



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2017 ONCA 216

DATE: 20170317

DOCKET: C56176

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christophe Lewis

Appellant

James Lockyer and Lance C. Beechener, for the appellant

Michael Bernstein, for the respondent

Heard: February 27, 2017

On appeal from the conviction entered on December 16,
    2011 and the sentence imposed on April 25, 2012 by Justice J. David McCombs of
    the Ontario Superior Court of Justice, sitting with a jury.

Pardu
    J.A.:

[1]

The appellant was convicted of second degree
    murder. He submits that the trial judge erred in two respects:

1.

Leaving
    second degree murder with the jury when there was no air of reality to that
    offence on the particular facts of this case; and

2.

Failing
    to conduct a more expansive inquiry into the possibility that the jury may have
    been exposed to extrinsic evidence.

A.

The Crown Theory

[2]

The Crown theory was that the appellant killed
    Kerlon Charles in retaliation for the victim having robbed him of a kilogram of
    cocaine, a firearm and money a few days earlier.

[3]

The appellant met Cleavon Springer, a key Crown
    witness, and six others in a hotel room. Each one was armed with a gun. The
    appellant had a TEC-9 handgun. They devised a plan to lure the victim to a
    vacant apartment. The appellant put on a bulletproof vest. The appellant and
    six others drove to the apartment. According to Springer, the appellant hid in
    a closet with his gun. The others secreted themselves in the apartment.

[4]

Once the victim was in the apartment and the
    door was locked, a melee ensued. The deceased was on the floor and tried to
    pull a gun out of his pants. Springer testified that someone bumped into him,
    causing his own cocked firearm to fall out of his pocket and discharge when it
    hit the floor, coming to rest within reach of the victim. Springer testified
    that as he bent down to retrieve his gun, a gunshot went off behind him and he
    was sprayed with blood from the deceased. He turned to see the appellant
    pointing his TEC-9 at the deceased.

[5]

All but three fled the apartment. According to
    Springer, the appellant said, I hit him once. Let me make sure that hes
    finished. Springer said that the appellant walked back into the living room
    where the deceased was lying on the floor and fired five or six shots in rapid
    succession at the deceased. The remaining three fled from the apartment.

[6]

Springer testified that, when he met up with the
    appellant after the shooting, the appellant told him that he had been chased
    through a cemetery and had discarded the TEC-9 in a dumpster or garbage can.

[7]

There was evidence supporting Springers
    evidence:

1.

Surveillance video recordings from the hotel showed the appellant
    leaving the hotel with the other participants right before the shooting.

2.

The video shows the appellant wearing a black tuque with a brim. A
    hat like this, with DNA corresponding to the appellants, was found close to
    the scene of the killing, together with a bulletproof vest said to have been
    worn by the appellant. The TEC-9 was also found close by.

3.

The victim had eleven gunshot wounds, all caused by the TEC-9.

4.

The appellant was in constant telephone contact with the other
    persons present in the apartment before the meeting in the hotel room.

B.

The Defence position

[8]

The defence position at trial was that the
    appellant was not in the apartment at the time of the shooting. The defence
    urged the jury to conclude that Springer was a liar, that Springers own
    inconsistent statements about how the shooting took place, his criminal history
    and his own participation in the events made his evidence unbelievable.
    Springer volunteered information about the appellant four years after the
    killing, after he was himself charged with a serious offence. Springer was
    never charged for his participation in the killing of Kerlon Charles. Springer
    had a motive to frame the appellant in order to protect himself and one of the
    others with whom he had a profitable criminal association. He was proven to
    have lied under oath in the past.

[9]

Springer was the only witness who testified that
    the appellant shot Kerlon Charles. The trial judge gave the jury a strong
    warning about the dangers associated with Springers evidence.

C.

The Charge to the Jury

[10]

The Crown and defence agreed that first degree
    murder and manslaughter should be left with the jury. The defence objected to
    leaving second degree murder with the jury. According to Springers evidence, this
    was an execution committed by the appellant, after confinement of the victim.
    The defence submitted that no interpretation of Springers evidence could lead
    to a conclusion that the appellant was not the shooter. If the jury was not
    convinced that events unfolded just as described by Springer, an acquittal was
    necessary. Leaving second degree murder with the jury would invite them to
    settle on an unprincipled compromise verdict, without determining whether
    Springers evidence proved the appellants guilt of the crime embodied in the
    Crowns theory of the case beyond a reasonable doubt.

