R. v. Burke

R. v. Burke
Collection
Supreme Court Judgments
Date
2002-06-21
Neutral citation
2002 SCC 55
Report
[2002] 2 SCR 857
Case number
28546
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
Criminal law
Notes
SCC Case Information: 28546
Decision Content
R. v. Burke, [2002] 2 S.C.R. 857, 2002 SCC 55
Howard Burke Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Burke
Neutral citation: 2002 SCC 55.
File No.: 28546.
2002: March 12; 2002: June 21.
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
Criminal law — Trial — Verdict — Validity — Foreman announcing a verdict — Court recording verdict as “not guilty” — Jury dismissed and accused discharged — Trial judge informed shortly thereafter that court may have erred in recording verdict — True verdict intended by jury may have been “guilty as charged” — Trial judge subsequently conducting limited inquiry into verdict and changing recorded verdict from “not guilty” to “guilty” — Whether trial judge had jurisdiction to conduct inquiry into verdict and alter it after discharge of jury — Whether rule in Head should be re-examined.
At the close of the accused’s trial for attempted murder, the foreman announced the verdict. The trial judge, court registrar, and both counsel heard “not guilty as charged”. A “not guilty” verdict was recorded and the jury was discharged. While escorting the jurors out of the courtroom, a court officer asked the foreman what the jury’s verdict had been. The foreman replied, “You’re kidding, guilty”. Within approximately seven to nine minutes after the announcement of the verdict in court, the trial judge was informed of the apparent error. An effort was made to locate the jurors. The foreman and another juror were found in the parking lot and brought back to the courthouse. The court officer called the remaining jurors at their homes, but was unable to reach two jurors. Approximately 25 minutes after the discharge of the appellant, court resumed in order to clarify the verdict. In the presence of both counsel and one juror, the foreman confirmed that the verdict was intended to be guilty. The trial judge reconvened court the next day. The full jury and both counsel were present, but the accused was not. Each of the jurors testified that their verdict was “guilty”. The trial judge concluded that he had jurisdiction to conduct a limited inquiry into what the actual verdict was and into whether the court had committed an error in recording the verdict. A temporary publication ban was imposed but two articles describing the incident were published in two widely read newspapers. Three days later, at the third inquiry, both the accused and the full jury were present. The court reporter testified that he originally recorded the foreman’s response as unclear but when he replayed the tape at normal speed, he heard “guilty as charged”; playing the tape on more sophisticated audio equipment, he heard “not guilty as charged” and was prepared to certify the verdict as such. The trial judge then questioned the jury. The foreman testified that he had cleared his throat in announcing the verdict, and that he had in fact said “guilty as charged”. Most of the jurors testified that they had heard something like “guilty”, but one testified that she was unable to hear the foreman as he announced the verdict. The trial judge then asked each juror two questions regarding taint or bias. Nine jurors indicated that their testimony had not been influenced by the media or anyone else. Two jurors testified that they had read or heard things in the media about the case but had not been influenced. One juror started to allude to an item he had heard in the media about the case, but the trial judge cut him off before he could give a complete answer.
The trial judge distinguished R. v. Head, [1986] 2 S.C.R. 684, and held that he had the jurisdiction to change the recorded verdict from “not guilty” to “guilty as charged”. He found no air of reality to the suggestion that the jurors were or may have been tainted between the time when the verdict was announced and the time that the jurors were reconvened and testified the next morning. The majority of the Court of Appeal dismissed the accused’s appeal, finding that the error in this case was an accidental slip.
Held (McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting): The appeal should be allowed and a new trial ordered.
Per Iacobucci, Major, Binnie and LeBel JJ.: Head cannot be distinguished from the present case. However, the evolving jurisprudence and policy concerns warrant developing an exception to the general rule enunciated in Head that a trial judge is functus officio and lacks jurisdiction to reconvene the jury to inquire into an alleged error in the verdict once the jury in a criminal trial has been discharged. A trial judge retains the limited and exceptional jurisdiction to recall the jury and conduct a narrow inquiry into the alleged error where the error does not require the jury to reconsider the verdict or continue its deliberations with a view to handing down additional verdicts. This type of error is not properly called “clerical” or “administrative”, as those types of errors may be corrected by the judge without recalling the jury.
