Juries are a fundamental part of our criminal justice system. Trial judges and appellate courts should treat lightly, it at all, when they purport to speculate about the possible impact errors or omissions may have had upon a jury. In the recent case of R v Sahota, 2011 ONCA 679 the Court of Appeal refused to engage in such speculation.
Jaswinder Sahota was charged with offences relating to the discovery of heroine in a suitcase he possessed as he entered into Canada. He was tried before a jury. During deliberations the jury had a question; they asked if they could have transcripts of counsel's closing addresses. The trial judge, with the agreement of both counsel, advised they jury they could not and should rely upon their collective memories.
The next morning the Crown brought to the attention of the trial judge cases which suggested the jury should have been told they could have listened to the closing addresses of counsel. Despite an objection by defence the trial judge intended to advise the jury of this option. The jury, however, advised it had come to a decision. The trial judge brought in the jury and advised them that they had the option to listen to the closing addresses before delivering their decision. After considering this the jury indicated it was still prepared to deliver its decision and it did, finding Sahota guilty.
On appeal the court noted that the trial judge erred and should have let the jury listen to the closing addresses. The Court of Appeal, in dismissing the appeal, offered the following:
The trial judge made it clear that the jury could listen to the closing addresses before reaching their verdict. They saw no need to do so. We will not speculate as to why they chose that course of action. In the end, before the jury returned its verdict, the jury understood that it could listen to the addresses if it wished to do so. The trial judge ultimately answered the jury’s request correctly. The timing of his answer did not result in any unfairness to the appellant [para 9].