Supreme Court Judgments

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 dismissed the application to introduce fresh evidence on the basis that the proposed fresh evidence fell squarely within the scope of the common law rule of exclusion.

27                               Having disposed of the constitutional issues, the majority considered the other issues raised in the Pan action.  Pan submitted that Watt J. erred in dismissing the motion for a stay of proceedings prior to the commencement of the third trial.  Pan’s position was that O’Connell J. erred in declaring a mistrial at the second trial and that he had been unjustly deprived of the verdict of that jury.  He claimed that it was therefore an abuse of process to proceed with a third trial, in light also of the two preceding mistrials. 

28                               The majority noted that it is within a trial judge’s discretion to discharge the jury if and when the trial judge is satisfied that the jury is unable to reach a verdict, pursuant to s. 653(1)  of the Criminal Code .  The majority concluded that it would have been preferable for O’Connell J. to have asked the jury in open court whether it had reached a verdict prior to declaring a mistrial.  However, the majority agreed with Watt J. that “it was open to the trial judge to conclude that there was not, as announced, ‘a verdict’, rather an inability of the jurors to agree” (para. 231).  As a result, they concluded that the second trial was not improperly terminated. 

29                               As to the argument that the third trial constituted an abuse of process and should have been stayed, the majority noted that a stay of proceedings is an exceptional remedy, which should only be granted in the clearest of cases.  They also referred to this Court’s judgment in R. v. Keyowski, [1988] 1 S.C.R. 657, in which it was held that a third trial on a serious criminal charge did not per se result in an abuse of process.  Given the fact that there was no prosecutorial misconduct in the present case, the majority held that Watt J. did not err in dismissing Pan’s application for a stay of proceedings. 

30                               Before the Court of Appeal, Pan also raised a number of other grounds of appeal concerning the rulings made by Watt J. at the third trial and alleged errors in his charge to the jury.  All of these other grounds of appeal were dismissed by the Court of Appeal.  Only one of these grounds of appeal is raised before this Court, namely the charge to the jury on reasonable doubt. 

(ii) Finlayson J.A., Concurring in the Result

31                               In his reasons, Finlayson J.A. only addressed the constitutional issues concerning the common law rule of jury secrecy and s. 649  of the Criminal Code .  In contrast with the majority, Finlayson J.A. concluded that the combined effect of the common law rule and s. 649 of the Code was to prevent accused persons from establishing an evidentiary basis for arguing that they were deprived of their constitutional right to a trial by an impartial and independent tribunal.  He found that  the common law rule should be relaxed and that the court should adopt a flexible, case-by-case approach to the admissibility of evidence where allegations of jury misconduct are raised. 

32                               As to s. 649 of the Code, Finlayson J.A. disagreed with the Crown’s submission that it was simply a codification of the common law rule.  After surveying the scant legislative history surrounding the enactment of s. 649, Finlayson J.A. concluded that its purpose was at least partly to prevent the disclosure of information concerning jury deliberations to the press, and that it was not a codification of the common law rule.  In light of his view that the common law rule should be ameliorated to allow evidence of jury deliberations to be admitted in evidence in appropriate circumstances, Finlayson J.A. found that s. 649 prevented the disclosure of potentially admissible evidence.  He concluded therefore that s. 649 was overbroad in its application and constituted an infringement of s. 7  of the Charter  which could not be saved under s. 1. 

33                               Finlayson J.A. concurred with the majority, however, in the disposition of the appeal in Pan.  In his view, no constitutional issue arose with regard to the proposed fresh evidence of the jurors from the second trial.  The proposed evidence was directed to the validity of the ruling of Watt J. on the stay application, not to the integrity of the jury verdict at the third trial.  Furthermore, far from establishing the impropriety of the mistrial at the second trial, the proposed evidence showed that the jury was irremediably stalemated and that a mistrial was the only conceivable ruling.  Therefore, while Finlayson J.A. favoured modifying the common law rule and declaring s. 649 of the Code to be unconstitutional, he concluded that the circumstances of the Pan action did not warrant such a result. 

2.  The Sawyer Action (1999), 134 C.C.C. (3d) 152

(i) McMurtry C.J.O., Osborne, Labrosse and Charron JJ.A.

34                               The constitutionality of the common law rule and s. 649 of the Code were the only issues raised in the Sawyer action.  As a result, the majority’s conclusions on these issues in the Pan action also disposed of the Sawyer and Galbraith actions.

(ii) Finlayson J.A., Dissenting

35                               With respect to the Sawyer and Galbraith actions, Finlayson J.A. concluded that the trial judge did have jurisdiction to conduct an inquiry of the individual jurors concerning the alleged complaints conveyed to defence counsel by one of the jurors, and that whether he chose to do so on the facts of the case was within his discretion.  Finlayson J.A. concluded that the impediments to such an inquiry posed by the common law rule and s. 649 of the Code were unconstitutional, and that Sawyer and Galbraith had been denied their right to attempt to expose the partiality of the jury that convicted them.  In the result, Finlayson J.A. would have quashed the conviction and ordered a new trial for both Sawyer and Galbraith.

V.  Issues

36                               The following constitutional questions were stated by the Chief Justice with respect to the Pan appeal:

1.    Does s. 649  of the Criminal Code  infringe the rights and freedoms guaranteed by s. 7 , 11( d )  or 11( f )  of the Canadian Charter of Rights and Freedoms ?

2.    If the answer to Question 1 is yes, is s. 649  of the Criminal Code  a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

3.    Does the common law exclusionary rule, precluding the admission of evidence relating to the deliberations of a jury, infringe the rights and freedoms guaranteed by s. 7 , 11( d )  or 11( f )  of the Canadian Charter of Rights and Freedoms ?

4.    If the answer to Question 3 is yes, is the above-noted common law rule a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ; and if not, ought the said common law rule to be modified to conform with the said Canadian Charter of Rights and Freedoms ?

5.    Does s. 653(1)  of the Criminal Code  and/or the common law power of a judge to declare a mistrial, during or following the deliberations of the jury, violate the protection against double jeopardy which is guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms ?

6.    If the answer to Question 5 is yes, is s. 653(1)  of the Criminal Code , or the said common law power to declare a mistrial, a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ; and if not, ought the common law power to be modified to conform with the said Canadian Charter of Rights and Freedoms ?

7.    Does s. 653(2)  of the Criminal Code  violate s. 7 , 11( d )  or 11( f )  of the Canadian Charter of Rights and Freedoms ?

8.    If the answer to Question 7 is yes, is s. 653(2)  of the Criminal Code  a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

37                               With respect to the Sawyer appeal, the Chief Justice stated four constitutional questions on September 22, 1999.  These are virtually identical to questions 1 through 4 stated in the Pan action above and, as a result, the answers to questions 1 through 4 in the Pan appeal will also dispose of the Sawyer action. 

VI.  Analysis

A.  Introduction

38                               There is a large measure of common ground in these appeals on the jury secrecy rules, which comprise the common law rule and s. 649  of the Criminal Code . All agree that a measure of secrecy is essential to ensure the independence and effectiveness of the jury.  There is also agreement that the jury secrecy rules must be compatible with the requirements of the Charter  and, in particular, with the s. 7 requirement of fundamental fairness in criminal proceedings.  The only issue is whether the current state of the law – common law and statute – conforms with the constitutional requirement of fairness.  This, in turn, requires a  balance between, on the one hand, preserving the secrecy of deliberations to permit the effective functioning of the jury system, and, on the other hand, ensuring that accused persons are not at risk of being convicted as a result of a perverse process. Along the spectrum between secrecy and openness lies the constitutionally acceptable limit on access to information pertaining to how the jury arrived at its verdict.

39                               A preliminary question was raised in the Court of Appeal as to whether societal interests competing against the liberty interest of the accused must be weighed within the s. 7 analysis, or whether the weighing should be done under s. 1  of the Charter .  In my view, this issue is not relevant here, and the question poses a false dilemma.  The jury secrecy rules are on their face neutral.  They could just as easily be invoked by an accused seeking to bar scrutiny of a jury deliberation process that led to an acquittal which the Crown wishes to impeach on appeal. 

