News Local

Jury vetting at root of appeal court decision

Tracy McLaughlin, Special to the Examiner

Barrie Ontario's Mimi Khonsari was kidnapped and murdered in May 2004.

Barrie Ontario's Mimi Khonsari was kidnapped and murdered in May 2004.

Ontario’s high court tossed a first-degree murder verdict Wednesday and ordered a new trial for a man convicted in the brutal murder of a Barrie woman eight years ago.

The court ruled that the jury that found Clare Spiers, 48, guilty of strangling and repeatedly stabbing his victim was unconstitutional because the jury was secretly vetted by the Crown.

Spiers, of no fixed address, has been in prison since he was convicted in 2008 following a four-month trial that delved into the murder of Mimi Khonsari, 60, a wife of a prominent Barrie surgeon, Dr. Homa Khonsari, who died of cancer last year.

Khonsari and her infant granddaughter were abducted from her upscale home. The woman’s body was found in a wooded area in Oro-Medonte Township, north of Barrie, with multiple stab wounds to her neck on May 21, 2004.

The baby was found crying and alone but unharmed in Khonsari’s abandoned vehicle in a Barrie parking lot.

At the time, Superior Court Justice Robert MacKinnon called the crime “a murder most vile” and sentenced Spiers to life in prison.

However, now that the verdict has been tossed, Spiers is again presumed innocent until proven guilty at a new trial.

The Court of Appeal stated the Crown and police carried out “extensive and improper pre-screening of prospective jurors” — also referred to as jury vetting — to weed out unsavoury jurors.

The court slammed the Crown attorney for sending copies of jury lists to seven police detachments with a covering memo that stated: “Please check the attached jury panel lists, for the persons listed in your locality, and advise if any have criminal records. … It would be helpful if comments and details could be made concerning any disreputable person we would not want as a juror.”

The jury lists were sent back to the Crown with notes from various police databases that included not only criminal offences, but written comments beside several of the names such as “flag” or “hates police,” as well as traffic violations — a process the high court said was a violation of privacy.

None of the information was supplied to the defence.

The high court said the jury vetting went beyond the historically valid purpose of determining whether individuals had convictions for indictable offences, rendering them potentially ineligible to sit as jurors

“This use of police resources and the attempt to align the Crown with the police is inconsistent with Crown counsel’s obligation to ensure that the accused receives a fair trial,” the court said in its ruling.

“Where the jury selection process is unfair, the whole trial process will be tainted with the appearance of obvious and overwhelming unfairness.”

However, the high court conceded that the Crown had no malicious intent.

The issue of jury vetting reared its head in Barrie a few years ago, prompting Privacy Commissioner Dr. Ann Cavoukian to launch an investigation.

Her 230-page report released in 2010 revealed since 2006, 143 trials in Ontario had been vetted. While Cavoukian said the practice was improper, she was adamant that the Crown had no bad intent in vetting juries, but rather, she said, it was a case of lack of direction.

Under Canadian law, the Crown and the defence lawyers are only allowed to know the name, age and occupation of a juror, unless they have a criminal record for an indictable offence, which would automatically exclude them as a juror.

Upon learning that Spiers is no longer considered guilty, one neighbour who lives in the same area as the Khonsaris says she is “devastated.”

The woman, who asked that her name not be published, said Spiers had called on her home as a door-to-door salesman on the same day Khonsari was kidnapped, but she sent him away.

“All I can say is that I have faith that the Crown will hold a new trial and that the right thing will be done,” she said.

The murdered woman’s son, Ali Khonsari, who runs a dental laboratory in Barrie, said he had just heard the news Wednesday afternoon of the appellate court's ruling.

He said that he and his family were still trying to digest the information, and asked for privacy.

Spiers, who has a lengthy record that includes rape, sodomy and violent assaults that date back to 1981 in places including Toronto, Barrie, Orillia, Huntsville and in New York, is expected to appear in bail court in Barrie later this week.

— with files from Cheryl Browne

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