson’s extrinsic discreditable conduct and disposition. See: R. v. Wight et al, 2022 ONSC 2808. I adopt that summary of the facts and issues for purposes of these Reasons for Judgement which relate to certain issues that arose while the jury was deliberating.
[2] The trial in this case was lengthy. It also took place during the pandemic. It began with a number of pre-trial motions on February 14, 2022, including a lengthy motion relating to statements made by Thompson upon his arrest. At the end of that motion, I excluded the statements made by Thompson due to a relatively serious violation of s. 10(b) of the Charter. See: R. v. Wight et al, 2022 ONSC 1432.
[3] All three accused were in custody. At the end of the pre-trial motions, jury selection was delayed for a week because one of the accused had contact with another remand prisoner who had tested positive for Covid-19.
[4] On March 7, 2022, the trial commenced with jury selection. The parties all agreed, and I ordered, that 14 jurors should be selected because of the anticipated length of the trial and because of the ongoing pandemic. Strict measures were taken in the court room to protect against the spread of Covid-19. Nevertheless, two jurors contracted Covid-19 and they were discharged during the course of the trial. It proceeded with 12 jurors. There were eight lawyers in court throughout the in-person trial and one of the lawyers contracted Covid-19 mid-trial. He was fully vaccinated and only a few days were lost while he isolated and recovered.
[5] The lawyers made numerous responsible admissions in relation to issues that were not realistically in dispute. As a result, the Crown was able to call a fairly long and complex body of evidence in three weeks. On May 28, 2022, the Crown closed its case.
[6] On March 29 and 30, 2022, Ms. Riva called a defence on behalf of Wight, including his own testimony in which he incriminated Thompson and diminished his own role in the homicide. Wight had pleaded guilty to manslaughter on arraignment and he focused his defence narrowly on the issue of intoxication and whether he had the requisite intent for murder. Thompson called no defence. On March 31 and April 1, 2022, Hoo-Hing testified in her own defence. She admitted various potential acts of aiding or abetting, such as letting the alleged co-principals Thompson and Wight into McGowan’s apartment building shortly before the homicide, advising Thompson of McGowan’s unit number on the 15th floor of the building, and making an arrangement with Thompson to attend with her at McGowan’s apartment in order to collect a $1000 debt that McGowan allegedly owed her for sexual services. Her defence was focused narrowly on the issue of whether she had the requisite knowledge and intention relating to both manslaughter and murder at the time when she carried out the potential acts of aiding or abetting.
[7] The four parties completed their closing addresses to the jury on April 4 and 5, 2022. I charged the jury for three days on April 5th to 8th, 2022. The jury retired to begin deliberations at about 2:00 p.m. on Friday, April 8, 2022. They deliberated until about 8:00 p.m. that evening, before retiring to a hotel. They resumed deliberations on Saturday, April 9, 2022 at about 8:30 a.m. I received eight questions or notes from the jury on that second day of their deliberations. After hearing submissions from the parties, I made rulings on each occasion as to how to respond to the jury’s questions, with short oral reasons delivered at the time while the jury continued to deliberate. Given this context, the rulings were necessarily made expeditiously on the basis of my own and counsel’s understanding of the law, without taking time to conduct thorough legal research and provide written Reasons.
[8] These are my written Reasons for Judgement in relation to the oral rulings and answers to the notes or questions from the jury on April 9, 2022. At the end of these rulings and answers, the jury convicted Thompson of first degree murder, convicted Hoo-Hing of second degree murder, and convicted Wight of manslaughter.
B. FACTS
(i) The first two notes or questions from the jury
[9] As previously noted, the facts and issues arising from the evidence heard at trial have been summarized in my earlier Reasons for Judgement on motions relating to Thompson’s extrinsic discreditable conduct and disposition. I will only summarize the facts relating to the jury’s notes and questions on April 9, 2022 in these Reasons.
[10] The first two notes or questions from the jury were received some time after 11:00 a.m. on the morning of Saturday, April 9, 2022. At this point, the jury had been deliberating for about eight and a half hours, as explained above. The first note was written by the foreperson of the jury. It stated that the jury had reached unanimous verdicts in relation to two of the three accused. In relation to the third accused, the note advised that the jury was unanimous in relation to a “lesser charge” but that they were deadlocked in relation to a “greater charge”. The foreperson stated that lengthy discussions and repeated votes had not changed the division amongst the jurors and that both sides were “adamant” in their positions. The foreperson essentially asked for guidance concerning this deadlock that had arisen in relation to one accused and one available verdict.
