Jury Deliberations: Difference between revisions

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[[fr:Délibérations_du_jury]]
{{Currency2|January|2021}}
{{HeaderJuries}}
{{HeaderJuries}}
==General Principles==
==General Principles==
{{seealso|Jury Instructions}}
{{seealso|Jury Instructions}}
Juries deliberate every day that they are "retired" to make a decision the case.<ref>
see {{CanLIIRP|Baillie|23277|1991 CanLII 5760 (BC CA)|66 CCC (3d) 274}}{{perBCCA-H|Taggart JA}}<br>
[{{CCCSec|654}} s. 654]<br>
</ref>
This also permits them to seek the assistance of the court in tasks such as reading back evidence.<ref>
see {{ibid1|Baillie}}<br>
</ref>
While the jury is deliberating they must not separate.<ref>
see s. 647(1) ("The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.")
</ref>
An officer of the court must keep charge of the jury while together to ensure they do not communicate with anyone outside of the jury without the judge's consent.<ref>
see s. 647(2) ("Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.")
</ref>
A jury is entitled to receive any type of aid that “assists them in dealing with the evidence reasonably, intelligently and expeditiously.” <ref>
See {{CanLIIRP|Bengert|23lwp|1980 CanLII 321 (BCCA)|[1980] BCJ No 721}}{{TheCourtBCCA}}{{AtL|23lwp|160}} (BCCA)</ref>
; Transcripts Given to Jury
It is acceptable to provide a jury copies of transcripts of witnesses evidence.<Ref>
{{CanLIIRP|Quashie|1l3dd|2005 CanLII 23208 (ON CA)|198 CCC (3d) 337}}{{AtsL|1l3dd|46| to 48}}
</ref>
It is not appropriate to insist that the jury get transcripts of closing address of both sides when the jury only asked for transcript of one side only.<Ref>
{{CanLIIRP|Ferguson|2000 CanLII 5658 (ON CA)|142 CCC (3d) 353}}{{perONCA|Laskin JA}} (dissent but upheld at 2001 SCC 6) at para. 95 ("insisting that the jury be given a copy of the defence’s closing address when they did not ask for it, is … an affront to their common sense".)
</ref>
; Providing a S. 715.1 Video Statement to Jury
There is some ability for the jury to receive a copy of a video statement without replay of the cross-examination.<ref>
{{CanLIIRP|Noftall|1gblh|2004 CanLII 19785 (ON CA)|181 CCC (3d) 470}}{{perONCA|Laskin JA}}
</ref>
; Slideshows
A jury may take copies of a slideshow presented in closing by counsel where it is useful and reliable.<ref>
{{CanLIIRx|Pan|gfm84|2014 ONSC 6055 (CanLII)}}{{perONSC|Boswell J}}<br>
see also [[Real Evidence]]
</ref>
{{Reflist|2}}


==Deadlocked Juries==
==Deadlocked Juries==
Where the jury is "deadlocked" and further deliberation would be "useless" the judge has the discretion to discharge the jury and impanel a new jury.
{{quotation2|
; Disagreement of jury
653 (1) Where the judge is satisfied that the jury is unable to agree on its verdict and that further detention of the jury would be useless, he may in his discretion discharge that jury and direct a new jury to be impaneled during the sittings of the court, or may adjourn the trial on such terms as justice may require.
<br>
; Discretion not reviewable
(2) A discretion that is exercised under subsection (1) {{AnnSec6|653(1)}} by a judge is not reviewable.
<br>
R.S., c. C-34, s. 580.
{{Annotation}}
|{{CCCSec2|653}}
|{{NoteUp|653|1|2}}
}}
; Exhortation by Judge
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>
{{CanLIIRP|RMG|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>
''R v Littlejohn'', [http://canlii.ca/t/hv0nf 1978 CanLII 2326] (ON CA), 41 CCC (2d) 161{{perONCA|Martin JA}}{{atp|168}} ("It is well established that in exhorting a jury to endeavour to reach agreement, the trial Judge must avoid language which is coercive, and which constitutes an interference with the right of the jury to deliberate in complete freedom uninfluenced by extraneous pressures.")<br>
{{CanLIIRP|Littlejohn|hv0nf|1978 CanLII 2326 (ON CA)|41 CCC (2d) 161}}{{perONCA-H|Martin JA}}{{atp|168}} ("It is well established that in exhorting a jury to endeavour to reach agreement, the trial Judge must avoid language which is coercive, and which constitutes an interference with the right of the jury to deliberate in complete freedom uninfluenced by extraneous pressures.")<br>
</ref>
</ref>


