Following the jury charge and any re-charge, the Code permits a trial judge to allow the jury to separate rather than commence deliberations immediately, and in this event a publication ban is imposed.224Once the jury begins its deliberations it is sequestered (isolated in a way to keep from it any potential sources of information). At this stage the jury is essentially to be left alone until it has reached a verdict, or until
it is apparent that it will not be able to do so. The verdict, whether for conviction or acquittal, must be unanimous. If the jury is ultimately unable to reach unanimity then, as will be pursued below, section 653 of the Code permits the trial judge to discharge the jury and order a new trial.
The jury is not completely isolated, in the sense that it is able to initiate contact with the judge. When a judge receives a non-administrative inquiry from the jury, the judge is to "(a) read the communication in open court in the presence of all parties; (b) give counsel an opportunity to make submissions in open court prior to dealing with the question; (c) answer the question for the jury in open court in the presence of all parties."225Such requests can concern a variety of things.
Juries sometimes request copies of the Criminal Code, or portions of it, for example. A trial judge is permitted to give short sections of the Code to the jury, but must be careful not to prejudice the outcome of the trial by doing so.226It is likely to be a mistake to give the Code provisions to the jury and leave them to work out the meaning for themselves, but it could be acceptable to provide photocopies of some sections if it is accompanied by an explanation.227However, where giving the jury sections of the Code will also involve a complete and lengthy re-charge on the issues relating to those sections, it will usually be better to see whether the jury’s concerns can be addressed in some other fashion. A trial judge might be better advised to ask the jury to be more specific about the particular concern that motivates the request, and then try to answer that concern. Similarly, re-reading the sections of the Code and explaining them to the jury might be a sufficient response to the request.228Juries can also take other material into the jury room in some cases, such as transcripts of wiretaps or chronologies prepared by counsel to help organize material. However, the caselaw is not consistent on when this is advisable or permissible and whether juries should be required to re-hear evidence in its entirety.229
Similar considerations arise if the jury requests transcripts of the trial judge’s instructions or of the argument by counsel. It is not necessarily an error to provide them to the jury, even to provide the argument of only one side if that is all that was requested, though the better choice might be to provide both counsel’s argument nonetheless.230
Distributing transcripts raises the likelihood of error, particularly if the jury receives only part of the judge’s instructions.231The Court has noted that judges must be sure that the jury receives the entire charge in clear and legible form and that all members of the jury are capable of reading it, and has observed that "it may well be that the dangers associated with such an approach outweigh the potential benefits."232Nonetheless lower courts have encouraged the careful use of written versions of the judge’s charge, on the basis that doing so can increase juror comprehension. Some judges provide the entire charge while others, hoping to reduce the volume of material, do not include the summary of the evidence or of counsel’s arguments. In some cases there can be the fear that providing everything will bury the critical part of the instructions and thus mislead the jury. No single approach is suitable for all cases.233In deciding whether to provide a written version of the entire charge, the Ontario Court of Appeal has suggested that a trial judge should consider many factors:
i. the length of the trial proceedings, including the period between the conclusion of the evidence and the charge;
ii. the volume of evidentiary references contained in the charge, bearing in mind the principles governing evidentiary review;
iii. the danger of diluting the effect of the instructions on the governing legal principles by their submersion in a protracted evidentiary review;
iv. the positions of counsel;
v. the issues to be resolved by the jury in their deliberations;
vi. the danger of simply overburdening the jurors by the volume of the instructions;
vii. whether jurors took notes of the evidence adduced at trial;
viii. the risk that jurors will consider the evidentiary references to be exhaustive of the evidence they should consider in reaching their decision; and
ix. any other relevant circumstances.
It also stressed that jurors should be reminded to consider all of the evidence, not just that to which reference is made in the instructions, and that their recollection of the evidence is the most important criterion, rather than any views the judge may have expressed about factual issues.234The same types of considerations govern when the jury asks to re-hear evidence or asks for clarification of the legal issues during its deliberations. A trial judge has discretion and is not obliged to answer every request from the jury precisely as asked. So, for example, where a jury requests transcripts of the evidence of all the witnesses shortly after commencing deliberations, a trial judge will not err by refusing this request. However, since questions from the jury must be given particular consideration, it is not sufficient to simply refuse (as noted above at Section D(8)(b)). A trial judge should consult with counsel on how to respond, and propose alternatives or ask the jury to deliberate further to decide more specifically what their concern is, for example.235
Where the jury’s question is unclear, the judge should request clarification in order to be able to answer it appropriately.236Other considerations arise when the jury is not seeking a review of the evidence at trial but is actually seeking additional evidence. The basic rule is that this is simply not permitted. No additional information that did not come out at trial can be given to the jury once they have begun deliberating, and it might be necessary to tell the jury that there was no evidence led on the point in question.237So, for example, a jury cannot have a demonstration that was conducted at trial repeated for them after the close of both cases.238Nor should the jury have ma-
terial that, although it was used at trial, did not form part of the evidence.239However, once again a refusal of the jury’s request might well be an error, and the trial judge should try to determine whether the jury’s concern can be satisfied in some other way.
Requests from jurors sometimes do not concern the law or the evidence, but the jury’s own deliberations or concerns by one juror about the behaviour of another juror. In R. v. Côté, for example, two jurors sent notes to the trial judge that questioned the honesty of two other jurors. The judge consulted with counsel on how to proceed, but without their agreement, and in the absence of the accused, met with the two jurors who had complained and decided that the jury’s deliberations could continue. The Court held that the judge erred by meeting with the jurors in the absence of the accused. At any point where the accused’s vital interests are at issue the accused is entitled to be present. Had the trial judge received communications that might have concerned purely administrative questions, it would have been...