COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2014 ONCA 431

DATE: 20140528

DOCKET: C50854

Feldman, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Williams

Appellant

Talman W. Rodocker, for the appellant

John McInnes, for the respondent

Heard: November 14, 2013

On appeal from the conviction entered on July 5, 2004 by Justice John A. Desotti of the Superior Court of Justice, sitting with a jury.

Tulloch J.A.:

A. OVERVIEW

[1] The appellant, Raymond Williams, appeals his conviction for second-degree murder following a trial by a judge and jury.

[2] The appellant raises two grounds of appeal. First, he argues that the trial judge erred in admitting into evidence a videotaped statement made on August 12, 2001, in which the appellant confessed his involvement in the murder of the deceased, John Dillon. On a blended voir dire, the trial judge concluded that the statement was admissible. The appellant submits that the videotaped confession is inadmissible because his statements were elicited involuntarily and in breach of his rights under s. 10(b) of the Charter of Rights and Freedoms.

[3] Second, the appellant alleges that deficiencies in the jury-vetting process in his trial gave rise to a miscarriage of justice. Specifically, the appellant submits that, at the time of his trial, the Sarnia police department maintained a routine practice of providing the local Crown attorney’s office with a marked-up list of the jury pool for a particular sitting. Those mark-ups were based on police searches of the Canadian Police Information Centre (CPIC) database. The appellant argues that this vetting was not shared with the defence, and that this nondisclosure tainted the trial with the appearance of unfairness.

[4] For the reasons that follow, I would dismiss the appeal on both grounds.

[5] Before analysing the merits of the appellant’s arguments on appeal, I review the relevant facts and the trial judge’s ruling on the voir dire.

B. FACTS

[6] I begin with a brief background of the case, followed by a discussion of the facts relevant to each of the grounds of appeal.

(1) Background

[7] The deceased, John Dillon, was a Sarnia drug debt collector. Following a 911 call in the early morning hours of March 4, 2001, local police found Dillon unconscious and severely injured in the back seat of his car in a parking lot in downtown Sarnia. Dillon was rushed to hospital, but died five days later. Forensic analysis revealed that a palm print on the window of Dillon’s car – in Dillon’s blood – belonged to the appellant.

[8] The Crown’s theory at trial was that, early on March 4, Dillon went to the home of the appellant’s cousin, Warren “Bebop” Williams, to collect on a debt. Sometime later, the appellant and Bebop’s brother, Nicholas “Guy Guy” Williams, brutally beat Dillon and left him unconscious in his car. In addition to forensic analysis, the Crown’s case consisted of medical evidence about Dillon’s injuries, evidence about the relevant parties and their relationships, and a videotaped confession by the appellant.

[9] The appellant, in contrast, testified at trial that he had little recollection of the events of March 4. He remembered that, at Bebop’s behest, he drove Dillon’s car with the intention of taking him to the hospital. However, for reasons he did not recall, the appellant did not fulfill that intention and instead abandoned the vehicle with the injured Dillon inside.

[10] Following a jury trial, the appellant was convicted of second-degree murder and sentenced to life in prison, with parole ineligibility set at thirteen years.

(2) The Videotaped Confession

[11] The appellant’s videotaped confession was a key piece of the Crown’s evidence at trial. The confession was obtained on August 12, 2001, following a successful effort by police investigators to bring the appellant back to Canada from the United States.

[12] Shortly after the deceased’s death, the appellant fled to the United States. He was arrested in Florida by American authorities on May 29, 2001 and consented to his extradition shortly thereafter. The Sarnia Police Service (SPS) and OPP jointly investigated the killing. Four investigators – Staff Sergeant Chris Oram and Constable Patrick Nahmabin of the SPS, and Detective Constable Phil George and Detective Inspector David Cardwell of the OPP – flew to Florida on August 8 to bring the appellant back to Canada.

[13] Less than a month prior, on or about July 18, 2001, Toronto lawyer Todd Ducharme (now Justice Ducharme of the Superior Court of Justice) had telephoned Sgt. Oram to let him know that he represented the appellant. Sgt. Oram made an effort to follow up with Mr. Ducharme on August 7, the day before he left for Florida. He telephoned Mr. Ducharme’s office but was told by an assistant that he was away. Sgt. Oram asked the assistant to convey to Mr. Ducharme that he was traveling to Florida and that Mr. Ducharme should expect a phone call from the appellant on the morning of August 9. No indication was made to Sgt. Oram that there would be any difficulty in reaching Mr. Ducharme on that date.

