) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 2795

CITATION : R. v. Torcaso and Maione, 2017 ONSC 2795 COURT FILE NO.: 7626/15 DATE: 2017-05-09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ZACHARY TORCASO -and- DERECK MAIONE ) ) ) ) ) ) ) ) ) ) ) ) ) ) Mr. D. Didiodato, Counsel for the Crown Mr. E. McCooeye, Counsel for Zachary Torcaso Mr. M. Bennett, Counsel for Dereck Maione ) ) ) HEARD: May 1, 2017 VARPIO J.

REASONS ON Mistrial/stay APPLICATION [ 1 ] This is an application for a mistrial and/or a stay of proceedings based upon a communication that the Court received from someone purporting to be a juror. [ 2 ] For the reasons that follow, I dismiss the applications for a mistrial and/or stay and will not continue with an inquiry. FACTS [ 3 ] On January 26, 2017, Mr. Torcaso and Maione were found guilty of several counts including a break and enter and assault. [ 4 ] I believe that on either January 19/20, 2017, or Jan 23/24, 2017, an unopened envelope was sent to my chambers by Court Staff.

My recollection of the specifics regarding the early happenings involving the letter are hazy since the potential significance of the letter did not become clear until later. As evidenced by the postage markings upon the envelope, it appears that the letter had arrived in the mail. The envelope is addressed to me and has a name and return address upon it. It is type-written. The bottom of the envelope effectively states “Do Not Open Until After Trial”. [ 5 ] When I first saw the envelope, I believe that it had a sticky note attached to it.

It appears that a Court staff member had written dates and the names of court cases upon the sticky note. I am was unsure as to how the sticky note came to be prepared. The names of the cases on the sticky note correlate to the name on the return address. [1] My assistant at the time advises me that, to her recollection, the envelope came into my chambers with the sticky note attached. [ 6 ] I inferred at the time that the envelope had to do with matters that are listed on the sticky note.

[7] At the time I received the envelope I was in the process of preparing my charge and getting other trial matters resolved. Ipaid no attention to the letter until the close of trial. The jury rendered its verdict at which point I frankly forgot about the letter for afew days. [8] Prior to opening the letter, I did not believe that the letter dealt with the instant matter given the facts described above. [9] I opened the envelope, whose contents are attached as

Schedule “A”. [10] I considered the available options for a brief period of time and then called counsel to appear before me. I provided counselwith a redacted copy of the letter. I allowed counsel to review the original. [11] I began a first-degree homicide at the end of March 2017 and attempted to

schedule this hearing around the homicide trial. [12] Counsel agreed that I should conduct an inquiry. The juror was to confirm that the juror, in fact, wrote the letter. All counselappeared to expect – as did I – that the juror would confirm that the juror, in fact, wrote the letter. [13] At the inquiry, I asked the juror whether or not they had written the letter. The juror stated that they had not written the letterand added that the first time they had seen the letter was that day. An Assistant Crown Attorney other than Mr.

Didiodato appeared forthe Crown on that date in order to alleviate any discomfort the juror might have had. [14] On or about April 26, 2017, I received word from the local trial coordinator that a person had attempted to contact the courtoffice to provide “further information” about that which had happened. The person had been referred by the local sheriff’s office to thelocal Crown’s Office. I am advised that the Assistant Crown Attorney who attended at the inquiry (not Mr. Didiodato) took a phone callfrom the the juror who had testified.

I am advised that defence counsel have been given disclosure of this conversation. I am not privyto same. [15] I have also been advised by counsel that the police are currently investigating the matter. POSITIONS OF THE PARTIES [16] The defence seeks either a mistrial or a stay of proceedings based upon a reasonable apprehension of bias. The defenceopposes a further inquiry of the juror since the juror has been tainted by the conversation with the Assistant Crown Attorney and sincethe evidence that may be heard could reveal the decision-making by the jury, which is forbidden.

The defence submits that I ought toreject the evidence of the juror based upon: (1) the juror’s demeanor in testifying; as well as (2) the fact that the juror would be the onlyperson who could know the juror’s name, address and juror number. [17] The defence submits that if, based upon R. v. Burke 2002 SCC 55 , [2002] S.C.J.

No. 56, I am satisfied that I amfunctus officio, I ought to find that the rule in Burke contravenes s.7 of the Charter and that I should nonetheless find that I have aresidual discretion to declare a mistrial in instances where there is a reasonable apprehension of bias. [18] The defence also submits that the juror’s conversation with the Assistant Crown Attorney is a separate issue capable of fallingunder the Burke exception. Specifically, the defence argued that the tainting of the juror’s evidence regarding the “further information”is such that I cannot hear the evidence as per Burke.

