""CHIEF GARY SMITH SAID THE OFFICERS WERE TRYING TO HELP PROSECUTORS SELECT "QUALITY" JURIES IN CRIMINAL TRIALS," THE STORY CONTINUES;
""DO YOU WANT SOMEONE WHO'S BEEN CONVICTED OF DOMESTIC ASSAULT SITTING IN A DOMESTIC ASSAULT CASE?" HE SAID IN AN INTERVIEW WITH THE WINDSOR STAR..."
"THE PRACTICE FIRST CAME TO LIGHT LAST MONTH WHEN IT WAS DISCLOSED INADVERTENTLY DURING JURY SELECTION IN A TRIAL IN BARRIE, IN SIMCOE COUNTY.
DOCUMENTS FILED WITH THE ONTARIO COURT OF APPEAL ON BEHALF OF IBRAHIM YUMNU, WHO WAS CONVICTED OF FIRST-DEGREE MURDER BY A JURY IN BARRIE, SHOW THAT THE BACKGROUND CHECKS THERE DATE BACK AT LEAST UNTIL 2004.
REPORTERS SARAH SACHELI AND 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 therefore monitoring developments on a regular basis;
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The National Post reveals that secret jury probes were "the norm" in a story headed "Jury checks the norm, Windsor police chief says" by Sarah Sacheli and Shannon Kari, published on Thursday, June 11, 2009;
"The chief of the Windsor police force admits that his officers routinely ran background checks on potential jurors and denies there was any improper motive behind the practice," the story begins;
"Chief Gary Smith said the officers were trying to help prosecutors select "quality" juries in criminal trials," the story continues;
""Do you want someone who's been convicted of domestic assault sitting in a domestic assault case?" he said in an interview with The Windsor Star.
The comments are the first explanation by a public official about the practice of using confidential databases to probe the backgrounds of prospective jurors in Ontario.
This week, a judge in Windsor ordered a mistrial two months into a first-degree murder trial after learning of the background checks. The information gathered on the 200 people selected for the jury pool included speeding tickets, pardoned crimes and young offender records, which were secretly used by the Crown.
The conduct of the Crown and police was described as "offensive" by Justice Bruce Thomas.
Despite the judge's criticisms, Chief Smith stressed his officers did nothing illegal. "For there to be a criminal offence, there has to be criminal intent. There's no criminal activity we know of," said the Windsor police chief.
Anyone convicted of an indictable offence is not permitted to serve on a jury in Ontario. It is the function of the court sheriff, who is paid by the Ministry of the Attorney-General yet is supposed to be independent from the Crown, to determine jury eligibility.
There is no provision in the Juries Act for the police to conduct database checks on behalf of the Crown, and the lists are required to be "under lock and key" until 10 days before jury selection. The Supreme Court of Canada has repeatedly stressed that there is to be limited information available about jurors and that there must be a level playing field for the Crown and defence in terms of what is known.
A Crown attorney in the Windsor case testified that it was not unusual to see a police officer with a jury panel list in his possession. His colleague indicated that he had received confidential information in other cases in Windsor and outside jurisdictions.
So far, it is known that in at least Windsor, Simcoe County in central Ontario and possibly Thunder Bay, there have been secret background checks.
The Ontario privacy commissioner announced an investigation this week into the practice because of concerns of violations of privacy rights. Attorney-General Chris Bentley has refused to ask an independent investigator to determine how common this practice has been and how long it has been taking place. Instead, his chief prosecutor has made inquiries to local Crown offices to ask if they have used information from secret background checks, which potentially violate the Juries Act and their professional obligations as lawyers.
"These calls determined that the practice is not widespread," said Ministry of the Attorney-General spokesman Brendan Crawley. The province has not released any evidence to support its assertion.
In Thunder Bay, the Crown had additional information about potential jurors that it disclosed to the defence after the practice in Simcoe County was first reported by the National Post on May 25. The defendant proceeded with his trial and was convicted this week.
The Attorney-General maintains that the Crown may conduct criminal record checks on potential jurors, as long as the information is disclosed to the defence. However, police databases often contain a great deal of other information about individuals.
The province has declined to answer specific questions about whether any Crown attorneys will be disciplined for their roles in the wide-ranging background checks, which have now been ordered to stop.
The practice first came to light last month when it was disclosed inadvertently during jury selection in a trial in Barrie, in Simcoe County.
Documents filed with the Ontario Court of Appeal on behalf of Ibrahim Yumnu, who was convicted of first-degree murder by a jury in Barrie, show that the background checks there date back at least until 2004.
The Crown attorneys in the Yumnu case, Michael Flosman and Gisele Miller, both received lists with notations about potential jurors, which were not disclosed to the defence.
Mr. Flosman is a senior Crown attorney in Barrie. Ms. Miller was appointed a Superior Court judge in 2006."
Harold Levy,,,hlevy15@gmail.com;