[11]

The trial judge disagreed. It was common ground
    that whoever the shooter was, that person was guilty of first degree murder.
    The trial judge instructed the jury that the appellant could be guilty as a
    party to the murder, even if they had a reasonable doubt that he was the
    shooter. He instructed the jury that guilt on this basis could follow if they
    were convinced beyond a reasonable doubt that the appellant helped or
    encouraged the shooter while knowing that the shooters intention was to commit
    murder. He told them mere presence at the scene was not enough.

D.

Analysis

[12]

The appellant renews the same argument
    concerning the jury charge on appeal. I do not accept that argument.

[13]

The trial judge was correct to leave second
    degree murder with the jury. A reasonable jury could well have doubts that
    Springers evidence was trustworthy enough to conclude that the appellant was
    the shooter, but could be satisfied, on the whole of the evidence, that the
    appellant was in the apartment to add force to the attack and that he knew the
    victim was to be murdered.

[14]

The video surveillance evidence showing the
    appellant in company with the others, leaving the hotel just before the
    shooting, the location of the black tuque with DNA matching the appellants
    genetic profile, the appellants motive and the phone calls all could have
    persuaded the jury that it was safe to rely on Springers evidence that the
    appellant was in the apartment and to conclude that it was proven beyond a reasonable
    doubt that he was there to assist in the murder.

[15]

This was not a case like
R. v. Walker
(1994), 18 O.R. (3d) 184 (C.A.),

where the Crown asked the jury to disbelieve its own witness and
    come to a verdict for which there was no evidentiary foundation. Nor was this a
    case like
R. v. Wong
(2006), 209 C.C.C. (3d)
    520 (Ont. C.A.), where no reasonable view of the evidence could cause a jury to
    acquit on the offence as charged, but to convict on an included offence. Here,
    the jury could well have believed all of Springers evidence about what
    happened that night. However, given Springers unsavoury character, the jury
    might have felt it unsafe to convict on first degree murder. This would have
    been a rational approach to the evidence, the burden of proof and the trial
    judges
Vetrovec
warning.

E.

Jury Issues

[16]

After conviction, when the matter came before
    the trial judge for sentencing, defence counsel told the trial judge that one
    of the jurors had made an anonymous call to him to say that a true verdict was
    not rendered. Defence counsel terminated the discussion, arranged for another
    lawyer to communicate with the juror and informed the Crown.

[17]

On January 16, 2012, counsel for the juror, Ms.
    S, attended before the trial judge and advised of her intention to bring an
    application for a juror inquiry. The trial judge warned counsel of the
    provisions in the
Criminal Code
relating to
    dealings jurors after a verdict and warned her to be very careful: I am asking
    you to think carefully whether it is appropriate that it be filed in affidavit
    form. He told Ms. S that the law precludes discussion of activities in the
    jury room and recommended that she think it over and discuss it with her
    colleagues.

[18]

The Crown asked for a factual record to be
    placed before the trial judge; the trial judge indicated that something should
    be provided to him in affidavit form. Ms. S. intended to file an affidavit as a
    factual basis for her proposed application.

[19]

Ms. S. filed an application record on behalf of
    the juror which indicated,

The applicant intends to argue that this
    Honourable Court hold an inquiry of [the juror at issue in this appeal] in
    order to determine whether there has been a miscarriage of justice in that, she
    has not rendered a true verdict, voluntarily.

[20]

Ms. S. filed an affidavit by the juror to the
    effect that the juror had been coerced and bullied by the other jurors during
    deliberations. Although when polled the juror had expressed agreement with the
    verdict, and despite participating in making a parole eligibility
    recommendation, the juror swore in her affidavit this was all a result of being
    intimidated, indicating I was a weak and fragile individual who did not have
    the strength to withstand the aggression, the bullying and the hostility in the
    closed off jury room. The juror mentioned feeling pressured to agree so that
    the jurors could go home to their families. The juror also mentioned being
    forced to listen to and take in information about the accused person that was
    not heard in the courtroom and this I knew to be wrong. The matter was
    adjourned.

[21]

Crown counsel, defence counsel and Ms. S
    appeared again before the trial judge. Ms. S. indicated that there was some
    suggestion from the responding materials filed (presumably from the Crown) that
    the juror had violated s. 649 of the
Criminal Code
and may be in some jeopardy. Ms. S. indicated that defence
    counsel should be the one to pursue the argument for a juror inquiry. The Crown
    and defence counsel, as well as Ms. S., agreed that the juror did not have
    standing to make the application. Defence counsel indicated we are
    fundamentally joining the motion that has been brought by Ms. S in substance.

