Tuesday 1 June 2010

Vetting juries: Is it wrong?

Vetting is a process of examination and evaluation, generally referring to performing a background check on someone before offering him or her employment, conferring an award, or picking a jury. But is vetting a jury wrong?

There are certain people who cannot serve on a jury in Canada. They are; people who are not citizens of Canada, people under 19 years of age, people who don’t live in the province where the trial is being held, a police officer, lawyer, trustee in bankruptcy, employee of the Ministry of Attorney General (or certain other occupations) and anyone who has been convicted of certain criminal offences within the last twelve months and hasn’t been pardoned for their offences.

Further, if you are over the age of 65, you can choose whether or not to serve as a juror. If you choose not to serve, you have to include your date of birth and Medical Services Plan Gold Card number on the Jury Certification Form. (the latter shows a picture of you) If you choose to serve as a juror, you can complete and return the Jury Certification Form and attend the selection process on the date indicated.

You may be exempted for health reasons but you must submit a note from your doctor with the Jury Certification Form. Your doctor has to write the relevant information on a prescription pad page and sign it. If you are a full-time student, you may be exempted but you must submit a photocopy of your course registration form and receipt for tuition fees along with your Jury Certification Form. Further, if serving as a juror would cause you extreme hardship you will be excused. This could apply if, for example, you are a nursing mother, or self-employed and your business would be threatened by your absence. If your limited ability to speak or understand English or French would impede your duty as a juror, you would be excused from serving on a jury. If you have firm travel plans or other vacation plans that will conflict with the jury selection or trial date, that is also excusable and if you still feel you have valid reasons for exemption, you will have a chance to discuss them with the judge before you are sworn in or asked to make a solemn affirmation.

As anyone can see, it is important that the trial judge is fully aware of the suitability of anyone sitting on a jury. For example, it would be highly improper if a convicted sex offender who molested children was to sit on a jury where the defendant is facing a trial of child molestation.

This raises the question of the police vetting potential jurors. Should they do it? Quite frankly, I think it would be an error on the part of the sheriff not to ask the police do it. For example, a potential juror may have robbed a bank in his past and has not been pardoned. Would it be appropriate to have him sit on a jury where the defendant was accused of robbing a bank? I hardly think so.

Once all the potential jurors have been vetted, the information should be given directly to the sheriff who then weeds out those who are ineligible and then sends notices of jury duty to the remainder who are otherwise qualified.

It is up to those who receive their notices to apply to be excused if that is their wish and they are deemed qualified to be excused. Those who don’t qualify to be excused for jury duty and those who didn’t apply to be excused are then notified of the day, time and place where they are to be in which twelve of them will eventually be chosen with two alternates who will serve in case of illness or disqualification of a juror or two jurors during the trial.

The question that comes to the fore is; should everything that the police discover in their investigations be forwarded onto the prosecutors also? My answer to that question is; definitely not. Here is an example as to what can go wrong when a prosecutors gets information given to him by the police.

The jury deciding the fate of Troy Davey deliberated for fewer than 12 hours before finding him guilty of first-degree murder in the 2004 killing of an Ontario police officer. Evidence came out at the trial that Davey, then 18, lay in wait for Constable Chris Garrett after placing a fake 911 call and slashed his throat. The jury convicted him and he was sentenced to life in prison without the opportunity to apply for parole until he has served 25 years in prison.

More than three years after the jury in Cobourg returned with its verdict, the conviction could be overturned as a result of ‘illegal’ probes of potential jurors by police. His appeal, set to be heard by the Ontario Court of Appeal next month, challenges the Crown's system of enlisting police agencies to vet juries, a practice already banned by the province of Ontario. Jury vetting is at the heart of documents filed in the appeal court this week by lawyers representing Davey.

It has been alleged that the Crown (prosecutor) illegally obtained information about prospective jurors, did not disclose that information to the defence and then used that information in selecting the jury.

