R. v. Ellis

R. v. Ellis Collection Decisions of the Court of Appeal Date 2013-01-11 Neutral citation 2013 ONCA 9 Docket numbers C53276 Judges MacPherson, James C.; Armstrong, Robert Patrick; Watt, David Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ellis, 2013 ONCA 9 DATE: 20130111 DOCKET: C53276 MacPherson, Armstrong and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Maurice Ellis Appellant Russell Silverstein, for the appellant Brian G. Puddington, for the respondent Heard: September 4, 2012 On appeal from the convictions entered by Justice E. M. Stewart of the Superior Court of Justice, sitting with a jury, on September 24, 2010. Watt J.A.: [1] Questions from deliberating jurors often relate to an important point in the jury’s reasoning. These questions merit a full, careful, and correct response from the trial judge. To compose their responses to questions from deliberating jurors, trial judges invite submissions from counsel and formulate their answers accordingly. [2] Sometimes, as here, other trial events intervene before the judge answers the jury’s question. A further message from the jury may indicate that they have reached a verdict. Does the trial judge answer the question or take the verdict? Or does the judicial response depend on the nature of the unanswered question? [3] In this case, the jurors asked the question. The judge read the question to trial counsel, offered some preliminary thoughts about the substance of her response, and asked counsel for their submissions. Before the judge had settled on her response, the jury indicated that they had reached their verdict. Without any inquiry of the jury about whether they still required an answer to their question, the judge took the jury’s verdicts finding Maurice Ellis (the appellant) guilty on all three counts in the indictment. [4] The appellant says that the judge should have answered the jury’s question, to correct a potential misunderstanding of the burden of proof, and directed the jurors to consider the response before returning their verdict. The judge’s failure to follow this course, the appellant contends, is fatal to the validity of his convictions. [5] These reasons explain why I agree with the appellant that, in the circumstances of this case, the trial judge’s failure to answer the jury’s question before receiving their verdict requires us to set aside the appellant’s convictions and to order a new trial on all counts in the indictment. the background facts [6] To situate the single ground of appeal advanced here in its appropriate surroundings, a brief reference to the circumstances giving rise to the prosecution is sufficient. The Traffic Stop [7] On a mid-October evening five years ago, a police officer stopped a motor vehicle the appellant was driving because no light was visible on the licence plate. The vehicle did not belong to the appellant. [8] The police officer asked the appellant for his driver’s licence. The appellant identified himself by name, then told the officer that his driver’s licence was at home. The officer asked the appellant to get out of the car so he could see the licence plate was not properly illuminated. The officer asked the appellant again for his driver’s licence. The appellant told the officer that he didn’t have his wallet with him and opened his coat so that the officer could see that he was not carrying a wallet. [9] The officer noticed a white plastic bag lodged in the armpit of the appellant’s jacket. The officer asked about the contents of the bag. The appellant said there was money in the bag, $5,000. When the officer asked another question about the money, the appellant pushed the officer and began to run away. The Apprehension [10] After a brief foot chase, the officer apprehended the appellant, forced him to the ground, and handcuffed his hands behind his back. The officer then picked up the white plastic bag from the ground about two or three feet away from the appellant. The Bag and its Contents [11] The arresting officer turned the bag and its contents over to another officer who opened the bag and looked inside. The contents of the bag included bundled cash, elastic bands, a cell phone, and a sandwich bag that contained 26 grams of crack cocaine. A search of the appellant and the motor vehicle turned up no more money or drugs. The Expert Evidence [12] A police expert testified about the amount of crack cocaine and the packaging of the money found in the while plastic bag recovered on the appellant’s arrest. [13] The witness explained that drug dealers usually carried much smaller amounts with them, a “20 piece”, than what was recovered here, a “street ounce”, and maintained the bulk of their stash elsewhere in case of arrest. The “street ounce” recovered here would usually be broken into eighths, “20 pieces”, for street sale to individual purchasers. Sold this way, a “street ounce” would be worth $4,000 to $5,000. [14] The expert also gave evidence about the packaging of the money found with the