The first question that a trial judge must ask post-discharge is whether the error requires reconsideration of the verdict. If it does, the general rule in Head applies and there are no circumstances under which the judge will retain or otherwise possess jurisdiction to reconvene the jury and conduct an inquiry into the alleged error. If the error does not require the jury to reconsider its verdict, then the trial judge possesses jurisdiction to conduct an inquiry into whether the facts of the case disclose a reasonable apprehension of bias. In determining whether this apprehension is raised, the trial judge must consider all the relevant circumstances of the case, the most crucial circumstance usually being the dispersal of the jury and its probable effect on the minds of reasonable members of the public.
Where the trial judge concludes, post-discharge, that the facts raise a reasonable apprehension of bias, he should declare a mistrial if that is the necessary remedy to prevent a miscarriage of justice. In making that order, the trial judge must consider the rights of the accused and the public, along with the effect of not ordering a mistrial on the administration of justice. On the other hand, if a mistrial is not necessary to prevent a miscarriage of justice, then the trial judge should uphold the verdict as given at trial. Where, however, the trial judge concludes that there is no reasonable apprehension of bias, he must correct the error in the verdict; a mistrial is not available as a remedy.
The present case falls within the exception to the general rule in Head. The alleged error lay in the faulty transmission and recording of the verdict and, since this error did not involve reconsideration of the verdict, the trial judge had post-discharge jurisdiction to conduct an inquiry into the alleged error. However, the trial judge did not conduct the proper analysis. Instead of asking whether there was a reasonable apprehension in the minds of right-thinking, properly informed members of the public that the jurors might have been biased or influenced, the trial judge conducted an actual bias test. In this case, the length of time which elapsed between the delivery of the recorded verdict and the point at which the jury was reconvened was substantial; the accused was discharged from custody; the nature and the scope of the jury’s dispersal was extensive; and, lastly, the jurors were exposed to the reaction of the public to the recorded verdict during the period when they were absent from the courtroom and to the potentially prejudicial media coverage of this case which appeared before and after the temporary publication ban. When the proper test is applied and all the relevant circumstances are considered in context, there is no question that the facts, particularly the jury’s extensive and extended dispersal, establish a reasonable apprehension of bias. As a result, the trial judge did not possess the exceptional jurisdiction to correct the verdict. He retained only the remedial jurisdiction to declare a mistrial. He was therefore in error when he changed the verdict and registered a conviction.
Per Arbour J.: This is an appropriate case to re-examine the rule in Head. The trial judge’s jurisdiction to inquire as to whether the verdict was correctly recorded is based on the fact that the trial may not have been properly concluded. A verdict other than the intended unanimous verdict of the jury is a nullity. If, as here, the trial judge has a reasonable concern that the verdict might be a nullity, the trial should resume as if the verdict had not been rendered. The trial judge should determine whether the recorded verdict was in fact null and void and if not, the verdict should stand. If the recorded verdict was a nullity, it should be set aside and the trial should resume. The appropriate test is whether there is a “reasonable apprehension of taint or bias”. If there is no reasonable apprehension of bias, then there is no perceived threat to the impartiality of the jury and the jury is in the same position as it was prior to the court recording the verdict. Under this approach, the jury is free to continue deliberations if necessary. If there has been a reasonable apprehension of bias, the trial judge’s only option is to declare a mistrial and to order a new trial “on such terms as justice may require”. In this case, the extent of the jury’s dispersal established a reasonable apprehension of bias and the appropriate remedy is to order a new trial.
