



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kum, 2015 ONCA 36

DATE: 20150123

DOCKET: C55035

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrence Kum

Appellant

Alan D. Gold and Etai Hilzenrat, for the appellant

Lisa Csele and C. Michaelson, for the respondent

Heard: June 26, 2014

On appeal from the convictions entered on November 3,
    2011 and the sentence imposed on March 6, 2012 by Justice Bonnie J. Wein of the
    Superior Court of Justice, sitting with a jury, with reasons reported at 2012
    ONSC 1194, 281 C.C.C. (3d) 553, and 2012 ONSC 1314.

Feldman J.A.:

A.      Overview

[1]

The appellant was convicted by a jury of trafficking cocaine and
    possessing the proceeds of crime. During a break in their deliberations, some jurors
    complained to a court deputy about the conduct of some other jurors. When,
    following the suggestion of the trial judge, the complaining jurors put their
    concerns in writing, it became clear that two jurors conduct during
    deliberations was being impugned. Earlier that morning the jury had sent a note
    to the trial judge saying they were at a stalemate. The note disclosed that the
    vote was ten to convict and two to acquit.

[2]

Upon receipt of the complaints, the trial judge embarked upon a lengthy
    inquiry of each individual juror, and a number of further inquiries of the two
    impugned jurors. The trial judge ultimately discharged both jurors. Defence
    counsels motions for a mistrial were denied. Following the discharge of the
    second juror, after about an hour of further deliberations, the ten-member jury
    convicted the appellant.

[3]

The main issue on this appeal is whether the discharge of the jurors
    resulted in an unfair trial. I have concluded that it did.

B.      Background regarding the offences

[4]

Between June 15 and June 18, 2007, the police intercepted a number of
    calls related to drug trafficking between a known suspect, Harding, a male
    using a 519 area code telephone number, and another male using a Jamaican telephone
    number. On June 18, following a few of these calls, Harding told the male on
    the 519 number that he was at a Tim Hortons. The male told Harding that they
    would meet there and then Harding could follow him in his car. The police were conducting
    surveillance at the Tim Hortons and observed the appellant drive up and Harding
    follow him in his own car. They drove to a deserted area of a local golf
    course.

[5]

The police observed conversation between the two men, but no exchange of
    anything. The police followed both cars after the meeting concluded. When the
    police arrested the appellant a few minutes later, they found a box in his car
    containing $54,040. When they arrested Harding shortly thereafter, they found
    three bricks of cocaine, totalling 3 kilos, each in a Ziploc bag and all inside
    a number of other bags. The appellants partial fingerprint was on one of the Ziploc
    bags. The appellants effects at the police station included three cell phones,
    one of which had the 519 number. As the officer who seized the phones was not a
    witness at trial, the continuity of the cell phones was challenged.

C.      The discharge of two jurors

The notes from the jury

[6]

On the morning of the jurys second day of deliberations, the jury sent
    the trial judge a letter indicating that it had reached a stalemate. Ten of
    the jurors voted to convict the appellant and two voted to acquit. The letter
    read:

Your Honour:

The jury has reached a stalemate on some key evidence and
    cannot yet come to a conclusion about guilty or not guilty on the charges. The
    vote was 10 for guilty and 2 for not guilty after we discussed all the relevant
    evidence.

The key sticking point (there are others) is the lack of direct
    evidence of who is 519. As directed by you, the issue of continuity about when
    the 3 phones were seized and by whom was discussed at length. The majority of
    the jury found the circumstantial evidence, including the items suggested by
    you in your charge plus our own assessments were sufficient to link Mr. Kum to
    the 519 phone and wiretap conversations. A minority of the jury still have
    doubts about the cell phone due to lack of direct evidence and insufficient (in
    their view) circumstantial evidence.

The jury is at the point we are going in circles on this issue.

Do you have any further guidance on this matter?

Respectfully,

The Jury

[7]

The trial judge discussed the jurys letter with counsel. She advised
    counsel that the letter disclosed how many jurors intended to convict and how
    many intended to acquit.  Although she did not tell them the number of votes
    for each side at that time, she disclosed the numbers the next day during
    submissions on whether two of the jurors should be discharged.

[8]

That afternoon the jury heard a lengthy play-back of some of the
    evidence. Following a recess, a court deputy informed the trial judge that some
    jurors had certain concerns. At the trial judges request, the jurors put their
    concerns in writing.

[9]

Approximately 30 minutes later, the trial judge received notes from the
    jury about other jurors conduct during deliberations. One of the notes said:

To:  [the name of the judge]

A few members of the jury have a few concerns relating to bias.

These concerns stem from comments or actions made within and
    out of the jury room.

This relates to two specific jury members.

For example:

(1)     1 juror states this on (Nov. 2/11) that it is their
    belief that too many accused get wrongfully convicted due to police lying
    during testimony to make the facts work for them.

(2)     We believe that 1 juror may have religio[u]s conflicts
    for passing judgement.

