



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Vivian, 2012 ONCA
    324

DATE: 20120516

DOCKET: C53086 and C53303

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devon Vivian

Appellant

and

Anthony Grant

Appellant

Peter Copeland, for the appellant Devon Vivian

Michael Lacy, for the appellant Anthony Grant

Robert Gattrell, for the respondent

Heard: April 11, 2012

On appeal from the convictions entered on July 6, 2010 by
    Justice W. Brian Trafford of the Superior Court of Justice, sitting with a
    jury.

MacPherson J.A.:

A.

introduction

[1]

The appellants Devon Vivian and Anthony Grant were each charged with one
    count of first degree murder and four counts of attempted murder relating to a
    shooting in Toronto on June 9, 2007.  The trial proceeded in the Superior Court
    of Justice before Trafford J. sitting with a jury.  On July 6, 2010, the jury
    returned verdicts of guilty of first degree murder and guilty of four counts of
    attempted murder against both men.  The appellants were sentenced to life in
    prison without eligibility for parole for 25 years.

[2]

On these appeals, the appellants do not challenge anything about the
    seven-week trial up to the time the jury began its deliberations, including the
    trial judges
voir dire
and trial rulings and jury charge.
[1]

[3]

However, the appellants submit that the trial judge made two serious
    errors during the jury deliberations, which lasted six days.  First, the
    appellants submit that the trial judge erred in his third exhortation to the
    apparently deadlocked jury, specifically by misapprehending a question from a
    single juror and then improperly singling her out for critical commentary. 
    Second, the appellant contends that the trial judge erred by summoning the same
    juror to the courtroom to advise her of a health concern relating to her
    husband.  The appellants contend that the summons introduced extraneous
    considerations into the jurors deliberations with the potential consequence of
    putting undue pressure on her to return a quick verdict of guilty.

B.

FACTS

(1)

The trial generally

[4]

In light of the grounds of appeal, it is only necessary to set out a
    brief description of the events leading to the murder charges against the
    appellants.

[5]

On June 9, 2007, a blue Honda Civic with five occupants was shot at 13
    times while driving on John Garland Boulevard in northwest Toronto.  Three of
    its passengers were wounded by the bullets while one passenger, Jose
    Hierro-Saez, was killed.  None of the surviving victims could identify who shot
    them.  However, several eyewitnesses stated that the perpetrators were driving
    a silver Mercedes sport utility vehicle (SUV).

[6]

Prior to the shooting, the victims group attended a nearby flea
    market.  While there, they got into an altercation with the appellants that was
    broken up by flea market security.  The appellants arrived at and departed from
    the flea market in a silver Mercedes SUV.  Moreover, cell phone records
    suggested that the appellants were in the vicinity of the crime scene at the
    time of the shooting.

[7]

A police investigation revealed that the appellant Grant was associated
    with a 1999 silver Mercedes SUV.  On June 10, 2007, the police issued a news
    release asking for the assistance of the public in locating a silver Mercedes
    SUV that may have been at the crime scene.  On June 12, 2007, both appellants
    flew to Jamaica.  On June 13, 2007, the silver Mercedes SUV was seen parked in
    an industrial area of Brampton but then disappeared and was not found
    thereafter.

[8]

The appellants did not return to Toronto on their scheduled return
    flight.  The lead police officer, Detective Daniel Sheppard, took steps to
    locate the appellants in Jamaica.

[9]

On August 26, 2007, Detective Sheppard received information that the
    appellant Grant was in police custody in Jamaica.  Detective Sheppard travelled
    to Jamaica to take custody of Grant and brought him back to Canada.

[10]

In
    April 2009, Detective Sheppard began to prepare a public appeal in Jamaica for
    information concerning the appellant Vivian.  On April 6, 2009, Detective
    Sheppard received information that Vivian had voluntarily surrendered to the
    Jamaican authorities.  Vivian was returned to Canada.