Per McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ. (dissenting): There is agreement with Major J. that the strict rule in Head must be rejected in favour of a more refined and flexible analysis, and with the stated test for determining the limits of the exercise of post-discharge jurisdiction. However, whether a verdict can be corrected post-discharge is a highly fact-specific analysis which depends on the totality of the circumstances, including the probable reason for the initial mistake and the length of time which has elapsed between the original verdict and the moment the error is brought to the trial judge’s attention. While dispersal may, in some instances, provide the most compelling evidence on which the test will turn, it is not the deciding factor in a case where, as here, the evidence satisfactorily establishes error in carrying out the court’s recording of the jury’s true verdict and a failure to correct that error would not serve the administration of justice.
In this case, a reasonable and right-minded person, apprised of the totality of the circumstances, would not conclude that there was a reasonable apprehension of taint. Although the nature and scope of the jury’s dispersal and the potential exposure to media coverage raise the possibility of taint, neither of these factors is dispositive given the credible reason for the error and the manner in which it was brought to the court’s attention and confirmed by the jury. Mere exposure to media or conversations about the case does not automatically spoil the juror’s later statements, especially where, as here, it is abundantly clear that the jury had actually intended to find the accused “guilty”. On the particular facts of this case, there was no reasonable apprehension of taint, and it was proper for the trial judge to record the jury’s true verdict. To require a new trial or allow the verdict to stand in light of the totality of these circumstances would work a serious injustice to the interests of the state and the general public.
Cases Cited
By Major J.
Discussed: R. v. Head, [1986] 2 S.C.R. 684; referred to: R. v. Vodden (1853), Dears. 229, 169 E.R. 706; R. v. Cefia (1979), 21 S.A.S.R. 171; R. v. Andrews (1985), 82 Cr. App. R. 148; R. v. Follen, [1994] Crim. L.R. 225; R. v. Loumoli, [1995] 2 N.Z.L.R. 656; R. v. Maloney, [1996] 2 Cr. App. R. 303; R. v. Aylott, [1996] 2 Cr. App. R. 169; R. v. Z.A., Eng. C.A., March 8, 1999, unreported; People v. Powell, 221 P.2d 117 (1950); State v. Brandenburg, 120 A.2d 59 (1956); State v. Fornea, 140 So.2d 381 (1962); Commonwealth v. Brown, 323 N.E.2d 902 (1975); State v. Edwards, 552 P.2d 1095 (1976); Webber v. State, 652 S.W.2d 781 (1983); Burchett v. Commonwealth, 734 S.W.2d 818 (1987); People v. McNeeley, 575 N.E.2d 926 (1991); State v. Myers, 459 S.E.2d 304 (1995); Montanez v. People, 966 P.2d 1035 (1998); State v. Green, 995 S.W.2d 591 (1999); Martin v. State, 732 So.2d 847 (1998); United States v. Dotson, 817 F.2d 1127 (1987), am. 821 F.2d 1034 (1987); Bricmont v. Mathieu (1987), 7 Q.A.C. 199; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; People v. Rushin, 194 N.W.2d 718 (1971); R. v. Budai (2001), 154 C.C.C. (3d) 289, 2001 BCCA 349; R. v. Cameron (1991), 64 C.C.C. (3d) 96, leave to appeal refused, [1991] 3 S.C.R. x; R. v. S. (R.D.), [1997] 3 S.C.R. 484; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256; R. v. Taillefer (1995), 40 C.R. (4th) 287, leave to appeal refused, [1996] 1 S.C.R. x; R. v. Lessard (1992), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205, leave to appeal refused, [1992] 3 S.C.R. vii; R. v. Woods (1989), 49 C.C.C. (3d) 20, leave to appeal refused, [1990] 2 S.C.R. xii; R. v. Martineau (1986), 33 C.C.C. (3d) 573; R. v. Antinello (1995), 97 C.C.C. (3d) 126; R. v. T. (L.A.) (1993), 84 C.C.C. (3d) 90; R. v. Rondeau, [1998] O.J. No. 5759 (QL).
By Arbour J.
Discussed: R. v. Head, [1986] 2 S.C.R. 684.
By L’Heureux-Dubé J. (dissenting)
R. v. Head, [1986] 2 S.C.R. 684; R. v. S. (R.D.), [1997] 3 S.C.R. 484; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; R. v. Andrews (1985), 82 Cr. App. R. 148; State v. Williquette, 526 N.W.2d 144 (1995); R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C-46, ss. 644(1) , 647(1) , (2) , (4) .
