"UNDER CANADIAN LAW, BACKGROUND CHECKS ON JURORS ARE SUPPOSED TO BE CONDUCTED ONLY FOR THE MOST SERIOUS CONVICTIONS. BUT AMONG THE COMMENTS WRITTEN BESIDE PROSPECTIVE JURORS' NAMES, PROVIDED TO THE CROWN BY A WINDSOR POLICE DETECTIVE, WERE "DISLIKES POLICE.""
COURTS REPORTER PETER SMALL: TORONTO STAR;
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Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?
The answer, according to this humble Bloggist, is that the prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;
Skeptics might respond that this is a cheap shot because in Ontario's criminal justice system a prosecutor is an officer of the court who is required to protect the rights of the accused.
I suggest that our readers can make up their own minds as to whether prosecutors occasionally look the other way when calling an expert such as Smith - whose very involvement in a case was enough to cause innocent persons to plead guilty to horrific crimes they did not commit - after reading the following story in today's Toronto Star by my former colleague Peter Small;
The story runs under the heading: "Secret jury screening spreads to Windsor" and the sub-heading: "A Windsor judge has declared a mistrial in a murder case because the Crown had the police do secret background checks on jurors."
A second sub-heading reads: "Lawyers demand action as mistrial shows practice isn't limited to Barrie."
"WINDSOR – A judge here has declared a mistrial in a murder case because the Crown had police do secret background checks on jurors – a development that has lawyers predicting a flood of defence challenges," the story begins.
"The ruling shows that the secret screening of potential jurors isn't confined to Barrie, which saw a recent mistrial and the dismissal of two jury panels last week," it continues;
"Attorney General Chris Bentley said yesterday he still does not believe the practice is widespread.
But Greg Goulin, one of the defence counsel in the Windsor trial, predicted a rush of inquiries by members of the defence bar.
"There is no question that for every case under appeal, perhaps for every case where a jury sat, there's going to be probably letters going from the counsel that appeared in those cases to Crowns and prosecutors in those cases saying, `Did you vet the jury in this case?'" he told reporters.
Frank Addario, president of the Criminal Lawyers' Association, urged Bentley to address the issue head on.
"In our view, the attorney general should not let this fester," said Addario. "That just creates suspicion and uncertainty."
Peter Kormos, the provincial NDP justice critic, said that Bentley has not been straightforward about the extent to which "these highly inappropriate background checks have been taking place."
Kormos said Bentley has created a scenario where a large number of convictions are now in doubt.
He said it's imperative that Ontarians know how long this "illegal" conduct has been going on, and who has been doing it.
Bentley said yesterday that the province's chief prosecutor, John Ayre, has issued a directive to stop wide-ranging background checks and is phoning all Crowns' offices as a follow-up.
Where pre-existing lists of such broadly screened jurors do exist, Crowns are instructed to disclose them to the defence and "take whatever steps are necessary, including starting with a new panel," Bentley said in an interview.
In Windsor's Superior courthouse yesterday, after two months of hearing evidence in the first-degree murder trial of Richard Zoldi and Shane Huard, Ontario Superior Court Justice Bruce Thomas dismissed the jurors, informing them that he had declared a mistrial because of jury vetting. Thomas told jurors that he found the process in their case "to be offensive."
Under Canadian law, background checks on jurors are supposed to be conducted only for the most serious convictions. But among the comments written beside prospective jurors' names, provided to the Crown by a Windsor police detective, were "dislikes police."
Other jury candidates were cited as having criminal associates.
There were references to marijuana and other criminal charges (but not convictions), young offender records, provincial offence tickets, and people with conditional discharges or pardons for criminal offences.
The judge said he doubted that citizens who had dealings with the Windsor police contemplated that the Crown would be using their information when they were called up for jury duty.
Jury vetting beyond serious criminal checks has been condemned by critics as an invasion of privacy and, if not illegal, incorrect.
Under Canadian law, all Crown or defence counsel are supposed to know are the name, address and occupation of prospective jurors.
Under the Juries Act, the local court Sheriff must keep lists of jurors under "lock and key" until 10 days before jury selection.
But in three cases in Barrie challenged by defence counsel in recent weeks, the Crown has had the lists several weeks before jury selection and has been asking Ontario Provincial Police detachments and some local police forces in Simcoe County to conduct background checks on candidates.
The controversy led OPP Commissioner Julian Fantino to make a statement Monday stressing that the force has stopped the practice since the story first broke on May 25 and has been reviewing its policies "to ensure that OPP policy reflects the privacy rights of individuals."
In the Windsor case, Huard, 27, a former amateur boxing sensation, and Zoldi, 31, are accused in the 2006 shooting death of Windsor drug dealer Troy Hutchinson, 28.
Goulin, who represented Huard, and Kirk Munroe, acting for Zoldi, challenged the fairness of the jury selection after the issue came to light.
The background information, obtained from Windsor police databases, was not disclosed to the defence and was used by prosecutors in rejecting prospective jurors, the judge found.
Jury selection with new panels resumes in the murder trial July 6.
"What was done here just went overboard," Goulin told reporters, adding that it breached their rights to privacy, freedom of association and expression.
Munroe said that juries are supposed to be a buffer between the state and citizens.
The whole process of police vetting juries attacks this principle, he told reporters. "It's frightening what they did."
It appears the practice has been going on in Barrie for at least four years.
It was cited by Toronto lawyer Greg Lafontaine as a new ground of appeal over the 2005 jury selection in the first-degree murder trial that led to the conviction of his client, Ibrahim Yumnu.
The appeal is being watched closely by the attorney general's ministry and Ontario's information and privacy commissioner.
James Morton, a defence lawyer and past president of the Ontario Bar Association, said he believes that defence lawyers will now focus on this case more intensely and several will seek to re-examine old cases.
But he too said he does not believe the broad Crown-initiated jury screening is widespread. "It's not proper," he said."
With files from Betsy Powell and Tracey Tyler
The story can be found at:
http://www.thestar.com/news/ontario/article/648347
Harold Levy...hlevy15@gmail.com;
