R. v. Pan; R. v. Sawyer. The proposition that the jury must deliberate in private, free from outside interference, is a principle that has deep roots in the English common law. The common law rule of jury secrecy, which prohibits the court from receiving evidence of jury deliberations for the purpose of impeaching a verdict, similarly reflects a desire to preserve the secrecy of the jury deliberation process and to shield the jury from outside influences. 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. Evidence indicating that the jury has been exposed to some information or influence from outside the jury should be admissible for the purpose of considering whether there is a reasonable possibility that this information or influence had an effect upon the jury’s verdict. Such evidence should be admissible regardless of whether it is a juror or someone outside the jury who offers the evidence. However, while jurors may testify as to whether they were exposed to extrinsic information in the course of their deliberations, the court should not admit evidence as to what effect such information had upon their deliberations. While jurors appropriately bring to their task their entire life’s experiences, if a juror, or a third party, conveys to the jury information that bears directly on the case at hand that was not admitted at trial, by reason of an oversight or a strategic decision by counsel or, worse yet, by operation of an exclusionary rule of admissibility, then it is truly a matter “extrinsic” to the deliberation process and the fact that it was introduced into that process may be revealed.
R. v. Pan; R. v. Sawyer, [2001] 2 S.C.R. 344, 2001 SCC 42
Rui Wen Pan Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney
General of Quebec, the Attorney General of Manitoba,
the Attorney General of British Columbia and
the Criminal Lawyers’ Association (Ontario) Interveners
and between
Bradley Sawyer Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney
General of Quebec, the Attorney General of Manitoba,
the Attorney General of British Columbia and
the Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Pan; R. v. Sawyer
Neutral citation: 2001 SCC 42.
File Nos.: 27424, 27277.
2000: December 8; 2001: June 29.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law – Charter of Rights – Fundamental justice – Whether common law rule of jury secrecy and Criminal Code prohibition on disclosure of information about “proceedings of the jury” consistent with principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Juries – Rule of jury secrecy – Common law rule of jury secrecy providing that evidence concerning jury deliberations is inadmissible on appeal to impeach jury’s verdict – Whether common law rule of jury secrecy constitutional – Canadian Charter of Rights and Freedoms, s. 7.
Criminal law – Juries – Disclosure of jury proceedings – Criminal Code prohibiting disclosure of information about “proceedings of the jury” except where disclosure is in context of obstruction of justice proceedings involving a juror – Whether provision constitutional – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Abuse of process – Fundamental justice – Double jeopardy – Whether mistrial improperly declared at end of accused’s second trial – Whether proceedings against accused should have been stayed at outset of third trial – Whether holding of third trial violated principle against double jeopardy – Canadian Charter of Rights and Freedoms, ss. 7, 11(h).
Criminal law – Charge to jury – Reasonable doubt – Accused convicted of first degree murder – Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.
The appellant P’s original trial on a charge of first degree murder resulted in a hung jury. A second trial was held, at the end of which the trial judge declared a mistrial. During the jury’s deliberations, juror #1 had sent a note to the trial judge, asking him to poll the jurors after the verdict was read out. Following the declaration of the mistrial, the 11 other jurors from the second trial wrote to the Attorney General to complain about the jury selection process, the conduct of juror #1 and the declaration of a mistrial. An investigation into the conduct of the jurors at the second trial was conducted by the Attorney General, but no charges were laid.
Prior to his third trial, P brought an application for a stay of proceedings. P challenged the constitutional validity of the common law jury secrecy rule and of s. 649 of the Criminal Code, which makes it an offence for a juror to disclose “any information relating to the proceedings of the jury when it was absent from the courtroom”, except where that information was subsequently disclosed in open court or is disclosed for the purposes of an investigation or criminal proceedings in relation to an offence of obstructing justice under s. 139(2) of the Code. He also sought to admit as evidence the testimony of jurors as to what had occurred during the jury deliberations at the second trial. The trial judge dismissed the application for a stay of proceedings and upheld the constitutionality of both the statutory and the common law jury secrecy rules. Evidence from jurors at the second trial was held to be inadmissible. The third trial resulted in a guilty verdict, which was upheld by the Court of Appeal.