[11]

The
    appellants trial unfolded over about seven weeks, starting in the spring of
    2010.  After the rulings on the final
voir dires
were delivered, the
    accused were arraigned before the jury on May 31.  The Crown called its evidence;
    the defence called no evidence.  On June 29, counsel made their closing
    submissions.  On June 30, the trial judge delivered his charge to the jury,
    orally and in writing, and the jury began its deliberations.

(2)

Jury deliberations: June 30  July
    5, 2010

[12]

On
    the evening of July 3, the jury sent a note to the court:

We have come to an impasse on the
    issue of Devon Vivians hair, the testimony of Fazel Baksh, and the security
    video tape evidence.  We are unable to agree on this evidence being exculpatory
    or not, and there is no reasonable expectation of resolving this impasse.  We
    require your assistance and guidance on this matter.

[13]

In
    response, the trial judge, with the agreement of all counsel, delivered a
    standard exhortation, encouraging the jury to do their best to reach a verdict
    in accordance with their oaths.

[14]

In
    mid-afternoon on July 5, the jury sent another note to the court:

We have reached an impasse, we have made progress from a 9-3
    vote to a 11-1 vote yesterday.

We do not feel further discussion will
    change this result.  All jurors have reviewed their position multiple times. 
    One juror has a question which is submitted separately.  We are awaiting
    further direction before proceeding.

[15]

In
    a separate note, juror No. 11 stated:

Your Honour

As you know from the foreman we are at an impasse.

In an effort to get past the impasse perhaps you could help me
    decide whether it is possible to be too objective, or to attach too much
    significance to presumption of innocence and to benefit of the doubt.

I.E. if I discount the presumption of innocence and give no
    benefit of the doubt and choose to apply a cultural aspect to activities that
    drove the situation and discount one witness account then it might be possible
    to feel something more than the present state of feeling that the Crown has
    only satisfied me that they could have done it.

I have agonized over this as I abhor the waste of the Courts
    time as well as the time and effort of my fellow jurors.

If your speaking to me would help (or even be possible) I would
    be very happy to do so.  I have reviewed your instructions in the binder and do
    believe I am following the directions.

Please note: these
    questions/concerns were put to the group and they felt you should hear them.

[16]

After
    an extensive discussion with counsel, both before and after drafting a
    potential response, the trial judge, with the agreement of all counsel, called
    the jury into the courtroom and re-read his original charge concerning
    impartiality and the presumption of innocence.

[17]

The
    trial judge, again with the concurrence of counsel, then made comments directed
    at the single jurors note:

[T]he third paragraph of the second
    note speaks of discounting the presumption of innocence, giving no benefit
    of the doubt and choos(ing) to apply a cultural aspect to activities that
    drove the situation.  All of these phrases are erroneous.  Do not discount the
    presumption of innocence.  The defendants are entitled to a
reasonable
doubt, not
any
doubt.  There is no evidence of any cultural factors
    that may be considered in your deliberations.  Limit your deliberations to the
    evidence in this case.      [Emphasis in original.]

[18]

The
    trial judge also told the jury not to be concerned about wasting the courts
    and fellow jurors time and resources if they failed to reach a verdict.  He
    concluded by, once again, giving a standard exhortation to the jury.

[19]

The
    jury resumed its deliberations at 5:55 p.m. and continued until court was
    adjourned at 7:00 p.m.

(3)

Jury deliberations: July 6, 2010

[20]

During
    the previous days of jury deliberations, the husband of juror No. 11 had sent
    various notes to his wife.  He also demanded to speak to her, but was not
    permitted to do so.  Court staff described him as rude and belligerent, calling
    court staff names and threatening to call the police.  The trial judge, with
    the agreement of counsel, decided not to bring his messages to the attention of
    juror No. 11 nor to interrupt the jury deliberations.

[21]

On
    July 6, the picture changed.  When court opened at 9:26 a.m., the trial judge
    informed counsel that juror 11s husband had called court staff to report that
    he was in a hospital with a cardiac condition and wanted his wife to come to
    the hospital.  Court staff turned the telephone over to the trial judge who
    spoke to the husband and some hospital staff members for about 10 minutes at
    about 8:30 a.m.  The trial judge said that the husband was agitated and angry
    and demanded that his wife be present at the hospital immediately.  The trial
    judge informed the husband that he would not release his wife from the jury
    without further information about his medical condition.  The trial judge also
    spoke to a nurse who said that she would ask the husbands treating physician
    to call the judge.

