Ac cused was charged with possession of cocaine for purpose of trafficking, and for importing and trafficking cocaine. Accused’s first trial before judge and jury ended in mistrial when jury could not arrive at verdict. Crown re-prosecuted again before judge and jury. At second trial jury convicted accused on possession and importing charges but it failed to arrive at verdict on trafficking charge. During deliberations jury asked, if they found accused guilty of importing cocaine, if they had to find him guilty of trafficking. Trial judge discussed question with both counsel and he then told jury that if they found accused guilty of importing they did not have to find him guilty of trafficking. Jury was entitled to take different views of evidence so that they could convict accused on one charge but not on other charge. Accused appealed conviction. Appeal allowed. Effect of answer was to tell jury, for first time, that evidence could support different verdicts on importing and trafficking charges. This conflicted with judge’s earlier repeated instructions regarding central issue in this case and legal consequences that would flow from jury’s determination of that issue. Judge provided no elaboration or guidance to jury on this alternate and late-breaking theory of case and he did not relate it to evidence or to parties’ positions at trial. Judge also failed to caution jury against engaging in impermissible verdict compromise based on expediency, frustration or desire to resolve case. It was dangerous and inappropriate to leave jury entirely adrift to assess alternate and conflicting bases of culpability on its own, without any reference to evidence and parties’ positions. Of particular concern, judge failed to provide any explanation to jury for conflict between his earlier instructions and his response to their question. New trial was necessary because judge’s incomplete and unhelpful response to question compromised trial fairness and may have led to unsafe verdicts.
R. v. Lapps (Feb. 23, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C59288) 128 W.C.B. (2d) 315.