R. v. Pan (R.W.); R. v. Sawyer (B.), (2001) 147 O.A.C. 1 (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 29, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 147 O.A.C. 1 (SCC);2001 SCC 42;[2001] 2 SCR 344;200 DLR (4th) 577;155 CCC (3d) 97;43 CR (5th) 203;[2001] SCJ No 44 (QL);147 OAC 1;270 NR 317;85 CRR (2d) 1

R. v. Pan (R.W.) (2001), 147 O.A.C. 1 (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: [2001] O.A.C. TBEd. JN.088

Rui Wen Pan (appellant) v. Her Majesty the Queen (respondent)

Bradley Sawyer (appellant) v. Her Majesty the Queen (respondent) and The Attorney General of Canada, The Attorney General of Quebec, The Attorney General of Manitoba, The Attorney General of British Columbia and The Criminal Lawyers' Association (Ontario) (interveners)

(27424; 27277; 2001 SCC 42)

Indexed As: R. v. Pan (R.W.); R. v. Sawyer (B.)

Supreme Court of Canada

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

June 29, 2001.

Summary:

R. v. Pan (R.W.):

The accused (Pan) was charged with first degree murder. The accused's first two trials were declared mistrials. The Attorney General decided to proceed with a third trial. The accused applied for a stay of proceedings and challenged the constitutional validity of s. 649 (the jury secrecy provisions) of the Criminal Code. The accused sought to call some, or all, of the twelve persons who sat as jurors at his second trial as witnesses on his stay application.

The Ontario Court (General Division), per Watt, J., in a threshold ruling held that s. 649 and the common law jury secrecy rule were constitutionally valid. He added that the evidence proposed to be elicited from the jurors could not be admitted. Subsequently, Watt, J., after hearing the merits of the application, refused to grant a stay of proceedings. The third trial ensued and the accused was convicted of first degree murder. The accused appealed.

On appeal, the accused sought to introduce fresh evidence of matters relating to the jury deliberations in his second trial to demonstrate that the trial judge erred in declaring a mistrial. This request again raised the issue of the constitutional validity of the common law and Criminal Code provision governing the admissibility of evidence relating to jury deliberations (s. 649). The accused also argued that Watt, J., erred in not granting a stay of proceedings because the trial judge at the second trial erred in declaring a mistrial where the jury had in fact reached a verdict and it was an abuse of process to proceed with a third trial against the accused considering that his first two trials had ended in successive mistrials.

The Ontario Court of Appeal, in a decision reported 120 O.A.C. 1, dismissed the appeal. The accused appealed again.

The Supreme Court of Canada dismissed the appeal. The court discussed in detail the common law rule respecting jury secrecy and held that the rule, as interpreted by the court, did not infringe ss. 7, 11(d) or 11(f) of the Charter. The court held that Watt, J., did not err in refusing to stay proceedings where the judge at the second trial did not act improperly in declaring a mistrial. The court held that the fresh evidence offered by the accused was not admissible because of the jury secrecy rule, and even if it was admissible, the evidence was not relevant to whether the judge at the second trial properly declared a mistrial nor would it support the accused's request for an acquittal or stay of proceedings.

R. v. Sawyer (B.)

The accused (Sawyer and a co-accused) were convicted of assault causing bodily harm. The accused appealed, attacking the constitutionality of the jury secrecy rules and seeking to tender fresh evidence of matters relating to the jury deliberations.

The Ontario Court of Appeal, in a decision reported 120 O.A.C. 114, for the reasons given by the court in R. v. Pan dismissed the application to admit fresh evidence and dismissed the appeal. Sawyer appealed again.

The Supreme Court of Canada dismissed the appeal. The court held that applying the common law rule of jury secrecy, as interpreted by the court, the evidence offered by the accused was clearly inadmissible.