40                               The question is not one of balancing the individual rights of the accused against the rights of others, or against a larger societal interest, in order to decide whether the jury secrecy rules that curtail review of verdicts infringe the principles of fundamental justice, and therefore s. 7.  Rather, the true question is whether the methods of reviewability of jury deliberations, including the jury secrecy rules, are fair and just. This, in turn,  assumes either a constitutionally mandated self-standing right of review,  as discussed in R. v. Farinacci (1993), 109 D.L.R. (4th) 97 (Ont. C.A.),  or a constitutional principle that, when review is granted, it must proceed fairly.  For the purpose of this appeal, I am prepared to assume both. In other words, to test the constitutionality of the jury secrecy rules under s. 7, one must assume that some review of conviction is required as a principle of fundamental justice, or that, if it is not, any review provided for by statute or at common law must proceed fairly.  It cannot be arbitrary,  irrational or unjust.

B.  The Common Law Rule of Jury Secrecy

1. The Role of the Jury

41                               The jury trial is a vital component of our system of criminal justice.  Its importance in our justice system is described by Cory J. in R. v. G. (R.M.), [1996] 3 S.C.R. 362, at para. 13, as follows:

Our courts have very properly stressed the importance of jury verdicts and the deference that must be shown to those decisions.  Today, as in the past, great reliance has been placed upon those decisions.  That I think flows from the public awareness that 12 members of the community have worked together to reach a unanimous verdict. 

42                               The various rationales underlying the continued vitality of the jury as decision maker in our criminal justice system are summarized in the majority judgment of this Court in R. v. Sherratt, [1991] 1 S.C.R. 509, by L’Heureux-Dubé J. as follows (at p. 523):

The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole. 

43                               The jury is a judicial organ of the criminal process.  It accomplishes a large part of the function exercised by judges in non-jury criminal cases.  In a jury trial, the jury is the “judge” of the facts, while the presiding judge is the “judge” of the law.  They, judge and jury together, produce  the judgment of the court. The jury hears all the evidence admitted at trial, receives instructions from the trial judge as to the relevant legal principles, and then retires to deliberate.  It applies the law to the facts in order to arrive at a verdict.  In acting as fact-finders in a criminal trial, jurors, like judges, bring into the jury room the totality of their knowledge and personal experiences, and their deliberations benefit from the combined experiences and perspectives of all of the jurors.  One juror may remember a detail of the evidence that another forgot, or may be able to answer a question that perplexes another juror.  Through the group decision-making process, the evidence and its significance can be comprehensively discussed in the effort to reach a unanimous verdict. 

44                               While the jury, unlike a judge, does not provide reasons for its ultimate decision, the jury’s deliberations can nevertheless be likened to the reasoning process in which a judge would engage prior to releasing oral or written reasons explaining his or her decision.  A judge’s written reasons only reveal the judge’s ultimate rationale for deciding the case as he or she did.  They do not necessarily reveal all the thought processes, the hesitations, the quaeres and the revisions leading up to those final written reasons.  Likewise, the thoughts and discussions of the jurors that occur in the course of their deliberations are not revealed – only the jury’s ultimate verdict is made public.

45                               A judge’s decision may be challenged on appeal, but judges cannot be compelled to testify as to how and why they arrived at a particular judicial decision: 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.  In fact, as a general rule, reviewing courts do not seek information from the courts whose judgments they are reviewing in order to assess the likely impact of apparent errors.  The limited exception to this is s. 682(1)  of the Criminal Code , which requires the trial judge to “report” to the court of appeal at the request of the court of appeal.  As noted by Cory J. for the majority of this Court in R. v. E. (A.W.), [1993] 3 S.C.R. 155, at p. 192, the court of appeal should only request such a report “in those rare circumstances where something has occurred which is not reflected on the record upon which opposing counsel cannot agree”.  In any event, it is neither designed nor used to probe into the deliberative process of the decision maker, be it judge alone or jury.

46                               Viewed in that light, the jury secrecy rules are not totally at odds with the methods of review of all fact-finding decisions.  While the jury’s verdict may be challenged through the normal appeal process, the jury’s reasons for arriving at the verdict cannot be inquired into.  This reflects, in part, the sound concern about the difficulty of reconstructing after the fact, and with hindsight, the integrity of  the reasoning process that led to the original decision.

2. Origins of the Common Law Rule 

47                               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.  In earlier times, the restrictions imposed on juries during the deliberation process were quite severe: Coke on Littleton (1789), vol. II, para. 227b, as quoted in R. v. Dyson, [1972] 1 O.R. 744 (H.C.), at p. 745:

By the law of England a jury, after their evidence given upon the issue, ought to be kept together in some convenient place, without meat or drinke, fire or candle, which some bookes call an imprisonment, and without speech with any, unlesse it be the bailife, and with him onely if they be agreed.

48                               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.  The common law rule, also referred to as Lord Mansfield’s rule, can be traced back to the case of Vaise v. Delaval (1785), 1 T.R. 11, 99 E.R. 944 (K.B.), in which Lord Mansfield ruled that the court could not receive affidavits from jurors attesting to their own misconduct in reaching a verdict by lot: see Wigmore on Evidence (McNaughton rev. 1961), vol. 8, § 2352, at p. 696.  The rule was explicitly adopted by this Court is Danis v. Saumure, [1956] S.C.R. 403, in the context of a civil jury trial. 

3.  The Evolving Rationales for the Jury Secrecy Rule

49                               The policy justifications underlying Lord Mansfield’s rule have evolved over time.  The original rationale for the rule was that, because the violation of the juror’s oath was a high misdemeanour, affidavits of jurors themselves were inadmissible as they were self-incriminatory.  As this rationale fell into disuse, others  were advanced.  The main policy concerns advanced in support of keeping secret forever the deliberations of the jury have been canvassed by the Court of Appeal.

50                               The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making.  While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime.  In my view, this rationale is sound, and does not require empirical confirmation.

51                               The Court of Appeal also placed considerable weight on the second rationale for the secrecy rule: the need to ensure finality of the verdict. Describing the verdict as the product of a dynamic process, the court emphasized the need to protect the solemnity of the verdict, as the product of the unanimous consensus which, when formally announced, carries the finality and authority of a legal pronouncement. That rationale is more abstract, and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that  finality, standing alone, is a convincing rationale for requiring secrecy.

52                               The respondent, as well as the interveners supporting its position and, in particular, the Attorney General of Quebec, place great emphasis on the third main rationale for the jury secrecy rule – the need to protect jurors from harassment, censure and reprisals. Our system of jury selection is sensitive to the privacy interests of prospective jurors (see R. v. Williams, [1998] 1 S.C.R. 1128), and the proper functioning of the jury system, a constitutionally protected right in serious criminal charges, depends upon the willingness of jurors to discharge their functions honestly and honourably.  This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy.

53                               I am fully satisfied that a considerable measure of secrecy surrounding the deliberations of the jury is essential to the proper functioning of that important institution and that the preceding rationales serve as a useful guide to the boundaries between the competing demands of secrecy and reviewability.

4. The Ambit of the Common Law Secrecy Rule

54                               Under Lord Mansfield’s rule, evidence relating to what occurs among the jurors in the jury room is not admissible.  Although the rule was originally expressed to preclude the evidence of the jurors themselves being tendered to expose their deliberations, subsequent authorities have held that evidence pertaining to jury deliberations cannot be admitted even where the evidence originates from someone outside the jury who overheard the jurors discussing the verdict, as was the case in R. v. Bean, [1991] Crim. L.R. 843 (C.A.).

55                               As the English cases show, the rule seeks to preserve the secrecy of the jury’s deliberations, while ensuring that those deliberations remain untainted by contact with information or individuals from outside the jury.  As a result, where the evidence establishes that the jury has been exposed to outside information or influences, it will generally be admissible.  The situations in which evidence has been admitted under the rule in the English cases include: evidence that someone tried to bribe one of the jurors in the course of the trial: R. v. Putnam (1991), 93 Cr. App. R. 281 (C.A.); evidence that a jury bailiff may have made remarks to a jury revealing the fact that the accused had previous convictions: R. v. Brandon (1969), 53 Cr. App. R. 466 (C.A.); and evidence that a juror had used a cellular telephone to call someone at his place of business from the jury room: R. v. McCluskey (1993), 98 Cr. App. R. 216 (C.A.).

