Law Times

PAGE 2 NEWS November 26, 2012 • Law Times New trial ordered due to jury vetting T SEAMLESS, EFFICIENT ESTATE PLANNING STARTS HERE MILLER THOMSON ON ESTATE PLANNING EDITOR-IN-CHIEF: MARTIN ROCHWERG NEW PUBLICATION How can you be certain that the will or non-testamentary documents you are drafting today are sturdy enough to withstand scrutiny and challenge? This new looseleaf service for lawyers and other professionals who manage finances provides a comprehensive analysis of Canadian estate planning and administration to help ensure your client's goals are met and his or her intentions carried out. Miller Thomson on Estate Planning offers insight into multiple planning issues across Canada, including Québec, such as: trusts, estate administration, insurance planning, charitable planning, disability planning, business succession and corporate restructuring, and the legal implications of immigration and emigration and other cross-border issues. 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See complete listing of all contributors – visit carswell.com/mtep ORDER # 984927-65203 $400 2 volume looseleaf supplemented book 1-3 supplements per year Supplements invoiced separately BY SHANNON KARI For Law Times tion and ordered a new tri- al as a result of background checks on potential jurors that were conducted by po- lice on behalf of the Crown and not disclosed to the de- fence. The background checks he Ontario Court of Appeal has for the first time quashed a convic- that took place in Barrie, Ont., in the 2007 murder trial of Clare Alexander Spiers "disrupted the balance in the jury selection process to such an extent as to constitute a miscarriage of justice, three-judge panel concluded. The province' " the asked to overturn convictions in at least a half dozen appeals where so-called jury vetting occurred since the existence of the practice in Barrie and other jurisdic- tions in Ontario was uncovered by the media in 2009. The appeals were all dismissed even s highest court has been though the extent of the background checks and their use by the Crown were very similar in at least two other cases, also in Barrie, to what took place in the Spiers trial. Those two cases, along with a third based in Cobourg, Ont., are still on re- serve at the Supreme Court of Canada more than eight months aſter it heard oral arguments. Spiers, 47, was convicted by a jury The Ontario Court of Appeal tossed a conviction due to jury vetting last week. in a domestic assault." McConnery said the checks were re- viewed "very summarily" but he looked for information that would suggest a "negative attitude" toward law enforce- ment. Former Crown Elizabeth Quinlan (now a Superior Court judge), respond- ing through a lawyer, said she looked for criminal records and anyone with "significant" driving offences or possible mental-health issues. At the time of the trial, a conviction for an indictable offence was required to be ineligible to serve as a juror (that was amended in 2010 to extend to any hybrid offence conviction). Moustacalis says the background of first-degree murder in the kidnap- ping, strangling, and stabbing death of a 60-year-old woman aſter six days of de- liberation. Several police officers conducted background checks on the more than 240 people in the jury panel, which was a long-standing practice in Barrie. The Crown forwarded copies of administra- tive lists of prospective jurors to police that contained contact information as well as names. A memo issued by for- mer Crown attorney Lorne McConnery asked police to check for criminal re- cords and if "comments and details could be made concerning any disreputable person we would not want as a juror. A version of this memo had been sent " out in Barrie to police for several years, al- though the phrase "and details" was added to the instructions in the 2007 note. Police searched the Canadian Police checks didn't uncover anyone who was ineligible as a result of a conviction for an indictable offence. "I think the Court of Appeal recognized that this was an outrageous example of jury vetting. All these potential jurors had their private information improperly accessed with- out their knowledge, ments by Crown attorney Michal Fairburn that the Rules of Professional Conduct ap- prove of the collection of background in- formation on prospective jurors. "The Rules do not authorize Crowns to engage in jury-vetting practices that run afoul of ministry policy and violate privacy legislation," wrote Justice Paul Rouleau with justices Stephen Goudge and Harry LaForme concurring. "The Crown misused police databases The Court of Appeal rejected argu- " he says. that the appellant could not access," stat- ed Rouleau. The Court of Appeal distinguished Information Centre computer, the much broader Niche records management sys- tem, and other databases to search for any contact with police. The fact that jury lists don't include 978-0-7798-4927-7 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com/mtep Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 VE. INNOVATIVE. TRUSTED. birthdates made it virtually impossible to use only CPIC to find any past criminal convictions that the Crown claimed was the purpose of these checks. "This was improper data mining, its ruling from another decision in 2010 in R. v. Yumnu, a case that also involved widespread data searches of potential ju- rors in Simcoe County. Several databases were accessed, the Crown's jury list was colour-coded, and Anthony Moustacalis, a Toronto defence lawyer who represented Spiers in the ap- peal. "It was a breach of the Juries Act. It was a breach of privacy legislation." As part of the fresh evidence process " says in the appeal, the trial Crowns provid- ed unsworn written statements about their use of the information obtained by police, which included comments such as "hates police" or "complainant www.lawtimesnews.com police even made use of information on where an individual lived before informing Crown attorneys Mike Flosman and Gisele Miller as to whether someone was accept- able. It was a team approach, testified a po- lice officer in the fresh evidence application as he explained how he would signal the Crown in court during jury selection based on the information he acquired. The Court of Appeal decision in Yumnu, written by Justice David Watt, concluded that the purpose of the data- base searches was to find out if a potential juror had a criminal record. None of the more than 800 potential jurors subjected to the background checks was found to be ineligible. Yumnu is one of the three appeals still on reserve at the Supreme Court. LT

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