R. v. Ellis (M.), 2013 ONCA 9

• Judge: MacPherson, Armstrong and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 04, 2012
• Jurisdiction: Ontario
• Citations: 2013 ONCA 9;(2013), 300 O.A.C. 191 (CA)

R. v. Ellis (M.) (2013), 300 O.A.C. 191 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.002

Her Majesty the Queen (respondent) v. Maurice Ellis (appellant)

(C53276; 2013 ONCA 9)

Indexed As: R. v. Ellis (M.)

Ontario Court of Appeal

MacPherson, Armstrong and Watt, JJ.A.

January 11, 2013.

Summary:

At a criminal trial the jurors asked a question. The judge asked counsel for submissions. Before the judge had settled on her response, the jury indicated that they had reached a verdict. Without an inquiry as to whether the jury still required an answer to their question, the judge took the jury's verdicts finding the accused guilty on all three counts. The accused appealed, arguing 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 that course, the appellant contended, was fatal to the validity of his convictions.

The Ontario Court of Appeal agreed with the accused that, in the circumstances of this case, the trial judge's failure to answer the jury's question before receiving their verdict required that the convictions be set aside and a new trial ordered on all counts.

Criminal Law - Topic 4336.5

Procedure - Jury - The law - Questions by jury - At a criminal trial, the jurors asked a question relating to the evidentiary significance of the failure of both parties to call certain witnesses - The judge asked counsel for submissions - Before the judge answered, the jury indicated that they had reached a verdict - The judge took the jury's verdicts finding the accused guilty without answering the question - The accused appealed - The Ontario Court of Appeal allowed the appeal - In the circumstances of this case, the trial judge's failure to answer the jury's question before receiving their verdict required that the convictions be quashed and a new trial be held - The court cautioned that it was not saying that this had to be the result in every such situation and outlined a procedure that could be used to avoid the result here - See paragraphs 22 to 70.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 40].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 40].

Lemay v. R., [1952] 1 S.C.R. 232, refd to. [para. 44].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 44].

R. v. Lapensee (C.R.) (2009), 254 O.A.C. 154; 99 O.R.(3d) 501; 2009 ONCA 646, refd to. [para. 48].

R. v. Rooke (1988), 40 C.C.C.(3d) 484 (B.C.C.A.), refd to. [para. 48].

R. v. Zehr (1980), 54 C.C.C.(2d) 65 (Ont. C.A.), refd to. [para. 49].

R. v. Sit (1989), 31 O.A.C. 21; 47 C.C.C.(3d) 45 (C.A.), refd to. [para. 51].

R. v. Lavoie (1990), 107 N.B.R.(2d) 181; 267 A.P.R. 181 (C.A.), refd to. [para. 53].

R. v. Jones (A.) (2011), 283 O.A.C. 219; 2011 ONCA 584, refd to. [para. 55].

R. v. Sahota (J.), [2011] O.A.C. Uned. 599; 2011 ONCA 679, refd to. [para. 57].

Authors and Works Noticed:

McCormick on Evidence (6th Ed. 2006), vol. 2, para. 264 [para. 46].

Wigmore on Evidence (Chadbourn Rev.) (3rd Ed. 1979), vol. 2, para. 290 [para. 47].

Counsel:

Russell Silverstein, for the appellant;

Brian G. Puddington, for the respondent.

This appeal was heard on September 4, 2012, before MacPherson, Armstrong and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Watt, J.A., on January 11, 2013.