Criminal Law Notebook

Jury Deliberations

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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), 198 CCC (3d) 337, at paras 46 to 48

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

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

See Also

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