[22]

There was discussion between the Crown, defence
    and the trial judge about whether the trial judge should conduct an inquiry to
    establish an evidentiary record for consideration by this court. The Crown
    suggested that if the defence wanted to establish a record for that purpose,
    they should appeal and make use of s. 683 of the
Criminal Code
, which sets out various methods of placing evidence before a court
    of appeal.

[23]

Defence counsel indicated that he proposed to
    rely on the affidavit of the juror that had already been filed. Defence counsel
    asked for clarification of the Crowns position:

Is it the Crowns position that if, without
    conceding, that the Court were to conclude that there was a limited
    jurisdiction creating evidentiary foundation that that evidentiary foundation
    is contained in the affidavit itself thats now before the court?

[24]

The Crown responded that that was correct.

[25]

The trial judge dismissed the jurors
    application for lack of standing, and indicated that counsel for the appellant
    wished to bring an application and will file the appropriate notice of
    supporting materials. The trial judge made an order sealing the documents
    which had been filed on the juror issue. The matter was adjourned to deal with
    two questions, firstly whether the trial judge had jurisdiction to embark on an
    inquiry, and, secondly, whether he ought to do so.

[26]

The trial judge heard from the Crown and defence
    counsel and released reasons on February 16, 2012, which are reported at 2012
    ONSC 1074. The record before this court does not contain any new application
    materials filed on behalf of the appellant. However, the reasons of the trial
    judge specify at para. 13, Mr. Lewis asks that I commence an inquiry to
    ascertain whether an irregularity occurred that questions whether a true and
    unanimous verdict was rendered. The appellant argued that the jurors affidavit
    gave rise to a reasonable concern that the verdict as rendered was not a true
    verdict, given that a verdict not based exclusively on the evidence and the law
    is not a true one.

[27]

The trial judge accepted that he had
    jurisdiction to embark on a further inquiry but concluded that he should not do
    so in this case. In his opinion, the affidavit already before the court
    provided a sufficient evidentiary record for consideration on appeal.

[28]

He referred to
R. v. Pan; R. v.
    Sawyer
, 2001 SCC 42, [2001] 2 S.C.R. 344, dealing with
    the juror secrecy rule, at para. 77:

[S]tatements 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.

[29]

He noted Arbour J.s observation at para. 59
    that expressions of opinion arising from a jurors life experiences are
    intrinsic to the jurys deliberation process, but a jurors introduction of
    information not properly before the court by reason of an exclusionary rule or
    other reasons would be extrinsic evidence and would be admissible for review on
    appeal to determine whether or not there is a reasonable possibility that this
    information or influence had an effect on the jurys verdict.

[30]

The trial judge concluded that the allegations
    in the jurors affidavit referred to matters intrinsic to the jurys
    deliberations and were inadmissible to impeach the properly recorded unanimous
    verdict.

[31]

The trial judge found that the comments
    attributed to one of the other jurors  namely, that the accused was of bad
    character, likely had a criminal record and was in a gang  did not suggest
    that the juror conducted research outside of court and introduced the evidence
    into the jury deliberations. Rather, if the comments were made, they appear to
    have been expressions of opinion by the juror. In his reasons at para. 30, he
    cited
Pan;

Sawyer
for the principle
    that jurors are entitled to express their opinions based upon their life
    experiences and inferences they draw from the evidence properly adduced in
    court. He noted further that the juror at issue in the present case acknowledged
    in the affidavit an awareness that the expressions of opinion did not
    constitute evidence heard in the courtroom.

[32]

In the affidavit, the juror mentioned receiving
    an email several days after the verdict. The affidavit explains that the juror

[R]eceived an email from the specific juror
    that had taken control of the room and  had forwarded numerous websites about
    Christophe Lewis and his prior involvement in a 2005 murder, many other pages
    associated with his criminal record and his bad character. I was provided with
    numerous news stories and alike. This was the information that [the other
    juror] had been alluding to.

[33]

I take it from the trial judges conclusions
    that he did not consider that this amounted to evidence that extrinsic material
    had been placed before the jury during deliberations. Rather, it appears more
    likely that this was material unearthed after the verdict to demonstrate that
    the jurors opinion that the appellant likely had a criminal record and was in
    a gang was correct.