56                               The application of the rule in the English cases has resulted, at times, in incongruous results.  For example, evidence that a jury bailiff told the jurors of the accused’s previous convictions has been held to be admissible (Brandon, supra), whereas evidence that the jury foreperson told the other jurors of the accused’s previous convictions has been held to be inadmissible (R. v. Thompson, [1962] 1 All E.R. 65 (C.C.A.)).  The rationale for the different result in these two situations is presumably that, in the former, the prejudicial information emanated from a source outside the jury room while, in the latter, the information, though equally prejudicial, was furnished by one of the jurors.  In each case, however, the information is the same and its effect upon the jury is likely the same. 

57                               In Canada, with the exception of the case of R. v. Zacharias (1987), 39 C.C.C. (3d) 280 (B.C.C.A.), discussed below, the courts have applied Lord Mansfield’s rule to exclude evidence of the jury’s deliberations.  In R. v. Perras (1974), 18 C.C.C. (2d) 47 (Sask. C.A.), the sheriff overheard a discussion by the jury in the jury room to the effect that they were going to decide the case by majority vote.  A few minutes after this conversation, the jury rendered a guilty verdict.  The appellant sought leave to examine the jurors for the purpose of impeaching their verdict.  The court concluded that Lord Mansfield’s rule was equally applicable to the evidence of a stranger as to the jury’s deliberations, and declined to allow an inquiry of the jurors.  As with the English cases, where the evidence relates to an intrusion into the jury deliberation process by an outside influence, the courts have admitted the evidence.  For example, in R. v. Mercier (1973), 12 C.C.C. (2d) 377, the Quebec Court of Appeal held that evidence from a juror showing that a Crown attorney had entered the jury room in the absence of the jury and erased words from the blackboard was admissible,  but that evidence concerning the effect of this act upon the jury was not admissible.  The courts have also held that where the jury has had contact with third parties during the course of its deliberations, for example by calling home or mingling with the crowd at the movies, evidence concerning these irregularities is admissible: R. v. Ryan (1951), 13 C.R. 363 (B.C.C.A.); Nash, supra.

58                               As noted by the majority of the Court of Appeal, Lord Mansfield’s rule has been applied restrictively in some Canadian cases so as to preclude the admission of evidence emanating from one of the jurors even where this evidence concerns the alleged influence of a third party on the jury deliberations.  For example, in R. v. Wilson (1993), 78 C.C.C. (3d) 568 (Man. C.A.), the appellant claimed that an RCMP officer had communicated information to a juror about the appellant’s co-conspirator and that this information was conveyed to the other jurors.  This evidence was sought to be admitted through the testimony of the jury foreman.  The court held that the foreman’s evidence as to comments made in the jury room was inadmissible.  This is similar to the English case of Thompson, supra, in which the rule was applied restrictively to preclude the admission of evidence that the foreman had produced a list of the accused’s previous convictions during the deliberations. 

59                               I am in agreement with the majority of the Court of Appeal that Lord Mansfield’s rule should not be applied in such a restrictive manner.  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 or not 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 or not 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.  As I indicated earlier, reviewing courts do not probe into the deliberative process of trial judges, beyond what is revealed in their oral or written reasons, even when these reasons reveal very little.  Whether this sound practice is based on a respect for the independence of the original adjudicator, or on the more pragmatic conclusion that the exercise would likely be futile, it applies with equal force to the deliberations of a jury.  Clearly, in some cases, evidence that would be admissible under the extrinsic distinction would also fall within the  meaning of obstructing justice in s. 139(2)  of the Criminal Code  and could therefore be disclosed pursuant to an investigation under s. 139(2) of the Code.

60                               The majority of the Court of Appeal defined the jury deliberation process as 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 majority found that it was this core of jury secrecy and nothing more that Lord Mansfield’s rule sought to protect.  While I agree that this definition accurately reflects the current application of the common law rule in Canada, I think that it requires further clarification as to the distinction between matters intrinsic to the deliberation process, which cannot be revealed, and extrinsic matters which would be admissible without infringing the secrecy rule.  The distinction between intrinsic and extrinsic matters is not always self-evident and it is not possible to articulate with complete precision what is contemplated by the idea of a matter “extrinsic” to the jury deliberation process. 

61                               Jurors are expected to bring to their task their entire life’s experiences. It is on the basis of what they know about human behaviour, knowledge that they have obviously acquired outside the courtroom, that they are requested to assess credibility and to draw inferences from proven facts. Even though not the object of evidence tendered in the trial, an opinion, a piece of general information, or even some specialized knowledge that a juror may reveal in the course of the deliberations, is not an extrinsic matter.  Typically, such information would not be the object of evidence tendered at trial.  It would be viewed as either irrelevant, too remote, or as attempting to usurp the functions of the jury.  On the other hand, 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.

62                               The line between matters of general knowledge and information that bears directly on the case may not always be evident.  For example, if a juror shares with his fellow jurors his detailed familiarity with the location where the crime was alleged to have been committed, this may be viewed as an intrinsic matter protected by the secrecy rule.  If the same juror, however, went on a visit to the site, took photographs and brought them back to the jury room to support his interpretation of the facts at issue, this may be extrinsic, outside information that falls outside the secrecy rule.  In my view, the limits of the secrecy rule as it exists at common law are properly expressed by the distinction between intrinsic and extrinsic evidence even though that distinction itself is at times difficult to discern.  What remains to be determined is whether or not the common law rule of exclusion, as expressed above, should be modified or whether, in its present form, it is consistent with the principles of fundamental justice.

C.  Should the Common Law Rule Be Changed?

63                               The Crown’s position is that Lord Mansfield’s rule should be strictly applied and that the line should be drawn at the jury room door.  In the Crown’s submission, any information emanating from the jurors themselves, even evidence that one juror told the others that the accused has a previous criminal record, as was the case in Thompson, supra, should be inadmissible.  According to the Crown, a clear, bright line is required in this area of the law and nuances based on whether evidence is extrinsic or intrinsic to the deliberation process should therefore be avoided. 

64                               The appellants’ position is that the flexible, case-by-case approach advocated by Finlayson J.A. in his reasons in Pan should be preferred.  When difficult cases present themselves in which the operation of Lord Mansfield’s rule may be unjust, Finlayson J.A. concludes that “it is incumbent on the court to do more than maintain blind allegiance to a rule that may work an injustice” (para. 369).  Instead, according to Finlayson J.A., the court must fashion a remedy that works justice in the particular circumstances of the case, even if that requires modifying Lord Mansfield’s rule.

65                               In support of this approach, Finlayson J.A. refers to the case of Zacharias, supra.  In that case, the appellant was convicted of fraud by a jury.  After the trial, the foreman of the jury contacted defence counsel and told him that third parties had communicated false prejudicial information about the appellant to members of the jury.  Defence counsel referred the matter to Crown counsel and an investigation was conducted in which 11 members of the jury were questioned.  The investigation of the allegations did not reveal any evidence of an offence under what is now s. 139(2) of the Code.  However, the investigation did disclose that the jurors believed that they would be kept in deliberations for two or three weeks if they told the judge that they were unable to agree, and that they also believed that they could not ask the trial judge for clarification as to what constitutes a hung jury.

66                               The Court of Appeal in Zacharias concluded that the investigators were wrong in not preventing the jurors from revealing evidence of their deliberations. However, the Court also concluded that the disclosed information supported the conclusion that the jurors rendered a verdict of guilty because they did not fully understand the options open to them.  In the result, the Court of Appeal, while noting that the “peculiar circumstances of this case ought to strip it of any precedent-setting value for probing a jury’s deliberations in other cases”, held that the conviction should be quashed and a new trial ordered (p. 284).  The Zacharias case appears to be the only Canadian decision that has allowed the disclosure of jury deliberations for the purpose of impeaching the verdict: see Wilson, supra, at p. 574. 