Civil Rights - Topic 3146.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury secrecy - The Supreme Court of Canada held that the common law rule respecting jury secrecy, as interpreted by the court, did not infringe ss. 7, 11(d) or 11(f) of the Charter - The court found it unnecessary, in this appeal, to consider the constitutionality of s. 649 of the Criminal Code, which made it an offence for a juror to disclose proceedings of the jury - The court, however, discussed the relationship between s. 649 and the common law rule - The court opined that s. 649 was consistent with the common law rule, which itself met the constitutional requirements of fairness embodied in s. 7 - See paragraphs 79 to 90.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See Criminal Law - Topic 4633 ].

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - [See Criminal Law - Topic 4631 and Criminal Law - Topic 4633 ].

Criminal Law - Topic 120

General principles - Double jeopardy - General - [See Criminal Law - Topic 4631 and Criminal Law - Topic 4633 ].

Criminal Law - Topic 4306.1

Procedure - Jury - Disclosure of jury proceedings - The Supreme Court of Canada discussed generally the common law rule of jury secrecy (Lord Mansfield's rule) - See paragraphs 41 to 78 - The court concluded that "... a proper interpretation of the modern version of Lord Mansfield's rule is as follows: Statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors' minds emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict." - See paragraph 77.

Criminal Law - Topic 4306.1

Procedure - Jury - Disclosure of jury proceedings - The Supreme Court of Canada discussed the common law rule respecting jury secrecy - The court stated that the rules governing secrecy of jury deliberations do not operate in a vacuum, but in a larger context with the many other safeguards that ensure the integrity and reliability of verdicts in jury trials - The court discussed these other safeguards such as the power to set aside an unreasonable verdict, challenges for cause, the interaction between the judge and jury, the requirement of a unanimous verdict, etc. - See paragraphs 91 to 99.

Criminal Law - Topic 4306.1

Procedure - Jury - Disclosure of jury proceedings - [See Civil Rights - Topic 3146.1 ].

Criminal Law - Topic 4306.1

Procedure - Jury - Disclosure of jury proceedings - The accused's (Pan's) first two murder trials were declared mistrials - The accused sought a stay of a third trial, challenging the constitutional validity of the jury secrecy rule - The accused wanted to call jury members from his second trial as witnesses on his stay application - The motions judge rejected the constitutional challenge and held that no evidence from jurors could be admitted - The stay of proceedings was refused - The third trial ensued and the accused was convicted of first degree murder - The accused appealed again challenging the jury secrecy rules and seeking to admit evidence from the jury members from the second trial as fresh evidence - The Ontario Court of Appeal dismissed the appeal - The accused appealed again - The Supreme Court of Canada dismissed the appeal holding that the fresh evidence offered by the accused was not admissible because of the jury secrecy rule, and even if it was admissible, the evidence was not relevant to whether the judge at the second trial properly declared a mistrial nor would it support the accused's request for an acquittal or stay of proceedings - See paragraphs 1 to 129.

Criminal Law - Topic 4306.1

Procedure - Jury - Disclosure of jury proceedings - The accused (Sawyer) was convicted of assault causing bodily harm - He appealed and sought to adduce as fresh evidence an affidavit setting out the substance of a telephone conversation he had with one of the jurors after the verdict - The gist of the conversation was that the verdict was "eating her inside" and that the juror had been subjected to undue pressure in coming to the verdict - The Ontario Court of Appeal held that this evidence fell within the scope of the common law rule of jury secrecy and was inadmissible on appeal - The Supreme Court of Canada affirmed the decision - The court stated that applying the common law rule of jury secrecy, as interpreted by the court, the evidence offered by the accused was clearly inadmissible - See paragraphs 123 to 126.

Criminal Law - Topic 4324

Procedure - Jury - Discharge of jury - [See Criminal Law - Topic 4631 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused (Pan) appealed his first degree murder conviction, arguing that the jury charge on the issue of reasonable doubt was inadequate - The Ontario Court of Appeal examined the charge and determined that it was adequate - The accused appealed again - The Supreme Court of Canada dismissed the appeal - See paragraphs 127 and 128.

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - See Criminal Law - Topic 4633 ].