The appellant S and his co-accused were convicted by a jury of assault causing bodily harm. At the sentencing hearing, counsel for S advised the trial judge that, subsequent to the trial, a juror had contacted S and told him that there had been undue pressure on her to convict and that other members of the jury had made racist comments. Counsel for S asked the trial judge to conduct an inquiry to investigate the substance of the allegations made by the juror. The trial judge declined to do so on the basis of lack of jurisdiction. A request to the Ministry of the Attorney General to conduct an inquiry was also refused. The Court of Appeal upheld the convictions.
Held: The appeals should be dismissed.
The proposition that the jury must deliberate in private, free from outside interference, is a principle that has deep roots in the English common law. The common law rule of jury secrecy, which prohibits the court from receiving evidence of jury deliberations for the purpose of impeaching a verdict, similarly reflects a desire to preserve the secrecy of the jury deliberation process and to shield the jury from outside influences. 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.
Evidence indicating that the jury has been exposed to some information or influence from outside the jury should be admissible for the purpose of considering whether there is a reasonable possibility that this information or influence had an effect upon the jury’s verdict. Such evidence should be admissible regardless of whether it is a juror or someone outside the jury who offers the evidence. However, while jurors may testify as to whether they were exposed to extrinsic information in the course of their deliberations, the court should not admit evidence as to what effect such information had upon their deliberations. While jurors appropriately bring to their task their entire life’s experiences, if a juror, or a third party, conveys to the jury information that bears directly on the case at hand that was not admitted at trial, by reason of an oversight or a strategic decision by counsel or, worse yet, by operation of an exclusionary rule of admissibility, then it is truly a matter “extrinsic” to the deliberation process and the fact that it was introduced into that process may be revealed.
The common law rule of jury secrecy does not infringe the appellants’ rights under s. 7 of the Canadian Charter of Rights and Freedoms. The common law rule, in combination with s. 649 of the Code, helps to ensure that jurors feel comfortable freely expressing their views in the jury room and that jurors who hold minority viewpoints do not feel pressured to retreat from their opinions because of possible negative repercussions associated with the disclosure of their positions. Evidence of juror improprieties, misconduct or error, if admissible, might serve to undermine the validity of an acquittal, rather than a conviction, and could cast a permanent shadow over that acquittal even if it were not overturned on appeal. 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. Erosions of the guarantees of jury secrecy beyond the existing boundaries would also result in the eventual erosion of the integrity of the jury as decision maker in criminal cases. The constitutional entrenchment of the right to trial by jury under s. 11(f) of the Charter means that jury trials will continue to be an important component of our criminal justice system. The secrecy of the deliberation process, both during and after the conclusion of the trial, is a vital and necessary component of the jury system. The principles of fundamental justice require that the integrity of the jury be preserved, and it is best preserved by the common law rule as interpreted here.
The constitutionality of s. 649 of the Code is only engaged if, and to the extent that, s. 649 prevents the appellants from gathering evidence that would otherwise be admissible in legal proceedings. Since the common law rule of exclusion would have precluded the admission of the proposed fresh evidence, it is not strictly necessary to address the constitutionality of s. 649 for the purposes of these appeals. Nevertheless, s. 649 of the Code is consistent with the common law rule, which itself meets the constitutional requirements of fairness embodied in s. 7. The majority of the Court of Appeal interpreted the statutory provision correctly and in a manner consistent with Charter requirements by concluding that the phrase “proceedings of the jury” does not apply to a broader range of circumstances than is covered by the common law rule. Whatever the impetus for the enactment of s. 649, it meets the requirements of s. 7 of the Charter in that it does not prevent a juror from revealing any information that would be admissible in proceedings to impeach the jury’s verdict. At the same time, it reinforces the importance of jury secrecy, within the proper ambit of the modern common law rule.
