Criminal jury decisions not mere majority rule

R. v. Vivian, 2012 ONCA 324 is a good source for the principle that a judge must be scrupulous not to suggest a juror should be swayed by mere numbers to change her mind about guilt or innocence:

[55]       On the appellant's second point, the starting point is Martin J.A.'s caution in R. v. Littlejohn (1978), 41 C.C.C. (2d) 161 (Ont. C.A.), at p. 168:

The trial Judge equally must avoid the use of language which is likely to convey to a juror that, despite, his own doubts, genuinely entertained, he is, none the less, entitled to give way and agree with the majority of his colleagues in the interest of achieving unanimity.

[56]       In a similar vein, in R.M.G. at para. 40, Cory J. stated that "it would be preferable for a trial judge to avoid putting the situation in confrontational terms of opposing sides."

[57]       With respect, I do not think that the trial judge heeded these cautions.  In his third exhortation, he said that further deliberations of only 90 minutes after the second exhortation are not acceptable "because the one juror who disagrees with the rest of you clearly had an incorrect understanding of the onus on the Crown to prove its case beyond a reasonable doubt."  In his third exhortation, the trial judge went on to state that it was "important for the one juror, with the assistance of the rest of you, to disabuse her mind of her erroneous understanding of the burden on the Crown, to firmly fix her mind on a correct understanding of it, and to review the entire case."

[58]       In my view, the likely interpretation of this by all members of the jury is fairly clear: juror No. 11 is wrong in her understanding of the crucial legal principle in this trial; the other jurors have a proper understanding of the principle; juror No. 11 must "disabuse her mind" of her error; and the other jurors should assist her in doing this.  Since the court knew from a previous note that the tentative vote was 11-1, with only juror No. 11 leaning towards acquittal, the language chosen by the trial judge in his third exhortation, read in a common sense way, did pit the majority and minority against each other.  The trial judge was saying, quite bluntly, that 11 jurors were right and juror No. 11 was wrong.