SUPREME
COURT OF CANADA
Between:
Ibrahim
Yumnu
Appellant
and
Her
Majesty the Queen
Respondent
-
and -
Canadian
Civil Liberties Association, British Columbia Civil Liberties Association,
Ontario Crown Attorneys’ Association, Information and Privacy Commissioner of
Ontario, David Asper Centre for Constitutional Rights and Criminal Lawyers’
Association
Interveners
And
Between:
Vinicio
Cardoso
Appellant
and
Her
Majesty the Queen
Respondent
-
and -
Canadian
Civil Liberties Association, British Columbia Civil Liberties Asssociation,
Ontario Crown Attorneys’ Association, Information and Privacy Commissioner of
Ontario, David Asper Centre for Constitutional Rights and Criminal Lawyers’
Association
Interveners
And
Between:
Tung
Chi Duong
Appellant
and
Her
Majesty the Queen
Respondent
-
and -
Canadian
Civil Liberties Association, British Columbia Civil Liberties Association,
Ontario Crown Attorneys’ Association, Information and Privacy Commissioner of
Ontario,
David Asper Centre for Constitutional Rights, Criminal Lawyers’ Association
and
Attorney General of Alberta
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 90)
|
Moldaver J. (McLachlin C.J. and LeBel,
Deschamps, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ. concurring)
|
R. v. Yumnu, 2012 SCC 73,
[2012] 3 S.C.R. 777
Ibrahim Yumnu Appellant
v.
Her Majesty The Queen Respondent
and
Canadian Civil Liberties Association,
British Columbia
Civil Liberties Association, Ontario
Crown Attorneys’
Association, Information and Privacy
Commissioner of
Ontario, David Asper Centre for
Constitutional Rights
and Criminal
Lawyers’ Association Interveners
‑ and -
Vinicio Cardoso Appellant
v.
Her Majesty The Queen Respondent
and
Canadian Civil Liberties Association,
British Columbia
Civil Liberties Association, Ontario
Crown Attorneys’
Association, Information and Privacy
Commissioner of
Ontario, David Asper Centre for
Constitutional Rights
and Criminal
Lawyers’ Association Interveners
‑ and ‑
Tung Chi Duong Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Alberta, Canadian
Civil Liberties Association,
British Columbia Civil Liberties
Association, Ontario Crown
Attorneys’ Association, Information and
Privacy Commissioner
of Ontario, David Asper Centre for
Constitutional Rights and
Criminal Lawyers’ Association
Interveners
Indexed as: R. v. Yumnu
2012 SCC 73
File Nos.: 34090, 34091, 34340.
2012: March 14 and 15; 2012: December 21.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for ontario
Criminal law — Jurors —
Selection — Appellants convicted of first degree murder and conspiracy to
commit murder — Prior to jury selection, Crown requesting that police conduct
criminal record checks of prospective jurors and also provide comments on
whether any prospective jurors were “disreputable persons” — None of the
information received in response by Crown disclosed to defence — Whether it was
appropriate to seek such information — Whether there should have been
disclosure of same — Whether there is a reasonable possibility that such conduct
affected trial fairness or gave rise to an appearance of unfairness, such that
a miscarriage of justice occurred.
Following a trial in Barrie,
Ontario, each of the appellants was convicted of two counts of first degree
murder and two counts of conspiracy to commit murder. They appealed from their
convictions, raising grounds relating to the adequacy of the trial judge’s
charge to the jury. While the appeals were under reserve, the appellants
became aware of a “jury vetting” practice in the Barrie area, consisting of
inquiries conducted by the police, at the behest of the Crown Attorney’s
office, as to whether potential jurors had a criminal record or whether they
were otherwise “disreputable persons” who would be undesirable as jurors. It
was ascertained that in the present case, vetting of the jury lists by the
police in response to the Crown’s request netted information about 10
individuals who remained in the pool of prospective jurors at the peremptory
challenge stage of the proceedings. None of this information was shared with
the defence. The appeals were reopened to consider evidence and arguments
concerning the propriety of the vetting practice and its impact on the
appellants’ trial. The Court of Appeal dismissed all three appeals. With
respect to the ground of appeal related to jury vetting, the Court of Appeal
found that the Crown had failed to disclose information obtained from the jury
vetting process that might have assisted the appellants in the exercise of
their peremptory challenges, but it was not satisfied that the appellants
suffered any prejudice from the Crown’s failure to meet its disclosure
obligations. The Court of Appeal held that there was no basis to conclude that
the Crown’s failure to disclose caused actual unfairness in the peremptory
challenge process, or that the jury vetting practice created an appearance of
unfairness.
Held: The appeals should
be dismissed.
Jury vetting by the Crown and
police gives rise to a number of concerns. First is the prospect of the Crown
and police joining forces to obtain a jury favourable to their cause. Second is
the fundamental precept of our justice system that “justice should not only be
done, but should manifestly and undoubtedly be seen to be done”. Third is
juror privacy. There are, however, countervailing interests at play that
warrant some limited checking and some minimal intrusions into the private lives
of potential jurors. Only those persons eligible to serve as jurors should be
permitted to participate in the process. Under provincial statutes and the Criminal
Code , a potential juror’s criminal antecedents, and in some provinces his
or her pending charges, may render that person ineligible for jury duty or
result in his or her removal from the jury pool following a successful
challenge for cause. Self‑reporting is one way of screening potential
jurors, but it has proved to be less than satisfactory. Accordingly, absent
legislation to the contrary, the authorities should be permitted to do criminal
record checks on potential jurors to determine whether they are eligible to
serve as jurors. In addition, in those provinces where the eligibility
criteria cover persons who have been charged with a criminal offence, this is
also something the authorities may properly check for. It is thus permissible
for the Crown, with the assistance of the police, to do limited background
checks using multiple police databases to identify potential jurors who, by
virtue of their criminal conduct, are not eligible for jury duty. The
imbalance resulting from the defence’s inability to conduct such searches is
overcome by the disclosure obligations placed on the Crown. Information
received by the Crown that is relevant to the jury selection process must be
turned over to the defence, thereby restoring the balance. In return, defence
counsel, as officers of the court, must make disclosure to both the court and
Crown counsel where they know or have good reason to believe that a potential
juror has engaged in criminal conduct that renders him or her ineligible for
jury duty or cannot serve on a particular case due to matters of obvious
partiality.
When it is discovered at the
appeal stage that information about prospective jurors which should have been
disclosed at trial was not disclosed, persons who seek a new trial on the basis
that this non‑disclosure of information deprived them of their s. 7 Charter
right to a fair trial must, at a minimum, establish that (1) the Crown
failed to disclose information relevant to the selection process that it was
obliged to disclose; and (2) had the requisite disclosure been made, there
is a reasonable possibility that the jury would have been differently
constituted. In addition to these two steps, in the event the jury would have
been differently constituted, it may be that the Crown should then have the
opportunity to show, on balance, that the jury was nonetheless impartial.
