Jury Questions

From Criminal Law Notebook

General Principles

See also: Jury Deliberations

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]

  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

Replaying Trial Recordings

Requests to Replay Testimony

Jurors may ask to have parts of the evidence played back to them for the purpose of orefreshing their memory.[1]

All replaying of the evidence must be done on the record and in the presence of the accused.[2]

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.[3]

Replay Segments Only

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".[4]

When specific subject matters are requested for playback, it is necessary that all segments on the subject-matter on direct, cross-examination and re-direct should be played.[5] This should be done even if the jury just asks for the direct examination.[6]

However, if the jury insists that they do not wish to have all the evidence on the area it may not be necessary.[7]

It is improper for the judge to insist that the jury listen to the entirety of the witness' evidence when they only wish to hear on it. [8]

Reviewing Transcripts

It is essential that the jury be notified that of their right to have the testimony played back to them should they request a transcript but are notified that transcripts are not available.[9]

Request for Copy of a Closing Address

The jury has a right to request the replay jury address.[10]

Where the jury requests a copy of the Crown closing, there is no obligation to provide a copy of the Defence closing.[11]

  1. ↑ R v A(J), 1996 CanLII 1201 (ON CA), , 1996 112 CCC (3d) 528 (ONCA), per LaBrosse JA R v Dorset, 1980 ABCA 246 (CanLII), , 54 CCC (2d) 490, per Harradence JA
  2. ↑ R v Lalande, 1999 CanLII 2388 (ON CA), per Borins JA
  3. ↑ 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.")
  4. ↑ R v JB, 2019 ONCA 591 (CanLII), per Watt JA, at para 69
  5. ↑ R v Olbey, 1979 CanLII 61 (SCC), [1980 1 SCR 1008]
    / Bell, Christiansen, Coolen and MacDonald, 1973 CanLII 1555 (NS CA), <http://canlii.ca/t/htxrw 1973 14 CCC (2d) 225}}, per Cooper JA
  6. ↑ R v D(D), 1998 CanLII 14607 (ON CA), , 1998 129 CCC (3d) 506 (ONCA), per Finlayson JA
  7. ↑ R v Hobart, Fogel and Doolin, 1982 CanLII 1975 (ON CA), , 1982 65 CCC 2d 518, per Martin JA
  8. ↑ R v Callaghan (C.A.), 1991 CanLII 7234 (ON CA), per Krever JA
  9. ↑ R v Toms, 2003 CanLII 31577 (ON CA), per Carthy JA, at para 6
  10. ↑ R v Smith, 1975 CanLII 1384 (BC CA), , 25 CCC (2d) 270
  11. ↑ R v Ferguson, 2001 SCC 6 (CanLII), , [2001] 1 SCR 281, per Major J

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
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