67                               Under the case-by-case approach advocated by the appellants and Finlayson J.A., the court could admit any evidence of irregularities in the jury proceedings for the purpose of impeaching the verdict where it considered that such evidence may have affected the outcome of the trial.  The advantage of this approach is obviously that it ensures a thorough review of the integrity of the verdict by shedding light on any impropriety or error that may have tainted the jury’s deliberations. The evidence can be admitted regardless of whether the alleged impropriety results from some outside influence or emanates from inside the jury room. Taken to its logical conclusion, this approach would suggest that, for the purposes of facilitating the best possible reconstruction of the deliberation process, should such reconstruction be required, minutes or some form of record of the jury’s deliberations should be kept.  Even without going that far, I do not think that this approach is sound. 

68                               While the case-by-case approach ensures that no occurrences of jury misconduct are shielded from review, it also undermines, in a fundamental way, the very concept of jury secrecy.  If the confidentiality of the jury deliberation process is contingent on whether any allegations of impropriety are later raised following the conclusion of the trial, jury secrecy will be an illusory concept.  We would be doing jurors a disservice, in my view, to tell them, on the one hand, that everything they say in the course of their deliberations is private and confidential, and, on the other hand, to decide after the deliberations are over whether in fact we will give effect to our guarantee of confidentiality.  Given the importance of preserving the secrecy of jury deliberations in order to foster free and frank debate in the jury room and to protect jurors from harassment, we should not adopt an approach that determines whether the deliberations of the jury will remain secret after the fact, on a case-by-case basis.  More certainty and predictability is required for jury secrecy to be meaningful.

69                               The interpretation of the common law rule adopted by the majority of the Court of Appeal is similar to the statutory rule of evidence in the United States set out in Federal Rule 606(b).  Rule 606(b), or a modified version thereof, has been adopted in many U.S. states.  It provides that:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror . . . .   [Emphasis added.]

70                               The Rule is essentially a rule of exclusion.  It renders inadmissible  matters internal to the deliberation process, including the effect of anything on a juror’s mind. Subject to that prohibition, it permits the introduction of evidence of “extraneous prejudicial information” and “outside influence”.  The Rule, which applies in both civil and criminal cases, appears to have generated considerable litigation in the United States.  This may in part be due to the fact that there is no equivalent of s. 649  of the Criminal Code  to prevent jurors from public disclosure of their deliberations. The revelations that are often made by jurors after the trial, to the parties and to the press, may  provide fertile ground for impeachment of the verdict, yet that impeachment is still subject to Rule 606(b). It is also important to remember that there is generally no appeal from acquittal under U.S. law, and that improprieties in jury deliberations leading to an acquittal, even when revealed publicly by the jurors themselves, are no basis for redress. 

71                               In light of the above, it is unnecessary to review extensively the American jurisprudence on this point. On its face, the Rule does not render information concerning internal jury deliberations admissible, even where this evidence indicates concerns about the performance of the jury.  For example, in Tanner v. United States, 483 U.S. 107 (1987), the majority held that evidence that jurors had consumed drugs and alcohol during the course of the trial was not admissible.  The approach to admissibility embodied in Rule 606(b) is similar to the approach in Canada, as described by the Court of Appeal, which focuses on whether the evidence relates to information or an influence originating from outside of the jury deliberation process.

72                               The Law Reform Commission of Canada in its Working Paper 27 entitled The Jury in Criminal Trials (1980) formulated a different  approach to the protection of the secrecy of deliberations.  The proposed Recommendation reads as follows (at p. 149):

27.1  The validity of a verdict may not be inquired into except upon an application to the Minister of Justice. 

27.2 The Minister of Justice may, upon an application by or on behalf of a person who has been convicted by a jury, order a new trial, if after inquiry he is satisfied that some irregularity or misconduct occurred during the jury deliberations which indicates that the verdict did not reflect the judgment of all jurors.

27.3 Upon an inquiry into the validity of a verdict, a juror may not give evidence concerning the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or to dissent from the verdict or concerning his mental processes in connection therewith.  Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.  [Emphasis added.]

This Recommendation was not included in the final report of the Law Reform Commission on the jury:  Report 16, The Jury (1982).  The reasons for its exclusion from the final report are not indicated. 

73                               The procedural aspect of this Recommendation, dealing with a review by the Minister of Justice, is obviously not before us. I simply turn to the way in which the Commission articulated the ambit of jury secrecy.  The Recommendation seeks to maintain the prohibition against probing into the mental processes of jurors, while permitting exposure of irregularities or misconduct, presumably by the jurors or anyone else, that indicate that the verdict does not “reflect the judgment of all jurors”.  Standing alone, the Commission’s Recommendation would not permit review of a verdict which may “reflect the judgment of all jurors”, but which may have been tainted by an outside influence or extraneous prejudicial information.  In contrast, such extrinsic evidence would be admissible under the American rule and under the common law rule as set out by the Court of Appeal. 

74                               The Commission’s formulation of the rule of admissibility has appeal because it  renders admissible evidence of facts or events, beyond the ones classified as “extrinsic” by the Court of Appeal, that may reveal that the verdict was arrived at improperly, such as by a coin toss or majority vote.  However, an exception that renders admissible evidence that the verdict “did not reflect the judgment of all jurors” may also capture circumstances where it is not the collective decision-making process of the jury that is alleged to be improper, such as arriving at the verdict by a coin toss, but rather the possibility that the decision of one or more of the jurors was influenced by something other than the relevant facts and law.  For example, an allegation by a juror that he or she suppressed a dissenting view because of undue pressure from the other jurors, or that others arrived at their decisions because of biased and prejudicial opinions, might be admissible under this exception, as it suggests that the verdict may not have been the result of a unanimous decision of all jurors based on the facts and evidence.  Such allegations could be interpreted as suggesting that the verdict did not “reflect the judgment of all jurors”.

75                               It is not uncommon for jurors to have second thoughts, after the trial is over, as to whether or not they should have delivered the verdict that they did.  At that point they may come forward and state that they did not agree with the verdict delivered by the jury, although they expressed their agreement at the time the verdict was delivered.  These second thoughts may result from information obtained following the conclusion of the trial, such as exposure to evidence excluded during the course of the trial, or they may arise from a juror’s own thought processes.  Whatever the origins of these second thoughts, they should fall squarely within the common law rule of jury secrecy and should not be admissible to impeach the verdict.

76                               In my view, the Commission’s Recommendation should not form part of the common law rule of exclusion.  While it has the advantage of capturing the coin toss and majority verdict cases, which arise rarely but raise serious concerns about the integrity of the verdict, it would unduly complicate the existing rule and would result in greater uncertainty as to when it is appropriate to inquire into the secrecy of jury deliberations.  I conclude therefore that the Commission’s Recommendation should not be integrated into the common law rule of jury secrecy, whether in place of the extrinsic evidence exception contained in the common law rule as set out below, or in addition to the common law rule.

77                               In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield’s rule is as follows:  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. 

78                               This modern formulation of the rule, which reflects the approach of the majority of the Court of Appeal, best ensures that the sanctity of the jury’s deliberations is preserved by promoting in equal measure the secrecy and confidentiality indispensable to the deliberation process and the exposure of serious matters casting doubt on the integrity of the verdict. 

D.  Does the Common Law Rule Infringe the Charter ?

79                               The appellants submit that the common law rule of jury secrecy infringes their rights under ss. 7 , 11( d )  and 11( f )  of the Charter . In my view, it is unnecessary in the present case to address the appellants’ arguments concerning ss. 11( d )  and 11( f )  of the Charter .  I agree with the Court of Appeal that the alleged Charter  violations in the present appeals are more properly dealt with under s. 7  of the Charter  and that nothing would be gained by also analysing the alleged violations under ss. 11(d) or 11(f).  I will therefore confine my analysis to whether the common law rule and s. 649  of the Criminal Code  are consistent with the principles of fundamental justice enshrined in s. 7  of the Charter .