[11] I regarded this first note and question from the jury as relatively easy to answer. For a trial of this length and relative complexity, I was of the view that the jury had made excellent progress and that I could accept the three verdicts on which they were unanimous. However, they had not been deliberating for too long. In these circumstances, I was inclined to give an “exhortation” to the jury, urging them to continue their efforts but without compromising their oaths as jurors. All counsel were substantially in agreement that this was the appropriate response. I read the foreperson’s note into the record, had it marked as an exhibit, and gave a standard “exhortation” taken largely from Watt’s Manual of Criminal Jury Instructions, 2005 Thompson Canada, at pp. 882-3, together with some adaptations and suggestions I have made in previous trials that have sometimes helped to resolve a deadlock. There were no objections to these instructions. See: R. v. R.M.G. (1996), 110 C.C.C. (3d) 26 (S.C.C.).
[12] The second note or question from the jury was more difficult. It was not written by the foreperson but was written by one of the jurors, apparently on behalf of that juror alone and/or an unstated number of other jurors who were having the same difficulty. It asked a question that related only to the accused Wight. In summary, it stated a hypothetical as follows: if the juror or jurors was/were satisfied as to Thompson’s liability for second degree murder and as to the requisite mental element in relation to Wight, could they consider Wight’s liability in relation to second degree murder on the basis of aiding or abetting or s. 21(2) of the Criminal Code. I had not left aiding or abetting or s. 21(2) as a basis for liability in relation to Wight and neither the Crown nor defence counsel had suggested, in their jury addresses, that aiding or abetting or s. 21(2) were available bases for liability in relation to Wight. The jury only knew about the law relating to aiding or abetting and s. 21(2) because they had been left as bases for liability in relation to both Thompson and Hoo-Hing, especially in relation to Hoo-Hing where this was the main issue.
[13] After reading this second note or question into the record, marking it as an exhibit, and hearing submissions (mainly from Ms. Battersby and Ms. Riva, who were the main parties affected by this particular question), I answered the question. In substance, I instructed the jury that liability as a principal or co-principal was the only basis that had been left in relation to Wight, given that he had admitted the conduct element in the law of homicide for a principal or co-principal when he testified that he struck some of the blows to McGowan’s head that cumulatively caused death. I further instructed the jury that they did not have to accept Wight’s admission that he committed this conduct element for liability as a principal or co-principal, and that it might be open to them to set his admission aside and make a finding of some lesser act that could potentially come within the definition of aiding or abetting (or s. 21(2) liability). However, in this regard, I reminded the jury that the Crown had never advanced such an alternative theory of liability in relation to Wight, they had not heard any argument from the parties on the matter, and they had not received any instructions from me on the matter. In these circumstances, I concluded these further instructions by stating that I could not usefully answer this second question unless the juror/jurors who were asking the question reframed it as a hypothetical which made it clear that they understood Wight’s admission of the conduct element for co-principal liability but, assuming rejection of that admission, the juror/jurors then went on to ask whether they could find as a fact some specified lesser act of aiding or abetting. At that point, I advised, I would be able to instruct the juror/jurors asking that further question as to whether the hypothetical lesser act could or could not amount to aiding or abetting and whether fairness to the parties would allow them to consider aiding or abetting in relation to Wight. This latter point, relating to trial fairness when a new and alternate theory of liability is advanced at this late stage of the trial, had been the main concern expressed by Ms. Riva in her submissions on behalf of Wight. See: R. v. Ranger (2003), 178 C.C.C. (3d) 375 at paras. 125-162 (Ont. C.A.); R. v. Largie (2010), 2010 ONCA 548, 258 C.C.C. (3d) 297 at paras. 135-166 (Ont. C.A.); R. v. Lai, 2022 ONCA 344 at paras. 13-16. Once again, there were no objections to these instructions in response to the second note or question from the jury.
[14] I should note that there was no editing of these first two questions from the jury. They were fully read into the record and were marked as unsealed exhibits because, in my view, they did not improperly disclose deliberations in violation of the “jury secrecy rule” (which will be discussed below). However, one potential inference from the above two notes or questions was that the jury had reached unanimous verdicts of some kind in relation to Thompson and Hoo-Hing, that they had reached a unanimous verdict in relation to a “lesser included offence” for Wight, but that they were deadlocked in relation to a “greater offence” for Wight. I had used this terminology in the Charge to the Jury, describing manslaughter as a “lesser included offence” within the “greater offence” of murder, and describing second degree murder as a “lesser included offence” within the “greater offence” of first degree murder. I had instructed the jury to begin with the “lesser included offence” of manslaughter, before proceeding to the “greater offence” of second degree murder. The final written Charge to the Jury was marked as a lettered exhibit and was provided to the jury during their deliberations. As noted previously, Wight had pleaded guilty to manslaughter on arraignment and called a defence that focused narrowly on whether he had the requisite intent for murder.
