Today the Ontario Court of Appeal released the decision of R. v. Spiers, 2012 ONCA 798 that overturned a first-degree murder conviction and ordered a new trial. It was held that the Crown’s improper vetting of the jury through misuse of police databases, breaches of internal Crown policies, and breaches of privacy legislation created a situation that was unfair due to the imbalance of information that each side had in selecting the jury.
The Court held that the Appellant established “that both the improprieties and the failure to disclose have resulted in the appellant being tried by a jury differently constituted than if the breaches had not occurred” as well as that “I conclude that the well-informed and reasonable person would perceive the jury selection process in this case to be unfair.” (para 89).
An imbalance created but by the Crown in vetting based upon exclusive information.
In delivering the judgment for the Court, Rouleau J.A. held:
 In my view, the major purpose of peremptory challenges, “to foster confidence in the jury trial process”: Gayle, at para. 59, was undermined to such a degree as to create the appearance of unfairness. The extent of the imbalance created and the significance of the improprieties have so tainted the appearance of a fair process as to amount to a miscarriage of justice and lead reasonable people to believe that the appearance of justice has been undermine
What was the Crown directive?What was particularly troubling was a memo, released by the Crown Attorney of the Region in Barrie stating:
Please check the attached jury panel lists, for the persons listed in your locality, and advise if any have criminal records. We are not able to provide birthdates.
It would be helpful if comments and details could be made concerning any disreputable person 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. …
This memo was then copied to the other prosecutor in this case. The checks included
…not only CPIC criminal record checks, but also searches of databases for all police contact with the potential jurors, including Highway Traffic Act violations (also referred to as M.T.O. records), and other police occurrence reports of encounters the police had with citizens, whether or not investigative. The information obtained filled several binders and was provided to the Crown together with annotated jury lists.”
What was uncovered in police searches:
These checks led to in one panel alone to 500 to 600 pages of information obtained from various police databases. The Court found that this included handwritten comments on some of the pages, comments such as “Flag, Hates police”, “No”, and “No…MTO.” Beyond that, further notes included: “ok”, “If born in 1952 – has mental issues”, “Complainant”, “No” and “Complaint in domestic assault 2005.” None of this information was disclosed to the defence, notwithstanding that the Crown on appeal conceded it ought to have done so.
The challenge process of jury selection must be fair.
In extrapolating their reasoning in granting a new trial, the Court of Appeal reminded us of the importance of the challenge process for juries in criminal cases in achieving both a fair trial and one that is perceived to be fair by the reasonable member of the public. As stated at paragraph 60: Put differently, disruptions in the peremptory challenge process will not result in a jury or jurors that can be shown to be partial. Instead, it will impair one or other party’s ability to fashion a jury that the party, subjectively, considers to be impartial… “[a]n important part of the jury selection process is the right of both the Crown and the defence to exercise peremptory challenges … The justification for allowing peremptory challenges is that they foster confidence in the jury trial process.”
In concluding a new trial was necessary, the Court did not go so far as to order costs as requested by the defence. The Court found that “the appellant has not, however, shown that there was any malicious intent or intentional breaches by the trial Crowns. Despite the seriousness of the breaches, I consider ordering a new trial to be an adequate remedy and do not view this case to be one in which costs ought to be awarded to discipline and discourage “flagrant and unjustified” or “egregious” instances of non-disclosure. See R. v. 974649 Ontario Inc., 2001 SCC 81,  3 S.C.R. 575, and R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575.”