80                               The starting point of the appellants’ arguments concerning jury secrecy is that the secrecy of jury deliberations is a problem from the accused’s perspective, and that allowing accused persons to access evidence of jurors concerning the deliberation process would provide greater assurance of fairness to the accused.  In some circumstances, this may no doubt be true.  It is important to emphasize, however, that modifying the common law rule in the manner suggested by the appellants would not necessarily benefit accused persons in all cases.  If jurors know that the views they express in the jury room may eventually come to light, they may be less inclined to argue for a verdict that may be perceived as unpopular.  For example, a juror who has serious concerns about the foundations of a conviction might rapidly accede to the majority viewpoint of convicting an accused charged with a horrible crime rather than attempt to argue for, or even explore out loud, the arguments favouring an acquittal, fearful of possible negative public exposure. 

81                               The common law rule of jury secrecy, 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.  It is of course also possible that evidence of juror improprieties, misconduct or error, if admissible, would 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.

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

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

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

83                               In my view, 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.  Given that the right to a trial by jury is guaranteed by the Charter , it is not open to us to adopt an approach that would threaten the jury’s ability to carry out its role fairly and diligently.  The principles of fundamental justice require that the integrity of the jury be preserved, and, in my opinion,  it is best preserved by the common law rule as interpreted above.

E.  Does Section 649 of the Criminal Code Infringe the Charter ?

84                               The appellants submit that s. 649  of the Criminal Code  violates their rights under ss. 7 , 11( d ) , and 11( f )  of the Charter .  Section 649 of the Code 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. 

85                               In the appellants’ submissions, s. 649 is unconstitutional because it precludes an accused person from gathering the “evidentiary bricks”, as this Court used that term in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 608, which are necessary to demonstrate that improprieties occurred during the jury’s deliberations that call into question the validity of the verdict.  The majority of the Court of Appeal held that the term “proceedings of the jury” in s. 649 of the Code refers to the deliberation process as defined at common law, namely “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).  Under this interpretation, the type of information that jurors are prohibited from disclosing under s. 649 is the same type of evidence that the common law renders inadmissible.  I agree with the majority of the Court of Appeal that s. 649 prohibits the disclosure of information which lies at the core of jury secrecy to which the common law rule of exclusion applies. 

86                               The majority of the Court of Appeal concluded, in my view correctly, that the constitutionality of s. 649 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.  I concluded above that, properly interpreted, the common law rule of exclusion is constitutionally sound.  That rule would have precluded the admission of the proposed fresh evidence in both the Pan and Sawyer appeals.  As a result, it is not necessary to address the constitutionality of s. 649 for the purposes of the present appeals.  Since the evidentiary bricks that Pan and Sawyer seek to gather would at any rate be inadmissible, it cannot be said that they have been prejudiced by being denied access to inadmissible evidence. 

87                               Nevertheless, I think that it is helpful to discuss the relationship between s. 649 and the common law rule.  Finlayson J.A. undertook a thorough and helpful review of the legislative history of the Code provision. Although that history suggests that its enactment was prompted by concerns about juror disclosures to the media, rather than by a desire to codify the common law rule, it does not follow, in my view, that there is no connection between the common law rule of exclusion and s. 649 of the Code. Rather, the two must, if possible, be reconciled in a coherent fashion and in accordance with the requirements of the Charter . 

88                               In my view, 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” in s. 649 of the Code 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 of the Code, 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.

89                               The common law rule of jury secrecy, in combination with the mirror prohibition on disclosure under s. 649 of the Code, serves to further the policy goals of promoting free and frank debate among jurors, protecting jurors from harassment,  and preserving public confidence in the administration of justice.  The role of each juror in respecting the confidentiality of the deliberation process serves to maintain public confidence in the criminal justice system.  This was  expressed as far back as 1922, in  R. v. Armstrong, [1922] All E.R. 153 (C.A.), at p. 157, where Lord Hewart C.J. said:

If one juryman might communicate with the public upon the evidence and the verdict, so might his colleagues also, and if they all took this dangerous course, differences of individual opinion might be made manifest which, at the least, could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdicts. 

90                               While the common law rule and s. 649 seek to prevent disclosure by different means, and arguably for different reasons, they both aim to preserve the confidentiality of the core of jury deliberations.  Thus, while it is not strictly necessary to dispose of the constitutionality of s. 649 in the context of this appeal, even in the limited context of s. 7  of the Charter , I find it consistent with the common law rule which itself meets the constitutional requirements of fairness embodied in s. 7.

F.  Jury Secrecy in Context

1.  Safeguards in the Jury System

91                               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.

92                               The majority of the Court of Appeal surveyed many of the features of the  criminal trial process that ensure the fairness of the jury system, including: the availability of peremptory challenges and challenges for cause, the requirement of the juror’s oath, the judicial exclusion of prejudicial evidence, judicial instructions to the jury, the sequestration of jurors during deliberations, the non-publication of proceedings taking place in the absence of the jury, the requirement of unanimity, and the polling of individual jurors after the verdict is read.  In my view, several of these safeguards warrant emphasis in the context of the present appeals.

93                               The greatest safeguard against a perverse jury rests in s. 686(1) (a)(i) of the Criminal Code , which allows the court to set aside a verdict that is unreasonable or that cannot be supported by the evidence: 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, and R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17.  Another important safeguard against a perverse verdict is s. 649 (a) of the Criminal 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) of the Code.

94                               With particular reference to the Sawyer appeal, it is worth emphasizing two other safeguards against an improper verdict: challenges for cause and the power to discharge jurors in the course of the trial pursuant to s. 644(1)  of the Criminal Code .  Together, ss. 638(1) (b) and 644(1)  of the Criminal Code  permit a court to address concerns about bias that may arise before or during the course of a jury trial.  Thus, it is only at the post-verdict stage that there is a restriction on the ability to probe into allegations of bias by virtue of the operation of the common law rule of exclusion.

95                               As discussed by this Court in Sherratt, supra, and Williams, supra, a trial judge should permit challenges for cause under s. 638(1)(b) where there is a “realistic potential” of the existence of partiality on the part of jurors.  In order to establish a realistic potential of juror partiality, the accused must generally show that there is widespread bias in the community and that some jurors may be incapable of setting aside their partiality despite trial safeguards: R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at para. 32.

96                               With respect to s. 644  of the Criminal Code , when it comes to the attention of the trial judge that a juror has been subject to improper external influences or is unable or unwilling to properly fulfil his or her role as a juror, the judge may hold a hearing to ascertain the nature of the problem, if any, and has the discretion to discharge the juror where the circumstances so warrant: R. v. Sophonow (No. 2) (1986), 25 C.C.C. (3d) 415 (Man. C.A.); R. v. Hahn (1995), 62 B.C.A.C. 6; R. v. Taillefer (1995), 100 C.C.C. (3d) 1 (Que. C.A.); R. v. Lessard (1992), 74 C.C.C. (3d) 552 (Que. C.A.).  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.

97                               There are limits to the availability of challenges for cause and other pre-trial safeguards, just as there are limits to the availability of post-trial remedies.  Likewise, there are limits to the use of s. 644 of the Code as a mechanism for discharging jurors in the course of the trial.  Section 644 only permits jurors to be discharged in the course of the trial where a serious issue arises as to their fitness as a juror.  It is not designed to encourage jurors to bring trivial complaints about their fellow jurors to the attention of the trial judge in the course of the trial, nor does it contemplate the discharge of jurors over minor concerns.  Trial judges can be left to decide how best to instruct the jury on these issues.  Ideally, trial judges should satisfy themselves that jurors understand that their decision is an exercise in personal conscience and judgment and that they are entitled to respect from the criminal justice system for the bona fide exercise of their judgment.  In instructing the jury on the requirement of unanimity, judges often emphasize that jurors have an obligation to be attentive to and respectful of the opinions of their fellow jurors, and that they should maintain the integrity of their own opinions while yielding when appropriate to the collective wisdom emanating from the deliberation process.  Jurors should understand that the trial judge is there to assist them with any serious difficulty that may arise in the course of their deliberations that they are unable to resolve.