Criminal Law - Topic 4631

Procedure - Mistrials - General - The Supreme Court of Canada held that the power to discharge a jury under s. 653(1) of the Criminal Code and/or the common law power of a judge to declare a mistrial during or following the deliberations of the jury did not violate the protection against double jeopardy guaranteed by s. 7 of the Charter - See paragraphs 110, 111 and 129.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused's (Pan's) first two murder trials were declared mistrials - The accused sought a stay of a third trial without success - The third trial ensued and the accused was convicted of first degree murder - The accused appealed, arguing that there was an abuse of process because the motions judge acted improperly in declaring a mistrial at the second trial and, therefore, the third trial offended the principle against double jeopardy for which the appropriate remedy was a stay of proceedings - The Ontario Court of Appeal dismissed the appeal - The Supreme Court of Canada affirmed the decision, stating that the judge did not act improperly in declaring a mistrial at the second trial, therefore, the accused's submissions in support of a stay of proceedings, whether framed in terms of abuse of process, double jeopardy or s. 7 of the Charter were without merit - See paragraphs 112 to 121.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See fourth and fifth Criminal Law - Topic 4306.1 ].

Cases Noticed:

R. v. Dobson (1987), 22 O.A.C. 119; 38 C.C.C.(3d) 434 (C.A.), refd to. [para. 22].

R. v. Nash (1949), 94 C.C.C. 288 (N.B.C.A.), refd to. [para. 24].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; 32 C.R.R. 269; 40 C.C.C.(3d) 481; [1988] 4 W.W.R. 97, refd to. [para. 29].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 109 D.L.R.(4th) 97 (C.A.), refd to. [para. 40].

R. v. R.M.G., [1996] 3 S.C.R. 362; 202 N.R. 1; 81 B.C.A.C. 81; 132 W.A.C. 81; 110 C.C.C.(3d) 26, refd to. [para. 41].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 63 C.C.C.(3d) 193, refd to. [para. 42].

MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 45].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 45].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, refd to. [para. 45].

R. v. Endicott, [1993] 3 S.C.R. 155; 156 N.R. 321; 141 A.R. 353; 46 W.A.C. 353; 12 Alta. L.R.(3d) 1; 83 C.C.C.(3d) 462, refd to. [para. 45].

R. v. Dyson, [1972] 1 O.R. 744 (H.C.), refd to. [para. 47].

Vaise v. Delaval (1785), 1 T.R. 11; 99 E.R. 944 (K.B.), refd to. [para. 48].

Danis v. Saumure, [1956] S.C.R. 403, refd to. [para. 48].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 52].

R. v. Bean, [1991] Crim. L.R. 843 (C.A.), refd to. [para. 54].

R. v. Putnam, Lyon and Taylor (1991), 93 Cr. App. R. 281 (C.A.), refd to. [para. 55].

R. v. Brandon (1969), 53 Cr. App. R. 466 (C.A.), refd to. [para. 55].

R. v. McCluskey (1993), 98 Cr. App. R. 216 (C.A.), refd to. [para. 55].

R. v. Thompson, [1962] 1 All E.R. 65 (C.C.A.), refd to. [para. 56].

R. v. Perras (1974), 18 C.C.C.(2d) 47 (Sask. C.A.), refd to. [para. 57].

R. v. Mercier (1973), 12 C.C.C.(2d) 377 (Que. C.A.), refd to. [para. 57].

R. v. Ryan (1951), 13 C.R. 363 (B.C.C.A.), refd to. [para. 57].

Wilson v. R. (1993), 85 Man.R.(2d) 250; 41 W.A.C. 250; 78 C.C.C.(3d) 568 (C.A.), refd to. [para. 58].

R. v. Zacharias (1987), 39 C.C.C.(3d) 280 (B.C.C.A.), refd to. [para. 65].

Tanner v. United States (1987), 483 U.S. 107, refd to. [para. 71].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 85].

R. v. Armstrong, [1922] All E.R. 153 (C.A.), refd to. [para. 89].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 93].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 261, refd to. [para. 93].