Three weeks before jury selection was scheduled to begin, the list of the 400 people in the jury pool was handed over by the Crown to the Cobourg and Port Hope police and a local Ontario Provincial Police detachment. The Crown asked police for their ‘opinions’ on the ‘suitability’ of the potential jurors. It is alleged by the lawyers representing Davey that the ‘suitability’ of the potential jurors was whether or not someone was considered to be ‘partial’ to the Crown. The jury lists were returned to the crown with notations such as ‘good’ or ‘ok’ or ‘no’ next to the names of prospective jurors and that information was not disclosed to the defence.

At least five potential jurors, with ‘good’ next to their names, had ties to the police. That practice violated the Juries Act, seven sections of provincial privacy legislation and infringed on the right of Davey to a fair trial.

The police in Cobourg were routinely asked to use their ‘personal knowledge’ to help the Crown. They have denied using confidential police databases to find information. Yeah, sure and the Pope is a Protestant.

As I see it, the conduct of the crown attorney handing the case and the role of the police in making those comments next to the names of the potential jurors was outrageous. If the allegations are true, (and I believe that they are) they were trying to get a stacked jury. It strikes at the very core of our justice system; the right to an impartial jury.

When a high-profile case such as that one was, it behooves the crown attorney to ensure that everything is above board. Unfortunately, Canada has its share of dishonest crown attorneys which bring upon themselves and our system of justice, nothing but shame.

The Davey case marks the first time that the Crown’s office has admitted that it vetted potential jurors to help in obtaining a pro-prosecution jury. Even though I believe that Davies is guilty of first-degree murder, to deny him a second trial would be an injustice to him. If he has to continue to serve a life sentence in prison, he should at least be convicted by a jury in which every member is qualified to serve on the jury. Being related to or having a friend who is a police officer would automatically disqualify anyone from sitting on his jury.

What makes the Crown’s role in this farce so insidious is the fact that the prosecutor didn’t pass the information he got from the police to Davey’s lawyers. If he had, Davies’ lawyers would have asked the court to remove everyone of the potential jurors where the words ‘good’ and ‘OK’ were written by their names.
The Crown insisted that the probes were to ensure that the citizens were eligible as jurors. If you believe that hogwash, then I have a bridge I want to sell you. It is in Brooklyn, New York.

The province has since put a halt to the practice and amended the Juries Act to strengthen privacy protections, following an investigation by the Ontario Privacy Commissioner.

In a landmark case about jury selection in 1991, the Supreme Court of Canada outlined the core principles. "The modern jury was not meant to be a tool in the hands of either the Crown or the accused," said the court. "It was envisioned as a representative cross-section of society, honestly and fairly chosen."

The Davey appeal is scheduled to be heard late next month. The Crown is expected to file its written arguments within the next week. About a dozen cases before the Ontario Court of Appeal involve improper jury checks by police. I can’t imagine what arguments the Crown could submit that are valid.

The number of Ontario trials where prosecutors used police information to vet prospective jurors is substantially higher than the government has disclosed to date. Attorney General Chris Bentley’s department has informed nine defence lawyers in Simcoe County alone 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 put to an end and new trials set upon disclosure that the prosecutors in that city had secretly obtained police information to screen jurors in those 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 brought about 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 attorney general’s office originally attempted to play down the extent of jury vetting when it initially responded to the controversy in 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.

There should be a public inquiry or independent investigation that fully explores the incidence of the violations of Charter rights to privacy of the prospective jurors and Charter rights as it applies to defendants getting a fair trial brought about by vetting jurors by the Crown.

It has been said that the jurors’ reasonable expectation of privacy in their police files and the unreasonable manner in which the searches were conducted leads to the conclusion that their section 8 Charter rights were violated. I am not quite convinced of that. As I said earlier, I think the police should vet the jurors at the request of the sheriff to make sure that that they aren’t automatically disqualified as per the Juries Act.

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 them from jury service under Criminal Code section 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.

As to those prosecutors who acted so outrageously in the cases I have written about; they should all be fired and have their licences to practice law revoked. Canada and its citizens are entitled to better than that kind of ilk prosecuting people in our courts. Defendants are entitled by law to fair trials. Dishonest prosecutors who participate in prosecutorial misconduct, have no place in our courts in any capacity other than as defendants, plaintiffs, witnesses, or spectators.

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