crack cocaine and cell phone in the plastic bag. The bundling of the money, in five bundles of $1,000 each and one of $500, was not unique to drug dealers, but in the drug trade, bundles of $1,000 indicated a higher level dealer. The officer concluded that the combination of bundled money and drugs confirmed that the money was likely the proceeds of drug trafficking. The Appellant’s Explanation [15] The appellant gave evidence in his own defence. He provided a different version of his interaction with the arresting officer. According to the appellant, the officer did a pat-down search as soon as the appellant got out of the car. When the officer found the bag with the money, the appellant refused to tell the officer how much money was in the bag. When the officer put his hand inside the appellant’s jacket, the appellant ran because he had had a prior bad experience with the police. [16] As he was running away, the appellant tripped and fell. The officer pinned the appellant to the ground, handcuffed him, and took the bag with the money in it. The appellant’s cell phone was not in the bag. [17] The appellant explained that he participated in a “Partner” program with other members of the Jamaican community. Each contributed an amount of money every week and the total amount collected was given to a different participant each week. The appellant contributed $200 weekly. He did not know the name of the person who organized this scheme. [18] The appellant said that the mother of his child, Ms. Scott, collected the money when he was to be the recipient of it on October 20, 2007. Ms. Scott bundled up the money and put it in the white plastic bag. Ms. Scott told him that the amount of the money was $5,500, but the appellant did not count it or see any cocaine when Ms. Scott put the bundles, each secured by an elastic band, into the plastic bag. The appellant put the plastic bag inside his jacket pocket. [19] Ms. Scott confirmed that she collected the money from the “Partner” pool on the day on which the appellant was arrested, October 20, 2007. She bundled up $5,500 of the $8,000 payout for the appellant and put it in the plastic bag. Ms. Scott kept $2,500 for herself because she had also made contributions to the pool. She tied up the bag and gave it to the appellant. Ms. Scott denied seeing or including any drugs in the plastic bag. THE GROUNDS OF APPEAL [20] In his factum, Mr. Silverstein advanced three grounds of appeal on the appellant’s behalf. He submitted: i. that the trial judge erred in taking the jury’s verdict without first answering the jury’s outstanding questions; ii. that the trial judge erred in her instructions to the jury on the standard of proof required on the proceeds of crime count; and iii. that the appellant’s conviction on the proceeds of crime count was unreasonable. [21] In oral argument, Mr. Silverstein confined his submissions to the first ground of appeal. He was wise to do so. Ground #1: The Jury Question and Reception of the Verdict [22] Some further background is essential for an understanding of this ground of appeal. The Additional Background The Jury Question [23] The trial judge completed her charge to the jury on the afternoon of September 23, 2010. The jury retired for the evening without reaching a verdict. Deliberations resumed the following morning. [24] Shortly after deliberations resumed, the jury sent a written question to the trial judge. The question was: There were opportunities to have the Crown get individuals from the Partner to testify. (a) Why was the Crown not able to have anyone from the Partners testify? Is the absence of witnesses from the Partner, other than Mr. Ellis and Ms. Scott, from these proceedings, a matter what we can evaluate as evidence? The Discussion [25] The trial judge reconvened court in the absence of the jury and read the jury’s question to counsel. Then, “thinking out loud”, the trial judge advised counsel about several things she proposed to include in her response to the jury’s question. Among other things, the trial judge proposed to tell the jury that the appellant was under no obligation to call evidence and that the absence of evidence could raise a reasonable doubt about the appellant’s guilt. She also suggested that the jury should be told that there was no evidence about when the Crown first learned about the “Partners”, or about the names of other members of the “Partners”, which Crown counsel did not pursue in cross-examination or by the introduction of reply evidence. [26] Trial counsel for the appellant (who was not Mr. Silverstein) expressed concern about the inclusion of any reference to when the Crown first learned about the “Partners”. He pointed out that the appellant was under no obligation to disclose his defence to the Crown and any instruction about timing was inconsistent with the appellant’s right not to disclose his defence in advance of trial, and invited an impermissible adverse inference by the jurors. [27] Trial counsel for the Crown (who was