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""THE ROLE OF PROSECUTOR EXCLUDES ANY NOTION OF WINNING OR LOSING; HIS FUNCTION IS A MATTER OF PUBLIC DUTY THAN WHICH IN CIVIL LIFE THERE CAN BE NONE CHARGED WITH GREATER PERSONAL RESPONSIBILITY. IT IS TO BE EFFICIENTLY PERFORMED WITH AN INGRAINED SENSE OF THE DIGNITY, THE SERIOUSNESS AND THE JUSTNESS OF JUDICIAL PROCEEDINGS." THE SECRET JURY VETTING VIOLATES THIS MOST SACRED ETHICAL DUTY.""
PROF. DAVID M. TANOVICH; SPECIAL TO THE WINDSOR STAR;
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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Professor David Tanovich sets out his views on professorial responsibility in the context of Ontario's jurygate scandal in an opinion piece published in today's Windsor Star headed "Crown squarely to blame."
(He is a law professor at the University of Windsor, academic director of the Law Enforcement Accountability Project at Windsor Law School, and co-author of a book on jury selection.)
"Over the last few weeks, we have learned at the explicit, or implicit, behest of Crown attorneys in at least three Ontario jurisdictions (Barrie, Thunder Bay and Windsor), the police have been conducting background checks on prospective jurors using police databases and providing their opinion on the person's suitability as a juror in notes given to prosecutors," Tanovich begins.
"These notes include comments like "calls a lot for minor complaints;" "dislikes police;" "family issues;" "criminal associates;" "dad is a drinker." The Crown has used this information, in some cases, to remove a person from the jury. This is as close to systemic jury tampering as we have seen in this country," he continues;
"As we learn more about the scope of this illegal, unconstitutional and unethical conduct, our focus must be on the prosecutors.
It was individual Crown attorneys using the authority of their office who approved or requested these police checks.
It is not unreasonable for a police officer to assume in these circumstances this Crown-sanctioned practice was appropriate.
Crown prosecutors have constitutional, ethical and legal obligations that put them on a different playing field from the police and defence lawyers.
As Justice Rand of the Supreme Court of Canada put it so eloquently more than 50 years ago, "The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings." The secret jury vetting violates this most sacred ethical duty.
What makes the revelations so troubling is that prosecutors have been put on notice for some time now that this kind of practice is improper.
In 1992, the Supreme Court of Canada in R vs Bain abolished the statutory right of the Crown to stand aside prospective jurors because of the temptation it placed on them to use the power to secure a favourable jury. There was also a fairness issue since the defence did not have a similar power.
In 1997, Robert Latimer's murder conviction was set aside by the Supreme Court of Canada because the Crown had asked the police to obtain background information about prospective jurors' views on mercy killing. Randy Kirkham, the lead prosecutor, narrowly escaped a conviction for obstruct justice in 1998 because the Crown could not prove that he intended to obstruct justice.
Following Latimer, a number of Crown policy manuals, including those in Ontario and New Brunswick, were changed to prohibit background checks outside of criminal record checks. Finally, in 1991, the Supreme Court of Canada held that the Crown has a constitutional obligation to disclose all relevant evidence to the defence. This would include any background information about a prospective juror.
There are other troubling issues raised by this practice ranging from privacy, the reliability and scope of information kept by the police, the inability of individuals to access this information and have it removed to the integrity of the justice system and the vulnerability of potentially hundreds of current and completed cases. Many of these issues will be addressed by the privacy commissioner in her investigation and in subsequent court proceedings. As the guardian of the public trust and regulator of lawyers and Crowns, it is imperative for the Law Society of Upper Canada to get involved. There is a need for an investigation, possible disciplinary action and amendments to the Rules of Professional Responsibility to address this and similar situations.
This issue also touches on the responsibility of law schools. In a recent report on the state of legal education in Canada, the Federation of Law Societies recommended a mandatory legal ethics course in law schools. To date, fewer than half of all Canadian law schools have such a course.
This scandal should serve notice to all law schools of the importance and need for greater attention to ethical reflection and professional responsibility."
Harold Levy...hlevy15@gmail.com