As such, I ought to Order a mistrial. [19] Counsel for Mr. Maione submitted that the instant proceedings ought to be halted pending the outcome of the Criminalinvestigation. [20] The Crown, for its part, submits that I am functus officio as per Burke and that I have no authority to do anything beyondcreating an appropriate record for appellate review.

THE LAW [21] Courts are always concerned that juries both feel protected by anonymity (so as to allow jurors to make decisionsnotwithstanding potential outside pressure) while also ensuring that the decision-making process is protected by the silence of the jurorspost-verdict. As Watt J.A. stated in R. v. Pannu 2015 ONCA 677 , [2015] O.J. No. 5191: The Jury Secrecy Rule at Common Law 62 Jurors deliberate in secret but give their verdict, often in a word or two, in open court. They bring to their task their entire lives'experiences.

Their knowledge of human behaviour, gained outside the courtroom, helps them assess the credibility of witnesses andgauge the reliability of evidence. Jurors have opinions, formed by what they see and hear. And by what they read. Opinions do notdisqualify them from jury service unless those opinions interfere with their ability to render an impartial verdict: R. v. Pan; R. v. Sawyer,2001 SCC 42 , [2001] 2 S.C.R. 344, at pp. 378-9. 63 To promote candour and full and frank debate in the jury room, essential to collegial decision-making, the common law created arule of secrecy about jury deliberations.

The rule, sometimes described as Lord Mansfield's rule, prohibits a court, whether of firstinstance or on review, from receiving evidence of jury deliberations for the purpose of impeaching the jury's verdict: Pan, at p. 373;Danis v. Saumure, (SCC), [1956] S.C.R. 403, at pp. 406-7. 64 A modern formulation of the common law rule is that statements made, opinions expressed, arguments advanced and votes cast bymembers of the jury in the course of their deliberations are inadmissible in any legal proceedings: Pan, at p. 386.

It follows that jurorscannot be asked and cannot testify about the effect of anything on their or on other jurors' minds, emotions or ultimate decision: Pan, atp. 386. 65 The reach of the common law rule does not extend to render inadmissible evidence of facts, statements or events extrinsic to the

deliberation process that may have tainted the verdict. And it is of no moment whether this evidence emanates from a juror or throughsome third party: Pan, at p. 386. The Statutory Prohibition: s. 649 of the Criminal Code 66

Section 649 of the Criminal Code creates a

summary conviction offence that prohibits jurors from disclosing information aboutwhat took place in the jury room while the jury was absent from the courtroom that was not later disclosed in open court.

The prohibitionis not restricted to information disclosed during deliberations and is subject to an exception for an investigation of and testimony aboutan alleged offence under s. 139(2) of the Criminal Code in relation to a juror. 67 The common law jury secrecy rule and s. 649 of the Criminal Code together further the policy goals of promoting free and frankdebate among jurors, protecting jurors from harassment and preserving public confidence in the administration of justice: Pan, at p. 391. [22] As a result of these concerns, difficult questions arise when issues occur with a juror post-verdict.

The leading cases in thisarea are R. v. Head (SCC), [1986] 2 S.C.R. 684 and R. v. Burke. In Head, the Supreme Court of Canada made clear that,upon the delivery of a verdict, a trial judge is functus officio with respect to trial and/or evidentiary matters. [23] The Supreme Court reconsidered this rule in R. v. Burke in so far as the Supreme Court was concerned that an inflexible ruledid not permit trial courts to adequately, and efficiently, adjudicate upon their own process.

Nonetheless, the overriding concern for jurysecrecy mandated that any exceptions to the rule in Head would be narrow: 69 However, an exception to the general rule exists where the error is one that does not require the jury to reconsider the verdict orcontinue its deliberations with a view to handing down additional verdicts; there the trial judge retains the limited jurisdiction to recallthe jury and conduct a narrow inquiry into the alleged error.

This type of error has sometimes been called "clerical", but given the mixedmeanings of such phrases as "clerical error" or "accidental slip", the description is inadequate. 70 The first question that a trial judge must ask post-discharge is whether the error is one that requires reconsideration of the verdict.If it requires redeliberation of the verdict, there are no circumstances under which the judge will retain or otherwise possess jurisdictionto reconvene the jury and conduct an inquiry into the alleged error. The trial has concluded and the jury's function is finished.

The jury isnot then permitted to change its mind. If the error does not require the jury to reconsider its verdict, then the trial judge possessesjurisdiction to conduct an inquiry, the nature of the inquiry being whether the facts of the case disclose a reasonable apprehension ofbias.

