COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Spiers, 2012 ONCA 798

DATE: 20121121

DOCKET: C48160

Goudge, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clare Alexander Spiers

Appellant

Anthony Moustacalis and J. Orkin for the appellant

Michal Fairburn, Scott Latimer, Gillian Roberts and
    Deborah Calderwood, for the respondent

Jonathan Rudin and Christa Big Canoe, for the
    interveners, Rhoda & Berenson King (Bushie Family) and Elizabeth &
    Marlen Pierre (Pierre Family)

Kent Roach and Cheryl Milne, for the intervener David
    Asper Centre for Constitutional Rights

Julian N. Falconer and Sunil S.
    Mathai, for the intervener Nishnawbe Aski Nation

Heard: April 30, May 2, 3 and 4, 2012

On appeal from the
    convictions entered on December 3, 2007 by Justice James Robert MacKinnon of
    the Superior Court of Justice, sitting with a jury.

Rouleau J.A.:

[1]

After a four-month trial, the appellant was found guilty by a jury of
    first degree murder and two counts of kidnapping. The offences occurred in May
    2004, and involved the kidnapping of M.K. and her infant grandchild from M.K.s
    home, and the strangling and stabbing death of M.K.

[2]

The appellant appeals his convictions and seeks a new trial. He submits
    that the trial judge erred by failing to exclude evidence that was either
    highly prejudicial, inaudible, or obtained in a manner that infringed his
Charter
rights. The appellant also argues that the police and Crown carried out
    extensive and improper pre-screening of prospective jurors, also referred to as
    jury vetting, and that the egregious nature of this conduct entitles the
    appellant to a new trial, as well as an order for costs of both the new trial
    and this appeal.

[3]

Finally, the appellant also appeals on the basis that the jury roll and
    the jury panels from which the jury was selected were not representative as a
    result of the procedures used and the inadequacy of efforts made to include
    on-reserve Aboriginal people on the jury roll for Simcoe County. This issue was
    argued together with the same issue in
R. v. Kokopenace,
Court File No.
C49961.

[4]

For the reasons that follow I conclude that, in the circumstances of
    this case, the extent of the jury vetting carried out by the police and Crown
    and the use to which the collected information was put disrupted the balance in
    the jury selection process to such an extent as to constitute a miscarriage of
    justice. I would therefore allow the conviction appeal and order a new trial.

FACTS

[5]

Given my conclusion that the appeal should be allowed on the jury
    vetting ground and a new trial ordered, I need only set out a brief summary of
    the facts giving rise to the convictions. I will then summarize the fresh
    evidence tendered on appeal with respect to the jury vetting issue.

(a)

Background

[6]

On Friday, May 21, 2004, M.K. was at her home in Barrie with her
    11-month-old granddaughter. The circumstances of the crime became known when M.K.
    answered a call on her cell phone from a stereo installer regarding a scheduled
    meeting that afternoon. M.K. told him that someone was trying to get into the
    car with her granddaughter and asked him to call her husband. After she spoke
    these words there was a rustling sound and the phone went dead. The stereo
    installer immediately called M.K.s husband and the two of them hurriedly drove
    to the home, only to find M.K. and her granddaughter missing. M.K.s car, an
    Audi, was also missing from the garage.

[7]

M.K.s granddaughter was found in the Audi hours later in a parking lot
    in another part of Barrie. She was upset but unharmed. M.K.s body was
    discovered in a wooded area in the nearby township of Oro-Medonte. She had been
    stabbed and strangled to death.

[8]

The investigation that followed led the police to the appellant who had
    been selling roof and window repairs door-to-door in the neighbourhood that
    day. The appellant was interviewed by investigators and quickly became a
    suspect. The police also discovered that he had called a cab from a location
    mere steps away from where M.K.s granddaughter and the Audi were discovered.
    The call was placed just after the Audi had first been noticed in the parking
    lot.

[9]

A circumstantial first degree murder case was presented at trial. The
    logical movements of M.K., her granddaughter and the Audi were tracked and
    timed. Evidence was presented that tied the appellant, both geographically and
    temporally, to where the abduction began and ended. An eyewitness testified
    that she saw the appellant driving a car with a child inside during the time
    that M.K.s granddaughter was missing. A forensic examination of M.K.s
    clothing revealed that male DNA had been deposited on her shirt, in an area
    where force would be applied in a manner consistent with strangulation. Y-STR
    DNA testing revealed that while 99 percent of the male population could be
    excluded as the donor of that DNA, the appellant could not.

[10]

The
    Crown submitted to the jury that the evidence could only lead them to infer
    that it was the appellant who abducted M.K. and her granddaughter and who stole
    the Audi. In the Crowns submission, the appellant brutally killed M.K. and then
    ditched the Audi along with the infant granddaughter in a public space and
    fled. The Crown submitted to the jury that the available evidence demonstrated
    beyond a reasonable doubt that the appellant was guilty of two counts of
    kidnapping and murder.

(b)

Fresh Evidence of Jury Vetting

[11]

Subsequent
    to filing his notice of appeal, the appellant became aware of possible
    improprieties in the jury selection process used in Barrie. He inquired of the
    Crown whether background checks had been carried out with respect to the
    potential jurors prior to the selection of the jury in his trial.

[12]

The
    appellant received disclosure of a number of background checks that had been
    made in relation to one of the three jury panels used in the jury selection for
    the trial. On consent, the appellant then amended his notice of appeal to add
    the jury vetting ground. He subsequently filed extensive fresh evidence
    concerning the jury vetting issue.

[13]

Included
    in the fresh evidence is Practice Memorandum #17, issued by the Ministry of the
    Attorney General in March 2006, over a year before the trial in this case. It provides
    guidance to Crown counsel on practice and procedure relating to the background
    of prospective jurors. The Memorandum advises Crown counsel not to request the
    police to undertake an investigation into the list of jurors other than to
    carry out criminal record checks. The Memorandum further advises that if
    criminal record checks are done, any concrete information provided by police
    to the Crown suggesting that an individual may not be impartial, should be
    disclosed to the defence.

[14]

In
    this case, which undoubtedly carried a high profile in the community, this
    policy was not followed. On August 17, 2007, the Crown Attorney for Simcoe, who
    was one of the prosecutors in this case, released copies of jury panel lists to
    seven police detachments with a covering memo that reads in part:

Please check the attached jury panel lists, for the persons
    listed in your locality, and advise if any have criminal records. We are not
    able to provide birthdates.

It would be helpful if
comments and
    details
could be made concerning any disreputable person 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 in original.]

[15]

This
    memo was copied to the other prosecutor in this case, a senior Assistant Crown
    Attorney.

[16]

The
    vetting process was carried out by several police officers, and involved not
    only CPIC criminal record checks, but also searches of databases for all police
    contact with the potential jurors, including
Highway Traffic Act
violations (also referred to as M.T.O. records), and other police occurrence
    reports of encounters the police had with citizens, whether or not
    investigative. The information obtained filled several binders and was provided
    to the Crown together with annotated jury lists.

[17]

Although
    three jury panels were used in the selection of the jury, the original
    background checks for two of these, panels 33 and 35, could not be located. The
    original background checks into jury panel 34 were produced and consisted of
    500 to 600 pages of information obtained from various police databases. There
    are a number of handwritten comments on some of the pages, comments such as
    Flag, Hates police, No, and No...MTO.

[18]

Also
    produced were the jury panel lists. These also contained handwritten comments
    regarding jurors suitability, comments such as ok, If born in 1952  has
    mental issues, Complainant, No and Complaint in domestic assault 2005.

[19]

Because
    the material assembled as part of the original background checks into jury
    panels 33 and 35 could not be located, the appellant obtained an order in this court
    that:

[t]he Crown recreate the background checks for the following
    categories of jurors:

(1) all jurors from panels 33 and 35 that made it past the
    challenge for cause and peremptorily challenged by either defence or Crown;

(2) all jurors from panels 33 and 35 that were selected to be
    on the jury.

[20]

The
    appellant also received written responses to specific questions from the two
    prosecutors. When asked about the purpose of the background checks, the Crown
    Attorney advised that:

The background checks were reviewed very summarily, certainly
    on my part. The M.T.O. records which form the bulk of the material are not
    particularly useful but I would look for a conviction for drive while
    suspended as being somewhat indicative of a negative attitude to law
    enforcement. Beyond that, the record checks do occasionally reveal a criminal
    conviction, even for an indictable offence, and while a summary conviction does
    not disqualify a person as a juror, I would tend to see any such conviction as
    negative.

[21]

The
    Assistant Crown Attorney, now a judge of the Superior Court of Justice, advised
    through counsel that:

[She] reviewed the background checks and from them identified
    individuals who had existing criminal records (and who would therefore be
    ineligible[
[*]
]).