(ii) The next six questions or notes from the jury
[15] It was some time after 1:00 p.m. on Saturday, April 9, 2022, when I completed the above instructions in relation to the jury’s first two questions or notes. The jury resumed their deliberations, broke for lunch at some point, and then resumed further deliberations after lunch.
[16] At about 4:00 p.m., as I recall, I received the third note from the jury. Like the second note, it was not written by the foreperson. It did not ask a question and it disclosed the vote that the jury had arrived at in relation to the third accused. As a result, I had to seal and edit this note, to remove any express references to the vote relating to the third accused. In my view, this aspect of the third note disclosed deliberations and thus violated the “jury secrecy rule”, which I will discuss in the next section of these Reasons.
[17] I will attempt to use language in these Reasons that is similar to the editing that I adopted, when reading this third note into the record in open court, and before sealing it and marking it as a sealed exhibit. I stated that the note was written by a single juror or jurors, who were in a dissenting minority. I also stated that the majority was a “strong majority”. Like the first note I had received in the morning from the foreperson, this third note advised that the jury had reached unanimous verdicts in relation to two accused and a unanimous verdict in relation to the third accused for a “lesser included offence”. However, the note advised that the jury was still not unanimous in relation to the “greater offence” for this third accused. The note was quite lengthy, extending for some three pages. It explained that the minority had listened carefully to fellow jurors who were in the substantial majority, had considered their views, had also listened carefully to and had followed my instructions, and had listened to and had followed my recent “exhortation”. In spite of these efforts, the minority juror/jurors was firmly of the view that there was “much more than reasonable doubt” in relation to the third accused’s liability for the “greater offence”. The author of this note advised that the minority would not and could not change its vote, while still remaining true to the juror’s oath. In conclusion, the minority urged me to accept the unanimous verdicts that had been reached in relation to all three accused and to discharge the jury who had all worked diligently in this lengthy trial.
[18] At this point, I instructed my Deputy to ask the jury foreperson for the Verdict Sheet. Given that this third note had not been written by the foreperson, I wanted to confirm that it was accurate in asserting that the jury had reached unanimous verdicts in relation to all three accused, even though disagreement remained in relation to one accused’s liability for a “greater offence”. My Deputy brought the sealed Verdict Sheet to my chambers, I read it, and it confirmed that verdicts had been reached in relation to all three accused (the same three verdicts that were to be delivered in open court later that afternoon). I instructed my Deputy to return the sealed Verdict Sheet to the jury foreperson and to reconvene court. See: R. v. Pan (1993), 134 C.C.C. (3d) 1 at para. 231 (Ont. C.A.), aff’d (2001), 2001 SCC 42, 155 C.C.C. (3d) 97 at paras. 28 and 116-121 (S.C.C.). I should note, in this regard, that my own practice and that of a number of my colleagues, is to always review the Verdict Sheet when told that the jury has reached a verdict. This practice developed amongst some members of the Court in order to prevent what happened in R. v. Burke (2002), 2002 SCC 55, 164 C.C.C. (3d) 385 (S.C.C.), where the verdict mistakenly heard and recorded in open court differed from the jury’s true verdict.
[19] Once court was reconvened, I proceeded from my chambers to the court room. I intended to read the third note into the record, with editing as set out above, and ask counsel for submissions. My inclination as to the appropriate response was to advise counsel that the jury had reached verdicts, to then take the three verdicts from the foreperson (assuming the jury still agreed on the verdicts set out on the Verdict Sheet), and to discharge the jury without giving a second “exhortation”, all subject to first hearing counsel’s submissions. However, as I was about to enter the court room, my Deputy received a text message from the Jury Constable advising that some kind of issue had arisen in the jury room, that some jurors appeared to be upset, and that they were advising the Jury Constable that they were writing further notes to the trial judge.
[20] At this point, I decided not to enter the court room. I returned to my chambers and awaited the anticipated further notes from the jury. Over the next approximately ten minutes, five more notes were brought to me. They were written by five members of the majority. They disclosed the identity of the juror/jurors in the minority, disclosed the vote relating to the third accused, and implicitly disclosed the identity of this third accused. The notes also attacked the reasoning of the minority juror/jurors in various ways. In my view, all these aspects of the five further notes violated the “jury secrecy rule”, as will be discussed in the next section of these Reasons.