With respect to the appearance of
unfairness, there must be conduct on the part of the Crown and the police,
within and surrounding the jury selection process, that would constitute a
serious interference with the administration of justice and offend the
community’s sense of fair play and decency. When conduct of that nature is
found to exist, it matters not that the accused may otherwise have had a fair
trial; nor is it necessary to find that the accused may have been wrongfully
convicted. It is the conduct itself that gives rise to a miscarriage of
justice and demands that a new trial be ordered.
In the case at bar, the Court of
Appeal acted as a court of first instance in respect of the jury vetting issue.
In these circumstances, its findings, like those of a trial court, are entitled
to deference. On the issue of trial fairness, there is no basis for
interfering with the findings of the Court of Appeal on the impact — or the
lack of impact — that the jury vetting practice had on the jury selection process.
Although the Crown failed in its disclosure obligations, as found by the Court
of Appeal, there was no reasonable possibility that the jury would have been
differently constituted had the pertinent information obtained from the vetting
process been disclosed. The appellants received a fair trial by an impartial
jury.
As for the appearance of
unfairness and the suggestion that the verdicts are the product of a
miscarriage of justice, although aspects of the Crown’s conduct were improper
and should not be repeated, what occurred here did not constitute a serious
interference with the administration of justice, nor was it so offensive to the
community’s sense of fair play and decency that the proceedings should be set
aside as a miscarriage of justice. The record checks were carried out in good
faith and there was no attempt on the part of the police or the Crown to obtain
a favourable jury. There is no basis for ordering a new trial.
Cases Cited
Referred to: R. v. Latimer, [1997] 1 S.C.R. 217; R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256;
R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer, 2003 SCC 70,
[2003] 3 S.C.R. 307; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal
Code, R.S.C. 1985, c. C‑46, ss. 626(1) , 632 (a) to (c),
633 , 634 , 635 , 638(1) (a) to (f).
Juries Act, R.S.O. 1990, c. J.3, ss. 4(b)
[am. 2009, c. 33 , Sch. 2, s. 38(1)], 18.2 [ad. idem, s.
38(2) ], 20.
Juries
Act, S.N.S. 1998, c. 16, s. 4(e).
Jurors
Act, R.S.Q., c. J‑2, s. 4(j).
Jury
Act, C.C.S.M. c. J30, s. 3(p), (r).
Jury
Act, R.S.A. 2000, c. J‑3, s. 4(h)(ii).
Jury
Act, R.S.B.C. 1996, c. 242, s. 3(1)(q).
Jury
Act, R.S.N.W.T. 1988, c. J‑2, s. 5(a).
Jury
Act, R.S.N.W.T. (Nu.) 1988, c. J‑2, s. 5(a).
Jury
Act, R.S.P.E.I. 1988, c. J‑5.1, s. 5(i).
Jury
Act, R.S.Y. 2002, c. 129, s. 5(a), (b).
Jury
Act, S.N.B. 1980, c. J‑3.1, s. 3(r).
Jury
Act, 1991, S.N.L. 1991, c. 16, s. 5(m).
Jury
Act, 1998, S.S. 1998, c. J‑4.2, s. 6(h).
R.R.O. 1990, Reg. 680, Form 1.
Authors Cited
Canadian Bar Association. Code of Professional Conduct.
Ottawa: The Association, 2009 (online:
http://www.cba.org/CBA/activities/pdf/codeofconduct.pdf).
Law Society of Upper Canada. Rules of Professional Conduct,
updated April 26, 2012 (online:
http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159).
Ontario. Information and Privacy Commissioner. Excessive
Background Checks Conducted on Prospective Jurors: A Special Investigation Report.
Toronto: The Commissioner, 2009.
APPEALS from a judgment of the Ontario
Court of Appeal (Weiler, Gillese and Watt JJ.A.), 2010 ONCA 637, 269 O.A.C. 48,
260 C.C.C. (3d) 421, [2010] O.J. No. 4163 (QL), 2010 CarswellOnt 7383, upholding
the convictions of the three accused for first degree murder and conspiracy to
commit murder. Appeals dismissed.
Gregory Lafontaine, Vincenzo Rondinelli and Lori
Anne Thomas, for the appellant Ibrahim Yumnu.
Catriona Verner and Kristin Bailey, for the
appellant Vinicio Cardoso.
Timothy E. Breen, for the appellant Tung Chi Duong.
Michal Fairburn, Deborah Krick, John S. McInnes
and Susan Magotiaux, for the respondent.
Frank Addario, for the intervener the Canadian Civil
Liberties Association.
Nader R. Hasan and Gerald Chan, for the intervener
the British Columbia Civil Liberties Association.
Paul J. J.
Cavalluzzo and Shaun O’Brien,
for the intervener the Ontario Crown Attorneys’ Association.
William S. Challis and Stephen McCammon, for the
intervener the Information and Privacy Commissioner of Ontario.
Cheryl Milne and Lisa Austin, for the intervener
the David Asper Centre for Constitutional Rights.
Anthony Moustacalis and Peter Thorning, for the
intervener the Criminal Lawyers’ Association.
Maureen McGuire, for the
intervener the Attorney General of Alberta (34340).
The judgment of the Court was
delivered by
Moldaver
J. —
I. Introduction
[1]
These appeals require the Court to decide
whether it is permissible for the Crown, in conjunction with the police, to
conduct background checks on prospective jurors through the use of police
databases — and if so, to what extent and for what purposes.
[2]
On December 22, 2005,
following a nine-month trial before Stong J. of the Ontario Superior Court of
Justice and a jury, each of the appellants — Ibrahim Yumnu, Vinicio Cardoso,
and Tung Chi Duong — was convicted of two counts of first degree murder and two
counts of conspiracy to commit murder.
[3]
All three appellants
appealed from their convictions to the Ontario Court of Appeal. Their appeals
were heard together on April 6 and 7, 2009 and on February 1, 2010. At the
proceedings in April 2009, the appellants raised grounds of appeal relating to
the adequacy of the trial judge’s charge to the jury. At the end of the hearing
on April 7, the court reserved its judgment.
[4]
Several months later,
while the appeals remained under reserve, the appellants became aware of a
“jury vetting” practice that the Crown Attorney’s office in Barrie, Ontario
(the locale of the appellants’ trial) and police forces throughout the Judicial
District of Simcoe County (the geographic area from which the jurors were
selected) had apparently been following for some years. The vetting consisted
of inquiries conducted by the police, at the behest of the Crown Attorney’s
office, as to whether potential jurors had a criminal record or whether they
were otherwise “disreputable persons” who would be undesirable jurors.