She also identified individuals with significant MTO/HTA
    offence records or anything that indicated the possibility of mental health
    issues.

Finally, she noted the approximate age of the prospective
    juror. It was anticipated that the trial would be a lengthy and difficult one
    and so it was felt that prospective jurors would require a degree of stamina as
    well as some life experience.

[22]

The
    information obtained in the course of the background checks was not disclosed
    to the appellant until requested during the appeal process, well after the
    trial, which was held in the fall of 2007.

[23]

The
    Crown and appellant each had 22 peremptory challenges. At the end of jury
    selection the Crown had two challenges remaining and the appellant had one.

ANALYSIS

[24]

This
    court has dealt with the jury vetting issue in various ways:
R. v. Yumnu
,
    2010 ONCA 637;
R. v. Emms
, 2010 ONCA 817; and
R. v. Davey
,
    2010 ONCA 818.

[25]

Before
    turning to the issues in this case, I will summarize the courts reasons in
    these three cases. Leave to appeal in the Supreme Court of Canada was granted
    in these cases, the appeals were heard in March 2012, and the decisions are
    under reserve. The issue was also considered by the Nova Scotia Court of Appeal
    in
R. v. Hobbs
, 2010 NSCA 62, but leave to appeal to the Supreme Court
    of Canada was refused: 33879 (January 20, 2011).

[26]

In
Yumnu
background checks on potential jurors were conducted using the
    CPIC data base as well as internal police records systems. Although the Crown
    in that case, also from Barrie, requested that the police make comments []
    concerning any disreputable persons we would not want as a juror, this court
    found that the purpose of the police inquiries was to determine whether a
    potential juror had a criminal record (at para. 94), and therefore fell within
    the scope of information-gathering permitted under s. 638(1)(c) of the
Criminal
    Code
. The police also made cryptic notations on the jury panel lists, such
    as Okay, 0, 10-60, and possible record. Crown counsel did not disclose
    either the fact that police were conducting background checks or the
    information obtained from these checks until about seven weeks after jury
    selection had been completed. In Watt J.A.s reasons, emphasis is placed on the
    fact that the appellants trial counsel were aware that background checks had
    been carried out, and that counsel did nothing to bring the Crowns failure to
    disclose to the attention of the presiding judge, and did nothing until four
    and half years later during the appeal process. This court then analyzed the
    impact of non-disclosure as a component of the right to make full answer and
    defence, and concluded that the appellants failed to demonstrate a reasonable
    possibility that the Crowns non-disclosure affected either the outcome or
    overall fairness of the trial. Also of significance was the fact that neither
    the defence nor the Crown exhausted all of their challenges: this was held to
    preclude an inference  that the selection process had the appearance of
    unfairness. (para. 127)

[27]

In
Emms
, an identical letter to that in
Yumnu
was sent by the
    Barrie Crown office to local police offices requesting comments on
    disreputable persons. The information provided was similar in scope to that
    in
Yumnu
. For example, several names were noted with possible, which
    was understood to indicate a possible criminal record. It was acknowledged by trial
    Crown counsel that the police notations influenced her decision as to how she
    exercised her peremptory challenges. The police undertook the background checks
    using CPIC and other databases available only to police. The annotated list was
    not disclosed to defence counsel. At jury selection, four people were called
    forward about whom Crown counsel had information indicating a possible criminal
    history: of those four, the Crown challenged two of them, and defence counsel
    challenged the other two. On appeal, it was submitted that, had defence counsel
    been privy to the information provided to the Crown, he would not have used two
    of his peremptory challenges for them. In his reasons, Rosenberg J.A. observed
    that given defence counsels remaining two challenges at the end of jury selection,
    the fact that he may have wasted two challenges did not impact on the kind
    of jury he wanted to try the case (para. 50), and thus the non-disclosure did
    not affect the overall fairness of the trial process. The possibility was also
    raised that, had it been necessary for the Crown to use two of its challenges
    on the two jurors challenged by defence counsel, the last of the challenges
    made by the Crown could not have been made as the Crown would have exhausted
    all of its challenges. This last potential juror could have become a juror and may
    have been favourable to the defence. Rosenberg J.A. dismissed this argument as
    mere speculation. While Rosenberg J.A. found the wording of the Crowns letter
    most troubling (para. 60), he reasoned that, taken in context, it did not
    amount to a miscarriage of justice, since the information actually supplied
    was of limited utility and related to criminal record information (para. 60). Ultimately,
    Rosenberg J.A. found that the conduct of the police and Crown was not so
    egregious so as to bring the administration of justice into disrepute or to
    lead reasonable people to believe that the appearance of justice had been
    undermined.

[28]

In
Davey
the appellant alleged improper vetting of a jury panel in Cobourg.
    In that case, however, the police did not actually access databases such as
    CPIC, but instead provided comments based on the officers knowledge of
    potential jurors in the community. Police officers provided short one-word
    notations to the Crown on potential jurors such as good, yes, ok, or
    no. Limited use was made of the information and Crown counsel in one instance
    selected one of the potential jurors with negative comments. In his reasons, Rosenberg
    J.A. held that the appellant failed to demonstrate either a violation of the
Juries
    Act
or that any alleged violation of that legislation undermined the
    fairness of his trial. Rosenberg J.A. also held that the police-provided
    community information did not fall within the prosecutions disclosure
    obligation. Rosenberg J.A. rejected the appellants argument that the jury
    vetting amounted to an apparent miscarriage of justice. He found that the
    suggestion that the defence might have exercised their peremptory challenges differently
    had disclosure been made to be pure speculation. Rosenberg J.A. conducted an
    analysis taking into account all of the circumstances of the trial, including
    the apparently limited use made of the police information, the Crowns
    disclosure of instances where a real potential for bias existed, and the
    challenge for cause in which potential jurors were questioned about their
    connection to the police force and concluded: A reasonable and right-minded
    person viewing what occurred realistically and practically would not come to
    the conclusion that the jury appeared biased (para. 33).

[29]

From
    this trilogy of cases it appears there is more than one approach available and
    several factors are relevant to the analysis of alleged improper jury vetting.
    In
Yumnu
the approach was focused on non-disclosure and what effect it
    had on either the outcome or overall trial fairness. In
Emms
the
    analysis focused on the effect of non-disclosure on the jury selection process
    as well as the overall fairness of the trial process, and also on whether there
    was an appearance of a miscarriage of justice. In
Davey
, given the
    nature of the information, disclosure was found not to be an issue, but the
    overall fairness of the process and the appearance of bias were still analyzed.
    In all the cases the nature and quantity of information the Crown possessed was
    a factor. In
Yumnu
, the inaction of trial counsel was a predominant
    factor. In
Davey
and
Emms
, the inability to demonstrate an
    actual effect on the composition of the jury was a factor.

[30]

In
    the present case, a breach of the Crowns disclosure obligations was conceded.
    However, despite the submission of the appellant to the contrary, I see nothing
    in the jury vetting background checks that would have benefited the Crown or
    prejudiced the appellant in the conduct of the trial proper. In that sense,
    therefore, the non-disclosure does not appear to have impaired the appellants
    right to make full answer and defence. Moreover, the record in this case does
    not demonstrate that any of the 12 jurors selected was ineligible because of
    bias. The appellant also argues that, when analysed, the facts and
    circumstances surrounding the jury vetting issue demonstrate that there was a
    miscarriage of justice. An allegation of a miscarriage of justice can rest on
    the appearance of injustice; and neither impairment of the right to make full
    answer and defence nor bias need be proven:
R. v. Khan
, 2001 SCC 86,
    [2001] 3 S.C.R. 823, at paras. 72-73. See also:
R. v. Wolkins
, 2005
    NSCA 2, 229 N.S.R. (2d) 222, at para. 89;
R. v. Moosomin
, 2008 SKCA
    168, 239 CCC (3d) 326, at para. 25;
R. v. Sue
, 2011 BCCA 91, 302
    B.C.A.C. 30, at paras. 43-44; and
R. v. Hertrich
, 137 D.L.R. (3d) 400,
    67 C.C.C. (2d) 510 (Ont. C.A.) at para. 99.

[31]

To
    determine whether the jury vetting in this case amounted to a miscarriage of
    justice, it is necessary to evaluate the extent of any improprieties associated
    with the jury vetting that took place and the potential effect those
    improprieties had on the composition of the jury. As I will explain, what
    emerges from this analysis is a considerably more troubling picture than what
    emerged from
Yumnu,

Emms
or
Davey
. This picture is
    one of unfairness in the jury selection process, and disruption of the balance
    created by Parliament between the Crown and the accused in that process to such
    an extent as to constitute a miscarriage of justice.

