Supreme Court

Charter of Rights

No reasonable possibility jury would have been different had disclosure been made

Accused appealing conviction for first degree murder following high profile trial for killing police officer. While appeal pending, Crown disclosing fact police had annotated jury lists with personal opinions as to suitability of jurors. Police providing only perfunctory opinions as to suitability of jurors, not providing basis for opinions. Extensive pre-screening of jurors taking place to ascertain any partiality, bias as victim was police officer. Crown challenging some jurors with positive reports from police, not challenging one with negative report. Court of Appeal dismissing appeal, holding police opinions were not “information” required disclosed. Appeal court holding jury would not have been differently constituted if police opinions had been disclosed in light of extensive pre-trial screening, pattern of use of peremptory challenges. Further appeal dismissed. Crown permitted to consult with police regarding concerns relating to partiality, eligibility, and suitability of prospective jurors provided relevant information disclosed. General impressions of officers need not have been disclosed provided underlying information readily ascertainable by members of community, and defence can draw own inferences based on raw information. Failure to disclose must have resulted in reasonable possibility that jury would have been differently constituted in order to displace presumption of juror impartiality. Crown entitled to demonstrate juror partiality if presumption displaced. Crown should not have gathered police opinions in accused’s case as reflected information obtained as police officers, and community residents with no underlying information provided for bald opinions. Court of Appeal holding that no reasonable possibility jury would have been different had disclosure been made entitled to deference. No appearance of unfairness in proceedings that rose to level of miscarriage of justice.

R. v. Davey (Dec. 21, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34179) Decision at 264 C.C.C. (3d) 465, 93 W.C.B. (2d) 668 was affirmed. 104 W.C.B. (2d) 751.

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