Wednesday, August 5, 2009


"In this issue, both Legal Ethics columnist Philip Slayton and incoming Canadian Bar Association president Kevin Carroll touch on the explosive issue of police and prosecutors doing background checks on potential jurors," begins Canadian Lawyer's editorial, by editor Gail Cohen, under the heading, "Disbar those bad apples."

"At least two mistrials in Ontario were declared once the irregular, perhaps even illegal, practice came to light," the editorial continues;

"Ontario’s privacy commissioner and Attorney General Chris Bentley jointly have sent out detailed questionnaires to all 54 Crown prosecution offices in the province “to determine the nature and extent of this practice.” The Ontario Criminal Lawyers’ Association has also demanded that Bentley’s office provide “full disclosure of all information in the ministry’s possession relating to any prior jury trials in this province in which this practice is known to have occurred.”

Chances are there are more cases in which this has occurred than the few that have become public. It’s not just a question of whether the privacy of jurors has been breached but that secret background checks on the jury pool are essentially illegal under the Ontario Juries Act.

The implications of this practice do more than simply bring the administration of justice into disrepute, it will be costly on many levels. If it’s found to be widespread, there will be a wave of defence counsel filing appeals, which will take valuable court time. Likely there will be civil lawsuits filed against police and prosecutors. Will it be the individuals involved that are going to pay damages if they’re found culpable? Unlikely. Taxpayers will, once again, have to foot the bill.

The AG must come down hard on prosecutors who have participated in this folly: any Crowns who may have been involved should be reported to the law society. It, in turn, must institute disciplinary proceedings. Those Crowns found to have been involved should be disbarred. It would send a message both to other Crowns and to the public that the justice system has integrity — and don’t mess with it.


Phillip Slayton's column, runs under the heading, "The system has been compromised:
Legal Ethics;"

"It turns out Ontario police have been conducting background checks on prospective jurors," the column begins;

"Don’t confuse this with traditional jury vetting, when both prosecution and defence publicly question, and perhaps challenge, prospective jurors in open court," it continues;

"What happened in Ontario is the secret gathering by police of information from confidential computer databases. This information was then handed over to Crown prosecutors, who apparently had asked for it in the first place. Prosecutors used this stuff to identify and pick jurors who might be more inclined to convict, and to weed out those who might be sympathetic to the accused. To add injury to insult, when the story came to light, the Crown tried to suppress it by seeking a publication ban. It’s all reminiscent of the stasi, East Germany’s notorious secret police.

This is a big deal. It’s an abuse of state power. It brings the administration of justice into question. Police and lawyers may have broken the law, and lawyers may be in breach of their own rules of professional conduct. Criminal defence lawyers, appalled by the whole thing, have started opening up old files to see if appeals are possible. Expect an avalanche of these appeals, at huge cost to the heavily burdened taxpayer. We should all be mighty angry about what has happened. What were the police and Crown attorneys thinking?

In June, a Barrie, Ont., judge scrapped two lists of 120 potential jurors when secret background checks on prospective jurors became known. Handwritten annotations next to some names on the lists noted Highway Traffic Act convictions, mental health problems, and the like. In some cases, the notes bordered on farce; “neighbour shot his cat” was one. Other names had “OK” written next to them. Did that mean they were likely to decide in the Crown’s favour? One note next to a name was, “dislikes police.”

But all right, it was only Barrie. An isolated incident, perhaps. But then, a few days later, a judge in Windsor declared a mistrial in a murder case two months after it had begun because he discovered that police and Crowns had been up to the same thing. The Windsor police chief admitted the practice was “routine.” Almost immediately after that, it turned out that background checks on prospective jurors had also been conducted in Thunder Bay. Where else has it happened? At press time that was it but, no doubt we’ll find out soon enough. There are 54 Crown offices in Ontario.

Ontario Attorney General Chris Bentley condemned the practice, claiming that it was not a “widespread issue” (how wide would it have to be before it could be considered “widespread?”). He ordered a provincial probe. Apparently a March 2006 directive from then-attorney general Michael Bryant had said only criminal record checks of prospective jurors could be conducted and all information must be shared with the defence; everyone seems to have forgotten about this. OPP commissioner Julian Fantino has made a statement referring to “the practice of some of our OPP detachments of conducting background checks on potential jurors at the requests of local Crown attorneys.” Fantino ordered the practice stopped.

Ontario’s Privacy Commissioner Ann Cavoukian began an investigation to see if privacy laws had been broken. A statement from her office said: “The focus of our investigation will be whether this was a proper use of police databases and whether the privacy rights of potential jurors have been compromised. . . . We will determine whether any provisions of Ontario’s three privacy laws: the Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act, and the Personal Health Information Protection Act, were breached.”

But Brian Beamish, assistant privacy commissioner, admitted the privacy commissioner lacks subpoena powers on anything other than health-related information. She can order bodies to stop collecting information and destroy any information already collected, but can’t compel them to participate or co-operate in an investigation.

Let’s be clear about one thing: background checks of potential jurors are illegal. Several sections of the Ontario Juries Act make plain that jury lists shall contain only the name, place of residence, and occupation of those on the list. And s. 20 of the act says: “The jury roll and every list containing the names of the jury drafted for any panel shall be kept under lock and key by the sheriff, and except in so far as may be necessary in order to prepare the panel lists, and serve the jury summons, shall not be disclosed . . . until ten days before the sittings of the court for which the panel has been drafted. . . .” Chief Justice Beverley McLachlin, giving judgment for a unanimous Supreme Court of Canada, clearly and definitively described the jury selection process in the 2001 case of R. v. Find. She stressed the primacy of jury impartiality.

Perhaps Crown attorneys who were involved in all this should also worry about law society disciplinary action. Rule 4.06(1) of Ontario’s Rules of Professional Conduct says: “A lawyer shall encourage public respect for and try to improve the administration of justice.”

Commentary on Rule 4.05(1) says, “a lawyer should not conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation of either a member of the jury panel or a juror.” It will be interesting to see if the law society steps up to the plate on this one. It may be a decisive test of the regulatory body.

I’m not a great fan of judicial commissions of inquiry. So often, they are used by the powers that be to shunt problems aside and silence critics. But, in this case, we need one badly. The Ontario Ministry of the Attorney General is severely compromised. So are the police. The privacy commissioner is toothless. Only a judge can get to the bottom of this horrible mess."

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm.