R. v. Pan; R. v. Sawyer

R. v. Pan; R. v. Sawyer
Collection
Supreme Court Judgments
Date
2001-06-29
Neutral citation
2001 SCC 42
Report
[2001] 2 SCR 344
Case number
27277, 27424
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 27424, 27277
Decision Content
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. –
I. Introduction
1 These two appeals were heard together and are addressed together in these reasons. The appellants in both appeals submit that the common law rule of jury secrecy, which provides that evidence concerning jury deliberations is inadmissible on appeal to impeach the jury’s verdict, infringes the Canadian Charter of Rights and Freedoms and must therefore be modified. Both appeals also challenge the constitutionality of s. 649 of the Criminal Code, R.S.C. 1985, c. C-46 , which makes it a criminal offence for jurors to disclose information about the “proceedings of the jury”, except where such disclosure is in the context of obstruction of justice proceedings involving a juror.
2 The appellant Pan was originally charged with the first degree murder of Selina Shen in May of 1989. His trial on that charge resulted in a hung jury in July of 1990. A second jury trial was held before O’Connell J. at the end of which the trial judge declared a mistrial. A third jury trial before Watt J. resulted in a conviction for first degree murder, which is the subject of the present appeal.
3 Most of the issues raised by Pan are in support of the basic contention that the third trial should not have been held. Pan’s central position is that the mistrial was improperly declared at the end of his second trial, and that, if permitted to infringe upon the jury secrecy rules, he could show that he was entitled to an acquittal by that jury. Pan therefore argues that his conviction should be set aside on the basis that the proceedings against him should have been stayed at the outset of his third trial. He also argues that holding a third trial after the improper declaration of a mistrial violated the principle against double jeopardy. The only issue raised concerning Pan’s third trial, as such, relates to the instructions to the jury on reasonable doubt. Pan asks this Court to enter a verdict of acquittal or, alternatively, to declare a stay of proceedings.
4 The appellant Sawyer and his co-accused, Troy Galbraith, were convicted by a jury of assault causing bodily harm. At the sentencing hearing, counsel for Sawyer advised the trial judge that, subsequent to the trial, a juror had contacted Sawyer 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 Sawyer 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 Ontario Ministry of the Attorney General to conduct an inquiry was also refused.
5 Sawyer’s position is that his conviction should be quashed and a new trial ordered on the basis of the proposed fresh evidence showing that a miscarriage of justice has occurred. He submits that the common law rule of jury secrecy and s. 649 of the Criminal Code violate his rights under the Charter by preventing him from obtaining and tendering on appeal evidence relating to the alleged improprieties in the jury’s deliberations. Further, he submits that this infringement cannot be justified under s. 1 of the Charter . His co-accused, Galbraith, has not appealed to this Court.
II. Factual Background
A. The Pan Action
6 In the Pan appeal, a publication ban was imposed by Order of the Chief Justice, at the request of the Crown, on October 20, 2000. In the course of these reasons, I will make occasional reference to information which is the subject of that ban. The ban is accordingly lifted to the extent of the information disclosed in these reasons.
7 The evidence in the Pan appeal, which is entirely circumstantial, was thoroughly reviewed by the Court of Appeal in its reasons reported at (1999), 134 C.C.C. (3d) 1, and a brief overview suffices for the purpose of this appeal. Selina Shen disappeared at the end of February 1988, soon after she ended her relationship with Pan. In early March 1988, various body parts were discovered in Eastern Ontario, and by March 13, 1988, the police were able to announce that the remains were those of Selina Shen. The theory of the prosecution was that Pan, obsessed with the deceased’s past relationships with other men, felt betrayed when she left him and decided to kill her. Evidence was introduced regarding the nature of their relationship and their contacts shortly before her disappearance, including a threatening letter that Pan wrote to Ms. Shen shortly before she disappeared. There was also evidence that Pan made comments to a friend of the victim to the effect that something shocking was going to happen.
8 During the course of their investigation, the police placed Pan under surveillance and intercepted a telephone conversation in which he told his brother what to say to the police. They also observed Pan dispose of knives, including butcher knives, a paring knife, a cooking knife and a quick cut cleaver. Pan testified that he disposed of the knives because he feared becoming the target of false allegations concerning the death of the victim. The expert evidence indicated that her body had been dismembered by someone with a knowledge of anatomy and a high level of skill in surgical disarticulation. The Crown contended that Pan possessed the required knowledge and skill, having taken medical courses in anatomy, pathology and surgery.
9 Pan’s first trial before Doherty J. and a jury commenced on May 28, 1990. The jury was unable to reach a unanimous verdict after four days of deliberations and Doherty J. declared a mistrial. No concerns were raised about the propriety of the declaration of the mistrial at this first trial. A second jury trial commenced before O’Connell J. on February 11, 1991 and extended over approximately 50 court days. Pan, who had not testified at his first trial, testified over several days.
10 On April 25, 1991, O’Connell J. completed his charge to the jury and deliberations began. On May 1, 1991, juror #1 sent a note to O’Connell J. The note read as follows:
Your honour, will you please pole [sic] us after the virdict [sic] is read but if you could please make it look as if this is what is done in the courts. I have to do what I feel I was sworen [sic] to do & what I feel is right in my heart & after what I’ve been put through in the jury room this was the only way I could do it. Please let me say I am very sorry if this has caused so much time & money but as I said I have to do what based on what you said hearing what every one else said day after day & still keeping an open mind in order to reread & go over the facts. For me I feel I have made the right choice. Thank you for letting me serve in your court. Its been an honour. Juror #1.
Upon receipt of the note, O’Connell J. ordered the jury to cease their deliberations. O’Connell J. reconvened court to discuss with counsel the implications of the note and the appropriate course to follow. Counsel for Pan suggested that the jury be brought back in for a gentle exhortation, and stated that the other way of dealing with the matter was to “declare them a hung jury”. Counsel for the Crown objected to declaring a mistrial and instead favoured bringing the jury back for a gentle exhortation. O’Connell J. indicated to counsel that, in his view, there were only two options: conducting an inquiry of juror #1 in the absence of the other jurors concerning the note or declaring a mistrial. Both counsel strongly opposed conducting an inquiry of juror #1. After retiring for 45 minutes to consider the matter, O’Connell J. returned to court, called in the jury and declared a mistrial.
11 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. In the letter, the jurors alleged that during the jury selection process juror #1 had lied about her knowledge of the case and about the severity of her visual impairment. They claimed that she also did not disclose that she was under psychiatric care or that she was taking medication that affected her alertness.
12 An investigation into the conduct of the jurors at the second trial was conducted by the Attorney General, but no charges were laid. The interviews with juror #1 and the other jurors during the investigation revealed that juror #1 had followed the case in the media at the time of the first trial and reported what she knew to the other jury members. Juror #1 also asked her doctor how long it would take someone with medical knowledge to dismember a body and conveyed the doctor’s answer to the other jurors. It was also alleged that juror #1 often fell asleep during the trial and acted in a disruptive manner in the jury room.
13 Prior to his third trial, Pan brought an application for a stay of proceedings before Watt J., the trial judge assigned to preside over the third trial. Pan challenged the constitutional validity of the common law jury secrecy rule and of s. 649 of the Criminal Code , arguing that the common law rule and the Code provision precluded him from compiling relevant evidence concerning the propriety of the mistrial declaration at the second trial. He also sought to admit as evidence the testimony of jurors as to what transpired during the jury deliberations at the second trial.
14 Watt J. 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, declared on May 1, 1992.
15 Pan appealed his conviction to the Ontario Court of Appeal. The majority dismissed the appeal and concluded that, properly interpreted, the common law rule of jury secrecy and s. 649 of the Criminal Code were constitutionally valid. Finlayson J.A. disagreed with the majority’s conclusions on the constitutional issues, but concurred in the result.
B. The Sawyer Action
16 Sawyer’s conviction stemmed from an assault on Jason Johnston, a friend of the two accused, that took place on May 21, 1994. The circumstances of the assault are not relevant to the issues before this Court.
17 Sawyer and his co-accused, Galbraith, were tried by a judge and jury. The jury returned a verdict of guilty on March 20, 1996 with respect to both accused. Two months later, at the sentencing hearing before Tobias J. on May 22, 1996, counsel for Sawyer raised an issue concerning events that had transpired since the jury’s verdict. He related to the court that two days after the verdict it came to his attention that a member of the jury had contacted Sawyer and made certain disclosures concerning the jury’s deliberations. The juror allegedly told Sawyer that she had been under undue pressure to come to a verdict and that certain racial comments were made by other members of the jury. While it is not clear to whom the alleged racist comments referred, Sawyer is white and Galbraith is black. Sawyer’s counsel asked the court to conduct an inquiry of the jury with respect to whether the juror’s allegations were true. Tobias J. ruled against Sawyer’s request, concluding that he had no inherent jurisdiction to entertain a request for such an inquiry.
18 Following the sentencing hearing, Sawyer’s counsel requested that the Ontario Ministry of the Attorney General launch an investigation pursuant to s. 139(2) of the Criminal Code into whether any of the jurors had attempted to obstruct, pervert, or defeat the course of justice during the jury’s deliberations. The Ministry of the Attorney General refused to order an investigation.
19 Sawyer and Galbraith appealed their convictions to the Ontario Court of Appeal. Their appeals were heard together with Pan and R. v. Henderson (1999), 134 C.C.C. (3d) 131, which raised the same constitutional issues with regard to the common law and statutory principles respecting jury secrecy. In joint reasons for judgment concerning the four appeals, set out in Pan, the Court of Appeal held that the common law rule of jury secrecy and s. 649 of the Criminal Code were constitutionally valid. As the proposed fresh evidence in the Sawyer appeal fell within the ambit of the exclusionary rule, the majority concluded that it was inadmissible and dismissed the appeal: (1999), 134 C.C.C. (3d) 152.
III. Relevant Statutory Provisions
20 Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
. . .
(f) . . . to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
Criminal Code, R.S.C. 1985, c. C-46
139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,
(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,
is guilty of
(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on summary conviction.
(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.
644. (1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.
(2) Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly.
