R. v. Burke (H.P.), (2002) 290 N.R. 71 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 21, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 290 N.R. 71 (SCC);2002 SCC 55;61 OR (3d) 256;164 CCC (3d) 385;2 CR (6th) 1;[2002] CarswellOnt 1970;290 NR 71;160 OAC 271;[2002] 2 SCR 857;[2002] SCJ No 56 (QL);53 WCB (2d) 300;213 DLR (4th) 234;JE 2002-1232

R. v. Burke (H.P.) (2002), 290 N.R. 71 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. JN.060

Howard Burke (appellant) v. Her Majesty the Queen (respondent)

(28546; 2002 SCC 55; 2002 CSC 55)

Indexed As: R. v. Burke (H.P.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

June 21, 2002.

Summary:

The accused was tried for attempted mur­der by a judge and jury. When the jury foreperson pronounced the verdict, the trial judge, the registrar, defence counsel and the Crown heard "not guilty as charged". The trial judge discharged the jury and entered an acquittal. Within minutes, a court official informed the trial judge that an incorrect verdict might have been recorded. The trial judge reconvened the jury and conducted an inquiry into the verdict that was delivered in court. The trial judge held that he recorded the wrong verdict and corrected the record­ing of the verdict to guilty (see 45 O.T.C. 399). Subsequently, the accused was sen­tenced to 12.5 years' imprisonment. The accused appealed his conviction and sen­tence.

The Ontario Court of Appeal, Goudge, J.A., dissenting, in a decision reported at 143 O.A.C. 286, dismissed the appeal. The ac­cused appealed his conviction.

The Supreme Court of Canada, McLachlin, C.J.C., and L'Heureux-Dubé, Gonthier and Bastarache, JJ., dissenting, allowed the appeal and ordered a new trial.

Criminal Law - Topic 4331

Procedure - Jury - General - Verdicts - Polling of jury - The Supreme Court of Canada stated that "Polling the jury is an optional safeguard designed to ensure the true unanimity of the verdict. Merely asking the jurors to assent or dissent with 'the verdict as announced' does not ensure that each juror actively confirms the ver­dict and the unanimity of the verdict. Where polling is requested, the procedure for polling should be for the court clerk to ask each juror to repeat the verdict that the foreman has announced, or for the court clerk to repeat the verdict to each juror and ask if he or she agrees." - See paragraph 78.

Criminal Law - Topic 4333

Procedure - Jury - General - Verdicts - Reconsideration or correction of - The Supreme Court of Canada stated that after a criminal jury had been discharged, the trial judge was functus officio and lacked jurisdiction to reconvene the jury and inquire into an alleged error in the verdict - However, an exception to this general rule existed where the error did not require the jury to reconsider its verdict - In such circumstances, the trial judge had jurisdic­tion to conduct an inquiry into the error to determine whether there was a reasonable apprehension of bias - In making this determination, the trial judge had to con­sider all relevant circumstances - Dispersal of the jury was a significant circumstance -Where a judge concluded that there was a reasonable apprehension of bias, the ver­dict could not be corrected and the trial judge should order a mistrial if it was necessary to prevent a miscarriage of justice - If a mistrial was not necessary, the verdict should be upheld - However, where there was no reasonable apprehen­sion of bias, the trial judge had to correct the verdict - See paragraphs 41 to 77.

Criminal Law - Topic 4333

Procedure - Jury - General - Verdicts - Reconsideration or correction of - The accused was tried for attempted murder - When the jury foreperson pronounced the verdict, the trial judge, the registrar and both counsel heard "not guilty" - The trial judge discharged the jury and entered an acquittal - Within minutes, a court official informed the trial judge that an incorrect verdict might have been recorded - The trial judge reconvened the jury the next day and conducted an inquiry into the verdict that had been delivered - The jurors testified that they had found the accused guilty and they had not been influenced since the original verdict - The trial judge held that he recorded the wrong verdict and corrected the recording of the verdict -The Supreme Court of Canada ordered a new trial - A reasonable apprehension of bias was raised - The elapsed time between the recorded verdict and the jury's recon­vening was substantial - The accused had been released - The jury's dispersal fol­lowing its discharge was extensive - Jurors were exposed to public reaction and poten­tially prejudicial media coverage - There­fore, the trial judge lacked jurisdiction to correct the verdict - He should have de­clared a mistrial to prevent a miscarriage of justice - See paragraphs 78 to 94.

Criminal Law - Topic 4333

Procedure - Jury - General - Verdicts - Reconsideration or correction of - The Supreme Court of Canada discussed a trial judge's jurisdiction to correct an error in a jury's verdict - The court stated that "'Cle­rical errors' or 'accidental slips', as those terms are commonly understood, are ad­ministrative and may be corrected by the judge without recalling the jury. ... These slips would be minor, such as correcting dates and duties of a similar nature." - See paragraph 54.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The Supreme Court of Canada stated that where a trial judge concluded that there was an error in the jury's verdict that could not be corrected because of a reason­able apprehension of bias on the part of the jury, the trial judge had the discretion to order a mistrial - In declaring a mistrial, the trial judge had to determine whether a mistrial was needed to prevent a miscar­riage of justice - This determination re­quired an examination of the surrounding circumstances - "Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balan­ced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice." - See paragraphs 74 and 75.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See first and second Criminal Law - Topic 4333 ].

Criminal Law - Topic 4640

Procedure - Mistrials - Jury trials - Juris­diction of judge to grant - [See first Crim­inal Law - Topic 4633 ].

Cases Noticed:

R. v. Head, [1986] 2 S.C.R. 684; 70 N.R. 364, consd. [paras. 3, 23, 96].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [paras. 3, 61].

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [paras. 3, 61].