[5]
Once the widespread
nature of this practice became known, inquiries were made and the appellants
ordered transcripts of the jury selection process. The parties then produced a
record, including affidavits upon which cross-examinations were conducted, and
the appeals were reopened.
[6]
On February 1, 2010,
the Court of Appeal heard arguments concerning the propriety of the vetting
practice, including: its impact on the jury selection process and the
composition of the jury; its impact on trial fairness; and, more broadly, its
impact on the integrity of the criminal justice system and the administration
of justice as a whole.
[7]
On October 5, 2010, the
Court of Appeal (Weiler, Gillese and Watt JJ.A.) released comprehensive reasons
for judgment dismissing all three appeals (2010 ONCA 637, 269 O.A.C. 48).
Writing for the court, Watt J.A. concluded that certain features of the jury
vetting process were inappropriate and should not be repeated. Other aspects
were acceptable, subject to the Crown complying with its disclosure
obligations.
[8]
In accordance with a
concession from the Crown on appeal, Watt J.A. found that the Crown at trial
had failed to disclose information obtained from the jury vetting process that
might have assisted the appellants in the exercise of their peremptory
challenges. In the end, however, he was not satisfied that the appellants
suffered any prejudice from the Crown’s failure to meet its disclosure
obligations. In his view, there was no reasonable possibility that the jury
would have been differently constituted had disclosure been made; nor was there
a basis for concluding that the Crown’s failure to disclose caused actual
unfairness in the peremptory challenge process. Finally, it could not be said
that the jury vetting practice created an appearance of unfairness that cast a
pall over the entire proceeding. Accordingly, Watt J.A. rejected this ground
of appeal. He also rejected the grounds relating to the alleged errors in the
trial judge’s final instructions to the jury.
[9]
Before this Court, the
appellants no longer challenge the adequacy of the trial judge’s instructions to
the jury. Rather, the appeals centre on the jury vetting issue and the Court
of Appeal’s treatment of it.
[10]
In a nutshell, the
appellants complain that the jury vetting undertaken by the police, at the
behest of the Crown, was highly improper. It compromised the integrity of the
jury selection process and resulted in a jury that, if not favourably disposed
to the Crown, might well have been differently composed had the appellants
received the disclosure to which they were entitled.
[11]
On a more fundamental
level, the appellants contend that the jury vetting conducted by the police, in
conjunction with the Crown, strikes at the very heart of our criminal justice
system and impinges on the sanctity of trial by jury that forms such a vital
part of it. They say it raises the spectre of jury tampering and as such, it
deserves this Court’s unqualified condemnation.
[12]
One of the appellants
equates what occurred here to the situation in R. v. Latimer,
[1997] 1 S.C.R. 217, where
the police, with the approval of the Crown, approached prospective jurors and
asked them to complete a questionnaire setting out their views on a number of
issues pertinent to the case. In Latimer, this Court found that the
conduct of the Crown constituted a flagrant abuse of process and an interference
with the administration of justice. This gave rise to an appearance of
unfairness and necessitated a new trial. According to the appellants, the
conduct of the police and the Crown in the present case led to an appearance of
unfairness and resulted in a miscarriage of justice. Hence, they request a new
trial.
[13]
For the reasons that
follow, I am unable to accede to the appellants’ arguments.
[14]
On the issue of trial
fairness, I see no basis for interfering with the findings of the Court of
Appeal on the impact — or more accurately, the lack of impact — that the jury
vetting practice had on the jury selection process. The appellants received a
fair trial by an impartial jury.
[15]
As for the appearance
of unfairness and the suggestion that the verdicts are the product of a
miscarriage of justice, I readily acknowledge that aspects of the Crown’s
conduct were improper and should not be repeated. Nonetheless, I am not
persuaded that what occurred here constituted a serious interference with the
administration of justice, nor was it so offensive to the community’s sense of
fair play and decency that the proceedings should be set aside as a miscarriage
of justice.
[16]
It follows, in my view,
that there is no basis for ordering a new trial. I would accordingly dismiss
the appeals.
II. Background
[17]
The situation here is
somewhat unique in that the Court of Appeal acted as a court of first instance
in respect of the jury vetting issue. By that, I mean that the evidence
pertinent to that issue was assembled by the parties and the court made its
findings of fact and carried out its legal analysis on the basis of that
record. In these circumstances, the findings of the Court of Appeal, like
those of a trial court, are entitled to deference.
[18]
The decision of the
Court of Appeal is replete with detail and I see no need to replicate the
court’s thorough review of the background facts, nor its comprehensive review
of the jury selection process as a whole.
[19]
The jury vetting
practice at issue occurred in the context of the appellants’ joint trial on two
counts of first degree murder and two counts of conspiracy to commit murder.
The trial was conducted in Barrie, Ontario. It commenced in January 2005 and
lasted nine months.
[20]
On December 13, 2004,
prior to the commencement of the jury selection process, someone from the Court
Services Branch of the Ministry of the Attorney General for Ontario provided a
copy of the jury panel lists to the Crown Attorney’s office in Barrie. The
person responsible for providing the lists failed to comply with s. 20 of the Juries
Act, R.S.O. 1990, c. J.3, which forbids disclosure of jury panel lists
“until ten days before the sittings of the court for which the panel has been
drafted”. The return date of the first panel in this case was set for January
24, 2005.
[21]
Upon receiving the
lists, an administrative assistant in the Crown Attorney’s office sent a copy
of them to every police force with jurisdiction in the Judicial District of
Simcoe County. Accompanying the lists was a standard-form memorandum which
read as follows:
Please check the attached jury panel list, for
the persons listed in your locality, and advise if any of them have criminal
records. We are not able to provide birth dates.
It would also be helpful if comments could be
made concerning any disreputable persons we would not want as a juror. All we
can ask is that you do your best considering the lack of information available
to us.
Please
relay the information by telephone to [the Crown Attorney’s telephone number]
on or before Wednesday, January 12, 2005.
[22]
Information obtained in
response to the memorandum was recorded on a copy of the jury panel lists kept
at the Crown Attorney’s office.