[21] I was able to reach an experienced colleague by telephone, in order to discuss the above six notes I had received from various jurors. I then had my Deputy, once again, reconvene court. I read edited versions of the six further notes into the record and marked them as sealed exhibits. I also advised counsel in open court of the above sequence of events, including that I had confirmed that the foreperson had entered verdicts on the Verdict Sheet for all three accused. The edited version of the note from the minority juror/jurors was read into the record, in substance as set out above. An edited version of the five notes from the majority was also read in. I advised counsel, in substance, that these notes made various attacks on the reasoning and deliberating process of the minority. In particular, all five notes argued that the minority was not listening to them and was not considering their views. Two of the notes stated that they thought the minority was racist because the minority was unduly favourable to one accused in relation to the “greater offence”. The notes also stated that the minority juror/jurors may be relying on matters that had never been put to the jury.
[22] I asked for submissions from counsel. They all asked for time to confer and to speak to their clients, which I allowed. All counsel then made submissions. They agreed that there was no basis to discharge the juror/jurors who were in the minority. The lengthy note from the minority juror/jurors was rational and coherent and simply asserted that there was reasonable doubt in relation to one accused for a “greater offence”. There was also substantial agreement from all counsel that any inquiry, based on the notes from five members of the majority, would inevitably be an inquiry into jury deliberations and would, therefore, violate the “jury secrecy rule”. Any such inquiry would involve questioning all twelve jurors about the reasoning of the minority and would then require findings about the appropriateness of that reasoning, as a basis for reasonable doubt in relation to the third accused and the “greater offence”.
[23] By the end of submissions, and after various colloquies between counsel and the Court, it could readily be inferred that Wight was the one accused where the jury remained deadlocked in relation to a “greater offence”. Not surprisingly, Ms. Riva submitted that I had to accept the three unanimous verdicts reached by the jury. Ms. Battersby also agreed, on behalf of the Crown, that the verdicts should be accepted. They both opposed the remedy of a mistrial. On behalf of Thompson and Hoo-Hing, where the jury appeared to have had no difficulty reaching unanimous verdicts, Mr. MacGregor and Mr. Stauffer submitted somewhat faintly, that there could be a basis for some kind of inquiry and/or for the remedy of a mistrial. In this regard, they raised the issue of possible reverse discrimination or bias, that is, if the minority was unduly favourable to Wight on the basis of his race, then it could be inferred that the minority was also improperly biased against Thompson and Hoo-Hing on the basis of their race.
[24] I ruled that I would accept the three unanimous verdicts that the jury had apparently reached, for reasons that will be explained below. I had the jury brought back into court and summarized the six notes that I had received. I then gave oral reasons for my decision not to hold an inquiry into the complaints made by five majority jurors against the minority juror/jurors. I stressed the importance of the “jury secrecy rule”. I concluded by stating that the jury foreperson would be asked if the jury had reached verdicts in relation to the three accused. Madam Registrar then took the verdicts which the jury foreperson read from the Verdict Sheet as follows: Wight was found guilty of manslaughter; Thompson was found guilty of first degree murder; and Hoo-Hing was found guilty of second degree murder.
[25] Mr. MacGregor and Mr. Stauffer asked that the jury be polled in relation to their clients. All twelve jurors confirmed their agreement with the verdicts read out by the foreperson in relation to Thompson and Hoo-Hing. Neither Ms. Battersby nor Ms. Riva asked that the jury be polled in relation to the verdict read out by the foreperson in relation to Wight.
[26] I thanked the jury for their long and dedicated service to the administration of justice and discharged them. I remanded the accused for sentencing.
C. ANALYSIS
[27] The first two questions from the jury on the morning of April 9, 2022 were relatively straightforward. They were answered, as summarized above, with counsel’s assistance and without objection. There is no need for any further analysis in relation to these first two questions. However, it should be noted that the first question provided important context for the six much more difficult questions that were to follow in the afternoon. That first question was written by the jury foreperson. It stated that the jury had reached unanimous verdicts in relation to two of the three accused. It also stated that they were unanimous in relation to the third accused but only for a “lesser included offence”. They were deadlocked in relation to a “greater offence” for that third accused. This division in the jury, concerning one available verdict for one accused, eventually led to the six further questions from the jury during the late afternoon of April 9, 2022.
