Vetting juries: Is it the right thing to do?

The Canadian jury selection process is quite different from the one that is common in the United States. In Canada, it begins when jurors are summoned to court in accordance with provincial law. Although the entire array may be challenged on the ground of partiality, fraud or willful misconduct on the part of the office summoning the panel, this was rarely done until recently.

In Canada, empanelling a jury will usually take less than an hour however, in some cases, many hours. It is unlike the US practice where counsel may do more planning and consultation. Jury selection for a criminal trial requires that 12 jurors be chosen to serve. The first 12 jurors, not excused or challenged, consist of members of the jury.

Before that happens, names and addresses of prospective jurors submitted to the court by the sheriff are placed on cards to be randomly drawn from a box by the clerk of the court. Before or during this process, jurors may be excused if they have a personal interest in the matter or a relationship with a party, witness, counsel or judge, or service on a jury would pose a hardship. To be excused, they have to make their plea before the trial judge.

If challenged, they may have to answer questions either from the prosecutor or the defence lawyer. In Canada, prospective jurors are not normally interviewed ahead of time as part of the jury selection process. They simply wait until their names are called. The prospective juror will then either be excused, challenged or perhaps asked to stand aside to be considered later for duty if necessary.

A panel of three Ontario Court of Appeal judges was urged on February 1, 2010 to order a new trial in a double murder case because of secret vetting of potential jurors by the Crown and police before their names were called in court. According to a Mr. Lafontaine who was the defence lawyer for Ibrahim Yumnu, who was convicted along with two other people of first-degree murder in 2005 by a jury in Barrie, Ontario in the slaying of two people suspected of taking money from a marijuana grow operation, he argued that vetting the jury was wrong because the information the prosecutor and police obtained, wasn’t shared with the defence. I agree. It was wrong.

Local police services in the Barrie area had searched confidential databases to uncover information about hundreds of potential jurors, which was passed on to the Crown in the Yumnu prosecution and dozens of other cases. The information in all of those cases was kept from the defence, although some details later came out nearly three months into the trial of Yumnu. His appeal is the first of a dozen appeals that the court is scheduled to hear where jury vetting took place, which could lead to orders for re-trials in some of them if not all of them.

Crown attorney, Michal Fairburn, representing the Crown, argued before the three-judge panel in the Court of Appeal that police and prosecutors are required to probe potential jurors to confirm their eligibility to serve. For example, if a potential juror has been convicted of an indictable offence in Canada, (a felony in the US) he or she cannot serve on a jury. She further argued that the Crown was not up to silliness. She said, “There is not a scintilla of evidence of wrongdoing, in fact quite the opposite." In my opinion, that statement is pure nonsense. If the Crown had passed on the information to the defence at least a week prior to the choosing of the jury, then the vetting would have been proper but by keeping it from the defence, it was wrong.

The practice, first disclosed by the National Post last spring, led to an inquiry by the Ontario Privacy Commissioner. Her report issued last October revealed that one in three Crown offices in the province had engaged in improper jury vetting since 2006. In Barrie, where it occurred in every case, there were jury checks in more than 50 trials in the past three years in that city.

The Ontario government ordered a halt to the practice and recently amended the Juries Act so that any potential checks for eligibility would be conducted at an independent centre in the province. The information will not be shared with the Crown or police.

I can appreciate the need to vet jurors. Since anyone with a criminal conviction for an indictable offence is not allowed to serve as a juror in Ontario, the only sure way to determine if a potential juror has such a conviction is through CIPIC which is operated by the RCMP and of which the local police have access to it. Of the nearly 800 potential jurors subjected to the background checks in the Yumnu case, not a single person was found to have an indictable record that would make them ineligible. Obviously, the vetting by the police automatically removed those with indictable convictions from the jury list. That is OK in my opinion.

Mr. Lafontaine said to the panel, "Don't open the door to large scale inquiries of potential jurors. Shut it down."

I disagree. Suppose that the police didn’t check for criminal convictions. It would then be conceivable that someone who was convicted of fraud involving a million dollars would end up sitting on a jury that would be hearing a similar case. That would not be right. Further, we wouldn’t want someone who has a conviction for sexual assault sitting on a jury hearing a child molestation case.

I think that an investigation into potential jurors should go even further. For example, suppose you and your family unfortunately live two doors from a Hells Angels club house. Would you want to serve on the jury that is hearing a murder case of one of that club’s members? Suppose you are on trial for assault. How would you feel if it was later discovered after your conviction that one of the jurors that convicted you was a distant relative to the person you allegedly assaulted and no one knew this when he was chosen to sit on your jury?

Here is how I propose to solve this problem. A government department of the Attorney General’s office should be formed (as previously stated by the government) to vet juries. It could be called, ‘Jury Vetting Department’ for want of a better name. They would have access to CIPIC. They would go over the potential list of jurors and weed out those with convictions of indictable offences. Keep in mind that if such persons are later pardoned, their convictions will not show up on CIPIC. They will interview each potential witness to determine if they are related with or friends of or acquaintances of the person who is going to be on trial or if there is a substantial risk that the juror may suffer from if he or she sits on the jury. Further, they can determine if the potential juror is going to be moving out of the area shortly. That would be extremely important since it would be unfair to have someone show up for jury duty if by the time of their appearance, they are living hundreds of miles away. If the accused is facing a charge of fraud, murder or assault etc, the potential witness can be asked if he or she or a family member or friend has ever been a victim of such crimes. The aforementioned should be the extent of their investigations. The aforementioned persons should then be removed from the potential jury list. Neither the Crown nor the defence should be given the list until a week before the jury selection takes place. This will give the accused an opportunity to see if there is someone on the list that has a grudge against him or her or would have a conflict of interest in their relationships. For example, if you own a business, you wouldn’t want a competitor to be sitting on your jury.

When the jury selection takes place, it will be up to the assistant crown attorney and the defence lawyer to choose from the vetted list as to who they want or don’t want to serve on the jury by asking pertinent questions such as; “Can you honestly arrive at a verdict even though the accused is charged with molesting a five-year-old girl?” And in cases involving fraud, both sides can ask what the educational level of the potential juror is. If you were charged with a complicated fraud, you wouldn’t want someone who never got past grade five to be hearing your case.

I believe vetting juries this way will result if fairness to both the Crown and the defence.