In ordering a new hearing for Clare Spiers, Ontario's top court said Wednesday an examination of how potential jurors were vetted creates a "troubling picture" of damaging collusion between Crown and police that amounted to a miscarriage of justice.
"This picture is one of unfairness in the jury-selection process," the Ontario Court of Appeal said.
"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."
After a four-month trial in 2007, a jury in Barrie, Ont., convicted Spiers of first-degree murder and two counts of kidnapping in the 2004 death of a woman, who was snatched outside a home along with her infant granddaughter. The baby was found unharmed, but she was found dead in a wooded area.
Spiers later became aware of possible problems in the jury-selection process. He discovered background checks were done on potential jurors in direct violation of government policy.
Court documents show the regional Crown attorney asked police to run checks on prospective jurors, saying it would be helpful to have information about a "disreputable person we would not want as a juror."
Essentially, the prosecution wanted those with a "negative attitude to law enforcement" flagged for exclusion as jurors.
Officers not only checked for criminal backgrounds, but also searched driving records and other databases for any police contact with potential jurors.
Police provided several binders with the jury lists to the Crown that included comments such as "Flag, hates police."
None of the information was provided to the defence before the trial.
The Appeal Court found several problems with what had occurred.
"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," Justice Paul Rouleau wrote for the court.
"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."
The Crown had argued it followed accepted practices for jury preparation, but the court rejected that notion unequivocally.
The prosecution obtained the names of potential jurors and asked police to investigate them weeks in advance of when it was entitled to do so, the court said.
The background checks also went well beyond looking to see if a potential juror had convictions for indictable offences — something that could make a person ineligible to sit on a jury — and worsened the appearance and consequences of the collusion between Crown and police, the court said.
The Appeal Court also found the Crown's misuse of police databases violated provincial privacy legislation.
Spiers, an aboriginal with a long history of violence, had also argued that no on-reserve residents were among the 286 people offered up for his jury.
The court did not deal with that part of his appeal because it is being handled under a different case that was heard at the same time in the spring.
Peter Thorning, who represents Spiers, said he was "pleasantly pleased" the court had seen through the prosecution's attempt to stack the jury in its favour.
Spiers will most likely remain in custody pending a new trial, which is likely many months away.