In determining whether this apprehension is raised, the trial judge must consider all of the relevant circumstances of the case, animportant circumstance usually being the dispersal of the jury and its probable effect on the minds of reasonable members of the public.If the facts disclose a reasonable apprehension of bias, the trial judge's remedial jurisdiction is necessarily limited, such that the trialjudge cannot alter the originally recorded verdict.

The scope of the trial judge's remedial jurisdiction is discussed in detail in the nextsection. [24] This view that a trial judge has no jurisdiction to grant a mistrial as a result of alleged juror bias was explicitly adopted by my colleague Dawson J. in R. v. Bains 2013 ONSC 950. As previously noted, Bains was appealed to the Ontario Court of Appeal[2] whereWatt J.A. stated as follows: The Initial Hearing 32 At the initial hearing following the discovery, trial counsel for Bains invited the trial judge to declare a mistrial or enter a stay ofproceedings.

Counsel for Pannu, who had not been counsel at trial, submitted that the trial judge had no jurisdiction to grant the remedysought by counsel for Bains. Counsel for Pannu asked the trial judge to conduct an inquiry into what happened to create a record forappellate review. 33 The trial Crown agreed that the trial judge was functus, and that he could not declare a mistrial or stay proceedings after dischargeof the jury. The trial Crown argued that even if the trial judge had the authority to conduct an inquiry, which was not conceded, heshould not do so in the circumstances.

The Preliminary Decision 34 The trial judge decided that he would conduct an inquiry to determine whether anyone else on the jury had conducted any research;the extent to which what was found or anything else was disclosed to other jurors; and when the materials had been brought into the juryroom. [25] Watt J.A. then went on to discuss the reasons for his finding that the facts in Bains did not give rise to a reasonableapprehension of bias such that the appeal should be dismissed. [26] In the case before me, counsel for the defence argued that Watt J.A.’s statement at paragraphs 32-34 of Bains is not a tacitapproval of Dawson J.’s statement that a trial judge lacks jurisdiction to declare a mistrial in situations where alleged juror misconductdiscovered post-verdict gives rise to a reasonable apprehension of bias.

Defence counsel pointed to a variety of cases where trial judges

have declared a post-verdict mistrial as justification for that view: R. v. Rogers, [1995] O.J. No. 3114; R. v. Mack, (SCC), [1988] 2 S.C.R. 903; R. v. Nehass, 2017 YKSC 13 , 2017 Y.K.S.C. 13; R. v. GGM, 2003 NSSC 258 , 2003N.S.S.C. 258, etc. [27] I disagree with the defence’s position in this regard. Firstly, the Supreme Court in Burke intended to keep the exception asnarrow as possible as evidenced by the statement at paragraph 70: The first question that a trial judge must ask post-discharge is whether the error is one that requires reconsideration of the verdict.

If itrequires redeliberation of the verdict, there are no circumstances under which the judge will retain or otherwise possessjurisdiction to reconvene the jury and conduct an inquiry into the alleged error. The trial has concluded and the jury's function isfinished. The jury is not then permitted to change its mind [emphasis added]. [28] In this instance, if a juror’s decision-making disclosed a reasonable apprehension of bias, the jury would undoubtedly be toreconsider its verdict. It would not be a true verdict. The verdict could not stand.

Based on the above-referenced statement from Burke,therefore, only an appellate court has jurisdiction to make such a finding in circumstances like the one before me. [29] Secondly, in Bains, Watt J.A. did not correct Dawson J.’s statement that a trial judge has no jurisdiction to declare a mistrial incircumstances where alleged juror error/misconduct discovered post-verdict may disclose a reasonable apprehension of bias.

TheOntario Court of Appeal’s reasons taken as a whole suggest to me that the Appellate Court agreed with Dawson J.’s view on jurisdiction. [30] While lower courts from different jurisdictions may have decided differently, I am bound by both the Supreme Court ofCanada’s decision in Burke and the Ontario Court of Appeal’s

interpretation thereof in Bain. [31] Accordingly, I find that I am functus officio with respect to the issue at hand. [32] With respect to the defence argument that the juror’s conversation with the Assistant Crown Attorney taints the process suchthat I cannot call the inquiry and must thus declare a mistrial, I do not believe that I have jurisdiction so to do. Irrespective of the validityof any taint argument, the power to Order a new trial based upon alleged taint rests with an appellate court, and not with me.

