"GIVEN THE LACK OF STANDING OF POTENTIAL JURORS IN THE SYSTEM AND THE WIDESPREAD NATURE OF THE VIOLATIONS, A PUBLIC INQUIRY OR INDEPENDENT INVESTIGATION THAT FULLY EXPLORES THE INCIDENCE OF THE VIOLATIONS AND THE APPROPRIATE PROTECTIONS FOR THE PUBLIC IS NECESSARY TO RESTORE PUBLIC CONFIDENCE IN THE SYSTEM."
DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS;
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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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This Blog recently reported on an interesting "brief" on secret jury vetting published by the David Asper Centre For Constitutional Rights at the University of Toronto which concluded that, "the prospect of intrusive background checks will only worsen negative public sentiment and may encourage more people to avoid their civic obligations."
The brief examines an investigation into Ontario's "jurygate" scandal which is currently being conducted by the province's Information and Privacy Commissioner.
The brief explains by way of "background" that:
"The David Asper Centre for Constitutional Rights (“the Centre”) has been invited to provide our views on the legal issues arising from the purported conduct of background checks on prospective jurors in criminal trials within the Province of Ontario. According to media reports, the prospective juror background checks were discovered by a defence lawyer who had heard that a prosecutor in an unrelated trial had admitted that the Crown had sought police assistance to identify prospective jurors with a criminal record or “other relevant occurrences in their lives relative to their ability to be appropriate jurors”. His subsequent investigation revealed documents written on behalf of the Crown to OPP detachments and other police services requesting comments about “disreputable persons we would not want as jurors”. Though once seen as limited to the Barrie area, the allegations have been raised in at least five separate trials in the Barrie, Windsor, Thunder Bay and Toronto areas. The Information and Privacy Commissioner has initiated an inquiry, with the assistance of the Ministry of the Attorney General, which will include questionnaires, investigative teams and briefs solicited from organizations.
Given its focus on constitutional rights, the Centre’s submissions will focus on analysis and recommendations in two key areas. First, we will present an overview of the impact of background checks on the Charter rights of jurors and the accused. Second, we will examine the potential broader systemic implications of the allegations, in respect of access to justice principles as they relate to the constitutional rights of those affected."
An "executive summary" reads as follows:
"Jurors are innocent members of the public in a criminal trial. They have not been charged with a crime. Nor did they consent to invasive background checks conducted by state agents, which disclosed private information about their mental illnesses and family problems to prosecutors. The widespread allegations of background checks conducted by police and utilized by Crown Attorneys to vet potential jurors threaten to undermine the fundamental tenets of our justice system if they are not properly addressed. Given its mandate, the submissions of the David Asper Centre for Constitutional Rights focus on the breaches of the jurors’ Charter rights and their broader systemic implications, with a particular emphasis on access to justice principles.
The Charter Rights of Jurors
S. 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure”. Following the Tessling criteria, the jurors had an objectively reasonable expectation of privacy in the contents of their police files. The fact that the police, a third party, had possession of the information does not diminish this expectation. When the subject has a reasonable expectation of privacy, a warrantless search is prima facie unreasonable. The Court has made exceptions for searches authorized by a reasonable law and conducted in a reasonable manner. But the Juries Act does not expressly authorize the confirmation of juror eligibility through background checks. While sections 38(2) and 42(1)(d) of FIPPA may generally authorize obtaining further information about jurors, all reasonable searches must be consistent with Charter principles. The prosecutors’ actions clearly went beyond what was necessary to determine eligibility. Moreover, the additional information was not legally relevant to the jury selection process. The searches were a fishing expedition in which the Crown searched all potential jurors with no grounds for reasonable suspicion. The searches were not reasonably conducted and therefore infringed the jurors’ s. 8 rights.
The Charter Rights of the Accused
The Crown has a general legal obligation to disclose all relevant information to the accused. The decision of some prosecutors to withhold the information about prospective jurors, which was pertinent to the defence’s case, is a serious breach of legal ethics and may infringe the accused’s right to a fair hearing under s. 11(d). The purported widespread nature of the practice threatens the integrity of countless past jury trials. This aspect of the conduct of prosecutors is admittedly beyond the scope of the Privacy Commissioner’s mandate and thus necessitates toward a broader independent investigation or public inquiry.
Systemic Implications
Potentially, the rights of thousands of prospective jurors have been breached. This gives rise to a significant access to justice problem. Many jurors are unaware that their rights have been infringed. Even if they are aware, jurors have no standing in the criminal proceeding and no access to remedies. Furthermore, even where procedures are available for jurors to challenge privacy breaches, the U.S. experience indicates that extremely few jurors are willing or able to initiate separate litigation. The avoidance of jury duty by citizens is pervasive and well documented. The prospect of intrusive background checks will only worsen negative public sentiment and may encourage more people to elude their civic obligations. This is likely to exacerbate existing concerns about jury representativeness, with particular regard to the underrepresentation of racialized and Aboriginal people.
The Court has stated that fairness is the “guiding principle of justice and the hallmark of criminal trial”. There is no doubt that the prosecutors’ actions were contrary to Crown policy and longstanding Supreme Court jurisprudence. These Charter breaches may bring the administration of justice into serious disrepute. On the basis of our analysis, we conclude that a full public inquiry or an independent investigation with a broader mandate is crucial to prevent the broader implications of these infringements from materializing.
Summary of Conclusions and Recommendations
1. The interpretation of the legislation respecting the legality of the background searches must take into consideration the Charter rights of the individuals affected. Given the preceding analysis and assuming the facts as set out in the letter of request, we conclude that there have been Charter violations in respect of the privacy rights of prospective jurors.
2. We also conclude that there are serious implications for the public’s perception of the administration of justice which could seriously impact the willingness of people to serve on jury duty which already imposes significant hardship on individuals.
3. Given the lack of standing of potential jurors in the system and the widespread nature of the violations, a public inquiry or independent investigation that fully explores the incidence of the violations and the appropriate protections for the public is necessary to restore public confidence in the system.
The full version of the brief - with footnotes - can be found at the following address:
http://www.aspercentre.ca/Assets/Privacy+Commission+Brief.pdf
Harold Levy...hlevy15@gmail.com;