[22]

The
    trial judge then advised counsel that just as he was about to walk into the
    courtroom, he received a note from the jury stating:

After re-examination of our
    positions and a fresh discussion of the case, there is no reasonable
    expectation we will reach a unanimous verdict.

[23]

Immediately
    after bringing these developments to the attention of counsel, the trial judge
    said:

Now, let me say this.  I anticipated that today I would have
    another note from them saying that they are not able to resolve this case.  It
    was my expectation that they would be exhorted one more time to make an
    appropriate effort to resolve this difference.

This juror has not understood principles of reasonable
    doubt.  Thats clear from her note to the Court.  She has deliberated for six
    days under an incorrect understanding of what principles of reasonable doubt
    are.  It will take some time to disabuse her of that erroneous interpretation
    and cause her to fix on a correct interpretation of what she is supposed to be
    doing in this jury.
So my expectation was that it was going to take one
    more exhortation to make sure that she was fixed on a correct definition of
    principles of reasonable doubt, and could otherwise decide the case as she sees
    fit.

If I am satisfied that she has a correct understanding of those
    principles and she has applied herself diligently and chooses, as she is
    empowered to, to decline to reach a verdict, then I will declare a mistrial in
    this case, but I think it is premature to do that at this stage.  They were
    given the correct definition of reasonable doubt directed specifically at her
    last night at about 6:30 p.m.  They left at 7:00 p.m.  That gives them one-half
    hour to deliberate on the whole case with a correct understanding of those
    principles in mind.

They were back here at 9:30, thereabouts, and they had a note
    shortly afterwards.  Thats not a diligent application of the principles of
    reasonable doubt in the circumstances of the case that this supports, in my
    view, so they will be exhorted one more time at least.  I will not declare a
    mistrial at this stage in those circumstances, so the notes relating to her
    become a live issue at this stage.

My instinct is that she should be
    told what the situation is.  If her husbands life is seriously at risk, as it
    may be for all I know  I suspect it isnt, but it may be  she should know
    about it.  If it is her preference to leave and go to be with her husband, then
    we have to decide whether I should discharge her at this time.  [Emphasis
    added].

[24]

This
    disclosure by the trial judge of his initial instincts about both issues was
    followed by a brief discussion with all counsel.  All three counsel recommended
    that the trial judge not inform juror No. 11 of her husbands medical condition
    without better medical information.  The trial judge said that he would try to
    reach the husbands physician and that he would draft an exhortation that was
    more pointed than it has been for counsel to consider.

[25]

Court
    resumed at 11:25 a.m.  The trial judge reported that he had spoken to the
    husbands cardiologist who has been treating him for many years.  As described
    by the trial judge, the cardiologist reported that:

[The husband] has been in tears
    because his wife is not around him... this is a stress-related condition.  The
    presence of his wife would likely be helpful from a medical perspective. 
    However, [the husband] is being properly cared for at the Trillium Health
    Centre.  He does not regard his life being at risk in these circumstances.

[26]

The
    trial judge then provided counsel with a draft copy of his proposed
    exhortation.  Both defence counsel strongly objected to it on the basis that
    the trial judge was wrong in saying that juror No. 11 did not understand the
    concept of reasonable doubt and wrong to instruct the other jurors to correct
    her misunderstanding.

[27]

The
    trial judge did not accept defence counsels objections or suggestions about
    possible wording of the exhortation.  The court recessed at 11:57 a.m. and
    reconvened at 12:07 p.m. with the jury present.  The trial judge provided this
    instruction and exhortation to the jury, which I set out in full:

Members of the jury, this morning around 9:30 a.m. I received a
    note from your foreperson advising me that you were still at an impasse and,
    further, that at this stage of the trial there is no reasonable prospect of a
    verdict.

This note is a troubling one for the Court, for several
    reasons.

