



WARNING

The
President
of the
    panel hearing this appeal directs that the following should be attached to the
    file:

The unredacted Reasons for Decision
    in this matter, released to the parties on February 4, 2020, may contain
    information protected from disclosure by the common law jury secrecy rule and
    s. 649 of the
Criminal Code
.

Upon the release of the decision to
    the parties this
court
therefore ordered that subject to a further decision of this court in this
    matter, these unredacted reasons shall not be disclosed to any other persons
    except for the parties and their counsel and shall not be published in any manner.

With the assistance of submissions
    from counsel for the parties, the court has determined that the attached
redacted
version of the reasons should be
    released to the public. The full reasons along with the rest of the Court of
    Appeal file remain under seal, subject to further order of this court.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.B., 2020 ONCA 84

DATE: 20200204

DOCKET: M50979 (C66940)

Roberts, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Applicant

Andrew Menchynski and Jill R. Presser,
    for the applicant

Elise Nakelsky and Katie Doherty, for
    the respondent

Heard: January 10, 2020

Reasons for
    Decision

[1]

The applicant seeks the appointment
    of a special commissioner under s. 683(1) of the
Criminal Code,
R.S.C. 1985, c. C-46
,
to inquire into allegations of juror misconduct that came
    to light following his conviction for first-degree murder. The trial judge
    dismissed his application for a post-verdict inquiry.

[2]

Specifically, the applicant seeks an
    examination before a special commissioner of the juror who, in the days following
    the verdict, communicated allegations to defence counsel, the trial judge and Crown
    counsel that during jury deliberations, this juror was subjected to undue
    pressure, verbal abuse and other mistreatment [16 words redacted]. This juror also
    alleged that the jury was exposed to extrinsic information [11 words redacted] through
    the comments expressed by other jurors.

[3]

The Crown opposes this application
    on the ground that any inquiry would be impermissible because of the jury
    secrecy rule, and that there is an inadequate foundation that extrinsic
    misconduct occurred to warrant inquiry.

[4]

We agree with the Crowns position
    on this application.

[5]

It is useful to lay out some foundational principles concerning the
    jury secrecy rule. At common law, matters intrinsic to the deliberation process
    such as statements, opinions, arguments and votes made by jurors in the course
    of their deliberations, as well as information about a jurors state of mind or
    emotion, or a jurors ultimate decision, are inadmissible in court proceedings:
R. v. Pannu
, 2015 ONCA 677, 127 O.R. (3d) 545
, at para. 64;
R. v. Pan
;

R. v. Sawyer
,
    2001 SCC 42, [2001] 2 S.C.R. 344, at para. 77. Disclosure of this kind of information
    may engage criminal liability under s. 649 of the
Criminal
    Code
.

[6]

Jury secrecy is widely
    acknowledged as important to maintain the integrity of the trial by jury. Jury
    secrecy advances three central goals: (1) to promote full and frank deliberations
    free from extrinsic pressures; (2) to assure the finality and authority of the
    verdict; and (3) to protect jurors from repercussions:
Pan
, at paras. 50-52.

[7]

The scope of the jury secrecy rule
    is not, however, without limits. Facts, statements and events extrinsic to the process
    of jury deliberation are not caught by this rule:
Pan
, at para. 77. Therefore, evidence that the jury was
    exposed to outside information or influence may be admissible. There is also a
    statutory exception in s. 649 of the
Criminal Code

for investigations
    and court proceedings related to obstruction of justice charges pursuant to s.
    139(2) of the
Criminal Code
in relation to a juror.

[8]

The question for our determination
    on this application is whether the applicant has met his burden of demonstrating
    that there is a sufficient basis to consider that a jury was likely exposed to
    extrinsic influence or that an obstruction of justice occurred, such that the
    record should be expanded through further inquiry for the purposes of appeal:
R. v. Lewis
, 2017 ONCA 216,
    at para. 45.

[9]

We are not persuaded that the
    applicant has met this burden.

[10]

Much of the information disclosed in
    the application relates to statements, opinions, arguments and votes made by
    jurors in the course of their deliberations, as well as jurors states of mind
    or emotion, and their ultimate decisions. This information is intrinsic and protected
    from inquiry by the jury secrecy rule.

[11]

Moreover, assuming for our
    analysis that the complaining jurors allegations are true, [sixteen words
    redacted], [the content of the allegations] does not approach the threshold
    necessary to warrant an investigation under s. 139(2) of the
Criminal Code
. Rather, [they]
    can be understood as expressive of the frustrations that sometimes erupt in the
    ordinary course of jury deliberations. [Two words redacted] [Inappropriate
    expressions of frustration], while regrettable, can be an inherent problem and are
    therefore intrinsic to the very difficult job that a jury must undertake to
    reach a well-considered verdict. As stated by Donald J.A. in
R. v. Frebold
, 2001 BCCA
    205, 152 C.C.C. (3d) 449, at para. 40, leave to appeal refused, [2001] S.C.C.A.
    No. 342:

[J]udges 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 working 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
.

[12]

Similarly, [five words redacted] [the
    content of the allegations] described by the juror arose in the course of a debate
    during deliberations and is thus intrinsic to the deliberation process. Again, on
    this record, while not to be condoned, [four words redacted] [the content of
    the allegations] does not appear to be more than another expression of frustration.
    Based on the complaining jurors description of events, there is an
    insufficient evidentiary foundation for concluding that [three words redacted] [it]
    represented an assault or an attempt at intimidation contrary to s. 139(2) of
    the
Criminal Code
.

[13]

Finally, the opinions of other jurors
    about [three words redacted] seem to be no more than opinions, which are
    intrinsic to jury deliberations. Nor is there any information about the source
    of the information shared by the jurors about [three words redacted]. There is therefore
    no basis for apprehending that extrinsic information tainting the deliberation was
    brought into the jury room.

[14]

In consequence, there is not a
    sufficient evidentiary basis to warrant the requested inquiry. We therefore dismiss
    the application.

[15]

On the agreement of the parties,
    we continue the trial judges publication prohibition and sealing orders with
    respect to the application record, including the application judges reasons,
    and the parties
facta
in order to protect the identities of the jurors and
    the secrecy of their deliberations.

L.B. Roberts J.A.

David M. Paciocco J.A.

A. Harvison Young J.A.