[28] In my view, the six further questions from the jury all engaged the common law “jury secrecy rule”, and its statutory enforcement power found in s. 649 of the Criminal Code. The Supreme Court’s authoritative modern pronouncement about that rule is set out in R. v. Pan; R. v. Sawyer (2001), 2001 SCC 42, 155 C.C.C. (3d) 97 at para. 77 (S.C.C.). Arbour J. gave the unanimous judgement of the full Court and stated:
In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield’s rule is as follows: 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].
[29] In my view, certain parts of the third note or question violated the “jury secrecy rule”. As a result, I edited those parts, read it into the record in edited form, and then sealed it. It will be recalled that this note was not written by the foreperson. It was written by one or more [edited] jurors and it disclosed the [edited] vote that the jury had arrived at in relation to the third accused’s guilt or innocence for the “greater offence”. This information falls squarely within the above prohibition set out in Pan and I did not read those parts of the note in open court. The rest of the note, in my view, could be disclosed and needed to be disclosed so that counsel could make useful submissions. As summarized above, it confirmed what had been stated in the earlier first note from the foreperson, namely, that the jury had reached unanimous verdicts in relation to two accused, and also in relation to the third accused for a “lesser included offence”. The new information in this third note was that the jury remained divided and deadlocked in relation to the third accused’s liability for the “greater offence”. The note went on at some length to express the dissenting minority’s determination to maintain their position on this issue because there was “more than reasonable doubt” in relation to the “greater offence”. The note was well written and logical and did not reveal any misapprehensions about the duties of jurors. The note urged me to accept the three unanimous verdicts in relation to the three accused and to then discharge the jury from deliberating any further.
[30] The five further notes or questions that followed, from individual jurors who were in the majority, violated the “jury secrecy rule” much more significantly than the above note from the minority. These further notes were entirely about “statements made, opinions expressed, arguments advanced, and votes cast by members of the jury in the course of their deliberations”, as prohibited by the rule in Pan. There was no suggestion in any of the five notes from the majority that the jury had been “exposed to some information or influence from outside the jury”. In other words, there was no suggestion that “extrinsic information” had been received, which would have justified an inquiry pursuant to the recognized exception to the “jury secrecy rule”. See: R. v. Pan; R. v. Sawyer, supra at paras. 55 and 59.
[31] Although I sealed these five further notes written by some of the majority jurors, and did not read them into the record, I was of the view that counsel were entitled to a judicial summary of the sealed notes, so that they could make useful submissions (by analogy to the practise that developed in s. 8 Charter litigation after R. v. Garofoli (1990), 60 C.C.C. (3d) 161 at 195 (S.C.C.)). I note that the Court of Appeal, in its post-Pan case law, has adopted this practice by providing an edited summary of notes or affidavits from jurors that violate the “jury secrecy rule”. See, e.g. R. v. M.B. (2020), 2020 ONCA 84, 387 C.C.C. (3d) 34 at paras. 2, 10-11, and 12-13 (Ont. C.A.); R. v. Lewis (2017), 352 C.C.C. (3d) 457 at paras. 20, 30-31, and 39-40 (Ont. C.A.). I summarized the five notes from five members of the majority, as set out above, stating that the notes attacked the reasoning and deliberating process of the minority in various ways. In particular, all five notes alleged that the minority did not listen to or engage with the majority, two notes alleged that the minority may be racist, and it was also suggested that the minority may be relying on defences that were never put. During the course of submissions, I occasionally expanded on the edited summary of the five notes, in order to further assist counsel concerning the allegation of “racism” made in two of the notes.
[32] These kinds of allegations have been squarely addressed in the case law. In particular, one juror made allegations of racism against other jurors in R. v. Pan; R. v. Sawyer, supra at paras. 17-19 and 123-126. The Ontario Court of Appeal held that these matters were covered by the “jury secrecy rule” and the Supreme Court unanimously agreed. On behalf of the Court, Arbour J. stated the following:
Sawyer seeks to adduce as fresh evidence an affidavit setting out the substance of a telephone conversation he had with one of the jurors after the verdict. The gist of the conversation was that the juror told him that the verdict was “eating her inside” and that she had been subjected to undue pressure in coming to the verdict and, in particular, was told by other members of the jury that they would have to be sequestered for at least three weeks before a hung jury could be declared. The juror also allegedly told the appellant that racial slurs were made by some jurors in the course of the deliberations. The majority of the Court of Appeal concluded, in my view correctly, that this evidence fell within the scope of the common law rule of jury secrecy and was inadmissible on appeal. Accordingly, the Court of Appeal was correct in rejecting Sawyer’s application to adduce fresh evidence.
Before this Court, Sawyer focussed his submissions on the alleged racist comments made by members of the jury. He submits that these comments show that the jury relied on impermissible considerations in arriving at its verdict and that the jury secrecy rules should not apply in such circumstances.
