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Criminal - Jury Inquiry. R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered a post-verdict defence request to conduct a 'jury inquiry':[213] The appellants brought an application for the trial judge to conduct a post-verdict jury inquiry in order to answer two questions: (1) whether the information collected by the juror was extrinsic to the trial process, and (2) whether any information Juror #14 obtained on his cycling trip was shared with the other jurors during deliberations. The appellants did not seek a mistrial, as it was their position that, as a first step, a jury inquiry should be conducted to create an evidentiary record. I pause to note that, in light of a trial judge’s very limited jurisdiction to grant a mistrial post-verdict, had an inquiry been conducted, it is unlikely that the trial court would have been the appropriate forum to seek a further remedy: see R. v. Henderson (2004), 2004 CanLII 33343 (ON CA), 189 C.C.C. (3d) 447 (Ont. C.A.), at para. 29.
[214] The trial judge dismissed the application, concluding that an inquiry was unnecessary. He found that the evidence of what Juror #14 posted to the Strava app provided a sufficient record for review. He found that the questioning sought by the appellants about whether extrinsic information had an impact on their deliberations[12] went beyond the scope of permitted inquiry by asking about the effect of extrinsic information on the jury’s deliberations: R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344, at para. 59. The trial judge found that, given the “copious evidence” before the jury concerning the physical environs of both locations (photos, videos, diagrams, and maps), there was not a basis to believe that Juror #14 would have learned any additional information beyond what was already properly in evidence before the jury.
[215] The trial judge also considered the case law regarding the very limited jurisdiction of a trial judge to declare a mistrial after a jury verdict, referring to this court’s decision in Henderson. Relying on this court’s decision in R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545 (which he referred to as R. v. Pannu), the trial judge considered whether the extraneous information from Juror #14’s cycling trip, even if assumed to be different from the trial evidence, was information that could be expected to have an effect on the live issues in the trial. He found that it would not. The way the issues were raised at trial, neither Mr. Poyser’s identification of the appellants as the perpetrators, nor the issue of whether, if the jury found that the appellants took part in the murder, their actions were planned and deliberate, was affected by the physical layout of the Pizza Pizza scene or the Scarlettwood scene. He also relied on the significant evidence before the jury about both locations in the form of photos, videos, maps, and diagrams, and the fact that he told the jury in the final instructions not to consider in their deliberations any information not in evidence in the trial and tested by the parties.
[216] The appellants argue that the trial judge erred in declining to conduct a post-verdict inquiry regarding the actions of Juror #14 and the decision was unreasonable in the circumstances. They argue that this court is now left without a proper evidentiary record regarding the conduct of a juror who may have introduced extrinsic material into the jury’s deliberations. The appellants focus their argument on the adequacy of the record to assess the impact, if any, of Juror #14’s cycling trip and do not directly make arguments about the trial judge’s ruling that a mistrial was not warranted.
[217] A trial judge’s decision whether to conduct a jury inquiry is discretionary and subject to considerable deference on appeal: Kum, at para. 49; R. v. Lewis, 2017 ONCA 216, 137 O.R. (3d) 486, at para. 35.
[218] I would not interfere with the trial judge’s decision not to conduct a jury inquiry or his conclusion that the information from the Strava app about Juror #14’s cycling trip was a sufficient record for purposes of review. There was extensive evidence before the jury of both the Pizza Pizza and the Scarlettwood Court scenes in the form of photos, videos, maps, and diagrams. I would not second-guess the trial judge’s assessment that there was not a basis to believe that the visit to the two scenes materially added to the visual representations of the scenes that were before the jury. The jury was correctly instructed to decide the case only on the evidence heard in court.
[219] Further, this was not a case where there is a reasonable possibility that the live issues at trial would be impacted by further detail about the layout of either scene. The case against Lenneil and Shakiyl Shaw turned primarily on the jury’s assessment of Mr. Poyser’s credibility. Although his credibility was vigorously challenged, none of the challenges turned on the layout of the Pizza Pizza or Scarlettwood scenes. The case against Mr. Ali-Nur, in addition to raising Mr. Poyser’s credibility, challenged the reliability of his identification of Mr. Ali-Nur as Cron Dog. However, none of these issues turned on the layout of either the Scarlettwood Court or Pizza Pizza scenes.
[220] Finally, I note that the appellants did not seek to invoke this court’s powers under s. 683 of the Criminal Code to expand the record on appeal. This Court has held that, where an appellant raises a failure to conduct a post-verdict inquiry or challenges the sufficiency of a post-verdict jury inquiry, if there is a sufficient basis to consider that a jury was likely exposed to extrinsic influence, the remedy is to move to expand the record on appeal pursuant to s. 683 of the Criminal Code: Lewis, at para. 45; R. v. Phillips, 2008 ONCA 726, 242 O.A.C. 63, at paras. 46-47; R. v. Hassan, 2013 ONCA 238, 305 O.A.C. 89, at para. 5. The appellants complain that the evidentiary record is inadequate because the trial judge did not conduct a jury inquiry. However, the appellants took no steps to invoke this court’s powers on appeal to seek to fill any alleged gaps in the record.
[221] Before leaving this ground, I would add one comment. The trial judge referred to this court’s powers under s. 683(1) of the Criminal Code to conduct an inquiry on appeal, citing the Hassan and Phillips decisions. To the extent that his reasons could be read as suggesting that a trial judge should consider deferring conducting an inquiry and leaving it to this court on appeal, I would not endorse that approach. If a trial judge has reached the conclusion that an issue raised supports a post-verdict jury inquiry, it is preferable that the trial judge conduct the inquiry so that the evidence is obtained and the record created when the evidence is fresh. The cases cited in the preceding paragraph regarding use of this court’s powers under s. 683 to expand the record in relation to post-verdict jury issues should not be read as suggesting it is preferable that a jury inquiry be deferred to this court. Where there is a sufficient basis to support the need for a jury inquiry, it is preferable that a jury inquiry be conducted in the trial court, at the time the issue is raised. Conducting the inquiry in the trial court is a more efficient use of institutional resources and preserves evidence while it is fresh – before memories fade.
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