Authors Cited
Maric, Vaso. Annotation to R. v. Burke (2001), 41 C.R. (5th) 135.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the Ontario Court of Appeal (2001), 53 O.R. (3d) 600, 153 C.C.C. (3d) 97, 41 C.R. (5th) 134, 143 O.A.C. 286, [2001] O.J. No. 1119 (QL), dismissing the appellant’s appeal from a decision of the Ontario Court (General Division), [1997] O.J. No. 5568 (QL). Appeal allowed, McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting.
David M. Tanovich, for the appellant.
Susan G. Ficek, for the respondent.
The reasons of McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ. were delivered by
1 L’Heureux-Dubé J. (dissenting) — The main issue in this appeal is whether a trial judge has jurisdiction, after discharge of the jury, to correct an improperly recorded verdict. More specifically, the question here is whether the trial judge had jurisdiction post-discharge to change a wrongly recorded “not guilty” verdict to the jury’s true verdict: “guilty as charged”.
2 I have had the benefit of reading the reasons of my colleague Major J., and I respectfully disagree with him on two issues, namely, the elements of the test to be applied by trial judges in these circumstances and the result he reaches.
I. Limits on Post-Discharge Jurisdiction
3 I agree with Major J., for the reasons he gives, that the strict rule announced in R. v. Head, [1986] 2 S.C.R. 684, must be rejected in favour of “a more refined and flexible analysis” that confers upon trial judges the jurisdiction to correct a criminal verdict post-discharge in certain limited circumstances. I also agree with Major J.’s reasons that the test for determining the limits of the exercise of post-discharge jurisdiction is “reasonable apprehension of taint” which requires that “an informed person, viewing the matter realistically and practically — and having thought the matter through — [would] conclude” that taint likely occurred. As this Court has previously explained, the reasonable apprehension test requires a determination that an informed person would think that it is more likely than not that the jury upon recall after discharge would not decide fairly; “[t]he grounds for this apprehension must ... be substantial and I ... refus[e] to accept the suggestion that the test be related to the ‘very sensitive or scrupulous conscience’”: see R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 31 (quoting Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 395, per de Grandpré J. (writing for the majority on this issue)).
4 I respectfully disagree, however, with the heavy emphasis Major J. places on dispersal as an element in establishing reasonable apprehension of taint. Whether or not a verdict can be corrected post-discharge is a highly fact-specific analysis and one which, in every case, will depend on the totality of the circumstances, including the probable reason for the initial mistake and the length of time which has elapsed between the original verdict and the moment the error is brought to the trial judge’s attention: see R. v. Andrews (1985), 82 Cr. App. R. 148 (C.A.), at p. 154. Often, it will not be practical to use an essentially bright-line test of dispersal to determine whether a jury verdict can be corrected; as Lamer J. pointed out in Head, supra, at p. 700 (quoting Wigmore on Evidence (McNaughton rev. 1961), vol. 8, at para. 2355):
It has occasionally been said that this correction must be claimed before the jury are discharged, but this seems unsound because such errors are seldom ascertained until after the jury have separated and conversed out of court, and if the error is satisfactorily established, there can hardly be any fixed time to limit its correction.
5 Given that the general rule prohibiting post-discharge jurisdiction serves to protect the interests of justice, it is axiomatic that an exception to that rule must serve the interests of justice in a way that adherence to the rule could not. Where it is carefully established that an error was made in recording the jury’s true verdict, the interests of justice will rarely be served by prohibiting the trial judge from altering the verdict as entered. Such a rigid adherence to procedural niceties, in my view, would undermine, rather than strengthen, the public’s confidence in our jury system by impeding the ascertainment of truth and justice. As the court in State v. Williquette, 526 N.W.2d 144 (Wis. 1995), concluded, at p. 151:
It is not difficult, however, to imagine a scenario where an incorrect verdict transcription could result in a serious injustice. The public policy considerations of promoting a jury’s freedom of deliberation, the stability and finality of judgments and protecting jurors against annoyance and embarrassment are indeed noble and must be taken into account; however, these considerations may not completely trump the ascertainment of the “truth” as actually found by the jury.