(a)

Miscarriage
    of Justice

[32]

Criminal
    Code
, s. 686(1)(a)(iii) allows this court to set aside a conviction where
    we are of the opinion that on any ground there was a miscarriage of justice.
    In
R. v. Khan
, LeBel J., at paras. 69-87 (in dissent, but not on this
    point) provided an extensive overview of the concept of a miscarriage of
    justice. He noted that there is no strict formula for determining whether a
    miscarriage of justice has taken place and that irregularities may take many
    unpredictable forms. The gravity of the irregularities and the impact of these
    on trial fairness and the appearance of fairness are to be evaluated on a
    case-by-case basis. An appearance of a miscarriage of justice requiring a new
    trial exists if the irregularity would be such as to taint the administration
    of justice in the eyes of a reasonable and objective observer. We must look
    at whether a well-informed, reasonable person considering the whole of the
    circumstances would have perceived the trial as being unfair or as appearing to
    be so: para. 73. Also see
R. v. Cameron
(1991) 2 O.R. (3d) 633 (Ont. C.A.).

[33]

In
    this case, there are a number of factors that need to be weighed in carrying
    out the miscarriage of justice analysis. I will first examine a number of
    factors relating to the propriety of the conduct of the police and the Crown in
    carrying out the jury vetting in this case. Next, I will examine the importance
    of the jury selection process and peremptory challenges, and the effect the
    jury vetting in this case had on the peremptory challenges made and the
    resulting composition of the jury. Finally, the gravity and impact of all these
    factors must be weighed in the miscarriage of justice analysis.

(b)

Improprieties in Jury Vetting

[34]

The
    first step in assessing the appellants miscarriage of justice argument is to
    evaluate whether and the extent to which the police and the Crown acted
    improperly in their collection and use of jury vetting information.

(i)

Compliance with
    the
Juries Act

[35]

The
    first, and perhaps most technical, of the irregularities that occurred in this
    case concerns the way in which the jury lists were obtained by the Crown.

[36]

The
Juries Act
, R.S.O. 1990, c. J.3, s. 20 provides that jury panel lists
    are not to be disclosed until ten days before the sittings of the court for
    which the panel has been drafted. In this case, it appears that the Crown had
    obtained the lists and had the police commence the investigation of potential
    jurors about two weeks before it was properly entitled to the jury lists.

[37]

In
    addition, the lists obtained by the Crown appear to have been the
    administrative lists containing the names and contact information (telephone
    numbers) of the prospective jurors and not the jury panel lists contemplated
    by s. 20 of the
Juries Act
, R.R.O. 1990, Regulation 680, ss. 2 and 9.

(ii)

Collusion
    between Crown and police in jury vetting

[38]

A
    more significant problem concerns the Crowns use of police resources in the
    course of jury vetting. This court noted in
Emms
, at para. 60, that:

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 counsels obligation to ensure that the
    accused receives a fair trial.

[39]

In
    the case at bar, the memo sent by the Crown attorney requesting that the jury
    checks be carried out was broadly worded: it would be helpful if
comments and details
could be made concerning any
    disreputable persons we would not want as a juror (emphasis in original). In
    my view, the addition of the words and details makes the language in this case
    even more troublesome than the request for police comments in
Emms
. In
    addition, the broader range of database searches carried out and the fact that
    all of the information collected, binders of it, was provided to the
    prosecuting Crowns suggest that the Crown made greater use of the police and
    the material collected than in
Emms
, worsening the appearance and
    consequences of the collusion.

(iii)

Ontario privacy
    legislation

[40]

The
    use of the police databases raises additional concerns in terms of provincial
    privacy legislation. On October 5, 2009, albeit after this trial took place,
    the Information and Privacy Commissioner for Ontario released a report on
    related issues entitled Excessive Background Checks Conducted on Prospective
    Jurors: A Special Investigation Report.

[41]

The
    report made a number of findings, including findings that both Crown attorneys
    and the police did not comply with the applicable privacy legislation and that
    broad background checks, beyond criminal record checks to verify juror
    eligibility, breached the privacy legislation:
Freedom of Information and
    Protection of Privacy Act
R.S.O. 1990, c. F.31 [FIPPA], and
Municipal
    Freedom of Information and Protection of Privacy Act
, R.S.O. 1990, c. M.56
    (MFIPPA). The Commissioners investigation revealed that the Ministry of the
    Attorney General had engaged in internal discussions on this issue since 1993,
    but had not issued a formal instruction to Crown Attorneys until 2006.
    According to the Commissioner, the formal instruction provided by the Ministry
    to the Crowns was not sufficiently clear and left some doubt as to what
    practices were acceptable.

[42]

In
    her well-reasoned report, the Commissioner came to the following relevant
    conclusions (at pp. 131-132):

A.      The information contained in jury roll lists
    (consisting of eligible prospective jurors), jury panel lists, and additional
    background information about prospective jurors provided by the police
    qualifies as "personal information" as defined in section 2(1) of
FIPPA
and
MFIPPA
.

H.      [The Ministry of the Attorney Generals] MAG's
    disclosure of jury panel lists to the police for the purpose of obtaining
    information that is relevant to jury selection in a specific criminal
    proceeding is in compliance with section 42 of
FIPPA
. However, MAG's
    disclosure of jury panel lists to the police for the purpose of obtaining
    information that is not relevant to jury selection in a specific criminal
    proceeding is not in compliance with section 42 of
FIPPA
.

I.        MAG's collection of personal information relevant to
    criminal conviction eligibility criteria from the police is in compliance with
    section 38(2) of
FIPPA
. However, MAG's collection of personal
    information beyond information relevant to criminal conviction eligibility
    criteria is not in compliance with section 38(2) of
FIPPA
.

K.      The collection by the police of personal information of
    prospective jurors in jury panel lists for the purpose of obtaining information
    relevant to juror criminal conviction eligibility is in compliance with section
    28(2) of
MFIPPA
and section 38(2) of
FIPPA
. However, the
    collection by the police of personal information of prospective jurors in jury
    panel lists for the purpose of obtaining other information, not relevant to
    juror criminal conviction eligibility, is not in compliance with section 28(2)
    of
MFIPPA
or section 38(2) of
FIPPA
.

L.       The use by the police of personal information of
    prospective jurors in jury panel lists and in police databases for the purpose
    of obtaining information relevant to juror criminal conviction eligibility
    criteria is in compliance with section 41 of
FIPPA
and section 31 of
MFIPPA
.
    Any use beyond this limited purpose is not in compliance with these provisions.

M.      The disclosure by the police to MAG of personal
    information of prospective jurors relevant to juror criminal conviction
    eligibility is in compliance with section 42(1)(e) of
FIPPA
and section
    32(c) of
MFIPPA
. However, the disclosure by the police to MAG of
    additional personal information of prospective jurors, beyond that which is
    relevant to juror criminal conviction eligibility, is not in compliance with
    section 42(1)(c) of
FIPPA
and section 32(c) of
MFIPPA
.

[43]

In
    the present case extensive information was accumulated by the police from
    various sources, including CPIC and other internal police databases. This
    information included not only criminal conviction information, but also traffic
    violations, and occurrence reports detailing other contact the police had had
    with the potential jurors in the past. This primary information, provided in
    full to the Crown, was supplemented with annotations, such as already
    mentioned: Flag, Hates police, etc. Presumably this significantly more
    extensive set of information was accumulated as a result of the Crown
    requesting
comments and details
 (emphasis in the
    original) in their memo to the police.

[44]

It
    is apparent from the very extensive information assembled by police and
    provided to the Crown that the checks carried out by the police went beyond the
    historically valid purpose of determining whether individuals on the jury panel
    had convictions for indictable offences rendering them potentially ineligible
    to sit as jurors. In my view, the fresh evidence in this case establishes that
    much of the information assembled by the police was the type of information
    that the Commissioner found to have been collected in violation of
FIPPA
and
MFIPPA
, and that the police ought not to have disclosed to Crown
    counsel.

[45]

It
    is also clear that the nature and quantity of the information on prospective
    jurors provided to the Crown in this case distinguish it from other jury
    vetting cases dealt with by this court. In
Yumnu
the jury vetting was
    largely confined to criminal record checks and only annotated lists appear to have
    been provided to Crown counsel. In
Emms
only annotated lists were
    provided to Crown counsel and the annotations were largely limited to ok
    which Crown counsel understood to mean that the prospective juror did not have
    a criminal record. And in
Davey
police databases were not used to
    carry out background checks and there was no information collected that had to
    be disclosed to the accused.