[14] After arriving at the custodial facility in Florida on the morning of August 9, Sgt. Oram arrested the appellant on a charge of second-degree murder, read him a secondary caution, and advised him of his rights to counsel. The appellant indicated that he understood his rights. Sgt. Oram then arranged for the appellant to speak to his counsel. They proceeded to another room, where Sgt. Oram telephoned Mr. Ducharme’s office. A woman named Jennifer answered the phone and told Sgt. Oram that Mr. Ducharme “was not right here”. Sgt. Oram testified that he understood those words to mean that Mr. Ducharme was in the office and would be available momentarily. Accordingly, Sgt. Oram handed the phone to the appellant and left the room to allow him to speak to his counsel. Five or six minutes later, the appellant emerged from the room. The appellant gave no indication – and Sgt. Oram made no inquiries – as to whether he had in fact conferred with his counsel. The group then boarded an airplane bound for Canada. Sgt. Oram made efforts to elicit a statement, but the appellant repeatedly stated that he would not make a statement before speaking to a lawyer.

[15] The flight landed near Orillia at around 4 p.m. Sgt. Oram arranged for Sergeant Chris Loam, an OPP officer, to interrogate the appellant at the Orillia OPP detachment. Sgt. Oram explained that he had turned his mind toward arranging a call with the appellant’s counsel at the detachment, but neither he nor the other officers gave effect to that intention. The officers testified that, at the appellant’s request, they did not record the appellant’s interrogation and conducted part of the interrogation in the detachment’s rear parking lot. The appellant did not give a confession at the detachment, and at approximately 10 p.m., he was transported to Sarnia. He was offered an opportunity there to speak to counsel but declined.

[16] The next morning, August 10, Sgt. Oram met with the appellant in an interview room at the station. The exchange was again not recorded. Sgt. Oram explained to the appellant that, as far as he was concerned, the appellant had already given evidence against himself as a party to the offence in the course of providing his account of the events leading to the deceased’s death. Following the interrogation, the appellant was taken to court and remanded to a detention centre.

[17] On the evening of August 11, the appellant called Constable Nahmabin to advise him of his intention to make a full statement about Dillon’s killing. The appellant indicated that he was unable to sleep and wanted to get something off his chest. When Sgt. Oram asked the appellant whether he had spoken to his lawyer, he replied that he did not need a lawyer to “point his moral compass”. The next day, the appellant gave a statement before the investigators at his detention centre. He was afforded an opportunity to speak with counsel prior to making the statement, but he declined. The appellant’s confession, captured on videotape, implicated both himself and Nicholas Williams – “Guy Guy” – in Dillon’s death. In the course of making his statement, the appellant referred to his difficulty sleeping and his hope that he would be forgiven for telling the truth.

[18] At trial, the appellant disavowed his confession and maintained that, at the time of Dillon’s killing, he was heavily under the influence of drugs and alcohol.

(3) The Jury Selection Process

[19] At the time of trial, the Sarnia Crown Attorney’s Office maintained a routine practice of asking for criminal record checks on prospective jurors. The local police would run the names of individuals on jury lists on the CPIC database, and the list would be returned to an administrative staff person. The staff person, in turn, would prepare a master list for the Crown attorney responsible for selecting the jury. If a search generated a CPIC “hit”, a “no” would be marked on the list next to the name of the prospective juror. In some cases, the “hit” pertained to something other than a disqualifying criminal conviction (e.g., a discharge). No other notations appeared on the master list, and no further information was provided to the Crown. The results of the checks were not routinely disclosed to defence counsel.

[20] Jury selection for the appellant’s trial took place on May 3 and 4, 2004. A challenge for cause question relating to the background of the appellant and the deceased – the former is of First Nations descent, and the latter was white – was put to each prospective juror. At the conclusion of the process, a jury of twelve with six alternates was selected.