In the instance of an erroneously entered guilty verdict, it would be a serious injustice to allow an innocent person to remain in prison simply because members of the jury had separated or mingled with the public. There is no guarantee that the Attorney General would forego the holding of a new trial, given the limited inquiry concerning the verdict, and no certainty that a new trial would produce the same result. Even if bail were granted, the innocent person’s burden would be great. I believe that it is also society’s interest that those found guilty do not go free.
6 While dispersal may, in some instances, provide the most compelling evidence on which the test will turn, I do not think dispersal acts as the deciding factor in a case where, as here, the evidence satisfactorily establishes error in carrying out the court’s recording of the jury’s true verdict and a failure to correct that error would not serve the administration of justice.
II. Application of the Law to the Facts of this Case
7 In stating the verdict, the foreperson coughed or stuttered, causing listeners to hear different verdicts. The verdict as pronounced was never repeated or confirmed by the court. Although the trial judge thought he heard “not guilty as charged”, later that same afternoon, he admitted to having “a raging head cold” and acknowledged that there was something “unusual” about the verdict. The court reporter initially recorded the foreperson’s verdict as “(inaudible) guilty as charged” and, when examined the next day, testified that he “couldn’t be sure” what the foreperson said at the moment of hearing it. Even after replaying the original tape in the courtroom “eight to twelve” times, he was unable to discern what the verdict was (albeit at “normal speed” he heard “guilty as charged”). The court officer testified that she had been unable to understand the foreperson due to a “rumbling” or “gurgling” noise he made while delivering the verdict. Ten of the eleven jurors testified under oath that they heard the foreperson say “guilty”, the eleventh stated that she was not able to hear the verdict as announced. The foreperson testified that he sometimes stammered and also had a soft tone of voice, but that he had said “guilty as charged”.
8 Also significant in this case is the manner in which the error was brought to the attention of the court. After the verdict was announced on September 18, the jury was escorted by the court officer from the courtroom to the jury room. Within about 30 seconds after leaving the courtroom, the court officer asked the foreperson what the verdict was. At this point, all 12 jurors were back in the jury room and still within the care and control of the court. In the presence of all of the other members of the jury, the foreperson replied, “You’re kidding, guilty”. Although some of the jurors were in a position to overhear what was said, none of them contradicted the foreperson’s statement. The jurors were then escorted down a private elevator in order to exit the building, which is typical when there is a guilty verdict. On the way back to her office, the court officer heard that the court deputy had said that the verdict was “not guilty”. She testified that she knew immediately that an error had been made.
9 Within approximately seven to nine minutes after the announcement of the verdict in court, the court officer informed the trial judge of the error. Two constables at the court found the foreperson and another juror in the parking lot. Both jurors were alone and separately confirmed to one of the constables that the verdict was guilty. Within about 25 minutes of the discharge of the appellant, the trial judge had the foreperson and the other juror back in court. Under oath, the foreperson confirmed to the trial judge that the jury’s verdict was guilty and that he had pronounced a guilty verdict in the courtroom. In my view, there is no question of the foreperson’s verdict being altered as a result of anything he heard after returning the initial verdict; any possibility that he was tainted after exiting the building into the parking lot is completely mitigated by the fact that he had already disclosed the error to the court officer while still within the care and control of the court.
10 Around the time the trial judge was questioning the foreperson, the court officer called the remaining 10 jurors at their homes and asked them to return to the courthouse. She also asked one of the jurors on the phone “off the record” what the verdict was; like the foreperson and the other juror found in the parking lot, the juror said “guilty”.
