Her Majesty the Queen v. Emms [Indexed as: R. v. Emms]
104 O.R. (3d) 201
2010 ONCA 817
Court of Appeal for Ontario,
Rosenberg, Blair and Juriansz JJ.A.
December 3, 2010
Criminal law -- Evidence -- State of mind -- Trial judge erring in refusing to allow accused to testify about conversations he had with business associate to support his defence that he did not intend to defraud complainant as he honestly believed associate would repay money from past NSF cheques allowing him to repay complainant -- Evidence about accused's state of mind relevant and admissible -- Other evidence admitted showing accused's state of mind allowing jury to evaluate defence -- Exclusion of evidence causing no substantial wrong or miscarriage of justice -- Accused's appeal dismissed -- Criminal Code, R.S.C. 1970, c. C-34, s. 613(1)(b) (iii).
Criminal law -- Trial -- Jury trial -- Vetting jury panel -- Crown obtaining information about jury panel from police and not disclosing information -- Crown asking police whether any potential jurors had criminal record or if they had other relevant information -- Police giving Crown information, including comments about some potential jurors charged but not convicted of criminal charges -- Annotated jury list not disclosed to defence -- Accused's appeal from conviction [page202] dismissed -- Defence having right to disclosure of information about possible criminal history of prospective jurors but failure to disclose having no impact on reliability of verdict and not affecting overall fairness of trial process -- Misuse of police databases not resulting in miscarriage of justice -- Conduct of Crown Attorney's office and police service not so egregious as to bring administration of justice into disrepute.
The accused was convicted of fraud. He appealed, arguing that the trial judge erred in refusing to permit him to testify about conversations he had with a business associate, E, to support his defence that he did not intend to defraud the complainant, as the evidence would have shown that he honestly believed that E would make good NSF cheques she had given him, permitting him to repay the money to the complainant.
He also submitted that the appeal should be allowed because of the jury vetting process engaged in by the Crown Attorney's office in Barrie. The office sent copies of the jury list to five OPP detachments and the local police service with a letter asking whether anyone on list had a criminal record and added that "[i]t would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror". A civilian police employee consulted various police databases, including CPIC. Some information was provided to the Crown about people on the jury list that went beyond whether or not the potential jurors had a criminal record. The annotated jury list was not disclosed to defence counsel.
Held, the appeal should be dismissed.
Out-of-court statements tendered to show an accused's belief, assuming that belief to be relevant, are not hearsay as they were not admitted for the truth of their contents and are admissible. The accused's state of mind was relevant to his defence, and the evidence should have been admitted. However, the accused was permitted to adduce other evidence about his state of mind and he was allowed to testify about what he did as the result of the excluded conversations with his business associate. The jury had before it sufficient evidence to assess the accused's defence. In the circumstances, the excluded evidence could not reasonably have had an effect on the jury and resulted in no substantial wrong or miscarriage of justice.
Information about the criminal history of jurors, obtained from police databases and in the possession of the Crown, is relevant to the right to make full answer and defence and should be disclosed to the defence, as was conceded by the Crown on appeal. This vetting procedure was apparently standard practice in Barrie, despite a 2006 memorandum from the Assistant Deputy Attorney General requiring explicitly that such information must be disclosed to the accused. In this case, there were two jurors about whom the Crown had a notation indicating that they may have had past criminal involvement or accusations of criminal activity, whom the defence challenged peremptorily. Had the defence not done so, the pattern of the jury challenges suggests that the Crown would have challenged them. The Crown had one remaining peremptory challenge at the end of the process. On appeal, it was argued that had the disclosure been made, defence counsel might not have challenged the jurors, and forced the Crown to use her remaining peremptory challenge. Thus, the Crown would not have been able to peremptorily challenge the final juror she did challenge. Defence counsel on appeal speculated that the defence might have wished to seat the final juror the Crown challenged, whose occupation was listed as a bankruptcy analyst and receiver. The theory advanced was that the challenged juror might have had a [page203] favourable view of the defence, which was that the accused's acts were a civil wrong, not fraudulent. This entirely speculative assertion cannot support the argument that the overall fairness of the trial process was undermined by this juror being challenged by the Crown. The Crown could have sought to challenge the two jurors for cause based on their possible prior criminal involvement or asked the judge to find that they were ineligible to sit on a jury relying on s. 643(c), based on "other reasonable cause". Therefore, it is not clear that the Crown would have used all of her peremptory challenges had the defence not challenged these two jurors. In addition, at the conclusion of the jury selection process, the defence had two remaining peremptory challenges, so the result of using these challenges it might not have used had the proper disclosure been made was not that the defence had been unable to challenge a juror it did not wish seated. Thus, in all the circumstances, the failure to disclose in this case had no impact on the reliability of the verdict and did not affect the overall fairness of the trial process. The jury vetting process did not result in a miscarriage of justice.
