Canadian Lawyer

OP I N ION BY JIM MIDDLEMISS BACK PAGE Jury vetting takes centre stage at SCC Those wise words are particularly appli- cable today, where government and police forces collect reams of data on citizens. A fundamental tenet of the justice sys- "A tem is that a jury must be impartial favour- ing neither the prosecution nor defence. To safeguard the doctrine, there are elabo- rate processes in place to ensure that nei- ther the Crown nor the defence gets the upper hand in the selection process and the Canadian jury system remains neutral. For example, most provincial juries acts prevent those convicted of indictable offences from serving. The Criminal Code permits challenges for cause over things like a conviction resulting in a prison sen- tence of 12 months of more or because a juror is biased to one side or the other. Yet, recent disclosures in Ontario sug- gest the Crown doesn't always play fair in putting together juries. In fact, it looks like some provinces are actually distorting the system and trying to put foxes on juries at the goose's trial, or at least hunters, who would be more inclined to shoot the goose. In some parts of Ontario, the Crown has been accused of using its cosy rela- tionship with police to tip the scale and vet potential jurors in a manner that gives the Crown an advantage in the selection process. Take the case of Ibrahim Yumnu, Vinicio Cardoso, and Tung Chi Duong. It reads like a script from The Sopranos and engenders little sympathy for the defen- dants. It involves drug dealers, hit men, and fox should not be on the jury at a goose's trial," wrote English historian Thomas Fuller. prostitutes and resulted in murder convic- tions for the accused, who are appealing. Prior to their trial, an administrative assistant in the Crown's office in Barrie, Ont., sent the jury list to local police. The form letter from the Crown asked police to check the jury panel list and advise if any potential jurors had criminal records. It stated: "It would also be helpful if com- ments could be made concerning any dis- reputable persons we would not want as a juror." It's not clear what constitutes "dis- reputable" to the Crown, but you can bet defence lawyers would not likely agree. Surprisingly, this information was not disclosed to the defence. Shockingly, dur- ing the trial, a police officer basically acted as jury consultant to the Crown. In another case — Emms v. The Queen — police were sent a similar memo and provided notes about jurors, with nota- tions like "OK" and "possible," referring to convictions, and going so far as providing what appears to be information pertaining to possible crimes. According to the Ontario Court of Appeal, the databanks the police consulted "contain much more information than simply records of criminal convictions and can include information about outstanding warrants, various court orders, charges, police contacts, and investigations relating to individuals and locations." Those cases, and others, drew the attention of Ontario's privacy commis- sioner, whose report into the Crown antics showed a stunning lack of standards across the country on juror vetting in advance of a trial. Quebec discharges jurors for simply being charged with a criminal offence, while Saskatchewan doesn't bar those with convictions. Some provinces do not conduct criminal record or background checks, while Nova Scotia and Ontario sometimes do. It's a mishmash. Courtrooms are places where accused and the Crown's case against them should be on trial, not jurors who are doing their civic duty. Jurors should not have their lives dissected in the course of carrying out this duty. Run-ins with the law, parking infrac- tions, 911 calls, drug investigations, com- plaints to authorities about the actions of others, and Lord knows what else that's in police information systems should not be standard fodder for Crowns (or defence) when it comes to the juror selection pro- cess. Nor should police be needlessly pry- ing into the lives of jurors (unless of course they suspect they are being bribed). That's not to say the Crown and defence counsel shouldn't be able to use public sources to vet jurors. With more Canadians on social networks like Facebook, Twitter, and LinkedIn, public utterances are fair game in assessing jurors and it's sensible to conduct a limited search into criminal records to keep jurors honest in their dis- closures, but what goes on in the quiet of one's home, not so much. Especially when it involves using police resources. Let's hope the SCC puts its foot down and provides the provinces with stronger guidance over jury vetting. It's an area that sorely needs to be addressed and the soon- er the better. The goose deserves no less. Jim Middlemiss blogs about the legal profession at WebNewsManagement.com. His e-mail is at jmiddlemiss@webnewsmanagement.com. The McKellar Structured Settlement™ 46 M A RCH 2012 www. CANADIAN Lawyermag.com Untitled-2 1 12/8/10 3:45:27 PM

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