11 The trial judge reconvened court the following morning. The full jury was present, and each of the jurors unequivocally testified that the verdict was “guilty”, including the foreperson who repeated that he had said “guilty as charged”. On September 23, the jury was again reconvened and each juror was separately asked to repeat the verdict as pronounced as well as the verdict they had agreed to. Once again, all responded “guilty” to both inquiries, except for one juror who testified that she did not hear the foreperson as he announced the verdict, but that there was “not a doubt in [her] mind at all” as to what the actual verdict was. Although, as Major J. points out, two jurors testified that they had read and heard statements about the case in the media, I think it is important to stress that both unequivocally and consistently testified that the true verdict was guilty. The first indicated that he was certain what verdict the jury had reached: “I read the articles on the weekend but they had no influence. The verdict was given. The verdict is what it was. We spent almost -- close to 15 hours in deliberations. There was no question” (emphasis added). Similarly, the latter testified that there was “not a doubt in [her] mind at all” as to what the verdict was. The juror who started to allude to something he had heard in the media but was prevented by the trial judge from completing his testimony on that point was asked not only whether he heard anything that affected, but also anything that might have affected, his testimony in court. He replied: “Absolutely not”.
12 Taking into consideration the totality of the circumstances, I do not think there was a reasonable apprehension of taint in this case. Although the nature and scope of the jury’s dispersal and the potential exposure to media coverage raise the possibility of taint, neither of these factors is dispositive given the credible reason for the error and the manner in which it was brought to the court’s attention and confirmed by the jury. Even though the other jurors did not confirm the error until the next day, it is significant that the court officer was told the jury’s actual verdict within seconds after the verdict was pronounced and before the foreperson had any opportunity to mingle with the public. Also significant is the fact that the foreperson communicated the true verdict to the judge within a very short period of time. The jurors who were recalled on September 19, the morning after the verdict was returned, were simply confirming the correct verdict that had already been communicated by the foreperson to the trial judge the previous day. The evidence indicates that until they were called at home after the trial, these jurors were under the impression that the verdict announced in court was guilty.
13 In short, from the conclusion of the trial through the third and final inquiry, every single juror, whether asked off the record or under oath, consistently, repeatedly, and unequivocally confirmed that the verdict was “guilty”. A reasonable and right-minded person, apprised of these circumstances, would not conclude that there was a reasonable apprehension of taint in this case; quite simply, “[t]he clear evidence of [undue influence] required to sustain a reasonable apprehension of [taint] is nowhere to be found”: S. (R.D.), supra, at para. 58. To require a new trial or allow the incorrect verdict to stand in light of the totality of these circumstances would work a serious injustice to the interests of the state and the general public “since it forces the court to tell the jurors that despite the fact that they have dutifully carried out the oath that they had sworn to uphold by listening to [20] days of evidence and then rendering a unanimous and otherwise valid verdict, their decision must be ignored”: V. Maric, Annotation to R. v. Burke (2001), 41 C.R. (5th) 135, at p. 136. I have utmost faith in the public’s ability to understand the error that took place here and the need for flexibility on the part of judges to take appropriate steps to remedy errors of this nature. It strikes me that any confusion on the part of the public will stem from the decision to expend the Crown’s resources on another trial even though there is no reasonable apprehension of taint and no doubt that the jury’s true verdict was “guilty”.
14 In any event, I wholly disagree with Major J. that the trial judge’s conclusion was incomplete and resulted in an error of law. I believe instead that considerable deference is owed to the trial judge’s largely fact-driven conclusion that there is “absolutely no air of reality to the suggestion that there was or may have been tainting in respect of any one or more of the members of the jury between the time the verdict was announced on the afternoon of September 18, 1997 and the time the members of the jury reconvened and testified the following morning” in this case. This conclusion was based, not by “focuss[ing] solely on whether the jurors were actually influenced” (emphasis in original), as Major J. suggests (at para. 89), but rather on an objective consideration of the totality of the circumstances; indeed, the “air of reality” test applied by the trial judge, like the reasonable apprehension of taint inquiry, looks to the viewpoint of a reasonable person properly informed of the situation: see R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29. The trial judge conducted an extensive three-day inquiry in which all relevant persons, including the court reporter, the court officer, the registrar, the court constables, and all 12 members of the jury, were carefully examined. As Weiler J.A. noted in her reasons in the Court of Appeal, at para. 45: “The trial judge ensured that the process in which he engaged was fair to the accused. Having regard to the fact the accused was not present [of his own accord] when some of the evidence was heard, he had the witnesses repeat all of the evidence to ensure that the appellant was not prejudiced.” In my view, the factors that the trial judge took into account, namely, the reason for the error, the manner in which it came to his attention, and the clear and unequivocal statements of the jurors that the verdict was “guilty as charged”, favour dismissal. I am not persuaded that dispersal of the jury was the overriding factor that the trial judge should have considered.