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}}
{{CanLIIRP|Vivian|frc49|2012 ONCA 324 (CanLII)|290 CCC (3d) 73}}{{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>
See ''R v Chahal'', [http://canlii.ca/t/21xxs 2008 BCCA 529] (CanLII){{perBCCA|Smith JA}} (3:0)
See {{CanLIIRP|Chahal|21xxs|2008 BCCA 529 (CanLII)|240 CCC (3d) 363}}{{perBCCA|Smith JA}} (3:0)
</ref>
 
When considering the applicability of a defence it is not necessary for the jury to be in agreement about which elements cause them to reject the defence.<ref>
{{CanLIIRP|Dagenais|ftqq4|2012 SKCA 103 (CanLII)|399 Sask R 271}}{{perSKCA|Richards JA}}{{atL|ftqq4|32}}<br>
</ref>
 
It is impermissible for the judge to suggest that a single juror was in some way wrong in their views on the law or the outcome.<ref>
{{CanLIIRP|Vivian|frc49|2012 ONCA 324 (CanLII)|290 CCC (3d) 73}}{{perONCA|MacPherson JA}}
</ref>
</ref>


; 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}}
{{CanLIIRP|Sims|23273|1991 CanLII 5756 (BC CA)|64 CCC (3d) 403}}{{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 {{CanLIIRP|Sims|1fs9s|1992 CanLII 77 (SCC)|[1992] 2 SCR 858}}{{perSCC-H|McLachlin J}}
</ref>
</ref>


Line 34: Line 101:
; 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}}
{{CanLIIRP|Jack|1fllj|1996 CanLII 2351 (MB CA)|131 WAC 84}}{{perMBCA|Scott CJ}}
</ref>
</ref>


Line 40: Line 107:


==Jury Questions==
==Jury Questions==
During the deliberations of a jury, they are permitted to submit questions to the court and counsel.
* [[Jury Questions]]
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 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>
</ref>


; Procedure in Considering Questions
==Recharge of Jury==
When a judge recevies a question from the jury, they should:<ref>
The answer may result in a "recharge" of the jury.  These recharges "must be correct and comprehensive no matter how exemplary the original charge may have been."<ref>
''R v Dunbar and Logan'' (1982), [http://canlii.ca/t/gb3gd 1982 CanLII 3324] (ON CA){{perONCA|Martin JA}}{{at|34}}
{{CanLIIRP|S(WD)|1frq0|1994 CanLII 76 (SCC)|[1994] 3 SCR 521}}{{perSCC|Cory J}} (5:2){{Atps|530-531}}</ref>
</ref>
# read the communication in open court in the presence of all parties;
# give counsel an opportunity to make submissions in open court prior to dealing with the question;
# answer the question for the jury in open court in the presence of all parties.


; Importance of Answers
An error in recharge cannot be forgiven simply because the original charge was correct.<ref>
Answers to questions carry "an influence far exceeding instructions given".<ref>
{{ibid1|WDS}}{{atps|530-531}}
''R v Grandine'', [http://canlii.ca/t/h5zqf 2017 ONCA 718] (CanLII){{perONCA|Brown JA}} (3:0){{at|62}}<br>
</ref>  
''R v Naglik'', [http://canlii.ca/t/1fs0h 1993 CanLII 64] (SCC), [1993] 3 SCR 122{{Plurality}}{{atp|139}}<br>
In fact, the more time that passes between the original charge and recharge, the greater imperative that the recharge be "correct and comprehensive."<ref>
{{supra1|WDS}}{{at|16}}<br>
{{ibid1|WDS}}{{atp|531}}</ref>
</ref>


; Unclear Question
{{reflist|2}}
Where a jury question is unclear, the judge should seek clarification before attempting to provide an answer.<ref>
''R v Shannon'', [http://canlii.ca/t/fltfr 2011 BCCA 270] (CanLII){{perBCCA|Finch JA}} (3:0)</ref>