(iv)

The permissibility of jury vetting

[46]

The
    Crown argues that the collection of information in this case accorded with the
    accepted practice for jury preparation that existed at the time, and that it
    complied with the Law Society of Upper Canadas
Rules of Professional
    Conduct
[
Rules
]
. The Crown referred specifically to the
    commentary under Rule 4.05(1) that reads as follows:

A lawyer may investigate a prospective juror to ascertain any
    basis for challenge, provided that the lawyer does not directly or indirectly
    communicate with the juror or with any member of the jurors family. But a
    lawyer should not conduct or cause another, by financial support or otherwise,
    to conduct a vexatious or harassing investigation of either a member of the
    jury panel or a juror.

[47]

The
Rules
do not authorize Crowns to engage in jury vetting practices that
    run afoul of Ministry policy and violate privacy legislation. The jury vetting conducted
    in this case was in direct contravention of the March 2006 directive issued by
    the Attorney General for Ontario. The fact that the trial Crowns testified that
    they were unaware of the directive does not make the investigation of the
    prospective jurors proper.

[48]

By
    accessing and using personal information contained in various government
    databases, the Crown misused police databases that the appellant could not
    access and, as found by the Privacy Commissioner for Ontario, contravened
    provincial privacy legislation. Clearly, this is not the type of investigation
    contemplated by the commentary to rule 4.05(1).

(v)

Disclosure

[49]

It
    is conceded by the Crown that all potentially relevant information assembled
    ought to have been disclosed to the appellant, and it was not.

(vi)

What is the significance of
    the appellants failure to request disclosure when information it obtained
    indicated that jury checks had been carried out?

[50]

In
Khan
, LeBel J. identified trial counsels response to an irregularity
    as a factor potentially relevant to determining whether the irregularity
    created a miscarriage of justice. In the case at bar, the Crown submits that
    trial counsels failure to ask for disclosure of jury vetting information or
    for a mistrial weighs against a finding that there was a miscarriage of
    justice.

[51]

The
    Crown points to no less than 16 references to jury checks in materials
    disclosed to counsel at trial. Although there is disagreement about exactly
    when some of these notes were disclosed, the appellants trial counsel
    acknowledge that they would have read some of the references to jury checks
    during the trial. They say that they did not ask for disclosure or make any
    inquiries concerning the nature or extent of the jury checks because they never
    suspected that anything improper had been done. Appellants trial counsel were
    not from Barrie and were not aware of jury vetting practices of the Crown in
    that jurisdiction. They thought that whatever had been done was completely
    innocuous and not worthy of disclosure and so did not ask what the jury check
    references were about.

[52]

I
    agree with the Crown that, because notes containing references to jury checks
    having been made were disclosed in the course of the trial, the appellant could
    have  and, in retrospect, should have  asked for disclosure of any relevant
    information obtained as a result of the checks. However, in the circumstances,
    the failure to do so carries little weight in the miscarriage of justice
    analysis. The appellant had no reason to suspect what was actually going on.

[53]

I
    acknowledge that an after the fact analysis of the voluminous disclosure
    reveals that police officers devoted much more time to the juror checks than
    would be expected if they were merely carrying out simple CPIC checks. I
    cannot, however, fault the appellants trial counsel for not noticing the
    suspicious amount of time police devoted to jury vetting. The documents
    referring to juror checks were only produced in the course of the trial, after
    jury selection, by which point counsel were preoccupied with more pressing
    matters. The appellants trial counsel would have had no reason to expect that
    jury vetting information would be of use to them at that point in the trial.
    They certainly would not have expected that, had they requested disclosure, it
    would have revealed improper conduct by the Crown in the jury selection
    process.

[54]

In
Yumnu
, at paras. 99-105, this court held that defence counsels
    failure to request disclosure of jury vetting information assumed a place of
    prominence in assessing the severity of the disclosure violation: para 104. In
    that case, the fact that the criminal records checks of potential jurors had
    been carried out would have been apparent to the appellants before the jury was
    selected. In addition, defence counsel received copies of police notes
    revealing not only that jury vetting had occurred, but also that databases had
    been consulted and the results of these inquiries noted.

[55]

In
    the circumstances here, for the reasons I have given, I view the failure of the
    appellants trial counsel to request disclosure as having marginal relevance
    and limited weight in the analysis of the miscarriage of justice issue. In this
    case it simply does not assume a place of prominence as it did in
Yumnu
.

(c)

The Effect of the Improprieties on the Jury
    Composition

[56]

The
    extent to which improprieties in jury vetting affect the ultimate composition
    of a jury plays a role in determining whether those improprieties give rise to
    a miscarriage of justice: see
Emms
at para. 58. In this case, the
    appellant submits that the improper information-gathering affected the Crowns
    use of peremptory challenges, and that the appellant would have used his
    peremptory challenges differently had the information been disclosed.

(i)

The importance of the challenge process

[57]

In
    evaluating the impact of the jury vetting in this case, it is important to
    consider the role that jury selection and the peremptory challenge system have
    in ensuring that trials are fair and are perceived as such.

[58]

In
R. v. Cloutier,
[1979] 2 S.C.R. 709,

the Supreme Court of
    Canada had occasion to comment on the
Criminal Code
provisions dealing
    with jury selection. The court rejected any interpretation of the jury
    selection provisions that would disrupt the balance clearly established by the
    legislator between the rights of the accused and those of the prosecution: p.
    10. Quoting from
Morin v. The Queen
(1890), 18 S.C.R. 407, at p. 424,
    the court emphasized the importance of respecting the jury selection process
    and not affording the Crown or defence any advantage of privilege not afforded
    by law.

The object of the law certainly is to secure the prisoners a
    fair trial. How can this be accomplished if he is deprived of the privilege the
    law gives him in the selection of the jury by whom he is to be tried?

In the present instance the objection taken is not raised on a
    mere technicality but is that the jury to whom the prisoner shall be given in
    charge shall be legally selected, chosen and sworn, and that neither the crown nor
    the prisoner shall have any advantage of privilege other than those conferred
    by law; but when the privileges are conferred by law they shall rigidly be
    respected.

[59]

The
    court in
Cloutier
also explained that the right to peremptorily
    challenge is discretionary. It is not directed at those who could be challenged
    for cause. As the court explained at p. 9:

The very basis of the right to peremptory challenges,
    therefore, is not objective but purely subjective. The existence of the right
    does not rest on facts that have to be proven, but rather on the mere belief by
    a party in the existence of a certain state of mind in the juror. The fact that
    a juror is objectively impartial does not mean that he is believed to be
    impartial by the accused or the prosecution; Parliament, when allowing each
    party a number of peremptory challenges, clearly intended that each party have
    the right to remove from the jury a number of individuals whom he does not
    believe to be impartial, though he could not provide evidence in support of
    such belief. The very nature of the right to peremptory challenges and the
    objectives underlying it require that its exercise be entirely discretionary
    and not subject to any condition.

[60]

Put
    differently, disruptions in the peremptory challenge process will not result in
    a jury or jurors that can be shown to be partial. Instead, it will impair one
    or other partys ability to fashion a jury that the party, subjectively,
    considers to be impartial.

[61]

This
    court emphasized the importance of the challenge process in
R. v. Parks
(1993), 15 O.R. (3d) 324. Although the comment related to the challenge for
    cause process, it also applies to the peremptory challenge process. At para. 28
    this court stated that the accuseds statutory right to challenge potential jurors
    for cause based on partiality is the only direct means an accused has to secure
    an impartial jury. The significance of the challenge process to both the
    appearance of fairness, and fairness itself, must not be underestimated. More
    recently, in
R. v. Gayle
(2001),
54 O.R.
    (3d) 36; 201 DLR (4th) 540
at para. 59, Sharpe J.A. commented that [a]n
    important part of the jury selection process is the right of both the Crown and
    the defence to exercise peremptory challenges  The justification for allowing
    peremptory challenges is that they foster confidence in the jury trial
    process.

(ii)

The role of Crown peremptory challenges

[62]

Before
    turning to the effect of the jury vetting information in this case on the jury
    selection, I will address the Crowns submissions concerning the role of the
    Crown in the peremptory challenge process. The Crown submits that, in selecting
    a jury, the Crown seeks only an impartial jury, not one that might favour the
    Crown. The Crown argues, therefore, that the additional information it had
    available to it about potential jurors was, at worse, harmless and, at best,
    resulted in a jury that was more impartial to the benefit of the appellant.

[63]

In
    my view, this submission misses the mark. Parliament created a regime that
    balances the rights of the Crown and the accused in the jury selection process.
    Where that balance is seriously disrupted the rights of the accused are
    violated, prompting cynicism and concern regarding fairness and partiality in
    the jury process.

