WARNING

THIS
    IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND
    IS SUBJECT TO:

110. (1)
Subject to this section, no person shall publish the
    name of a young person, or any other information related to a young person, if
    it would identify the young person as a young person dealt with under this Act.

111. (1)
Subject to this section, no person shall publish the
    name of a child or young person, or any other information related to a child or
    a young person, if it would identify the child or young person as having been a
    victim of, or as having appeared as a witness in connection with, an offence
    committed or alleged to have been committed by a young person.

138. (1)
Every person who contravenes subsection 110(1)
    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)
    or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure)
    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985,

(a)     is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)     is guilty of an offence punishable on summary
    conviction.

COURT
    OF APPEAL FOR ONTARIO

CITATION:  R. v. K.C., 2015 ONCA 39

DATE: 20150126

DOCKET: C56733

Doherty, Gillese and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

K.C. and J.B.

Respondents

Alison Wheeler, for the appellant

Timothy E. Breen, for the respondent, K.C.

Delmar Doucette and Adam Boni, for the respondent, J.B.

Heard:  December 17, 2014

On appeal from the acquittals entered on February 8, 2013
    by Justice John B. McMahon of the Superior Court of Justice, sitting with a
    jury.

Doherty J.A.:

I

overview

[1]

The respondents, K.C. and J.B., were charged with first degree murder.
    Both were young persons as defined in the
Youth Criminal Justice Act
,
    S.C. 2002, c. 1 and the trial proceeded accordingly. The jury acquitted both
    respondents.

[2]

The Crown advances one ground on appeal. The Crown argues that the trial
    judge improperly excluded potentially important evidence. The excluded evidence
    has two parts. First, the Crown sought to lead evidence that the respondent,
    J.B., and Neil Armstrong, the murder victim, participated on opposite sides of
    a brief group fight about 11 months before the murder while both were
    incarcerated at the Toronto Youth Assessment Centre (TYAC). Second, the Crown
    tendered evidence that K.C., J.B. and Armstrong were housed in the same section
    in TYAC for a few days shortly after the fight between J.B. and Armstrong. The
    substance of the evidence was never seriously challenged and eventually became
    the subject of an agreed statement of fact.

[3]

The Crown alleged that the evidence was relevant to motive. The Crown
    contended that enduring animosity between two groups led to the murder. That
    animosity grew out of altercations between the two groups at TYAC. The Crown
    also contended that the evidence could confirm parts of the testimony of the
    central Crown witness, Cleavon Springer, an accomplice and admitted serial liar.

[4]

The defence maintained that the evidence was not probative of motive or
    confirmatory of any material part of Springers testimony. The defence argued
    that even if the evidence had some modest probative value, its obvious
    potential to significantly prejudice the accused far outweighed any probative
    value.

[5]

There were two trials.  In both, the Crown relied on Springers
    preliminary inquiry evidence to provide the necessary context to determine
    admissibility.  At the first trial, the evidence was ruled admissible on a
    pre-trial motion.  The trial judge subsequently declared a mistrial for
    unrelated reasons before Springer testified.  At the second trial, again on a
    pre-trial motion, the trial judge confirmed the admissibility of the evidence
    again relying on Springers preliminary inquiry evidence.

[6]

Springers trial evidence differed in some ways from his preliminary
    inquiry testimony. Relying on those differences, defence counsel asked the
    trial judge to revisit the evidentiary ruling. The trial judge reconsidered the
    ruling and excluded the evidence from TYAC save for evidence that K.C. had been
    an inmate at TYAC for a relatively short period.

[7]

Crown counsel on appeal contends that the earlier rulings were correct
    and that any differences between Springers preliminary inquiry evidence and
    his trial testimony did not warrant the exclusion of the evidence. She further
    submits that the excluded evidence was particularly important to the Crown
    because it could confirm a material part of Springers evidence. His evidence
    was crucial to the Crown and badly in need of independent confirmation.

[8]

For the reasons that follow, I would dismiss the appeal.

II

BACKGROUND

[9]

On July 16, 2003, Neil Armstrong was shot dead on Richmond Street in
    Toronto, near a nightclub known as Inside. The respondents were arrested after
    Cleavon Springer, who had been arrested on serious unrelated charges, gave a
    statement to the police in 2009 identifying K.C. as the shooter and J.B. as an
    aider in Armstrongs murder. According to Springer, he had also aided in the
    murder. Springers 2009 statement provided the basis for prosecution.

[10]

Springer
    had told the police a very different story in 2006. In his 2006 version of
    events, Springer implied that J.B. was the shooter. In his trial testimony, he
    admitted that he concocted his 2006 testimony to protect himself and his
    friends from prosecution.

[11]

At
    trial, Springer testified he was with a friend on July 15, 2003 when the friend
    received a phone call. As a result of the call, Springer and his friend loaded
    their 9mm semi-automatic handguns and drove downtown. They met K.C. and others,
    including J.B., in a parking lot near the Inside nightclub. K.C. was a friend
    of Springers. Springer knew J.B. but did not consider him a friend.

[12]

Springer
    testified that he and K.C. spoke in the car. J.B. and others were milling
    around in the parking lot near the vehicle.

[13]

K.C.
    told Springer that he had a brief altercation in the nightclub with two
    individuals he called Pentime and Poochi. According to K.C., the altercation in
    the nightclub was a continuation of bad blood between himself and a group
    that included Pentime and Poochi. The bad blood had begun when K.C., Pentime
    and Poochi were incarcerated together at TYAC.

[14]

K.C.
    did not say anything during his discussion with Springer about Armstrong and specifically
    did not suggest that Armstrong was involved either in the prior bad blood at
    TYAC or in the altercation in the nightclub.

[15]

Springer
    testified that after he spoke with K.C. in the vehicle, they both left the
    vehicle and spoke with the group in the parking lot. That group included J.B. K.C.
    made it clear that when the group with whom he had argued left the nightclub he
    wanted to confront them. He asked Springer for his handgun, explaining that his
    was not reliable. Springer testified that he gave his loaded handgun to K.C.

[16]

Springer
    testified that based on K.C.s statements in the parking lot, he understood
    that K.C.s group would confront the other group when it left the nightclub. Springer
    anticipated gunfire, as he knew that K.C. was armed and believed that persons
    in the other group would also be armed.

[17]

A
    group of young men including Armstrong eventually left the nightclub and stood
    on Richmond Street. That group split into two. The part of the group that
    included Armstrong walked into the street. Springer testified that K.C. and his
    group, which included J.B., approached the part of the group that had walked
    into the street. K.C. held the gun Springer had given him beside his leg.

[18]

There
    were at least two different versions of what happened when the two groups
    confronted each other. According to Springers testimony, K.C. said something
    to the group that included Armstrong and the group fled. K.C., J.B. and
    Springer gave chase. Springer testified that J.B. caught and tripped Armstrong.
    As Armstrong struggled to regain his feet, K.C. ran up to him and fired a
    single shot, striking and killing him.

[19]

Springer
    testified that he met K.C. about a week later in Markham, Ontario. K.C.
    returned Springers handgun. He told Springer that the wrong person had been
    shot and that Armstrong, unlike Pentime and Poochi, was not seen as a threat to
    K.C. and his group. K.C. told Springer that Armstrong, Pentime and Poochi hung
    together and were from the same area. K.C. had met Armstrong before, but did
    not say where he had met him.

[20]

Springer
    testified that K.C. also repeated the story about prior altercations with
    Pentime and Poochi at TYAC and the bad blood between his group and the group
    headed by Pentime and Poochi. Crown counsel asked Springer whether K.C. said
    anything about Armstrong in connection with these prior altercations at TYAC. Springer
    replied:

It was possible that there was also altercations with him
    [Armstrong], but he never really played a major role in the disagreement
    between the two groups.

[21]

Springers
    answer is not easy to understand. He appears to speculate about what K.C. may
    have said about Armstrong. The Crown did not ask any follow-up questions.

[22]

Springers
    evidence was crucial to the Crowns case. If the jury did not believe
    Springers evidence, the Crown did not have a case against either K.C. or J.B. Springers
    credibility was suspect for many reasons, not the least of which was his
    admitted role in a murder for which he entirely escaped prosecution. He was, by
    any definition, an unsavoury witness worthy of the strongest
Vetrovec
warning.