For example, each time we reach a critical path, a point[ed]
    question seems to be avoided, and in two instances, took washroom [breaks] just
    as the question requires response.

[10]

Two
    jurors wrote separate notes to the trial judge. The notes read:

My interpretation is that 1 juror is appears to be unable to
    make a Judgement because of religious convictions.

I am paraphrasing  1 juror is expressing the fact that he is
    the only brother here & he has to defend him. (The accused)

The trial judges inquiry into the alleged misconduct

[11]

With
    the initial agreement of counsel, the trial judge began an inquiry into the two
    impugned jurors alleged misconduct. Those two jurors (jurors 1 and 9) were
    separated from the rest of the jury. The two jurors who had made the complaints
    (jurors 2 and 6) were told not to discuss the issue with the other jurors, and
    were eventually separated from the rest of the jury and from each other.

[12]

The
    trial judge questioned the impugned jurors in open court.

[13]

The
    trial judge asked juror 9 whether she had religious beliefs that would preclude
    her from deciding the case impartially. Juror 9 denied the allegation:

Q.      A concern has been expressed to us that a juror, whom
    we believe is you 

A.      Uh-huh.

Q.       may have a religious conviction which prevents her
    from deciding the case on the evidence, which prevents her from passing
    judgment on another person, on the evidence. I dont want you to tell us
    anything that has gone on in the jury room, I simply want you to tell us
    whether you feel there is any impairment to your ability to pass judgment in
    this case.

A.      Im not sure where that religious aspect of it is
    coming from, with regards to not passing judgment based on religious belief.

[]

Q.      All right. You have no hesitations in feeling you can
    assess the evidence and pass judgment?

A.      I dont 

Q.      All right.

A.       feel  I feel comfortable based on the evidence that
    I can come to a conclusion based on whats provided to me.

[14]

The
    trial judge also questioned juror 1 about the allegations that he was biased
    against the police and was biased in favour of the accused on the basis of
    race. Juror 1 also denied the allegations:

Q.      We have a concern thats been expressed to us that one
    juror, actually you, has perhaps expressed a reliance on something  an aspect
    of the case outside of the evidence. And I just want to make it clear, I dont
    want you to tell us about anything that relates to your discussions of the case
    in the jury room, because that is not what were inquiring into. But there has
    been the suggestion made that you have expressed the fact that you are the only
    brother here and you have to defend the accused. And the concern we would have
    

A.      I didnt say that.

Q.       would be that  and that was a paraphrase 

A.      Your Honour, thats not true.

Q.        the concern of course would be that a juror must not
    consider any sympathy or bias or prejudice, and sympathy based on race would be
    an outside concern.

A.      It doesnt matter if theyre black, white or whatever,
    Im here to do a job 

Q.      Okay.

A.       and I never said that to anyone at any time.

Q.      You feel no difficulty in abiding by your oath to try the
    case solely on the evidence without bias, prejudice 

A.      Yes, maam.

Q:       or partiality?

A.      Yes, maam.

Q.      All right. The other aspect of this is difficult for me
    to assess. If a juror were to express a belief that too many accused get
    wrongfully convicted due to police lying during testimony, to make the facts
    work, if they were simply saying lets closely examine the police testimony
    because police may lie, that might be just an expression of opinion in the jury
    room  not interesting to us  but if a person felt that they could never
    assess the evidence of a police officer like the evidence of other witnesses
    because they just dont believe police officers, then that would obviously be
    elevated to an 

A.      I never said that 

Q.       outside concern.

A.       and thats not my feeling.

Q.      All right. So we have no need for concern?

A.      No, Your Honour.

[15]

After
    jurors 1 and 9 were questioned and denied the allegations made against them in
    the notes, Crown counsel suggested that the court hear from the two jurors who raised
    the complaints. At that point, defence counsel raised the concern that there
    was a serious conflict within the jury: the two impugned jurors had denied the
    accusations against them and had been separated from the others. He agreed,
    however, that the court should hear from the two jurors who had raised the
    concerns. The two complaining jurors, jurors 2 and 6, were questioned
    separately about their complaints. Each gave evidence in support of their
    allegations.

[16]

Both
    the defence and the Crown initially agreed that the trial judge would question
    the remaining jurors about the allegations against jurors 1 and 9. However,
    after a break, defence counsel had changed his view and objected to continuing
    with any further inquiry of the jurors. He submitted that it was clear that there
    was a hung jury and a mistrial should be declared. The trial judge dismissed
    that motion. A standard question was drafted which inquired into the
    allegations and included a warning not to disclose differences of opinion
    among jurors in the jury room. The question asked:

Specific concerns have been raised about some jury members. 
    All jurors are entitled to take different views of the evidence and bring their
    own world experiences and views into account, and this is a welcome part of our
    jury system.  But all jurors take an oath to well and truly try the case and
    deliver a true verdict based on the evidence and only on the evidence without
    sympathy, prejudice or bias.  We do not want to inquire, and cannot inquire
    about differences of opinion among jurors in the jury room, but we need to know
    if one or more jurors are unable or unwilling to fulfill their duties as jurors
    for reasons of sympathy, prejudice or bias.  Have you seen anything during your
    deliberations, or outside of your deliberations, that leads you to believe that
    any of your fellow jurors is unable or unwilling to fulfill their oath, for
    example
because they
    are unable or unwilling to participate in the proceedings, or have fixed views
    that prevent them from assessing the evidence
with an open mind?