98                               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 need for the trial judge to provide clear instructions to the jury, not just about the applicable legal principles, but also about the procedural aspects of the jury trial, is illustrated by the circumstances that arose in the Sawyer appeal as well as in the Zacharias case, supra.  As discussed above, the inquiry held in the Zacharias case revealed that the jury was under a misconception about how long they would remain sequestered before a mistrial could be declared on the basis of a hung jury.  Similarly, in the Sawyer action, the juror who contacted Sawyer alleged that she was under undue pressure to convict because she was told that the jury would have to be sequestered for at least three weeks before a hung jury could be declared.  In my view, regardless of whether there is any substance to the allegations made by the juror in Sawyer, the similarities between jurors’ misconceptions in Zacharias and in Sawyer illustrate the desirability of clear and explicit explanations by the trial judge about the mechanics of the deliberation process.

99                               The requirement of a unanimous verdict is a central feature of our jury system.  The first recorded case where unanimity was required was  in 1367, when an English court refused to accept a majority verdict of guilty: Anonymous Case, Lib. Assisarum, 41, 11, translated and reprinted in R. Pound, Readings on the History and System of the Common Law (2nd ed. 1913), at pp. 123-24.  Although the historical reasons for the unanimity rule are not clear, it remains a strong protection against wrongful, perverse verdicts:  Law Reform Commission of Canada, Working Paper 27, supra, at p. 19.  As noted by the majority of the Court of Appeal in the Pan appeal, the strength of the jury’s verdict “lies not in the assessment of the evidence by each individual juror or in each juror’s vote but, rather, in its unanimity” (para. 142).  This being said, I acknowledge and agree with the concern raised in Williams, supra, at para. 11, that there is a risk that the views of a biased juror may infect the jury’s deliberations and create a risk that the verdict is not solely based on the evidence and law.  Clearly, the requirement of unanimity is not a complete remedy for jury partiality or juror misconduct.  Nevertheless, the possibility of a biased juror having a decisive effect upon the verdict is reduced in a legal system such as ours that imposes unanimity, as opposed to a system that permits majority verdicts.  Undesirable as this result may be, a mistrial resulting from a jury’s inability to reach a unanimous verdict provides an additional safeguard against a result driven by bias and prejudice.

2. Jury Research in Canada

100                           As noted by McLachlin C.J. in Find, supra, trial by jury is a cornerstone of our criminal justice system and Canadian jurors, since our country’s earliest days, have met the challenge of judging their peers fairly and impartially.  Nevertheless, some cases do raise concerns that incorrect judicial instructions, jurors’ disregard of the evidence or other factors may have improperly affected the verdict.  The jury secrecy rules, and more particularly the narrow scope of access to jurors provided for in s. 649  of the Criminal Code , have prevented the scientific community from conducting empirical research indigenous to the Canadian judicial environment.  Researchers cannot carry out studies involving real Canadian juries to gain more insight into the mechanics of the jury process and the effect of judicial instructions upon the deliberations and verdict of the jury.  Instead, we are made to rely upon extrapolations from American studies and from simulated exercises to test the assumptions upon which many of our rules develop. 

101                           In its 1982 Report on the Jury, supra, the Law Reform Commission of Canada recommended that an exception be introduced into s. 649 of the Code to permit access to jury deliberations for the purpose of scientific research.  Although the idea received some support, it was not acted upon.  The desirability of permitting social science research involving real juries to take place has also been expressed more recently by academic commentators:  see P. Quinlan, “Secrecy of Jury Deliberations – Is the Cost Too High?” (1993), 22 C.R. (4th) 127; S. R. Chopra and J. R. P. Ogloff, “Evaluating Jury Secrecy: Implications for Academic Research and Juror Stress” (2000), 44 Crim. L.Q. 190.

102                           The jury secrecy rules, which are essential to the proper functioning of the jury as an institution, come at a price. Not only is it impossible to ascertain whether a particular jury has acted in accordance with its oath and the requirements of the law, but we cannot measure in any meaningful way whether the procedures that we have in place to ensure that it does function properly are effective.

103                           Every year, several jury verdicts are reversed and expensive new trials are ordered because of the risk of a serious error in the deliberative process.  We assume that errors in the admissibility of evidence, improper comments by counsel or, more commonly,  misdirections on the law by the trial judge may have misguided the jury and may have had an adverse impact on its verdict.  When that concern emerges, we then speculate as to whether the error is likely to have adversely affected the deliberations of the jury and, if so, we conclude that the entire trial is vitiated and that we must start again.

104                           That entire exercise is conducted on the basis of assumptions, some very fundamental, and some more easily verifiable than others.  For example, we assume that the exact wording of a jury charge will likely have an impact of the jury’s understanding of its tasks.  The clearest example is the long-standing search for the proper explanation of what guilt beyond a reasonable doubt means, and how it should be conveyed to the jury: see for example 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; and R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.

105                           There are means by which we should be able to assess rationally, and in an informed and reliable manner, whether exposure to some information is unduly prejudicial in the sense that juries are likely to give it inappropriate weight, for example in the case of criminal records or similar fact evidence.  We should also be able to measure the real capacity of juries to understand long and complex oral instructions, and to determine whether our current models of jury charges substantially accomplish their purpose.  In short, we should be able to assess, in an informed and rational fashion, the likely impact of an alleged error or event on the deliberations of the jury and on the fairness and reliability of its verdict. 

106                           The recent case of Find, supra, raises the issue of the lack of reliable social science research concerning the effect of juror attitudes on the deliberation process and verdict.  The accused in Find, who was charged with the sexual assault of children, argued that the nature of the charges gave rise to a realistic possibility that some jurors might harbour prejudice against him and be incapable of acting impartially.  He therefore sought to challenge jurors for cause.  This Court held that challenges for cause should not be permitted as the alleged “generic prejudice” arising from a charge involving sexual assault of children had not been established.  With respect to the prohibition on disclosure of jury deliberations imposed by s. 649 of the Code and its effect upon research into the jury process, the Chief Justice said (at para. 87):

More comprehensive and scientific assessment of this and other aspects of the criminal law and criminal process would be welcome.  Should Parliament reconsider this prohibition [s. 649], it may be that more helpful research into the Canadian experience would emerge.

107                           Parliament, after input from the social science community, the judiciary and the bar, could design appropriate parameters for this type of research to ensure respect for the concerns that inform the present jury secrecy rules, as well as most other rules governing jury trials.  Such research would add to the legitimacy of the existing rules and, if need be, would trigger judicial or legislative modifications.

108                           These appeals, and many others in the past decades, illustrate the difficulty and the importance of the tasks that citizens are compelled to perform when called for jury duty.  We should protect jurors from unjustified intrusion into their personal lives and we should also be able to give them assurances that the guidance they receive from the judge is based on the best knowledge we have about the way to a fair and just verdict. 

G.  Did Pan’s Third Trial Constitute an Abuse of Process?

109                           As indicated at the outset of these reasons, the main thrust of the appellant Pan’s argument in the present appeal is that the declaration of the mistrial by O’Connell J. at his second trial was improper.  It follows from this, Pan says, that the third trial before Watt J., which resulted in his conviction for first degree murder, violated the principle against double jeopardy and constituted an abuse of process.  The appellant submits that the appropriate remedy is for this Court to order a stay of proceedings.  In order to establish the impropriety of the mistrial, Pan seeks to have admitted as fresh evidence in the appeal the testimony of jurors from his second trial.  For the reasons above, I have concluded that the appellant is barred by the common law jury secrecy rule from adducing such evidence. I will return to this issue below. 

1. Section 653(2)  of the Criminal Code 

110                           As a threshold matter on the abuse of process issue, the appellant Pan challenges the constitutional validity of s. 653(2) of the Code, which provides that a judge’s exercise of discretion to declare a mistrial on the basis that the jury is unable to agree upon a verdict is “not reviewable”.  In addition to his arguments on the double jeopardy issue, the appellant submits that s. 653(2) of the Code violates ss. 7 , 11( d )  and 11( f )  of the Charter  because it purports to insulate from review the decision of a judge to declare a mistrial on the basis of a deadlocked jury.

