Her Majesty the Queen v. Davey [Indexed as: R. v. Davey]

103 O.R. (3d) 161

2010 ONCA 818

Court of Appeal for Ontario,

Rosenberg, Blair and Juriansz JJ.A.

December 3, 2010

Criminal law -- Charge to jury -- Expert evidence -- Evidentiary basis for psychiatric opinion -- Expert evidence on accused's state of mind at time of murder of police officer based largely on what experts were told by accused and on hearsay statements made by accused to his mother and others -- Trial judge instructing jury that they had to find that facts upon which expert opinions were based existed before they could give any weight to opinions -- Instruction not placing any burden of proof on accused -- Trial judge merely making it clear that weight to be attached to expert opinions was affected by degree to which those opinions depended on hearsay utterances of accused.

Criminal law -- Trial -- Jury trial -- Vetting jury panel -- Crown providing court officers from local police services with copies of jury lists and asking for their opinions as to suitability of potential jurors -- Officers not accessing police databases -- Officers' one-word comments on potential jurors not disclosed to defence -- Crown using police comments in aid of exercise of peremptory challenges but comments of limited use to Crown -- Release of jury list 21 days before sittings of court in apparent violation of s. 20 of Juries Act not affecting fairness of trial or validity of jury selection process -- Vetting not undermining fairness of jury selection process and not giving rise to appearance of bias on part of jury -- Crown not having obligation to disclose police officers' personal opinions about potential jurors to defence -- Juries Act, R.S.O. 1990, c. J.3, s. 20.

The accused was charged with the first degree murder of a police officer. The accused called two psychiatrists to testify about his state of mind at the time of the killing. The accused admitted that he was guilty of manslaughter but relied on the expert evidence to suggest that he lacked the intent necessary to convict him of murder. He did not testify at trial.

Two jury-panel lists were provided to the Crown 21 days before the jury was empanelled, 11 days before the Juries Act permits the disclosure of the jury list. It was also sent to defence counsel before the date permitted by the legislation. Defence counsel, who was not from the area, showed the list to the accused, his family and possibly to the local lawyer who had referred the case to him. The Crown provided copies of the lists to court officers from local police services and asked the officers for their personal opinions as to the suitability of potential jurors, in accordance with the local practice in Cobourg, at the time. The officers did not access police databases. They added notations such as "good", "yes", "ok" or "no" to their copies of the lists. The notations were transferred to a master list which was given to the prosecutor, but not to defence counsel. The accused was convicted of first degree murder. He appealed, arguing that the jury vetting process was illegal and resulted in the appearance of bias on the part of the jury. He also argued that the trial judge misdirected the jury by effectively casting a burden upon the accused to prove the facts upon which the psychiatric opinion was based and by failing to simplify the expert evidence so the jury would appreciate that the evidence was relevant to the key issue in the case: the accused's state of mind. [page162]

Held, the appeal should be dismissed.

The experts' opinions on the accused's state of mind were based largely on what they were told by the accused and on hearsay statements made by the accused to his mother and others. As noted, the accused did not testify. The trial judge's instruction to the jury that they had to find that the facts upon which the expert opinions were based existed before they could give any weight to the opinions did not place any burden of proof on the accused. The trial judge merely made it clear that the weight to be attached to the expert opinions was affected by the extent to which those opinions depended on hearsay utterances of the accused and the instructions cast no burden of proof upon the accused. The charge also properly focused the juror's attention on the key issue in the case: the accused's intent at the time of the killing.

The premature release of the jury lists, in apparent violation of s. 20 of the Juries Act, did not affect the fairness of the trial or the validity of the jury selection process. The defence also received the list in advance of the statutory ten-day period, and there was no evidence that it was hampered in any way in making whatever inquiries it wished in preparation for jury selection.

