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Criminal - Jury Inquiry. R. v. Gibson
In R. v. Gibson (Ont CA, 2024) the Ontario Court of Appeal considers a criminal appeal, here where an issue was a jury inquiry:[2] The appellant seeks an order under ss. 683(1)(b)(ii) and (3) of the Criminal Code, R.S.C. 1985, c. C-46 that a single juror (hereafter “the juror”) be examined before a judge of the court to determine whether they[1] had a reasonable apprehension of bias at the appellant’s trial.
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[19] The appellant submits that he has provided a sufficient foundation to warrant an examination of the juror to determine whether there was an apprehension of bias. The Crown opposes the motion on the basis that the claim is speculative, and because the examination of the juror would involve an impermissible incursion into the jury secrecy rule.
[20] Two foundational principles are at play when a request is made to examine a juror, whether at trial or on appeal.
[21] First, as with judges, there is a strong presumption of juror impartiality in Canada and a heavy burden on the party seeking to rebut this presumption: see R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18; R. v. Godwin, 2018 ONCA 419, at paras. 12-13; and R. v. Zhou, 2024 ONCA 658, at para. 47. In R. v. Necan, 2024 ONCA 751, Fairburn A.C.J.O. reaffirmed this principle, at para. 58:There exists a deep body of jurisprudence that reflects a strong and well-earned presumption of juror impartiality….This presumption is both a reflection of and a testament to the fact that when 12 citizens are brought together to judge a case, they take their responsibilities seriously and have historically lived up to the trust placed in them. [Citations omitted.]
See also R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 61. [22] The second foundational principle is the sanctity of secrecy in jury deliberations. The secrecy rule promotes open and frank debate among jurors in reaching their verdicts. It furthers the goal of finality in criminal proceedings. The rule also seeks to shelter jurors from harassment, censure, and reprisals: see R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, at paras. 50-52. As Arbour J. wrote in Pan, at para. 53:I am fully satisfied that a considerable measure of secrecy surrounding the deliberations of the jury is essential to the proper functioning of that important institution and that the preceding rationales serve as a useful guide to the boundaries between the competing demands of secrecy and reviewability. See also R. v. Lewis, 2017 ONCA 216, 137 O.R. (3d) 186, at para. 44.
[23] In general, the common law rule, reflected in s. 649 of the Criminal Code, provides that matters that are intrinsic to a jury’s deliberations – such as statements, opinions, arguments and votes cast by jurors, as well as information about a juror’s state of mind – are inadmissible in court proceedings, both at trial and on appeal: see R. v. M.B., 2020 ONCA 84, 387 C.C.C. (3d) 34, at para. 5. Matters that are extrinsic to jury deliberations may be admissible to challenge the jury’s verdict. As Arbour J. explained in Pan, at para. 77:In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield’s rule[2] 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.] [24] Relying on these two broad foundations – the presumption of juror impartiality and the juror secrecy rule – the court in M.B., at para. 8, set out the approach to determining when an order to examine a juror is warranted:The question for our determination on this application is whether the applicant has met his burden of demonstrating that there is “a sufficient basis to consider that a jury was likely exposed to extrinsic influence” or that an obstruction of justice occurred, such that the record should be expanded through further inquiry for the purposes of appeal: R. v. Lewis, 2017 ONCA 216, at para. 45. [25] In Lewis, at para. 44, Pardu J.A. held that: “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 the jury may have been exposed to extrinsic evidence” (emphasis added).
[26] In my view, the appellant has not established a sufficient basis to warrant an examination of the juror. The claim is vague and speculative. There is no credible evidence that the juror had any association with the appellant’s mother before, during or after the trial, that the two had ever met or spoken, that the juror knew who Ms. Gibson was, and if so, that the juror recognized her during the trial. This record leaves the appellant’s claim miles away from establishing the proposition that Ms. Gibson’s role as Chair of the Board influenced the deliberations of the juror. Indeed, the claim is so speculative that it is unclear that, if there were any such influence, whether the impact would have been favourable or unfavourable to the appellant.
[27] The appellant submits that he would only need to ask two questions of the juror on an examination under s. 683 of the Criminal Code – whether they knew Ms. Gibson and, if so, whether it would have influenced their deliberations. But this reverses the effective sequence of events. The appellant must first provide a credible foundation to justify the examination of a juror; he is not entitled to use an unwarranted examination of a juror to create that foundation.
[28] It may be that the professional connection between the juror and Ms. Gibson is an extrinsic and admissible “fact”, as understood in Pan, at para. 77 (reproduced above at para. 23). However, even if this “fact” is properly characterized as extrinsic, it is not a sufficient justification to examine the juror on the issue. Practical difficulties would quickly arise. Assuming for the sake of argument that the juror acknowledged knowing of Ms. Gibson and her role, any further inquiry would inevitably devolve into an impermissible examination concerning matters intrinsic to the deliberation process: see Godwin, at para. 10; and R. v. Ferguson, 2006 ABCA 36, 57 Alta. L.R. (4th) 37, at para. 52. And in the words of Arbour J. in Pan, at para. 46, any further probing of the issue would raise concerns “about the difficulty of reconstructing after the fact, and with hindsight, the integrity of the reasoning process that led to the original decision.” . 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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