First, you were exhorted last night in terms that I will not
    now repeat, to resume your deliberations in accordance with your oath or
    affirmation.  The exhortation was completed around 6:30 p.m.

Second, you advised the court staff that you would end your
    deliberations for the day at 7 p.m.  Im assuming that you did, thus deliberating
    for an additional 30 minutes on a case that took four weeks to present to you,
    with one additional day for the addresses of counsel and one additional day for
    the charge to the jury.

Third, your deliberations began this morning around 8:30 a.m.,
    meaning you deliberated for a further period of about 60 minutes on this case. 
    So, in effect, you have deliberated for an additional 90 minutes after the last
    exhortation.  That additional 90 minutes is not acceptable to the Court.

It is not acceptable to the Court because the one juror who
    disagrees with the rest of you clearly had an incorrect understanding of the
    onus on the Crown to prove its case beyond a reasonable doubt.  She regarded
    the burden as proof beyond any doubt.

There is a huge difference between proof beyond a
    reasonable doubt and proof beyond any doubt.  Proof beyond a reasonable
    doubt, as previously given to you, involves reason and common sense in the
    context of the evidence as a whole.

If the burden on the Crown was to prove its case beyond
    any doubt, few, if any, people would be convicted of any crime, including
    serious crimes, where the case for the Crown is based upon circumstantial
    evidence, especially if you could consider any part of the evidence in
    isolation from the rest of it.  That is not the law of Canada, nor is it the
    law of any other free and democratic society like Canada.

This error by the one juror is so fundamental that in my
    view it can only be corrected by a comprehensive review of the entire case as a
    whole, not isolating any one part of it from the rest of it in deciding the
    value of the one part.

It is for this reason that it is my view that a further
    deliberation of about 90 minutes is not an appropriate response to the last
    exhortation by the Court.

It is important for the one juror, with the assistance of
    the rest of you, to disabuse her mind of her erroneous understanding of the
    burden on the Crown, to firmly fix her mind on a correct understanding of it,
    and to review the entire case.
It is
    of critical importance to the administration of justice that you do so with
    intelligence and integrity, honouring your oath of office, and respecting all
    of the legal principles and values at play in this case.  For these reasons,
    you will not be discharged now.

As I have said, my objective is not to convince you to change
    your minds, but rather to focus on your process in the deliberations.  Each of
    you must present your own view of the evidence to your fellow jurors. Ensure
    that everyones opinion has been duly considered.

While you may have already formed an opinion as to the proper
    verdict, I would ask that you still keep an open mind and carefully consider
    your colleagues viewpoints. However, in reconsidering your position, I remind
    you that, at the beginning of the trial each of you took an oath or affirmation
    to return a true verdict according to the evidence.

It is crucial that no one betray their oath or affirmation. 
    Therefore, your verdict must be based on the evidence alone.
You must not
    allow yourselves to be influenced by any extraneous considerations, including
    any erroneous interpretation of the burden on the Crown to prove its case
    beyond a reasonable doubt.

The essence of the jury system is the process of reasoning
    together by exchanging views and deliberating with one another: depersonalize
    your deliberations; be polite and constructive in your exchanges with other
    jurors; listen carefully to the views of the others; make sure you understand the
    opinions of the others and the reasons they hold them; examine them
    thoughtfully and objectively; be reasonable.

Do not be intimidated by the task at hand. There is real
    strength in the collective wisdom of the 12 of you. Sometimes, the majority of
    the jurors is correct; sometimes, the majority of the jurors is incorrect.  I
    must emphasize that this does not mean that you should subordinate your own
    genuinely held view of the evidence for the sake of reaching a consensus. Cast
    aside your pride.

If you are satisfied you were incorrect, admit it and move on
    in your deliberations.  A unanimous verdict would be desirable, but you may be
    unable to reach one in this case. You are only required to make an honest and
    diligent effort to try the case to the best of your abilities, based upon a
    correct understanding of the burden of the Crown to prove its case beyond a
    reasonable doubt, not beyond any doubt.

