Disclosing the Truth of Jury Selection in R v Davey
Trial by jury is a fundamental aspect of the criminal justice system and a protected right under section 11(f) of the Canadian Charter of Rights and Freedoms for crimes carrying a maximum punishment of five years or more. In a jury trial, the jury acts as the finder of fact and is required to weigh the evidence to determine whether the Crown has met its persuasive burden of proving each element of the offence. That is, whether it has met the threshold of proof beyond reasonable doubt. While the judge decides on the admissibility of evidence and provides instructions to the jury, the ultimate burden of finding the accused guilty or not guilty is left up to the minds of twelve ordinary individuals.
In tracing the history of the jury from early society to the 19th century, John Proffat notes that, “the leading characteristic of the jury was that it was of the people and for the people; that it was essentially a popular institutions through which people were habituated to share in the administration of the law and in the maintenance of property and personal rights.” The faith that Western society has placed in the hands of twelve jurymen and women to deliver a rational, unanimous verdict has been solidified in popular culture— perhaps most famously in the classic film, Twelve Angry Men. While this film shed light on the racial biases of jurors that were prevalent at the time, it also helped to clarify that the role of the jury is to determine whether the prosecution has proven the accused to be guilty, not to find that the defence has proven the accused innocent.
The Supreme Court of Canada was recently called upon to re-examine the importance of juries in a series of cases that examined the phenomenon of jury vetting. R v Davey 2012 SCC 75 is one of a companion of cases that arose after it was discovered that several Crown offices in Ontario had investigated the backgrounds of prospective jurors before the jury selection process. In Davey, the court examined the narrow issue of whether the Crown was entitled to consult with local police officers with regards to the “suitability of prospective jurors…and if so, whether those opinions should have been disclosed.”
Facts and the Court of Appeal Decision
Davey was convicted of first-degree murder for slashing the throat of a police officer in Cobourg, Ontario. On appeal, the only issue was whether the accused had the requisite intent for murder, or whether he should have been convicted of manslaughter. In appealing the decision, counsel for the accused requested the jury panel lists, which revealed that the police had made notations stating “good,” “ok” or “no” next to the names of several prospective jurors. Of the 400 prospective jurors, 118 names received a notation. 51 said good or yes, and of those, 11 disclosed a relationship with the police during the pre-screening process. After the Crown and defence had completed their pre-emptory challenges, three of the jurors with positive notations ended up on the final jury that tried the accused’s case.
On appeal, the main issue was whether the Crown was obliged, pursuant to it obligations under R v Stinchombe,  3 S.C.R. 326, to disclose the jury panel lists to the defence. Writing for the Court of Appeal, Rosenberg J.A. dismissed the appeal after finding that the notations amounted to police “opinions” rather than “concrete information,” and therefore did not fall within the Crown’s disclosure obligations.
The SCC’s Decision
Writing for a unanimous court, Justice Karakatsanis concluded that the Crown should not be allowed to engaged in the “systematic distribution of jury panel lists to police services for comment regarding the suitability of jurors” because doing so would provide the Crown with an unfair advantage. However, she agreed with the Court of Appeal that the Crown is entitled to consult with a member of the prosecution team, including police officers, about the suitability of potential jurors. To lend support to this conclusion, she reasoned that the Crown’s use of “collective experience and judgment of the prosecution team in exercising discretionary decisions…is consistent with the duty to uphold an impartial and competent jury. It is consistent with the right to exercise discretionary challenges. It is consistent with the rules of professional conduct. And it is consistent with consultation conducted by the defence.” As long as relevant information is disclosed to the defence, “such limited consultation does not represent the inappropriate use of police resources or information, and there is no imbalance that would give rise to a miscarriage of justice.”
R v McNeil, 2009 SCC 3, clarified that the Crown’s disclosure obligations extend to relevant information obtained by the police during investigation. However, in Davey, the Court of Appeal concluded that this obligation should not include a police officer’s personal opinions because they “are clearly not evidence to be adduced against the accused.” Justice Karakatsanis agreed with this assessment, noting that it is consistent with the decision in R v Yumnu, 2012 SCC 73, that “general impressions, personal or public knowledge in the community, rumours or hunches, need not be disclosed.”
Justice Karakatsanis also concluded that the Crown should not be obliged to disclose “information that is easily obtainable elsewhere.” However, as soon as the Crown obtains information that has the potential to impact the jury selection process, the obligation to disclose is triggered. Furthermore, all information that is “based on knowledge gathered in the course of law enforcement activities,” including police recommendations for prospective jurors, must be disclosed to the accused.