[23]

Springers
    evidence also conflicted in some respects with unchallenged physical evidence. For
    example, Springer described the person shot by K.C. as wearing a white t-shirt.
    Armstrong was dressed in dark clothing, including a black hoodie. Another person
    who was shot and wounded during the same melee but at a different place on the
    street was wearing a white t-shirt. Based on Springers evidence about the
    colour of the clothing and other details of the shooting, the defence argued
    that Springer was actually describing the shooting of that other person and not
    Armstrong.

III

THE EXCLUDED CROWN EVIDENCE

[24]

The
    Crown sought to lead evidence of a fight between two groups of inmates in a
    dormitory at TYAC. The fight took place on August 20, 2002, 11 months before
    the murder, and lasted less than 30 seconds. One group included Armstrong and
    the other included J.B. There was no evidence that K.C., Pentime or Poochi were
    involved in, present at, or aware of the fight. There was also no evidence on
    the cause of the fight or any subsequent interaction between J.B. and Armstrong.

[25]

The
    Crown also sought to lead evidence that K.C., J.B. and Armstrong were all
    housed in the same section of TYAC between August 28 and September 2, 2002. Armstrong
    and J.B. remained in that section until September 5. The evidence did not refer
    to any interaction among the three during this period.

[26]

At
    trial, the Crown offered the evidence primarily as capable of confirming
    Springers testimony that K.C. told him the murder stemmed from bad blood
    between K.C.s group and the Pentime/Poochi group. That bad blood, according
    to K.C., began with altercations between the two groups at TYAC.

IV

THE TRIAL RULINGS

[27]

As
    indicated above, the admissibility of the bad blood evidence was considered
    on three separate occasions at the trial level.  On the first occasion,
    Nordheimer J., relying on Springers preliminary inquiry testimony, held that
    the evidence was admissible:
R. v. K.C. and J.B.
, 2012 ONSC 5164.  In
    his preliminary inquiry evidence, Springer had testified that K.C. had told him
    that Armstrong was a part of the group  inside the club who [K.C.] had the
    altercation with.  Springer had also testified that K.C. categorized
    Armstrong with the people with whom he had bad blood from TYAC.

[28]

In
    ruling the evidence admissible, Nordheimer J. said, at para. 14-15:

There may be a qualitative difference in the minds of the jury
    between the suggestion that this murder occurred as the result of a single
    confrontation between the accused and the deceased and their respective
    associates in a club and the suggestion that this murder occurred as the result
    of a simmering animosity between the individuals involved and their associates.

If the jury is not provided with the evidence regarding the
    prior involvement between the deceaseds group and the accuseds group, they
    will be left with only a partial picture of the background between these
    individuals
. That might, in turn, lead the jury to wonder whether a single
    confrontation in a club would be sufficient reason for K.C. and J.B. to want to
    cause harm to the deceased. [Emphasis added.]

[29]

Nordheimer
    J.s ruling was premised on the evidence of Springer that K.C. identified
    Armstrong as part of the altercation in the nightclub. Because Springers
    testimony connected Armstrong to the Pentime/Poochi group and therefore to the
    altercations in TYAC, the evidence was probative of the bad blood motive. For
    the same reason, the evidence offered some independent confirmation of Springers
    testimony that K.C. gave bad blood as the motive for the confrontation
    outside of the nightclub.

[30]

McMahon
    J. presided over the second trial after Nordheimer J. declared a mistrial. The
    defence asked McMahon J. to reconsider the ruling made by Nordheimer J.
    pursuant to s. 653.1 of the
Criminal Code
. The defence relied on the
    same evidentiary record (Springers preliminary inquiry testimony) but argued
    that Nordheimer J. had misapprehended relevant evidence.

[31]

McMahon
    J. concluded that notwithstanding some misapprehension of the evidentiary
    record by Nordheimer J., the evidence was admissible. McMahon J., like
    Nordheimer J., thought the evidence could support the bad blood motive and
    help confirm Springers evidence that K.C. attributed the confrontation outside
    the nightclub to that bad blood.

[32]

The
    trial proceeded and Springer testified. His trial evidence differed from his
    preliminary inquiry testimony in at least two important respects. First,
    Springer did not testify that K.C. told him that Armstrong was involved in the
    altercation in the nightclub. According to Springers recollection at trial,
    K.C. said nothing about Armstrongs involvement in the altercation in the
    nightclub or with the group that was involved in the altercation. Second,
    Springer testified at trial that when he spoke with K.C. after the murder, K.C.
    did not suggest that Armstrong had been involved in the altercations at TYAC,
    but instead told Springer that Armstrong hung together with Poochi and
    Pentime and that the three men were from the same neighbourhood. K.C. also told
    Springer that he knew Armstrong but did not say how he came to know him.

[33]

McMahon
    J., at the defence request, reconsidered his ruling in light of the changes in
    Springers testimony. He excluded all of the evidence except for evidence that
    K.C. had been incarcerated at TYAC for about two weeks 11 months before the
    murder. McMahon J. admitted evidence of K.C.s incarceration at TYAC because,
    in his view, it could confirm to some extent Springers testimony that K.C.
    told him the murder arose from a feud that began when K.C. was incarcerated at
    TYAC.

[34]

In
    his ruling excluding the rest of the evidence, McMahon J. addressed the admissibility
    of the evidence separately as against each accused. With respect to J.B., he
    held that evidence of the fight involving J.B. and Armstrong may have some
    probative value as demonstrating J.B.s animus toward Armstrong. McMahon J. went
    on, however, to hold that the risk of prejudice to J.B. outweighed any
    potential probative value. The risk of prejudice flowed from the possibility
    that the jury might consider the evidence of the fight in combination with
    K.C.s statements that the murder originated in bad blood from TYAC. Those
    statements were not admissible against J.B. The trial judge explained the
    prejudice to J.B. in these terms:

The jury would have [J.B.] involved in a minor altercation at
    TYAC, which would be relevant and admissible against [J.B.], but they would
    then hear [K.C.s] statement that the bad blood goes back to altercations at
    TYAC with Pentime and Poochi. The jury would have to be instructed on the
    subtle differences on what evidence could be used against [J.B.] and what
    evidence could be used against [K.C.]. The risk of the jury linking [K.C.s]
    statement to [J.B.], though it would be inadmissible, would be great in the
    circumstances. As such, the prejudice to [J.B.] in that link would be extremely
    prejudicial to him, and I am not satisfied it could be overcome through a
    limiting instruction.

[35]

The
    trial judge next considered the admissibility of the evidence as against K.C. He
    held that absent any evidence linking Armstrong to the bad blood between K.C.s
    group and the Pentime/Poochi group, the evidence of the fight at TYAC between
    J.B. and Armstrong was inadmissible against K.C. and could not confirm any part
    of Springers testimony as against K.C.

V

THE ARGUMENTS ON APPEAL

[36]

The
    admissibility of evidence is a question of law. If the admissibility turns on
    weighing probative value against prejudicial effect, however, appeal courts
    will defer to the trial judges assessment as long as it is reasonable, free of
    identifiable errors in principle and not based on any material evidentiary
    errors:
R. v. Shearing
, 2002 SCC
    58,
[2002] 3 S.C.R. 33, at para. 73;
R. v. Stubbs
, 2013
    ONCA 514, 300 C.C.C. (3d) 181, at para. 58.

[37]

Crown
    counsel on appeal has raised essentially three arguments.

a)

The
    trial judge failed to appreciate the relevance of the evidence to the Crowns
    bad blood motive. That failure flowed from the trial judges misunderstanding
    of relevant parts of Springers trial testimony.

b)

The
    trial judge erred by failing to hold that even if the evidence could not
    support the bad blood motive, it was admissible as evidence of a prior
    relationship between Armstrong, K.C. and J.B.

c)

The
    trial judge overemphasized the potential prejudice to J.B. should the evidence
    of his altercation with Armstrong be admitted, and failed to give adequate
    weight to measures that could ameliorate any potential prejudice to J.B.

(a)

Did the trial judge fail to properly consider the relevant evidence?