15 The trial judge was aware of the publicity surrounding the verdict as well as the possibility that some, perhaps even all, of the jurors were exposed to reactions by the public and the media. Unlike my colleague, however, I do not believe that mere exposure to media or conversations about the case automatically spoils the juror’s later statements, especially where, as here, it is abundantly clear that the jury had actually intended to find the appellant “guilty”. In another case with a different set of facts, we might find dispositive the fact that a discharged juror potentially mingled with the public or read media reports of the trial. On the particular facts of this case, however, there was no reasonable apprehension of taint, and it was proper for the trial judge to record the jury’s true verdict.
16 For these reasons, I would dismiss the appeal.
The judgment of Iacobucci, Major, Binnie and LeBel JJ. was delivered by
Major J. —
I. Introduction
17 At issue in this appeal are important considerations of our justice system, particularly that of the jury.
18 In criminal cases the jury must be unanimous to convict or acquit; a failure to reach a verdict results in a mistrial. An essential ingredient of that process is that the presiding judge is fully aware of the decision and is also aware that it is the decision of each and every juror.
19 Canadians repose confidence in our jury system, a system that has remained essentially unchanged since our country was founded. The public expects a fair and final verdict from its juries. Any departure from those standards would, to the detriment of the country, erode that confidence. We cannot permit that erosion.
20 This appeal arises from a unique set of circumstances which raises these concerns. To all public appearances, the appellant Howard Burke was acquitted by a jury on the charge of attempted murder. The foreman announced the verdict. In doing so, he either stuttered or cleared his throat such that different people in the courtroom heard different versions of the verdict. The trial judge heard “not guilty” and recorded the verdict as such. The jury had actually intended to find the appellant “guilty”.
21 The trial judge excused the jury, and shortly after their exit, discharged the accused. Soon after the jury’s discharge, a court officer discovered that the foreman believed that the jury had delivered a verdict of guilty. Upon being informed of the error, the trial judge held several inquiries into what had taken place. The trial judge concluded that he had jurisdiction to change the recorded verdict to “guilty as charged” and register a conviction.
22 The issue at the heart of this appeal is whether a trial judge has jurisdiction in a criminal trial to inquire into and possibly correct an error in the verdict after the discharge of the jury, and if so, the extent to which such jurisdiction exists. I conclude that such jurisdiction may exist in certain unusual circumstances.
23 There are four possible outcomes of a jury trial:
(1) The jury renders the verdict that it intended. The jury is discharged and the trial has concluded. This is the usual result.
(2) The jury does not render the verdict it intended. The jury is not yet discharged. The trial judge retains jurisdiction to record the intended verdict.
(3) The jury does not render the verdict it intended. The jury is discharged by the trial judge but, unlike the strict rule in R. v. Head, [1986] 2 S.C.R. 684, the trial judge retains a narrow post-discharge jurisdiction to recall the jury for the purposes of an equally narrow inquiry into the alleged error, the focus of the inquiry being whether there is a reasonable apprehension of bias. This jurisdiction to recall the jury for an inquiry exists only for unintended errors; the trial judge cannot recall the jury to make any changes to the verdict that require further jury deliberation. If there is no reasonable apprehension of bias, the trial judge can and should correct the erroneous verdict.