R. v. Andrews (1986), 82 Cr. App. Rep. 148 (C.A.), refd to. [paras. 4, 51].

Wisconsin (State) v. Williquette (1995), 526 N.W.2d 144 (Wis.), refd to. [para. 5].

R. v. Cinous (J.) (2002), 285 N.R. 1 (S.C.C.), refd to. [para. 14].

R. v. Vodden (1853), Dears. 229; 169 E.R. 706, refd to. [para. 51].

R. v. Cefia (1979), 21 S.A.S.R. 171 (S.C.), refd to. [para. 51].

R. v. Follen, [1994] Crim. L.R. 225, refd to. [para. 51].

R. v. Loumoli, [1995] 2 N.Z.L.R. 656 (C.A.), refd to. [para. 51].

R. v. Maloney, [1996] 2 Cr. App. Rep. 303 (C.A.), refd to. [para. 51].

R. v. Aylott, [1996] 2 Cr. App. Rep. 169 (C.A.), refd to. [para. 51].

People v. Powell (1950), 221 P.2d 117 (Cal. Ct. App.), refd to. [para. 51].

New Jersey (State) v. Brandenburg (1956), 120 A.2d 59 (N.J. Co. Ct.), refd to. [para. 51].

Louisiana (State) v. Fornea (1962), 140 So.2d 381 (La.), refd to. [para. 51].

Commonwealth v. Brown (1975), 323 N.E.2d 902 (Mass.), refd to. [para. 51].

Washington (State) v. Edwards (1976), 552 P.2d 1095 (Wash. Ct. App.), refd to. [para. 51].

Webber v. Texas (State) (1983), 652 S.W.2d 781 (Tex. Cr. App.), refd to. [para. 51].

Burchett v. Commonwealth (1987), 734 S.W.2d 818 (Ky. Ct. App.), refd to. [para. 51].

People v. McNeeley (1991), 575 N.E.2d 926 (Ill. App. Ct.), refd to. [para. 51].

South Carolina (State) v. Myers (1995), 459 S.E.2d 304 (S.C.), refd to. [para. 51].

Montanez v. People (1998), 966 P.2d 1035 (Colo.), refd to. [para. 51].

Tennessee (State) v. Green (1999), 995 S.W.2d 591 (Tenn. Crim. App.), refd to. [para. 51].

Martin v. Mississippi (State) (1998), 732 So.2d 847 (Miss.), refd to. [para. 53].

United States of America v. Dotson (1987), 817 F.2d 1127, modified upon rehearing (1987), 821 F.2d 1034 (5th Cir.), refd to. [para. 54].

Bricmont v. Mathieu (1987), 7 Q.A.C. 199 (C.A.), refd to. [para. 54].

Chandler v. Alberta Association of Ar­chitects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 54].

People v. Rushin (1971), 194 N.W.2d 718 (Mich. Ct. App.), refd to. [para. 58].

R. v. Budai (M.K.) et al. (2001), 153 B.C.A.C. 98; 251 W.A.C. 98 (C.A.), refd to. [para. 60].

R. v. Cameron (1991), 44 O.A.C. 278; 64 C.C.C.(3d) 96 (C.A.), leave to appeal dismissed, [1991] 3 S.C.R. x; 137 N.R. 77; 55 O.A.C. 395, refd to. [para. 60].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 65].

R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256 (C.A.), refd to. [para. 67].

R. v. Taillefer (B.) (1995), 100 C.C.C.(3d) 1; 40 C.R.(4th) 287 (Que. C.A.), leave to appeal refused [1996] 1 S.C.R. x; 199 N.R. 80, refd to. [para. 74].

R. v. Lessard, Michaud et Pelletier, [1992] R.J.Q. 1205; 49 Q.A.C. 119; 74 C.C.C.(3d) 552 (C.A.), leave to appeal refused, [1992] 3 S.C.R. vii; 145 N.R. 390; 55 Q.A.C. 77, refd to. [para. 74].

R. v. Woods (1989), 32 O.A.C. 122; 49 C.C.C.(3d) 20 (C.A.), leave to appeal refused, [1992] 3 S.C.R. vii; 127 N.R. 239; 44 O.A.C. 80, refd to. [para. 74].

R. v. Martineau (1986), 33 C.C.C.(3d) 573 (Que. C.A.), refd to. [para. 74].

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122; 97 C.C.C.(3d) 126 (C.A.), refd to. [para. 74].

R. v. L.A.T. (1993), 64 O.A.C. 380; 14 O.R.(3d) 378; 84 C.C.C.(3d) 90 (C.A.), refd to. [para. 74].

R. v. Rondeau (P.A.J.), [1998] O.T.C. Uned. 767 (Gen. Div.), refd to. [para. 74].

Authors and Works Noticed:

Maric, Vaso, Annotation to R. v. Burke (2001), 41 C.R.(5th) 135, p. 136 [paras. 13, 48]; 137 [para. 48].

Wigmore, John Henry, Evidence in Trials at Common Law (1961), vol. 8, para. 2355 [para. 4].

Counsel:

David M. Tanovich, for the appellant;

Susan G. Ficek, for the respondent.

Solicitors of Record:

Pinkofsky Lockyer, Toronto, Ontario, for the appellant;

Attorney General for Ontario, Toronto, Ontario, for the respondent.

This appeal was heard on March 12, 2002, by McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada, was delivered in both official languages on June 21, 2002, and the fol-lowing opinions were filed:

L'Heureux-Dubé, J., dissenting (McLach­lin, C.J.C., Gonthier and Bastarache, JJ., concurring) - see paragraphs 1 to 16;

Major, J. (Iacobucci, Binnie and LeBel, JJ., concurring) - see paragraphs 17 to 94;

Arbour, J. - see paragraphs 95 to 102.