[38]

Crown
    counsel argues that the trial judge did not appreciate the significance of the
    evidence to the bad blood motive because the trial judge failed to consider a
    relevant part of Springers testimony and misapprehended two other parts of his
    testimony. Counsel contends that on a proper understanding of Springers
    testimony, the evidence is admissible as part of the circumstantial picture
    supporting the bad blood motive and, more importantly, as independent
    evidence offering some confirmation of Springers testimony on K.C.s
    statements about bad blood.

[39]

I
    will begin with the alleged failure to consider relevant evidence. Counsel
    submits that the trial judges failure to mention Springers testimony that
    K.C. told him that Armstrong hung together with Pentime and Poochi indicates
    that the trial judge failed to consider that evidence. The failure to mention
    evidence can indicate a failure to consider it. Yet sometimes, perhaps most
    times, the failure to mention evidence is simply a reflection of the evidences
    minimal significance to the issue at hand.

[40]

Evidence
    that Pentime and Poochi hung together with Armstrong did show some kind of
    association among the three. It could not, however, place Armstrong within the
    Pentime/Poochi group at TYAC or in the nightclub. The trial judges failure to
    allude to the evidence that Armstrong hung together with Pentime and Poochi
    tells me that the trial judge did not think the evidence capable of linking
    Armstrong to the Pentime/Poochi group. I cannot disagree with that assessment.

[41]

Crown
    counsel next points to two alleged misapprehensions of evidence. First, she
    submits that the trial judge indicated that Springer testified K.C. told him the
    altercation in the nightclub involved K.C. on one side and Pentime and Poochi
    on the other side. Crown counsel says that, in fact, according to Springer,
    K.C. referred to the other group as including Pentime and Poochi.

[42]

I
    see no material difference between the evidence as summarized by the trial
    judge and as described by Crown counsel. What mattered for the purposes of the
    admissibility inquiry was the absence in Springers trial testimony of anything
    connecting Armstrong to the altercation in the nightclub or to the group
    involved in the altercation. The actual constitution of that group, and
    specifically whether it included unnamed persons other than Pentime and Poochi,
    was irrelevant to the ability of the evidence to support the Crowns bad
    blood motive.

[43]

The
    second alleged misapprehension relates to Springers testimony about any
    connection K.C. may have said Armstrong had to the prior altercations at TYAC.
    Springers entire evidence on this issue consists of the single answer set out
    above (see para. 20). Crown counsel submits that this answer, despite containing
    an element of speculation as to Armstrongs involvement in the altercations
    at TYAC, constituted evidence connecting Armstrong to the altercations at TYAC.
    She submits that the trial judge misapprehended the evidence when he held that
    there was no evidence connecting Armstrong to the altercations at TYAC.

[44]

The
    trial judges conclusion that there was no evidence in Springers trial
    testimony connecting Armstrong to the altercations at TYAC was a reasonable
    interpretation of Springers vague and somewhat nonresponsive answer to the
    single question posed by the Crown. I would defer to the trial judges
    understanding of the evidence.

[45]

In
    my view, the trial judge did not make any material errors in his review of
    Springers evidence. Put simply, Springers trial testimony did not connect
    Armstrong or his altercation with J.B. at TYAC to the bad blood motive
    advanced by the Crown.

(b)

Was the evidence admissible to show a prior relationship between
    Armstrong, K.C. and J.B.?

[46]

The
    Crown next submits that even if the trial judge correctly held that the
    evidence could not support the bad blood motive, he erred in failing to admit
    the evidence to show a prior relationship between Armstrong, J.B. and K.C. The
    Crown submits that it was important for the Crown to demonstrate that J.B.,
    K.C. and Armstrong were not strangers but rather had a shared history. On the
    Crowns argument, this shared history made it more plausible that K.C. and
    J.B. would act together to kill Armstrong, as Springer testified.

[47]

I
    start my analysis of this submission with the observation that at its best,
    this argument would justify admitting evidence establishing that Armstrong knew
    or had prior contact with K.C. and J.B. I do not think that the prior
    association argument could justify admitting evidence of a prior altercation
    between J.B. and Armstrong while they were in jail, or evidence that all three
    had been incarcerated together at TYAC. Consequently, even if evidence showing
    a prior connection and nothing more had some relevance, that relevance would
    justify only the admission of the evidence stripped of its strongly prejudicial
    elements unnecessary to establish the existence of a prior connection among the
    three. I do not understand the Crown at trial to have sought the admission of
    this evidence stripped of its prejudicial components.

[48]

Evidence
    of a prior association between an accused and a deceased is often admitted in a
    murder case because it will have some relevance to a fact in issue. That
    relevance does not, however, flow from prior association standing alone. The
    evidence of prior association is usually offered as part of a larger
    evidentiary package capable of proving a fact in issue such as motive or an
    accuseds state of mind: see, e.g.,
R. v. Griffin
, 2009 SCC 28, [2009]
    2 S.C.R. 42, at para. 61-63;
R. v. Johnson
, 2010 ONCA 646, 262 C.C.C.
    (3d) 404, at para. 99-101.

[49]

Evidence
    of a prior association between an accused and a deceased that begins and ends
    with evidence of some physical contact at some distant point in the past will
    have little, if any, probative value. With respect to the Crowns submission,
    it overstates the force of the evidence to describe it as evidence of a shared
    history. The evidence only indicates that Armstrong, K.C. and J.B. lived in
    the same place for a few days 11 months before the murder and that J.B. and
    Armstrong had a very brief altercation while living in the same place. If this
    fleeting intersection in the lives of Armstrong, K.C. and J.B. constitutes a
    shared history, it is not one that is reasonably capable of shedding much, if any,
    light on what happened 11 months later.

[50]

The
    distinction between evidence of prior association probative of motive and
    evidence of prior association not so probative is demonstrated by the two
    different evidentiary rulings in this case. Based on the preliminary inquiry
    testimony of Springer, the evidence of prior association between Armstrong,
    J.B. and K.C. at TYAC could be connected to the alleged bad blood between
    K.C.s group and the Pentime/Poochi group. However, considered in the context
    of Springers trial evidence, the prior association between Armstrong, J.B. and
    K.C. could not be connected in any way to the Pentime/Poochi group or the
    altercations at TYAC. Without that link, the evidence of the prior relationship
    had little probative value.
The potential prejudice of
    evidence placing J.B. and K.C. in jail and, in the case of J.B., engaged in
    criminal activity while in jail, is so obvious as to need no articulation.

(c)

Did the trial judge err in his assessment of the probative value/ prejudicial
    effect of the evidence of J.B.s altercation with Armstrong?

[51]

Crown
    counsels next submission focuses on the admissibility of the evidence of the
    fight between Armstrong and J.B. Counsel submits that the trial judge properly
    held that the evidence was potentially admissible against J.B. as evidence of
    personal animus towards Armstrong. Counsel contends, however, that the trial
    judge wrongly excluded the evidence by overemphasizing the potential
    prejudicial effect of the evidence and overstating the difficulty in crafting a
    proper limiting instruction.

[52]

A
    trial judges measurement of potential prejudice and his assessment of his
    ability to negate that prejudice by a proper limiting instruction are entitled
    to strong deference on appeal. Those assessments, particularly the latter,
    depend to some extent on the trial judges sense of the trial dynamic. This
    court cannot know that dynamic.

[53]

The
    trial judge correctly identified the risk that the jury would speculate that
    the fight at TYAC involving J.B. and Armstrong was part of the bad blood
    described to Springer by K.C., even though K.C.s statements about the
    altercations at TYAC were not admissible against J.B. Springers testimony that
    K.C. identified J.B. as part of his group increased the risk of misuse of
    K.C.s statements against J.B. That evidence was also inadmissible against J.B.

[54]

The
    risk of potential misuse was real. The extent to which the trial judge could
    overcome that risk by crafting an appropriate prophylactic instruction was very
    much for him to determine in the context of the case. I would defer to his
    assessment.

[55]

In
    any event, I am far from satisfied that the evidence of the altercation between
    J.B. and Armstrong had any real probative value. Evidence of prior assault or
    argument between an accused and a deceased can provide evidence of animus which
    may support the existence of a motive to kill. However, not every argument or
    assault involving an accused and a deceased has that evidentiary potential. It
    all depends on the nature of the evidence.

