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==Deadlocked Juries==
==Deadlocked Juries==
Where the jury is deadlocked the judge may give an exhortation to encourage the jury to make effort to reach an agreement. The judge must be careful and balanced during the exhortation to a deadlocked jury. The jury will likely be frustrated and disgruntled and so must be handled appropriately.<ref>  
Where the jury is deadlocked the judge may give an exhortation to encourage the jury to make effort to reach an agreement. The judge must be careful and balanced during the exhortation to a deadlocked jury. The jury will likely be frustrated and disgruntled and so must be handled appropriately.<ref>  
''R v RMG'', [http://canlii.ca/t/1fr7s 1996 CanLII 176] (SCC), [1996] 3 SCR 362{{perSCC|Cory J}} (7:2){{At|15}}<br>
''R v RMG'', [http://canlii.ca/t/1fr7s 1996 CanLII 176] (SCC), [1996] 3 SCR 362{{perSCC|Cory J}} (7:2){{AtL|1fr7s|15}}<br>
</ref>
</ref>
The exhortation must be phrased carefully so as not to be seen as "coercive" and imposing "extraneous pressures" that remove the freedom of the jurors to deliberate uninfluenced.<ref>
The exhortation must be phrased carefully so as not to be seen as "coercive" and imposing "extraneous pressures" that remove the freedom of the jurors to deliberate uninfluenced.<ref>
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The judge should not do anything that may treat particular jurors as misunderstood or that pits one jurors against the others.<ref>
The judge should not do anything that may treat particular jurors as misunderstood or that pits one jurors against the others.<ref>
''R v Vivian'', [http://canlii.ca/t/frc49 2012 ONCA 324] (CanLII){{perONCA|MacPherson JA}} (3:0) {{at|47}}
''R v Vivian'', [http://canlii.ca/t/frc49 2012 ONCA 324] (CanLII){{perONCA|MacPherson JA}} (3:0) {{atL|frc49|47}}
</ref>  
</ref>  


It is not relevant to examine whether the jurors were affected by any of the instructions of the judge.<ref>
It is not relevant to examine whether the jurors were affected by any of the instructions of the judge.<ref>
{{ibid1|Vivian}}{{at|61}}</ref>
{{ibid1|Vivian}}{{atL|frc49|61}}</ref>


The judge must make it clear to the jury throughout his instructions that they are "not obliged to render a verdict" if they cannot reach a consensus.<ref>
The judge must make it clear to the jury throughout his instructions that they are "not obliged to render a verdict" if they cannot reach a consensus.<ref>
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; Analysis
; Analysis
The test to be applied is "whether there is a possibility that what the trial judge said could have persuaded a juror to go along with the majority notwithstanding that he or she had not been persuaded that guilt had been proven beyond a reasonable doubt".<ref>
The test to be applied is "whether there is a possibility that what the trial judge said could have persuaded a juror to go along with the majority notwithstanding that he or she had not been persuaded that guilt had been proven beyond a reasonable doubt".<ref>
''R v Sims'', [http://canlii.ca/t/23273 1991 CanLII 5756] (BC CA){{perBCCA|Lambert JA}}{{at|19}} (in dissent but adopted on appeal) ("The question is whether there is a possibility that what the trial judge said could have persuaded a juror to go along with the majority notwithstanding that he or she had not been persuaded that guilt had been proven beyond a reasonable doubt.") appealed to ''R v Sims'', [1992] 2 SCR 858, [http://canlii.ca/t/1fs9s 1992 CanLII 77] (SCC){{perSCC|McLachlin J}}{{fix}}
''R v Sims'', [http://canlii.ca/t/23273 1991 CanLII 5756] (BC CA){{perBCCA|Lambert JA}}{{atL|23273|19}} (in dissent but adopted on appeal) ("The question is whether there is a possibility that what the trial judge said could have persuaded a juror to go along with the majority notwithstanding that he or she had not been persuaded that guilt had been proven beyond a reasonable doubt.") appealed to ''R v Sims'', [1992] 2 SCR 858, [http://canlii.ca/t/1fs9s 1992 CanLII 77] (SCC){{perSCC|McLachlin J}}
</ref>
</ref>


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; Examples
; Examples
Suggesting to the jury that they will be sequestered longer if they are unable to reach an agreement is considered coercive.<ref>
Suggesting to the jury that they will be sequestered longer if they are unable to reach an agreement is considered coercive.<ref>
''R v Jack'', [http://canlii.ca/t/1fllj 1996 CanLII 2351] (MB CA){{perMBCA|Scott CJ}}{{fix}}
''R v Jack'', [http://canlii.ca/t/1fllj 1996 CanLII 2351] (MB CA){{perMBCA|Scott CJ}}
</ref>
</ref>