Therefore, I would ask you try once again to reach a verdict.
    This is the time to reflect further on the evidence, to see if, by listening to
    each other, by carefully considering the various positions, and by reasoning
    together, you can come to an agreement and render a unanimous verdict.

Obey your own conscience and your oath or affirmation. If you
    want to ask any questions that further describes the nature of your stalemate,
    I will, with the assistance of counsel, be able to help you more.

Thank you.  [Emphasis added.]

[28]

Having
    heard this exhortation, the jury retired at 12:18 p.m.  The court recessed to
    await the jury verdict.

[29]

At
    3:25 p.m., the court reconvened and both defence counsel applied for a mistrial
    on,
inter alia
, the basis that the emphasized portion of the
    recharge/exhortation set out above was improper.  As expressed by Grants
    counsel in his submission on the application for a mistrial:

It is our position that your exhortation re-charge that was
    done earlier this morning, along with a specific criticism of one particular
    member, a particular member of the jury, was not proper, and, in effect, acted
    to suggest to the juror that she change her vote and find the accused guilty.

...

It is our position that your exhortation/re-charge advising the
    other jury members to act as a group to correct and disabuse her of her point
    of view and certain alleged understandings of the law was not proper.

...

And that the result of this
    exhortation, the way it was phrased to the jury, will be to place significant
    tremendous pressure, unfair pressure, on that jury member to change her mind.

[30]

Crown
    counsel requested a recess before responding to the mistrial application.  The
    court recessed at 4:12 p.m. and resumed at 5:56 p.m.

[31]

Upon
    resumption, the trial judge stated:

Further developments in relation to the juror; 5:08 tonight,
    her daughter called, and said she respects the court system.

The court officers that she has spoken to over the last few
    days have been helpful.  However, it is an emergency and her mother should come
    home immediately.  Asked what the emergency was, she responded that the whole
    situation is very stressful to the family, and it is affecting her fathers
    heart condition.  He is now in hospital and she needs to be home....  That was
    at 5:08 p.m.

At 5:15 p.m. the juror herself has
    approached the staff wanting to know if any of her family have contacted her
    and why she hasnt heard from them....

[32]

Both
    defence counsel took the position that there was no new medical information
    and, therefore, juror No. 11 should not be told about her husbands condition
    and behaviour.  Crown counsel submitted that the daughters communication
    changed the picture and that juror No. 11 should be apprised of her husbands
    situation.

[33]

The
    trial judge agreed with the Crown position.   All counsel agreed that the trial
    judge should be the person to inform juror No. 11 of the family situation, that
    the court reporter should be present and a record made, and that the
    conversation between the trial judge and the juror should take place
in
    camera
, outside the presence of the accused and all counsel.

[34]

At
    6:35 p.m., juror No. 11 met the trial judge in the courtroom.  He began by
    saying Your husband is fine and then reviewed all of the messages from her
    husband and family.  Juror No. 11 thanked the trial judge for the information,
    expressed confidence that the doctors and her daughters could handle the
    situation, voluntarily stated that she was fine and could continue to
    participate in the jury deliberations which were falling into place, and that
    the news about her husband is not going to affect the speed with which I
    address anything.  Juror No. 11 returned to the jury room at 7:02 p.m.

[35]

The
    trial judge summarized for counsel his meeting with juror No. 11.  Crown
    counsel then made submissions on the application for a mistrial.  Defence
    counsel made brief replies.  No counsel said anything about the trial judges
in
    camera
meeting with juror No. 11.  The trial judge reserved his decision
    on the application for a mistrial.

[36]

The
    court recessed at 7:32 p.m.  At 8:12 p.m., court resumed and the trial judge
    announced that the application for a mistrial was dismissed, with written
    reasons to be released in the near future.

[37]

The
    jury returned and rendered verdicts of guilty on all counts against both
    accused.

[38]

On
    July 9, 2010, the trial judge released his reasons for dismissing the
    application for a mistrial.  He said: I disagree with the characterization of
    the impugned exhortation, and the legal analysis of its significance advanced
    by the defence.... The exhortations by the Court were measured and appropriate
    in the circumstances of the case.