[21] The jury selection process in the appellant’s case followed the prevailing practice in Sarnia. The jury was selected from two panels, each consisting of 150 prospective jurors. Following CPIC checks, support staff in the Crown Attorney’s office noted a “no” next to three names on each list – a total of six prospective jurors. All three individuals on the first panel with notations were screened out of the pool by the trial judge prior to the selection process for reasons unrelated to the CPIC checks. Of the individuals with notations on the second panel, the first was similarly screened out by the trial judge and the second was never considered as a potential juror. The third, however, was challenged peremptorily by the Crown on the second day of jury selection. At that point, twelve jurors and four alternates had already been selected. Ultimately, only the first alternate was called upon to serve on the jury; therefore, had the prospective juror not been challenged, she would have served as the fifth alternate and would not have been a juror.

[22] Consistent with past practice, the documentation provided by the police agencies was shredded and no longer exists. As a consequence, the results of the 2004 checks are not known. By order of this court, checks of the prospective jurors were conducted against the CPIC database in August 2010. The 2010 checks revealed that four of the prospective jurors – including the juror who would have served as the fifth alternate – had CPIC records, while two did not. For a host of reasons, the results of the 2004 and 2010 checks may not have been identical.[^1]

C. THE TRIAL JUDGE’S RULING

[23] The trial judge considered the following questions on a pre-trial blended voir dire:

• Whether statements made by the accused, and particularly the incriminating statement made by the accused on August 12, 2001, were voluntary;

• Whether these statements were made in contravention of s. 10(b) of the Charter and, if so, whether subsequent statements by the accused were tainted;

• Whether the statements should be excluded pursuant to s. 24(2) of the Charter.

(1) Voluntariness

[24] The trial judge found that, while the officers attempted to elicit a statement from the appellant, they at no time offered any promises, inducements, threats or a hope of advantage. The officers were persistent and discussed charge options and bail with the appellant, but these were never proposed in exchange for a statement.

[25] Rather, the appellant was induced by “an overwhelming urge or need to purge his troubled mind (soul) of what had transpired on the night of March 4, 2001 between the victim and the accused and others”. The trial judge emphasized the appellant’s repeated references to remorsefulness and moral responsibility in his various statements to police. The trial judge concluded that, “[i]n all the circumstances, [the appellant’s] statement was the product of an overwhelming urge on the part of the accused to tell the truth, to free his spirit from the burden of guilt and of his involvement in the murder of John Dillon.”

[26] The trial judge wholly accepted the officers’ explanation for their failure to record their interactions with the appellant prior to the videotaped statement. He accepted that audio recording was not feasible on the plane, and he found that the interactions at the airports and outside the Orillia detachment were at the request of the appellant. The trial judge also found that it was at the appellant’s request that the officers did not record their interactions with him at the Orillia detachment.

[27] While there were certain gaps in the appellant’s videotaped confession, the trial judge found that these were attributable to an oversight by the officers, rather than a purposeful attempt to induce or threaten the appellant. The trial judge also accepted the evidence of the officers as to what transpired during the contacts with the accused that were not recorded; there was no “quid pro quo” in exchange for an incriminating statement, and little if any incriminating information was obtained.

(2) Sections 10(b) and 24(2) of the Charter

[28] In the trial judge’s view, the failure of the police to provide the appellant with access to counsel on the plane from Florida was reasonable, given that the appellant was provided with this opportunity at the correction centre in Florida. The plane was not a suitable or private location for the appellant to speak with counsel. The same privacy concerns justified the failure to provide access to counsel at the Orillia airport or in the cruiser en route to the Orillia detachment.

[29] However, the officers’ failure to allow the appellant to call counsel from the Orillia detachment was a breach of the appellant’s Charter rights notwithstanding that he had spoken to counsel from Florida. On three occasions on the plane, the appellant had asked to speak with counsel. However, the interviews prior to access to counsel were not oppressive, aggressive or threatening and no incriminating statements were made by the appellant. In the circumstances, in my view, an application under s. 24(2) would have failed with respect to these interviews.

[30] The trial judge also held that, in the event that he had misapprehended the evidence with respect to voluntariness or s. 10(b) of the Charter, the appellant’s contact with police on August 11 and the statement made on August 12 were not connected to any possible previous inducements or threats. The trial judge made findings of fact that, while in Florida, the appellant “was in contact with the Law Office and presumably Mr. Ducharme for 5 or 6 minutes”; that the appellant at no time advised the officers on that day that he had not spoken to counsel; and that, “more importantly”, Sgt. Oram believed that the appellant had in fact spoken to counsel.