[56]

The
    evidence supported the inference that some 11 months before the murder, J.B.
    held animus against Armstrong or, perhaps more accurately, against a group that
    included Armstrong. That animus led to a very brief physical altercation at
    TYAC. The evidence offered no explanation for the source of the animus, no context
    in which to measure the nature and extent of the animus, and no basis upon
    which to infer that the animus continued, much less grew to a point where it
    motivated a murder. A jury asked to infer a motive for murder from the animus
    demonstrated by a brief altercation 11 months earlier would be asked to take a
    leap of faith rather than draw a reasonable inference.

[57]

Finally,
    even if the evidence of the altercation involving J.B. and Armstrong had some
    minimal probative value to show J.B.s animus toward Armstrong, the Crowns
    theory of the case undercut even that minimal value. The Crown did not argue
    that J.B. targeted Armstrong to settle any personal score. To the contrary, the
    Crowns position as expressed through Springers testimony was that Armstrong
    was not the intended target of the confrontation and that his death was more in
    the nature of collateral damage. Evidence that J.B. had some personal animus
    towards an unintended target adds nothing to the Crowns case against J.B.  The
    evidence of the fight is of course inadmissible as against K.C.

VI

Has the Crown shown that the verdict would not necessarily have been the
    same had the evidence been admitted?

[58]

As I think the evidence was properly excluded, I do not need to consider
    whether the Crown demonstrated that the verdict would not necessarily have been
    the same had the evidence been admitted. I will, however, briefly address that
    issue.

[59]

On
    a Crown appeal from acquittal, the Crown must demonstrate first, an error in
    law and second, that the error was sufficiently significant to allow the
    appellate court to conclude that the verdict would not necessarily have been
    the same had the error not been made. The onus on the Crown has been described
    as a heavy one:
R. v. Graveline
,
    2006 SCC 16,
[2006] 1 S.C.R. 609, at para. 15.

[60]

I
    think the Crown could only meet its burden on this appeal by demonstrating that
    the evidence was admissible to support the bad blood motive advanced at trial.
    The Crown initially secured a ruling granting admission on that basis. Arguments
    supporting the admissibility of the evidence on other grounds, even if correct,
    would not in my view afford the evidence sufficient probative value to permit
    the conclusion that the verdict would not necessarily have been the same had
    the jury heard the evidence.

[61]

For
    example, even if the Crowns prior association argument was accepted,
    evidence that J.B., K.C. and Armstrong were not strangers and had met some 11
    months earlier would barely move the Crowns case forward and would do nothing
    to confirm a material part of Springers testimony. I do not think there is any
    realistic possibility that evidence establishing no more than a prior connection
    among J.B., K.C. and Armstrong could have led to a different result.

[62]

Put
    bluntly, the Crown had a viable claim that the evidence was admissible to
    support the bad blood motive based on Springers preliminary inquiry
    testimony. When his testimony changed, the Crowns case for admissibility all
    but disappeared. Arguments for admissibility through some chain of reasoning
    other than as evidence to support the bad blood motive and thereby as
    evidence to confirm Springers testimony, even if legally tenable, could not
    satisfy the burden of demonstrating that the verdicts would not necessarily
    have been the same had the evidence been admitted.

VII

CONCLUSION

[63]

I
    would dismiss the appeal.

Released:  DD JAN 26 2015

Doherty J.A.

I agree E.E. Gillese
    J.A.

I agree P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kum, 2015 ONCA 36

DATE: 20150123

DOCKET: C55035

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrence Kum

Appellant

Alan D. Gold and Etai Hilzenrat, for the appellant

Lisa Csele and C. Michaelson, for the respondent

Heard: June 26, 2014

On appeal from the convictions entered on November 3,
    2011 and the sentence imposed on March 6, 2012 by Justice Bonnie J. Wein of the
    Superior Court of Justice, sitting with a jury, with reasons reported at 2012
    ONSC 1194, 281 C.C.C. (3d) 553, and 2012 ONSC 1314.

Feldman J.A.:

A.      Overview

[1]

The appellant was convicted by a jury of trafficking cocaine and
    possessing the proceeds of crime. During a break in their deliberations, some jurors
    complained to a court deputy about the conduct of some other jurors. When,
    following the suggestion of the trial judge, the complaining jurors put their
    concerns in writing, it became clear that two jurors conduct during
    deliberations was being impugned. Earlier that morning the jury had sent a note
    to the trial judge saying they were at a stalemate. The note disclosed that the
    vote was ten to convict and two to acquit.

[2]

Upon receipt of the complaints, the trial judge embarked upon a lengthy
    inquiry of each individual juror, and a number of further inquiries of the two
    impugned jurors. The trial judge ultimately discharged both jurors. Defence
    counsels motions for a mistrial were denied. Following the discharge of the
    second juror, after about an hour of further deliberations, the ten-member jury
    convicted the appellant.

[3]

The main issue on this appeal is whether the discharge of the jurors
    resulted in an unfair trial. I have concluded that it did.

B.      Background regarding the offences

[4]

Between June 15 and June 18, 2007, the police intercepted a number of
    calls related to drug trafficking between a known suspect, Harding, a male
    using a 519 area code telephone number, and another male using a Jamaican telephone
    number. On June 18, following a few of these calls, Harding told the male on
    the 519 number that he was at a Tim Hortons. The male told Harding that they
    would meet there and then Harding could follow him in his car. The police were conducting
    surveillance at the Tim Hortons and observed the appellant drive up and Harding
    follow him in his own car. They drove to a deserted area of a local golf
    course.

[5]

The police observed conversation between the two men, but no exchange of
    anything. The police followed both cars after the meeting concluded. When the
    police arrested the appellant a few minutes later, they found a box in his car
    containing $54,040. When they arrested Harding shortly thereafter, they found
    three bricks of cocaine, totalling 3 kilos, each in a Ziploc bag and all inside
    a number of other bags. The appellants partial fingerprint was on one of the Ziploc
    bags. The appellants effects at the police station included three cell phones,
    one of which had the 519 number. As the officer who seized the phones was not a
    witness at trial, the continuity of the cell phones was challenged.

C.      The discharge of two jurors

The notes from the jury

[6]

On the morning of the jurys second day of deliberations, the jury sent
    the trial judge a letter indicating that it had reached a stalemate. Ten of
    the jurors voted to convict the appellant and two voted to acquit. The letter
    read:

Your Honour:

The jury has reached a stalemate on some key evidence and
    cannot yet come to a conclusion about guilty or not guilty on the charges. The
    vote was 10 for guilty and 2 for not guilty after we discussed all the relevant
    evidence.

The key sticking point (there are others) is the lack of direct
    evidence of who is 519. As directed by you, the issue of continuity about when
    the 3 phones were seized and by whom was discussed at length. The majority of
    the jury found the circumstantial evidence, including the items suggested by
    you in your charge plus our own assessments were sufficient to link Mr. Kum to
    the 519 phone and wiretap conversations. A minority of the jury still have
    doubts about the cell phone due to lack of direct evidence and insufficient (in
    their view) circumstantial evidence.

The jury is at the point we are going in circles on this issue.

Do you have any further guidance on this matter?

Respectfully,

The Jury

[7]

The trial judge discussed the jurys letter with counsel. She advised
    counsel that the letter disclosed how many jurors intended to convict and how
    many intended to acquit.  Although she did not tell them the number of votes
    for each side at that time, she disclosed the numbers the next day during
    submissions on whether two of the jurors should be discharged.

[8]

That afternoon the jury heard a lengthy play-back of some of the
    evidence. Following a recess, a court deputy informed the trial judge that some
    jurors had certain concerns. At the trial judges request, the jurors put their
    concerns in writing.

[9]

Approximately 30 minutes later, the trial judge received notes from the
    jury about other jurors conduct during deliberations. One of the notes said:

To:  [the name of the judge]

A few members of the jury have a few concerns relating to bias.

These concerns stem from comments or actions made within and
    out of the jury room.

This relates to two specific jury members.

For example:

(1)     1 juror states this on (Nov. 2/11) that it is their
    belief that too many accused get wrongfully convicted due to police lying
    during testimony to make the facts work for them.

(2)     We believe that 1 juror may have religio[u]s conflicts
    for passing judgement.

For example, each time we reach a critical path, a point[ed]
    question seems to be avoided, and in two instances, took washroom [breaks] just
    as the question requires response.

