R. v. Davey (T.G.), (2012) 437 N.R. 250 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 21, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 437 N.R. 250 (SCC);2012 SCC 75

R. v. Davey (T.G.) (2012), 437 N.R. 250 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2012] N.R. TBEd. DE.023

Troy Gilbert Davey (appellant) v. Her Majesty the Queen (respondent) and Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Information and Privacy Commissioner of Ontario, David Asper Centre for Constitutional Rights and Criminal Lawyers' Association (intervenors)

(34179; 2012 SCC 75; 2012 CSC 75)

Indexed As: R. v. Davey (T.G.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

December 21, 2012.

Summary:

The accused admittedly killed a police officer by slashing his throat with a knife. He was convicted by a jury of first degree murder. The only contentious issue at trial was whether the accused had the intent to murder. The accused appealed, submitting that the Crown participated in impermissible "jury vetting" and that the trial judge misdirected the jury respecting the use of expert evidence concerning the accused's state of mind.

The Ontario Court of Appeal, in a judgment reported (2010), 272 O.A.C. 108, dismissed the appeal. The accused appealed his conviction solely on the "jury vetting" issue.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 4310.3

Procedure - Jury - General - Jury pool - Background checks - Section 20 of the Juries Act provided that a list of potential jurors was not to be disclosed more than 10 days in advance - The list of 400 potential jurors for the accused's murder trial was provided to the accused and Crown 21 days in advance - The list was circulated to court officers (police officers) in the three police districts where the potential jurors resided - Police officers were asked to express their personal opinion as to the suitability of potential jurors - The master list returned to the Crown contained notations such as "good", "yes", "ok" or "no" beside the names of some jurors - The notations were not disclosed to the accused - After in-court challenges and challenges for cause, 13 potential jurors with notations remained - Three jurors selected had notations of "good", "ok" or "bad" - Both the accused and Crown had peremptory challenges left - On appeal from his first degree murder conviction, the accused argued that the Crown breached s. 20, breached its duty to disclose, and that the non-disclosure and the Crown's use of the information required a new trial to avoid the appearance of trial unfairness - The Supreme Court of Canada affirmed the Ontario Court of Appeal's dismissal of the appeal - The court stated that "there should be no systematic distribution of jury panel lists to police services for comment regarding the suitability of jurors. ... Further, the privacy interests of prospective jurors should be protected, except as necessary for the administration of the criminal justice system. ... the Crown may engage in targeted consultation with a limited number of individuals working on the case with the prosecution, including police officers, to discuss concerns relating to the partiality, eligibility or suitability of a prospective juror. Any information relevant to the selection process must be disclosed, including any information acquired in the execution of police duties. If it is unclear whether a bald police opinion is based upon such information, the opinion should be disclosed. ... The opinions provided were based at least in part upon police information about the prospective jurors. Those opinions should have been disclosed. However, the Court of Appeal found that there was no reasonable possibility that the jurors were partial to the Crown. The court's finding that the jury would not have been differently constituted had those opinions been disclosed was available on the evidence in this case. There was no error in principle and I would not interfere with the Court of Appeal's conclusion that the Crown's conduct in this case did not prejudice trial fairness, and did not lead to an appearance of unfairness that requires a new trial".

Criminal Law - Topic 4310.3

Procedure - Jury - General - Jury pool - Background checks - The Supreme Court of Canada stated that "any scrutiny of prospective jurors using government or police databases should be limited to criminal record checks for the purpose of determining juror eligibility under provincial legislation, or acceptability under s. 638(1)(c) of the Criminal Code. Any information obtained relevant to the selection process must be disclosed. This includes information bearing on the eligibility, partiality or suitability of potential jurors. ... the Crown should not engage in systematic consultations with police services regarding the suitability of jurors. ... Further, these inquiries are contrary to the important privacy interests of all prospective jurors. ... such inquiries raise the spectre of the undue blending of investigative and prosecutorial roles. ... for the purpose of exercising its discretion in the peremptory challenge process, the Crown is permitted to ask the opinion of someone who is part of the prosecution team, or to consult with those assisting the prosecution, including individual police officers, regarding concerns relating to partiality, eligibility, or suitability of any prospective juror. ... if the Crown seeks the opinion of a police officer, any information received relevant to the selection process (touching on a potential juror's eligibility, suitability, or ability to remain impartial) must be disclosed. ... The more difficult issue was whether the opinion of a police officer must be disclosed. ... general impressions, personal or public knowledge in the community, rumours or hunches, need not be disclosed ... To the extent that the underlying information is readily ascertainable by members of the community, it is not linked to the prosecution's role as an agent of the state, or to the Crown's disproportionate access to resources, and there is no onus on the Crown to bring forward information about a prospective juror readily available on the internet. Further, the subjective feelings, hunches, or suspicions of members of the prosecution's team with regard to prospective jurors do not engage 'the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence'" - Respecting "a police officer's recommendations with regard to jury composition that are based on knowledge gathered in the course of law enforcement activities", the court stated that "the Crown must seek the basis for the opinions provided and determine whether they are based upon information that is reasonably accurate and reliably based. This is not to say that the Crown is required to disclose the opinions of police along with the information on which those opinions are based. So long as the underlying information is disclosed, the defence will have access to the material on which the opinion is based, and can draw its own inferences for the purpose of exercising its peremptory challenges." - See paragraphs 34 to 49.