; Requirements of Answer
==Internet Research by Jurors==
Jury questions must be answered "clearly, correctly and comprehensively".<ref>
A jury verdict must be made using only information and evidence they receive in the course of the trial.<Ref>
{{supra1|W(D)}}{{atps|759-760}}<br>
e.g. {{CanLIIRxC|Patterson v Peladeau|j5ckf|2020 ONCA 137 (CanLII)}}{{TheCourtONCA}}{{atL|j5ckf|22}}<br>
{{supra1|S(WD)}}{{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>
{{supra1|Grandine}}{{at|62}}<br>
''R v Stubbs'', [http://canlii.ca/t/g01lb 2013 ONCA 514] (CanLII){{perONCA|Watt JA}} (3:0){{at|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 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>
{{supra1|PJB}}{{at|44}}<br>
{{ibid1|Patterson}}{{atL|j5ckf|30}}<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>
This assessment is based on the examination of the record and involves a contextual case-by-case analysis.<ref>
''R v Ellis'', [http://canlii.ca/t/fvkr6 2013 ONCA 9] (CanLII){{perONCA|Watt JA}} (3:0){{at|42}}<br>
{{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>
</ref>


In responding to a jury question, it is often advisable that the judge invite the jury to return with further questions if the response does not assist.<ref>
; Discovery Prior to Verdict
''R v Layton'', [http://canlii.ca/t/217bw 2008 MBCA 118] (CanLII){{perMBCA|Hamilton JA}}
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>
</ref>  
{{supra1|Patterson}}{{atL|j5ckf|31}}<br>
</ref>


; Mode of Communication with Jury
; Appellate Review
A judge should not communicate with the jury by sending notes with unsolicited information without the input on counsel.<ref>
The reviewing court should defer to the conclusions of the trial judge absent legal error, misapprehension of evidence, or patent unreasonableness.<ref>
''R v Edwards'', [http://canlii.ca/t/1clsl 2002 CanLII 41587] (ON CA){{TheCourtONCA}} (3:0)
{{supra1|Pannu}}{{atsL|glhgg|71|to 72}}
</ref>
</ref>


; Effects of Errors
{{reflist|2}}
Any errors in a response to a jury cannot be remedied simply by referring back to the correctness of original charge.<ref>
{{supra1|S(WD)}}{{atps|530 to 531}} (SCR)</ref>


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


; Specific Problems
Juries can render a verdict any day of the week. The fact that it is a Sunday or a Holiday does not affect the trial process.<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>
see s. 654
{{ibid1|Layton}}{{ats|29, 32}}</ref>
</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>
{{Reflist|2}}
{{supra1|Melvin}}{{ats|52 to 53}}
===Inconsistent Verdict===
A jury gives an inconsistent verdict when it finds the accused guilty and not guilty for the same conduct.<Ref>
{{CanLIIRx|RV|jdpb6|2021 SCC 10 (CanLII)}}<!--no SCR citation-->{{perSCC-H|Moldaver J}} (7:2){{atL|jdpb6|1}}
</ref>
</ref>


; Answer Need Not Conform to Theory of Parties
An inconsistent verdict can be set aside where it is found to be unreasonable.<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>
{{ibid1|RV}}{{atL|jdpb6|28}}
''R v Ranger'', [http://canlii.ca/t/5xwr 2003 CanLII 32900] (ONCA){{perONCA|Charron JA}} (3:0){{at|135}}<br>
{{supra1|Grandine}}{{at|63}}<br>
</ref>
</ref>
This is permissible because the jury is not bound by the opposing theories of Crown and defence.<ref>
 
{{supra1|Grandine}}{{at|63}}<br>
The Crown may rebut an apparent inconsistency on the grounds of legal error in the instructions. The burden is "heavy" and is on the Crown. The court must be satisfied "to a high degree of certainty" that there was an error and the error:<Ref>
</ref> However, limitations exist on this flexibility for the purpose of preserving trial fairness.<ref>
{{ibid1|RV}}{{atL|jdpb6|33}}
{{supra1|Grandine}}{{at|63}}<br>
''R v Largie'', [http://canlii.ca/t/2c14p 2010 ONCA 548] (CanLII){{perONCA|Watt JA}} (3:0){{at|161}}<br>
</ref>
</ref>
# had a material bearing on the acquittal;
# was immaterial to the conviction; and
# reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.