F.

Analysis of jury issue

[34]

The appellant submits that the affidavit from
    the juror established that extrinsic material was placed before the jury during
    deliberations. I do not agree.

[35]

I begin with the premise that the trial judge
    was in an ideal position to assess whether the affidavit showed that extrinsic
    material had been placed before the jury. He had the advantage of listening to
    all of the evidence. Moreover, there was a factual basis for the jurors
    opinion in the trial evidence. According to some of the evidence at trial, the
    appellant was in constant contact with known violent criminals and gun
    traffickers; the appellant had been robbed of a gun and a kilogram of cocaine; and
    he was able to assemble a group of seven armed men to confront the victim. The
    trial judge concluded that the jury was not exposed to extrinsic material.

[36]

With the benefit of a written record, I agree
    with the trial judges interpretation of the affidavit. As the trial judge
    held, at most the affidavit suggested that some jurors formed an opinion as to
    the appellants bad character, criminality or gang affiliation or conducted
    external research after the jury rendered its verdict. The affidavit did not clearly
    establish the presence of extrinsic material during deliberations and therefore
    did not displace the presumption that jurors will perform their duties
    according to their oath or solemn affirmation:
R. v. Bains
, 2015 ONCA 677, 127 O.R. (3d) 545, at
para. 61.

[37]

I repeat the juror secrecy rule referred to by
    the trial judge and articulated in
Pan
;

Sawyer
, at para. 77:

[S]tatements 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.

[38]

In
Danis v. Saumure
, [1956] S.C.R. 403, Kerwin C.J. wrote at p. 406 that [s]tatements
    or affidavits by any member of a jury as to their deliberations or intentions
    on the matter to be adjudicated upon are never receivable.

[39]

Other jurisdictions have concluded that this
    kind of evidence is inadmissible. In
R. v. Frebold
, 2001 BCCA 205, 87 B.C.L.R. (3d) 221, a juror wrote a letter to the
    trial judge complaining that they felt bullied into the guilty verdict and
    regrets joining that verdict: para. 29. The juror complained that the other
    jurors made up their minds right away and were impatient and aggressive, even
    verbally abusive at time with those who were undecided and wanted to review the
    evidence carefully: para. 29. The British Columbia Court of Appeal concluded
    that the allegations were intrinsic to the deliberation process and
    inadmissible. Donald J.A. wrote at para. 40:

The letter also engages each of the three
    policies supporting the secrecy rule. Assuming the letter to be true, the
    dynamics of the process as described were hardly edifying, but judges cannot
    monitor juries for good manners and polite discourse. Jurors have a difficult
    enough job without running the risk that their comportment in the jury room
    will become the subject of public scrutiny. Some jurors may be stubborn,
    overbearing, hyperaggressive, dismissive of others or many other bad things in
    wording towards a decision, despite the directions of the trial judge to listen
    carefully to the views of others in the jury room, but that is a problem
    inherent in a jury system. It should be remembered that the right to a jury has
    been constitutionally enshrined in s. 11(f) of the
Charter
.

[40]

Similarly, in
R. v. Ferguson
2006 ABCA 36, 384 A.R. 318, a juror wrote a letter to the trial
    judge to say that [their] decision did not reflect [their] true feelings and
    blamed pressure by other jurors for their agreement in court to the verdict:
    para. 13. The Alberta Court of Appeal found these were matters intrinsic to the
    jury deliberation process and inadmissible. OBrien J.A. stated at para. 46 the
    three rationales to jury secrecy rule outlined in
Pan; Sawyer
: (1) the promotion of full and frank debate by the jurors free from
    potential extrinsic pressures; (2) the assurance of finality and the authority
    of a verdict; and (3) the protection of jurors from repercussions. OBrien J.A.
    concluded at para. 52:

In the end, an inquiry into the
    matters disclosed by the juror in her letter would necessarily invite an
    examination into the inner workings of the deliberative process and would
    necessarily require disclosure of what went on within the confines of the jury
    room. As already noted, sound policy reasons exist for rejecting an attempt by
    any juror to impeach a verdict either through disclosure after the public
    verdict of any private and secret reservations at the time of the vote or by
    repudiating the vote count by that juror in the discharge of his or her duties
    because of a change of mind in the days following the jury verdict.