The Information and Privacy Commissioner found that, while disclosure by the police to Crown counsel of criminal record information relevant to juror criminal conviction eligibility did not violate provincial privacy legislation, the collection and disclosure of other personal information going beyond criminal conviction information did breach the legislation. However, the rights that may have been infringed were those of the potential jurors, not the accused. The Commissioner had made recommendations to protect the privacy rights of the citizens of Ontario, and those recommendations had been followed up by the province with amendments to the Juries Act. To grant the accused a remedy for breach of the rights of potential jurors would be excessive. The misuse of police databases and the wording of the letter from the Crown Attorney, especially the inclusion of the phrase "It would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror", were inconsistent with Crown counsel's obligation to ensure that the accused received a fair trial. However, the information actually supplied was of limited utility and had no impact on the appearance of trial fairness. The conduct of the police service and the Crown Attorney's office was not the kind of egregious misconduct that brings the administration of justice into disrepute or caused reasonable people to believe that the appearance of justice has been undermined.
APPEAL from the conviction by Salmers J. of the Superior Court of Justice, sitting with a jury, on October 9, 2008 for fraud.
Cases referred to R. v. Hobbs, [2010] N.S.J. No. 386, 2010 NSCA 62, 293 N.S.R. (2d) 126, 257 C.C.C. (3d) 411, distd Other cases referred to R. v. Barrow, [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205; R. v. Blastland, [1986] A.C. 41 (H.L.); R. v. Carter, [1982] 1 S.C.R. 938, [1982] S.C.J. No. 47, 137 D.L.R. (3d) 385, 47 N.R. 288, J.E. 82-660, 46 N.B.R. (2d) 142, 67 C.C.C. (2d) 568, 31 C.R. (3d) 97, 8 W.C.B. 55; R. v. Dixon, [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17, 222 N.R. 243, J.E. 98-460, 166 N.S.R. (2d) 241, 122 C.C.C. (3d) 1, 13 C.R. (5th) 217, 50 C.R.R. (2d) 108, 37 W.C.B. (2d) 204; R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, 301 D.L.R. (4th) 1, 383 N.R. 1, J.E. 2009-174, 246 O.A.C. 154, 238 C.C.C. (3d) 353, 62 C.R. (6th) 1, 185 C.R.R. (2d) 26, EYB 2009-153175; R. v. Smith, [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, J.E. 92-1312, 55 O.A.C. 321, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133, 17 W.C.B. (2d) 97; R. v. Taillefer, [2003] 3 S.C.R. 307, [2003] S.C.J. No. 75, 2003 SCC 70, 233 D.L.R. (4th) 227, 313 N.R. 1, J.E. 2004-84, 179 C.C.C. (3d) 353, 17 C.R. (6th) 57, 114 C.R.R. (2d) 60, 61 W.C.B. (2d) 432; [page204] R. v. Theroux, [1993] 2 S.C.R. 5, [1993] S.C.J. No. 42, 100 D.L.R. (4th) 624, 151 N.R. 104, J.E. 93-793, 54 Q.A.C. 184, 79 C.C.C. (3d) 449, 19 C.R. (4th) 194, 19 W.C.B. (2d) 212; R. v. Wildman, [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, 12 D.L.R. (4th) 641, 55 N.R. 27, 5 O.A.C. 241, 14 C.C.C. (3d) 321, 13 W.C.B. 19; R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, 260 C.C.C. (3d) 421, 90 W.C.B. (2d) 298; R. v. Zlatic, [1993] 2 S.C.R. 29, [1993] S.C.J. No. 43, 100 D.L.R. (4th) 642, 151 N.R. 81, J.E. 93-792, 54 Q.A.C. 161, 79 C.C.C. (3d) 466, 19 C.R. (4th) 230, 19 W.C.B. (2d) 211 Statutes referred to Criminal Code, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) Criminal Code, R.S.C. 1985, c. C-46, ss. 626(1), 632(c), 638(1) (c), 686(1)(b)(iii) Juries Act, R.S.O. 1990, c. J.3, ss. 4(b), 18.2, 20 Rules and regulations referred to R.R.O. 1990, Reg. 680 (Juries Act) [as am.] Authorities referred to Cavoukian, Ann, Excessive Background Checks Conducted on Prospective Jurors: A Special Investigative Report (Toronto: Information and Privacy Commissioner of Ontario, Canada, 2009)
Mark Halfyard, for appellant. Deborah Krick, for respondent.
The judgment of the court was delivered by
[1] ROSENBERG J.A.: -- The appellant appeals from his convictions on charges of fraud by a court composed of Salmers J. and a jury in the City of Barrie. The appellant raises two grounds of appeal. He submits that the trial judge erred in refusing to permit him to testify about conversations he had with a business associate to support his defence that he did not intend to defraud the complainant. Further, he submits that the appeal should be allowed because of the jury vetting process engaged in by the Barrie Crown Attorney's office. For the following reasons, I would dismiss the appeal.
The Evidentiary Ruling
The facts
[2] The appellant had been involved for several years in a significant office supply and office furniture business operating through two companies: Trillium Office Supplies and Olympia Business Machines. However, by 2002 these businesses were encountering significant financial challenges, and in October 2003, his creditors brought an application to petition the companies and [page205] the appellant into bankruptcy. The applications were granted in part and receiving orders were made against the appellant personally and against Olympia in December 2003. No order was made against Trillium, but it had no assets. The fraud convictions relate to arrangements the appellant made for sales of office equipment in September 2003.