not Mr. Puddington), took the position that the instruction should keep the jury focussed on the evidence presented at trial. The trial Crown was unaware of this evidence until it was given at trial and believed any evidence called in rebuttal of it would be characterized as collateral and excluded. [28] Trial counsel for the Crown sought a brief adjournment so that she could consult with more experienced colleagues before advancing further argument about what should be said to the jury. Trial counsel for the appellant did not object to the Crown’s request. The trial judge acceded to the Crown’s request and fixed a time at which proceedings were to resume. The Notice of the Verdict [29] When proceedings resumed in the absence of the jury, the trial judge advised counsel that she had received information that the jury had reached a verdict. [30] Trial counsel for the appellant expressed his concern that the jury’s question had not been answered in a timely way. Counsel considered the question as one that related to “the very fundamentals of the burden of proof”. He asked the trial judge to bring in the jury and answer their question before receiving any verdict. [31] Trial counsel for the Crown submitted that it was no longer necessary to answer the jury’s question. They had reached a verdict and the trial judge should simply recall the jury and receive their verdict. Receipt of the Verdict [32] The trial judge recalled the jury. Without inquiry of the jury about whether they required an answer to their question prior to rendering their verdict, the trial judge received the jury’s verdict and confirmed its unanimity by polling the jurors individually. The Arguments on Appeal [33] For the appellant, Mr. Silverstein begins by underscoring the importance of jury questions, which he says indicate that jurors are troubled by an issue and require further direction from the trial judge about it. Equally important, Mr. Silverstein emphasizes, is that jurors receive the judge’s assistance in a timely, correct, and comprehensive way. [34] Mr. Silverstein says that the issue raised by the jury’s question involved fundamental legal principles and reflected a misunderstanding on the jury’s part about the burden and standard of proof. A response was required because, without proper instruction, the jury might well have drawn an adverse inference from the failure of the appellant to call more witnesses from the “Partners” to buttress his claim about the origins of the funds seized from him on arrest. [35] Mr. Silverstein submits that the trial judge should have answered the jury’s questions and directed them to continue their deliberations with the benefit of the answer. The error here was in receiving the verdict without answering the question, correcting the legal misapprehension included in it, and giving the jury the option of further deliberations in light of the answer. [36] For the respondent, Mr. Puddington says that the jury was entitled to withdraw their question and not to require an answer at any time before the judge responded to it. They did so here, implicitly at least, when they advised the judge that they had reached a verdict and supplied a completed verdict sheet. [37] Mr. Puddington submits that the jury was well aware of the procedure for questions and knew that the judge, with the assistance of counsel, would respond to the questions as quickly as possible. The jury followed the procedure and continued their deliberations, as they were entitled to do, while awaiting the judge’s answer. Implicit in their announcement of a verdict was their disclaimer of the need for a response to their question. [38] Mr. Puddington contends that the trial judge was entitled to treat the verdict announcement as an implied withdrawal of the question and a signal to receive the verdict without further inquiry. The decision to do so does not reflect error. The Governing Principles [39] The determination of this ground of appeal involves the application of general principles to the circumstances of this case. What happened here, while not commonplace, is by no means unique. No statutory provision influences, much less controls our decision. The Importance of Jury Questions [40] Jury questions are important. Questions from deliberating jurors provide a clear indication of a specific problem that the jurors are confronting and upon which they require help from the trial judge: R. v. W. (D.), [1991] 1 S.C.R. 742, at pp. 759-760; and R. v. S. (W.D.), [1994] 3 S.C.R. 521, at pp. 528-529. The Obligation to Respond to Jury Questions [41] An inevitable corollary of the importance of jury questions is the imposition on the presiding judge of an obligation of equivalent importance to provide a clear, correct, and comprehensive response to the jury’s question: W. (D.), at pp. 759-760; S. (W.D.), at pp. 528-529, and 537. [42] A trial judge’s response to a deliberating jury’s question should also be timely. Unreasoning haste should not trump the need for a