111                           The Crown has not disputed the ability of this Court, the Court of Appeal or Watt J. to review the mistrial declared by O’Connell J.  I do not see how declaring s. 653(2) to be constitutionally invalid would advance the appellant’s position.  The propriety of the mistrial before O’Connell J. has been, and continues to be, under review.  The fact that no issue was taken by the Crown with the appropriateness of this review may relate to the statement of Martin J.A, speaking for the Ontario Court of Appeal in D. (T.C.), supra, at p. 447, in which he said:

Notwithstanding the common law limitations on the ability to challenge the judge’s discretion to terminate a trial before verdict, I am satisfied that the propriety of a decision to declare a mistrial is subject to Charter  scrutiny where a second trial, after the improper termination of the first trial, would contravene principles of fundamental justice. 

While I agree with this statement, I do not think that the constitutional issue needs to be resolved in the present case.

2. The Effect of the Second Mistrial

112                           The law is clear that a third trial will not, without more, constitute an abuse of process:  Keyowski, supra; R. v. Conway, [1989] 1 S.C.R. 1659.  It is also clear that a stay of proceedings should only be entered in the “clearest of cases”: R. v. Jewitt, [1985] 2 S.C.R. 128; Conway, supra; Keyowski, supra; 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.  Where a claim of abuse of process is made, it is necessary to examine the particular facts of the case in order to determine whether, in all the circumstances, it would offend the principles of fundamental justice to proceed further.  In Pan’s case, there has been no suggestion of prosecutorial misconduct or of systemic failure. Pan’s abuse of process argument therefore rests solely on his contention that O’Connell J. acted improperly in declaring a mistrial at the second trial, and that the third trial offended the principle against double jeopardy, for which the appropriate remedy is a stay of proceedings.

113                           In my view, 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.  I entirely agree with the remarks of  Martin J.A. in D. (T.C.), supra, at pp. 447-48:

Section 11( h )  of the Charter  enshrines the principles underlying the pleas of autrefois acquit and autrefois convict which are applicable, as previously indicated, only where the first trial has proceeded to verdict and do not apply where the first trial has proved abortive.  In my view, however, s. 7  of the Charter  constitutionalizing the requirement of “fundamental justice” might, in some circumstances, bar a second trial where the first trial has been improperly terminated.  By way of example only, I consider that if, upon a breakdown of the Crown’s case, a judge were to declare a mistrial in order to give the prosecution an opportunity to strengthen its case against the accused by endeavouring to find additional witnesses thereby depriving the accused of an acquittal where the Crown’s initial preparation had been negligent, a second trial in those circumstances would contravene the principles of fundamental justice. 

114                           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.  For example, if the Crown were to enter a stay of proceedings at a late stage of the trial in order to preclude the jury from acquitting the accused in light of the deficiencies in the Crown’s case, it seems to me that the principles of fundamental justice could preclude further proceedings, despite the fact that double jeopardy within the meaning of s. 11( h )  of the Charter  may not apply.  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), these circumstances do not arise in the appellant’s case.

115                           In support of his submissions on the double jeopardy issue, Pan relies heavily on the American jurisprudence, which only permits a subsequent trial following the declaration of a mistrial where circumstances of “manifest necessity” exist.  The obvious example of such a situation would be where the jury is hopelessly deadlocked: 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).  Pan submits that the declaration of a mistrial in this case did not meet the standard of “manifest necessity” and that it was therefore improperly declared.  In my view, the American jurisprudence is of limited assistance given the differences in our respective constitutions and case law on the double jeopardy issue.  However, even if the American test of “manifest necessity” were applied to the Pan appeal, it would not appear to assist the appellant since it too allows for re-prosecution after a deadlocked jury trial.

116                           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. Watt J., following a voir dire at the outset of the third trial, reviewed the circumstances under which O’Connell J. had declared a mistrial.  He rejected the suggestion that the mistrial was declared because the judge was aware that the jury had reached a verdict of acquittal. Rather, Watt J. found that O’Connell J., after canvassing the views of counsel, came to the conclusion that the jury was irremediably deadlocked.  The Court of Appeal found no basis to interfere with the conclusions of Watt J. on this point, and neither do I.  Watt J. made several critical findings of fact that are dispositive of this ground of appeal.

117                           With regard to the alleged communication by James Woodside, the deputy at Pan’s trial, to O’Connell J. to the effect that the jury was split 8-4 in favour of acquittal, Watt J. says this:

The substance of James Woodside’s evidence, as well the manner in which he gave it, do not satisfy me that he communicated his speculative conclusion about the division of the jurors to the trial judge as he appeared to indicate in his evidence.  I do not accept his evidence on the point.  It lacked certainty and clarity of recollection.  It appears, equally, the result of speculation.  [Emphasis in original.]

118                           Watt J. also found that O’Connell J. was not informed that the jury had reported having reached a “verdict” on the evening of April 30, 1991.  On the morning of May 1, 1991, the day of the declaration of the mistrial, O’Connell J. was informed that one of the jurors was claiming to have been pressured in the course of the jury’s deliberations and had written a note that she wished to convey to the trial judge.  Upon receipt of the note, O’Connell J. read it and then convened court to discuss the note with counsel.  Watt J.  concluded that at no time before the declaration of the mistrial was O’Connell J. aware of the nature of the “verdict” that the jury had reached.  What O’Connell J. did know was that the jury had reached a “verdict” and that one of the jurors did not agree with it and wished O’Connell J. to poll the jury following the reading of the verdict so that she could voice her disagreement at that time.  While the note itself indicates that a verdict has been reached, it also indicates that juror #1 disagreed with it. 

119                           In O’Connell J.’s discussions with counsel concerning the appropriate course of action to take in response to the note, no one ever suggested that the jury be brought in and asked to deliver their verdict.  On this point, Watt J. says:

It is worthy of observation that, notwithstanding the plain reference in the note of juror #1 that the jury had reached a verdict, none of the persons conducting the case, whether prosecuting, defending or presiding, considered that a verdict had been achieved.  The only logical inference to draw is that what is now asserted to be a verdict of which the [appellant] has been wrongly deprived was not then, at the time, thought to be so. 

Counsel for Pan suggested that it might be advisable for O’Connell J. to give the jury a “gentle exhortation” to reach a verdict, and said that “the other way” was “to declare them a hung jury”.  Counsel for the Crown favoured a gentle exhortation and strongly objected to the mistrial option.  Both counsel strongly disagreed with O’Connell J.’s suggestion that juror #1 be brought in for an inquiry on her own concerning the contents of the note, which could conceivably have led to her being discharged as a juror. O’Connell J. subsequently decided to declare a mistrial, thereby ending Pan’s second trial. 

120                           As Watt J. notes, the issue is not whether O’Connell J. could have exercised his discretion differently than he did.  Clearly, he could have.  For example, he could have taken the verdict and made an inquiry as to the unanimity of the verdict in light of the note from juror #1.  Had juror #1 repudiated her agreement with the verdict at that stage, the result would have been a mistrial.  The only issue is whether, in exercising his discretion and declaring a mistrial, O’Connell J. can be said to have acted improperly.  On this point, Watt J. says:

The trial judge would have been entitled to exercise his discretion differently than by declaring a mistrial.  The mere existence of alternatives, however, does not mean that, in choosing the course he did, the learned trial judge improperly terminated trial proceedings.  It is doubtless that if a trial judge discharges the jury when further deliberations may produce a fair verdict, the accused is deprived of his valued right to have his trial completed by a particular tribunal.  On the other hand, a failure to discharge a jury which is unable to reach [a] unanimous verdict after protracted and exhausting deliberations creates a significant risk that a verdict may result from pressures inherent in the situation, rather than the considered judgment of all the jurors.  [Emphasis in original.]

121                           It is abundantly clear from Watt J.’s reasons that O’Connell J. did not act improperly in declaring a mistrial at the second trial.  As a result, I find Pan’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 , to be without merit.