[41]

OBrien J.A.s opinion in Ferguson alludes to
    how jurors second thoughts may be inherently unreliable. Indeed, as Arbour J.
    observed in
Pan; Sawyer
, at para. 82:

In addition, it is not at all clear that
    evidence given by jurors after the verdict concerning the substance of their
    deliberations would be a good indication of what actually occurred in the jury
    room. As the majority of the Court of Appeal notes at para. 148:

It is also
    questionable how reliable a post-verdict reconstruction of a jurys
    understanding of the evidence and the law would be. Memories are likely to
    fade. Individual jurors could be subject to pressure from litigants who want to
    influence the process. Further, some jurors, for any number of reasons, may
    want to revisit their decision and hence, unwittingly or not, could tailor
    their recollection accordingly,

This is particularly true if jurors are made
    aware, after the verdict, of the existence of properly excluded evidence which
    may lead them to reassess the facts in a different light.

[42]

The appellant argues further that the affidavit
    was at the least ambiguous and that on that ground the trial judge should have
    embarked on a more extensive inquiry. I do not agree.

[43]

Preservation of the secrecy of jury
    deliberations is of vital importance to the proper administration of criminal
    justice. As Arbour J. noted in
Pan; Sawyer
the
    rule helps to ensure that jurors feel comfortable freely expressing their
    views in the jury room (para. 81), and, further, [T]he secrecy of the
    deliberation process, both during and after the conclusion of the trial, is a
    vital and necessary component of the jury system (para. 83). Arbour J. stated
    at para. 80:

If jurors know that the views they express in
    the jury room may eventually come to light, they may be less inclined to argue
    for a verdict that may be perceived as unpopular. For example, a juror who has
    serious concerns about the foundations of a conviction might rapidly accede to
    the majority viewpoint of convicting an accused charged with a horrible crime
    rather than attempt to argue for, or even explore out loud, the arguments
    favouring an acquittal, fearful of possible negative public exposure.

[44]

In the case at hand, the trial judge did not err
    in declining to inquire further into the jurys deliberative process as the
    appellant submits. The tenuous nature of the evidence advanced as possibly
    suggesting that the jury was exposed to extrinsic evidence, and the substantial
    violations of the juror secrecy rule embodied in the affidavit, must be weighed
    against the importance of the secrecy of jury deliberations. For the trial
    judge to have enlarged the inquiry would have necessarily meant examining other
    jurors, as questioning only the juror who was the author of the affidavit would
    be unlikely to produce a balanced view of what went on in the jury room. This
    would have been a substantial intrusion on the other jurors who had already
    made an enormous contribution to their community by serving as jurors. The need
    for stable and final jury verdicts means that there should be an inquiry only
    where there is a credible basis to conclude that a jury may have been exposed
    to extrinsic evidence.

[45]

Where a trial judge has not conducted an
    inquiry, or a party considers that the inquiry did not go far enough, but there
    is a sufficient basis to consider that a jury was likely exposed to extrinsic
    influence, the partys remedy is
to
move to expand the record on
    appeal pursuant to s. 683 of the
Criminal Code
.

[46]

Here, the affidavit prepared by Ms. S was
    replete with inadmissible evidence about the deliberations. Section 649 of the
Criminal
    Code
makes it an offence for any juror to disclose any
    information relating to the proceedings of the jury when it was absent from the
    courtroom. Ms. S put herself and the juror in jeopardy by filing an affidavit
    detailing the jurors complaints about the deliberation process. The affidavit was
    expressed in language one would expect from a lawyer, not a lay juror who might
    not be aware of the criminal offence. This made it more difficult to evaluate
    the authenticity of the jurors claims.

[47]

Counsel prepare an affidavit like this at their
    peril. The better course is to avoid all but publicly available information in
    the affidavit and leave it to a judge or commissioner to control the
    questioning of a juror, either in the course of an inquiry by the trial judge
    or by the means set forth in s. 683 of the
Criminal Code
for placing evidence before a court of appeal.

G.

conclusion

[48]

For these reasons, I would dismiss the appeal on
    both grounds. To protect the secrecy of juror deliberations, there will be a
    publication ban prohibiting the publication of any information which could
    identify a juror in this case and continuing the sealing order in relation to
    the documents filed in this court dealing with the jury issues.

J. MacFarland J.A.

G. Pardu J.A.

G.T. Trotter J.A.

Released: March 17, 2017


