"BUT WHAT'S WORSE IS THAT THE CROWN SEEMS TO HAVE INTRODUCED THIS SYSTEM ONLY FOR ITS OWN BENEFIT. THE "ADDITIONS" WERE NOT SHARED WITH THE DEFENCE, CREATING A CLEAR POSSIBILITY OF ACTIONABLE UNFAIRNESS IN THE JURY-SELECTION PROCESS AND SUGGESTING THAT SOME CROWN PROSECUTORS HAVE A FANTASY-LAND VIEW OF THEIR DISCLOSURE OBLIGATIONS. MOREOVER, IN THE YUMNU CASE, THE NAME AND ADDRESS INFORMATION WHICH IS SUPPOSED TO REMAIN "UNDER LOCK AND KEY" UNTIL 10 DAYS BEFORE THE JURY POOL IS SCHEDULED TO APPEAR WAS GIVEN TO THE CROWN, ALONG WITH THE "ADDITIONS," LONG BEFORE THE DEADLINE."
THE NATIONAL POST; EDITORIAL;
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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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The National Post has complimented it's dogged reporting of the juror screening controversy with a powerful editorial which ran on June 19, 2009, under the heading: "Ontario stonewalls justice, one mistrial at a time;"
"This week's mistrial in the case of accused murderers Shane Huard and Richard Zoldi could be the beginning of an apocalypse for the Ontario legal system," the editorial begins;
"As reported here yesterday after a brief publication ban was lifted, Superior Court Justice Bruce Thomas accused the Crown of "offensive" behaviour in using information from police dispatch and arrest records to vet potential jurors, without sharing that information with the defence," it continues;
"The mistrial follows the National Post's uncovering of a pattern of similar behaviour in Simcoe County; questions facing the Ontario's Attorney General now include where else this might have happened, how often and why a 2006 Crown policy directive forbidding the practice has been ignored.
The list of legal and moral principles at stake is almost too large to fit into a single editorial. The Versadex database administered by the Canadian Police Information Centre contains information obtained by police on any call to a private address, even if that call did not lead to an arrest, and appears to contain other informal police annotations concerning individuals. Notes on mental health status are included. Which is why the CPIC code of ethics requires the permission of an individual before his record is accessed, unless as part of a formal police investigation. This part of the code appears to have been ignored, perhaps routinely.
Still less does our law contemplate that such information will be shared with Crown prosecutors willy-nilly, as part of a jury-selection process: but that is what appears to have happened in Ontario, repeatedly, since 2004. In the Huard-Zoldi trial the Crown was provided with notes that particular potential jurors "dislike[d] police," had "family issues" and was known to consort "criminal associates." The prosecutor in the Barrie trial of accused Wasaga Beach murder Ibrahim Yumnu was given similar information about individual jury pool members: "fraud (dismissed)," "criminal record peace bond entered," "[teacher] accused of assaulting student." Jury-pool notes in another Barrie trial included "suicidal in 2001," "Ongoing neighbour dispute - neighbour shot his cat," and "Witness to parent's domestic dispute. Dad is a drinker and assaulted her mother." It is almost gilding the lily to mention the Freedom of Information and Protection of Privacy Act and the Personal Health Information Protection Act here: The outrage against simple decency is enough.
These police annotations, or "additions," as one prosecutor called them in a letter, go well beyond the simple questions of jury eligibility that the cops are permitted to check out under the Juries Act (which disqualifies citizens for jury duty if they have ever been convicted of an indictable offence). The trial lawyers who accuse the Crown of adopting the cockamamie American system of obsessive, intrusive juror analysis have an unanswerable point here.
But what's worse is that the Crown seems to have introduced this system only for its own benefit. The "additions" were not shared with the defence, creating a clear possibility of actionable unfairness in the jury-selection process and suggesting that some Crown prosecutors have a fantasy-land view of their disclosure obligations. Moreover, in the Yumnu case, the name and address information which is supposed to remain "under lock and key" until 10 days before the jury pool is scheduled to appear was given to the Crown, along with the "additions," long before the deadline.
The Attorney General should not continue to stonewall the media while this issue grows one mistrial at a time. Even if one ignores all the possible questions about the legality of the practice of Crown-police information-sharing on jurors, and even if one takes the piously optimistic view that no heads ought to roll - despite fairly clear appellate-court and administrative guidance deprecating such behaviour, and the fact that it is unknown or specifically forbidden in other provinces - surely the government should at least make itself aware of the dimensions of the possible trial-review problem here.
How many verdicts are in danger of being reversed in Ontario because of this scandal? Dozens? Hundreds? Thousands? We think even that rare Ontario citizen who would be comfortable having it whispered about that his "Dad is a drinker" or that he "dislikes police" may wish to know the extent of the budget exposure resulting from this sharp prosecutorial dealing. It could be colossal."
Harold Levy...hlevy15@gmail.com;