[39]

Both
    appellants appeal their convictions.  They do so on two grounds, both of which
    relate to the events described above that unfolded during the jury
    deliberations.

C.

Issues

[40]

The
    issues are:

(1) Did the trial judge
    deliver an improper recharge/exhortation to the jury on July 6, 2010?

(2) Did the trial judge err by
    summoning juror No. 11 to the courtroom to apprise her of her family situation
    on July 6, 2010?

D.

analysis

(1)

The third exhortation

[41]

The
    jury reported, for the third time, that it had reached an impasse on the
    morning of July 6, 2010, its sixth day of deliberations.

[42]

The
    first time the jury reported an impasse, on July 3, the trial judge, with the
    agreement of counsel, provided a standard exhortation.

[43]

The
    second time the jury reported an impasse, on July 5, the trial judge, again
    with the agreement of counsel, re-read his original charge concerning
    impartiality and the presumption of innocence.

[44]

The
    jurys second report of an impasse was coupled with the separate note from
    juror No. 11 that provided an insight into both her reasoning process and her
    current position, namely leaning towards an acquittal of the accused.  The
    trial judge and counsel worked together and agreed on an appropriate response
    to juror No. 11s note, including an instruction to the jury not to discount
    the presumption of innocence and not to apply cultural factors to their
    analysis.  As part of this instruction, the trial judge said: The defendants
    are entitled to a
reasonable
doubt, not
any
doubt.

[45]

The
    trial judges first two exhortations were exemplary.  They were careful,
    sensitive, general in the sense of being directed at all jurors, yet
    simultaneously responsive to the specific concerns of juror No. 11.  Defence
    counsel, properly, agreed with them at the time.  Appellate counsel, properly,
    do not challenge them.

[46]

When
    the jury reported an impasse for the third time, on July 6, they were in their
    sixth day of deliberations.  Obviously, this was a sensitive time, calling for
    the trial judge and counsel to continue to display the same focus and care they
    had brought to formulating a proper response to the two previous reports of
    impasse.  As explained by Cory J. in
R. v. R.M.G.
, [1996] 3 S.C.R. 362,
    at para. 15:

The importance and significance of
    the instructions or exhortation to an apparently deadlocked jury cannot be
    overemphasized. The jurors at this stage are tired, probably frustrated and
    certainly disgruntled. They have given so much of their time and laboured so
    hard with the difficult issues that they are entitled to a careful and balanced
    instruction.

[47]

The
    appellants contend that the trial judges third exhortation was not a careful
    and balanced instruction for two reasons: (1) it proceeded on the basis of a
    misconception that a single juror did not properly understand the principle of
    reasonable doubt; and (2) it improperly pitted the single juror against the
    majority.

[48]

I
    agree with both of these submissions.

[49]

On
    the first point, it is important to note that the trial judge did more than
    provide a third exhortation when the jury reported an impasse for the third
    time.  He also returned to juror No. 11s note from the previous day and
    expressly linked her misunderstanding, as he saw it, of reasonable doubt to the
    continuing impasse.  In doing this, the trial judge characterized juror No.
    11s question as indicating her belief that the burden of proof on the Crown
    was proof beyond any doubt.

[50]

With
    respect, there is nothing in juror No. 11s question to suggest such a belief
    on her part.  Although she used the words benefit of the doubt in her note,
    this does not mean that she was inserting the word any instead of
    reasonable in her thinking.  The trial judge had used the words reasonable
    doubt more than 100 times in his charge.  In her note, the juror said that she
    had reviewed the written charge in the binder, which was identical to the oral
    charge. Moreover, the contents of the note  if I discount the presumption of
    innocence and give no benefit of the doubt... then it might be possible to feel
    something more than the present state of feeling that the Crown has only
    satisfied me that they could have done it  suggest that the juror was aware
    of the relevant principles and was analyzing them in a proper context.

[51]

In
    addition, I observe that although the trial judge usually used the words
    reasonable doubt in his charge, in several places he employed the exact words
    used by juror No. 11 in her note, namely, benefit of the doubt.