649. Every member of a jury who, except for the purposes of
(a) an investigation of an alleged offence under subsection 139(2) in relation to a juror, or
(b) giving evidence in criminal proceedings in relation to such an offence,
discloses any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court is guilty of an offence punishable on summary conviction.
653. (1) Where the judge is satisfied that the jury is unable to agree on its verdict and that further detention of the jury would be useless, he may in his discretion discharge that jury and direct a new jury to be empanelled during the sittings of the court, or may adjourn the trial on such terms as justice may require.
(2) A discretion that is exercised under subsection (1) by a judge is not reviewable.
IV. Judgments Below
A. Ontario Court (General Division): The Pan Action
21 In two separate rulings prior to the commencement of the third trial, Watt J. dealt with Pan’s application for a stay of proceedings. In the first ruling of December 20, 1991 on the constitutional issues, Watt J. dealt with the threshold issue of whether or not ss. 649 and 653(2) of the Criminal Code were constitutionally invalid because they precluded Pan from calling jurors from his second trial as witnesses to show that the second trial was improperly terminated. As to s. 653(2) , Watt J. concluded that it did not prevent the court from inquiring into the propriety of a mistrial in order to determine the validity of a claim of abuse of process. With regard to the prohibition on the disclosure of proceedings of the jury imposed by s. 649 of the Code, Watt J. concluded that it did not violate any principles of fundamental justice and, at worst, would be a reasonable limit within s. 1 of the Charter . Furthermore, he found that the proposed evidence of the jurors concerning their deliberations was not relevant to the issue of whether or not the mistrial was improperly declared. As a result, excluding such evidence, whether on the basis of lack of relevance, the common law rule of inadmissibility, s. 649 of the Code or the cumulative effect of all three, did not infringe any Charter right.
22 In his second ruling of February 5, 1992, for which written reasons were released on November 21, 1995, Watt J. dealt with the substance of the application for a stay of proceedings. Pan’s position was that a stay of proceedings was warranted because further proceedings would constitute an abuse of process and/or an infringement of his rights under ss. 7 and 11 (d) of the Charter . Watt J. proceeded on the basis that because the alleged Charter violations were subsumed within the claim of abuse of process, the decision on the abuse of process claim would also decide the issue of whether or not there had been an infringement of the appellant’s Charter rights. He noted that the abuse of process claim rested on the argument that O’Connell J. had improperly declared a mistrial at the second trial. Watt J. found that, despite s. 653(2) of the Code, the trial judge’s discretion was reviewable on the authority of R. v. D. (T.C.) (1987), 38 C.C.C. (3d) 434 (Ont. C.A.), but concluded that O’Connell J. had not exercised his discretion improperly. Given that no factors other than the mistrial were raised by Pan in support of the abuse of process claim or alleged Charter violation, Watt J. dismissed Pan’s application. Furthermore, Watt J. found that even if he were wrong in his conclusion that the second trial was not improperly terminated, this was not one of the “clearest of cases” in which a stay of proceedings should be granted.
B. Ontario Court of Appeal
23 As indicated earlier, the Pan appeal was argued before the Ontario Court of Appeal along with the appeals in Sawyer, supra, and Henderson, supra. In each of these appeals, the constitutionality of the statutory and common law jury secrecy provisions was challenged. Each of the appellants sought to admit fresh evidence from jurors on matters related to the jury’s deliberations. The Court of Appeal addressed the constitutionality of the jury secrecy rules in its reasons in Pan in relation to all of the appeals.
1. The Pan Action (1999), 134 C.C.C. (3d) 1
(i) McMurtry C.J.O., Osborne, Labrosse and Charron JJ.A.
24 The majority of the Ontario Court of Appeal held that the common law rule of exclusion of evidence applies to all matters intrinsic to the deliberation process, including “statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations in any legal proceedings” (para. 140). The common law rule, however, does not render inadmissible evidence extrinsic to the deliberation process, such as evidence that the jury went to the theatre and mingled with the crowd during its deliberations: R. v. Nash (1949), 94 C.C.C. 288 (N.B.C.A.). The majority concluded that compelling policy considerations weighed in favour of upholding the common law rule. In particular, maintaining the secrecy of jury deliberations fosters free and frank debate among jurors, ensures the finality of the verdict and protects jurors from harassment, censure or recrimination.
25 On the constitutionality of s. 649 of the Criminal Code , the majority concluded that the relevant question was whether s. 649 impeded the accused’s access to evidence of jury misconduct that would be admissible at common law. It is only to the extent that s. 649 prevents jurors from disclosing information that would otherwise be admissible at common law that an issue would arise under s. 7 of the Charter . The majority concluded that the phrase “proceedings of the jury” in s. 649 referred to the deliberation process protected by the common law rule, and that any evidence which s. 649 prevented from being disclosed would also be inadmissible under the common law rule. Without deciding whether s. 649 would amount to an unconstitutional infringement of s. 2 (b) of the Charter , which was not in issue in this case, the majority therefore concluded that s. 649 was constitutionally valid as it did not impede an accused’s access to admissible evidence.
26 In light of its findings concerning the common law rule and s. 649 of the Code, the majority di