[64]

Further,
    the wording of the memo sent to police requesting the background checks as well
    as the suggestion by the trial Crown attorney that he looked to identify
    persons with a negative attitude to law enforcement suggests that the jurors
    the Crown sought to include in the jury, while impartial, may not be the type
    of juror that the appellant would want to sit in judgment of his case.

[65]

In
    an attempt to justify the Crowns right to stand aside or peremptorily
    challenge many more potential jurors than the accused, the Crown in
R. v. Bain
,
    [1992] 1 S.C.R. 91 argued, as it does here, that the Crown attorney, as an
    officer of the court would never act unfairly in the selection of a jury.  The
    court rejected this submission explaining, at para. 5, that on occasion Crowns
    will demonstrate human frailties and utilize their stand aside and peremptory
    challenge rights for the improper purpose of obtaining a jury that appears to
    be favourable to the Crown. As in
Bain
, we simply cannot in this case
    assume that the Crown used the improperly acquired information to select a jury
    that the appellant would view as being more acceptable, or at worse, would
    consider neutral. In fact, the appellant is not likely to view the Crowns use
    of the information to weed out jurors who may have a negative attitude to law
    enforcement as being neutral.

[66]

In
Bain
the court went on at para. 7 to state that  [juries] should not
    as a result of the manner of its selection appear to favour the Crown over the
    accused. Fairness should be the guiding principle of justice and the hallmark
    of criminal trials.  Where the jury selection process is unfair the whole
    trial process will be tainted with the appearance of obvious and overwhelming
    unfairness.  It will not be necessary in such a case, to show actual bias.

(iii)

Would the jury have been differently constituted if the Crown had
    not had access to the improperly assembled information?

[67]

The
    parties dispute whether the Crowns access to jury vetting information had any
    impact on the composition of the jury.

[68]

Given
    the passage of time and the imperfect reproduction of records produced in this
    court of the background checks it is impossible to say, with any precision,
    what use was made of specific pieces of information obtained. As noted earlier,
    the Crowns would have been looking for significant MTO/HTA offence records,
    indications of the possibility of mental health issues, summary conviction
    offences and indications of a negative attitude to law enforcement as might
    be revealed by convictions for driving while suspended.

[69]

The
    appellant argues that, when the Crowns peremptory challenges are analyzed, it
    becomes apparent that the Crown made extensive use of the improperly assembled
    information. Most of the persons peremptorily challenged by the Crown had
    significant records for HTA offences or had other notations such as possible
    record.

[70]

The
    appellant carried out a detailed analysis of the jurors peremptorily challenged
    by the Crown. In his view, this analysis shows that several of the peremptory
    challenges were made only as a result of the improperly obtained information.

[71]

In
    response the Crown carried out its own detailed review of the peremptorily
    challenged jurors and submitted that no clear pattern of use emerges.

[72]

I
    do not propose to review each and every Crown peremptory challenge. What
    clearly emerges from the fresh evidence is an acknowledgment by the trial
    Crowns that they received, reviewed and, at least to some degree, relied on the
    information obtained in exercising their peremptory challenges. In addition,
    some of the notations on the jury lists opposite the names of persons
    peremptorily challenged by the Crown are clearly the product of the improperly
    obtained information and are the type of information Crowns might rely on in
    exercising their peremptory challenges.

[73]

By
    way of example, a jury panel list has a notation opposite the name of a person
    who was peremptorily challenged by the Crown. The notation is as follows: No,
    7 HTA  4 collisions  51. This juror was peremptorily challenged by the
    Crown. Notations such as this one lead me to the conclusion that, on balance,
    it is more likely than not that the improperly assembled material assisted the
    Crown in the exercise of its peremptory challenges and, had this information
    not been available to the Crown, at least one of the prospective jurors
    peremptorily challenged would not have been peremptorily challenged by the
    Crown. Nothing suggests that had the person not been challenged by the Crown
    the person would have been challenged by the appellants trial counsel. In my
    view, therefore, the appellant has shown that the improperly assembled
    information resulted in a process in which the Crown shaped the jury
    differently than it would have been able to otherwise.

(iv)

Would the jury have been differently constituted if proper
    disclosure of the information had been made to the appellant?

[74]

Leaving
    aside the impropriety of the Crown having the extensive jury vetting
    information in this case, I will now consider the issue of the composition of
    the jury from a different perspective. Did the failure to disclose the jury
    vetting information have an impact on the composition of the jury in this case?

[75]

In
    its fresh evidence, the appellant included an affidavit from trial counsel
    that, had trial counsel had the same information available to it as was
    available to the Crown, there are at least five jurors who were selected for
    the jury that trial counsel would have challenged. The appellant further argues
    that had he known the basis of the Crowns peremptory challenges, he would have
    challenged the challenge through a procedure described in
R. v. Gayle
.
    According to the appellant, therefore, but for the Crowns failure to disclose,
    the jury would have been differently constituted.

[76]

The
    Crown, for its part, argues that trial counsel would have made no different
    peremptory challenges if the jury vetting information had been disclosed. In
    the Crowns submission, trial counsels explanations concerning which jurors
    would have been challenged are internally inconsistent, frivolous, and lack
    support. The Crown also maintains that there is no merit in the appellants
    submission that he could have challenged the Crowns use of its peremptory
    challenges under
Gayle
.

[77]

Both
    the appellant and the Crown embarked on a detailed analysis of the selected
    jurors to bolster their position as advanced to this court.

[78]

Again,
    I see no need to carry out a case-by-case review of each juror selected for the
    trial. Peremptory challenges are not based on science and cannot be subjected
    to a Cartesian analysis. They are, to a large extent, exercised on the basis of
    gut instinct or impression by the counsel involved.

[79]

One
    example will suffice. The appellants trial counsel explains that the
    information the Crown is likely to have had with respect to a juror suggests that
    this juror had had six contacts with the police including calling to report a
    suspicious person dressed in black, reporting several petty crimes and asking
    the police for advice about a civil problem. The appellants counsel testified
    that had he known of this information he would have viewed this person as a
    serial complainant and an overly suspicious person, the type of person that he
    would peremptorily challenge.

[80]

The
    appellants trial counsel goes on to explain that, when he was making final
    submissions to the jury at the end of the trial, he remembers that this
    specific juror appeared to be completely disinterested in the position of the
    defence.

[81]

The
    Crowns response is that the appellant has misconstrued the information
    available to the Crown about this juror. The various contacts listed in the
    jury vetting materials are in respect of an address and are not tied to this
    specific individual. According to the Crown no link can be made between the six
    complaints and the juror.

[82]

I
    disagree with the Crowns submission on this point. Although the various
    complaints are, as the Crown maintains, in reference to an address and not to
    the specific juror, the materials produced also show that the juror resided at
    that address. As a result, it is not unreasonable for the appellants trial
    counsel to view the link between the individual, the address and the various
    complaints to be sufficient to warrant the exercise of a peremptory challenge.

[83]

In
    light of the record, therefore, and having regard to the sworn evidence of
    trial counsel it is likely that, had they been provided with the disclosure, appellants
    trial counsel would have challenged some of the jurors ultimately selected in
    this case. As a result I am satisfied that, but for the failure of the Crown to
    make disclosure of the improperly assembled information, the jury would have
    been differently constituted in this case.

[84]

Given
    this finding, it is not necessary to consider whether non-disclosure prejudiced
    the appellant by denying his trial counsel the opportunity to attempt to
    challenge the Crowns peremptory challenges.

(d)

The

Impact of the
    Irregularities

[85]

The
    central question is whether the cumulative impact of the irregularities
    outlined above so disrupted the balance between the rights of the accused and those
    of the prosecution such that a well-informed, reasonable person considering
    the whole of the circumstances would have perceived the trial as being unfair
    or as appearing to be so:
Khan
, at para. 73.

[86]

There
    can be no doubt that the public and an accused would view with grave suspicion a
    jury selection process that unfairly favours the Crown. The Crown has access to
    many confidential sources of information maintained by the police. Where,
    therefore, the Crown uses improper means to give itself significant advantages
    in the exercise of its peremptory challenges there will come a point where, in
    my view, the jury selection process is defective.

[87]

What
    then would the well-informed, reasonable person perceive about how the
    peremptory challenge process functioned in this case? The record shows that
    both the Crown and the appellant were allowed the appropriate number of
    challenges and the judge followed the proper procedure for their exercise. However,
    the record also shows that:

(a) Information was assembled by the Crown to assist it in the
    exercise of its challenges. The information assembled (i) was in breach of
    Crown policy as outlined in the March 2006 memo from the Attorney General for
    Ontario; (ii) was found to be in breach of provincial privacy legislation by
    the Privacy Commissioner for Ontario; (iii) involved the use of a very
    significant amount of resources not available to the appellant; and (iv) used
    lists released more than 10 days before the court sittings contrary to the
Juries
    Act
.