clear, correct and comprehensive judicial response to the jury’s question. On the other hand, undue delay, without a corresponding instruction to cease deliberations where the question reflects a misunderstanding or seeks an explanation of important legal principles, is not without its own risks. Chief among those is the risk that the reasoning process that leads to a verdict and the verdict itself may be corrupted by legally impermissible reasoning. The Evidentiary Significance of Failure to Adduce Evidence [43] The jury’s question in this case related to the evidentiary significance to be assigned to the failure of both parties to call further witnesses from the “Partners”. To be more specific, the jury wanted to know why the Crown wasn’t able to have anyone from the “Partners” testify and whether the absence of other witnesses from the “Partners” was something the jury could “evaluate as evidence”. [44] As a matter of general principle, Crown counsel is under no obligation to call a witness whom the Crown considers is unnecessary to the Crown’s case: Lemay v. The King, [1952] 1 S.C.R. 232, at p. 241; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 14. It is all the more so where Crown counsel does not know of the existence or identity of the witness, or considers the evidence of the witness unworthy of belief: Jolivet, at para. 29. [45] In some instances, a trier of fact may draw, and be instructed about its authority to draw, an adverse inference from the failure of a party to call a witness or produce other evidence. This “adverse inference” principle derives from ordinary logic and experience. The principle is not intended to punish a party who exercises its right not to call a witness by imposing an “adverse inference” that a trial judge, aware of the explanation for the decision, considers wholly unjustified: Jolivet, at para. 24. [46] The cases seem to fall into two groups. In the first, an adverse inference may be drawn against a party for failure to produce a witness reasonably assumed to be favourably disposed to that party. In the second, the inference may be drawn against a party who has exclusive control over a material witness, but fails to produce him or her, without regard to any possible favourable disposition of the witness towards the party: McCormick on Evidence, 6th ed. (St. Paul: Thomson West, 2006), Vol. 2, at para. 264. [47] The “adverse inference” principle applies in criminal cases, but with due regard for the division of responsibilities between the Crown and defence: Jolivet, at para. 26. The principle is also subject to conditions, among them the right of the party against whom the adverse inference is sought to provide an explanation for the failure to call a witness: Jolivet, at para. 26; Wigmore on Evidence (Chadbourn Rev., 1979), Vol. 2, at para. 290. [48] The “adverse inference” principle is rooted in the soil of ordinary logic and experience. As a consequence, the inference can only be drawn where there is no plausible reason for nonproduction, in other words, where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable: R. v. Lapensee, 2009 ONCA 646, 99 O.R. (3d) 501, at para. 42; R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at pp. 512-513. [49] In a criminal case, a trial judge should draw, or instruct a jury to draw, an adverse inference from the failure of a party to call a witness only with the greatest of caution: Lapensee, at para. 45; R. v. Zehr (1980), 54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68. To draw, or to instruct a jury to draw, an adverse inference against an accused in a criminal trial risks imposing a burden of adducing evidence on the accused, thereby shifting the onus of proof: Lapensee, at para. 45; Rooke, at p. 518. When Verdicts Intervene [50] Some authorities consider the obligations of a trial judge advised of a jury verdict when an outstanding question from the jury has not been answered. [51] In R. v. Sit (1989), 47 C.C.C. (3d) 45 (Ont. C.A.), the jury sought further instructions on the combined operation of the definition of constructive murder and the provisions of s. 21(2) “where the second person might only be guilty of manslaughter”. As counsel were making submissions about the content of the answer to the jury’s question, the jury notified the trial judge that they no longer required an answer to the question and had reached a verdict. The trial judge summoned the jury to the courtroom and received their verdict. [52] On appeal, counsel for the appellant complained about the way in which the trial judge had dealt with the jury’s question. The report contains no reference of the precise nature of the argument raised. Cory J.A., who dissented on other grounds but expressed the unanimous view of the panel on this issue, held that the jury was entitled to withdraw its question without further explanation. The procedure followed by the trial judge, which involved not answering the withdrawn question but simply receiving the verdict, was proper: Sit, at