[10]

Two
    jurors wrote separate notes to the trial judge. The notes read:

My interpretation is that 1 juror is appears to be unable to
    make a Judgement because of religious convictions.

I am paraphrasing  1 juror is expressing the fact that he is
    the only brother here & he has to defend him. (The accused)

The trial judges inquiry into the alleged misconduct

[11]

With
    the initial agreement of counsel, the trial judge began an inquiry into the two
    impugned jurors alleged misconduct. Those two jurors (jurors 1 and 9) were
    separated from the rest of the jury. The two jurors who had made the complaints
    (jurors 2 and 6) were told not to discuss the issue with the other jurors, and
    were eventually separated from the rest of the jury and from each other.

[12]

The
    trial judge questioned the impugned jurors in open court.

[13]

The
    trial judge asked juror 9 whether she had religious beliefs that would preclude
    her from deciding the case impartially. Juror 9 denied the allegation:

Q.      A concern has been expressed to us that a juror, whom
    we believe is you

A.      Uh-huh.

Q.       may have a religious conviction which prevents her
    from deciding the case on the evidence, which prevents her from passing
    judgment on another person, on the evidence. I dont want you to tell us
    anything that has gone on in the jury room, I simply want you to tell us
    whether you feel there is any impairment to your ability to pass judgment in
    this case.

A.      Im not sure where that religious aspect of it is
    coming from, with regards to not passing judgment based on religious belief.

[]

Q.      All right. You have no hesitations in feeling you can
    assess the evidence and pass judgment?

A.      I dont

Q.      All right.

A.       feel  I feel comfortable based on the evidence that
    I can come to a conclusion based on whats provided to me.

[14]

The
    trial judge also questioned juror 1 about the allegations that he was biased
    against the police and was biased in favour of the accused on the basis of
    race. Juror 1 also denied the allegations:

Q.      We have a concern thats been expressed to us that one
    juror, actually you, has perhaps expressed a reliance on something  an aspect
    of the case outside of the evidence. And I just want to make it clear, I dont
    want you to tell us about anything that relates to your discussions of the case
    in the jury room, because that is not what were inquiring into. But there has
    been the suggestion made that you have expressed the fact that you are the only
    brother here and you have to defend the accused. And the concern we would have

A.      I didnt say that.

Q.       would be that  and that was a paraphrase

A.      Your Honour, thats not true.

Q.        the concern of course would be that a juror must not
    consider any sympathy or bias or prejudice, and sympathy based on race would be
    an outside concern.

A.      It doesnt matter if theyre black, white or whatever,
    Im here to do a job

Q.      Okay.

A.       and I never said that to anyone at any time.

Q.      You feel no difficulty in abiding by your oath to try the
    case solely on the evidence without bias, prejudice

A.      Yes, maam.

Q:       or partiality?

A.      Yes, maam.

Q.      All right. The other aspect of this is difficult for me
    to assess. If a juror were to express a belief that too many accused get
    wrongfully convicted due to police lying during testimony, to make the facts
    work, if they were simply saying lets closely examine the police testimony
    because police may lie, that might be just an expression of opinion in the jury
    room  not interesting to us  but if a person felt that they could never
    assess the evidence of a police officer like the evidence of other witnesses
    because they just dont believe police officers, then that would obviously be
    elevated to an

A.      I never said that

Q.       outside concern.

A.       and thats not my feeling.

Q.      All right. So we have no need for concern?

A.      No, Your Honour.

[15]

After
    jurors 1 and 9 were questioned and denied the allegations made against them in
    the notes, Crown counsel suggested that the court hear from the two jurors who raised
    the complaints. At that point, defence counsel raised the concern that there
    was a serious conflict within the jury: the two impugned jurors had denied the
    accusations against them and had been separated from the others. He agreed,
    however, that the court should hear from the two jurors who had raised the
    concerns. The two complaining jurors, jurors 2 and 6, were questioned
    separately about their complaints. Each gave evidence in support of their
    allegations.

[16]

Both
    the defence and the Crown initially agreed that the trial judge would question
    the remaining jurors about the allegations against jurors 1 and 9. However,
    after a break, defence counsel had changed his view and objected to continuing
    with any further inquiry of the jurors. He submitted that it was clear that there
    was a hung jury and a mistrial should be declared. The trial judge dismissed
    that motion. A standard question was drafted which inquired into the
    allegations and included a warning not to disclose differences of opinion
    among jurors in the jury room. The question asked:

Specific concerns have been raised about some jury members.
    All jurors are entitled to take different views of the evidence and bring their
    own world experiences and views into account, and this is a welcome part of our
    jury system.  But all jurors take an oath to well and truly try the case and
    deliver a true verdict based on the evidence and only on the evidence without
    sympathy, prejudice or bias.  We do not want to inquire, and cannot inquire
    about differences of opinion among jurors in the jury room, but we need to know
    if one or more jurors are unable or unwilling to fulfill their duties as jurors
    for reasons of sympathy, prejudice or bias.  Have you seen anything during your
    deliberations, or outside of your deliberations, that leads you to believe that
    any of your fellow jurors is unable or unwilling to fulfill their oath, for
    example
because they
    are unable or unwilling to participate in the proceedings, or have fixed views
    that prevent them from assessing the evidence
with an open mind?

[17]

The
    trial judge decided to put this question, together with further inquiries, to
    the remaining jurors as well as to the impugned jurors, 1 and 9. The jurors
    gave detailed opinions about the comments and perceived motivations of fellow
    jurors in the deliberations. In her questioning, the trial judge probed the
    jurors on whether they thought other jurors were incapable of properly
    assessing the evidence because of sympathy, bias or prejudice. For example, in
    questioning juror 12 about his or her concerns about jurors 1 and 9, the trial
    judge asked:

Q: Okay. But apart from that are the concerns youve told us
    about related in any way to something you would call sympathy or prejudice or
    bias as opposed to a decision on the evidence that disagrees with yours?

A: No, I wont say that. All  all I will say, the  they felt
    sorry for one  for the person.

Q: So that would be a sympathy.

A: That would be sympathy, okay.

[18]

Some
    of the jurors answers supported the allegations in the complaint letters. For
    example, several jurors said that in his deliberations juror 1 took into
    account the consequences of a guilty verdict, such as the potential punishment
    or the impact of the conviction on the appellants family. One juror said that
    juror 9s value system would prevent her from deciding the case, but another
    said that she was making an effort to reach a decision.

The trial judge dismisses juror 1 but permits juror 9 to
    continue

[19]

Following
    the further examination of each juror, defence counsel objected to the
    discharge of either of the impugned jurors. He submitted that the jury was
    deadlocked. It was at this time that the trial judge told counsel that the
    original note from the jury had stated that the vote was ten to convict and two
    to acquit. This information confirmed defence counsels apprehension of the
    situation from the questioning. He submitted that the two jurors were entitled
    to dissent and again asked for a mistrial. Crown counsel asked that both jurors
    be discharged on the basis that they were unable to carry out their duties.

[20]

The
    trial judge dismissed juror 1, but not juror 9, and gave oral reasons. Dealing
    first with the defence motion for a mistrial, the trial judge stated that, while
    a mistrial would be an easy outcome, the jurors had sat for many days and they
    were entitled to give judgment if they are at all able to. Further, for
    obvious public policy reasonsthe actions of one, or in this case potentially
    two jurors, should not be allowed to hijack the process if the court can be
    satisfied that the remaining jurors can come to a just and proper verdict on
    the evidence. With respect to juror 1, based on the testimony of the other
    jurors, the trial judge concluded that he had sympathy for the accused that was
    not based on the evidence, and that he was concerned about punishment. Furthermore,
    based on the testimony of the other jurors and of juror 1 himself, the trial
    judge concluded that he had a bias with respect to police that has caused that
    juror to speculate in a way that is inconsistent with the evidence. The trial
    judge was not, however, satisfied that juror 9 would not abide by her oath.

[21]

In
    her written reasons delivered after the trial, the trial judge stated that
    juror 1 had consistently made the kinds of remarks referred to in the complaint
    letters. She did not believe him when he denied making the impugned remarks. The
    trial judge agreed with the concerns raised by the other jurors and said it was
    clear to her that juror 1 was trying to hijack the deliberations by
    considering extraneous factors, such as the impact the potential punishment
    might have on the accused. The trial judge was concerned that juror 1 would not
    follow her legal instructions because he felt he had to support the accused
    who was of the same race, and concluded that further legal instructions would
    be futile. The trial judge observed that juror 1 was very probably one of the
    two jurors who intended to acquit the appellant, but said this consideration
    was irrelevant to her decision to discharge him.