[17]

The
    trial judge decided to put this question, together with further inquiries, to
    the remaining jurors as well as to the impugned jurors, 1 and 9. The jurors
    gave detailed opinions about the comments and perceived motivations of fellow
    jurors in the deliberations. In her questioning, the trial judge probed the
    jurors on whether they thought other jurors were incapable of properly
    assessing the evidence because of sympathy, bias or prejudice. For example, in
    questioning juror 12 about his or her concerns about jurors 1 and 9, the trial
    judge asked:

Q: Okay. But apart from that are the concerns youve told us
    about related in any way to something you would call sympathy or prejudice or
    bias as opposed to a decision on the evidence that disagrees with yours?

A: No, I wont say that. All  all I will say, the  they felt
    sorry for one  for the person.

Q: So that would be a sympathy.

A: That would be sympathy, okay.

[18]

Some
    of the jurors answers supported the allegations in the complaint letters. For
    example, several jurors said that in his deliberations juror 1 took into
    account the consequences of a guilty verdict, such as the potential punishment
    or the impact of the conviction on the appellants family. One juror said that
    juror 9s value system would prevent her from deciding the case, but another
    said that she was making an effort to reach a decision.


The trial judge dismisses juror 1 but permits juror 9 to
    continue

[19]

Following
    the further examination of each juror, defence counsel objected to the
    discharge of either of the impugned jurors. He submitted that the jury was
    deadlocked. It was at this time that the trial judge told counsel that the
    original note from the jury had stated that the vote was ten to convict and two
    to acquit. This information confirmed defence counsels apprehension of the
    situation from the questioning. He submitted that the two jurors were entitled
    to dissent and again asked for a mistrial. Crown counsel asked that both jurors
    be discharged on the basis that they were unable to carry out their duties.

[20]

The
    trial judge dismissed juror 1, but not juror 9, and gave oral reasons. Dealing
    first with the defence motion for a mistrial, the trial judge stated that, while
    a mistrial would be an easy outcome, the jurors had sat for many days and they
    were entitled to give judgment if they are at all able to. Further, for
    obvious public policy reasonsthe actions of one, or in this case potentially
    two jurors, should not be allowed to hijack the process if the court can be
    satisfied that the remaining jurors can come to a just and proper verdict on
    the evidence. With respect to juror 1, based on the testimony of the other
    jurors, the trial judge concluded that he had sympathy for the accused that was
    not based on the evidence, and that he was concerned about punishment. Furthermore,
    based on the testimony of the other jurors and of juror 1 himself, the trial
    judge concluded that he had a bias with respect to police that has caused that
    juror to speculate in a way that is inconsistent with the evidence. The trial
    judge was not, however, satisfied that juror 9 would not abide by her oath.

[21]

In
    her written reasons delivered after the trial, the trial judge stated that
    juror 1 had consistently made the kinds of remarks referred to in the complaint
    letters. She did not believe him when he denied making the impugned remarks. The
    trial judge agreed with the concerns raised by the other jurors and said it was
    clear to her that juror 1 was trying to hijack the deliberations by
    considering extraneous factors, such as the impact the potential punishment
    might have on the accused. The trial judge was concerned that juror 1 would not
    follow her legal instructions because he felt he had to support the accused
    who was of the same race, and concluded that further legal instructions would
    be futile. The trial judge observed that juror 1 was very probably one of the
    two jurors who intended to acquit the appellant, but said this consideration
    was irrelevant to her decision to discharge him.

Juror 9 requests her own dismissal

[22]

A
    few hours after juror 1 was discharged, juror 9 sent the trial judge a note
    advising that she was no longer able to decide the case impartially. She wrote:

[Trial judge],

I find that I am no longer able to continue as a juror in this
    case because I find that I am no longer able to remain open minded. Ive come
    to the realization that I am factoring outside experience into the deliberation
    and unable to separate the two.

Regards

Juror #9

[23]

Defence
    counsel objected to any further questioning of juror 9. He pointed out that in the
    previous inquiries she had said that other jurors had made up their minds
    before the jury charge and addresses of counsel, and he believed that now she
    felt isolated and was making excuses in order to be discharged. He pointed to
    the unfairness to his client, given that this was the second juror who had been
    complained about, and if she were discharged only the ten jurors who voted for
    conviction would remain. He again asked for a mistrial. He submitted that any
    further questioning of the jurors would negatively affect the jurys independence
    and would be perceived as pressure to give a verdict. He acknowledged that the
    trial judge did have the discretion to question the jury further.

