"IT’S AGAINST THE LAW FOR THE PROSECUTORS TO ASK AND FOR THE POLICE TO DO IT. IT’S CONTRARY TO DUE PROCESS FOR SUCH INFORMATION TO NOT BE DISCLOSED TO THE DEFENCE. AND IT IS A GROSS VIOLATION OF BASIC CIVIL LIBERTIES FOR THOSE CITIZENS CALLED FOR JURY DUTY TO BE SUBJECT TO THE STATE TROLLING AROUND FOR TALES OF MENTAL ILLNESS, DRUNKENNESS, CAVORTING WITH DUBIOUS FRIENDS OR FREQUENTING LESS THAN SALUBRIOUS ESTABLISHMENTS."
FATHER RAYMOND DE SOUZA; NATIONAL POST;
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Background: In a previous post I asked: "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?"
My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;
I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.
This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.
The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and therefore monitoring developments on a regular basis;
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Father Raymond De Souza, a National Post columnist who's work has often appeared on this Blog, has become one of the most incisive commentators on Ontario's criminal justice system. (His columns on the havoc wreaked on Ontario's criminal justice system by Dr. Charles Randal Smith are gems and worthy of a retrospective);
"Prosecutors and police are a sensitive lot," begins his latest column, published on Thursday June 11, under the heading, "Prosecutors who break the law."
"Write about failures in the schools, health care system, post office, social services or any other arm of the elephantine state apparatus, and people accept it as sadly routine — of course there are failures, even significant ones, on a regular basis," it continues;
"But suggest that the same inefficiency, adverse outcomes or abuse of power are found not infrequently in our criminal justice system, and the response is vigorous.
Ignoring those who instinctively accuse critics of the justice system of being soft on crime (are critics of the health care system soft on disease?), any such intervention brings forth police and prosecutors who insist, with a straight and indignant face, that such things simply don’t happen. Or if there is absolutely incontrovertible evidence that an innocent man is in prison, then it is only due to the most exotic species of anomaly.
I am conscious of the danger of becoming the Post’s resident bore on prosecutorial and police misconduct, the violation of due process and jailing of the innocent, but the news of the week cannot be avoided. What are we to make of the fact that we now know that in the Ontario cities of Windsor and Barrie, prosecutors routinely asked the police to do background checks on prospective jurors so as to enable them to select more favourable juries?
It’s against the law for the prosecutors to ask and for the police to do it. It’s contrary to due process for such information to not be disclosed to the defence. And it is a gross violation of basic civil liberties for those citizens called for jury duty to be subject to the state trolling around for tales of mental illness, drunkenness, cavorting with dubious friends or frequenting less than salubrious establishments.
All this was uncovered by the Post’s reporters, and led to a judge in Windsor declaring a mistrial after learning that the prosecutors and police had engaged in this tag-team abuse of power. The Post editorialized that this could be an “apocalypse” for the criminal justice system in Ontario. Depending on how crooked the Crowns were in this matter, and how complicit the police, hundreds of verdicts could be overturned.
Chris Bentley, Ontario’s Attorney-General, is reacting as one would expect, but not as one would hope. He has asked the province’s chief prosecutor, John Ayre, to call around and figure out how many Crowns were violating the Juries Act. Not surprisingly, Mr. Ayre has reported back that aside from the cases caught by this newspaper, such illegality was not happening. Reassurances from prosecutors that they were not illegally trying to manipulate juries are welcome, but perhaps the Attorney-General could pursue the matter more vigorously.
After all, for the sake of whatever reputation for fairness our criminal justice system still retains, he should be eager to root out prosecutors who are undermining the jury system. One would expect that, at a minimum, the prosecutors already known to be guilty of such behaviour will soon be ex-prosecutors. Likewise for the police who, instead of blowing the whistle on prosecutors asking them to snoop on those being summoned to a basic duty of citizenship, acceded to a violation of the laws they are supposed to uphold.
To date, the best the Ontario Provincial Police has offered is a directive last month from Chief Julian Fantino to all detachments not to do background checks anymore for curious Crown prosecutors. Yes, that’s correct. The OPP has sent out a special directive instructing police officers not to break the law, even when asked nicely by prosecutors to do so.
Every time we discover misconduct in our criminal justice system, we are told that it is just an anomaly, a one-off, a regrettable bit of ad-hoc-ery gone awry. When a prisoner ends up dead in suspicious circumstances, it’s an anomaly. When RCMP officers accidentally kill a man and then lie about it to cover it up, it’s an anomaly. When an innocent man languishes in jail for years on end, it’s an anomaly. When parents are wrongly convicted of raping and killing their own children — which happened for two decades in Ontario — oops, it’s an anomaly.
Canadians have already had an avalanche of anomalies. It’s past time for an apocalypse.
Harold Levy...hlevy15@gmail.com;