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During the deliberations of a jury, they are permitted to submit questions to the court and counsel.  
During the deliberations of a jury, they are permitted to submit questions to the court and counsel.  
Jury questions indicate some of the problems the jurors are having in deliberating and seek help from the trial judge.<ref>
Jury questions indicate some of the problems the jurors are having in deliberating and seek help from the trial judge.<ref>
''R v MT'', [http://canlii.ca/t/fs52f 2012 ONCA 511] (CanLII){{perONCA|Watt JA}} (3:0){{At|114}} (questions "indicate that that at least some jurors are having a problem with an issue in the case.")<br>
''R v MT'', [http://canlii.ca/t/fs52f 2012 ONCA 511] (CanLII){{perONCA|Watt JA}} (3:0){{AtL|fs52f|114}} (questions "indicate that that at least some jurors are having a problem with an issue in the case.")<br>
''R v W(D)'', [http://canlii.ca/t/1fsm9 1991 CanLII 93] (SCC), [1991] 1 SCR 742{{perSCC|Cory J}} (3:2){{Atps|759-760}}<br>  
''R v W(D)'', [http://canlii.ca/t/1fsm9 1991 CanLII 93] (SCC), [1991] 1 SCR 742{{perSCC|Cory J}} (3:2){{Atps|759-760}}<br>  
''R v WDS'', [http://canlii.ca/t/1frq0 1994 CanLII 76] (SCC), [1994] 3 SCR 521{{perSCC|Cory J}} (5:2){{atps|528-529}}{{ats|14 to 18}}<br>
''R v WDS'', [http://canlii.ca/t/1frq0 1994 CanLII 76] (SCC), [1994] 3 SCR 521{{perSCC|Cory J}} (5:2){{atps|528-529}}{{atsL|1frq0|14| to 18}}<br>
</ref>
</ref>


; Procedure in Considering Questions
; Procedure in Considering Questions
When a judge recevies a question from the jury, they should:<ref>
When a judge receives a question from the jury, they should:<ref>
''R v Dunbar and Logan'' (1982), [http://canlii.ca/t/gb3gd 1982 CanLII 3324] (ON CA){{perONCA|Martin JA}}{{at|34}}
''R v Dunbar and Logan'' (1982), [http://canlii.ca/t/gb3gd 1982 CanLII 3324] (ON CA){{perONCA|Martin JA}}{{atL|gb3gd|34}}
</ref>
</ref>
# read the communication in open court in the presence of all parties;
# read the communication in open court in the presence of all parties;
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; Importance of Answers
; Importance of Answers
Answers to questions carry "an influence far exceeding instructions given".<ref>
Answers to questions carry "an influence far exceeding instructions given".<ref>
''R v Grandine'', [http://canlii.ca/t/h5zqf 2017 ONCA 718] (CanLII){{perONCA|Brown JA}} (3:0){{at|62}}<br>
''R v Grandine'', [http://canlii.ca/t/h5zqf 2017 ONCA 718] (CanLII){{perONCA|Brown JA}} (3:0){{atL|h5zqf|62}}<br>
''R v Naglik'', [http://canlii.ca/t/1fs0h 1993 CanLII 64] (SCC), [1993] 3 SCR 122{{Plurality}}{{atp|139}}<br>
''R v Naglik'', [http://canlii.ca/t/1fs0h 1993 CanLII 64] (SCC), [1993] 3 SCR 122{{Plurality}}{{atp|139}}<br>
{{supra1|WDS}}{{at|16}}<br>
{{supra1|WDS}}{{atL|1frq0|16}}<br>
</ref>
</ref>


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Jury questions must be answered "clearly, correctly and comprehensively".<ref>
Jury questions must be answered "clearly, correctly and comprehensively".<ref>
{{supra1|W(D)}}{{atps|759-760}}<br>
{{supra1|W(D)}}{{atps|759-760}}<br>
{{supra1|S(WD)}}{{atps|528, 530}} (SCR) - it is judge's obligation to answer "fully" and "properly" with the assistance of counsel<br>
{{supra1|WDS}}{{atps|528, 530}} (SCR) - it is judge's obligation to answer "fully" and "properly" with the assistance of counsel<br>
''R v Layton'', [http://canlii.ca/t/24qq0 2009 SCC 36] (CanLII), [2009] 2 SCR 540{{perSCC|Rothstein J}} (5:2){{at|20}}<br>
''R v Layton'', [http://canlii.ca/t/24qq0 2009 SCC 36] (CanLII), [2009] 2 SCR 540{{perSCC|Rothstein J}} (5:2){{atL|24qq0|20}}<br>
{{supra1|Grandine}}{{at|62}}<br>
{{supra1|Grandine}}{{atL|h5zqf|62}}<br>
''R v Stubbs'', [http://canlii.ca/t/g01lb 2013 ONCA 514] (CanLII){{perONCA|Watt JA}} (3:0){{at|95}}<br>
''R v Stubbs'', [http://canlii.ca/t/g01lb 2013 ONCA 514] (CanLII){{perONCA|Watt JA}} (3:0){{atL|g01lb|95}}<br>
</ref>
</ref>