Applying the common law of jury secrecy as discussed above, such evidence is clearly inadmissible. Delving into the accuracy of such allegations would intrude into the secrecy of the deliberation process as it requires an inquiry into the “statements made, opinions expressed or votes cast” by members of the jury. In the words of the Law Reform Commission of Canada, with which I agree, to permit an inquiry into the reasons why jurors voted as they did “could lead to endless and unresolvable disputes” (Working Paper 27, supra, at p. 150). The only situation in which the substance of such allegations should be explored is where they raise concerns serious enough to warrant an investigation under s. 139(2) of the Criminal Code, which was not pursued in the present appeal.
It is important to note that this is not one of those borderline cases where the proposed evidence could conceivably be admissible on a broad interpretation of the common law rule of admissibility as defined above. If indeed racist comments were made in the jury room by one or more of the jurors, these would fall squarely within the scope of the common law exclusionary rule. Such comments are clearly intrinsic to the jury’s deliberations and do not relate to any contact with information or persons outside of the jury. [Emphasis added].
Also see R. v. Dowholis (2016), 2016 ONCA 801, 341 C.C.C. (3d) 443 at paras. 73-76 (Ont. C.A.), in which Doherty J.A. stated that the possible impact on jury deliberations of one juror’s out of court homophobic comments (in a case where the accused was homosexual), was a matter falling within the “jury secrecy rule”. This issue was not addressed by the majority. Benotto J.A. (Tulloch J.A. concurring) analysed the issue as one involving reasonable apprehension of bias. In the present case, there were no alleged statements made by the minority juror/jurors outside of the jury’s deliberations, that could give rise to a reasonable apprehension of bias. As a result, this issue was never raised.
[33] The other more general attacks in the five notes from the majority, on the reasoning and conduct of the minority during deliberations, have also been addressed repeatedly in the case law. The usual way in which this issue has arisen is where a minority juror complains that the majority was abusive or had applied undue pressure on the minority. The present case is the obverse of that situation as it involves some of the majority jurors expressing concerns that the minority was not listening to and engaging with them and had become stubborn and unyielding to the majority’s arguments. The Ontario Court of Appeal recently addressed this issue, after reviewing the leading authorities, in R. v. Lewis, supra at paras. 16-20 and 38-44:
Ms. S. filed an affidavit by the juror to the effect that the juror had been coerced and bullied by the other jurors during deliberations. Although when polled the juror had expressed agreement with the verdict, and despite participating in making a parole eligibility recommendation, the juror swore in her affidavit this was all a result of being intimidated, indicating "I was a weak and fragile individual who did not have the strength to withstand the aggression, the bullying and the hostility in the closed off jury room." The juror mentioned feeling pressured to agree so that the jurors could go home to their families.
In Danis v. Saumure, [1956] S.C.R. 403, Kerwin C.J. wrote, at p. 406 that "[s]tatements or affidavits by any member of a jury as to their deliberations or intentions on the matter to be adjudicated upon are never receivable."
Other jurisdictions have concluded that this kind of evidence is inadmissible. In R. v. Frebold, 2001 BCCA 205, 87 B.C.L.R. (3d) 221 (B.C.C.A.), a juror wrote a letter to the trial judge complaining that they "felt bullied into the guilty verdict and regrets joining in that verdict": para. 29. The juror complained that the other jurors made up their minds right away and were "impatient and aggressive, even verbally abusive at times with those who were undecided and wanted to review the evidence carefully": para. 29. The British Columbia Court of Appeal concluded that the allegations were intrinsic to the deliberation process and inadmissible. Donald J.A. wrote, at para. 40:
The letter also engages each of the three policies supporting the secrecy rule. Assuming the letter to be true, the dynamics of the process as described were hardly edifying, but judges cannot monitor juries for good manners and polite discourse. 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, despite the directions of the trial judge to listen carefully to the views of others in the jury room, 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.
Similarly, in R. v. Ferguson, 2006 ABCA 36, 384 A.R. 318 (Alta. C.A.), a juror wrote a letter to the trial judge to say that "[their] decision did not reflect [their] true feelings" and blamed pressure by other jurors for their agreement in court to the verdict: para. 13. The Alberta Court of Appeal found these were matters intrinsic to the jury deliberation process and inadmissible. O'Brien J.A. stated at para. 46 the three rationales to jury secrecy rule outlined in Pan; Sawyer: (1) the promotion of full and frank debate by the jurors free from potential extrinsic pressures; (2) the assurance of finality and the authority of a verdict; and (3) the protection of jurors from repercussions. O'Brien J.A. concluded, at para. 52:
In the end, an inquiry into the matters disclosed by the juror in her letter would necessarily invite an examination into the inner workings of the deliberative process and would necessarily require disclosure of what went on within the confines of the jury room.
