Jury Deliberations: Difference between revisions

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==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){{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 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>
 
; Procedure in Considering Questions
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}}{{atL|gb3gd|34}}
</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
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){{atL|h5zqf|62}}<br>
''R v Naglik'', [http://canlii.ca/t/1fs0h 1993 CanLII 64] (SCC), [1993] 3 SCR 122{{Plurality}}{{atp|139}}<br>
{{supra1|WDS}}{{atL|1frq0|16}}<br>
</ref>
 
; Unclear Question
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
Jury questions must be answered "clearly, correctly and comprehensively".<ref>
{{supra1|W(D)}}{{atps|759-760}}<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){{atL|24qq0|20}}<br>
{{supra1|Grandine}}{{atL|h5zqf|62}}<br>
''R v Stubbs'', [http://canlii.ca/t/g01lb 2013 ONCA 514] (CanLII){{perONCA|Watt JA}} (3:0){{atL|g01lb|95}}<br>
</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>
{{CanLIIR|PJB|ftj2j|2012 ONCA 730}}{{perONCA|Watt JA}}{{atL|ftj2j|44}}<br>
</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){{atL|fvkr6|42}}<br>
</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>
''R v Layton'', [http://canlii.ca/t/217bw 2008 MBCA 118] (CanLII){{perMBCA|Hamilton JA}}
</ref>
 
; Mode of Communication with Jury
A judge should not communicate with the jury by sending notes with unsolicited information without the input on counsel.<ref>
''R v Edwards'', [http://canlii.ca/t/1clsl 2002 CanLII 41587] (ON CA){{TheCourtONCA}} (3:0)
</ref>
 
; Effects of Errors
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
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){{atL|24qq0|33}}</ref>
 
; 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>
{{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>
{{CanLIIR|Melvin|gs0t1|2016 NSCA 52}}{{perNSCA|Farrar JA}}{{atsL|gs0t1|52| to 53}}
</ref>
 
; 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>
''R v Ranger'', [http://canlii.ca/t/5xwr 2003 CanLII 32900] (ONCA){{perONCA|Charron JA}} (3:0){{atL|5xwr|135}}<br>
{{supra1|Grandine}}{{atL|h5zqf|63}}<br>
</ref>
This is permissible because the jury is not bound by the opposing theories of Crown and defence.<ref>
{{supra1|Grandine}}{{atL|h5zqf|63}}<br>
</ref>
However, limitations exist on this flexibility for the purpose of preserving trial fairness.<ref>
{{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>
 
; Requests to Replay Testimony
Where there is a request to replay portions of evidence, the replay must be done on the record so that an appellate court can determine whether the portions were given proper context.<ref>
{{CanLIIR|Lalande|1f9np|1999 CanLII 2388 (ON CA)}}{{perONCA|Borins JA}} ("...measures must be taken to ensure that tape recorded testimony is replayed for a jury in open court, in the presence of the defendant, the trial judge and counsel, and that a proper record is made of what takes place throughout the playback proceedings.")
</ref>
 
The response to any request to replay the specific subjects of the evidence or the evidence as a whole should "include all the evidence of the witness on the subject or generally".<ref>
{{CanLIIR|JB|j1dqp|2019 ONCA 591 (CanLII)}}{{perONCA|Watt JA}}{{atL|j1dqp|69}}
</ref>
 
; Request for Copy of Crown Closing Address
Where the jury requests a copy of the Crown closing, there is no obligation to provide a copy of the Defence closing.<ref>
{{CanLIIRP|Ferguson|523p|2001 SCC 6 (CanLII)|, [2001] 1 SCR 281}}{{perSCC|Major J}}
</ref>
 
{{reflist|2}}
 
====Failing to Answer Jury Questions====
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>
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>
''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){{atsL|fn197|55|, 56}}</ref>
 
{{reflist|2}}


==Recharge of Jury==
==Recharge of Jury==

Revision as of 19:09, 19 October 2020

General Principles

See also: Jury Instructions
Transcripts Given to Jury

It is acceptable to provide a jury copies of transcripts.[1]

  1. ↑ R v Quashie, 2005 CanLII 23208 (ON CA), at paras 46 to 48

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.[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]

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".[6]

Factors

A reviewing court can consider the "entire sequence of events" that lead up to the judge's direction at issue.[7]

Examples

Suggesting to the jury that they will be sequestered longer if they are unable to reach an agreement is considered coercive.[8]

  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), per MacPherson JA (3:0) , at para 47
  4. ↑ Vivian, ibid., at para 61
  5. ↑ See R v Chahal, 2008 BCCA 529 (CanLII), per Smith JA (3:0)
  6. ↑ R v Sims, 1991 CanLII 5756 (BC CA), 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] 2 SCR 858, 1992 CanLII 77 (SCC), per McLachlin J
  7. ↑ 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.")
  8. ↑ R v Jack, 1996 CanLII 2351 (MB CA), 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
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