{{reflist|2}}
If these requirements are established then the verdicts are not ''actually'' inconsistent.<REf>
 
{{ibid1|RV}}{{atL|jdpb6|34}}
====Failing to Answer Jury Questions====
</ref>
Where a jury asks a question and then withdraws before it is answered by the judge will not render the verdict invalid. The judge need not answer the question for the jury.<ref>
''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>
 
A jury may withdraw a question simply by announcing it is ready to give a verdict.<ref>
''R v Lavoie'', [http://canlii.ca/t/1vqtz 1990 CanLII 4038] (NB CA), (1990), 107 N.B.R. (2d) 181 (N.B.C.A.){{perNBCA|Hoyt JA}} (3:0)</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>


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


==Recharge of Jury==
==See Also==
The answer may result in a "recharge" of the jury.  These recharges "must be correct and comprehensive no matter how exemplary the original charge may have been".<ref>
* [[wikipedia:Blank pad rule]]
''R v S(WD)'', [http://canlii.ca/t/1frq0 1994 CanLII 76] (SCC), [1994] 3 SCR 521{{perSCC|Cory J}} (5:2){{Atps|530-531}}</ref>
 
An error in recharge cannot be forgiven simply because the original charge was correct.<ref>
{{ibid1|S(WD)}}{{atps|530-531}}
</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>
 
{{reflist|2}}

Latest revision as of 14:21, 14 July 2024

This page was last substantively updated or reviewed January 2021. (Rev. # 95254)

General Principles

See also: Jury Instructions

Juries deliberate every day that they are "retired" to make a decision the case.[1] This also permits them to seek the assistance of the court in tasks such as reading back evidence.[2]

While the jury is deliberating they must not separate.[3] An officer of the court must keep charge of the jury while together to ensure they do not communicate with anyone outside of the jury without the judge's consent.[4]

A jury is entitled to receive any type of aid that “assists them in dealing with the evidence reasonably, intelligently and expeditiously.” [5]

Transcripts Given to Jury

It is acceptable to provide a jury copies of transcripts of witnesses evidence.[6]

It is not appropriate to insist that the jury get transcripts of closing address of both sides when the jury only asked for transcript of one side only.[7]

Providing a S. 715.1 Video Statement to Jury

There is some ability for the jury to receive a copy of a video statement without replay of the cross-examination.[8]

Slideshows

A jury may take copies of a slideshow presented in closing by counsel where it is useful and reliable.[9]


  1. ↑ see R v Baillie, 1991 CanLII 5760 (BC CA), 66 CCC (3d) 274, per Taggart JA
    s. 654
  2. ↑ see Baillie, ibid.
  3. ↑ see s. 647(1) ("The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.")
  4. ↑ see s. 647(2) ("Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.")
  5. ↑ See R v Bengert, 1980 CanLII 321 (BCCA), [1980] BCJ No 721, per curiam, at para 160 (BCCA)
  6. ↑ R v Quashie, 2005 CanLII 23208 (ON CA), 198 CCC (3d) 337, at paras 46 to 48
  7. ↑ R v Ferguson, CanLII 5658 (ON CA) 142 CCC (3d) 353, per Laskin JA (dissent but upheld at 2001 SCC 6) at para. 95 ("insisting that the jury be given a copy of the defence’s closing address when they did not ask for it, is … an affront to their common sense".)
  8. ↑ R v Noftall, 2004 CanLII 19785 (ON CA), 181 CCC (3d) 470, per Laskin JA
  9. ↑ R v Pan, 2014 ONSC 6055 (CanLII), per Boswell J
    see also Real Evidence

Deadlocked Juries

Where the jury is "deadlocked" and further deliberation would be "useless" the judge has the discretion to discharge the jury and impanel a new jury.

Disagreement of jury

653 (1) Where the judge is satisfied that the jury is unable to agree on its verdict and that further detention of the jury would be useless, he may in his discretion discharge that jury and direct a new jury to be impaneled during the sittings of the court, or may adjourn the trial on such terms as justice may require.

Discretion not reviewable

(2) A discretion that is exercised under subsection (1) [disagreement of jury] by a judge is not reviewable.
R.S., c. C-34, s. 580.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 653(1) and (2)

Exhortation by Judge

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.[1] 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.[2]

The judge should not do anything that may treat particular jurors as misunderstood or that pits one jurors against the others.[3]

It is not relevant to examine whether the jurors were affected by any of the instructions of the judge.[4]

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.[5]

When considering the applicability of a defence it is not necessary for the jury to be in agreement about which elements cause them to reject the defence.[6]

It is impermissible for the judge to suggest that a single juror was in some way wrong in their views on the law or the outcome.[7]

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."[8]

Factors

A reviewing court can consider the "entire sequence of events" that lead up to the judge's direction at issue.[9]

Examples

Suggesting to the jury that they will be sequestered longer if they are unable to reach an agreement is considered coercive.[10]