[23]
I pause here to note
that as of December 14, 2004, when the standard-form memorandum was sent to the
various police forces in the Judicial District of Simcoe County, the Criminal
Law Division of the Ontario Ministry of the Attorney General had not yet issued
a Practice Memorandum on the subject of juror background checks. It was not
until April 26, 2005, some four months into the trial, that the draft of
the Practice Memorandum, referred to as PM [2005] No. 17, was circulated
by email to Crown Attorneys throughout the province of Ontario. PM [2005]
No. 17 came into effect on March 31, 2006, long after the trial in this
matter had been completed, and was circulated to Crown Attorneys, as well as
other organizations such as the Criminal Lawyers’ Association of Ontario and
the Law Society of Upper Canada. The salient features of the Practice
Memorandum are reproduced below:
In choosing a jury, both Crown counsel and
defence should have access to the same background information material. To
that end, results of criminal record checks of
potential jurors, if obtained by Crown counsel, should be disclosed to defence
counsel. Crown counsel should not request police to undertake any further or
other investigation into the list of jurors. Crown
counsel should not request police to conduct out-of-court investigations into
private aspects of potential jurors’ lives.
Any
concrete information provided by police to Crown counsel suggesting that a
prospective juror may not be impartial should be disclosed to the defence.
If background information relating to a prospective juror raises the issue of
whether he/she is able to judge the case without bias, prejudice or partiality,
Crown counsel should utilize the challenge for cause process to address these
concerns. [Emphasis added.]
[24]
The vetting practice
undertaken in this case was not new. It had been in place since the late 1990s
when it was discovered, in the context of an ongoing jury trial in Barrie, that
a person who had been selected as a juror was in the process of serving an
intermittent sentence for a hybrid offence (see R.
v. E.A. (Ont. Ct. (Gen. Div.)), transcript of
discussion on January 6, 1998 about jurors serving an intermittent sentence (respondent’s
authorities, vol. II, Tab 43, at pp. 34-38)). It is unclear whether the Crown in that case had
proceeded by way of indictment so as to render the juror ineligible for jury
duty under s. 4(b) of the Juries Act as it then read. Be that as it
may, he had slipped through the cracks and the situation would have proved awkward,
to say the least, if his sentencing obligations had prevented him from
performing his jury duties.
[25]
In the present case,
vetting of the jury lists by the police in response to the Crown’s memorandum
netted information about a number of prospective jurors. For the most part,
the information indicated that the person in question had no criminal record.
In some instances, the prospective juror was referred to as a
“victim/complainant”. Other notations identified persons who “possibl[y]” had
a criminal record or who may have been involved in a motor vehicle infraction.
[26]
None of the information
the Crown received about the prospective jurors was shared with the defence —
at least not at the selection stage of the process. The record indicates that
after the trial judge had excused a host of prospective jurors for reasons of
personal hardship, and a challenge for cause on the basis of race had run its
course, of the prospective jurors who remained in the pool at the peremptory
stage of the proceedings, the Crown had information about 10 of them that it
should have disclosed to the defence, but did not. Hence, the appellants
entered the peremptory challenge phase of the process missing information that
might have been useful in exercising their peremptory challenges.
[27]
With respect to the 10 people
in question, on my review of the record, of the three appellants before us, the
appellant Yumnu is the only one who may have used a peremptory challenge that
he might otherwise have saved had he received the disclosure to which he was
entitled. That said, each of the appellants, including Mr. Yumnu, had one or
more peremptory challenges remaining to him at the end of the selection
process.
III. Findings of the Court of Appeal
[28]
As mentioned, the parties assembled a record for
the Court of Appeal on the jury selection issue. On the basis of that record,
the Court of Appeal made a number of findings that had a direct bearing on the
outcome of the appeal. Those findings retain their importance at this stage
and they are summarized below.
A. Issue 1: The Effect of Non-Disclosure on Trial Fairness
[29]
First, the court reviewed the peremptory
challenge phase of the process and determined that there was “no reasonable
possibility that the jury would have been constituted differently had
disclosure [of the pertinent information obtained from the vetting process]
been made” (para. 122).
[30]
Second, the court found
that even though the Crown had not complied with its disclosure obligations,
the defence knew or should have known about the jury vetting practice no later
than six weeks into the trial when the investigating officer’s notebook was
turned over to defence counsel. The production of the officer’s notebook was
not an attempt on the Crown’s part to belatedly comply with its disclosure
obligations. Nonetheless, the notes contained a complete inventory of the
checks undertaken by the investigating officer, including the names of
prospective jurors and the information he had obtained about them. The notes
also revealed that several police databases had been accessed and that
information had been obtained about some of the prospective jurors that went
beyond the question of whether they had a criminal record.
[31]
Against that backdrop,
in assessing the impact of the Crown’s failure to comply with its disclosure
obligations on the overall fairness of the trial process, the court considered
it significant that five experienced defence counsel did not raise the issue of
non-disclosure with the trial judge, either when they received the officer’s
notebook or during the seven and a half months of trial that followed. Nor did
counsel raise the issue at the outset of the appeal. Moreover, throughout the
course of the appeal, trial counsel provided no information about what they
knew (or did not know) about the record checks, nor did they offer an
explanation for their failure to raise the disclosure issue in a timely
fashion. I note parenthetically that the answers to those questions remain unsatisfactory
to this day.
[32]
In the end, the court refused
to give effect to the appellants’ submission that their right to a fair trial
had been impaired by the failure of the Crown to meet its disclosure
obligations. Watt J.A. put the matter succinctly as follows: “In this case,
[the appellants] have failed to demonstrate a reasonable possibility that the
non-disclosure affected either the outcome of the trial or the overall fairness
of the trial process” (para. 107).
B. Issue 2: Appearance of Unfairness
[33]
Apart from defence
counsel’s failure to raise the jury issue with the trial judge, the Court of
Appeal made two critical findings concerning the conduct of the Crown and the
police.
[34]
First, the court found
that despite the scope of the Crown’s request in the December 14, 2004
memorandum, “the purpose of the police inquiries was to determine whether a
prospective juror had a criminal record” (para. 94). Second, the court found
that in the circumstances, the conduct of the Crown and the police did not
“reveal [a] colourable use of legitimate criminal record checks of prospective
jurors to obtain a favourable jury” (para. 95).
[35]
In the circumstances,
the Court of Appeal declined to order a new trial on the basis of alleged
improprieties surrounding the jury selection process. The Crown’s conduct,
though improper in certain respects, was far less egregious than the conduct
engaged in by the Crown and police in Latimer — and, in the court’s
opinion, the jury vetting practice did not create an appearance of unfairness
that necessitated a new trial.
IV. Analysis: The Acceptable Bounds of Jury Vetting
[36]
Jury vetting by the
Crown and police is a risky business. It gives rise to a number of concerns —
some more troublesome than others — but all worthy of consideration.
[37]
Foremost among the
concerns is the prospect of the Crown and police joining forces to obtain a
jury favourable to their cause. Nothing could do more harm to the criminal
justice system; nothing could more readily bring the administration of justice
into disrepute.