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - [See both Criminal Law - Topic 4310.3 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See both Criminal Law - Topic 4310.3 ].

Criminal Law - Topic 4963

Appeals - Indictable offences - New trials - Grounds - Lack of appearance of justice - [See both Criminal Law - Topic 4310.3 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See first Criminal Law - Topic 4310.3 ].

Cases Noticed:

R. v. Yumnu (I.) (2012), 437 N.R. 289; 2012 SCC 73, refd to. [para. 1].

R. v. Emms (J.) (2012), 437 N.R. 324; 2012 SCC 74, refd to. [para. 1].

R. v. Spiers (C.A.) (2012), 299 O.A.C. 47; 2012 ONCA 798, refd to. [para. 1, footnote 1].

R. v. Pizzacalla (1991), 50 O.A.C. 161; 5 O.R.(3d) 783 (C.A.), refd to. [para. 23].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 23].

R. v. Church of Scientology of Toronto et al. (1997), 99 O.A.C. 321; 33 O.R.(3d) 65 (C.A.), refd to. [para. 30].

R. v. Kakegamic (J.O.) (2010), 272 O.A.C. 205; 2010 ONCA 903, refd to. [para. 30].

R. v. Teerhuis-Moar (S.) (2007), 217 Man.R.(2d) 270; 2007 MBQB 165, refd to. [para. 30].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 31].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161, refd to. [para. 31].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1, refd to. [para. 35].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 42].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 45].

R. v. Fagan (1993), 18 C.R.R.(2d) 191 (Ont. Gen. Div.), refd to. [para. 45].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 45].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 50].

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 2005 NSCA 2, refd to. [para. 51].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 52].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 52].

R. v. Hobbs (K.P.) (2010), 293 N.S.R.(2d) 126; 928 A.P.R. 126; 2010 NSCA 62, leave to appeal denied [2010] 3 S.C.R. vi; 417 N.R. 392, refd to. [para. 55].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271, refd to. [para. 55].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 55].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310;  2002 SCC 15, refd  to. [para. 64].

Authors and Works Noticed:

Federation of Law Societies of Canada, Model Code of Professional Conduct (updated Dec. 13, 2011) (online: http://www.flsc.ca), rules 4.05(1), 4.05(2) [para. 33].

Law Society of Upper Canada, Rules of Professional Conduct (updated April 26, 2012) (online: http://www.lsuc.on.ca/Work Area/DownloadAsset.aspx?id=2147486159), rules 4.05(1), 4.05(2) [para. 33].

Ontario, Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, Report on Charge Screening, Disclosure, and Resolution Discussions (1993), p. 39 [para. 37].

Counsel:

Christopher Hicks and Theodore Sarantis, for the appellant;

Michal Fairburn, Deborah Krick, John S. McInnes and Susan Magotiaux, for the respondent;

Frank Addario, for the intervener, the Canadian Civil Liberties Association;

Nader R. Hasan and Gerald J. Chan, for the intervener, the British Columbia Civil Liberties Association;

William S. Challis and Stephen McCammon, for the intervener, the Information and Privacy Commissioner of Ontario;

Cheryl Milne and Lisa Austin, for the intervener, the David Asper Centre for Constitutional Rights;

Anthony Moustacalis and Peter Thorning, for the intervener, the Criminal Lawyers' Association.

Solicitors of Record:

Hicks Adams, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Addario Law Group, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Ruby Shiller Chan Hasan, Toronto, Ontario, for the intervener, the British Columbia Civil Liberties Association;

Information and Privacy Commissioner of Ontario, Toronto, Ontario, for the intervener, the Information and Privacy Commissioner of Ontario;

University of Toronto, Toronto, Ontario, for the intervener, the David Asper Centre for Constitutional Rights;

Anthony Moustacalis, Toronto, Ontario; Peter Thorning Zibarras, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association.

This appeal was heard on March 14-15, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On December 21, 2012, Karakatsanis, J., delivered the following judgment in both official languages for the Court.