[24]

The
    trial judge decided to question juror 9 again in court. The juror indicated
    that her deliberations were affected by her outside experiences. The trial
    judge then asked her if she was biased and she answered, I dont feel that Im
    coming to an unbiased conclusion. Eventually, she acknowledged in answer to a
    question suggested by defence counsel that she felt pressured inside the jury
    room. The trial judge told her not to feel pressured and sent her back to
    deliberate further with the rest of the jury.  After juror 9 was sent out of
    the courtroom, defence counsel again objected and applied for a mistrial on the
    basis of juror 9s statement that she felt pressured to reach a verdict. The
    trial judge allowed the jurors to continue deliberating.

[25]

Approximately
    80 minutes later, however, the trial judge received two further letters, one
    from juror 9 and one from the jury majority. Juror 9 wrote:

[Trial judge],

I am again indicating that I am unable to continue
    deliberation. As based on your example of the red hair in terms of a bias, I am
    finding that I am falling into example 1. (The example of bias based on all red
    head[s] are liars, and I feel that this is havingan impact on my decision.

Juror #9

[26]

The
    jury majority wrote the following:

[Trial judge,]

The majority of the jury has listened to the below concerns
    regarding the case.

·

Cellphone seizure

·

[L]ack of evidence of the process of arrest

·

[N]o pictures of transaction

·

[W]ire taps

·

[S]urveillance at the time of arrest

·

[L]ack of total evidence

·

[L]ack of credible witnesses

However, after much explanation she has not been able as per
    your directions to give us reasonable doubt or a logical common sense
    inference/explanation.

She does not at this point wish to consider alternative
    explanations. She says Im done.

Respectfully

The Jury Majority

[27]

The
    Crowns position was that the trial judge should discharge juror 9 and proceed
    with the remaining ten jurors. The trial judge questioned juror 9 once again in
    open court. Despite juror 9s previous statement that she felt pressured, she now
    denied being under pressure from other jurors. After juror 9 left the
    courtroom, defence counsel once again sought a mistrial. He predicted that if both
    jurors 1 and 9 were discharged, conviction would be a foregone conclusion. He
    also submitted that the majority of the jury would have succeeded in removing
    the minority in order to achieve a guilty verdict. The trial judge again refused
    to declare a mistrial. She concluded that juror 9 was biased and discharged her.

[28]

The
    trial judge instructed the remaining ten jurors on juror 9s dismissal and sent
    them to continue their deliberations.

[29]

The
    jury retired from the courtroom at 5:13 p.m. on November 3, 2011.

[30]

At
    6:20 p.m., they returned to the courtroom with the guilty verdict.

[31]

Following
    the trial, on February 23, 2012, the trial judge issued written reasons for her
    decisions on discharging the jurors and on the mistrial application.

D.      Issues

[32]

The
    appellant raises a number of grounds of appeal arising from the trial and sentence
    relating to: inadmissible police opinion evidence; unreasonable verdicts; the co-conspirators
    exception to the hearsay rule; the length of the sentence; and the DNA order.
    However, as the outcome of the appeal turns on the issues that arose from the discharge
    of the two jurors, it is unnecessary to address the other issues raised by the
    appellant except for the unreasonable verdicts ground of appeal, because an
    unreasonable verdict may result in an acquittal.

[33]

On
    that ground, the appellant submits that the evidence against him at trial was
    weak and, as a result, the verdicts against him are unreasonable. For example, he
    points to the fact that the officers who observed him and Harding at the golf
    course never saw anything being exchanged. However, while the case against the
    appellant was circumstantial, I cannot say, given the evidence presented at
    trial, that the verdicts were unreasonable.

[34]

The
    two issues that I will address in detail are: 1) Whether the extent of the
    trial judges inquiries of the jurors led to improper disclosure of their
    deliberations; and 2) Whether the discharge of the two jurors resulted in an
    unfair trial.

E.      The applicable legal principles

Overview of s. 644 of the
Criminal Code

[35]

An
    accused has the common law right to be tried by a jury of twelve who reach a
    unanimous verdict. Section 644 of the
Criminal Code
, R.S.C. 1985, c.
    C-46,

describes the exceptional circumstances when a maximum of two
    jurors may be discharged. It provides:

644. (1) Where in the course of a trial the judge is satisfied
    that a juror should not, by reason of illness or other reasonable cause,
    continue to act, the judge may discharge the juror.

[]

(2) Where in the course of a trial a member of the jury dies or
    is discharged pursuant to subsection (1), the jury shall, unless the judge
    otherwise directs and if the number of jurors is not reduced below ten, be
    deemed to remain properly constituted for all purposes of the trial and the
    trial shall proceed and a verdict may be given accordingly.

[36]

In
Basarabas and Spek v. The Queen
, [1982] 2 S.C.R. 730, at p. 741,
    Dickson J. emphasized that in interpreting s. 573, the predecessor of s. 644,
    the accused should not be lightly deprived of his or her right to be tried by
    a jury of twelve persons.