[3] As the appellant's businesses began to fail, he closed down his various warehouses and brought unsold furniture and office equipment to the garage and outbuildings at his residence near Barrie. By September 2003, the appellant's accounts in chartered banks had been closed and he was conducting his financial affairs through Cheques-4-Cash. He also did not have a normal office and was getting office support through a Mailboxes Etc. franchise, which was operated by Anne Earle. The evidentiary ruling about which the appellant complains concerns conversations the appellant had with Ms. Earle. Ms. Earle purchased items such as commercial copiers and shredders from the appellant, which she then resold for a profit. Ms. Earle was not called as a witness at the trial.
[4] Ms. Earle was a student of David Clare, who gave business coaching classes. Mr. Clare intended to set up a new office and learned of the possibility of purchasing office furniture through Ms. Earle. She gave him an office furniture catalogue that she had received from the appellant. The catalogue was put out by the Global group of companies. Before his financial difficulties, the appellant had considerable dealings with Global and he testified that he could still get furniture and equipment from Global at substantial discounts.
[5] Sometime in early September 2003, Mr. Clare met the appellant by chance at Ms. Earle's Mailboxes Etc. franchise. They discussed the possibility of Mr. Clare purchasing furniture from the appellant. The appellant told Mr. Clare that the furniture was for sale because of a split with his business partner; the furniture was his share of a settlement for closing the business. He said that the furniture was stored in a warehouse and it would be a couple of weeks before he could get access to it.
[6] The appellant told Mr. Clare that the furniture would be sold at a 35 per cent discount from the catalogue price. He would require a 50 per cent deposit when Mr. Clare placed his order. He promised Mr. Clare that he would repay any money owing if any of the furniture could not be delivered. As an incentive, the appellant promised to provide Mr. Clare with a free shredder that had a value of $4,000. The appellant testified that he provided the free shredder because he hoped Mr. Clare would steer more business to him. [page206]
[7] On September 16, 2003, Mr. Clare left his furniture order and a certified cheque for $9,000 payable to the appellant with Ms. Earle. The appellant picked up the cheque the following day. He then cashed the cheque at Cheques-4-Cash using $6,060 to cover NSF cheques that he had previously cashed at Cheques- 4-Cash and putting the rest of the money in his pocket. The appellant testified that those cheques had been given to him by Ms. Earle for a shredder and desktop copier that she had purchased from him.
[8] When the appellant had attempted to recount conversations he had with Ms. Earle, Crown counsel (not Ms. Krick) objected, apparently on the basis that the evidence was hearsay. Defence counsel and the trial judge then had this very brief exchange:
Defence counsel: I don't anticipate her being a witness but it's not going for the truth of its content, it's for what he did next.
Trial Judge: You can ask him what he did as a result of a conversation he had with Miss Earle.
[9] This became the pattern any time, during examination-in- chief, that the appellant attempted to relate things that had been said by Ms. Earle; either the trial judge or Crown counsel would intervene. While defence counsel again attempted to explain that the evidence was not going in for the truth, the trial judge maintained his ruling. The trial judge held as follows:
I understand your argument. I still do not want it to go in because she is not here to verify it and it is not anticipated she is going to be here to verify it. That is why. And I do not want the jury to be confused by me having to explain to them that distinction. And you can get the evidence in just as effectively by saying, "as a result of what she said, he did the following".
[10] When the appellant attempted to explain what Ms. Earle told him when he asked her about the NSF cheques, the following took place:
Q. And what did she tell you?
A. That it was somebody else's fault.
Q. And as a result of your conversation . . .
Crown counsel: Again, I missed it, but I would have objected.
Trial Judge: Go on, do not worry. Go ahead.
[11] The appellant then explained that he received a replacement cheque from Ms. Earle. He cashed that cheque as well and pocketed the money. However, the appellant received a telephone call a few days later from Cheques-4-Cash that the replacement cheque also bounced. He testified that he again spoke to [page207] Ms. Earle and as a result of that conversation he told Cheques-4-Cash that he was unable to collect the money from Ms. Earle at that point and he would "try to do something else". According to the appellant, the manager at Cheques-4-Cash then agreed to lend the appellant the $8,200, which would cover the balance of the replacement cheque as well as an additional $2,000. While this transaction was also the subject of a charge, the jury found the appellant not guilty.
[12] The appellant delivered the shredder to Mr. Clare the day after he received the deposit cheque from him. However, he did not deliver any of the furniture that Mr. Clare ordered. Mr. Clare made several attempts to contact the appellant to find out what had happened. After a dispute over the provincial sales tax, Mr. Clare cancelled his order. The appellant promised to return the money. He paid Mr. Clare $1,000 just before the bankruptcy order but nothing else.
[13] The appellant explained that he could not return the money to Mr. Clare (or any of the other complainants) because he did not have the funds. And, once he was placed into receivership, he had no control over his money.
[14] The facts respecting the other two complainants were similar to that of Mr. Clare and can be briefly summarized as follows. Susan Peacock was co-owner of Parry Automotive in Orillia. Mr. Clare told her about the opportunity to purchase office furniture at reduced prices from the appellant. Ms. Peacock called the appellant and he met with her and showed her a catalogue. He told her the same story about the split with a business partner, that the furniture was in a warehouse in Toronto and that her order would be delivered in a couple of weeks.