  1. ↑ R v RMG, 1996 CanLII 176 (SCC), [1996] 3 SCR 362, per Cory J (7:2), at para 15
  2. ↑ R v Littlejohn, 1978 CanLII 2326 (ON CA), 41 CCC (2d) 161, per Martin JA, at p. 168 ("It is well established that in exhorting a jury to endeavour to reach agreement, the trial Judge must avoid language which is coercive, and which constitutes an interference with the right of the jury to deliberate in complete freedom uninfluenced by extraneous pressures.")
  3. ↑ R v Vivian, 2012 ONCA 324 (CanLII), 290 CCC (3d) 73, per MacPherson JA (3:0) , at para 47
  4. ↑ Vivian, ibid., at para 61
  5. ↑ See R v Chahal, 2008 BCCA 529 (CanLII), 240 CCC (3d) 363, per Smith JA (3:0)
  6. ↑ R v Dagenais, 2012 SKCA 103 (CanLII), 399 Sask R 271, per Richards JA, at para 32
  7. ↑ R v Vivian, 2012 ONCA 324 (CanLII), 290 CCC (3d) 73, per MacPherson JA
  8. ↑ R v Sims, 1991 CanLII 5756 (BC CA), 64 CCC (3d) 403, per Lambert JA, at para 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 CanLII 77 (SCC), [1992] 2 SCR 858, per McLachlin J
  9. ↑ Littlejohn, supra, at p. 168 ("In deciding whether the line has been crossed between what is permissible as mere exhortation, and what is forbidden as coercive, the entire sequence of events leading up to the direction which is assailed, must be considered.")
  10. ↑ R v Jack, 1996 CanLII 2351 (MB CA), 131 WAC 84, per Scott CJ

Jury Questions

Recharge of Jury

The answer may result in a "recharge" of the jury. These recharges "must be correct and comprehensive no matter how exemplary the original charge may have been."[1]

An error in recharge cannot be forgiven simply because the original charge was correct.[2] In fact, the more time that passes between the original charge and recharge, the greater imperative that the recharge be "correct and comprehensive."[3]

  1. ↑ R v S(WD), 1994 CanLII 76 (SCC), [1994] 3 SCR 521, per Cory J (5:2), at pp. 530-531
  2. ↑ WDS, ibid., at pp. 530-531
  3. ↑ WDS, ibid., at p. 531

Internet Research by Jurors

A jury verdict must be made using only information and evidence they receive in the course of the trial.[1]

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.[2]

This assessment is based on the examination of the record and involves a contextual case-by-case analysis.[3]

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.[4]

Appellate Review

The reviewing court should defer to the conclusions of the trial judge absent legal error, misapprehension of evidence, or patent unreasonableness.[5]

  1. ↑ e.g. Patterson v Peladeau, 2020 ONCA 137 (CanLII), per curiam, at para 22
  2. ↑ Patterson, ibid., at para 30
  3. ↑ Patterson, ibid. at para 30
    R v Pannu, 2015 ONCA 677 (CanLII), 127 OR (3d) 545, at paras 71 to 74
    R v Farinacci, 2015 ONCA 392 (CanLII), 335 OAC 316, at para 26
    R v Pan; R v Sawyer, 2001 SCC 42 (CanLII), [2001] 2 SCR 344, at para 59
  4. ↑ Patterson, supra, at para 31
  5. ↑ Pannu, supra, at paras 71to 72

Verdicts

See also: Trial Verdicts and Unreasonable Verdict

Juries can render a verdict any day of the week. The fact that it is a Sunday or a Holiday does not affect the trial process.[1]

  1. ↑ see s. 654

Inconsistent Verdict

A jury gives an inconsistent verdict when it finds the accused guilty and not guilty for the same conduct.[1]

An inconsistent verdict can be set aside where it is found to be unreasonable.[2]

The Crown may rebut an apparent inconsistency on the grounds of legal error in the instructions. The burden is "heavy" and is on the Crown. The court must be satisfied "to a high degree of certainty" that there was an error and the error:[3]

  1. had a material bearing on the acquittal;
  2. was immaterial to the conviction; and
  3. reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.

If these requirements are established then the verdicts are not actually inconsistent.[4]

  1. ↑ R v RV, 2021 SCC 10 (CanLII), per Moldaver J (7:2), at para 1
  2. ↑ RV, ibid., at para 28
  3. ↑ RV, ibid., at para 33
  4. ↑ RV, ibid., at para 34

See Also

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