The rules governing the secrecy of jury deliberations do not operate in a vacuum, but in the larger context of the many other safeguards that exist to ensure the integrity and the reliability of verdicts in jury trials. Some of these safeguards operate during the course of the trial, while others offer assurances of fairness in circumstances where the verdict has already been delivered. The greatest safeguard against a perverse jury rests in s. 686(1)(a)(i) of the Code, which allows the court to set aside a verdict that is unreasonable or that cannot be supported by the evidence. Another important safeguard against a perverse verdict is the exception in s. 649(a) of the Code, which allows jurors to disclose what occurred in the jury room in response to an investigation for obstruction of justice under s. 139(2). With particular reference to S’s appeal, it is worth emphasizing two other safeguards against an improper verdict: challenges for cause under s. 638(1)(b) and the power to discharge jurors in the course of the trial pursuant to s. 644(1) of the Code. Together, these provisions permit a court to address concerns about bias that may arise before or during the course of a jury trial. Lack of impartiality, whether due to racial bias or another cause, could, in a proper case, justify the discharge of a juror under s. 644. The interaction between the judge and the jury is a most important safeguard of the integrity of the jury system. The judge’s instructions provide a vital prophylactic measure against jury misconduct and wrongful verdicts. The requirement of a unanimous verdict is also a strong protection against wrongful, perverse verdicts. A mistrial resulting from a jury’s inability to reach a unanimous verdict, undesirable as this result may be, provides an additional safeguard against a result driven by bias and prejudice.
Comprehensive research on the operations of criminal jury trials, which is currently precluded by the jury secrecy rules and, in particular, by s. 649 of the Criminal Code, would enhance the legitimacy of the process and could trigger the need for change.
An improper declaration of a mistrial by a trial judge could, depending on the circumstances of the case, lead to the conclusion that a further trial would contravene the principles of fundamental justice. The principle of double jeopardy might also preclude a further trial if the Crown were to proceed unfairly in depriving the accused of a verdict. However, while double jeopardy may be a principle of fundamental justice that could be invoked in some circumstances prior to a verdict being rendered within the meaning of s. 11(h) of the Charter, these circumstances do not arise in P’s case. The Criminal Code confers a broad discretion upon the trial judge to declare a mistrial when he or she is of the view that the jury is unable to agree upon a verdict. The trial judge did not act improperly in declaring a mistrial at the second trial. P’s submissions in support of a stay of proceedings, whether framed in terms of abuse of process, double jeopardy, or s. 7 of the Charter, are consequently without merit.
None of the fresh evidence offered by P, even if it were admissible under the common law jury secrecy rule as interpreted here, would be relevant to the issue of whether the trial judge exercised his discretion properly in declaring the mistrial, nor could it serve to support P’s request for an acquittal or a stay of proceedings. The fresh evidence S is seeking to introduce falls within the common law rule of jury secrecy and is accordingly inadmissible.
The charge to the jury on the meaning of reasonable doubt at P’s third trial was given prior to this Court’s judgment in Lifchus. While some of the required elements in Lifchus were omitted from the charge and some of the terms that should have been avoided were included, the deficiencies are not such that they cause serious concern about the validity of the jury’s verdict and lead to the conclusion that the accused did not have a fair trial.