[15] On September 25, 2003, Ms. Peacock faxed an order for some furniture to the appellant. He then spoke to her and told her he would need a deposit and that there was a 35 per cent discount. The appellant also agreed to provide Ms. Peacock with a fax/copier. There was a dispute about this machine. Ms. Peacock testified that the machine was security for her deposit and was to be free. The appellant claimed that it was not free. In any event, the appellant did provide the machine to Ms. Peacock and she gave him a cheque for $2,250 on September 26. The appellant cashed the cheque that same day at Cheques-4- Cash. The appellant did not deliver the furniture and did not return the deposit.
[16] Catherine Labatt was the vice-president of Larway Transportation and a student of Mr. Clare's. She also learned about the opportunity to purchase furniture at a discount from the appellant. She placed an order for some furniture and [page208] provided a cheque for $3,800 on September 30, 2003. The appellant told her the furniture would be delivered within one week. The appellant immediately cashed the cheque. When the furniture did not arrive as promised, Ms. Labatt attempted to contact the appellant. He eventually called her back and told her the furniture had to be removed from a warehouse and it would be delivered soon. She never received the furniture nor any of the money.
[17] It was not entirely clear how the appellant was going to fill the orders placed by the complainants. While some of the equipment would come from the items stored at his residential property, the appellant would have to order most of the furniture from Global. He testified that he was confident Global would supply the furniture to him, albeit on a cash-on- delivery basis. The appellant testified that on October 8, he and Ms. Earle figured out what items he already had and then together they prepared an order to place with Global. However, as he was preparing the order, he realized that Ms. Peacock and Ms. Labatt had miscalculated the amount of the discount and did not provide large enough deposits. As a result, he never placed the order with Global. He neither returned the deposits or provided the furniture.
[18] The appellant testified that he spoke to Mr. Clare about the shortages in the deposits from Ms. Peacock and Ms. Labatt. He then became embroiled in a dispute with Mr. Clare, who now wanted to lease the furniture rather than purchase it. There was also some dispute involving PST and GST. According to the appellant, Mr. Clare not only cancelled his order but the orders of Ms. Peacock and Ms. Labatt.
[19] In cross-examination, the appellant had a further opportunity to explain some of his dealings with Ms. Earle. He testified that when he was unable to obtain the money from Ms. Earle to cover the NSF cheques, he borrowed the money from Cheques-4-Cash. He believed that he would get the money back from her on October 15, 2003. Later he testified that from speaking with Ms. Earle he would have the money in early 2004 to pay back the complainants: "the repayments that are promised and everything, that was my understanding that I would be able to do it. It never materialized." He thought he would be able to make the payments through Trillium, because it had not been placed into receivership.
[20] The appellant agreed that he did not put the deposit money into any kind of separate account as he did not think he needed to. He was unsure what he had done with the money after cashing the deposit cheques, although he thought some of [page209] it probably went to pay legal fees. The appellant also had various other debts during this time, including $70,000 that he owed for taxes. The only way he would be able to pay for the furniture from Global or pay back the complainants was if Ms. Earle paid him the money she owed him. He testified as follows in cross-examination:
Q. And so you were assuming once you placed that order with Global, that you would have some other money coming in from some other source that you would then use to pay Global for the furniture that you would then sell to these three people, correct?
A. And I was told from Anne that I'd have my money and we placed the order accordingly, yes.
Q. Right. So you were relying on Anne to pay you the money that you could then pay to Global?
A. Anne got the people's money in the first place right, when the cheque bounced?
Q. Yeah, but Anne wasn't going to -- you weren't relying on the rest of their money to pay for the original order, they paid you a deposit already. They would only pay you . . .
A. That's right.
Q. . . . the remainder when you delivered the furniture?
A. And had the orders been proper, I would have then had more than sufficient funds to do it and it's discovered when we're doing the order that we didn't get enough money from them. Right?
Q. Just getting back again to my original question. When you were thinking about placing the order for Global Furniture the money that you expected to use for that would have come from Anne Earle because she owed you money?
A. Correct. (Emphasis added)
[21] The appellant testified in re-examination that the last time he talked to Ms. Earle was in 2004. They were not on friendly terms because she never paid him the money she owed him.
[22] It was the position of Crown counsel at trial that the appellant's dealings with the complainants were dishonest; that he was in desperate financial straits, had no sources of income and yet immediately pocketed the deposits from the complainants, which he then used for his own purposes such as legal fees. However, that position hinged in part on the appellant's dealings with Ms. Earle. It was Crown counsel's position that the appellant could not reasonably have believed that Ms. Earle would [page210] make good on her NSF cheques. She said the following in her closing address to the jury:
The accused admitted that his plan was that he would use the money that Anne Earle owed to him and was supposed to pay him back, to purchase the furniture on behalf of the complainants. Given that Miss Earle had written him two N.S.F. cheques prior to his deal with Mr. Clare, and three N.S.F. cheques by the time he made his deals with Susan Peacock and Catherine Labatt, the Crown's position is that he could not have had an honest, reasonable expectation that Miss Earle would pay him back in order that he might be able to fulfill his promises to Mr. Clare, Miss Peacock, and Miss Labatt.
[23] The trial judge repeated this position in his charge to the jury. He told the jury that it was the Crown's theory that the appellant "could not have had an honest, reasonable expectation that Ms. Earl would pay him back in order that he might be able to fulfill his promises".