[38]
The mere thought of the
Crown and the police “checking out” potential jurors carries with it the
spectre of jury tampering and the evils associated with it. Care must be taken
to guard against this. The integrity of our criminal justice system hangs in
the balance.
[39]
Closely aligned with
the first concern is the fundamental precept of our justice system that
“justice should not only be done, but should manifestly and undoubtedly be seen
to be done” (per Lord Hewart C.J. in R. v. Sussex Justices,
Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259).
[40]
Appearances count. And
regardless of the Crown’s good intentions, aligning itself with the police and
using their vast resources to investigate potential jurors could be seen by
some as incompatible with the Crown’s responsibility, as an officer of the
court, to ensure that every accused receives a fair trial. Randomness and
representativeness are two of the qualities we look for in juries. Widespread
checking could give rise to a suggestion of stereotyping and arbitrariness in
the selection process, particularly if it could be shown that peremptory
challenges were being used to remove certain types or classes of people who
would otherwise be eligible to serve as jurors.
[41]
Another concern is
juror privacy. Jurors give up much to perform their civic duty. In some
instances, serving on a jury can be a difficult and draining experience. Long
trials in particular can take a toll on an individual’s personal and
professional life.
[42]
Jury duty is precisely
that — a duty. People are not asked to volunteer; they are selected at random
and required to serve unless they are otherwise exempted or excused. Once
selected, jurors become judges of the facts. Their personal lives at that
point are no more relevant than that of the presiding judge.
[43]
Jurors deserve to be
treated with respect. Subject to a few narrow exceptions, they are entitled to
know that their privacy interests will be preserved and protected. I note that
the subject of prospective jurors’ privacy was addressed in a recent report of
Ontario’s Information and Privacy Commissioner, Ann Cavoukian: see Excessive
Background Checks Conducted on Prospective Jurors: A Special
Investigation Report (2009) (“IPC Report”).
[44]
The concerns that I
have identified are very real and they are to be taken seriously. There are,
however, countervailing interests at play that warrant some limited checking
and some minimal intrusion into the private lives of potential jurors.
[45]
Manifestly, only those
persons eligible to serve as jurors should be permitted to participate in the
process. Impartiality is equally essential. Those who serve as jurors must be
capable of putting aside their biases, prejudices, and any tentative opinions
they might hold about the case. In short, they must be able to render a true
verdict according to the evidence.
[46]
Section 626(1) of the Criminal
Code, R.S.C. 1985, c. C-46 , provides that “[a] person who is qualified as a
juror according to . . . the laws of a province is qualified to serve as a
juror in criminal proceedings in that province.” Each province and territory
in Canada has its own eligibility criteria for jurors. In Ontario, the
province from which the present appeals originate, s. 4(b) of the Juries Act
currently states that anyone who “has been convicted of an offence that may be
prosecuted by indictment” and who has not been granted a pardon for that
conviction, is ineligible to serve as a juror. I note that until 2010, s. 4(b)
of the Juries Act provided that a person was ineligible to serve as a
juror in Ontario if he or she “ha[d] been convicted of an indictable offence”
and had not been granted a pardon. In the case of a hybrid offence, this was
interpreted to mean a conviction where the prosecutor chose to proceed by
indictment (see IPC Report, at pp. 33-34). In 2010, the Juries Act was
amended to broaden the scope of juror ineligibility (S.O. 2009, c. 33 , Sch. 2,
s. 38(1)). This amendment addressed the problem that criminal record databases
do not record whether, in respect of hybrid offences, the Crown proceeded by
way of summary conviction or by indictment. Other provinces have different
eligibility requirements, including some that preclude persons “charged” with a
criminal offence from serving on a jury. For instance, individuals are
ineligible to serve as jurors: in Alberta, if “charged with a criminal offence”
(Jury Act, R.S.A. 2000, c. J-3, s. 4(h)(ii)); in British Columbia, if
“currently charged with an offence under the Criminal Code ” (Jury Act,
R.S.B.C. 1996, c. 242, s. 3(1)(q)); in Newfoundland and Labrador, if charged
with an indictable offence (Jury Act, 1991, S.N.L. 1991, c. 16, s.
5(m)); and in Quebec, if charged or convicted of a “criminal act” (an
indictable offence) (Jurors Act, R.S.Q., c. J-2, s. 4(j)) (for
the relevant legislation in the other provinces and territories, see: The
Jury Act, 1998, S.S. 1998, c. J-4.2, s. 6(h); The Jury Act, C.C.S.M.
c. J30, s. 3(p) and (r); Jury Act, S.N.B. 1980, c. J-3.1, s. 3(r);
Juries Act, S.N.S. 1998, c. 16, s. 4(e); Jury Act, R.S.P.E.I.
1988, c. J-5.1, s. 5(i); Jury Act, R.S.Y. 2002, c. 129, s. 5(a) and (b);
Jury Act, R.S.N.W.T. 1988, c. J-2, s. 5(a); and Jury Act,
R.S.N.W.T. (Nu.) 1988, c. J-2, s. 5(a)).
[47]
Under s. 638(1)(c)
of the Code, either the prosecutor or the accused may challenge a
potential juror for cause on the basis that “[the] juror has been convicted of
an offence for which he was sentenced to death or to a term of imprisonment
exceeding twelve months”.
[48]
As is apparent, under
provincial statutes and the Criminal Code , a potential juror’s criminal
antecedents — and in some instances, his or her pending charges — may render
that person ineligible for jury duty or result in his or her removal from the
jury pool following a successful challenge for cause. Self-reporting is one
way of screening potential jurors who, by virtue of their involvement with the
criminal law, are ineligible under provincial law from serving as jurors. In
Ontario, at the time of the appellants’ trial, a self-reporting questionnaire
was sent to potential jurors asking:
7.
HAVE YOU BEEN CONVICTED OF AN INDICTABLE OFFENCE FOR WHICH YOU HAVE NOT
BEEN GRANTED A PARDON?
An
indictable offence is a serious offence and does not include violations of
provincial statutes such as traffic and liquor laws. Nor are some Criminal Code
offences indictable; for example, causing a disturbance, taking a motor vehicle
without the owner’s consent and vagrancy are not indictable offences. A person
who has been convicted of an indictable offence is ineligible to serve as a
juror, unless he or she has subsequently been granted a pardon.
