"THE BACKGROUND CHECKS IN WINDSOR INCLUDED THE USE OF THE VERSADEX DATABASE, WHICH IS INTEGRATED WITH EMERGENCY RESPONSE UNITS AND CONTAINS POLICE OCCURRENCE DATA THAT HAS NOTHING TO DO WITH CRIMINAL RECORDS.
IN BARRIE, THE MEMOS ON BEHALF OF THE CROWN APOLOGIZED FOR NOT HAVING THE BIRTH DATE OF POTENTIAL JURORS (ONLY NAME, ADDRESS AND OCCUPATION IS INCLUDED), WHICH WOULD MAKE IT EASIER TO USE THE CANADIAN POLICE INFORMATION CENTRE (CPIC) DATABASE.
RICHARD MCEACHIN, WHO RUNS A TORONTO-BASED COMPANY THAT DOES DATA RESEARCH FOR PRIVATE CLIENTS, SAID HE WAS NOT SURPRISED VERSADEX WAS USED. "THE MAIN CPIC CRIMINAL RECORD DATABASE HAS A ROBUST AUDIT TRAIL AND PROCEDURES TO PREVENT ABUSE," HE SAID."
REPORTER SHANNON KARI; THE 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 is therefore monitoring developments on a regular basis;
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The National Post story by reporter Shannon Kari ran Saturday under the heading "No move to set up outside review into secret juror checks," and a sub-heading: "Premier awaits report from Privacy Commissioner."
"There was no ambiguity from Ontario Premier Dalton McGuinty when asked again this week about secret background checks conducted on potential jurors on behalf of the Crown," the story began.
""The Attorney-General has made it perfectly clear that this is unacceptable," said the Premier. "In fact, it's against the law," the story continued.
"Yet, in the four weeks since the practice was first revealed, no outside investigator has been asked to look into the conduct of any specific prosecutor, Crown office or police detachment.
The Ontario Provincial Police, Windsor police and the Ministry of the Attorney-General have responded with internal reviews and suggested the queries were limited to a few jurisdictions.
The reviews are far from the "penetrating light of public scrutiny" that Superior Court Justice John McIsaac said would "best serve the ends of justice" in refusing this month to seal vetted jury lists in a case in Barrie.
The only independent probe so far is by the Ontario Privacy Commissioner, who has no legal power to compel the Crown or police to turn over information. There is also no move to enact new rules to avoid potential abuses in the future.
Under the present system, anyone convicted of an indictable offence cannot serve as a juror in Ontario. There are similar restrictions in other provinces.
The Ontario government has agreed that the broad background checks, which led to notations on jury lists that included mental heath data and comments such as "dislikes police" went too far.
Yet it insists it can ask for criminal record checks to determine eligibility, without the knowledge of the jurors, as long as the information is disclosed to the defence.
A memo sent on May 26 by John Ayre, the province's chief prosecutor, to all Crown attorneys, which orders an end to background checks, does not speak of privacy issues or fair trial rights. Instead, it stresses the importance to "society at large" that no one with a conviction for an indictable offence manages to find a way to get on a jury.
In Windsor, police Chief Gary Smith said any future checks will only be done at the request of the Crown under the Juries Act.
However, there is no provision in any provincial jury act in Canada that allows the Crown or police to conduct even criminal record checks.
Instead, people selected to perform their civic duty are asked to disclose if there is any reason they are not eligible. It is the role of the court sheriff (court staff employed by the province) to oversee jury lists
While it may be a good idea to conduct criminal record checks on potential jurors, the Crown should have no role in the process, said Don Stuart, a criminal law professor at Queen's University in Kingston. The responsibility for determining eligibility "is conspicuously left to the sheriff," Mr. Stuart noted.
One possible solution is to amend the rules so that criminal record checks are done only for the sheriff. The name of anyone who is ineligible is removed from the jury rolls before the lists are made available to the Crown or defence, Mr. Stuart suggested.
The background checks in Windsor included the use of the Versadex database, which is integrated with emergency response units and contains police occurrence data that has nothing to do with criminal records.
In Barrie, the memos on behalf of the Crown apologized for not having the birth date of potential jurors (only name, address and occupation is included), which would make it easier to use the Canadian Police Information Centre (CPIC) database.
Richard McEachin, who runs a Toronto-based company that does data research for private clients, said he was not surprised Versadex was used. "The main CPIC criminal record database has a robust audit trail and procedures to prevent abuse," he said.
He echoed the views of Mr. Stuart, that any criminal record searches should only be on behalf of the court sheriff.
"This would create a visible and dated audit trail," Mr. McEachin said.
While Mr. McGuinty used strong language to condemn the background checks, he also said it is best to wait for the review of the Privacy Commissioner before taking any action. "In the meantime, I think we have done all that we can. We have told the police and the Crowns they can't do this and they've got to stop," he said.
It is a response that suggests Mr. McGuinty might be successful in another line of work, observed Toronto defence lawyer Edward Sapiano.
"I would like to add the Premier to my legal team. He could make submissions to assure the judge that there is nothing to worry about. My client has been told to stop the practice and he is moving forward," he said, tongue planted in cheek."
Harold Levy...hlevy15@gmail.com;