The OntarioCourt of Appeal may agree with the substance of the defence’s argument that the alleged taint requires a new trial. It may not. As Iindicated, I am functus officio and simply have no authority to rule upon that argument. [33] As regards the Charter argument, the defence submitted that the Charter informs everything that a Court does. It can breathenew life into old common law rules that no longer meet modern necessities. Counsel ably pointed out that the hearsay rules changed tomeet modern necessities under R. v. Khan (SCC), [1990] 2 S.C.R. 531.

In this instance, counsel submits that the rule inBurke contravenes s.7 in so far as the potential exists for an accused to be incarcerated despite an “untrue” verdict rendered by a trier offact. Such a phenomenon would offend fundamental justice in that a person could be imprisoned despite the invalidity of a givenverdict. [34] This argument, while innovative, fails to consider the fact that Burke was decided twenty years after the advent of theCharter. Accordingly, this is not a situation where the Supreme Court was unaware of the dictates of s.7 of the Charter when it decidedBurke.

Had the rule in Burke infringed s.7, I am confident the Supreme Court would have not ruled as it did. [35] The current rule ensures that the proper level of court has the ability to ensure that no miscarriage of justice occurs. Anappellate court can review the nature of the alleged reasonable apprehension of bias to ensure that no such bias exists. As stated inBurke, the trial is over and the appellate court can make the appropriate decision.

Further, if the nature of the alleged bias is obvious,presumably a convicted accused would receive bail pending appeal and that person would not be incarcerated as a result of an unsafeverdict. [36] Accordingly, I do not find that the rule in Burke offends

section 7 of the Charter. [37] Thus, for the foregoing reasons, I dismiss both the mistrial and the stay applications since I am functus officio. [38] It is therefore left to me to determine the nature of any continued inquiry into the “further information” to be provided by thejuror. [39] I recognize that Courts cannot ask a juror about the machinations of their decision-making, either directly or indirectly.

Without being able to vet the nature of the juror’s “further information” prior to conducting a further inquiry, I do not know how I couldcurtail the juror’s testimony such that the inquiry does not run afoul of the concerns regarding jury secrecy. [40] I must also be mindful of the relevance of the evidence to be gathered from the inquiry, as well as my role in it. An appellatecourt may yet have to determine whether or not the verdict was imbued with a reasonable apprehension of bias such that the verdictought to be overturned.

The basis for such a ruling would be based, presumably, on a finding that the juror wrote the letter and that theirinquiry testimony in this regard ought not be accepted[3]. This would obviously necessitate an adverse finding of the juror’s credibility. [41] Given the evidential concerns regarding jury secrecy, the juror’s evidence at the inquiry was brief. The juror was not cross-examined. Accordingly, I will not be making any adverse findings of credibility with respect to the juror’s testimony. In fact, I do notknow if I am able to make such findings of credibility in matters over which I have no jurisdiction.

Even, if I do have such authority, Iwill not engage in that exercise. The juror’s testimony was exceedingly brief and, as noted in the sample jury charge, it is ofteninappropriate to make determinations of credibility based on demeanor alone. I also disagree that the nature of the information disclosedin the letter is such that I can find with certainty that the juror, in fact, wrote the letter. I cannot. I do not know how many people, infact, saw the jury list. I will not speculate in this regard.

Accordingly, I will draw no inferences from the fact that the juror’s purportedname, address and juror number appeared in the letter and/or envelope. [42] With respect to Mr. Maione’s concern about concurrent judicial proceedings and police investigations, I agree that an inquiry

is not a trial or a “fact finding” mission by me to support or refute a criminal investigation. Accordingly, I will only consider hearing the “further information” if that evidence relevant to inquiry. [ 43 ] The defence does not want any further evidence called in this inquiry. I note that defence counsel are experienced criminal lawyers who are aware of their duties to protect their clients’ interests.

I am willing to infer that the “further information” does not directly undercut the credibility of the juror’s testimony since the defence would have otherwise wanted this evidence before any Court making a determination regarding the juror’s credibility. Had the defence asked to hear the juror for this purpose, I certainly would have entertained the argument.

However, given the relevance of the evidence to the inquiry coupled with the concern regarding jury secrecy, I am unwilling to continue with the inquiry since I do not believe any further evidence will assist an appellate court in making its determination while it could very well encroach into verboten areas. [ 44 ] Accordingly, I hereby dismiss the application, end the inquiry and adjourn this matter to sentencing. Varpio J. Released: May 9, 2017 CITATION : R. v. Torcaso and Maione, 2017 ONSC 2795

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and – ZACHARY TORCASO -and- DERECK MAIONE REASONS ON APPLICATION Varpio J. Released: May 9, 2017