The Ontario Court of Appeal has for the first time quashed a conviction and ordered a new trial as a result of background checks on potential jurors that were conducted by police on behalf of the Crown and not disclosed to the defence.
The background checks that took place in Barrie, Ont., in the 2007 murder trial of Clare Alexander Spiers “disrupted the balance in the jury selection process to such an extent as to constitute a miscarriage of justice,” the three-judge panel concluded.
The province’s highest court has been asked to overturn convictions in at least a half dozen appeals where so-called jury vetting occurred since the existence of the practice in Barrie and other jurisdictions in Ontario was uncovered by the media in 2009.
The appeals were all dismissed even though the extent of the background checks and their use by the Crown were very similar in at least two other cases, also in Barrie, to what took place in the Spiers trial.
Those two cases, along with a third based in Cobourg, Ont., are still on reserve at the Supreme Court of Canada more than eight months after it heard oral arguments.
Spiers, 47, was convicted by a jury of first-degree murder in the kidnapping, strangling, and stabbing death of a 60-year-old woman after six days of deliberation.
Several police officers conducted background checks on the more than 240 people in the jury panel, which was a long-standing practice in Barrie. The Crown forwarded copies of administrative lists of prospective jurors to police that contained contact information as well as names. A memo issued by former Crown attorney Lorne McConnery asked police to check for criminal records and if “comments and details could be made concerning any disreputable person we would not want as a juror.”
A version of this memo had been sent out in Barrie to police for several years, although the phrase “and details” was added to the instructions in the 2007 note.
Police searched the Canadian Police Information Centre computer, the much broader Niche records management system, and other databases to search for any contact with police.
The fact that jury lists don’t include birthdates made it virtually impossible to use only CPIC to find any past criminal convictions that the Crown claimed was the purpose of these checks.
“This was improper data mining,” says Anthony Moustacalis, a Toronto defence lawyer who represented Spiers in the appeal. “It was a breach of the Juries Act. It was a breach of privacy legislation.”
As part of the fresh evidence process in the appeal, the trial Crowns provided unsworn written statements about their use of the information obtained by police, which included comments such as “hates police” or “complainant in a domestic assault.”
McConnery said the checks were reviewed “very summarily” but he looked for information that would suggest a “negative attitude” toward law enforcement. Former Crown Elizabeth Quinlan (now a Superior Court judge), responding through a lawyer, said she looked for criminal records and anyone with “significant” driving offences or possible mental-health issues.
At the time of the trial, a conviction for an indictable offence was required to be ineligible to serve as a juror (that was amended in 2010 to extend to any hybrid offence conviction).
Moustacalis says the background checks didn’t uncover anyone who was ineligible as a result of a conviction for an indictable offence. “I think the Court of Appeal recognized that this was an outrageous example of jury vetting. All these potential jurors had their private information improperly accessed without their knowledge,” he says.
The Court of Appeal rejected arguments by Crown attorney Michal Fairburn that the Rules of Professional Conduct approve of the collection of background information on prospective jurors.
“The Rules do not authorize Crowns to engage in jury-vetting practices that run afoul of ministry policy and violate privacy legislation,” wrote Justice Paul Rouleau with justices Stephen Goudge and Harry LaForme concurring.
“The Crown misused police databases that the appellant could not access,” stated Rouleau.
The Court of Appeal distinguished its ruling from another decision in 2010 in R. v. Yumnu, a case that also involved widespread data searches of potential jurors in Simcoe County.
Several databases were accessed, the Crown’s jury list was colour-coded, and police even made use of information on where an individual lived before informing Crown attorneys Mike Flosman and Gisele Miller as to whether someone was acceptable. It was a team approach, testified a police officer in the fresh evidence application as he explained how he would signal the Crown in court during jury selection based on the information he acquired.
The Court of Appeal decision in Yumnu, written by Justice David Watt, concluded that the purpose of the database searches was to find out if a potential juror had a criminal record. None of the more than 800 potential jurors subjected to the background checks was found to be ineligible. Yumnu is one of the three appeals still on reserve at the Supreme Court.