(4) The jury does not render the verdict it intended. The jury is discharged, the trial judge recalls them for an inquiry, and the inquiry establishes a reasonable apprehension of bias. Normally, such an apprehension is only likely to arise where the jury has dispersed. Dispersal of the jury means that the jury has ceased to operate as a single unit, and has separated and mingled (or had the opportunity to mingle) with the public. Dispersal is a crucial factor in determining whether or not there is a reasonable apprehension of bias. If the trial judge concludes that there is a reasonable apprehension of bias, the trial judge cannot record the intended verdict, because the trial, in a manner of speaking, has reached the end of the road. However, in order to prevent a miscarriage of justice, the trial judge retains the ability to order a mistrial or to maintain the originally communicated verdict.
24 This appeal falls within the fourth category, above. The jury had mistakenly rendered an unintended verdict. The jury had been discharged and had dispersed into the community for a lengthy period of time. The overall circumstances establish that there was a reasonable apprehension of bias. The duration of the jury’s dispersal is an important factor in finding a reasonable apprehension of bias in this case. Given these circumstances the trial judge ought to have ordered a mistrial, as maintaining the originally recorded verdict would result in a miscarriage of justice. Therefore, I would allow the appeal and order a new trial.
II. Facts
25 The appellant was charged with attempted murder. The charge stemmed from events that took place on October 28, 1996, in which the appellant shot Ian Francis. The dispute between the appellant and Francis concerned an unpaid debt relating to a drug trafficking enterprise, in which Francis and the appellant were joint partners. The appellant claimed the shooting was done in self-defence. The trial was presided over by Minden J. of the Ontario Court (General Division). The trial commenced on September 2, 1997. The jury retired to consider its verdict on September 17.
26 On September 18, the foreman announced the verdict. The trial judge, court registrar and both counsel heard “not guilty as charged”. The Crown asked that the jury be polled. The court registrar did not repeat the verdict to the jurors, but instead asked each juror if they agreed or disagreed with the verdict as announced. This polling method was prescribed by a court practice manual. All of the jurors stated that they agreed. The court recorded a verdict of “not guilty”, and discharged the jury. The jury exited the courtroom. Shortly thereafter the appellant was discharged and court was adjourned at 2:55 p.m.
27 While escorting the jurors out of the courtroom, a court officer asked the foreman what the jury’s verdict had been. In the presence of other jurors, the foreman replied, “You’re kidding, guilty”. The jurors were then escorted down a private elevator in order to exit the building. On the way back to her office, the court officer heard that the verdict had been recorded as “not guilty”. Within approximately seven to nine minutes after the announcement of the verdict in court and the jury’s exit from the courtroom, the court officer informed Minden J. in his chambers of the apparent error.
28 An effort was made to locate the jurors. The foreman and another juror were found in the parking lot and brought back to the courthouse. The court officer called the remaining jurors at their homes, but was unable to reach two jurors. She asked one of the jurors on the phone “off the record” what the verdict had been; the juror said guilty.
29 At 3:20 p.m., 25 minutes after the discharge of the appellant, court resumed in order to clarify the verdict. This was the first of three inquiries. The appellant was not present. Both counsel were present, as well as the foreman and the other juror who had been found in the parking lot. The foreman confirmed that the verdict was intended to be guilty. The other juror was not asked to confirm the verdict. Minden J. stated that he had a head cold and that he could have misunderstood the verdict as announced. Although he thought he had heard “not guilty”, he acknowledged that there was “something about it that was unusual”.
30 Minden J. reconvened court on September 19, 1997. The full jury was present, but not the accused. Each of the jurors testified that their verdict was “guilty”. The foreman testified that he sometimes stammered and also had a soft tone of voice, but that he had said “guilty as charged”. The trial judge concluded that he had jurisdiction to conduct a limited inquiry into what the actual verdict was, and into whether the court had committed an error in recording the verdict. He ordered the appellant to appear and issued a bench warrant for his arrest. Court was adjourned until September 22, 1997. A temporary publication ban was imposed.
31 Two articles describing the incident were published in two widely read Toronto papers, the Star and the Sun. One article appeared on September 19, 1997, and the other on September 22, 1997.
32 On September 23, court reconvened for the third and final time with both the appellant and jury present. The court reporter was c