(b) The memo sent by the Crown attorney requesting that the
    jury checks be carried out was broadly worded stating that it would be helpful
    if
comments and details
could be made concerning
    any disreputable persons we would not want as a juror.  [Emphasis in original.]
    As set out in
Emms
, this use of police resources and attempt to align
    the Crown with the police is inconsistent with Crown counsels obligation to
    ensure that the accused receives a fair trial.

(c) The assembled information was not shared with the appellant
    contrary to Crown policy and its disclosure obligations.

(d) The information assembled was voluminous and was used by
    the Crown to assist in shaping the jury; and

(e) The appellant has shown that, had he had access to the
    information that ought to have been disclosed, he would have exercised his
    peremptory challenges differently resulting in a jury that he would have
    considered to have been more impartial.

[88]

As
    noted by the Crown, the well-informed, reasonable person would also know that
    the appellants trial counsel failed to request full disclosure and a remedy
    after he became aware that there had been some jury vetting. For the reasons
    outlined earlier in these reasons, although I agree that it is a factor to be
    considered, I view it as having little significance in the circumstances of
    this case.

[89]

When
    all the factors are weighed and viewed cumulatively, I conclude that the well-informed
    and reasonable person would perceive the jury selection process in this case to
    be unfair. The improprieties have resulted in a significant mismatch in the
    amount of information relevant to jury formation, with the Crown having much
    more information available to it than was available to the appellant. This
    mismatch came about in large measure because of breaches by the Crown of its
    own policies, misuse of police databases and, as explained, breaches of privacy
    legislation. Finally, the appellant has established that both the improprieties
    and the failure to disclose have resulted in the appellant being tried by a jury
    differently constituted than if the breaches had not occurred.

[90]

In
    my view, the major purpose of peremptory challenges, to foster confidence in
    the jury trial process:
Gayle
, at para. 59, was undermined to such a
    degree as to create the appearance of unfairness. The extent of the imbalance
    created and the significance of the improprieties have so tainted the
    appearance of a fair process as to amount to a miscarriage of justice and lead
    reasonable people to believe that the appearance of justice has been undermined.

(e)

Other
    Issues

[91]

I
    have not dealt with the appellants ground of appeal relating to
    underrepresentation of on-reserve Aboriginal people on the jury roll. That
    issue was also raised in
R. v. Kokopenace
and the two cases were heard
    together. Given my reasons on the jury vetting issue and the result that
    follows, I find it unnecessary to deal with the underrepresentation issue in these
    reasons.

[92]

With
    respect to other grounds of appeal advanced by the appellant I am of the view
    that it is neither necessary nor desirable for me to deal with them in light of
    my conclusion that a new trial should be held. Those issues are either based on
    the evidence led at trial or are to be determined on well-settled legal
    principles. If they arise anew they are best dealt with by the judge hearing
    the new trial.

REMEDY

[93]

The
    appellant submits that the extent of the Crowns misconduct and seriousness of
    the failure to disclose justify ordering the Crown to pay the costs of the new
    trial and of this appeal. I agree that the Crown had access to a great deal of
    improperly acquired information and that the breach of the Crowns disclosure
    obligations was serious. The appellant has not, however, shown that there was
    any malicious intent or intentional breaches by the trial Crowns. Despite the
    seriousness of the breaches, I consider ordering a new trial to be an adequate
    remedy and do not view this case to be one in which costs ought to be awarded
    to discipline and discourage flagrant and unjustified or egregious
    instances of non-disclosure. See
R. v. 974649 Ontario Inc.
,

2001 SCC 81, [2001] 3 S.C.R.
    575, and
R. v. Tiffin
,

2008 ONCA 306, 90 O.R. (3d) 575.

[94]

For
    these reasons I would allow the conviction appeal and direct a new trial.

Paul Rouleau J.A.

I agree S.T. Goudge J.A.

I agree H.S. LaForme
    J.A.

Released:
November 21, 2012

[*]
It was not actually all people with criminal records who were ineligible to be
    jurors. At the time of the jury selection in this matter, prior to its
    amendment in 2010, according to subsection 4(b) of the
Juries Act
, R.S.O.
    1990, c. J.3, it was only people who had been convicted of an indictable
    offence, who had not received a pardon, who were ineligible to be jurors.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Taylor, 2012
    ONCA 809

DATE: 20121122

DOCKET: C53602

Winkler C.J.O., Rosenberg and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dayntry Taylor

Appellant

Richard Litkowski, for the appellant

Eliott Behar, for the respondent

Heard: October 10, 2012

On appeal from the conviction entered by Justice Richard
    J. LeDressay of the Ontario Court of Justice, sitting without a jury, on
    September 23, 2010, and from the sentence imposed on December 3, 2010.

Rosenberg J.A.:

[1]

The appellant appeals from her conviction and sentence on a charge of
    fraud following a trial before LeDressay J. The appeal turns entirely on the
    admissibility and use of a statement the complainant made to the police prior
    to her death. The appellant submits that this hearsay statement should not have
    been admitted into evidence and, having been admitted, should not have been
    found sufficiently reliable to found a conviction.

[2]

The appellants principle submission turns on the application of the
    principled approach to what counsel terms a testimonial statement, that is, a
    statement taken by the police in circumstances where it is likely that the
    statement will be used in evidence. Mr. Litkowski, counsel for the appellant,
    contrasts this kind of statement with other statements that have been admitted
    under the principled approach, such as those dealt with by the Supreme Court of
    Canada in cases such as
R. v. Khan
, [1990] 2 S.C.R. 531 and
R. v.
    Smith
, [1992] 2 S.C.R. 915. He also contrasts this kind of statement with
    K.G.B. statements [
R. v. B. (K.G.),
[1993] 1 S.C.R. 740] or the
    statement dealt with by the court in
R. v. U. (F.J.)
, [1995] 3 S.C.R.
    764. While such statements are taken in contemplation of litigation, their
    admissibility is premised on the availability of the complainant for
    cross-examination at the trial.

[3]

The appellant submits that the effect of the trial judges ruling was to
    create an unfair imbalance in that the complainants evidence was received
    untested through cross-examination. On the other hand, the appellant was
    subjected to a searching cross-examination, a cross-examination that exposed
    fatal flaws in her claim that the complainant consented to her taking most of the
    complainants savings for the appellants own use. In his interesting and
    helpful submissions, Mr. Litkowski relies upon the ruling of the Grand Chamber
    of the European Court of Human Rights on two appeals from the United Kingdom:
Al-Khawaja
    and Tahery v. The United Kingdom
[GC], nos. 26766/05 and 22228/06 (15
    December 2011).

[4]

The appellant also appeals the sentence imposed of 21 months
    imprisonment to be followed by two years probation. The trial judge also made a
    restitution order in the amount of $126,464.54.

[5]

For the following reasons, the appeal from conviction and sentence is
    dismissed.

A.

THE FACTS

[6]

From shortly before 2005 until the fall of 2007, the appellant was the
    regular caregiver to the complainant, Ms. Dokaupe, a relatively frail, elderly
    woman who lived alone in an apartment in Burlington. The complainant faced some
    serious physical challenges that left her mainly home-bound. She had spent most
    of her adult life working for the Halton District School Board. She took early
    retirement in the 1980s with a pension and savings of almost $165,000. During
    the time that the appellant worked as her caregiver, the complainant came to
    rely on her for a number of daily needs. The complainant also befriended the
    appellant and her family.

[7]

In 2005, at the suggestion of the appellant, the complainant had a
    lawyer prepare a will and power of attorney. The appellant acted as the
    attorney and was named the executor of the complainants estate. In February
    2006, the appellant went to the bank where the complainant did her banking and,
    using her power of attorney, had a bank card issued for herself on the
    complainants savings account. The evidence, independent of the complainants
    hearsay statement, established that from February 2006 to September 2007, the
    appellant used the bank card to empty the savings account of over $126,000, all
    but $17,000. The independent evidence also established that this money was used
    for the appellants own needs, not those of the complainant, and that during
    this period, the appellant continued to draw a salary for the care-giving
    services she performed for the complainant.

[8]

In late August 2007, the appellant left the complainants employment.
    One month later, another of the complainants caregivers, Vanessa Rapedius,
    read the complainants bank statements. After informing the complainant about
    what had happened to the savings account, Rapedius contacted the police. The
    complainant was contacted by a police officer who began an investigation.
    Several months later, on April 17, 2008, another police officer took a
    videotaped statement from the complainant. The elderly complainant died before
    the trial on December 19, 2008.

