Jury Deliberations

From Criminal Law Notebook

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

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.[1]

Procedure in Considering Questions

When a judge receives a question from the jury, they should:[2]

  1. read the communication in open court in the presence of all parties;
  2. give counsel an opportunity to make submissions in open court prior to dealing with the question;
  3. 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".[3]

Unclear Question

Where a jury question is unclear, the judge should seek clarification before attempting to provide an answer.[4]

Requirements of Answer

Jury questions must be answered "clearly, correctly and comprehensively".[5]

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.”[6]

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.[7]

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.[8]

Mode of Communication with Jury

A judge should not communicate with the jury by sending notes with unsolicited information without the input on counsel.[9]

Effects of Errors

Any errors in a response to a jury cannot be remedied simply by referring back to the correctness of original charge.[10]

Improper Answers

An answer should never discourage further questions on any subject.[11]

Specific Problems

In answering a question regarding the standard of proof of "beyond a reasonable doubt", there is nothing per se wrong with simply reciting the standard anew.[12]

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?".[13]

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".[14] This is permissible because the jury is not bound by the opposing theories of Crown and defence.[15] However, limitations exist on this flexibility for the purpose of preserving trial fairness.[16]

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.[17]

  1. ↑ R v MT, 2012 ONCA 511 (CanLII), per Watt JA (3:0), at para 114 (questions "indicate that that at least some jurors are having a problem with an issue in the case.")
    R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J (3:2), at pp. 759-760
    R v WDS, 1994 CanLII 76 (SCC), [1994] 3 SCR 521, per Cory J (5:2), at pp. 528-529, at paras 14 to 18
  2. ↑ R v Dunbar and Logan (1982), 1982 CanLII 3324 (ON CA), per Martin JA, at para 34
  3. ↑ R v Grandine, 2017 ONCA 718 (CanLII), per Brown JA (3:0), at para 62
    R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122, at p. 139
    WDS, supra, at para 16
  4. ↑ R v Shannon, 2011 BCCA 270 (CanLII), per Finch JA (3:0)
  5. ↑ W(D), supra, at pp. 759-760
    WDS, supra, at pp. 528, 530 (SCR) - it is judge's obligation to answer "fully" and "properly" with the assistance of counsel
    R v Layton, 2009 SCC 36 (CanLII), [2009] 2 SCR 540, per Rothstein J (5:2), at para 20
    Grandine, supra, at para 62
    R v Stubbs, 2013 ONCA 514 (CanLII), per Watt JA (3:0), at para 95
  6. ↑ R v PJB, 2012 ONCA 730, per Watt JA, at para 44
  7. ↑ R v Ellis, 2013 ONCA 9 (CanLII), per Watt JA (3:0), at para 42
  8. ↑ R v Layton, 2008 MBCA 118 (CanLII), per Hamilton JA
  9. ↑ R v Edwards, 2002 CanLII 41587 (ON CA), per curiam (3:0)
  10. ↑ S(WD), supra, at pp. 530 to 531 (SCR)
  11. ↑ R v Layton, [2009] 2 SCR 540, 2009 SCC 36 (CanLII), per Rothstein J (5:2), at para 33
  12. ↑ Layton, ibid.{{atsL|24qq0|29|, 32
  13. ↑ R v Melvin, 2016 NSCA 52, per Farrar JA, at paras 52 to 53
  14. ↑ R v Ranger, 2003 CanLII 32900 (ONCA), per Charron JA (3:0), at para 135
    Grandine, supra, at para 63
  15. ↑ Grandine, supra, at para 63
  16. ↑ Grandine, supra, at para 63
    R v Largie, 2010 ONCA 548 (CanLII), per Watt JA (3:0), at para 161
  17. ↑ R v Lalande, 1999 CanLII 2388 (ON CA), per 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.")

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.[1] However, should the question reveal a legal misapprehension, the judge should give a correction instruction and give an opportunity to reconsider its verdict.[2]

A jury may withdraw a question simply by announcing it is ready to give a verdict.[3]

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.[4]

  1. ↑ R v Sit (1989) 47 CCC (3d) 45 (ONCA), 1989 CanLII 7194 (ON CA), per Finlayson JA (2:1), at pp. 57-58
    see also R v Ellis, 2013 ONCA 9 (CanLII), per Watt JA (3:0)
  2. ↑ Ellis, ibid.
  3. ↑ R v Lavoie, 1990 CanLII 4038 (NB CA), (1990), 107 N.B.R. (2d) 181 (N.B.C.A.), per Hoyt JA (3:0)
  4. ↑ R v Jones, 2011 ONCA 584 (CanLII), per Laskin JA (3:0), at paras 55, 56

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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