Juror 9 requests her own dismissal

[22]

A
    few hours after juror 1 was discharged, juror 9 sent the trial judge a note
    advising that she was no longer able to decide the case impartially. She wrote:

[Trial judge],

I find that I am no longer able to continue as a juror in this
    case because I find that I am no longer able to remain open minded. Ive come
    to the realization that I am factoring outside experience into the deliberation
    and unable to separate the two.

Regards

Juror #9

[23]

Defence
    counsel objected to any further questioning of juror 9. He pointed out that in the
    previous inquiries she had said that other jurors had made up their minds
    before the jury charge and addresses of counsel, and he believed that now she
    felt isolated and was making excuses in order to be discharged. He pointed to
    the unfairness to his client, given that this was the second juror who had been
    complained about, and if she were discharged only the ten jurors who voted for
    conviction would remain. He again asked for a mistrial. He submitted that any
    further questioning of the jurors would negatively affect the jurys independence
    and would be perceived as pressure to give a verdict. He acknowledged that the
    trial judge did have the discretion to question the jury further.

[24]

The
    trial judge decided to question juror 9 again in court. The juror indicated
    that her deliberations were affected by her outside experiences. The trial
    judge then asked her if she was biased and she answered, I dont feel that Im
    coming to an unbiased conclusion. Eventually, she acknowledged in answer to a
    question suggested by defence counsel that she felt pressured inside the jury
    room. The trial judge told her not to feel pressured and sent her back to
    deliberate further with the rest of the jury.  After juror 9 was sent out of
    the courtroom, defence counsel again objected and applied for a mistrial on the
    basis of juror 9s statement that she felt pressured to reach a verdict. The
    trial judge allowed the jurors to continue deliberating.

[25]

Approximately
    80 minutes later, however, the trial judge received two further letters, one
    from juror 9 and one from the jury majority. Juror 9 wrote:

[Trial judge],

I am again indicating that I am unable to continue
    deliberation. As based on your example of the red hair in terms of a bias, I am
    finding that I am falling into example 1. (The example of bias based on all red
    head[s] are liars, and I feel that this is havingan impact on my decision.

Juror #9

[26]

The
    jury majority wrote the following:

[Trial judge,]

The majority of the jury has listened to the below concerns
    regarding the case.

·

Cellphone seizure

·

[L]ack of evidence of the process of arrest

·

[N]o pictures of transaction

·

[W]ire taps

·

[S]urveillance at the time of arrest

·

[L]ack of total evidence

·

[L]ack of credible witnesses

However, after much explanation she has not been able as per
    your directions to give us reasonable doubt or a logical common sense
    inference/explanation.

She does not at this point wish to consider alternative
    explanations. She says Im done.

Respectfully

The Jury Majority

[27]

The
    Crowns position was that the trial judge should discharge juror 9 and proceed
    with the remaining ten jurors. The trial judge questioned juror 9 once again in
    open court. Despite juror 9s previous statement that she felt pressured, she now
    denied being under pressure from other jurors. After juror 9 left the
    courtroom, defence counsel once again sought a mistrial. He predicted that if both
    jurors 1 and 9 were discharged, conviction would be a foregone conclusion. He
    also submitted that the majority of the jury would have succeeded in removing
    the minority in order to achieve a guilty verdict. The trial judge again refused
    to declare a mistrial. She concluded that juror 9 was biased and discharged her.

[28]

The
    trial judge instructed the remaining ten jurors on juror 9s dismissal and sent
    them to continue their deliberations.

[29]

The
    jury retired from the courtroom at 5:13 p.m. on November 3, 2011.

[30]

At
    6:20 p.m., they returned to the courtroom with the guilty verdict.

[31]

Following
    the trial, on February 23, 2012, the trial judge issued written reasons for her
    decisions on discharging the jurors and on the mistrial application.

D.      Issues

[32]

The
    appellant raises a number of grounds of appeal arising from the trial and sentence
    relating to: inadmissible police opinion evidence; unreasonable verdicts; the co-conspirators
    exception to the hearsay rule; the length of the sentence; and the DNA order.
    However, as the outcome of the appeal turns on the issues that arose from the discharge
    of the two jurors, it is unnecessary to address the other issues raised by the
    appellant except for the unreasonable verdicts ground of appeal, because an
    unreasonable verdict may result in an acquittal.

[33]

On
    that ground, the appellant submits that the evidence against him at trial was
    weak and, as a result, the verdicts against him are unreasonable. For example, he
    points to the fact that the officers who observed him and Harding at the golf
    course never saw anything being exchanged. However, while the case against the
    appellant was circumstantial, I cannot say, given the evidence presented at
    trial, that the verdicts were unreasonable.

[34]

The
    two issues that I will address in detail are: 1) Whether the extent of the
    trial judges inquiries of the jurors led to improper disclosure of their
    deliberations; and 2) Whether the discharge of the two jurors resulted in an
    unfair trial.

E.      The applicable legal principles

Overview of s. 644 of the
Criminal Code

[35]

An
    accused has the common law right to be tried by a jury of twelve who reach a
    unanimous verdict. Section 644 of the
Criminal Code
, R.S.C. 1985, c.
    C-46,

describes the exceptional circumstances when a maximum of two
    jurors may be discharged. It provides:

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.

[36]

In
Basarabas and Spek v. The Queen
, [1982] 2 S.C.R. 730, at p. 741,
    Dickson J. emphasized that in interpreting s. 573, the predecessor of s. 644,
    the accused should not be lightly deprived of his or her right to be tried by
    a jury of twelve persons.

[37]

Under
    s. 644(1), the trial judge may discharge a juror who should not...continue to
    act. The two possible criteria for discharge are illness and other reasonable
    cause. The latter has been flexibly interpreted to allow a trial judge the
    necessary discretion to deal with circumstances as they may arise: see
R.
    v. Giroux
(2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at paras. 27, 30, leave
    to appeal refused, [2006] 2 S.C.R. viii.

[38]

When
    deciding whether to discharge a juror, the trial judge is entitled to make
    inquiries of jurors:
Giroux
, at paras. 35-36. However, that process is
    subject to strict limitations in order to protect two critical aspects of a
    jury trial: 1) the integrity of the process that ensures the accused is not lightly
    deprived of the right to be tried by a jury of twelve who reach a unanimous
    verdict, and 2) the secrecy of the jurys deliberations.

The secrecy of the jurys deliberations

[39]

In
R. v. Pan; R. v. Sawyer
,

2001 SCC 42, [2001] 2 S.C.R. 344,
    Arbour J. discussed in detail the rules regarding jury secrecy. Under the
    common law rule of jury secrecy, also known as Lord Mansfields rule, evidence
    of what occurred in the jury room among the jurors is not admissible in
    subsequent proceedings:
Pan
, at para. 54.  The issue often arises when
    the jurys verdict is sought to be impeached, as in the
Pan
and
Sawyer
cases.

[40]

In
Pan
, Arbour J. also discussed the policy reasons behind the jury
    secrecy rules, which, she pointed out, have evolved over time. The common law jury
    secrecy rule, together with the prohibition on disclosing information relating
    to the jurys proceedings under s. 649 of the
Criminal Code
, promotes
    candour and free and frank debate among jurors, protecting jurors from
    harassment, and preserving public confidence in the administration of justice:
Pan
, at para. 89. As she stated at para. 50: 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.

[41]

However,
    there is an exception to Lord Mansfields rule. Evidence that the jury was
    exposed to some extrinsic information or influence from outside the proceeding
    is admissible:
Pan
, at para. 55. But even if jurors are allowed to
    testify about whether they were exposed to any extrinsic information, the court
    should not admit evidence from the jurors as to what influence that information
    had on their deliberations:
Pan
, at para. 59.

[42]

Justice
    Arbour concluded her discussion by restating a modern version of Lord
    Mansfields common law jury secrecy rule as follows at paras. 77 and 78:

[77] In light of the above, in my view a proper interpretation
    of the modern version of Lord Mansfields 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 jurys 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.