[52]

Finally,
    and of particular importance, it needs to be recalled that in his second
    exhortation the trial judge specifically addressed juror No. 11s separate
    note.  In doing so, he said explicitly: The defendants are entitled to a
reasonable
doubt, not
any
doubt.  A fair inference is that juror No. 11, who had
    written a reasonably long note, would have listened carefully to the trial
    judges direct response to her question.

[53]

Nevertheless,
    the trial judge insisted that juror No. 11 continued to misapprehend the concept
    of reasonable doubt even after his second exhortation.  His insistence led him
    to conclude that the relatively short time of further deliberations signified
    that juror No. 11 still had an incorrect understanding of the Crowns onus.  He
    did not pause to consider that his second exhortation might have caused the
    short deliberation time.  Juror No. 11s note asked if she could discount the
    presumption of innocence [and] apply a cultural aspect to activities that
    drove the situation so that it might be possible [for her] to feel something
    more than the present state of feeling that the Crown has only satisfied [her]
    that they could have done it.  Having been told by the trial judge in the
    second exhortation that she was not to discount the presumption of innocence
    and that there was no evidence of any cultural factors that may be considered
    in [her] deliberations, a real possibility is that juror No. 11 maintained her
    opinion to acquit, leading to the continuing impasse.

[54]

For
    these reasons, I conclude that the trial judges immediate response to the
    jurys report of a continuing impasse on July 6  This juror has not
    understood principles of reasonable doubt.  Thats clear from her note to the
    Court.  She has deliberated for six days under an incorrect understanding of
    what principles of reasonable doubt are  was, with respect, incorrect.  The
    day before, the trial judge had responded properly, with the assistance of all
    counsel, to juror No. 11s note.  On July 6, over the strenuous and proper
    objections of both defence counsel, he misconceived juror No. 11s
    understanding of the law.

[55]

On
    the appellants second point, the starting point is Martin J.A.s caution in
R.
    v. Littlejohn
(1978), 41 C.C.C. (2d) 161 (Ont. C.A.), at p. 168:

The trial Judge equally must avoid
    the use of language which is likely to convey to a juror that, despite, his own
    doubts, genuinely entertained, he is, none the less, entitled to give way and
    agree with the majority of his colleagues in the interest of achieving
    unanimity.

[56]

In
    a similar vein, in
R.M.G.
at para. 40, Cory J. stated that it would
    be preferable for a trial judge to avoid putting the situation in confrontational
    terms of opposing sides.

[57]

With
    respect, I do not think that the trial judge heeded these cautions.  In his
    third exhortation, he said that further deliberations of only 90 minutes after
    the second exhortation are not acceptable because the one juror who disagrees
    with the rest of you clearly had an incorrect understanding of the onus on the
    Crown to prove its case beyond a reasonable doubt.  In his third exhortation,
    the trial judge went on to state that it was important for the one juror, with
    the assistance of the rest of you, to disabuse her mind of her erroneous
    understanding of the burden on the Crown, to firmly fix her mind on a correct
    understanding of it, and to review the entire case.

[58]

In
    my view, the likely interpretation of this by all members of the jury is fairly
    clear: juror No. 11 is wrong in her understanding of the crucial legal
    principle in this trial; the other jurors have a proper understanding of the
    principle; juror No. 11 must disabuse her mind of her error; and the other
    jurors should assist her in doing this.  Since the court knew from a previous
    note that the tentative vote was 11-1, with only juror No. 11 leaning towards
    acquittal, the language chosen by the trial judge in his third exhortation,
    read in a common sense way, did pit the majority and minority against each
    other.  The trial judge was saying, quite bluntly, that 11 jurors were right
    and juror No. 11 was wrong.

[59]

The
    Crown contends that, even if the components of the third exhortation discussed
    above were wrong, there were other elements of the exhortation and the
    surrounding context that offset the error.  The Crown argues, as Cory J. said
    in
R.M.G.
,
at para.
    50: Not every improper reference in an exhortation will lead to a new trial.  Instead,
    the exhortation must be viewed as a whole and in the context of the
    proceedings.