Analysis
[24] In my view, the trial judge erred in law by refusing to permit the appellant to relate his conversations with Ms. Earle concerning the NSF cheques. As defence counsel explained at trial, the evidence was not being tendered for its truth. In fairness to the trial judge, defence counsel (not Mr. Halfyard) did not clearly articulate the basis for admission of the evidence. Defence counsel merely stated that the evidence was being tendered "for what he did next". In fact, the real probative value of the evidence lay in informing the appellant's belief that he would be able to pay for the furniture from Global or repay the complainants. Out-of-court statements tendered to show an accused's belief, assuming that belief to be relevant, are not hearsay and are admissible. In R. v. Smith, [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, at p. 926 S.C.R., Lamer C.J.C. adopted the following statement from R. v. Blastland, [1986] A.C. 41 (H.L.), at p. 54:
It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person's state of mind. This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial. (Emphasis added)
[25] As Crown counsel recognized in her jury address, the appellant's state of mind was relevant. The appellant should have been allowed to tell the jury what Ms. Earle told him that led him to believe that she would repay the money she [page211] owed, despite the fact that she had given him three NSF cheques over a very short period of time.
[26] The trial judge's reason for not allowing the appellant to relate the conversations he had with Ms. Earle was that the jury would be confused between the hearsay and non-hearsay uses of the evidence because she would not be at the trial "to verify it". In my view, this concern was misplaced. It is well- established that juries are presumed to be able to follow instructions, even complex jury instructions concerning the application of the hearsay rule. Consider, for example, the instructions a trial judge must give a jury in accordance with R. v. Carter, [1982] 1 S.C.R. 938, [1982] S.C.J. No. 47, where the Crown seeks to rely on the co-conspirators' exception to the hearsay rule.
[27] In any event, the instructions that would have to be given in this case would not have been complex or difficult for the jury to follow. It would simply be necessary to tell the jury that the appellant was permitted to relate what Ms. Earle told him so that the jury could assess the honesty and reasonableness of his belief that she would repay him. The trial judge would have to caution the jury that since Ms. Earle did not testify, the jury had no evidence that Ms. Earle actually had the means to repay the appellant.
[28] Again, to be fair to the trial judge, if as defence counsel stated, the evidence was tendered solely to show what the appellant did next, it was not necessary to tender the actual conversations. As the trial judge said, the appellant could put his case just as effectively by saying what he did as a result of speaking to Ms. Earle.
[29] The respondent Crown submits that no substantial wrong of miscarriage of justice was occasioned by the trial judge's ruling. Ms. Krick puts her position on two bases. First, the ruling did not in fact prevent the appellant from putting the substance of his defence. Second, in any event, the appellant's belief that he would be able to repay the complainants was no defence.
[30] Dealing with Ms. Krick's first argument. The jury was aware of the following things Ms. Earle told the appellant, in great part due to Crown counsel's cross-examination of the appellant:
-- Ms. Earle told the appellant that it was somebody else's fault that the first two cheques were NSF.
-- Ms. Earle told the appellant he would get his money.
-- When the third cheque was returned NSF, the appellant learned from a conversation with Ms. Earle that he would not [page212] be getting his money immediately; at this time, he then made the arrangements to borrow money from Cheques-4-Cash.
-- As a result of what Ms. Earle told him, he believed he would get the money and would be able to repay the deposits or pay for the Global order.
-- The appellant tried unsuccessfully to collect the money from Ms. Earle.
[31] Crown counsel submits that hearing the actual substance of what Ms. Earle told the appellant would not have appreciably bolstered the defence, especially since Ms. Earle was not going to be called to support the appellant's position. [See Note 1 below]
[32] The respondent's second argument turns on the definition of fraud. As McLachlin J. pointed out in R. v. Theroux, [1993] 2 S.C.R. 5, [1993] S.C.J. No. 42 and R. v. Zlatic, [1993] 2 S.C.R. 29, [1993] S.C.J. No. 43, the fact that an accused may have hoped the deprivation would not take place is no defence. All that the Crown had to prove was that the appellant knew that he was undertaking a prohibited act that could cause deprivation in the sense of depriving the complainants of their property or putting their property at risk. The appellant's dealings with Ms. Earle did not meet the Crown's case. Even if the appellant honestly and reasonably believed that Ms. Earle would make good on the replacement cheque, that would have been sufficient only to pay back part of the loan to Cheques-4-Cash. The replacement cheque would not have been sufficient to cover the complainants' deposits. Further, that money would not support the furniture order to Global, which the appellant had to pay for when the goods were delivered. The appellant conceded that he had used the complainants' deposits, which totalled approximately $15,000, for his own purposes. The appellant had no other source of income and had other very substantial debts.
[33] In R. v. Wildman, [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, at p. 329 S.C.R., Lamer J. explained the application of the proviso in s. 686(1)(b)(iii) [of the Criminal Code, R.S.C. 1985, c. C-46] (then s. 613(1)(b)(iii)) of the Criminal Code, R.S.C. 1970, c. C-34 [page213] where a trial judge erroneously excludes potentially exculpatory evidence, which explains the appellant's state of mind:
But when the error of law is the preclusion of exculpatory evidence, then the determination must be made with regard to the entirety of the evidence, that evidence having been included, and in the light of the effect the excluded evidence could, within reason, possibly have had on the evidence that did go to the jury. Any reasonable effect that excluded evidence could have had on the jury should, in applying s. 613(1)(b)(iii), enure to the benefit of the accused. When the excluded evidence is, as in this case, of a certain importance and might reasonably have had an effect on the jury then, even assuming we in this Court would have nevertheless convicted, I find it difficult to be satisfied that the jury would have necessarily agreed with us. Any reasonable, possible effect of that excluded evidence on the jury should enure to the benefit of Wildman.