[37]

Under
    s. 644(1), the trial judge may discharge a juror who should not...continue to
    act. The two possible criteria for discharge are illness and other reasonable
    cause. The latter has been flexibly interpreted to allow a trial judge the
    necessary discretion to deal with circumstances as they may arise: see
R.
    v. Giroux
(2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at paras. 27, 30, leave
    to appeal refused, [2006] 2 S.C.R. viii.

[38]

When
    deciding whether to discharge a juror, the trial judge is entitled to make
    inquiries of jurors:
Giroux
, at paras. 35-36. However, that process is
    subject to strict limitations in order to protect two critical aspects of a
    jury trial: 1) the integrity of the process that ensures the accused is not lightly
    deprived of the right to be tried by a jury of twelve who reach a unanimous
    verdict, and 2) the secrecy of the jurys deliberations.

The secrecy of the jurys deliberations

[39]

In
R. v. Pan; R. v. Sawyer
,

2001 SCC 42, [2001] 2 S.C.R. 344,
    Arbour J. discussed in detail the rules regarding jury secrecy. Under the
    common law rule of jury secrecy, also known as Lord Mansfields rule, evidence
    of what occurred in the jury room among the jurors is not admissible in
    subsequent proceedings:
Pan
, at para. 54.  The issue often arises when
    the jurys verdict is sought to be impeached, as in the
Pan
and
Sawyer
cases.

[40]

In
Pan
, Arbour J. also discussed the policy reasons behind the jury
    secrecy rules, which, she pointed out, have evolved over time. The common law jury
    secrecy rule, together with the prohibition on disclosing information relating
    to the jurys proceedings under s. 649 of the
Criminal Code
, promotes
    candour and free and frank debate among jurors, protecting jurors from
    harassment, and preserving public confidence in the administration of justice:
Pan
, at para. 89. As she stated at para. 50: While searching for
    unanimity, jurors should be free to explore out loud all avenues of reasoning
    without fear of exposure to public ridicule, contempt or hatred.

[41]

However,
    there is an exception to Lord Mansfields rule. Evidence that the jury was
    exposed to some extrinsic information or influence from outside the proceeding
    is admissible:
Pan
, at para. 55. But even if jurors are allowed to
    testify about whether they were exposed to any extrinsic information, the court
    should not admit evidence from the jurors as to what influence that information
    had on their deliberations:
Pan
, at para. 59.

[42]

Justice
    Arbour concluded her discussion by restating a modern version of Lord
    Mansfields common law jury secrecy rule as follows at paras. 77 and 78:

[77] In light of the above, in my view a proper interpretation
    of the modern version of Lord Mansfields rule is as follows: statements made,
    opinions expressed, arguments advanced and votes cast by members of a jury in
    the course of their deliberations are inadmissible in any legal proceedings. 
    In particular, jurors may not testify about the effect of anything on their or
    other jurors minds, emotions or ultimate decision.  On the other hand, the
    common law rule does not render inadmissible evidence of facts, statements or
    events extrinsic to the deliberation process, whether originating from a juror
    or from a third party, that may have tainted the verdict.

[78] This modern formulation of the rule, which reflects the
    approach of the majority of the Court of Appeal, best ensures that the sanctity
    of the jurys deliberations is preserved by promoting in equal measure the
    secrecy and confidentiality indispensable to the deliberation process and the
    exposure of serious matters casting doubt on the integrity of the verdict.

The law on discharging jurors under s. 644

[43]

Along
    with the confidentiality of jury deliberations, Arbour J. referred to s. 644, together
    with the challenge for cause procedure, as two other safeguards against an
    improper verdict. The latter two guard against lack of impartiality in a juror,
    from bias or another cause. The common law rule prohibits any post-verdict
    inquiry into whether a juror was biased, as that is not an extrinsic matter.
    However, prior to a verdict being reached, the court is entitled to conduct an inquiry
    into bias under s. 644 to determine whether a juror should be discharged: see
Pan
,
    at para. 94.

[44]

In
    discussing s. 644, Arbour J. pointed to an important qualification on the
    courts approach to the use of that section: it is intended to be used for
    serious issues only. It was not meant to encourage jurors to bring to the trial
    judge trivial complaints or minor concerns about their fellow jurors:

[97] [T]here are limits to the use of s. 644 of the
Code
as a mechanism for discharging jurors in the course of the trial. Section 644
    only permits jurors to be discharged in the course of the trial where a serious
    issue arises as to their fitness as a juror. It is not designed to encourage
    jurors to bring trivial complaints about their fellow jurors to the attention
    of the trial judge in the course of the trial, nor does it contemplate the
    discharge of jurors over minor concerns.