The law on discharging jurors under s. 644

[43]

Along
    with the confidentiality of jury deliberations, Arbour J. referred to s. 644, together
    with the challenge for cause procedure, as two other safeguards against an
    improper verdict. The latter two guard against lack of impartiality in a juror,
    from bias or another cause. The common law rule prohibits any post-verdict
    inquiry into whether a juror was biased, as that is not an extrinsic matter.
    However, prior to a verdict being reached, the court is entitled to conduct an inquiry
    into bias under s. 644 to determine whether a juror should be discharged: see
Pan
,
    at para. 94.

[44]

In
    discussing s. 644, Arbour J. pointed to an important qualification on the
    courts approach to the use of that section: it is intended to be used for
    serious issues only. It was not meant to encourage jurors to bring to the trial
    judge trivial complaints or minor concerns about their fellow jurors:

[97] [T]here 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.

[45]

In
R. v. Cioppa
,

2012 ONSC 6832, defence counsel asked the trial
    judge to conduct an inquiry under s. 644, after observing one of the jurors
    turn his back on the accused during his entire testimony in chief, make
    impatient motions during counsels closing, and shake his head in a negative
    manner at the accused when counsel admitted that the accused had a knife on the
    evening in question. The trial judge refused to conduct an inquiry. He referred
    to the above passage from
Pan
and also stated, at paras. 10-11:

[10] There have been instances in the past where events have
    taken place that have warranted a court embarking on an inquiry as to whether a
    specific juror should be discharged.  Instances of unusual conduct during the
    course of deliberations is one example.  Possible contamination of an
    individual juror, or the whole jury, arising from improper contact with other
    individuals is another example.

[11] That said, there appears to be considerable authority for
    the proposition that the secrecy and confidentiality of jurors and their
    conduct is to be jealously guarded.  Consequently, the test for when the court
    should embark upon an inquiry under s. 644 is a high one.

[46]

The
    trial judge went on, at para. 13, to reinforce an important concept for the operation
    of the jury process. Even if the jurors observed conduct meant that the juror
    had formed an opinion contrary to the accuseds position,

[13] that did not mean, in and of itself, that the juror would
    not honour his oath and do his duty including listening to the views of his
    fellow jurors.  It is not realistic to expect that each and every juror will go
    into deliberations with a completely open mind as to the ultimate verdict.  Jurors
    can be expected to form views and opinions regarding the evidence and they may
    well develop an inclination towards a particular verdict.  That is human nature
    and there is nothing wrong with it as long as each juror maintains an open mind
    regarding the final conclusion and is receptive to the views of their fellow
    jurors.  This concept is recognized and explained to jurors when they are given
    the preliminary instructions at the outset of a trial.  We routinely tell
    jurors:

As the trial proceeds, you may discuss the case amongst
    yourselves when all of you are together in your jury room.  You must not,
    however, come to any conclusions about the case during those discussions.  Keep
    an open mind.

[47]

Most
    recently in this court, in
Giroux
, at para. 28, Blair J.A. emphasized  the
    necessity of taking care in conducting inquiries under s. 644, where one or
    more jurors complains about another juror or jurors. The trial judge must
    respect the confidentiality of the jurys deliberations, and must ensure that a
    majority faction of jurors is not attempting to dismiss a dissenting minority
    faction from the jury:

[28] [C]ases involving internal strife amongst jurors pose
    particularly problematic issues, and must be dealt with in a careful and
    sensitive fashion. It is imperative that neither the court, in addressing the
    situation, nor the jury, in responding to it, violates the rule preserving the
    confidentiality of jury deliberations. However, adherence to this cardinal
    principle constrains the courts ability to make inquiries about the internal
    strife.  In addition, the court must be alert to the possibility that the
    internal strife in question is merely reflective of an inability on the part of
    the jury to agree, as opposed to an inability to deliberate.  There is always
    the potential that the request to eliminate the strife issue is merely an
    attempt by a majority of jurors to cast off a dissenting minority opinion.
    Finally, the court must be conscious of the danger that the entire jury may be
    tainted by the internal strife  not just the particular juror or jurors who
    are subject to the inquiry  and its ability to deliberate compromised, thus
    impairing the integrity of the jury deliberation process.

[48]

It
    follows that, when addressing concerns about jurors alleged misconduct, the
    trial judge should consider whether a recharge on the duties of jurors, or on
    relevant aspects of the evidence or process, would be the best initial
    approach. For example, in
R. v. Peters
, 1999 BCCA 406, 137 C.C.C. (3d)
    26, both the foreman of the jury and one juror wrote notes to the trial judge, indicating
    that the juror felt uncomfortable judging his fellow man and that God would be
    the judge. The trial judge decided to examine the juror in court, where he said
    that he would feel unable to carry on any further sinceI feel that my only
    conclusion will be acquittal. Although the court of appeal upheld the trial
    judges decision to discharge the juror, McEachern C.J.B.C. stated, at para. 78,
    that the better procedure would have been to exhort the jury and await further
    developments:

[78] I am most uneasy about this entire procedure, and I think
    (with the benefit of hindsight) that it might have been better for the trial
    judge to instruct the jurors again on their duty and responsibility as the
    sworn judges in this case, and to await further developments.

[49]

The
    trial judges decisions whether to conduct an inquiry and discharge a juror
    under s. 644, and whether to declare a mistrial are discretionary and subject
    to considerable deference on appeal: see
Giroux
, at para. 27;
R. v.
    Jojic
, 2010 BCCA 577, 266 C.C.C. (3d) 42, at paras. 11, 15-16; and
R.
    v. Lessard
(1992), 74 C.C.C. (3d) 552 (Que. C.A.), at p. 563, leave to
    appeal refused, [1992] 3 S.C.R. vii. However, those decisions are subject to
    challenge when the inquiries result in an intrusion on the confidentiality of
    the jurys deliberation process, threaten the integrity of that process, or
    result in the appearance of unfairness in the trial:
Giroux
, at para.
    35.

F.       Application to this case

The initial inquiries

[50]

After
    receiving the jurors complaints, the trial judge properly consulted with
    counsel about the process to follow, and decided to make inquiries of the two
    impugned jurors first.

[51]

Although
    she was entitled to take this approach, the case law cautions that s. 644
    should not be made into an easy avenue for jurors to tattletale on other
    jurors, with a view to having a dissenting minority juror discharged:
Giroux
,
    at para. 28. Rather, the trial judge should take a cautious approach, and
    consider carefully whether the allegations raised are serious enough on their
    face to engage s. 644. Furthermore, as McEachern C.J.B.C. observed in
Peters
,
    at para. 78, the trial judge should consider whether exhorting the jurors on
    their duties and awaiting further developments would be the best initial
    approach.

[52]

In
    other cases where a juror was discharged for bias or inability to decide the
    case fairly, there was evidence directly from the juror indicating an inability
    to discharge his or her duties: see
Peters
;

R. v. Hahn
(1995), 62 B.C.A.C. 6 (B.C.C.A),
    leave to appeal refused, [1996] S.C.C.A. No. 139; and
R. v. Gordon
,
    2012 ONCA 533. The trial judge did not need to conduct probing inquiries of the
    jury regarding the content of their deliberations. In this case, in the initial
    interviews, the two impugned jurors completely denied the allegations made against
    them, and denied any other problems.

[53]

When
    the two complaining jurors were then asked to explain their allegations against
    jurors 1 and 9, they gave inconclusive evidence to substantiate those
    allegations.

[54]

Both
    confirmed that juror 9, whom they accused of being unable to decide the case
    for religious reasons, had never mentioned any religion. They only assumed from
    her reluctance to answer questions and to join in the purchase of lottery
    tickets that she had religious beliefs that prevented her from judging other
    people. Juror 2 speculated that juror 9 was a Jehovahs Witness.

[55]

With
    respect to the allegations against juror 1, juror 6 did not directly hear juror
    1 make comments indicating a racial bias in the appellants favour. Rather,
    juror 6 said juror 1s comments were made to another juror, and were in turn
    passed through a number of other jurors. Juror 6 did not know the exact wording
    of juror 1s alleged comments, but it was along the line of Im the only
    brother in hereso I have to defend, you know, my brothers. When the trial
    judge asked juror 2 whether other jurors were being influenced by considerations
    outside the evidence including race, bias against the police and possible
    religious inability to pass judgment, juror 2 replied, I agree on the last
    two you said.Race I didnt put down.

