



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Williams, 2014 ONCA 431

DATE: 20140528

DOCKET: C50854

Feldman, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Williams

Appellant

Talman W. Rodocker, for the appellant

John McInnes, for the respondent

Heard: November 14, 2013

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

Tulloch J.A.:

A.

OVERVIEW

[1]

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

[2]

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

[3]

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

[4]

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

[5]

Before analysing the merits of the appellants arguments on appeal, I
    review the relevant facts and the trial judges ruling on the
voir dire
.

B.

FACTS

[6]

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

(1)

Background

[7]

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

[8]

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

[9]

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

[10]

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

(2)

The Videotaped Confession

[11]

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

[12]

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

[13]

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

[14]

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

[15]

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

[16]

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

[17]

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

[18]

At
    trial, the appellant disavowed his confession and maintained that, at the time
    of Dillons killing, he was heavily under the influence of drugs and alcohol.

(3)

The Jury Selection Process

[19]

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

[20]

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

[21]

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

[22]

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

C.

THE TRIAL JUDGES RULING

[23]

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

·

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

·

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

·

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

(1)

Voluntariness

[24]

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

[25]

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

[26]

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

[27]

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

(2)

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

[28]

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

[29]

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

[30]

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

D.

ISSUES ON APPEAL

[31]

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

(1)

The Admissibility of the Videotaped Confession

(a)

Arguments on Appeal

[32]

The
    appellant finds fault in the trial judges ruling on the
voir dire
in
    two respects.

[33]

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

[34]

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

[35]

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

(b)

Analysis

[36]

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

(i)

Section 10(b)

[37]

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

[38]

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

[39]

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

[40]

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

[41]

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

(ii)

Voluntariness

[42]

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

[43]

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

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

[44]

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

[45]

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

[46]

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

[47]

Accordingly,
    I would give effect to neither of the appellants arguments with regard to the
    admissibility of the videotaped confession.

(2)

The Jury Selection Process

(a)

Arguments on Appeal

[48]

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

[49]

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

(b)

Analysis

[50]

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

[51]

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

I am of the view that persons who seek a new trial on the basis
    that non-disclosure of information about potential jurors deprived them of
    their
s. 7

Charter
right
    to a fair trial must, at a minimum, establish that: (1) the Crown failed to
    disclose information relevant to the selection process that it was obliged to
    disclose; and
(2) had the requisite disclosure been made, there is a
    reasonable possibility that the jury would have been differently constituted
[emphasis
    added].

[52]

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

[53]

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

para. 75. The appellants counsel here has made no such
    submissions.

[54]

This
    case bears no resemblance to
Spiers
. The possibility that the jury
    would have been differently constituted in the appellants trial is not
    reasonable, or even remote  it is simply nonexistent.

[55]

Therefore,
    I would also dismiss this ground of appeal.

E.

CONCLUSION

[56]

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

[57]

For
    these reasons, I would dismiss the appeal.

Released:

MAY 28 2014                                   M. Tulloch
    J.A.

KF                                                   I
    agree K. Feldman J.A.

I
    agree E.E. Gillese J.A.





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



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



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



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