D. ISSUES ON APPEAL

[31] The appellant advances two arguments on appeal.[^2] First, he submits that the trial judge erred in law in ruling that the videotaped confession was admissible. Second, he argues that deficiencies in the jury selection process gave rise to a miscarriage of justice and warrant a new trial. I address these arguments in turn.

(1) The Admissibility of the Videotaped Confession

(a) Arguments on Appeal

[32] The appellant finds fault in the trial judge’s ruling on the voir dire in two respects.

[33] First, he argues that the trial judge’s reasons were insufficient. Specifically, the trial judge erred in law by failing to analyse and reconcile the contradictory evidence of Sgt. Oram. On one hand, Sgt. Oram testified that he facilitated the appellant’s access to counsel; on the other, he told the trial judge that he was entirely uncertain as to whether the appellant had in fact spoken to his counsel. The appellant submits that the evidence demonstrates a failure by the police to confirm whether the appellant had exercised his right to counsel.

[34] Second, the appellant disputes the trial judge’s conclusion that the police did not act inappropriately in failing to record their persistent and prolonged interactions with him. Conceding that the law does not require the police to record every interaction with an individual under interrogation, the appellant argues that a host of factors in this case – including the seriousness of the charge and the length of time that the appellant was in custody – demanded more from the police.

[35] The Crown submits that both arguments are flawed. First, the trial judge’s reasons were not insufficient for three reasons: Sgt. Oram was not equivocal about whether he facilitated the appellant’s access to counsel; the appellant bore the burden of proving a violation of his s. 10(b) rights but failed to marshal any such evidence; and all the evidence actually led on the voir dire uniformly established that the appellant had spoken to his counsel on the morning of August 9. Second, the trial judge’s finding regarding the voluntariness of the appellant’s statements was reasonable. There is no legal rule that interactions between the police and a suspect must be videotaped as a condition precedent to establishing voluntariness, and the circumstances of this case did not require the officers to do more than they did.

(b) Analysis

[36] At the outset, I point out that there is an important distinction in the allocation of the burden of proof on each of the two issues related to the admissibility of the videotaped confession. The prosecution bears the onus of establishing the voluntariness of an accused’s statements beyond a reasonable doubt, while the accused shoulders the evidentiary burden of proving, on a balance of probabilities, a violation of his or her s. 10(b) rights: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 30. Put in the context of this case, the Crown had the obligation of proving that the appellant’s will was not overborne during the interrogations, while the appellant was required to show that Sgt. Oram failed to facilitate his access to counsel.

(i) Section 10(b)

[37] Turning to the appellant’s first argument, my view is that the trial judge’s reasons were sufficient. The sufficiency of trial reasons is to be assessed against the functional criteria set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. Relevant for our purposes is Sheppard’s instruction, at para. 46, that a trial judge’s failure to make apparent, in his or her reasons, how he or she deals with confused or conflicting evidence, may constitute an error of law warranting appellate intervention.

[38] The trial judge’s reasons on the voir dire exhibit no such failure. The trial judge’s key findings – that the accused never advised any of the officers that he had not spoken to counsel, and that Sgt. Oram reasonably believed that the accused had – were reasonable and supported by the evidence on the voir dire. While Sgt. Oram never actually spoke to Mr. Ducharme in Florida, he reasonably interpreted the secretary’s words to mean that Mr. Ducharme was in the office and would be available momentarily. Sgt. Oram also spoke to Mr. Ducharme in July 2001 about the timing of the appellant’s return to Canada, made efforts to follow up with Mr. Ducharme immediately before leaving for Florida, and overheard a conversation between the appellant and Sgt. Loam in which the appellant indicated that he had spoken to his lawyer and that his lawyer was aware that he was back from Florida.

[39] Importantly, the appellant led no evidence on the voir dire to establish that he had not had an opportunity to confer with his counsel or that he made the officers aware of that fact. Without that evidence, which the appellant had the unique ability – and indeed, obligation – to adduce, there is no basis upon which to conclude that the officers deprived the appellant of his right to counsel.