[45]

In
R. v. Cioppa
,

2012 ONSC 6832, defence counsel asked the trial
    judge to conduct an inquiry under s. 644, after observing one of the jurors
    turn his back on the accused during his entire testimony in chief, make
    impatient motions during counsels closing, and shake his head in a negative
    manner at the accused when counsel admitted that the accused had a knife on the
    evening in question. The trial judge refused to conduct an inquiry. He referred
    to the above passage from
Pan
and also stated, at paras. 10-11:

[10] There have been instances in the past where events have
    taken place that have warranted a court embarking on an inquiry as to whether a
    specific juror should be discharged.  Instances of unusual conduct during the
    course of deliberations is one example.  Possible contamination of an
    individual juror, or the whole jury, arising from improper contact with other
    individuals is another example.

[11] That said, there appears to be considerable authority for
    the proposition that the secrecy and confidentiality of jurors and their
    conduct is to be jealously guarded.  Consequently, the test for when the court
    should embark upon an inquiry under s. 644 is a high one.

[46]

The
    trial judge went on, at para. 13, to reinforce an important concept for the operation
    of the jury process. Even if the jurors observed conduct meant that the juror
    had formed an opinion contrary to the accuseds position,

[13] that did not mean, in and of itself, that the juror would
    not honour his oath and do his duty including listening to the views of his
    fellow jurors.  It is not realistic to expect that each and every juror will go
    into deliberations with a completely open mind as to the ultimate verdict.  Jurors
    can be expected to form views and opinions regarding the evidence and they may
    well develop an inclination towards a particular verdict.  That is human nature
    and there is nothing wrong with it as long as each juror maintains an open mind
    regarding the final conclusion and is receptive to the views of their fellow
    jurors.  This concept is recognized and explained to jurors when they are given
    the preliminary instructions at the outset of a trial.  We routinely tell
    jurors:

As the trial proceeds, you may discuss the case amongst
    yourselves when all of you are together in your jury room.  You must not,
    however, come to any conclusions about the case during those discussions.  Keep
    an open mind.

[47]

Most
    recently in this court, in
Giroux
, at para. 28, Blair J.A. emphasized  the
    necessity of taking care in conducting inquiries under s. 644, where one or
    more jurors complains about another juror or jurors. The trial judge must
    respect the confidentiality of the jurys deliberations, and must ensure that a
    majority faction of jurors is not attempting to dismiss a dissenting minority
    faction from the jury:

[28] [C]ases involving internal strife amongst jurors pose
    particularly problematic issues, and must be dealt with in a careful and
    sensitive fashion. It is imperative that neither the court, in addressing the
    situation, nor the jury, in responding to it, violates the rule preserving the
    confidentiality of jury deliberations. However, adherence to this cardinal
    principle constrains the courts ability to make inquiries about the internal
    strife.  In addition, the court must be alert to the possibility that the
    internal strife in question is merely reflective of an inability on the part of
    the jury to agree, as opposed to an inability to deliberate.  There is always
    the potential that the request to eliminate the strife issue is merely an
    attempt by a majority of jurors to cast off a dissenting minority opinion. 
    Finally, the court must be conscious of the danger that the entire jury may be
    tainted by the internal strife  not just the particular juror or jurors who
    are subject to the inquiry  and its ability to deliberate compromised, thus
    impairing the integrity of the jury deliberation process.

[48]

It
    follows that, when addressing concerns about jurors alleged misconduct, the
    trial judge should consider whether a recharge on the duties of jurors, or on
    relevant aspects of the evidence or process, would be the best initial
    approach. For example, in
R. v. Peters
, 1999 BCCA 406, 137 C.C.C. (3d)
    26, both the foreman of the jury and one juror wrote notes to the trial judge, indicating
    that the juror felt uncomfortable judging his fellow man and that God would be
    the judge. The trial judge decided to examine the juror in court, where he said
    that he would feel unable to carry on any further sinceI feel that my only
    conclusion will be acquittal. Although the court of appeal upheld the trial
    judges decision to discharge the juror, McEachern C.J.B.C. stated, at para. 78,
    that the better procedure would have been to exhort the jury and await further
    developments:

[78] I am most uneasy about this entire procedure, and I think
    (with the benefit of hindsight) that it might have been better for the trial
    judge to instruct the jurors again on their duty and responsibility as the
    sworn judges in this case, and to await further developments.

[49]

The
    trial judges decisions whether to conduct an inquiry and discharge a juror
    under s. 644, and whether to declare a mistrial are discretionary and subject
    to considerable deference on appeal: see
Giroux
, at para. 27;
R. v.
    Jojic
, 2010 BCCA 577, 266 C.C.C. (3d) 42, at paras. 11, 15-16; and
R.
    v. Lessard
(1992), 74 C.C.C. (3d) 552 (Que. C.A.), at p. 563, leave to
    appeal refused, [1992] 3 S.C.R. vii. However, those decisions are subject to
    challenge when the inquiries result in an intrusion on the confidentiality of
    the jurys deliberation process, threaten the integrity of that process, or
    result in the appearance of unfairness in the trial:
Giroux
, at para.
    35.