pp. 57-58. [53] In R. v. Lavoie (1990), 107 N.B.R. (2d) 181 (N.B.C.A.), a deliberating jury sought further instructions on the fault elements in murder and manslaughter. As the trial judge was reading his proposed answer to the jury’s question to counsel, he received a note indicating that the jury had reached a verdict. Both counsel agreed that the judge should receive the jury’s verdict. The judge did so. [54] On appeal by the Crown from Lavoie’s acquittal on the principal charge of first degree murder (he was convicted of manslaughter), counsel argued that the trial judge should have answered the jury’s question immediately so that jurors would have had the benefit of those instructions during their deliberations. The New Brunswick Court of appeal held that the jury, in effect, had withdrawn their question and proceeded to reach their verdict. They were entitled to do so. The appeal was dismissed. [55] In R. v. Jones, 2011 ONCA 584, the trial judge had not formulated her response to a jury question about two photographic exhibits when informed that the jury had reached a verdict. She offered counsel the opportunity to consider their position about acceptance of the verdict before responding to the jury’s question. Both counsel agreed that the judge should accept the verdict without answering the jury’s question. When the jury were recalled, the trial judge said to them: Okay. Thank you. Have a seat. Thank you, members of the jury. We understand that you have reached a verdict. By that we also understand that you no longer needed the answer to the question that you had sent us. We were prepared with an answer just as we were getting your note. If we are wrong in that assumption, you should advise us. If you want some time to think about that, you may step outside and think about it. If we are not wrong in that assumption that you no longer needed the answer to the question in order to reach your verdict, then the foreperson should give the verdict to the CSO. Okay. Poll the jury. Okay. The Registrar will poll you now. The jury did not ask that its question be answered. It delivered its verdict. [56] On appeal, counsel for the appellant argued that the trial judge erred in accepting the jury’s verdict without first requiring the jury to hear the answer to its question. This court rejected that argument, which was contrary to the position that had been adopted by both counsel at trial. The court concluded in paragraphs 55 and 56: I do not agree with the appellant’s submission. This court observed in R. v. Pecoskie (2002), 170 O.A.C. 396, at para. 13: ‘As a general rule, it should be a very rare case indeed in which an appellate court would decide that a trial judge had committed a reversible error on a matter which was expressly considered and agreed to by both counsel and the trial judge.’ This is not one of those very rare cases. Indeed, I find it hard to see what the trial judge did wrong. She gave counsel an opportunity to consider what to do. She proceeded in the manner she did with their agreement. She gave the jury an opportunity to have its question answered before delivering its verdict. And, although the jury did not explicitly advise the trial judge it no longer needed its question answered – as the jury in Sit did – it did so implicitly by giving its verdict. [57] In R. v. Sahota, 2011 ONCA 679, deliberating jurors requested copies of the closing addresses of counsel. The trial judge told them that they should rely on their own recollections of the addresses because transcripts could not be provided. Crown counsel then persuaded the trial judge that the jurors could be told that they could listen to the addresses if they wished to do so. Before the judge could give the jurors this instruction, he learned that the jury had reached a verdict. [58] The trial judge recalled the jury. Before taking the verdict, the judge told the jury that, despite the absence of transcripts of the closing addresses, the court reporter could read back the closing addresses if the jury wanted to hear them. The trial judge asked the jury to retire to consider whether they wanted to hear the court reporter reread the closing addresses of counsel. The jury retired, then returned to the courtroom where they indicated that they no longer wished to hear the addresses and were prepared to return their verdict. The judge received the verdict. [59] The appellant argued that, because the jury had indicated that they had reached a verdict, the trial judge had erred in inviting them to listen to the addresses if they wished to do so before returning their verdict. This court disagreed in these terms in paragraph 9: The trial judge made it clear that the jury could listen to the closing addresses before reaching their verdict. They saw no need to do so. We will not speculate as to why they chose that course of action. In the end, before the jury returned its verdict, the jury understood that it could listen to the addresses if it wished to do so. The trial