The accused failed to establish any violation of privacy legislation. In any event, violations of privacy legislation do not in and of themselves undermine the fairness of the jury selection process. The accused failed to show that the alleged violation undermined the fairness of his trial. The Crown had no obligation to disclose the police officers' personal opinions about potential jurors to the defence. Such opinions were not information that would assist the accused in making full answer and defence. A reasonable and right-minded person viewing what occurred realistically and practically would not come to the conclusion that the jury appeared biased. The officers' comments were of limited use to Crown counsel and largely consisted of one word. The Crown did not challenge one juror beside whose name the word "no" had been added by the police and that juror served on the jury. Crown counsel disclosed to the defence instances where there was a real potential for bias. There was a challenge for cause in which potential jurors were questioned about their connection to the police. Potential jurors were not contacted by the police, and the police did not access police databases such as CPIC. The opinions gathered by the Crown were in aid of the exercise of its peremptory challenges. Even with the short comments provided to Crown counsel, the exercise of peremptory challenges was little more than guesswork -- guesswork that is permitted and sanctioned by the peremptory challenge regime. Further, in the only situation in which information came to the attention of the Crown during the trial suggesting a juror might be biased against the accused, the information was disclosed to defence counsel and to the court, and the juror was discharged.

APPEAL from the conviction by Scott J. of the Superior Court of Justice, sitting with a jury, dated February 22, 2007 for first degree murder.

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; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, [1997] S.C.J. No. 11, 142 D.L.R. (4th) 577, 207 N.R. 215, [1997] 2 W.W.R. 525, J.E. 97-359, 152 Sask. R. 1, 112 C.C.C. (3d) 193, 4 C.R. (5th) 1, 41 C.R.R. (2d) 281, 33 W.C.B. (2d) 225; R. v. Pizzacalla (1991), 1991 CanLII 7070 (ON CA), 5 O.R. (3d) 783, [1991] O.J. No. 2008, 50 O.A.C. 161, 69 C.C.C. (3d) 115, 7 C.R. (4th) 294, 14 W.C.B. (2d) 376 (C.A.); R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, 260 C.C.C. (3d) 421, 90 W.C.B. (2d) 298, distd Other cases referred to R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, [1982] S.C.J. No. 59, 138 D.L.R. (3d) 202, 43 N.R. 30, [1983] 1 W.W.R. 251, J.E. 82-762, 39 B.C.L.R. 201, 68 C.C.C. (2d) 394, 29 C.R. (3d) 193, 8 W.C.B. 81; R. v. Kirkby, 1985 CanLII 3646 (ON CA), [1985] O.J. No. 166, 10 O.A.C. 356, 21 C.C.C. (3d) 31, 47 C.R. (3d) 97, 14 W.C.B. 403 (C.A.); [page163] R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36, 108 N.R. 321, [1990] 4 W.W.R. 1, J.E. 90-735, 67 Man. R. (2d) 1, 55 C.C.C. (3d) 97, 76 C.R. (3d) 329, 10 W.C.B. (2d) 101; R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, 246 O.A.C. 154, 238 C.C.C. (3d) 353, EYB 2009-153175, J.E. 2009-174, 301 D.L.R. (4th) 1, 383 N.R. 1, 62 C.R. (6th) 1 Statutes referred to Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 [as am.] Juries Act, R.S.O. 1990, c. J.3, s. 20 Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 [as am.] Authorities referred to Cavoukian, Ann, Excessive Background Checks Conducted on Prospective Jurors: A Special Investigative Report (Toronto: Information and Privacy Commissioner, Ontario, 2009)

Christopher Hicks and Catriona Verner, for appellant. David Finley, John McInnes and Paul Lindsay, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant appeals from his conviction by a court composed of Scott J. and a jury for first degree murder of a police officer. He submits that the Crown participated in illegal "jury vetting" and that the trial judge misdirected the jury with respect to the use of expert evidence concerning the crucial issue of the appellant's state of mind. For the following reasons, I would dismiss the appeal.

[2] It was not disputed that the appellant killed Officer Christopher Garrett of the Cobourg Police Service in the early morning hours of May 15, 2004. The only issue at trial was whether the appellant had the intent for murder. Given the narrow nature of the issues at trial and on appeal, only a brief summary of the facts is required.