A miscarriage of justice?
To determine whether there had been a miscarriage of justice, Justice Karakatsanis relied on the test set out in R v Dixon,  1 S.C.R. 244, for trial fairness, which considers whether a failure to disclose violated the accused’s right to make a full answer and defence. Because this test was developed to assess whether a miscarriage of justice has occurred on the merits of the case, she modified it slightly to suit the circumstances of this case. First she considered whether the information ought to have been disclosed, and second “whether there is a reasonable possibility that the jury would have been differently constituted” if the information had been disclosed.
While the Court of Appeal concluded that the notations were merely “personal opinions” that did not warrant disclosure, Justice Karakatsanis found that “the opinions clearly reflected information obtained as police officers, and as residents in the community”. As a result, she found that the Crown was under an obligation to disclose the annotated jury panel lists. However, in regards to trial fairness, she deferred to the appellate court’s finding that it was “speculative that the accused might possibly have exercised his pre-emptory challenges in a different way.” The fact that only 11 of the 51 prospective jurors who received positive notations were found to have a previous association with the police and that the defence chose not to use all of its pre-emptory challenges further supported the position that any appearance of unfairness in this case did not rise to the threshold of requiring a new trial.
Reinforcing the importance of disclosure and trial by jury
Although Justice Karakatsanis deferred to the Court of Appeal’s ultimate decision, her reasons are more consistent with the spirit of the Crown’s disclosure obligations. Stinchomb stands for the proposition that the Crown has an obligation to disclose all information that is not clearly irrelevant and not protected by privilege. More recently, the SCC clarified in McNeil that, for the purposes of a criminal trial, the investigating police force is considered to be an extension of the prosecution and is thereby bound by the same disclosure obligations. Furthermore, the Crown has a duty to make reasonable inquiries into the investigating police force. Thus, the Crown’s obligation is not excused when the police fail to disclose relevant information.
By categorizing the notations as police “opinions” rather than “information,” Rosenberg J.A. finds a useful way to skirt around the issue of disclosure. On the other hand, Justice Karakatsanis is prepared to confront the issue head-on and call the notations what they really are—information gathered by the Crown as part of its case. Her more honest approach ensures that the underlying premise of disclosure—to ensure fairness to the accused through the opportunity to make a full answer and defence—remains protected. In order to maintain a fair criminal justice system, the process of disclosure should ensure that the accused not only has access to relevant information, but also the process by which that information was gathered and deployed by the Crown.
Aside from clarifying the disclosure issues, this case is also significant for the role it plays in clarifying the symbolic importance of juries to our criminal justice system. In considering whether Crown scrutiny of prospective jurors could extend beyond criminal record checks, Justice Karakatsanis emphasized the importance of a selection process that ensures “an independent, impartial, and competent jury” that must “promote public confidence in the jury’s verdict, and in the administration of criminal justice.” These comments point to the inherent tension that exists within the jury selection process. On the one hand, our justice system depends on a jury selection process that is independent from Government and, as Proffat writes, “dependent for its worth and character on the free state of the people among whom it is established.” A selection process over which the State has an unfair amount of control would erode public confidence in the right to a fair trial and the administration of justice
On the other hand, there is also the concern that the persons who comprise a jury must be morally, or even intellectually, qualified to decide the case before them. The prosecution has the delicate task of balancing fairness to the accused with the protection of the public interest.It is arguably in the public interest to ensure that those who are selected to sit on a jury are competent to carry out the task, without any pre-conceived notions or biases. In this case, it is likely that the Crown’s actions were influenced by its duty to protect the public rather than a desire to gain a tactical advantage.
While there remain many who doubt that everyday citizens should decide the fate of an accused, Davey reinforces the idea that juries play a fundamental role in ensuring an accused receives a fair trial. It can be difficult at times to comprehend how society places so much faith in twelve, legally untrained minds to decide the fate of another, but perhaps there is something about the very process that triggers a profound sense of moral responsibility. As one of the jurors in Twelve Angry Men reminds his fellow jurors at one point in their deliberations:
We have a responsibility. This I have always thought is a remarkable thing about democracy…we are notified by mail to come down to this place to decide on the guilt or innocence of a man we have never heard of before. We have nothing to gain or lose by our verdict. This is one of the reasons why we are strong. We should not make it a personal thing.
We should also not make the process of selecting a jury an unfair one. Requiring the Crown to disclose any consultations with police regarding potential jurors will help to ensure that that does not happen.