F.       Application to this case

The initial inquiries

[50]

After
    receiving the jurors complaints, the trial judge properly consulted with
    counsel about the process to follow, and decided to make inquiries of the two
    impugned jurors first.

[51]

Although
    she was entitled to take this approach, the case law cautions that s. 644
    should not be made into an easy avenue for jurors to tattletale on other
    jurors, with a view to having a dissenting minority juror discharged:
Giroux
,
    at para. 28. Rather, the trial judge should take a cautious approach, and
    consider carefully whether the allegations raised are serious enough on their
    face to engage s. 644. Furthermore, as McEachern C.J.B.C. observed in
Peters
,
    at para. 78, the trial judge should consider whether exhorting the jurors on
    their duties and awaiting further developments would be the best initial
    approach.

[52]

In
    other cases where a juror was discharged for bias or inability to decide the
    case fairly, there was evidence directly from the juror indicating an inability
    to discharge his or her duties: see
Peters
;

R. v. Hahn
(1995), 62 B.C.A.C. 6 (B.C.C.A),
    leave to appeal refused, [1996] S.C.C.A. No. 139; and
R. v. Gordon
,
    2012 ONCA 533. The trial judge did not need to conduct probing inquiries of the
    jury regarding the content of their deliberations. In this case, in the initial
    interviews, the two impugned jurors completely denied the allegations made against
    them, and denied any other problems.

[53]

When
    the two complaining jurors were then asked to explain their allegations against
    jurors 1 and 9, they gave inconclusive evidence to substantiate those
    allegations.

[54]

Both
    confirmed that juror 9, whom they accused of being unable to decide the case
    for religious reasons, had never mentioned any religion. They only assumed from
    her reluctance to answer questions and to join in the purchase of lottery
    tickets that she had religious beliefs that prevented her from judging other
    people. Juror 2 speculated that juror 9 was a Jehovahs Witness.

[55]

With
    respect to the allegations against juror 1, juror 6 did not directly hear juror
    1 make comments indicating a racial bias in the appellants favour. Rather,
    juror 6 said juror 1s comments were made to another juror, and were in turn
    passed through a number of other jurors. Juror 6 did not know the exact wording
    of juror 1s alleged comments, but it was along the line of Im the only
    brother in hereso I have to defend, you know, my brothers. When the trial
    judge asked juror 2 whether other jurors were being influenced by considerations
    outside the evidence including race, bias against the police and possible
    religious inability to pass judgment, juror 2 replied, I agree on the last
    two you said.Race I didnt put down.

[56]

Regarding
    the police issue, juror 6 said that it was the other juror who knew more because
    it was that juror who was sitting beside juror 1, but that juror 1 kept
    bringing up the point that theres so many people wrongly accused, et ceterayou
    know, you cant believe them  meaning the police officers. When questioning
    juror 2, the trial judge asked whether juror 1 had expressed an inability to
    believe the police in any circumstances? I mean theres a difference between
    saying lets look closely at police evidence because I just have a concern, and
    saying Im not going to believe the police no matter what the evidence tells
    me. Juror 2 replied, Not expressed the way you just put itbut expressed in a
    general sense that theres been too many cases of wrongful convictions based on
    police evidence, and theyll find a way to make A, B and C.

After questioning the impugned and
    the complaining jurors, the trial judge should have exhorted the jury on their
    duties and ceased the inquiry

[57]

After
    questioning the complaining jurors, the trial judge was faced with the
    following confluence of factors:

·

She knew from the first note that the jury was deadlocked with ten
    voting to convict and two to acquit.
[1]

·

It was clear that the two impugned jurors were the two who were
    voting to acquit.

·

When questioned, they each denied the allegations against them.

·

The two complaining jurors had not heard any mention of religion
    by juror 9, but had inferred their religious concerns from her behaviour. Only
    one reported the racial concern about juror 1, and that was based on hearsay. The
    police bias report was a general concern by juror 1 about whether police lie,
    but not that juror 1 said he would never convict based on police testimony.

·

After initially agreeing, defence counsel had objected to any
    further questioning of the remaining jurors.

[58]

In
    those circumstances, in order to preserve the secrecy and sanctity of the jury
    deliberation process and the fairness and perception of fairness of the trial,
    the trial judge should have exhorted the jury on their duties and allowed them
    to continue their deliberations. Given the above factors, there was a real
    concern that this was the type of situation contemplated by Blair J.A. in
Giroux
,
    where there was internal strife because the jury could not agree, and the
    majority was attempting to cast off the dissenting jurors when they were
    unable to convince the dissenters of their view.

[59]

Instead,
    the trial judge decided to question the remaining jurors, as well as the
    impugned jurors, about the allegations.

[60]

With
    respect to the trial judge, in this case, the effect of the extensive
    questioning of the jurors about the conduct of the two impugned members was to intrude
    upon the jurys secret deliberation process.