(IPC Report, Appendix 8)
[49]
While useful,
self-reporting has proved to be less than satisfactory. Under the regime that
existed when the trial in this case was conducted, potential jurors may not
have known whether the offence for which they had been convicted was an
indictable offence (which would have included a hybrid offence only if the
Crown had proceeded by way of indictment). Following the IPC Report in 2009 in
Ontario, along with the amendment of the Juries Act, the self-reporting
questionnaire has been improved and provides a more comprehensive explanation
of what constitutes an indictable offence (see R.R.O. 1990, Reg. 680, Form 1, “Questionnaire about Qualifications for Jury
Service”). Even with that,
there is no certainty that prospective jurors will read the explanatory notes;
nor is it clear that those who do will fully understand them. Well-intentioned
individuals may still provide inaccurate information. Moreover, the
explanatory notes leave out broad categories of offences that could give rise
to indictable convictions, such as income tax evasion. And finally, as
reporting procedures are not uniform throughout the country, some are likely to
produce more accurate responses than others. In short, self-reporting can
result in relevant criminal background information slipping through the
cracks. It is not a substitute for criminal record checks.
[50]
It follows, in my view,
that absent legislation to the contrary, the authorities should be permitted to
do criminal record checks on potential jurors to determine whether they are
eligible to serve as jurors under provincial law and/or whether they may be
subject to a challenge for cause under s. 638(1)(c) of the Code.
In those provinces where the eligibility criteria cover persons who have been
charged with a criminal offence, this too is something the authorities may
properly check for.
[51]
In that narrow sense, I
consider it permissible for the Crown, with the assistance of the police, to do
limited background checks using police databases to identify potential jurors
who, by virtue of their criminal conduct, are not eligible for jury duty under
provincial law or who are subject to being challenged for cause under s.
638(1)(c) of the Code. I recognize that the defence bar does not
have the same prerogative. It cannot avail itself of the information stored in
police databases. But any resulting imbalance is, in my view, overcome by the
disclosure obligations placed on the Crown. Information received by the Crown
that is relevant to the jury selection process must be turned over to the
defence, thereby restoring the balance.
[52]
I also recognize that
the Crown and the police are separate entities and that the police ought not to
be seen as Crown agents tasked with the responsibility of investigating
potential jurors for partiality, much less obtaining a jury favourable to the
Crown’s cause. But any perception of impropriety must be assessed in context,
which in this case means taking into account the circumscribed nature of the
police mandate and the important objective it serves. Viewed that way, I do
not believe that a reasonable member of society would find it offensive for the
Crown and the police to engage in the limited form of checking I consider
permissible.
[53]
In the course of
performing valid criminal background checks through the use of police
databases, the authorities may inadvertently come across information that falls
outside the scope of the provincial eligibility criteria or the criteria
specified in s. 638(1)(c) of the Code. For example, in Ontario,
the authorities may learn that a prospective juror does not have a criminal
record but that he or she is presently charged with a criminal offence, or
perhaps even a provincial offence, that may render the prospective juror
unsuitable or raise concerns about his or her ability to remain impartial.
Equally, a database scan may reveal a potential juror’s prior conviction for a
pure summary offence (not captured by s. 4(b) of Ontario’s Juries Act or
s. 638(1)(c) of the Code) for which the person is currently
serving an intermittent sentence, thereby calling into question his or her
suitability for jury duty. Alternatively, the authorities may discover that a
potential juror has been a complainant on a prior occasion and may, for that
reason, find it difficult to remain impartial, either generally or in the
particular circumstances of the case at hand.
[54]
The authorities cannot
set out to find this type of information — but if it comes to their attention
in the course of performing valid criminal background checks, they need not turn
a blind eye to it. It could form the basis for any of the following procedures
in the courtroom:
(1) a request
to the trial judge to excuse the juror under s. 632(a) to (c) of
the Code on grounds of obvious partiality, personal hardship, or other
reasonable cause;
(2) a request to the trial judge to stand the
juror aside under s. 633 of the Code for reasons of personal hardship or
any other reasonable cause, including potential partiality;
(3) a request to challenge a juror for cause
for any of the reasons set out in s. 638(1)(a) to (f) of the Code;
and
(4) a reason to exercise or refrain from
exercising a peremptory challenge under ss. 634 and 635 of the Code.
[55]
Of course, it goes
without saying that any information the authorities obtain that is relevant to
the jury selection process must be disclosed to the defence. This would
include information relevant to eligibility, s. 638(1)(c) and any of the
other matters I have identified.
[56]
Checking for a
prospective juror’s criminal record is not as easy as one might think. As Watt
J.A. observed, at para. 92, jury panel lists lack crucial information the
authorities need to ensure that the results of inquiries made through the
various databases available to them are accurate. The more information the
authorities have about the prospective juror — and by that I am referring to
details such as full name, date of birth, fingerprint search number, and so on
— the less intrusive the search need be. Access to one database, most likely
the Canadian Police Information Centre (“CPIC”), will usually be all that is
required.
[57]
Contrast this with the
situation where the authorities have virtually no information about the
prospective juror other than his or her name and occupation. To be sure, this
is problematic, especially when the individual has a common name.
Cross-referencing and cross-checking through the use of multiple databases may
be the only means the authorities have to ensure that the right person is being
checked. And even then, there can be no guarantees.
[58]
Of course, the more
databases accessed, the more likely it is that the authorities will come upon
information that goes beyond a particular province’s eligibility criteria as it
relates to prior or ongoing criminal activity, or the criteria needed to bring
a challenge for cause under s. 638(1)(c) of the Code. In other
words, the broader the search, the greater the intrusion into the prospective
juror’s privacy interests.
[59]
In an ideal world, it
would be preferable if the persons doing the checking had available to them the
information needed to do pinpoint searches through a single database. That
would be one way of better protecting the privacy interests of prospective
jurors.
[60]
Ontario has taken some
steps in this regard following the release of the IPC Report. Without going
into detail, under s. 18.2 of the Juries Act (enacted in 2010, see S.O.
2009, c. 33 , Sch. 2, s. 38(2)), the sheriff may request that a criminal record
check be conducted using the CPIC database, on any person selected for
inclusion on a jury panel. A questionnaire completed by the prospective juror
and sent to the Provincial Jury Centre contains personal information that
enables the Centre to engage in pinpoint searches.
[61]
According to the Crown,
such searches are conducted on a random basis and only cover about 10 percent of
the names on panel lists (R.F., at para. 85, fn. 37). As such, they do not
provide certainty that persons who are ineligible under s. 4(b) of the Juries
Act or subject to being challenged under s. 638(1)(c) of the Code
will be detected. Moreover, there is no legislative equivalent to s. 18.2 of
the Ontario Juries Act in the territories and most of the other
provinces.
[62]
I propose to say no
more about s. 18.2 of the Juries Act. Its impact, if any, on the
Crown’s right to have limited background checks conducted on potential jurors
through the use of police databases is not before us. Nor is it our mandate to
consider solutions that might better preserve and protect the privacy interests
of prospective jurors, including the personnel who should be doing the checking
and the means by which they may gain access to the pertinent information. Our
task is to determine whether it was permissible for the authorities to perform
the checks they did in the instant case and, if so, to what extent and for what
purposes.