R. v. Molodowic (A.J.), [2000] 1 S.C.R. 420; 252 N.R. 250; 145 Man.R.(2d) 201; 218 W.A.C. 201, refd to. [para. 93].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 143 C.C.C.(3d) 46, refd to. [para. 93].

R. v. Sophonow (1986), 38 Man.R.(2d) 198; 25 C.C.C.(3d) 415 (C.A.), refd to. [para. 96].

R. v. Hahn (D.) (1995), 62 B.C.A.C. 6; 103 W.A.C. 6 (C.A.), refd to. [para. 96].

R. v. Taillefer (1995), 100 C.C.C.(3d) 1 (Que. C.A.), refd to. [para. 96].

R. v. Lessard (1992), 74 C.C.C.(3d) 552 (Que. C.A.), refd to. [para. 96].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 104].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 104].

R. v. Beauchamp (A.), [2000] 2 S.C.R. 720; 262 N.R. 119, refd to. [para. 104].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379, refd to. [para. 104].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338, refd to. [para. 104].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289, refd to. [para. 112].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 21 C.C.C.(3d) 7, refd to. [para. 112].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 112].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 112].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 112].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201; 133 C.C.C.(3d) 257, refd to. [para. 112].

States v. Perez (1824), 22 U.S. 579, refd to. [para. 115].

United States v. Sanford (1976), 429 U.S. 14, refd to. [para. 115].

Richardson v. United States (1984), 468 U.S. 317, refd to. [para. 115].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d), sect. 11(f) [para. 20].

Criminal Code, R.S.C. 1985, c. C-46, sect. 139, sect. 644, sect. 649, sect. 653 [para. 20].

Authors and Works Noticed:

Canada, Law Reform Commission, Report 16 (1982), generally [paras. 72, 101].

Canada, Law Reform Commission, The Jury in Criminal Trials, Working Paper No. 27 (1980), p. 19 [para. 99].

Chopra, Sonia R., and Ogloff, James R.P., Evaluating Jury Secrecy: Implications for Academic Research and Juror Stress (2000), 44 Crim. L.Q. 190, generally [para. 101].

Coke on Littleton (1789), vol. 2, para. 227b [para. 47].

Pound, Roscoe, Readings on the History and Systems of the Common Law (2nd Ed. 1913), pp. 123, 124 [para. 99].

Quinlan, Paul, Secrecy of Jury Deliberations - Is the Cost Too High? (1993), 22 C.R.(4th) 127, generally [para. 101].

Wigmore, John Henry, Evidence in Trials at Common Law (1961), vol. 8, p. 696, §2352 [para. 48].

Counsel:

Keith E. Wright and Richard Litkowski, for the appellant, Rui Wen Pan;

P. Andras Schreck and Shayne G. Kert, for the appellant, Bradley Sawyer;

Renee M. Pomerance and Catherine Cooper, for the respondent;

George Dolhai and S.R. Fainstein, Q.C., for the intervener, the Attorney General of Canada;

Marie-Claude Gilbert and Gilles Laporte, for the intervener, the Attorney General of Quebec;

Holly D. Penner, for the intervener, the Attorney General of Manitoba;

William F. Ehrcke, Q.C., and Mary Ainslie, for the intervener, the Attorney General of British Columbia;

Melvyn Green and Benson Cowan, for the intervener, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Keith E. Wright, Toronto, Ontario, for the appellant, Rui Wen Pan.

Buhr & Kert, Toronto; Pinkofsky Lockyer, Toronto, Ontario, for the appellant, Bradley Sawyer;

The Attorney General for Ontario, Toronto, Ontario, for the respondent;

The Department of Justice, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

The Department of Justice, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba;

The Department of Justice, Sainte-Foy, Quebec, for the intervener, the Attorney General of Quebec;

The Ministry of the Attorney General, Vancouver, British Columbia, for the intervener, the Attorney General of British Columbia;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

These appeals were heard on December 8, 2000, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On June 29, 2001, the judgment of the Supreme Court of Canada, was delivered in both official languages by Arbour, J.