[61]

The
    inquiry required the jurors to disclose statements made by other jurors and
    views expressed in the course of deliberations. The inquiry also asked jurors
    to give their own opinion about other jurors ability to fairly decide the
    case.

[62]

The
    intended purpose of the inquiry was to determine whether the two impugned
    jurors could faithfully discharge their duty to render a true verdict based on
    the evidence, or whether they were instead determined to act on sympathy,
    prejudice or bias, matters extrinsic to the record. However, unless the jurors
    made direct declarations of such a determination, which they did not, the
    inquiry necessarily required an improper parsing of a jurors thought and
    reasoning process.

[63]

In
    particular, the jurors should not have been asked to opine on their fellow
    jurors subjective motivations in the deliberation process and ability to
    decide the case fairly. As Arbour J. observed in
Pan
, at para. 61, jury
    members are expected to bring their entire lifes experience to their
    deliberations and to apply it to the decision-making process. Chief Justice
    McLachlin also discussed this principle in detail in
R. v. Find
, 2001
    SCC 32, [2001] 1 S.C.R. 863, at para. 43.

[64]

Furthermore,
    as Nordheimer J. stated in
Cioppa
, jurors may develop views of the
    evidence as the case progresses, including a negative view of the accused or of
    any witness, such as a police witness. This is not inconsistent with jurors
    duties as long as they remain open to listen to the views and approaches of
    others, and to consider them along with their own views before reaching a
    conclusion. In the end, jurors are not precluded from applying their life
    experiences when assessing credibility, or the likelihood of a conclusion to be
    drawn from circumstantial evidence.

[65]

The
    secrecy and sanctity of the jury deliberation process is intended to allow and
    encourage the free expression of ideas and concerns based on the evidence and
    on the life experience of the jurors. In this case, there was circumstantial
    evidence about the appellants possession of the 519 cell phone. In assessing that
    evidence, jurors were entitled to take into consideration any concerns they had
    about the credibility of the police witnesses. What they were not entitled to
    do was to close their mind to the possible inferences on the basis of a firm
    belief that police always lie to obtain a conviction.

[66]

With
    respect to juror 9, we cannot know what occurred in her mind over the course of
    this process. When the trial judge questioned her again after she first
    requested her own dismissal because she now felt that she was biased, she stated
    that she felt pressure from the other jurors. Later, after she wrote her second
    note, and the jury majority sent a separate note to the trial judge about her,
    she said she no longer felt pressured. She had told the other jurors by then that
    Im done.

[67]

However,
    this took place after juror 9s conduct and statements in the jury room became
    the subject of inquiries directed at her and the other jurors. She was supposed
    to be able to speak freely and confidentially with her fellow jurors. The
    inquiry resulted in her being separated from them, then being asked to
    deliberate with them once again, ultimately as the sole juror in favour of
    acquittal. Although affected jurors will normally be segregated during the
    inquiry process, in this case, the cumulative effect of all of these actions
    could only have negatively affected her attitude to the process and her role in
    it.

[68]

These
    inquiries breached the secrecy of the jurys deliberations and impugned the
    integrity of the jury process and the fairness of the trial itself.

[69]

The
    trial judge stated in her subsequent written reasons that she was not influenced
    by knowing how the two jurors intended to vote when she dismissed them. There
    is no issue in that regard.

[70]

However,
    the concern is with the appearance of trial fairness. It was clear on the
    record, and defence counsel raised the issue numerous times, that the two
    jurors being discharged were almost certainly the two who had voted in favour
    of an acquittal and that once they were discharged, the jury would quickly
    return a conviction. That is exactly what occurred.

[71]

In
    deciding not to declare a mistrial, the trial judge referred to the hard work
    that the balance of the jurors had done and fairness to them. However, it is
    fairness to the appellant and the appearance of fairness in the process that
    are the governing factors.

G.      Conclusion

[72]

This
    was a case of juror strife, where the jury panel was unable to agree on an
    outcome. The trial judges numerous inquiries of the jurors necessarily probed
    the content of their deliberations and undermined the secrecy of the
    deliberative process. The inquires led to the discharge of one juror, then to
    the discharge of the second juror at her own request, when all knew that they
    were very likely the only two holdout jurors voting to acquit.

[73]

Although
    the trial judges individual decisions are discretionary and would be owed
    deference on appeal, the extensive inquiries into the jurys deliberations and
    the discharge of the two jurors who appeared to be the ones in favour of acquittal
    resulted in a breach of the sanctity of the jury deliberation process, the
    appearance of unfairness, and ultimately, an unfair trial.

[74]

I
    would therefore set aside the convictions and order a new trial.

Released: GS Jan 23, 2015

K. Feldman J.A.

I agree. G.R. Strathy
    C.J.O.

I agree. David Watt
    J.A.





[1]
In the future, jurors should be warned not to disclose the results of votes
    when asking the trial judge questions. This will be reflected in a new edition
    of
Watts Manual of Criminal Jury
    Instructions
, to be published in February, 2015.