[63]
The case before us
deals with background prospective juror checks conducted through the use of
police databases. For reasons already discussed, absent legislation to the
contrary, I am satisfied that the authorities can use such databases to
discover whether prospective jurors have engaged in criminal conduct that would
render them ineligible to serve as a juror under provincial law, or subject
them to a challenge for cause under s. 638(1)(c) of the Code. As
well, absent legislation to the contrary, I am of the view that the authorities
are entitled to access multiple databases, where necessary, to uncover the
requisite information. As indicated, where this leads to the inadvertent
discovery of other information that may be relevant to the jury selection
process, the authorities need not turn a blind eye to it. It should be
conveyed to the Crown and disclosed to the defence. That will go some way
towards achieving the level playing field that should exist between the Crown
and the defence during the jury selection process.
[64]
To be clear, when I
speak of information that is relevant to the jury selection process, I am not
talking about matters of public knowledge, such as a prospective juror’s
general reputation in the community, nor am I referring to such things as
feelings, hunches, suspicions, innuendo, or other such amorphous information.
I am speaking rather about information that rises above the general and is both
reasonably accurate and reliably based. At para. 76 of his reasons for the
Court of Appeal, Watt J.A. made the following observation about the disclosure
obligations of the Crown, with which I agree:
The disclosure obligations of the
prosecutor are well defined. Circumscribed, not infinite. Those obligations
are not co-extensive with the entire storehouse of information, knowledge and
experience, in brief the stock-in-trade a prosecutor may acquire by exposure to
daily appearances in the courts and interactions with the police, witnesses,
victims and the communities at large in their jurisdiction. Equality of
knowledge and community intelligence, like equivalence in skill and experience
as between opposing counsel in a criminal trial, is not a constitutional
requirement or a principle of fundamental justice.
[65]
The question of there being a reciprocal
obligation on the part of the defence to disclose information in its possession
that could impact on the jury selection process was raised only tangentially on
this appeal. It was not fully argued. Accordingly, I propose to limit my
remarks to two situations where it is self-evident that defence counsel, as
officers of the court, must make disclosure to both the court and Crown counsel
to preserve the integrity of the process.
[66]
First, where defence counsel know or have good
reason to believe that a potential juror has engaged in criminal conduct that
renders him or her ineligible for jury duty under provincial law or subject to
being challenged for cause under s. 638(1)(c) of the Code, this
should be disclosed.
[67]
Second, where defence counsel know or have good
reason to believe that a potential juror cannot serve on a particular case due
to matters of obvious partiality, this too should be disclosed.
[68]
The second situation comports with Rule 4.05 of
the Rules of Professional Conduct of the Law Society of Upper Canada (online)
and Rule 9, note 21 of the Code of Professional Conduct of the Canadian
Bar Association (online). Under those rules, lawyers are permitted to
investigate prospective jurors to ascertain any basis for a challenge, but in
doing so, they must not directly or indirectly communicate with the juror or a
member of his or her family. The rules further provide that when acting as an
advocate, a lawyer must disclose to the judge and opposing counsel any
information of which the lawyer is aware that a juror or prospective juror
(a) has
or may have an interest, direct or indirect, in the outcome of the case,
(b) is
acquainted with or connected in any manner with the presiding judge, any
counsel or any [party], or
(c) is acquainted with or connected
in any manner with any person who has appeared or who is expected to appear as
a witness, . . .
[69]
As for the first situation, I consider it
axiomatic that as officers of the court, defence counsel who know or have good
reason to believe that a prospective juror, by reason of his or her criminal
conduct, is ineligible to serve as a juror under provincial law or is subject
to being challenged for cause under s. 638(1)(c) of the Code,
cannot remain mute. Disclosure must be made in such circumstances to protect
the integrity of the process and the administration of justice at large.
[70]
I conclude this aspect
of my reasons with two trite but important observations.
[71]
First, jury selection
is not a game and it should not be approached as though it were. Winning and
losing are concepts that ought not to be associated with it. The process is
not governed by the strictures of the adversarial model, nor should it be, in
my view. The idea at the end of the day is not to obtain a jury that is
partial to one side or the other. We are looking for jurors who are eligible,
impartial, representative and competent. The jury does not belong to the
parties; it belongs to the people.
[72]
Second, while there are
various rules and regulations that govern the selection of juries, much of what
occurs is rooted in custom. The process must take into account the needs of
the people and the special problems that may exist in the locale or region in
which the trial is being held. Flexibility is essential, as is common sense,
good judgment and good faith on the part of those who play a central role in
the process, including judges, Crown and defence counsel, the police, and court
administration personnel. In the end, it is essential to keep in mind that
from start to finish, the jury selection process is designed to make good on
the constitutional promise, enshrined in s. 11 (d) of the Canadian
Charter of Rights and Freedoms , that everyone charged with an offence has
the right to be tried by an independent and impartial tribunal. Attempts by
one side or the other to obtain a favourable jury are inimical to that ideal
and the parties should be guided by this and conduct themselves accordingly.
V. Application to This Appeal
A. Issue 1: The Effect of Non-Disclosure on Trial Fairness
[73]
Before considering the
effect of non-disclosure on trial fairness as it relates to the instant case, I
propose to set out the principles that apply when it is discovered, at the
appeal stage, that information about prospective jurors which should have been
disclosed at trial was not disclosed.
[74]
In R. v. Dixon, [1998] 1 S.C.R. 244,
and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, this Court set out the principles that
apply when information that should have been disclosed at trial is discovered
for the first time at the appeal stage. Persons who seek a new trial on the
basis that such non-disclosure deprived them of their right to a fair trial
under s. 7 of the Charter must show that (1) the Crown failed to comply
with its disclosure obligations, and (2) there is a reasonable possibility that
the failure to disclose affected the outcome of the trial or the overall fairness
of the trial process (Taillefer, at para. 71).
[75]
Adapting those principles to the issue at hand, I am of the view
that persons who seek a new trial on the basis that non-disclosure of
information about potential jurors deprived them of their s. 7 Charter right
to a fair trial must, at a minimum, establish that: (1) the
Crown failed to disclose information relevant to the selection process that it
was obliged to disclose; and (2) had the requisite disclosure been made, there
is a reasonable possibility that the jury would have been differently
constituted.
[76]
In addition to these two steps, as my colleague
Karakatsanis J. points out at para. 55 of R. v. Davey, 2012 SCC 75, [2012]
3 S.C.R. 828, in the event that the jury would have been differently
constituted, it may be that the Crown should then have the opportunity to show,
on balance, that the jury was nonetheless impartial. Since the present
appeals can be resolved without addressing that issue, I propose to leave it
for another day.