Cases Cited
Not followed: R. v. Thompson, [1962] 1 All E.R. 65; R. v. Zacharias (1987), 39 C.C.C. (3d) 280; R. v. Wilson (1993), 78 C.C.C. (3d) 568; referred to: R. v. Henderson (1999), 134 C.C.C. (3d) 131; R. v. D. (T.C.) (1987), 38 C.C.C. (3d) 434; R. v. Nash (1949), 94 C.C.C. 288; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Farinacci (1993), 109 D.L.R. (4th) 97; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Sherratt, [1991] 1 S.C.R. 509; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Valente v. The Queen, [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56; R. v. E. (A.W.), [1993] 3 S.C.R. 155; R. v. Dyson, [1972] 1 O.R. 744; Vaise v. Delaval (1785), 1 T.R. 11, 99 E.R. 944; Danis v. Saumure, [1956] S.C.R. 403; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Bean, [1991] Crim. L.R. 843; R. v. Putnam (1991), 93 Cr. App. R. 281; R. v. Brandon (1969), 53 Cr. App. R. 466; R. v. McCluskey (1993), 98 Cr. App. R. 216; R. v. Perras (1974), 18 C.C.C. (2d) 47; R. v. Mercier (1973), 12 C.C.C. (2d) 377; R. v. Ryan (1951), 13 C.R. 363; Tanner v. United States, 483 U.S. 107 (1987); R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Armstrong, [1922] All E.R. 153; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16; R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. Sophonow (No. 2) (1986), 25 C.C.C. (3d) 415; R. v. Hahn (1995), 62 B.C.A.C. 6; R. v. Taillefer (1995), 100 C.C.C. (3d) 1; R. v. Lessard (1992), 74 C.C.C. (3d) 552; Anonymous Case, Lib. Assisarum 41, 11, 1367; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. La, [1997] 2 S.C.R. 680; R. v. Campbell, [1999] 1 S.C.R. 565; United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); United States v. Sanford, 429 U.S. 14 (1976); Richardson v. United States, 468 U.S. 317 (1984).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), (f), (h).
Criminal Code, R.S.C. 1985, c. C-46, ss. 139, 638(1)(b), 644 [am. 1992, c. 41, s. 6], 649, 653, 682(1), 686(1)(a)(i).
Federal Rules of Evidence, Rule 606(b).
Authors Cited
Canada. Law Reform Commission. Report 16. The Jury. Ottawa: The Commission, 1982.
Canada. Law Reform Commission. Working Paper 27. The Jury in Criminal Trials. Ottawa: The Commission, 1980.
Chopra, Sonia R., and James R. P. Ogloff. “Evaluating Jury Secrecy: Implications for Academic Research and Juror Stress” (2000), 44 Crim. L.Q. 190.
Pound, Roscoe. Readings on the History and System of the Common Law, 2nd ed. Boston: Boston Book, 1913.
Quinlan, Paul. “Secrecy of Jury Deliberations – Is the Cost Too High?” (1993), 22 C.R. (4th) 127.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown, 1961.
APPEAL from a judgment of the Ontario Court of Appeal (1999), 134 C.C.C. (3d) 1, 44 O.R. (3d) 415, 120 O.A.C. 1, 26 C.R. (5th) 87, 62 C.R.R. (2d) 189, [1999] O.J. No. 1214 (QL), dismissing the appellant Pan’s appeal from his conviction for first degree murder. Appeal dismissed.
APPEAL from a judgment of the Ontario Court of Appeal (1999), 134 C.C.C. (3d) 152, 120 O.A.C. 114, [1999] O.J. No. 1215 (QL), dismissing the appellant Sawyer’s appeal from his conviction for assault causing bodily harm. Appeal dismissed.
Keith E. Wright and Richard Litkowski, for the appellant Rui Wen Pan.
P. Andras Schreck and Shayne G. Kert, for the appellant Bradley Sawyer.
Renee M. Pomerance and Catherine Cooper, for the respondent.
George Dolhai and S. R. Fainstein, Q.C., for the intervener the Attorney General of Canada.
Marie-Claude Gilbert and Gilles Laporte, for the intervener the Attorney General of Quebec.
Holly D. Penner, for the intervener the Attorney General of Manitoba.
William F. Ehrcke, Q.C., and Mary Ainslie, for the intervener the Attorney General of British Columbia.
Melvyn Green and Benson Cowan, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
Arbour J. –
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