[34] In my view, the respondent has met that test. The excluded evidence could not reasonably have had an effect on the jury given the evidence the jury did have about the appellant's dealings with Ms. Earle. The evidence available to the jury was sufficient for the defence's proposition that the appellant believed Ms. Earle would repay him. In this respect, it must also be kept in mind that the appellant was not prevented from saying what he did as a result of speaking to Ms. Earle, which was the only basis upon which the evidence was sought to be admitted at trial. I would not give effect to this ground of appeal.
The Jury Vetting Issue
The facts
[35] In May 2009, many months after the appellant had been convicted and filed his notice of appeal, possible improprieties in the jury selection process in Barrie came to light. The Crown Law Office-Criminal has disclosed the jury lists and other materials in relation to the appellant's case, which the appellant seeks to introduce as fresh evidence. The proposed fresh evidence demonstrates the following.
[36] On September 4, 2008, staff in the Court Services Division of the Ministry of the Attorney General provided a copy of the jury panel list for the week of September 22 to the Barrie Crown's office. On September 10, an administrative assistant in the Crown Attorney's office sent copies of the jury list to five local Ontario Provincial Police detachments and the Midland Police Service with a memo that included the following requests:
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 dates of birth. [page214]
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. (Emphasis added)
[37] The memo, which was a standard form letter, was signed by the staff member on behalf of the Crown Attorney. The administrative assistant who sent out the list received back the annotated lists, which she then used to compile a master list that Crown counsel used to assist her in jury selection. Trial Crown counsel did not disclose the annotated list to defence counsel. This appears to have been consistent with the policy in the Barrie Crown's office despite an explicit 2006 memo from the Assistant Deputy Attorney General. That memo directed Crown counsel not to undertake an investigation into the list of jurors, other than criminal record checks, and required that "criminal record checks, if done, and any concrete information provided by police to the Crown suggesting that an individual may not be impartial, should be disclosed to the defence".
[38] The checks done by the police in response to the request from the Crown Attorney varied somewhat. In general, it appears that a civilian employee did the checks by consulting various databases that are available only to the police. These include CPIC, which is a national database, and Niche RMS, which is a database that manages investigative records of police agencies. Both CPIC and Niche RMS contain much more information than simply records of criminal convictions and can include information about outstanding warrants, various court orders, charges, police contacts and investigations relating to individuals and locations.
[39] The information provided to Crown counsel by the police was limited, usually consisting of the note "OK", which Crown counsel understood to mean that the juror did not have a criminal record. There were, however, several more elaborate comments. For example, against one juror was the note "CNI 1995 Drugs no convictions" (CNI is Criminal Name Index). And, against several names was the note "possible", which Crown counsel interpreted as meaning that the juror possibly had a criminal record. Crown counsel acknowledged that the notations were a factor in her decision as to how she exercised her peremptory challenges.
[40] In all, four people were called forward at jury selection about whom Crown counsel had information showing a possible criminal history. Of those four, Crown counsel challenged two of them, and defence counsel challenged the other two. The two challenged by defence counsel were as follows: [page215] (1) Juror 5679, the juror whose name had the notation "CNI 1995 Drugs no convictions" was subject to peremptory challenge first by defence counsel. (2) Similarly, defence counsel challenged juror 2818, whose name had the notation "possible". Defence counsel had the first challenge with this juror as well.
[41] Given the pattern of use of information by Crown counsel, it is likely that she would have challenged both of these jurors, had defence counsel not done so. In this case, Crown and defence counsel each had 12 peremptory challenges. At the end of jury selection, defence counsel had two peremptory challenges remaining. Crown counsel had one peremptory challenge remaining.
The legal framework for jury selection
[42] Jury selection is governed by the Criminal Code and provincial legislation. Provincial legislation is relevant because of s. 626(1) of the Criminal Code, which provides as follows:
626(1) A person who is qualified as a juror according to, and summoned as a juror in accordance with, the laws of a province is qualified to serve as a juror in criminal proceedings in that province.
[43] Under s. 4(b) of the Juries Act, R.S.O. 1990, c. J.3, as it then read, a person was ineligible to serve as a juror if the person had been convicted of an indictable offence for which they had not been granted a pardon. [See Note 2 below]
[44] It should also be noted that s. 20 of the Juries Act, as it then stood, provided that the jury roll was to be kept under lock and key by the sheriff until ten days before the sittings of the court for which the panel has been drafted. It will be recalled that, in this case, court services provided the list for the September 22 sittings to the Crown's office on September 4.
[45] The other relevant statutory provision is s. 638(1)(c) of the Criminal Code, which provides that a prosecutor or an accused may challenge a juror for cause on the basis that the juror has been convicted of an offence for which the person was sentenced to death or to a term of imprisonment exceeding 12 months.
