Motion for mistrial or stay of proceedings. Two accused charged with possession of heroin for purpose of trafficking. Jury reached verdict that accused were both guilty; jury was discharged and accused were remanded for sentencing. Shortly afterward Court Services Officer assigned to jury found document in jury room in plain view when cleaning up. Document was sitting on top of binder used by one juror for notes. Document contained excerpt from online article criticizing American jury’s acquittal of Casey Anthony of murder of her daughter, accusing juries of “ignorance, failure to use common sense, and inability, or disinclination to properly weigh evidence”. Subsequent paragraphs were taken from model jury instructions published by Canadian Judicial Council online. Charge to jury which court delivered to jury in writing, was based upon Ontario Specimen Jury Instructions (Criminal) as modified by trial judge. One accused sought mistrial; other sought inquiry to create record in timely fashion for consideration on appeal. Trial judge generally has no jurisdiction to hear motion for mistrial once jury has been discharged, or to enter stay of proceedings. But even if functus trial judge could not interfere with verdict, inquiry would create a record for court’s consideration on appeal. Trial judge does have jurisdiction to conduct post-verdict inquiry into extrinsic matters but not on matters intrinsic to jury’s deliberative process. Whether case rose to level of miscarriage of justice would be for Court of Appeal to decide. Given that at least one juror was conducting independent legal research and bringing it into jury room, inquiry warranted into whether other extrinsic research was undertaken, and if so, whether it was shared with other jurors. Questions for jurors could be formulated to avoid violating jury secrecy rule. It was necessary to proceed with an inquiry.
R. v. Bains (Feb. 12, 2013, Ont. S.C.J., F. Dawson J., File No. CRIM J(F) 1423/11) 105 W.C.B. (2d) 728.