[40] The appellant cites R. v. Badgerow, 2008 ONCA 605, 237 C.C.C. (3d) 107, at para. 47, for the proposition that police are obliged to “obtain explicit confirmation concerning whether [an accused] had exercised his right to counsel of choice before questioning him.” In Badgerow, however, the accused’s statements to police raised a reasonable prospect that he had not exercised his s. 10(b) rights. In such cases, Badgerow held, the police must act diligently to ensure that an accused is supplied with a reasonable opportunity to consult counsel. In the case at bar, the appellant’s statements did not indicate to the officers that he had been deprived of an opportunity to speak to his counsel; indeed, the evidence points to the contrary conclusion. To be sure, it would have been preferable for Sgt. Oram to have confirmed with the appellant that he had indeed spoken to his counsel. However, s. 10(b) of the Charter did not impose an obligation on him to do so.

[41] In effect, the trial judge’s finding was that, in the circumstances, Sgt. Oram had a reasonable belief that the appellant had exercised his s. 10(b) right to counsel. Sgt. Oram’s concession that, at the time he briefed Sgt. Loam, he was not unequivocally certain as to whether the appellant had spoken to his counsel is not inconsistent with that finding. Unlike in R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), the trial judge’s reasons here did not leave unresolved “the fundamental factual issue of whether the appellant asserted his right to speak to counsel.” The trial judge here gave due consideration to the evidence, and his findings were amply supported by the record.

(ii) Voluntariness

[42] I also reject the appellant’s second line of argument with regard to the admissibility of the videotaped confession, namely, that the trial judge erred in concluding that the police were not required to record all their interactions with the appellant.

[43] This court addressed the obligations of police officers to record their interactions with an accused in R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737. Writing for this court, Charron J.A. (as she then was) acknowledged, at para. 64, that there is no absolute rule requiring the police to record an accused’s statements. She added the following, at para. 65:

[T]he Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

[44] A trial judge’s finding of voluntariness is entitled to appellate deference and should not be interfered with in the absence of an error in law or a palpable and overriding error as to the facts: Moore-McFarlane, at para. 68.

[45] No such error appears in the trial judge’s ruling on voluntariness. He thoroughly reviewed the instances in which the appellant’s interactions with the police were not recorded, and he carefully considered the officers’ explanations for their failure to record. He accepted the officers’ evidence that they did not record their interactions with the appellant where it was not feasible to do so or where the appellant requested that they not record his interactions with them. Noting the officers’ testimony that they had since abandoned the practice of turning off recording equipment after the release of Commissioner Peter Cory’s report in the Sophonow inquiry,[^3] the trial judge accepted that the officers’ actions were in conformity with the protocol that prevailed in 2001. In the trial judge’s mind, the officers’ rationale for their conduct and the absence of contradictory evidence distinguished the facts from those in Moore-McFarlane and discharged the Crown’s burden of proving voluntariness beyond a reasonable doubt.

[46] The appellant does not point to weaknesses in the Crown’s evidence or the trial judge’s reasons. Rather, he merely asserts that a “myriad of factors”, including the seriousness of the charge and the length of the appellant’s detention, demanded that the officers record each and every interaction with the appellant. I am not persuaded by this submission. While a failure to record police interactions with an accused may, in some circumstances, raise questions about the voluntariness of the accused’s statements, such circumstances are not present here. The police here acted reasonably and did not “deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record”: Moore-McFarlane, at para. 65.

[47] Accordingly, I would give effect to neither of the appellant’s arguments with regard to the admissibility of the videotaped confession.

(2) The Jury Selection Process

(a) Arguments on Appeal

[48] The appellant further argues that the defects in the trial jury-vetting process resulted in a miscarriage of justice. Relying on R. v. Spiers, 2012 ONCA 798, 113 O.R. (3d) 1, in which this court held that the extent of the jury vetting conducted by the police and Crown compromised the appearance of fairness, the appellant submits that the Crown’s failure to disclose the results of the background checks warrants a new trial. A reasonable and well-informed person would perceive that the jury selection process – and therefore the entire trial – constituted a miscarriage of justice. The appellant acknowledges that, in several cases, this court has rejected conviction appeals based on irregularities in the jury-vetting process – see R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, R. v. Emms, 2010 ONCA 817, 104 O.R. (3d) 201, and R. v. Davey, 2010 ONCA 818, 103 O.R. (3d) 161 – but views those cases as distinguishable from the one at bar.