In the case at hand, the trial judge did not err in declining to inquire further into the jury's deliberative process as the appellant submits. The tenuous nature of the evidence advanced as possibly suggesting that the jury was exposed to extrinsic evidence, and the substantial violations of the juror secrecy rule embodied in the affidavit, must be weighed against the importance of the secrecy of jury deliberations. For the trial judge to have enlarged the inquiry would have necessarily meant examining other jurors, as questioning only the juror who was the author of the affidavit would be unlikely to produce a balanced view of what went on in the jury room. This would have been a substantial intrusion on the other jurors who had already made an enormous contribution to their community by serving as jurors. The need for stable and final jury verdicts means that there should be an inquiry only where there is a credible basis to conclude that a jury may have been exposed to extrinsic evidence. [Emphasis added].
Also see: R. v. M.B., supra; R. v. Frebold (2001), 152 C.C.C. (3d) 449 (B.C.C.A.); R. v. Perras (1974), 18 C.C.C (2d) 47 (Sask. C.A.).
[34] In the present case, it was significant that all counsel agreed that there was no basis to discharge the dissenting juror/jurors, pursuant to s. 644 of the Criminal Code. The note from that juror/jurors was rational, it indicated a proper understanding of the juror/jurors’ duties, and it simply insisted that there was reasonable doubt in relation to the third accused’s liability for the “greater offence”. In order for the Court to conduct a s. 644 inquiry and make findings about the five majority jurors’ allegations of improper reasoning and deliberating by the minority juror/jurors, would have required all jurors to be examined about the deliberations, in violation of the “jury secrecy rule” and s. 649. See: R. v. Pan; R. v. Sawyer, supra at paras. 94-97; R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.); R. v. Kum (2015), 2015 ONCA 36, 320 C.C.C. (3d) 190 (Ont. C.A.). The latter case is particularly instructive in this regard. In Kum, a majority of ten jurors made allegations of impropriety against a minority of two jurors. One juror in the minority was alleged to be unduly favouring the black accused, on the basis of race, somewhat like the allegation of undue favouritism towards the white accused in the present case. The trial judge conducted an extensive inquiry of all the jurors, pursuant to s. 644, before discharging the two dissenting jurors. The remaining ten jurors proceeded to convict the accused. Feldman J.A. (Strathy C.J.O. and Watt J.A. concurring) held that the trial judge erred in conducting a s. 644 inquiry, in these particular circumstances. The Court stated the following, which applies equally to the present case, about such an inquiry (at paras. 47 and 60-64):
[28] [C]ases involving internal strife amongst jurors pose particularly problematic issues, and must be dealt with in a careful and sensitive fashion…. It is imperative that neither the court, in addressing the situation, nor the jury, in responding to it, violates the rule preserving the confidentiality of jury deliberations. However, adherence to this cardinal principle constrains the court’s ability to make inquiries about the internal strife. In addition, the court must be alert to the possibility that the internal strife in question is merely reflective of an inability on the part of the jury to agree, as opposed to an inability to deliberate. There is always the potential that the request to eliminate the strife issue is merely an attempt by a majority of jurors to cast off a dissenting minority opinion. Finally, the court must be conscious of the danger that the entire jury may be tainted by the internal strife – not just the particular juror or jurors who are subject to the inquiry – and its ability to deliberate compromised, thus impairing the integrity of the jury deliberation process.
With respect to the trial judge, in this case, the effect of the extensive questioning of the jurors about the conduct of the two impugned members was to intrude upon the jury’s secret deliberation process.
The inquiry required the jurors to disclose statements made by other jurors and views expressed in the course of deliberations. The inquiry also asked jurors to give their own opinion about other jurors’ ability to fairly decide the case.
The intended purpose of the inquiry was to determine whether the two impugned jurors could faithfully discharge their duty to render a true verdict based on the evidence, or whether they were instead determined to act on sympathy, prejudice or bias, matters extrinsic to the record. However, unless the jurors made direct declarations of such a determination, which they did not, the inquiry necessarily required an improper parsing of a juror’s thought and reasoning process.
In particular, the jurors should not have been asked to opine on their fellow jurors’ subjective motivations in the deliberation process and ability to decide the case fairly. As Arbour J. observed in Pan, at para. 61, jury members are expected to bring their entire life’s experience to their deliberations and to apply it to the decision-making process. Chief Justice McLachlin also discussed this principle in detail in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 43.