A proper answer should improve the jury’s “understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.”<ref>
A proper answer should improve the jury’s “understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.”<ref>
{{supra1|PJB}}{{at|44}}<br>
{{CanLIIR|PJB|ftj2j|2012 ONCA 730}}{{perONCA|Watt JA}}{{atL|ftj2j|44}}<br>
</ref>
</ref>


However, the response should be timely as well. Delay without instructions the jury to cease deliberations where the question reflects a misunderstanding is open to risk of corrupting the verdict.<ref>
However, the response should be timely as well. Delay without instructions the jury to cease deliberations where the question reflects a misunderstanding is open to risk of corrupting the verdict.<ref>
''R v Ellis'', [http://canlii.ca/t/fvkr6 2013 ONCA 9] (CanLII){{perONCA|Watt JA}} (3:0){{at|42}}<br>
''R v Ellis'', [http://canlii.ca/t/fvkr6 2013 ONCA 9] (CanLII){{perONCA|Watt JA}} (3:0){{atL|fvkr6|42}}<br>
</ref>
</ref>


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; Improper Answers
; Improper Answers
An answer should never discourage further questions on any subject.<ref>
An answer should never discourage further questions on any subject.<ref>
''R v Layton'', [2009] 2 SCR 540, [http://canlii.ca/t/24qq0 2009 SCC 36] (CanLII){{perSCC|Rothstein J}} (5:2){{at|33}}</ref>
''R v Layton'', [2009] 2 SCR 540, [http://canlii.ca/t/24qq0 2009 SCC 36] (CanLII){{perSCC|Rothstein J}} (5:2){{atL|24qq0|33}}</ref>


; Specific Problems
; Specific Problems
In answering a question regarding the [[Standard of Proof|standard of proof of "beyond a reasonable doubt"]], there is nothing per se wrong with simply reciting the standard anew.<ref>
In answering a question regarding the [[Standard of Proof|standard of proof of "beyond a reasonable doubt"]], there is nothing per se wrong with simply reciting the standard anew.<ref>
{{ibid1|Layton}}{{ats|29, 32}}</ref>
{{ibid1|Layton}}{{atsL|24qq0|29|, {{atsL-np|24qq0|32|}}</ref>


It is an inadequate answer to respond "yes" to the jury question that I asked "do we consider all of the evidence for all charges?".<ref>
It is an inadequate answer to respond "yes" to the jury question that I asked "do we consider all of the evidence for all charges?".<ref>
{{supra1|Melvin}}{{ats|52 to 53}}
{{CanLIIR|Melvin|gs0t1|2016 NSCA 52}}{{perNSCA|Farrar JA}}{{atsL|gs0t1|52| to 53}}
</ref>
</ref>


; Answer Need Not Conform to Theory of Parties
; Answer Need Not Conform to Theory of Parties
A question may find it necessary to "instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel".<ref>
A question may find it necessary to "instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel".<ref>
''R v Ranger'', [http://canlii.ca/t/5xwr 2003 CanLII 32900] (ONCA){{perONCA|Charron JA}} (3:0){{at|135}}<br>
''R v Ranger'', [http://canlii.ca/t/5xwr 2003 CanLII 32900] (ONCA){{perONCA|Charron JA}} (3:0){{atL|5xwr|135}}<br>
{{supra1|Grandine}}{{at|63}}<br>
{{supra1|Grandine}}{{atL|h5zqf|63}}<br>
</ref>
</ref>
This is permissible because the jury is not bound by the opposing theories of Crown and defence.<ref>
This is permissible because the jury is not bound by the opposing theories of Crown and defence.<ref>
{{supra1|Grandine}}{{at|63}}<br>
{{supra1|Grandine}}{{atL|h5zqf|63}}<br>
</ref> However, limitations exist on this flexibility for the purpose of preserving trial fairness.<ref>
</ref>  
{{supra1|Grandine}}{{at|63}}<br>
However, limitations exist on this flexibility for the purpose of preserving trial fairness.<ref>
''R v Largie'', [http://canlii.ca/t/2c14p 2010 ONCA 548] (CanLII){{perONCA|Watt JA}} (3:0){{at|161}}<br>
{{supra1|Grandine}}{{atL|h5zqf|63}}<br>
''R v Largie'', [http://canlii.ca/t/2c14p 2010 ONCA 548] (CanLII){{perONCA|Watt JA}} (3:0){{atL|2c14p|161}}<br>
</ref>
</ref>