The Facts

The events of May 2004

[3] In May 2004, the appellant began to plan a confrontation with police that would involve the killing of at least one police officer and perhaps the killing of other people. A jury could also find that the appellant intended to die during the confrontation. [page164] In the week prior to the confrontation, the appellant planned a series of events that would begin with a false complaint of a robbery. During this week, the appellant spent hours researching guns, knives and bomb-making. He stole firearms and ammunition from his father and stepfather and assembled bombs and Molotov cocktails. On May 15, 2004, between 1:34 and 1:41 a.m. he composed a suicide note which he left on his computer. He then put the series of events into action.

[4] The appellant went to the parking lot of an abandoned hospital and at 2:59 a.m. called 911. He identified himself and falsely reported a robbery. Officer Garrett was the first to arrive, followed by other officers and a security guard from the hospital. The appellant told the officer that he had been robbed of his wallet at knifepoint. The other officers left in search of the robber and the security guard returned to the hospital. At 3:15 a.m., Officer Garrett made an announcement over the police radio giving further details of the alleged assailant. By 3:20 a.m. he was no longer responding. The appellant had slit the officer's throat in one single motion. The officer did not die immediately and managed to discharge his firearm hitting the appellant once in the leg.

[5] After the stabbing, the appellant tried to gain entry to the hospital. He then returned to the body of the deceased and removed his duty belt and firearm. He also retrieved a sawed- off shotgun from a backpack that he had hidden before the attendance of the police and tried to get into the police cruiser. Sometime before 4:00 a.m., the appellant called his mother and asked her to pick him up at his school, which was a short distance from the hospital. She eventually found the appellant. He told her that he had been shot and that he had stabbed a police officer. The appellant's mother briefly took him home and then to the hospital. On the way to the hospital, the appellant called the police and said he was on the way to the hospital and was going to turn himself in.

[6] The appellant was arrested at the hospital. He was co- operative and three days later gave a videotaped statement to the police. The appellant did not discuss his state of mind in the statement and specifically denied that he was thinking about suicide.

The defence expert evidence

[7] The defence called three expert witnesses. All three testified that the appellant suffered from a major depressive illness. Dr. Alan Leschied testified that, in his opinion, the appellant's main goal was to commit suicide, although he could not rule out that the appellant was prepared to kill others to attain his goal. [page165] He did not form an opinion about the appellant's specific state of mind at the time of the killing.

[8] Dr. Jonathon Gray and Dr. Clive Chamberlain testified that, in their opinion, the appellant was not of clear mind when he stabbed the deceased and that he was not considering the consequences of his actions. Dr. Gray believed that any plans that the appellant had formed prior to arriving at the parking lot changed once he realized the enormity of what he had intended to do. He believed that the appellant abandoned his plan to commit suicide and panicked. Dr. Chamberlain's opinion was that the appellant's thoughts were disorganized and chaotic and that he did not have the intent to kill.

[9] Dr. Gray and Dr. Chamberlain had met with the appellant on multiple occasions prior to the trial and based their opinions, at least in part, on the appellant's account of the events, including his state of mind at the time of the killing. The appellant did not testify at the trial.

Other evidence of the appellant's state of mind

[10] The appellant's mother testified about what she observed when she picked him up the night of the killing. There was also evidence of hospital personnel as to the appellant's appearance and demeanour. The appellant's mother and father testified about the appellant's background and upbringing.

Analysis

Charge to the jury

[11] The appellant submits that the trial judge erred in two respects in the charge to the jury. First, he erred in placing a burden on the appellant to prove the facts upon which the expert opinions were based. Second, the trial judge failed to adequately simplify the expert evidence in a way that the jury would appreciate the single issue of the appellant's state of mind.

[12] The ground of appeal concerning the burden of proof relates to directions such as the following:

Before any weight can be given to an expert's opinion, the facts upon which it is based must be found by you to exist. The more the expert has relied upon facts not proved in evidence before you -- for example the hearsay utterances by Troy Davey and his parents -- the less weight you may attribute to his or her opinion. (Emphasis added)

[13] In my view, when these and the other similar directions are placed in proper context, there was no error. The problem was that to a considerable extent, the opinions of the defence [page166] experts turned on what they were told by the appellant and on hearsay statements made by the appellant to his mother and others. The trial judge correctly instructed the jury that these statements were not admissible for their truth. It was in that context that the jury would understand the trial judge's references to proven facts. The trial judge was not placing a burden on the appellant to prove every fact upon which the experts' opinions were based. Rather, he was making it clear that the weight to be attached to the opinions was affected by the extent to which those opinions depended upon the hearsay utterances of the appellant. For example, after reviewing in considerable detail the expert evidence, the trial judge told this to the jury under the heading "EXPERT OPINIONS BASED WHOLLY OR IN PART ON HEARSAY":

An expert opinion is admissible even if it is based on second-hand evidence or hearsay evidence.

