"THE SENTENCING HEARING FOR N.B. WILL BEGIN ON SEPTEMBER 28. THE CROWN IS ASKING JUDGE STONG TO SENTENCE THE DEFENDANT AS AN ADULT.
THE COURT OF APPEAL IS EXPECTED TO HEAR ARGUMENTS ABOUT THE JURY BACKGROUND CHECKS FOR THE FIRST TIME THIS FALL IN THE APPEAL OF IBRAHIM YUMNU, WHO WAS CONVICTED OF MURDER BY A JURY IN BARRIE IN 2005."
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 Superior Court judge in Barrie has declined to take any action as a result of improper background checks of potential jurors that were conducted by police for the Crown in a first-degree murder trial," reporter Shannon Kari's Sept. 8, 2009, story begins, under the headline, "No jurisdiction to rule in jury-vetting case: judge."
"Justice Alfred Stong has ruled that he did not have jurisdiction to set aside the verdict or order a new trial as a result of the jury vetting," the story continues;
"The defendant, who can be identified only as N.B. because he was 16 years old when he was arrested in the 2006 stabbing death of 14-year-old Brayton Bullock, was convicted this year of first-degree murder.
Nearly a month before the trial the list of potential jurors was sent to local police forces to use confidential databases to conduct background checks. The information was then passed on to the Crown and it was not disclosed to the defence.
The background checks, which have been conducted in Barrie for several years, are contrary to the provisions of the Juries Act and a 2006 directive sent by the Ministry of the Attorney-General to all Crown attorneys in Ontario.
The province's chief prosecutor issued another memo this spring reminding Crown attorneys not to ask for secret background checks.
The jury vetting was disclosed to the lawyer for N.B. in June, a few weeks before the sentencing hearing was supposed to start and four months after the jury returned with its guilty verdict.
Judge Stong indicated that he was bound by previous rulings of the Ontario Court of Appeal.
Unless there is evidence of entrapment of a defendant by the state, a jury's verdict "cannot be altered, except on appeal," the Court of Appeal ruled in 2004.
Defence lawyer Ben Fedunchak said outside court that while the case now proceeds to the sentencing hearing, the jury-vetting issue will be heard eventually.
"This will be a primary ground of appeal," Mr. Fedunchak said.
If the judge had decided he could hear arguments about the impact of the jury vetting, the Crown was prepared to argue that its actions were proper. The Crown office in Barrie maintains that background checks were appropriate because anyone convicted of an indictable offence cannot serve on a jury.
There is no provision however in the Juries Act, which permits the Crown or police to check for eligibility.
The sentencing hearing for N.B. will begin on September 28. The Crown is asking Judge Stong to sentence the defendant as an adult.
The Court of Appeal is expected to hear arguments about the jury background checks for the first time this fall in the appeal of Ibrahim Yumnu, who was convicted of murder by a jury in Barrie in 2005."
The story can be found at:
http://www.nationalpost.com/news/story.html?id=1973550
Harold Levy...hlevy15@gmail.com;