[9]

When she provided the video statement, the complainant was 90 years of
    age. She had no criminal record. The statement began with the police officers
    explanation that the statement was being videotaped and that it would be taken
    under oath. The officer explained the penal consequences of public mischief,
    obstruct justice, and perjury if the statement was false. A commissioner for
    oaths administered the oath to the complainant. The complainant then provided a
    detailed statement in which she denied knowing about the bank card or giving
    the appellant permission to withdraw funds from her savings account.

[10]

In
    her statement, the complainant disclosed that she was taking a number of
    prescription medicines. She explained the purpose of each of the medications.
    No independent evidence was adduced at the
voir dire
about the effect
    of this medication. At the trial proper, after the trial judge admitted the
    videotaped statement, the complainants family physician testified and
    explained that none of the medications would have affected the complainants
    mental ability.

[11]

On
    January 24, 2008, Dr. Lightfoot, a psychologist who is a designated capacity
    assessor, met with the complainant and provided an opinion that the complainant
    had the mental capacity at that time to modify her will and to appoint or
    revoke a continuing power for attorney for property. Dr. Lightfoot testified at
    the
voir dire
after viewing the videotaped statement. Dr. Lightfoot
    testified that at the time of the interview, the complainant was mentally
    capable of managing her property.

[12]

The
    contents of the videotaped statement reveal a possibility that the complainant
    was upset with the appellant because the appellant abruptly terminated her employment
    contract. The trial judge was of the view that while the complainant may have
    fabricated the allegations, the better view was that she was concerned about
    the appellants well-being because she had suddenly disappeared. There was no
    evidence and no logical inference  that Ms. Dokaupe had a motive to fabricate
    her story. On the other hand, there was insufficient evidence to conclude that
    the complainant had no known motive to fabricate the entire story.

B.

THE TRIAL JUDGES RULING

[13]

The
    trial judge recognized that the videotaped statement, as hearsay, was
    presumptively inadmissible and did not fall within any of the recognized
    exceptions to the hearsay rule. He found that the statement could be admitted
    under the principled approach to hearsay. The necessity requirement was made
    out because of the death of the complainant. The requirement for threshold
    reliability was satisfied as a result of a number of circumstances. The
    statement was under oath with clear cautions as to the legal consequences of providing
    a false statement. The complainant had no criminal record and appeared to take
    the warnings seriously. She appeared to understand her moral obligation to tell
    the truth. The statement was provided voluntarily and was not the product of
    threats, promises or any form of coercion. The statement was video recorded in
    its entirety and thus the court was able to examine the complainants
    demeanour. The complainant had an ability to recall events and to provide
    specific and detailed information. There was no evidence of any mistake or any
    diminished or distorted mental capacity.

[14]

The
    trial judge looked at whether there was extrinsic evidence either confirming or
    undermining the reliability of the statement. He noted that virtually
    everything in the statement was confirmed by the bank records. He recognized,
    however, that the question of consent was a crucial issue in the case and that there
    was no evidence confirming the complainants assertion that the money was
    withdrawn from her savings account without her consent. The trial judge found
    that there was no extrinsic evidence undermining the truthfulness of the
    complainants account in the statement. The trial judge was satisfied that
    there was little likelihood that the statement was a product of pressure from
    Ms. Rapedius. The complainants responses to the questions from the police
    officer were intelligent, detailed and comprehensive. There was no indication
    that her memory was faulty or that her answers did not originate from her own
    experience.

[15]

Finally,
    the trial judge took into account the fact that cross-examination is the main
    factor that ensures the integrity of the trial process. He noted the defence
    argument that credibility was the crucial factor in the case and that
    cross-examination of the complainant would be essential for the court to
    resolve the credibility issue. The trial judge nevertheless found that the
    criteria of necessity and reliability had been met and that the statement
    should be admitted.

[16]

At
    the trial proper, the trial judge found that the statement was sufficiently
    reliable to found the conviction. In addition to the factors considered on the
    earlier admissibility ruling, the trial judge took into account the evidence
    from the complainants family physician who explained that the various
    medications the complainant was using would not have affected her mental functioning.
    The trial judge noted that there was not a shred of evidence to contradict the
    complainants statement that her life savings were rapidly depleted without her
    knowledge and consent. The suggestion that the complainants assertions were either
    the result of pressure or influence from others or because the complainant was
    upset that the appellant stopped visiting her were very weak and largely
    speculative. The trial judge also dealt with the defence submission that in
    several areas, the complainants evidence might have changed had there been
    cross-examination. In cogent reasons, he explained why it was unlikely that the
    complainants evidence would have changed significantly in cross-examination.

[17]

Finally,
    the trial judge referred to the appellants testimony, which was seriously
    undermined in cross-examination. The trial judge was satisfied that the
    prosecutions case was made out beyond a reasonable doubt.

C.

ANALYSIS

[18]

The
    admissibility of the statement in this case rests on the test set forth in
    cases from the Supreme Court of Canada, such as
R. v. Khelawon
, 2006
    SCC 57, [2006] 2 S.C.R. 787,
R. v. Couture
, 2007 SCC 28, [2007] 2
    S.C.R. 517 and
R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298.
    Contrary to the submission of counsel for the appellant, the admissibility of
    this statement cannot be determined under the approach taken by the European
    Court of Human Rights in
Al-Khawaja and Tahery
. While that decision is
    interesting and provides a helpful survey of developments in the hearsay rule
    in various common law and other countries, its context is rooted in specific
    United Kingdom statutory provisions, such as ss. 23 to 28 of the
Criminal
    Justice Act 1988
(U.K.), 1988, c. 33; Part 11, Chapter 2 of the
Criminal
    Justice Act 2003
(U.K.), 2003, c. 44; and, most importantly, Article 6 §§ 1
    and 3(d) of the
Convention for the Protection of Human Rights and
    Fundamental Freedoms
, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S.
    5 [
ECHR
]
.
Article 6 § 3(d) is a form of confrontation
    guarantee similar to the Sixth Amendment to the United States Constitution.
    Article 6 §§ 1 and 3(d) provide as follows:

1.  In the determination of his civil rights and
    obligations or of any criminal charge against him, everyone is entitled to a
    fair and public hearing within a reasonable time by an independent and
    impartial tribunal established by law....

3.  Everyone charged with a criminal offence has the
    following minimum rights:

...

(d)  to examine or have examined witnesses against
    him and to obtain the attendance and examination of witnesses on his behalf
    under the same conditions as witnesses against him.

[19]

While
    the
Canadian Charter of Rights and Freedoms
in ss. 7 and 11(d) provides
    broad fair trial guarantees, it does not include an explicit guarantee to
    confront the witnesses.

[20]

In
    its decision in
Al-Khawaja and Tahery
, the Grand Chamber of the European
    Court of Human Rights adopted a somewhat more flexible approach to the
    admission of hearsay than had previously been used by the court. Previously,
    the court had rigidly applied a sole or decisive rule. As explained in
Unterpertinger
    v. Austria
[1986] E.H.C.R. 9120/80, (1991) 13 E.H.R.R. 175, at para. 33,
    the rule provides that if the conviction of a defendant is solely or mainly
    based on evidence provided by witnesses whom the accused is unable to question
    at any stage of the proceedings, his defence rights are unduly restricted (
Al-Khawaja
    and Tahery
, at para. 128). Such restriction on the defence rights is
    incompatible with the guarantees provided by Article 6:
Lucà v. Italy
,
    [2001] E.H.C.R. 33354/96, (2003) 36 E.H.R.R. 46, at para. 40. In
Doorson v.
    the Netherlands,
[1996] E.H.C.R. 20524/92, (1996) 22 E.H.R.R. 330, at
    para. 70, the court held that, even in a case where there was a justification
    for the failure to call a witness (what we would term necessity), a conviction
    based solely or to a decisive extent on evidence of that witness would be
    unfair.

[21]

In
Al-Khawaja and Tahery
, the court affirmed its continued adherence to
    the sole or decisive rule, subject to the proviso that there may be
    circumstances in which hearsay that is decisive of the case may nevertheless be
    admissible. As the court said, at para. 139:

The Court similarly cannot accept the third argument [by the
    government of the United Kingdom] that the sole or decisive rule is predicated
    on the assumption that all hearsay evidence which is crucial to a case is
    unreliable or incapable of proper assessment unless tested in cross-examination.
    Rather, it is predicated on the principle that the greater the importance of
    the evidence, the greater the potential unfairness to the defendant in allowing
    the witness to remain anonymous or to be absent from the trial and the greater
    the need for safeguards to ensure that the evidence is demonstrably reliable or
    that its reliability can properly be tested and assessed.