[56]

Regarding
    the police issue, juror 6 said that it was the other juror who knew more because
    it was that juror who was sitting beside juror 1, but that juror 1 kept
    bringing up the point that theres so many people wrongly accused, et ceterayou
    know, you cant believe them  meaning the police officers. When questioning
    juror 2, the trial judge asked whether juror 1 had expressed an inability to
    believe the police in any circumstances? I mean theres a difference between
    saying lets look closely at police evidence because I just have a concern, and
    saying Im not going to believe the police no matter what the evidence tells
    me. Juror 2 replied, Not expressed the way you just put itbut expressed in a
    general sense that theres been too many cases of wrongful convictions based on
    police evidence, and theyll find a way to make A, B and C.

After questioning the impugned and
    the complaining jurors, the trial judge should have exhorted the jury on their
    duties and ceased the inquiry

[57]

After
    questioning the complaining jurors, the trial judge was faced with the
    following confluence of factors:

·

She knew from the first note that the jury was deadlocked with ten
    voting to convict and two to acquit.
[1]

·

It was clear that the two impugned jurors were the two who were
    voting to acquit.

·

When questioned, they each denied the allegations against them.

·

The two complaining jurors had not heard any mention of religion
    by juror 9, but had inferred their religious concerns from her behaviour. Only
    one reported the racial concern about juror 1, and that was based on hearsay. The
    police bias report was a general concern by juror 1 about whether police lie,
    but not that juror 1 said he would never convict based on police testimony.

·

After initially agreeing, defence counsel had objected to any
    further questioning of the remaining jurors.

[58]

In
    those circumstances, in order to preserve the secrecy and sanctity of the jury
    deliberation process and the fairness and perception of fairness of the trial,
    the trial judge should have exhorted the jury on their duties and allowed them
    to continue their deliberations. Given the above factors, there was a real
    concern that this was the type of situation contemplated by Blair J.A. in
Giroux
,
    where there was internal strife because the jury could not agree, and the
    majority was attempting to cast off the dissenting jurors when they were
    unable to convince the dissenters of their view.

[59]

Instead,
    the trial judge decided to question the remaining jurors, as well as the
    impugned jurors, about the allegations.

[60]

With
    respect to the trial judge, in this case, the effect of the extensive
    questioning of the jurors about the conduct of the two impugned members was to intrude
    upon the jurys secret deliberation process.

[61]

The
    inquiry required the jurors to disclose statements made by other jurors and
    views expressed in the course of deliberations. The inquiry also asked jurors
    to give their own opinion about other jurors ability to fairly decide the
    case.

[62]

The
    intended purpose of the inquiry was to determine whether the two impugned
    jurors could faithfully discharge their duty to render a true verdict based on
    the evidence, or whether they were instead determined to act on sympathy,
    prejudice or bias, matters extrinsic to the record. However, unless the jurors
    made direct declarations of such a determination, which they did not, the
    inquiry necessarily required an improper parsing of a jurors thought and
    reasoning process.

[63]

In
    particular, the jurors should not have been asked to opine on their fellow
    jurors subjective motivations in the deliberation process and ability to
    decide the case fairly. As Arbour J. observed in
Pan
, at para. 61, jury
    members are expected to bring their entire lifes experience to their
    deliberations and to apply it to the decision-making process. Chief Justice
    McLachlin also discussed this principle in detail in
R. v. Find
, 2001
    SCC 32, [2001] 1 S.C.R. 863, at para. 43.

[64]

Furthermore,
    as Nordheimer J. stated in
Cioppa
, jurors may develop views of the
    evidence as the case progresses, including a negative view of the accused or of
    any witness, such as a police witness. This is not inconsistent with jurors
    duties as long as they remain open to listen to the views and approaches of
    others, and to consider them along with their own views before reaching a
    conclusion. In the end, jurors are not precluded from applying their life
    experiences when assessing credibility, or the likelihood of a conclusion to be
    drawn from circumstantial evidence.

[65]

The
    secrecy and sanctity of the jury deliberation process is intended to allow and
    encourage the free expression of ideas and concerns based on the evidence and
    on the life experience of the jurors. In this case, there was circumstantial
    evidence about the appellants possession of the 519 cell phone. In assessing that
    evidence, jurors were entitled to take into consideration any concerns they had
    about the credibility of the police witnesses. What they were not entitled to
    do was to close their mind to the possible inferences on the basis of a firm
    belief that police always lie to obtain a conviction.

[66]

With
    respect to juror 9, we cannot know what occurred in her mind over the course of
    this process. When the trial judge questioned her again after she first
    requested her own dismissal because she now felt that she was biased, she stated
    that she felt pressure from the other jurors. Later, after she wrote her second
    note, and the jury majority sent a separate note to the trial judge about her,
    she said she no longer felt pressured. She had told the other jurors by then that
    Im done.

[67]

However,
    this took place after juror 9s conduct and statements in the jury room became
    the subject of inquiries directed at her and the other jurors. She was supposed
    to be able to speak freely and confidentially with her fellow jurors. The
    inquiry resulted in her being separated from them, then being asked to
    deliberate with them once again, ultimately as the sole juror in favour of
    acquittal. Although affected jurors will normally be segregated during the
    inquiry process, in this case, the cumulative effect of all of these actions
    could only have negatively affected her attitude to the process and her role in
    it.

[68]

These
    inquiries breached the secrecy of the jurys deliberations and impugned the
    integrity of the jury process and the fairness of the trial itself.

[69]

The
    trial judge stated in her subsequent written reasons that she was not influenced
    by knowing how the two jurors intended to vote when she dismissed them. There
    is no issue in that regard.

[70]

However,
    the concern is with the appearance of trial fairness. It was clear on the
    record, and defence counsel raised the issue numerous times, that the two
    jurors being discharged were almost certainly the two who had voted in favour
    of an acquittal and that once they were discharged, the jury would quickly
    return a conviction. That is exactly what occurred.

[71]

In
    deciding not to declare a mistrial, the trial judge referred to the hard work
    that the balance of the jurors had done and fairness to them. However, it is
    fairness to the appellant and the appearance of fairness in the process that
    are the governing factors.

G.      Conclusion

[72]

This
    was a case of juror strife, where the jury panel was unable to agree on an
    outcome. The trial judges numerous inquiries of the jurors necessarily probed
    the content of their deliberations and undermined the secrecy of the
    deliberative process. The inquires led to the discharge of one juror, then to
    the discharge of the second juror at her own request, when all knew that they
    were very likely the only two holdout jurors voting to acquit.

[73]

Although
    the trial judges individual decisions are discretionary and would be owed
    deference on appeal, the extensive inquiries into the jurys deliberations and
    the discharge of the two jurors who appeared to be the ones in favour of acquittal
    resulted in a breach of the sanctity of the jury deliberation process, the
    appearance of unfairness, and ultimately, an unfair trial.

[74]

I
    would therefore set aside the convictions and order a new trial.

Released: GS Jan 23, 2015

K. Feldman J.A.

I agree. G.R. Strathy
    C.J.O.

I agree. David Watt
    J.A.

[1]
In the future, jurors should be warned not to disclose the results of votes
    when asking the trial judge questions. This will be reflected in a new edition
    of
Watts Manual of Criminal Jury
    Instructions
, to be published in February, 2015.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Madore, 2015 ONCA 20

DATE:  20150115

DOCKET: C58294

Feldman, Simmons and Pardu

BETWEEN

Her Majesty the Queen

Respondent

and

Joey Armand Madore

Appellant

David W. F. Gault, for the appellant

J. Sandy Tse, for the respondent

Heard: January 14, 2015

On appeal from the sentence imposed on October 30, 2012
    by Justice Catherine Ann Kehoe of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown concedes that the appeal of the sentence should be allowed and
    the credit for presentence custody should be on the 1.5:1 basis so that the
    sentence should be varied to 68 months less 24 months credit for presentence
    custody.  The sentence is varied to that extent.

[2]

The appeal as to conviction is dismissed as abandoned as per
    notice filed by the appellant on December 9, 2014.