This second-hand evidence is only admissible however to show the information on which the expert's opinion is based. It is not evidence as to the truth of the second-hand evidence or, in other words, the existence of the facts on which the opinion is based. Let me make this clear: what was said by Troy Davey or his parents to the psychologist or psychiatrists is hearsay and cannot be considered by you in determining what happened in this case. It can only be used by you in assessing the opinions of the psychologist and psychiatrists.

Where, as here, the psychological and psychiatric evidence is comprised of hearsay and admissible evidence, for example, the results of the psychological tests, the drawings and the writings of Troy Davey, and the testimony before you of his parents, the problem is the weight to be attributed to that opinion.

Before any weight can be given to an expert's opinion, the facts upon which it is based must be found by you to exist. The more the expert has relied upon facts not proved in evidence before you -- for example the hearsay utterances by Troy Davey and his parents -- the less weight you may attribute to his or her opinion.

[14] These instructions accord with the decisions of the Supreme Court of Canada in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, [1982] S.C.J. No. 59 and R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36 and decisions of this court such as R. v. Kirkby, 1985 CanLII 3646 (ON CA), [1985] O.J. No. 166, 21 C.C.C. (3d) 31 (C.A.). For example, in Lavallee, at p. 893 S.C.R., Wilson J. set out the following principles for considering what weight to attach to an expert opinion based in part on hearsay: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based. [page167] 3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion. 4. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. (Emphasis added)

[15] Wilson J. then considered the directions given by the trial judge in that case, which included the following [at p. 894 S.C.R.]:

If the premises upon which the information is substantially based has not been proven in evidence, it is up to you to conclude that it is not safe to attach a great deal of weight to the opinion. An opinion of an expert depends, to a large extent, on the validity of the facts assumed by the evidence by the expert. (Emphasis added)

[16] Speaking for the court, at p. 894 S.C.R., Wilson J. found that these instructions were correct.

[17] To summarize, the instructions that the trial judge gave to the jury did not place any burden of proof on the appellant. Those instructions would have been understood as referring to the hearsay evidence, which was admitted for the limited purpose of understanding the basis of the experts' opinions, but was not admissible for its truth.

[18] I am also satisfied that the charge to the jury adequately directed the jury as to the essential issue in the case, namely, the state of mind of the appellant at the time of this killing. While the trial judge briefly discussed the other elements of the offence of first degree murder, the only extended discussion concerned the state of mind required for murder. Similarly, while the trial judge briefly summarized the evidence of all the witnesses called, again the only extended discussion of the evidence was that of the experts. The trial judge summarized the expert evidence in a way that was entirely fair and accurate and made clear the essential positions taken by the experts. Finally, the trial judge's summary of the positions of the Crown and defence focused on the issue of the appellant's state of mind and whether he had the intention required for murder.

[19] In my view, the trial judge conveyed to the jury the essential issue upon which the case turned and sufficiently referred to the evidence bearing on that issue. I would not give effect to these grounds of appeal.

The Jury Vetting Issue

The facts

[20] While the appeal was pending, information came to light suggesting that Crown counsel in some jurisdictions were asking [page168] police to check various databases for whether potential jurors had criminal histories. The appellant seeks to introduce as fresh evidence information of what he alleges to be improper vetting of a jury panel in his case.