judge ultimately answered the jury’s request correctly. The timing of his answer did not result in any unfairness to the appellant. The Principles Applied [60] In the peculiar circumstances of this case, I would give effect to this ground of appeal. I do not say, however, that receiving a verdict in advance of responding to an outstanding question from a deliberating jury, without express confirmation that no answer to the question is required, requires the verdict rendered to be set aside in all cases. [61] It is helpful to begin with a consideration of the procedural steps that could be followed to avoid the result reached here. [62] The early stages of responding to questions from deliberating jurors are well-settled. Court staff deliver the written question from the jury in a sealed envelope to the trial judge. The trial judge reviews the question, directs that counsel be notified that the jury has a question, and arranges for a copy of the question to be provided to counsel for their review. Before reconvening court in the absence of the jury, the trial judge should consider, promptly and in a preliminary way, what should be said to the jury to provide a clear, comprehensive, correct, and timely response to their question. [63] When court is reconvened in the presence of all participants except the jury, the trial judge should read aloud the jury’s question, tell (or show) counsel his or her preliminary response, and invite submissions with a view to formulating a clear, comprehensive, correct, and timely response satisfactory to all parties. Depending upon the nature of the question and other circumstances, it may also be advisable for the trial judge to canvass with counsel the need for an immediate instruction to the jury to cease deliberations until the question can be answered. [64] When a clear, comprehensive, correct, and timely response has been formulated, the trial judge should have the jury return to the courtroom, read aloud their question and deliver the response. Nothing should be said or left unsaid to discourage further questions or elaboration on the response already given if the jury requires further assistance. The jury question should be filed as a lettered exhibit with the time of receipt and response endorsed on it. [65] Where a trial judge receives notice that a jury has reached a verdict before an outstanding question has been answered, at the very least where the notice does not include an express disclaimer by the jury of the need for the question to be answered and has not contravened any “cease deliberation” instruction, the trial judge should discuss with counsel whether the verdict should be received without response to the question. Apart from some exceptional cases discussed below, a prudent first step might be to recall the jury and say something like this: Members of the jury. You have asked a question. (Repeat question). I understand you have also reached a verdict. You are entitled to have your question answered before you give your verdict. I am able to answer your question now (or, specify). Do you want to have your question answered before you give your verdict? It is for you to say. You may retire, if you wish, to discuss among yourselves whether you require an answer to your question before you give your verdict or no longer require an answer. [66] In cases in which the jury’s question reflects a legal misapprehension, or raises the prospect that, absent further instruction, the jury may be under a misapprehension about a governing legal principle, the trial judge should provide the appropriate correct instruction and provide jurors with the opportunity to retire to reconsider whether they require further time for deliberations. [67] In this case, the trial judge should first have confirmed with the jury whether, in their view at least, they required an answer to their question and the opportunity for further discussions before they returned their verdict. [68] More importantly, however, the trial judge should have made it clear to the jury that they must attach no evidentiary significance to the appellant’s failure to call other members of the “Partners” to support his claim about the origins of the funds. Without an express instruction to this effect, there was a significant risk that the reasoning process of the jurors included attaching evidentiary significance to the appellant’s failure to adduce confirmatory evidence. Non-direction on this issue caused the appellant significant prejudice and warrants a new trial. [69] I would not give effect to either ground of appeal relating specifically to the proceeds count. The finding of guilt was not unreasonable and the jury was not misdirected on the essential elements of the proceeds offence. conclusion [70] For these reasons, I would allow the appeal from conviction, set aside the convictions, and order a new trial on all counts. Released: January 11, 2013 “JCM” “David Watt J.A.” “I agree J.C. MacPherson J.A.” “I agree Robert Armstrong J.A.”