Analysis
[46] Counsel for the appellant submits that the undisclosed jury vetting that occurred in this case resulted in a miscarriage [page216] of justice, requiring that the convictions be set aside and a new trial ordered. That submission is based on the fact that the information about criminal history was not disclosed and, more broadly, on the impact on the administration of justice.
Non-disclosure
[47] Counsel for the respondent concedes that information about the possible criminal history of prospective jurors should have been disclosed to the defence. I agree with that concession. The Crown's disclosure obligation is a broad one and as recently expressed by the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, at para. 17, includes "any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence". As Dickson C.J.C. said in R. v. Barrow, [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at p. 710 S.C.R., "selection of an impartial jury is crucial to a fair trial". In my view, information about criminal history of jurors, obtained from police databases and in the possession of the Crown, is relevant to the right to make full answer and defence. Such information could affect the juror's eligibility for serving on the jury in accordance with the Juries Act and the Criminal Code. The information would also be relevant to a possible challenge for cause under s. 638(1)(c) of the Criminal Code. The information would also be of assistance to the accused in deciding whether to exercise peremptory challenges.
[48] The impact of the failure to disclose this information must be analyzed in accordance with the framework established by the Supreme Court of Canada in R. v. Dixon, [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17 and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, [2003] S.C.J. No. 75. As explained in R. v. Dixon, at paras. 33 and 34, the appellant must demonstrate on a balance of probabilities that the failure to disclose impaired the right to make full answer and defence. This burden is discharged where the appellant demonstrates that there is a reasonable possibility the non-disclosure "affected the outcome at trial or the overall fairness of the trial process". Similarly, see R. v. Taillefer, at paras. 77 to 84. Information of the type that should have been disclosed in this case is not easily analyzed under this test, which is directed more to the reliability of the trial verdict because of information relating to the commission of the offence or possible defences.
[49] The failure of disclosure in this case had no impact on the reliability of the verdict. The information was unrelated to the elements of the offence or anything to do with the appellant's [page217] defence to the charges. In my view, there is also no reasonable possibility that the non-disclosure had any impact on the partiality of the jury.
[50] The appellant submits that had defence counsel known of the undisclosed information regarding jurors 5679 and 2818, he would not have used two of his peremptory challenges to challenge them, since he would know that Crown counsel would challenge them. That may be, but at the end of jury selection defence counsel still had two peremptory challenges remaining. The fact that he may have "wasted" two challenges did not impact on the kind of jury he wanted to try the case. There was not a reasonable possibility that the non-disclosure had any impact on the verdict since, one way or another, jurors 5679 and 2818 were not going to be on that jury.
[51] For the same reasons, I am of the view that the non- disclosure did not affect the overall fairness of the trial process. True, defence counsel might well have reserved the two challenges that were used on jurors 5679 and 2818, but since he still had two challenges remaining, the actual composition of the jury from the defence point of view was unaffected.
[52] There is only one possible scenario that might have changed the way in which the challenges were exercised. This scenario is raised in written submissions counsel were invited to make following release of this court's decision in R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637. Had Crown counsel been forced to use two of her challenges on jurors 5679 and 2818, she would not have had a challenge left when it came to consider juror 2586, the last juror actually challenged by Crown counsel. What do we know of juror 2586? This juror disclosed his occupation during the jury selection as "Senior Bankruptcy Analyst and Official Receiver". In his written submissions, counsel for the appellant suggest this juror "may have been someone the defence wanted to have on the jury given their occupation and the perspective they might bring to this case" in view of the defence theory that this was a civil wrong. That hardly seems likely but, in any event, to suggest that the overall fairness of the trial process was impacted in those circumstances descends from the reasonably possible to mere speculation.
[53] While this case was under reserve, the decision of the Nova Scotia Court of Appeal in R. v. Hobbs, 2010 NSCA 62, [2010] N.S.J. No. 386, 257 C.C.C. (3d) 411 (C.A.) was decided. That case has been reviewed by Watt J.A. in R. v. Yumnu, and I need not repeat that analysis. Suffice to say that it is distinguishable from this case. In Hobbs, the Nova Scotia Court of Appeal found that there was [page218] an actual impact on the jury selection, a factor not present in this case.
The appearance of justice
[54] In my view, even if the appellant cannot meet the Dixon test from the non-disclosure, it is still open to him to argue more broadly that the appeal should be allowed under s. 686(1) (a)(iii) of the Criminal Code on the ground that there has been a miscarriage of justice. The allegation of a miscarriage of justice rests on the appearance of justice and includes the non-disclosure, the violations of the Juries Act and provincial privacy legislation, misuse of police databases and the wording of the memo from the Crown Attorney.