H.  The Fresh Evidence

1. The Pan Action

122                           The Court of Appeal was unanimous in concluding that the proposed fresh evidence in the Pan action would have no bearing on the propriety of the declaration of a mistrial by O’Connell J.  The proposed fresh evidence indicates that there was a deadlock among the jury and that the atmosphere in the jury room had degenerated into hostility.  Even if the common law rule were changed in order to permit the admission of such evidence, it would only serve to support O’Connell J.’s decision to declare a mistrial.  The only extrinsic evidence that seems to be disclosed by the juror interviews is the fact that juror #1 asked her doctor how long it would take to dismember a body if one had medical training, and then conveyed the doctor’s response to this question to the other members of the jury.  However, even if this extrinsic evidence had been disclosed in the course of Pan’s trial and had been found to have had a potentially prejudicial effect on the jury, the appropriate remedy would have been to declare a mistrial, which was the result of the trial in any event.  Consequently, I conclude that none of the fresh evidence offered by Pan, even if it were admissible under the common law jury secrecy rule as interpreted above, would be relevant to the issue of whether or not O’Connell J. exercised his discretion properly in declaring the mistrial, nor could it serve to support the appellant’s request for an acquittal or a stay of proceedings. 

2. The Sawyer Action

123                           Sawyer seeks to adduce as fresh evidence an affidavit  setting out the substance of a telephone conversation he had with one of the jurors after the verdict.  The gist of the conversation was that the juror told him that the verdict was “eating her inside” and that she had been subjected to undue pressure in coming to the verdict and, in particular, was told by other members of the jury that they would have to be sequestered for at least three weeks before a hung jury could be declared.  The juror also allegedly told the appellant that racial slurs were made by some jurors in the course of the deliberations.  The majority of the Court of Appeal concluded, in my view correctly, that this evidence fell within the scope of the common law rule of jury secrecy and was inadmissible on appeal.  Accordingly, the Court of Appeal was correct in rejecting Sawyer’s application to adduce fresh evidence.

124                           Before this Court, Sawyer focussed his submissions on the alleged racist comments made by members of the jury.  He submits that these comments show that the jury relied on impermissible considerations in arriving at its verdict and that the jury secrecy rules should not apply in such circumstances. 

125                           Applying the common law of jury secrecy as discussed above, such evidence is clearly inadmissible.  Delving into the accuracy of such allegations would intrude into the secrecy of the deliberation process as it requires an inquiry into the “statements made, opinions expressed or votes cast” by members of the jury.  In the words of the Law Reform Commission of Canada, with which I agree, to permit an inquiry into the reasons why jurors voted as they did “could lead to endless and unresolvable disputes” (Working Paper 27, supra, at p. 150).  The only situation in which the substance of such allegations should be explored is where they raise concerns serious enough to warrant an investigation under s. 139(2)  of the Criminal Code , which was not pursued in the present appeal.

126                           It is important to note that this is not one of those borderline cases where the proposed evidence could conceivably be admissible on a broad interpretation of the common law rule of admissibility as defined above.  If indeed racist comments were made in the jury room by one or more of the jurors, these would fall squarely within the scope of the common law exclusionary rule.  Such comments are clearly intrinsic to the jury’s deliberations and do not relate to any contact with information or persons outside of the jury.

I.  Charge to the Jury in Pan’s Third Trial

127                           In addition to the grounds of appeal discussed above, Pan submits that the trial judge at the third trial erred in his instructions to the jury on the meaning of reasonable doubt.  At the conclusion of the third trial, Watt J. charged the jury on the meaning of reasonable doubt as follows:

What is meant by “proof beyond a reasonable doubt”?  It has been said, members of the jury, that the term explains itself.  It is achieved when you, as jurors, feel sure of the guilt of the accused.  It is that degree of proof which convinces the mind and satisfies the conscience so you, as conscientious jurors, feel bound or compelled to act upon it.  You must be able to say to yourself, “He is really guilty.  Of that I am morally certain.”  I said morally certain, not mathematically certain, for it is not the obligation of the prosecution in this or any criminal case to prove guilt to a mathematical certainty.

On the other hand, should the evidence which you have heard leave you, as a responsible juror, with some lingering or nagging doubt with respect to the proof of some essential element of the offence with which the accused is charged or any offence which is included in it, so that you are unable to say to yourself that the Crown has proven the guilt of the accused in respect of that offence beyond a reasonable doubt, as I have defined those words, your duty is then to find the accused not guilty in respect of the offence about which you have such reasonable doubt. 

The doubt, members of the jury, I emphasize, must be reasonable.  It must be a reasonable doubt based upon the evidence that you have heard in this case.  It must not be a speculative, fanciful, imaginary or illusory doubt conjured up in the mind of a timid juror so that he or she may avoid their plain duty or responsibility.  It must be, as well, with regard to an essential element of the crime, not in respect of some unessential matter.  It must not be a doubt born of sympathy for or of prejudice against either the accused or the deceased.  To put the matter shortly, it must be a reasonable doubt founded upon the evidence adduced, neither speculative, fanciful, illusory, imaginary, born of sympathy, nor animated by prejudice. [Emphasis in original.]          

128                           In reviewing Watt J.’s charge on the meaning of reasonable doubt, the Court of Appeal noted that the trial took place prior to this Court’s judgment in Lifchus, supra, and, as a result, Watt J. did not have the benefit of Cory J.’s discussion concerning the elements that should be included and those that should be avoided in explaining reasonable doubt to the jury.  For its part, the Court of Appeal did not have the benefit of this Court’s reasons in the recent cases of Starr, supra, Beauchamp, supra, Russell, supra, and Avetysan, supra, concerning the application of the Lifchus principles to cases decided prior to Lifchus.  While some of the required elements in Lifchus were omitted from Watt J.’s  charge and some of the terms that should have been avoided were included, I do not think that the deficiencies are 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”:  Russell, supra, at para. 23.  For the reasons given in the recent cases from this Court, I agree with the Court of Appeal’s conclusion that this ground of appeal should be dismissed.

VII.  Conclusion and Disposition

129                           For these reasons, I would dismiss the appeals and answer the constitutional questions for both the Pan and Sawyer actions as follows:

1.    Does s. 649  of the Criminal Code  infringe the rights and freedoms guaranteed by s. 7 , 11( d )  or 11( f )  of the Canadian Charter of Rights and Freedoms ?

Answer:  It is unnecessary to answer this question.

2.    If the answer to Question 1 is yes, is s. 649  of the Criminal Code  a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

Answer:  Given the answer to question 1, it is unnecessary to answer this question.

3.    Does the common law exclusionary rule, precluding the admission of evidence relating to the deliberations of a jury, infringe the rights and freedoms guaranteed by s. 7 , 11( d )  or 11( f )  of the Canadian Charter of Rights and Freedoms ?

Answer:  No.

4.    If the answer to Question 3 is yes, is the above-noted common law rule a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ; and if not, ought the said common law rule to be modified to conform with the said Canadian Charter of Rights and Freedoms ?

Answer:  Given the answer to question 3, it is unnecessary to answer this question.

5.    Does s. 653(1)  of the Criminal Code  and/or the common law power of a judge to declare a mistrial, during or following the deliberations of the jury, violate the protection against double jeopardy which is guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer:  No.

6.    If the answer to Question 5 is yes, is s. 653(1)  of the Criminal Code , or the said common law power to declare a mistrial, a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ; and if not, ought the common law power to be modified to conform with the said Canadian Charter of Rights and Freedoms ?

Answer: Given the answer to question 5, it is unnecessary to answer this question.

7.    Does s. 653(2)  of the Criminal Code  violate s. 7 , 11( d )  or 11( f )  of the Canadian Charter of Rights and Freedoms ?

Answer:  It is unnecessary to answer this question.

8.    If the answer to Question 7 is yes, is s. 653(2)  of the Criminal Code  a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

Answer:  Given the answer to question 7, it is unnecessary to answer this question.

Appeals dismissed.

Solicitor for the appellant Rui Wen Pan:  Keith E. Wright, Toronto.

Solicitors for the appellant Bradley Sawyer:  Buhr & Kert, Toronto; Pinkofsky Lockyer, Toronto.

Solicitor for the respondent:  The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Canada:  The Department of Justice, Ottawa.

Solicitor for the intervener the Attorney General of Quebec:  The Department of Justice, Sainte-Foy.

Solicitor for the intervener the Attorney General of Manitoba:  The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of the Attorney General, Vancouver.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Sack Goldblatt Mitchell, Toronto.