[49] The Crown concedes that the practice of failing to disclose the results of the CPIC checks was problematic, but argues that the jury-vetting process was based on a routine procedure that was not the product of a sinister design to gain an advantage for the Crown. What is more, there is no reasonable possibility that the nondisclosure affected the composition of the jury. Spiers, the Crown submits, is “orders of magnitude” worse than the facts of this case. The Crown agrees that Yumnu, Emms, and Davey are distinguishable, but on the basis that these cases involved background checks that were more invasive of juror privacy and provided more detailed and specific information about a greater percentage of prospective jurors.

(b) Analysis

[50] The principles governing the authority of the Crown to use police databases to conduct background checks on prospective jurors were set out in R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777. Moldaver J. held at para. 50 that, in the absence of legislation to the contrary, “the authorities should be permitted to do criminal record checks on potential jurors to determine whether they are eligible to serve as jurors under provincial law and/or whether they may be subject to challenge for cause” under s. 638(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46.[^4] The Crown cannot set out to find information about prospective jurors that is outside the bounds of what is relevant under provincial law or s. 638(1)(c), but if they come across such information in the course of performing otherwise valid checks, “they need not turn a blind eye to it”: Yumnu, at para. 54. But any information relevant to the jury selection process must be disclosed to the defence: Yumnu, at para. 55.

[51] Moldaver J. set out a two-part test, at para. 75, for appeals from conviction based on the Crown’s failure to disclose information about prospective jurors to defence counsel:

I am of the view that persons who seek a new trial on the basis that non-disclosure of information about potential jurors deprived them of their s. 7 Charterright to a fair trial must, at a minimum, establish that: (1) the Crown failed to disclose information relevant to the selection process that it was obliged to disclose; and (2) had the requisite disclosure been made, there is a reasonable possibility that the jury would have been differently constituted [emphasis added].

[52] In the instant case, neither the results of the 2004 background checks nor the scope of the Crown’s search are known. In any event, the Crown accepts that, pursuant to routine practice, the results of the checks were not disclosed to the defence. There is no doubt, therefore, that the appellant has satisfied the first step of Yumnu test.

[53] It is at Yumnu’s second step that the appellant’s argument collapses. Only one of the six prospective jurors with a “no” notation was called upon to serve on the jury, and had she not been challenged peremptorily she would have been seated as an alternate juror and would have never served on the jury. By way of comparison, in Spiers, trial counsel for the defence indicated that had he been privy to the information available to the Crown, he would have challenged at least five jurors who actually served on the jury: Spiers, atpara. 75. The appellant’s counsel here has made no such submissions.

[54] This case bears no resemblance to Spiers. The possibility that the jury would have been differently constituted in the appellant’s trial is not reasonable, or even remote – it is simply nonexistent.

[55] Therefore, I would also dismiss this ground of appeal.

E. CONCLUSION

[56] I see no merit in either of the appellant’s grounds of appeal. The trial judge did not err in finding that the appellant’s right to counsel was not violated, and his finding that the appellant’s statements were voluntary was not unreasonable. Moreover, while the Crown acted improperly in failing to disclose information regarding prospective jurors to the defence, there is no possibility that but for the nondisclosure, the appellant would been judged by a different jury of his peers.

[57] For these reasons, I would dismiss the appeal.

Released:

“MAY 28 2014” “M. Tulloch J.A.”

“KF” “I agree K. Feldman J.A.”

“I agree E.E. Gillese J.A.”

[^1]: These reasons are set out in the parties’ Agreed Statement of Facts. First, for purposes of accuracy, dates of birth were inputted in the course of conducting the 2010 CPIC checks. This procedure was not followed in the 2004 checks, allowing for the possibility that the 2004 hits that were generated related to individuals with the same or a similar name. Second, any of the six prospective jurors with a “no” notation could have been granted a pardon between 2004 and 2010 with respect to a disqualifying conviction. Third, there was a potential for human error in the 2004 checks.

[^2]: In his factum, the appellant abandoned his appeal from sentence and his ground of appeal from conviction on the issue of intoxication and specific intent.

[^3]: Manitoba, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001).

[^4]: Section 638(1)(c) provides the following: “A prosecutor or an accused is entitled to any number of challenges on the ground that … a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months.”