[21] The jury array in this matter came from two panel lists. These lists were provided to the Crown on December 18, 2006, 21 days before the jury was empanelled. The lists would have been available to the defence at the same time and trial counsel (not Mr. Hicks) believes that he received the list a couple of weeks before the trial. Section 20 of the Juries Act, R.S.O. 1990, c. J.3 provides that the jury list shall not be disclosed until ten days before the sittings of the court for which the panel has been drafted. The parties speculate that the early disclosure in this case is related to the fact that the Christmas holidays intervened before the January 8, 2007 scheduled date for the trial.

[22] In accordance with the practice in the Crown's office in this jurisdiction, copies of the lists were provided to the court officers from the three local police services in the region from which the jurors would be drawn. The officers were asked for their opinions as to the suitability of any of the potential jurors about whom they had an opinion. The officers added notations such as "good", "yes", "ok" or "no" to their copies of the lists, which were then returned to the Crown. An employee of the Cobourg Crown's office then transferred the information to a master list. The master list was given to Crown counsel prosecuting the appellant, but not to defence counsel.

[23] The court officers who received the lists might ask fellow officers for their opinions. They did not, however, access police databases, such as CPIC. The common understanding of the police and Crown was that the Crown was inviting comments based on the officers' knowledge of potential jurors in the community. One of the court officers noticed that the deceased's brother-in-law was on the jury list. The officer notified Crown counsel, who in turn notified the court, and this person was removed from the jury array. Comments were made in relation to 118 of the 400 potential jurors. In this case, there was a challenge for cause. Thirteen of the 118 jurors about whom there were comments, made it past the challenge for cause stage.

[24] Defence counsel, who was from Toronto, showed his copy of the list to the appellant, his family and possibly the local referring solicitor.

[25] Crown counsel prosecuting the appellant's case made only limited use of the information, since the one-word comments provided only limited information. For example, Crown counsel selected one of the potential jurors who had negative comments [page169] because the juror's responses and demeanour during the challenge for cause was much more significant.

[26] After jury selection, the case was adjourned for two weeks. During this time, the investigating officer learned that a court security officer believed she heard a comment from one of the selected jurors indicating a bias against the appellant. The investigating officer drew this matter to Crown counsel's attention. He in turn notified the court and defence counsel. Following a hearing, this juror was discharged.

Analysis

[27] The appellant submits that the jury vetting in this case violated various provincial statutes concerning protection of privacy as well as the Juries Act. He submits that the failure to disclose the information in the master list was a breach of the Crown's disclosure obligations. Finally, he submits that the non-disclosure and the use Crown counsel made of the information led to an appearance of unfairness, thus requiring a new trial.

Violation of provincial legislation

[28] The premature release of the jury list in apparent violation of s. 20 of the Juries Act does not affect the fairness of the trial or the validity of the jury selection process. The appellant submits that the purpose of the requirement that the list be kept under lock and key until ten days before the sittings of the court is so that neither Crown nor defence receives an unfair advantage. That may or may not be the purpose of the legislation. In any event, there is no evidence that the Crown did obtain an unfair advantage by reason of the release 21 days before the sittings of the court. According to the agreed statement of facts, the defence also received the list before the ten-day period. There is no evidence to show that the defence was hampered in any way in making whatever inquiries it wished in preparation for jury selection.

[29] The appellant also submits that in seeking opinions from police officers, the Crown and the police violated various provisions of provincial privacy legislation such as the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. This is a complex legislative scheme with various exceptions permitting disclosure of information in the law enforcement context. The matter has been examined by the Privacy Commissioner, who has issued a report, Excessive Background Checks Conducted on Prospective Jurors: A Special Investigative Report (Toronto: Information and Privacy Commissioner, Ontario, Canada, 2009), which will no [page170] doubt be helpful in the future to the government in shaping privacy policy. In fact, there have already been amendments to the Juries Act since the jury vetting issue came to public attention. However, the appellant has not established any violations of the legislation. In any event, violations of privacy legislation do not in and of themselves undermine the fairness of the jury selection process. In this case, the appellant has not articulated how the alleged violation of this provincial legislation undermined the fairness of his trial and, in particular, how alleged violations of the privacy rights of others (the potential jurors) affected his right to a fair trial.

