Saturday, June 20, 2009





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;


It's a plot worthy of John Grisham;

A motor vehicle claim is brought against an insurance company (ICBC) - a Crown corporation that provides auto insurance for all British Columbia motorists - in the Supreme Court of British Columbia;

Comes jury selection, Kathleen Birney, a lawyer hired by the insurance company, sends the jurors' names to an ICBC adjuster and asked for information on their claims history.

Company tells Birney that one juror had an open claim with ICBC; another had previous claims.

It turns out that Harper and Birney, Birney's two-member law firm, received close to $700,000 from the corporation for work done in 2006 and 2007: $417,000 in 2007 and $269,920 in 2006.

(It is not clear how many ICBC cases Harper & Birney worked on in those years and how many of those cases came before a jury.)

The breach is discovered during a review of claims files when the adjuster informed a manager that a juror claims information had been disclosed to defence counsel.

Although it occurred on the first day of the trial, the breach wasn't reported to senior managers until two days later. On the fourth day, the breach was revealed in court by corporate counsel for the insurance company which ultimately tells the judge that it has discovered two other breaches of juror privacy;

The judge orders a mistrial after some jurors express concerns that a high damage award would drive up their own auto insurance rates.

Read the following stories if you don't believe this actually happened in real life;

First, the story on the two additional breaches, which was published by the Canwest News Service on Friday May 29, 2009, under the heading: "Two more ICBC jury breaches are found."

"ICBC's investigation into the improper disclosure of the accident-claim histories of jurors has uncovered two other breaches of jurors' privacy, the auto-insurance agency confirmed Thursday," the story begins;

"The breaches, described by ICBC spokesman Mark Jan Vrem as inappropriate access to jurors' personal information, took place in 2000 and 2006 during civil trials. They did not involve lawyers or adjusters working on Vancouver Island, he said," it continues;

""We are the first to recognize that these incidents are absolutely wrong," said ICBC president Jon Schubert. "ICBC has 5,000 dedicated and hard-working employees and we are all feeling a great deal of disappointment over this issue."

ICBC will continue its month-long investigation and share its findings with David Loukidelis, B.C.'s information and privacy commissioner, who has been asked by the government to conduct an audit, said Jan Vrem.

Labour Minister Iain Black said ICBC uncovered the two new cases last Thursday and Friday, prompting a series of emergency board meetings over the weekend.

Black, who is responsible for information and privacy issues, was alerted and requested an urgent briefing by the board on Monday morning.

"They were, in a word, horrified at what they had discovered," he said. Kathleen Birney, a Victoria lawyer hired by ICBC, told Justice Malcolm Macaulay that when the jury was picked, her office sent the jurors' names to an ICBC adjuster and asked for information on their claims history. Birney received information that one juror had an open claim with ICBC; another had previous claims.

The second story, by Vancouver Sun reporter Ian Mulgrew reporting a different case involving ICBC, ran on the same day under the heading: "Judge calls for new ICBC trial after jury misconduct," and the sub-headings: "He finds their comments 'truly troubling;"

"Jurors weighing how a damage award might affect their own ICBC rates -- a serious issue raised in a B.C. Supreme Court case last week -- has resulted in a mistrial in a civil auto-claim lawsuit," the story begins;

"A justice faced with complaints about misconduct was given an extraordinary glimpse inside the jury room and it was everything he feared -- and worse," it continues;

"Normally, the law prohibits jurors from revealing their deliberations. It is also illegal to question them about their decisions.

But allegations of impropriety during proceedings in the auto-claim case earlier this month provided a rare opportunity for a judge to question individual jurors.

Their testimony revealed that a jury foreman had directed deliberations before the trial was over. One made comments about racial collusion; one "flipped out;" another used Wikipedia; and, perhaps most importantly, jurors expressed concerns that a high damage award would drive up their own auto insurance rates.

One juror quoted another as saying: "If the plaintiff is asking for all these medical expenses to be paid by ICBC, our rates will go up, so we can't let that happen."

B.C. Supreme Court Justice Grant Burnyeat quipped to the court: "If you're a movie fan, 'Houston, we have a problem.' "

He couldn't believe that after all his cautions anyone would resort to the Internet.

"I think everybody watches too much American TV," he lamented. "I can yell at the jury later that the law is what I tell them the law is and not what Wikipedia or somebody else thinks it is. But the number of comments that have been made I find truly troubling. "

Justice Malcolm Macaulay, who was upset last week after learning an ICBC lawyer snooped into jurors' claims histories, also raised concerns about how the monopoly insurance system had adversely affected civil litigation in the province.

He suggested the Crown corporation's influence is so pervasive, it casts a shadow over proceedings and acts as a barrier to justice.

Thirty-five years ago, before the era of compulsory ICBC insurance, he explained, it was relatively rare to have a civil jury for a motor vehicle claim.

Few plaintiffs sought juries and the defendant virtually never did. Now ICBC almost always insists on a jury trial.

Macaulay said he worried the insurance company adopted that approach, which adds expense and time to proceedings, in the hope jurors might give lower awards than judges would to keep their own premiums low, and that has given ICBC an advantage in the courtroom.

But he could only speculate, he added, because jury deliberations are sacrosanct.

Burnyeat was able to pierce that shield; however, it was not a pretty sight.

"I have been a judge for 13 years and what I'm about to say I haven't had to say before, so I say it with considerable regret," he said in his decision to abort the trial.

"You were told to put the question of whether awards do or do not result in higher insurance premiums out of your minds and yet someone decided to mention and speculate that it probably results in higher insurance premiums for all of us."
The judge chastised the jurors for costing both parties considerable expense and for delaying a resolution of the case for a further six to 12 months.

"You have failed collectively and in some cases individually to discharge your duties as jurors and I have no alternative but to discharge you as a jury . . . . I will not thank you for your attendance."

Wes Mussio, lawyer for the plaintiff, said the situation is not unique and it is time to address it. "It's easy to fix," he said. "The federal and provincial governments cannot demand a jury trial, why should ICBC -- which is basically an arm of the government -- be allowed to demand a jury trial? If ICBC with all its resources wants jury trials, the least they should do is force it to pay for them."

When Burnyeat asked that the new trial proceed by judge alone later this year to expedite matters, ICBC said no way -- Jury! Jury! Jury!

After all, who among us wants higher premiums?"