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''R v Sit'' (1989) 47 CCC (3d) 45 (ONCA), [http://canlii.ca/t/gbmxf 1989 CanLII 7194] (ON CA){{perONCA|Finlayson JA}} (2:1){{Atps|57-58}}<br>
''R v Sit'' (1989) 47 CCC (3d) 45 (ONCA), [http://canlii.ca/t/gbmxf 1989 CanLII 7194] (ON CA){{perONCA|Finlayson JA}} (2:1){{Atps|57-58}}<br>
see also ''R v Ellis'', [http://canlii.ca/t/fvkr6 2013 ONCA 9] (CanLII){{perONCA|Watt JA}} (3:0)</ref>
see also ''R v Ellis'', [http://canlii.ca/t/fvkr6 2013 ONCA 9] (CanLII){{perONCA|Watt JA}} (3:0)</ref>
However, should the question reveal a legal misapprehension, the judge should give a correction instruction and give an opportunity to reconsider its verdict.<Ref>
{{ibid1|Ellis}}
</ref>


A jury may withdraw a question simply by announcing it is ready to give a verdict.<ref>
A jury may withdraw a question simply by announcing it is ready to give a verdict.<ref>
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It may be recommended that once the jury is ready despite not having the question answered, that the court canvas both counsel and the jury about whether the question should still be answered.<ref>
It may be recommended that once the jury is ready despite not having the question answered, that the court canvas both counsel and the jury about whether the question should still be answered.<ref>
''R v Jones'', [http://canlii.ca/t/fn197 2011 ONCA 584] (CanLII){{perONCA|Laskin JA}} (3:0){{ats|55, 56}}</ref>
''R v Jones'', [http://canlii.ca/t/fn197 2011 ONCA 584] (CanLII){{perONCA|Laskin JA}} (3:0){{atsL|fn197|55|, 56}}</ref>


{{reflist|2}}
{{reflist|2}}
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An error in recharge cannot be forgiven simply because the original charge was correct.<ref>
An error in recharge cannot be forgiven simply because the original charge was correct.<ref>
{{ibid1|S(WD)}}{{atps|530-531}}
{{ibid1|WDS}}{{atps|530-531}}
</ref>  
</ref>  
In fact, the more time that passes between the original charge and recharge, the greater imperative that the recharge be "correct and comprehensive".<ref>
In fact, the more time that passes between the original charge and recharge, the greater imperative that the recharge be "correct and comprehensive".<ref>
{{ibid1|S(WD)}}{{atp|531}}</ref>
{{ibid1|WDS}}{{atp|531}}</ref>
 
{{reflist|2}}
 
==Internet Research by Jurors==
A jury verdict must be made using only information and evidence they receive in the course of the trial.<Ref>
e.g. ''Patterson v Peladeau'', [http://canlii.ca/t/j5ckf 2020 ONCA 137 (CanLII)]{{TheCourtONCA}}{{atL|j5ckf|22}}<Br>
</ref>
 
A jury verdict may be impeached where it is established there is a "reasonable possibility" that the extrinsic information the jury accessed had an effect on the verdict.<ref>
{{ibid1|Patterson}}{{atL|j5ckf|30}}<Br>
</ref>
 
This assessment is based on the examination of the record and involves a contextual case-by-case analysis.<ref>
{{ibid1|Patterson}} at para 30<Br>
{{CanLIIRP|Pannu|glhgg|2015 ONCA 677 (CanLII)|, 127 OR (3d) 545}}{{atsL|glhgg|71| to 74}}<Br>
{{CanLIIRP|Farinacci|gjc5m|2015 ONCA 392 (CanLII)|, 335 OAC 316}}{{atL|gjc5m|26}}<br>
{{CanLIIRP|Pan; R v Sawyer|5203|2001 SCC 42 (CanLII)|[2001] 2 SCR 344}}{{atL|5203|59}}<br>
</ref>
 
; Discovery Prior to Verdict
Where a trial judge discovers the jury accessing extrinsic information prior to the verdict, the judge should conduct an inquiry into identifying the nature and extent of information acquired and then make an assessment of the jury members to determine the suitability of continuing the trial.<ref>
{{supra1|Patterson}}{{atL|j5ckf|31}}<Br>
</ref>
 
; Appellate Review
The reviewing court should defer to the conclusions of the trial judge absent legal error, misapprehension of evidence, or patent unreasonableness.<ref>
{{supra1|Pannu}}{{atsL|glhgg|71|to 72}}
</ref>


{{reflist|2}}
{{reflist|2}}