Furthermore, as Nordheimer J. stated in Cioppa, jurors may develop views of the evidence as the case progresses, including a negative view of the accused or of any witness, such as a police witness. This is not inconsistent with jurors’ duties as long as they remain open to listen to the views and approaches of others, and to consider them along with their own views before reaching a conclusion. In the end, jurors are not precluded from applying their life experiences when assessing credibility, or the likelihood of a conclusion to be drawn from circumstantial evidence.
The secrecy and sanctity of the jury deliberation process is intended to allow and encourage the free expression of ideas and concerns based on the evidence and on the life experience of the jurors. [Emphasis added].
[35] Although there was no suggestion in the present case that the Court should conduct a s. 644 inquiry, like the one conducted by the trial judge in Kum, it was suggested somewhat faintly on behalf of Thompson and Hoo-Hing that the Court could declare a mistrial. The basis proffered for this remedy was the possibility that the minority was unduly lenient in relation to the white accused’s liability for the “greater offence” and, therefore, could also have been unduly harsh and discriminatory in relation to the two black accused’s liability for the “greater offence”. The Court of Appeal recently described the remedy of a mistrial in the following terms in R. v. P.D.C. (2021), 2021 ONCA 134, 401 C.C.C. (3d) 406 at para. 39 (Ont. C.A.):
A trial judge’s broad power to manage the trial process includes a discretion to grant what is a remedy of last resort – a mistrial. A mistrial is to be granted only “where there is a real danger that trial fairness has been compromised” and “in order to avoid miscarriages of justice”. Given that the trial judge is in the best position to determine these matters, a decision about a mistrial is entitled to significant deference on appeal: R. v. Khan, [2001] 3 S.C.R. 832 at para. 52; R. v. G.C., 2018 ONCA 392, 146 W.C.B. (2d) 332 at paras. 2-5.
Also see: R. v. J.H., 2020 ONCA 165 at paras. 61 and 78; R. v. Gager and Smelie, 2020 ONCA 274 at para. 91.
[36] The two notes from two members of the majority, suggesting that racism may be playing a role in the reasoning of the minority, were stated in conclusory terms. They were based solely on the premise that the minority had readily agreed with the majority about the guilt of the two black accused for a “greater offence” but had not agreed with the majority about the guilt of the white accused for a “greater offence”. Given the very different cases against the three accused, this was hardly a persuasive basis for declaring a mistrial as “a remedy of last resort … in order to avoid miscarriages of justice”, as explained in R. v. P.D.C., supra. At a minimum, some further inquiry would have been required in order to test the conclusory allegations of the two majority jurors, if the remedy of a mistrial was to be seriously pursued. Counsel for Thompson and Hoo-Hing were both in substantial agreement with the Court that such an inquiry would violate the “jury secrecy rule”. In my view, any inquiry into the suggested basis for a mistrial would have involved all the same difficulties explained in Kum in relation to a s. 644 inquiry. I should also note, in relation to this issue, that the jury in the present case was diverse in age, gender, and ethnicity. It included a number of visible minorities, including two black jurors. The jurors had all been challenged for cause, on the basis of race, and had been repeatedly instructed about the need to guard against racially biased reasoning.
[37] For all the above reasons, I was satisfied that there was no proper basis to either discharge the minority juror/jurors or to proceed with an inquiry into the conduct or reasoning process of the minority, without violating the “jury secrecy rule”. I had already given the jury one exhortation in the late morning, they had resumed their deliberations for a number of hours, it was now late afternoon on the second day of deliberations and they remained firmly deadlocked in relation to the third accused’s liability for the “greater offence”. I had confirmed the accuracy of the recent note asserting that the jury had, in fact, reached unanimous verdicts in relation to all three accused. In all these circumstances, I decided to accept the jury’s three verdicts, to not exhort them any further, and to discharge them from any further deliberations in relation to the third accused and the “greater offence”.
D. CONCLUSION
[38] The above reasons explain my analysis of the issues that arose from eight notes or questions that I received from the jury during their second day of deliberations in this lengthy murder trial.
M.A. Code J.
Released: May 17, 2022.
COURT FILE NO.: CR-20-30000477-0000
DATE: 20220517
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PETER WIGHT, O’NEIL THOMPSON and FANTASIA HOO-HING
Accused
REASONS FOR JUDGEMENT relating to eight notes or questions from jurors during deliberations
M.A. Code J.
Released: May 17, 2022