[55] Before addressing those issues, I think it is necessary to consider some further contextual elements. The most important contextual factor is that while both the Criminal Code and the Juries Act contemplate that persons with criminal records of certain kinds not be eligible for jury duty, the legislation at the time this case was tried provided no formal procedure for making criminal record checks. While a questionnaire sent to potential jurors asks them to identify whether or not they had a criminal record, that system was found by the Information and Privacy Commissioner to be "seriously flawed": Information and Privacy Commissioner of Ontario, Excessive Background Checks Conducted on Prospective Jurors: A Special Investigative Report (Toronto: Information and Privacy Commissioner of Ontario, Canada, 2009) at p. 141. There was thus nothing wrong per se about checking the criminal records of potential jurors. Indeed, the Information and Privacy Commissioner concluded that disclosure by the police to Crown counsel of criminal record information relevant to juror criminal conviction eligibility did not violate provincial privacy legislation: Excessive Background Checks Conducted on Prospective Jurors: A Special Investigation Report, at p. 127. However, the Commissioner found that the collection by the police and disclosure to the Crown of other personal information going beyond criminal conviction information did breach the legislation. And, of course, Crown counsel's failure to disclose criminal conviction information to the defence is a breach of the Crown's disclosure obligations.
[56] As well, as Watt J.A. observed in R. v. Yumnu, at para. 74, the Law Society of Upper Canada and the Canadian Bar Association rules of professional conduct do not prohibit inquiries for the purpose of exercising a challenge for cause, which would include a challenge under s. 638(1)(c): [page219]
In express terms or by necessary implication, both sets of Rules of Professional Conduct permit inquiries about prospective jurors to ascertain any basis for challenge and use of the results of those inquiries as the basis for a challenge. The Rules require disclosure of any information obtained to both the presiding judge and opposing counsel and bar any direct or indirect communication with the prospective jurors or members of their family. The scope of permitted inquiry would include investigations about criminal records. Impermissible inquiries contravene a fundamental tenet of the criminal justice system: R. v. Latimer, [1997] 1 S.C.R. 217, at para. 43.
[57] Finally, while defence counsel may have "wasted" two of his peremptory challenges, arguably so did Crown counsel. Rather than use two of her peremptory challenges on the two jurors with the notations "possible", Crown counsel could first have attempted a challenge for cause under s. 638(1)(c) of the Criminal Code on the basis that the jurors had been convicted of an offence for which they were sentenced to imprisonment for a term of 12 months or more. Alternatively, Crown counsel could have brought the fact of the possible criminal record to the attention of the trial judge and asked the trial judge to exclude the juror on the basis that the juror was ineligible to serve pursuant to s. 626(1). It would seem to me that such ineligibility falls within the words of s. 632(c), which allows a trial judge to excuse a juror for "any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused". Obviously, to do so would be preferable since it is a transparent process and would have been consistent with Crown counsel's disclosure obligations. On the other hand, simply exercising the peremptory challenges was far less embarrassing to the jurors.
[58] I will now address the various elements of the miscarriage of justice claim: the non-disclosure, the violations of the Juries Act and provincial privacy legislation, misuse of police databases and the wording of the memo from the Crown Attorney. I do not need to say anything further about the non-disclosure of the information provided to Crown counsel. The failure to disclose was a breach of the disclosure obligations on Crown counsel. However, that breach had no discernable impact on the composition of the jury.
[59] In my view, the alleged breach of provincial privacy legislation adds nothing to the miscarriage of justice claim. The rights that may have been infringed were those of the potential jurors, not the appellant. Those claims have been fully investigated by the Information and Privacy Commissioner and she has made recommendations to protect the privacy rights of the citizens of Ontario. Those recommendations have been followed up by the province with amendments to the Juries Act, ss. 4(b) and 18.2 and the Juries Act, Regulations, R.R.O. 1990, Reg. 680 [page220] as amended by O. Reg. 231/10. That is the appropriate remedy. To grant the appellant a remedy for breach of the rights of potential jurors would be excessive.
[60] The most troubling aspects of the case are the misuse of the police databases and the wording of the letter from the Crown Attorney, especially inclusion of the phrase "It would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror." This use of police resources and attempt to align the Crown with the police is inconsistent with Crown counsel's obligation to ensure that the accused receives a fair trial. But, what occurred must be put in context. The information actually supplied was of limited utility and related to criminal record information, except in two respects. A civilian employee of the OPP Huronia West detachment identified two potential jurors with criminal history not resulting in convictions. I have already referred to the one juror who was identified as having "1995 Drugs no convictions". This juror was challenged by the defence, so there is no way of knowing how Crown counsel would have used the information. The information did not impact on the appearance of fairness of the trial. Another juror was identified as being "Suspect in Assualt/Accused Theft Under 2006 -- CNI: Theft no convictions 2006". This juror was never called forward for the jury selection process.
[61] The collection and disclosure of this information was a misuse of the police databases and should not have occurred. It would appear to be a product of the Crown Attorney's letter, which was improperly worded. But, did this process so taint the administration of justice that a verdict reached by a properly constituted jury be set aside? In my view, that would be a disproportionate reaction. The conduct of the police service and the Crown Attorney's office is not the kind of egregious misconduct that brings the administration of justice into disrepute or would lead reasonable people to believe that the appearance of justice had been undermined.
[62] In my view, the appellant has not established that his conviction should be set aside on the basis of a miscarriage of justice.
Disposition
[63] Accordingly, I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: It should also be pointed out that neither at trial nor on appeal has the appellant ever provided any evidence as to what Ms. Earle told him, beyond what is in the transcript. That said, the burden is on the Crown to establish that no substantial wrong of miscarriage of justice was occasioned by the ruling.
Note 2: The Act has since been amended to provide that the person is ineligible if convicted of an offence that may be prosecuted by indictment.