[77]
For present purposes, I am prepared to accept that the Crown
failed in its disclosure obligations. It is on step 2 that the appellants’
case founders. As discussed earlier, the Court of Appeal
found that there was no
reasonable possibility that the jury would have been differently constituted
had the pertinent information obtained from the vetting process been
disclosed. Of the prospective jurors considered at the peremptory challenge
stage of the proceedings, the Crown had information about 10 of them that it
should have disclosed. With respect to those 10 people, Mr. Yumnu is the only
appellant who used a peremptory challenge that he might otherwise have saved
had he received the disclosure to which he was entitled. That said, each of
the appellants, including Mr. Yumnu, had one or more peremptory challenges
remaining at the end of the selection process. On the record before it, the
Court of Appeal was entitled to come to the conclusion that the jury would not
have been composed differently had disclosure been made. I see no basis for
interfering with that conclusion. It follows that the appellants have not met
the test, and their argument that the trial was unfair must fail.
B. Issue 2: Appearance of Unfairness
[78]
That leaves one issue
for discussion — did the Court of Appeal err in concluding that the conduct of
the police and the Crown did not result in a miscarriage of justice?
[79]
To be clear, when I
speak of a miscarriage of justice in this context, I am referring to conduct on
the part of the Crown and the police, within and surrounding the jury selection
process, that would constitute a serious interference with the administration
of justice and offend the community’s sense of fair play and decency. When
conduct of that nature is found to exist, it matters not that the accused may
otherwise have had a fair trial; nor is it necessary to find that the accused
may have been wrongfully convicted. It is the conduct itself that gives rise
to a miscarriage of justice and demands that a new trial be ordered.
[80]
With those principles
in mind, I turn to the conduct of the Crown and the police in this case to
determine whether it crossed the line and resulted in a miscarriage of
justice. In concluding that it did not, I begin by reiterating two critical
findings made by the Court of Appeal concerning the conduct of the Crown and
the police.
[81]
First, the court found
that despite the scope of the Crown’s request in the December 14, 2004
memorandum, the purpose of the police inquiries was to determine whether a
prospective juror had a criminal record. Second, the court found that in the
circumstances, the impugned conduct did not reveal a colourable use of
legitimate criminal record checks to obtain a favourable jury.
[82]
Those findings, which
were open to the Court of Appeal to make, satisfy me that the record checks
were carried out in good faith. There was no attempt on the part of the police
or the Crown to uncover information about prospective jurors in an effort to
obtain a favourable jury. In its December 14, 2004 memorandum to various
police forces, the Crown should not have asked the police to go beyond criminal
record checks and use their databases to provide “comments . . . concerning any
disreputable persons we would not want as a juror” — although this may not have
been clearly understood at the time, given that PM [2005] No. 17, the Practice
Memorandum on juror background checks, had not been formalized and did not come
into effect until March 31, 2006. Moreover, under the Rules of Professional Conduct of the Law Society of Upper Canada and the Code of
Professional Conduct of the Canadian Bar Association, inquiries made by the
parties for the purpose of exercising a challenge for cause were not
prohibited. Be that as it may, certainly there was no attempt by the
investigating officer to hide the information he obtained from the record
checks, be it criminal record information or information that went beyond
that. The additional information was recorded in his notebook and was there
for anyone to see, including the five defence counsel who received a copy of
his notes six weeks into the trial.
[83]
The fact that the Crown
and the police were acting in good faith is important — although not
determinative — in assessing whether the conduct in question crossed the
forbidden line.
[84]
That brings me to the
nature of the impugned information and the manner in which it was obtained.
[85]
I have explained that
it was permissible for the police to conduct criminal record checks to
determine if a prospective juror was eligible to serve as a juror under
provincial law and/or was subject to being challenged for cause under s.
638(1)(c) of the Code. I have also pointed out that it can be
very difficult to discover whether or not a particular person has a criminal
record. The use of multiple police databases may be required to make the
inquiry meaningful and, even then, certainty will not always be achieved.
[86]
In carrying out
legitimate criminal record checks, the police are liable to happen upon
information that could be relevant to the selection process. As discussed,
where that occurs, the police need not turn a blind eye to it. Rather, they
should bring it to the Crown’s attention and the Crown should disclose it to
the defence.
[87]
In this case, the
investigating officer came upon information of that kind while conducting
individual prospective juror record checks. He made it available to the Crown,
as he should have. The Crown went wrong in failing to disclose it to the
defence prior to the commencement of the selection process.
[88]
While the failure to
disclose was serious, it was not done for improper reasons. And in the end,
according to the findings of the Court of Appeal, it had no impact on the
composition of the jury, nor did it affect the outcome of the trial or the
overall fairness of the trial process.
[89]
In these circumstances,
while the Crown should not have asked the police to use police databases to
detect “disreputable persons”, and while it should have disclosed to the
defence information it received that may have been relevant to the selection
process, I am not persuaded that what occurred here constituted a serious
interference with the administration of justice, nor was it so offensive to the
community’s sense of fair play and decency that the proceedings should be set
aside as a miscarriage of justice.
VI. Conclusion
[90]
The appellants had a
fair trial and I am not persuaded that the proceedings constituted a
miscarriage of justice. Accordingly, I would dismiss the appeals from
conviction.
Appeals dismissed.
Solicitors for the appellant
Ibrahim Yumnu: Lafontaine & Associates, Toronto.
Solicitors for the appellant
Vinicio Cardoso: Hicks Adams, Toronto.
Solicitors for the appellant Tung
Chi Duong: Fleming, Breen, Toronto.
Solicitor for the respondent: Attorney
General of Ontario, Toronto.
Solicitors for the intervener the
Canadian Civil Liberties Association: Addario Law Group, Toronto.
Solicitors for the intervener the
British Columbia Civil Liberties Association: Ruby Shiller Chan
Hasan, Toronto.
Solicitors for the intervener the
Ontario Crown Attorneys’ Association: Cavalluzzo Hayes Shilton
McIntyre & Cornish, Toronto.
Solicitor for the intervener the
Information and Privacy Commissioner of Ontario: Information and
Privacy Commissioner of Ontario, Toronto.
Solicitor for the intervener the
David Asper Centre for Constitutional Rights: University of Toronto,
Toronto.
Solicitors for the intervener the Criminal
Lawyers’ Association: Anthony Moustacalis, Toronto; Brauti Thorning
Zibarras, Toronto.
Solicitor
for the intervener the Attorney General of Alberta: Attorney General
of Alberta, Edmonton.