"THIS IS THE ONLY RECENT CASE IN TORONTO WHERE IT HAS BEEN DISCLOSED THAT THERE WERE BACKGROUND CHECKS OF POTENTIAL JURORS USING POLICE DATABASES. IT HAS BEEN REVEALED THAT THEY HAVE TAKEN PLACE FOR SEVERAL YEARS IN WINDSOR AND BARRIE AND IN AT LEAST ONE CASE IN THUNDER BAY.
UNLIKE THE LONG-STANDING PRACTICE IN WINDSOR AND BARRIE, WHERE POLICE CONDUCTED SECRET CHECKS ON BEHALF OF THE CROWN, THE VETTED LISTS IN THE TUCK CASE WERE PROVIDED TO THE DEFENCE IN ADVANCE OF JURY SELECTION."
REPORTER SHANNON KARI: 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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Ontario's jurygate scandal has struck Toronto - the National Post reported Tuesday under the heading: "Police ran jury checks in Toronto murder trial, court reveals," and the sub-heading, "Ontario jury checks could mar dozens of trials."
"TORONTO -- Jurors in a murder trial in Toronto earlier this year were subjected to background checks without their knowledge, it was revealed in Ontario Superior Court on Tuesday," begins the story by reporter Shannon Kari, one of the best reporters on Canada's justice system.
"At least a dozen of the 190 potential jurors in the second-degree murder trial of Jeffrey Tuck had their names highlighted which indicated they had "contact with police," although there was no further explanation of the phrase," the story continues;
"The people whose names were highlighted were not automatically excluded from the jury panel and it is not known exactly which databases were used to conduct the checks.
This is the only recent case in Toronto where it has been disclosed that there were background checks of potential jurors using police databases. It has been revealed that they have taken place for several years in Windsor and Barrie and in at least one case in Thunder Bay.
Unlike the long-standing practice in Windsor and Barrie, where police conducted secret checks on behalf of the Crown, the vetted lists in the Tuck case were provided to the defence in advance of jury selection.
"As soon as we had the information, we disclosed it," lead prosecutor James Cavanagh said in court Tuesday. The defence "had the same information we had," stated Mr. Cavanagh.
Tuck was convicted of second-degree murder in March for stabbing 20-year-old Salim Jabaji at a Toronto nightclub in 2001. The jury issue arose Tuesday at what was to be the sentencing hearing for Tuck, who was initially acquitted in 2005, but a new trial was ordered after a successful Crown appeal.
"We are not saying the jury got the wrong verdict, we are saying we got the wrong jury," said defence lawyer Colin Adams.
Superior Court Justice Maureen Forestell indicated that she had no jurisdiction to consider the background checks after the jury had reached its verdict.
"The defence has raised issues of irregularities in jury selection. That is a matter for the Court of Appeal," the judge explained. Judge Forestell indicated that she intends to sentence Tuck to life in prison with no chance of parole for at least 12 years. There is still a dispute however as to whether he will receive pre-sentence credit for time in jail on an unrelated offence.
Tuck intends to appeal the verdict and the jury checks will be one of the grounds, said Mr. Adams.
The defence lawyer admitted that at the time of jury selection earlier this year, he probably should have asked questions about the lists. "I was remiss in that," said Mr. Adams. "This was the practice in Ontario, long, long, ago. I thought it had stopped," he said outside court.
Mr. Cavanagh declined to comment outside court, other than to stress again that the Crown not have any additional information about jurors than was provided to the defence.
The issue of background checks into potential jurors in Barrie and Windsor was first reported by the National Post this spring, more than two months after Tuck was convicted.
Ontario Attorney-General Chris Bentley responded that the secret checks would stop. The Ministry of the Attorney-General still maintains it can check for convictions for indictable offences, as long as the information is passed on to the defence.
Anyone convicted of an indictable offence in Ontario is ineligible to serve as a juror. But there is no provision in the provincial Juries Act that permits police to conduct any check into a juror's background and pass this information on to the Crown. Jury lists are the responsibility of the court sheriff, who is independent of the Crown.
The provincial privacy commissioner has launched an investigation into the background checks.
Mr. Bentley has refused calls for an outside agency with subpoena power to probe the impact on the criminal justice system in Ontario. He initially stated that he believed the background checks were limited to Simcoe County, where the main courthouse is in Barrie.
He later stated that an internal review indicated the probes into potential jurors were only in Simcoe County, Windsor and Thunder Bay."
Harold Levy...hlevy15@gmail.com;
