"IN ADDITION TO THE JURY VETTING, THE DEFENCE WAS TOLD IN JUNE THAT THE DAY AFTER THE VERDICT, THE JURY FOREMAN HAD A 10- TO 20-MINUTE TELEPHONE CONVERSATION WITH THE MOTHER OF THE VICTIM. THIS SUGGESTS A "REASONABLE APPREHENSION OF BIAS" BY THE JURY THAT COULD HAVE LED TO A TAINTED VERDICT, ARGUES THE DEFENCE."
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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"A young man convicted of first-degree murder in Barrie is asking a judge to throw out his conviction or order a new trial because prosecutors had vetted lists of potential jurors that were not disclosed to the defence," reporter Shannon Kari's story, published in yesterday's National Post begins, under the heading, "Killer seeks mistrial after jury vetted."
"The legal motion, which will be heard today in Superior Court in Barrie, is the latest example of the ongoing fallout from revelations that prosecutors in some parts of Ontario were using police to conduct background checks on potential jurors, contrary to the provincial Juries Act," the story continues.
"The 19-year-old man, who can be identified only as N.B. because he was a youth when he was charged in the March 2006 stabbing death of 14-year-old Brayton Bullock, was convicted of first-degree murder by a jury in February.
The Crown was seeking to sentence N.B. as an adult earlier this summer. The sentencing hearing was delayed after the National Post first reported in May that the improper background checks were conducted in at least two other cases in Barrie. It is now known the practice has gone on in Barrie for several years, where police were given jury lists and used confidential databases to access information and pass it on to the Crown before jury selection. The Ontario Privacy Commissioner launched an investigation this summer.
The probe was launched after it became known that jury vetting by the Crown and police was also common in Windsor. There were also reports of it happening in Thunder Bay and in one case this year in Toronto.
As well, a Superior Court judge in Windsor ordered the Crown last month to pay $95,000 in legal costs as a result of jury vetting that caused a mistrial four weeks into a murder trial.
In the case of N.B., jury selection began on Jan. 12 of this year. Unknown to defence lawyer Ben Fedunchak, the Crown received the jury lists nearly four weeks earlier. The Juries Act does not permit court staff to turn over the lists to Crown or defence until 10 days before jury selection. While someone convicted of an indictable offence may not serve, there is no provision in the Juries Act that permits the Crown and police to conduct background checks. Instead, jurors may be questioned in open court about their eligibility.
After receiving the lists for the trial of N.B., the Crown sent them to local police forces to conduct the checks. The vetted lists had notations such as "ok" or "possible" for possible criminal record, or "u/k dob" which meant that police could not determine the person's date of birth.
The vetted lists were not disclosed to Mr. Fedunchak until June 19, four months after his client was convicted.
The request to quash the verdict or grant a re-trial is a result of an "abuse of process" and "willful non-disclosure" by the Crown, argues Mr. Fedunchak in written arguments filed with the court.
In addition to the jury vetting, the defence was told in June that the day after the verdict, the jury foreman had a 10- to 20-minute telephone conversation with the mother of the victim. This suggests a "reasonable apprehension of bias" by the jury that could have led to a tainted verdict, argues the defence.
After a jury has issued its verdict, the trial judge generally does not have the right to take any action to alter that decision, the Ontario Court of Appeal said in a ruling five years ago.
Instead, any allegations of Crown or police misconduct raised by the defence are to be assessed by an appeal court. However, the Court of Appeal ruling involved a case where the defence knew about the alleged Crown misconduct during the trial, instead of months after it concluded.
Superior Court Justice Alfred Stong is expected to reserve his decision."
http://www.nationalpost.com/news/story.html?id=1970207
Harold Levy...hlevy15@gmail.com;
