OTTAWA - The number of Ontario trials where prosecutors used police information to vet prospective jurors is substantially higher than the government has disclosed to date, Law Times has learned.
Attorney General Chris Bentley’s department has informed nine defence lawyers in Simcoe County that Crown attorneys used the practice in past trials during which they represented defendants, a survey by the Criminal Lawyers’ Association found.
Those cases are likely in addition to two trials in Barrie, covered by the Simcoe County Crown jurisdiction, that were disrupted upon disclosure prosecutors had secretly obtained police information to screen jurors in murder cases.
One was declared a mistrial; the jury in the other case was dismissed.
The nine new disclosures of improper jury vetting are also likely over and above a third murder trial in Kingston that was also suspended earlier this summer as a mistrial.
Costs have been awarded to the defence in that case, but the amount, reportedly $95,000 and a record in Canada for costs awarded because of a mistrial, may be subject to a publication ban that was imposed on a defence application to have the charges dismissed because of undisclosed jury vetting and other issues.
Defence lawyers in that case also learned Crown attorneys had improperly obtained information on juror backgrounds from police sources, without informing defence counsel or the court.
The wider extent of the practice in Simcoe County was disclosed during a review by Bentley’s department of Crown procedures in the Barrie area as well as Essex County, which includes Windsor Crown offices.
Adam Boni, a Toronto director of the CLA, tells Law Times the defence lawyers in the nine cases told the association the attorney general’s office informed them the same practice had occurred in past trials with which they were involved.
Boni disclosed the information in an interview about a brief the association submitted last week to Privacy Commissioner Ann Cavoukian, who is conducting her own inquiry into the controversy.
A spokesman for Bentley did not comment directly on the information Boni’s association obtained from the nine lawyers.
Spokesman Brendan Crawley said only that the ministry is in the “early stages” of its review and “we will provide an update once defence counsel and their clients have been located and notified and the cases have been fully reviewed.”
The association brief calls for a formal protocol to “thoroughly” collect all information about past jury vetting in Ontario and says the results should be public, Boni tells Law Times.
The brief also criticizes the attorney general’s office for attempting to play down the extent of jury vetting when it initially responded to the controversy last May.
The ministry suggested the practice was limited to the cases in Simcoe County. It was subsequently learned jury vetting also took place in Kingston, Toronto, and Thunder Bay.
“Our position is that as a result, the government allowed a cloud of suspicion to descend upon the issue,” Boni says, adding the government’s approach has had a “corrosive impact” on public trust in the administration of justice.
The seriousness of improper jury vetting has also been emphasized by the newly-established David Asper Centre for Constitutional Rights at the University of Toronto faculty of law.
The centre also presented a brief to Cavoukian.
It harshly criticized the practice, calling for a “public inquiry or independent investigation that fully explores the incidence of the violations” of Charter rights to privacy of the prospective jurors.
The brief, citing several Supreme Court of Canada rulings, said the Crown attorneys appear to have asked police for background checks on all jurors, rather than probing those they had reason to believe may have provided false answers to juror questionnaires.
“Instead of investigating only those who were suspected of submitting false questionnaires, the Crown chose to search all potential jurors,” the centre’s brief says.
“Thus, the jurors’ reasonable expectation of privacy in their police files and the unreasonable manner in which the searches were conducted lead to the conclusion that their s. 8 rights were violated.”
“The impact of the alleged conduct on the integrity of past trials is clearly beyond the mandate of the Privacy Commissioner,” the brief continues.
It says there is a “critical need” for an independent investigation or public inquiry that has a mandate broad enough to investigate all potential Charter violations in the jury vetting and to “restore confidence in our criminal justice system.”
The centre only briefly focused on the effect of the practice on rights of the accused, but noted while the Crown does not need to produce material that is clearly irrelevant, “it must disclose if relevance is questionable. Any transgressions of this duty are considered ‘a very serious breach of legal ethics.’”
The brief was prepared by professor Lisa Austin, research assistant Kerri Lui, and Cheryl Milne, the centre’s executive director. Milne said University of Toronto law students also contributed to research for the
paper.
Federal prosecutors have strict limits on the kind of information they are able to seek for jury selection, says Dan Brien, communications director with the Public Prosecution Service of Canada.
Brien says they may only ask police to conduct criminal record checks to determine whether or not the juror has a conviction that disqualifies jury service under Criminal Code s. 638(1)(c) - a conviction for which the juror was sentenced to 12 months or more for which a pardon has not been received.
Prosecutors in the territories may also ask victims and witnesses to review the jury list and provide information about family or other personal relations between the juror and victims, witnesses, or the accused that could affect the juror’s ability to be impartial, Brien tells Law Times.