[22]

While
    this approach is somewhat more flexible than that laid out in the courts
    earlier decisions, it remains rooted in Article 6 and the principle that the
    admissibility of hearsay and trial fairness are inextricably linked to the
    importance of the evidence. As the court said, at para. 143:

the Court has consistently assessed the impact that the
    defendants inability to examine a witness has had on the overall fairness of
    his trial. It has always considered it necessary to examine the significance of
    the untested evidence in order to determine whether the defendants rights have
    been unacceptably restricted[.]

The court explained the modified sole or decisive rule
    in these terms, at para. 147:

The Court therefore concludes that, where a hearsay statement
    is the sole or decisive evidence against a defendant, its admission as evidence
    will not automatically result in a breach of Article 6 § 1. At the same time
    where a conviction is based solely or decisively on the evidence of absent
    witnesses, the Court must subject the proceedings to the most searching
    scrutiny. Because of the dangers of the admission of such evidence, it would
    constitute a very important factor to balance in the scales, to use the words
    of Lord Mance in
R. v. Davis
[[2008] UKHL 36, [2008] 1 A.C. 1128], and
    one which would require sufficient counterbalancing factors, including the
    existence of strong procedural safeguards. The question in each case is whether
    there are sufficient counterbalancing factors in place, including measures that
    permit a fair and proper assessment of the reliability of that evidence to take
    place. This would permit a conviction to be based on such evidence only if it
    is sufficiently reliable given its importance in the case.

[23]

The
    approach adopted by the Supreme Court of Canada is different. As Charron J.
    observed in
Khelawon
, at para. 47, the inquiry into admissibility of
    hearsay in the criminal context may take on a constitutional dimension. This is
    because the accuseds difficulty in testing the prosecution evidence may impact
    on the ability to make full answer and defence. In the same paragraph, she also
    noted the link between the right to make full answer and defence and the right
    to a fair trial. It would compromise trial fairness if the prosecution were
    allowed to introduce unreliable hearsay.

[24]

But,
    trial fairness concerns and the admissibility of hearsay are not reconciled by
    resort to a sole or decisive rule, which asks how important the evidence is to
    the outcome. Rather, under the Supreme Courts principled approach, the court
    examines all the relevant circumstances to determine whether the evidence is
    sufficiently reliable to overcome the dangers arising from the difficulty of
    testing it. Further, there is nothing in the Supreme Courts decisions that
    warrant carving out a special type of evidence, which Mr. Litkowski describes
    as testimonial. Rather, the fact that the statement may have been taken by the
    police in contemplation that it might be used in litigation is merely one
    circumstance the court must take into account. That fact does not give rise to
    a special category of evidence requiring searching scrutiny.

[25]

In
    some circumstances, the fact that the state might have availed itself of other
    methods of preserving the evidence may tell against necessity, as Charron J.
    explained in
Khelawon
, at para. 104. But the importance of the
    evidence or its testimonial quality does not place the evidence in a special
    category. That said, as pointed out at para. 49 of
Khelawon
, because
    trial fairness may involve factors beyond simply necessity and reliability, the
    trial judge retains a discretion to exclude hearsay evidence where its prejudicial
    effect outweighs its probative value.

[26]

I
    turn then to consideration of the admissibility of the hearsay evidence in this
    case. No question of necessity arises; the death of the complainant fulfills
    the necessity criterion. This case turns on whether the complainants statement
    to the police had sufficient threshold reliability to warrant its reception. As
    is well known, threshold reliability may be demonstrated because of the
    circumstances in which it came about or because in the circumstances its truth
    and accuracy can nonetheless be sufficiently tested:
Khelawon
, at
    paras. 49, 62-63. However, these two different grounds are not watertight
    compartments:
Khelawon
, at para. 49.

[27]

The
    complainants statement in this case had elements of both grounds. Like
    testimony in court, it was taken under oath and the trier of fact could observe
    the declarants demeanour throughout because of the complete video recording. The
    complainant was warned of the criminal consequences of not telling the truth,
    which was an additional safeguard that is not explicitly found in courtroom
    testimony.

[28]

The
    other circumstances under which the statement was taken supported its
    reliability. The principal concern in this case was not dishonesty but whether
    the complainant could accurately recall the events. The trial judge, whose
    findings in this respect are entitled to deference, found that there was no
    concern in that regard. The complainant was able to recall events and to
    provide specific and detailed information. There was nothing in the statement or
    the surrounding circumstances to show that the complainant was mistaken or that
    her mental capacity was in any way diminished or distorted. In this respect,
    the trial judge had the assistance of the evidence of a psychologist, Dr.
    Lightfoot, the designated capacity assessor, who fortuitously had assessed the
    complainant only months before the statement was taken by the police.

[29]

The
    complainants statement in this case can be usefully compared to the evidence
    considered in
Khelawon
. The declarant in that case did not give his
    statement under oath and there was reason to doubt whether the declarant
    understood the consequences of making his statement. There were serious reasons
    to doubt whether he was mentally competent when he made the statement and he
    may have been motivated by dissatisfaction about the nursing home where the
    assault allegedly occurred and under the influence of a disgruntled employee of
    the home.

[30]

In
Khelawon
, the court also held that a trial judge can consider all the
    circumstances, including the presence of corroborating or conflicting evidence.
    In this case, the trial judge was of the view that there was no corroborating
    evidence because there was nothing to confirm the complainants evidence on the
    sole fact put in issue by the appellant, which was that she had the
    complainants consent to take money out of the complainants savings account
    for her own use. In reaching that conclusion, the trial judge may have taken an
    overly cautious approach. In considering all the surrounding circumstances, a
    court need not be restricted to the kind of corroboration that characterized
    the accomplice rule before
Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.

[31]

There
    was abundant, incontrovertible independent evidence confirming virtually every
    part of the complainants story. Bank records and other records show that at
    the same time she was being paid by the complainant, the appellant was
    regularly taking money from the savings account for her own use. This is the
    kind of evidence referred to in
R. v. Khela
, 2009 SCC 4, [2009] 1
    S.C.R. 104, at para. 42, which, when looked at in the context of the case as a
    whole  should give comfort to the jury that the witness can be trusted in his
    or her assertion that the accused is the person who committed the offence.

[32]

In
    my view, the trial judge was correct in admitting the complainants videotaped
    statement. The criteria of necessity and reliability were satisfied. There were
    no grounds for finding that the prejudicial effect of the evidence outweighed
    its probative value. The prejudice occasioned to the appellant because of her
    inability to cross-examine the complainant did not outweigh the probative value
    of the evidence. This was not a borderline case for threshold reliability where
    the probative value of the evidence was minimal or suspect.

[33]

Further,
    the trial judge did not err, as trier of fact, in his assessment of the
    ultimate reliability of the statement. In the context of the evidence as a
    whole, the statements ultimate reliability was completely established, especially
    by the testimony of the family physician and of the appellant herself. The
    appellants story was riddled with contradictions. Taking just the most obvious
    problem, the appellant explained that the complainant allowed her access to her
    savings account because the appellant had fallen on hard times when she was
    fired from her job at Chippewa Place. However, independent evidence established
    that the appellant lost this employment in January 2007, almost a year after she
    obtained the debit card and began emptying the savings account.

[34]

Accordingly,
    I would dismiss the appeal from conviction.

D.

SENTENCE APPEAL

[35]

The
    appellant appeals her sentence of 21 months imprisonment and argues that the
    trial judge should have imposed a conditional sentence. There were undoubtedly
    some mitigating factors in this case. The appellant was 38 years old at the
    time of sentencing and had no prior criminal record. She had a supportive
    family. There was also evidence that at the time of the offence and during the
    trial, the appellant was coping with a physically abusive relationship with her
    ex-husband that left her unemployed and destitute.

[36]

On
    the other hand, this was a serious offence. The appellant voluntarily placed
    herself in a position of trust in relation to the complainant. She became her
    attorney and the executor of her estate. The frail, elderly complainant was
    completely reliant on the appellant. This was not a one-time act but a planned
    and deliberate fraud committed over many months by someone whom the complainant
    looked upon as a friend. The appellant stole and then spent over $126,000,
    almost the complainants entire life savings. In such a case, the paramount
    objectives of sentencing must be deterrence and denunciation, and they cannot
    be adequately met by a conditional sentence.

E.

DISPOSITION

[37]

Accordingly,
    I would dismiss the appeal from conviction. I would grant leave to appeal
    sentence but dismiss the appeal from sentence.

Released:
WKW November 22, 2012

M.
    Rosenberg J.A.

I
    agree W.K. Winkler C.J.O.

I
    agree Alexandra Hoy J.A.