Disclosure

[30] The Crown's disclosure obligations are broad but they are not unlimited. In my view, the limit is reached where what is sought is nothing more than the personal opinions of police officers about potential jurors. The most recent explanation of the Crown's obligation is provided in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, at para. 17:

The Crown's obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe [R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326] made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also 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 (pp. 343-44).

[31] Police officers' personal opinions about potential jurors are not relevant information relating to the investigation and are clearly not evidence to be adduced against the accused. Finally, such opinions are not "information" that will assist the accused in making full answer and defence. Obviously, some opinions fall comfortably within the Stinchcombe/McNeil disclosure regime. Opinions by experts, opinions by witnesses about the identity of the perpetrator and opinions by police and lay witnesses about the speed of a vehicle involved in a collision are potential evidence, or may assist the accused in the exercise of their right to make full answer and defence. Personal opinions about potential jurors are not.

Appearance of a miscarriage of justice

[32] The appellant's principal submission on this branch of its argument is that the Crown had an unfair advantage in jury selection that potentially enabled it to select, not an impartial [page171] jury, but a jury that would be biased in favour of the Crown. The appellant submits that he need not establish actual bias, merely the appearance of bias. An examination of what actually occurred in this case does not support this submission. I begin with the "information". What Crown counsel received were one-word opinions not based on CPIC or any other police database. Only 13 of the potential jurors with these notations made it past the challenge for cause phase to a point where the information would have been useful to Crown counsel. The usefulness of the information is demonstrated by the fact that Crown counsel did not challenge one of the potential jurors with a "no" comment and that person became a member of the jury.

[33] The highest the defence can put its case is that had they had the same information as the Crown, they might have exercised their peremptory challenges differently. Speculation that the accused might possibly have exercised his peremptory challenges in a different way does not establish the appearance that the Crown was able to obtain a favourable jury or establish the appearance of a miscarriage of justice. A reasonable and right-minded person viewing what occurred realistically and practically would not come to the conclusion that the jury appeared biased. In reaching that conclusion, the reasonable person would take into account the following.

[34] First, the information was of limited use to Crown counsel. Second, Crown counsel actually disclosed instances where there was a real potential for bias: the brother of the deceased's widow and the juror who expressed an opinion about the appellant's guilt. Third, there was a challenge for cause in which potential jurors were questioned about their connection to the police force. Specifically, the trial judge agreed to ask if anyone was "closely associated with" a member of the police force or a correctional worker, and excused individuals accordingly.

[35] Finally, this so-called jury vetting must be put in context. The opinions gathered by Crown and defence were all in aid of the exercise of their peremptory challenges. Even where there has been a challenge for cause, as in this case, counsel have little more than intuition to assist in making decisions about how to exercise their peremptory challenges. In a smaller town, like Cobourg, the counsel, the accused and local police officers may have some information about the character or reputation of potential jurors, but little or no information that could possibly predict how a potential juror would act. Even with the short comments provided to the Crown counsel in this case, the exercise of peremptory challenges was little more than guesswork, guesswork that is permitted and sanctioned by the peremptory challenge regime. [page172]

[36] This is not a case like R. v. Pizzacalla (1991), 1991 CanLII 7070 (ON CA), 5 O.R. (3d) 783, [1991] O.J. No. 2008 (C.A.), where Crown counsel deliberately set out to use his stand asides to choose a jury trying a sexual assault case composed entirely of women. In that case, the way in which the selection process was manipulated by Crown counsel gave the appearance that Crown counsel secured a favourable jury, rather than simply an impartial one.

[37] This case is also far removed from R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, [1997] S.C.J. No. 11. As is well known, Latimer concerned the killing by the accused of his severely disabled daughter. In Latimer, Crown counsel and the police prepared a questionnaire to be administered to potential jurors seeking their views on a number of issues, including religion, abortion and euthanasia. The questionnaire was administered by the police to 30 of the 198 prospective jurors, either by telephone or in interviews at local police stations. The use of the questionnaire came to light while the case was pending in the Supreme Court of Canada. The Supreme Court allowed the appeal and ordered a new trial. Speaking for the court, Lamer C.J.C. said this, at para. 43:

The actions of Crown counsel at trial, which were fully acknowledged by Crown counsel on appeal, were nothing short of a flagrant abuse of process and interference with the administration of justice. The question of whether the interference actually influenced the deliberations of the jury is quite beside the point. The interference contravened a fundamental tenet of the criminal justice system, which Lord Hewart C.J. put felicitously as "justice should not only be done, but should manifestly and undoubtedly be seen to be done": R. v. Sussex Justices, [1924] 1 K.B. 256, at p. 259; also see R. v. Caldough (1961), 1961 CanLII 464 (BC SC), 36 C.R. 248 (B.C.S.C.).