[60]

The
    Crown points out that the jury was given the correct legal test with respect to
    reasonable doubt throughout the jury charge and the various exhortations, that
    the jury continued its deliberations for about seven hours after the third
    exhortation before returning their verdicts, that the jury charge and the first
    two exhortations were exemplary, and that the words in the third exhortation
    after the impugned words  namely, a return to the words in the standard
    exhortation  cured the problem.  The Crown adds that, fortuitously, there was
    a meeting later that afternoon between the trial judge and juror No. 11 in
    which the juror said that she was fine, the jury deliberations were falling
    into place, and the news about her husband would not affect the speed with
    which I address anything.  The Crown submits that these factors, taken
    together, belie any suggestion that the challenged words in the exhortation,
    even if improper, actually affected the integrity of the jury deliberations.

[61]

I
    do not accept this submission.  The Crowns submission that later events go to
    show that juror No. 11 was not actually affected, even if accepted, misses the point. 
    The question to be asked is not whether the words used by the trial judge
    actually affected the jurors decision; rather, the question is whether the
    words used had a real potential to do so.  In my view, they clearly did.  The
    singling out of juror No. 11, the misconception by the trial judge about her
    understanding of reasonable doubt, and the strong instruction to her to
    disabuse her mind do not constitute, in the language of
R.M.G.
, a
    careful and balanced instruction.  The trial judges error in the wording he
    chose in the third exhortation is simply too substantial to pass by.

[62]

For
    these reasons, I would allow the appeal on the first ground of appeal.

(2)

The meeting between the trial judge and juror No. 11

[63]

In
    light of my conclusion on the first ground of appeal, it is not necessary,
    strictly speaking, to consider the second ground of appeal.  However, because
    it was raised and argued, and in the interest of completeness, I will address
    it briefly.

[64]

The
    appellants submit that the trial judge erred by summoning juror No. 11 to the
    courtroom in the late afternoon of July 6, 2010 to apprise her of her family
    situation, namely, that her husband was in hospital with a potential cardiac
    issue.  I note, parenthetically, that the appellants do not suggest that the
    structure (
in camera
in the courtroom with the trial judge and a court
    reporter) or contents of the communication between the trial judge and juror
    No. 11 were inappropriate.  Indeed, all counsel agreed with these aspects of
    handling a tricky issue at a sensitive time.

[65]

I
    do not accept the appellants submission on this issue.  In my view, the trial
    judge handled this unusual issue well from start to finish.  He spoke to the
    family cardiac physician and was assured that the jurors husband was receiving
    good care and was not in any danger.  Accordingly, he decided not to inform
    juror No. 11 of her husbands situation.  However, many hours later, the
    message from one of the jurors daughters saying that there was now a family
    emergency, inclined him to a different view:

My sense is that this is an
    explosive situation at this stage from the familys perspective, and that it is
    a prudent step to advise her of everything at this stage.

[66]

I
    cannot say that it was unreasonable for the trial judge to exercise his
    discretion in this fashion.  Moreover, in a sense, the proof is in the pudding.
      The trial judge handled the conversation with juror No. 11, from his opening
    Your husband is fine to his assurance near the end This is not meant to put
    any pressure on you at all in impeccable fashion.  And juror No. 11 was
    grateful to receive the information, confident that her daughters could handle
    the situation, and completely content to stay on the jury.  Finally, after the
    trial judge reported to counsel the tone and content of his discussion with the
    juror, none of the counsel objected.

[67]

For
    these reasons, I would reject this ground of appeal.

E.

disposition

[68]

I
    would allow the appeals and order a new trial.

Released: May 16, 2012 (D.D.)

J.C. MacPherson J.A.

I agree Doherty J.A.

I agree Robert J. Sharpe
    J.A.





[1]
In their Amended Notices of Appeal and in their joint factum, both appellants
    submitted that the trial judge erred by failing to instruct the jury on the
    legal defence of provocation.  At the oral hearing of the appeals, the
    appellants abandoned this ground of appeal.