[38] Nothing of this sort occurred in this case. Potential jurors were not contacted by the police and there was no interference with the administration of justice.

R. v. Hobbs

[39] Following the oral argument in this case, the Nova Scotia Court of Appeal released its decision in R. v. Hobbs, 2010 NSCA 62, [2010] N.S.J. No. 386, 257 C.C.C. (3d) 411 (C.A.). We have now received written submissions from the parties respecting that decision. Hobbs is different from the appellant's case. In Hobbs, Crown counsel asked the police to check both CPIC and other police databases for criminal records. Crown counsel then used this information, which was not disclosed to the defence, in the exercise of his peremptory challenges. On appeal from conviction, the Crown conceded that it should have disclosed the information about potential jurors' criminal records. Not only was no such concession made in this case, but I have found that Crown [page173] counsel was not required to disclose the personal opinions of the police officers.

[40] As well, counsel for the Crown in Hobbs, at para. 32, conceded "that in two instances during the jury selection process the defence exercised its peremptory challenges in circumstances where, if it had the undisclosed information, there is a reasonable possibility it would have done so differently". The Nova Scotia Court of Appeal drew [at para. 32] the inference based on the Crown's concessions that if the defence had the information "the jury that had the difficult task of weighing the evidence of the Crown and defence, and deciding the guilt or innocence of the appellant, would have been differently constituted". I have been unable to draw that inference in this case. In my view, Hobbs does not assist the appellant.

R. v. Yumnu

[41] While this appeal was under reserve, this court released its decision in R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, which concerned jury vetting in a case in Barrie. The parties were also given an opportunity to provide written submissions in response to that decision. The appellant and respondent recognize that the facts in Yumnu are different than this case, because in that case the record showed that defence counsel at trial knew, or at least ought to have known, that the Crown was in possession of information about the criminal records of the potential jurors. There is no suggestion that defence counsel in this case was aware of the inquiries made of the police officers.

[42] However, as counsel for the respondent rightly points out, the disclosure obligations recognized in Yumnu arose in a context where the information was gleaned from police databases, which is not the case here. Indeed, the information provided to Crown counsel in this case fits within the area of "community intelligence" referred to in Yumnu, at para. 76, and which, in my view, is not within the Crown's broad disclosure obligations:

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. (Emphasis added) [page174]

[43] I do not agree with the appellant that Yumnu supports the view that an informed and reasonable observer would believe that the jury, as it was selected in this case, was not impartial. The court in Yumnu, at para. 83, said this:

Essential to the overall fairness of a criminal jury trial is a jury that is and appears impartial in their determination of the adequacy of the prosecutor's proof. Neither the composition nor the conduct of the jury should give rise to a reasonable apprehension of bias. The intention of the prosecutor in exercising peremptory challenges, as well as the prosecutor's belief about the overall disposition of the jury, are not dispositive of the bias issue. To sustain a claim of a lack of trial fairness based on a reasonable apprehension of bias, the composition of the jury must be such that it leaves the well-informed observer with a reasonable apprehension of bias in favour of the prosecution: R. v. Biddle (1993), 1993 CanLII 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.), at pp. 443-44. (Emphasis added)

[44] The composition of this jury would not raise a question of reasonable apprehension of bias. I have earlier set out the manner in which this jury was selected. For example, Crown counsel selected a juror against whom there was a "no" notation and brought to the court's attention information that suggested actual bias against the appellant by one of the selected jurors.

[45] I would not give effect to this ground of appeal.

Disposition

[46] Accordingly, I would dismiss the appeal.

Appeal dismissed.