"THE PRACTICE WAS A "TAINT" ON THE JUSTICE SYSTEM AND CONTRARY "TO THE VALUES WE SHARE AS CITIZENS OF A FREE AND DEMOCRATIC SOCIETY," SAID CAVOUKIAN. "CITIZENS SELECTED FOR JURY DUTY SHOULD BE THANKED, NOT BURDENED," SHE OBSERVED."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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"TORONTO - At least one in three Crown offices in Ontario has been conducting improper background checks of potential jurors, the provincial privacy commissioner revealed in a report issued Monday," reporter Shannon Kari's story, dated October 15, 2009, begins, under the heading " Privacy czar Cavoukian orders end to jury vetting" and the sub-heading "Ontario officials forbade checks, but they went on."
""We have exposed the roots of a widespread problem," said Ann Cavoukian, at a news conference following the release of the results of her office's investigation into jury vetting," the story continues.
"The background checks were conducted in more than 140 jury trials since March 2006. In about half of those trials, the information was not disclosed to the defence, raising the possibility of dozens of appeals in cases where the jury returned with a guilty verdict.
The practice was a "taint" on the justice system and contrary "to the values we share as citizens of a free and democratic society," said Cavoukian. "Citizens selected for jury duty should be thanked, not burdened," she observed.
The privacy commissioner issued a formal order for the Crown and police to stop gathering any personal information about potential jurors. As well, there are 22 recommendations in the report, including one that the provincial Jury Centre in London, Ont. be the only agency to conduct any checks, before jury lists are distributed to the courts.
The report indicated that 18 of 55 Crown attorney offices admitted that they were receiving background information about prospective jurors, until they were ordered to stop in May of this year by the attorney general, after the practice was first revealed by the National Post.
Anyone convicted of an indictable offence or previously sentenced to more than 12 months in jail, may not serve on a jury in Ontario.
The Ministry of the Attorney General has maintained that any past background checks were simply to confirm that an individual was eligible to serve on a jury.
The provincial Juries Act however, does not include any provisions that suggest it is up to the Crown or police to check eligibility. Jury selection in Canada is based on the honour system and it is the role of the independent court sheriff or the trial judge to address any questions about a potential juror.
The privacy commissioner report noted that even if the purpose was to check eligibility, all 18 Crown offices received more information than what might be allowed under the Juries Act or the Criminal Code.
The recommendations were welcomed by Ontario Attorney General Chris Bentley who previously referred to the broad background checks as "unacceptable" when the practice was made public.
"We wanted to know what happened. We will be moving forward," to implement the recommendations, suggested Bentley on Monday afternoon.
In many parts of the province where there was jury vetting, the information was not turned over to the defence, even though the Crown is required by law to disclose any relevant information in a criminal proceeding.
The background checks in Barrie, north of Toronto, have been in place at least since 1996. As recently as this summer, the director of Crown operations in the region that includes Barrie, defended the jury vetting and said it was not improper.
Bentley declined to state Monday whether anyone in his ministry will be disciplined. He said any sanctions are a matter for the courts or the body that regulates lawyers in Ontario.
Peter Kormos, justice critic for the NDP in Ontario, called again for an independent inquiry to probe the conduct of the Ministry of the Attorney General, separate from the privacy issues raised by the jury vetting. "This was interference with the administration of justice, yet nobody seems to be accepting responsibility for it," said Kormos.
The focus of the privacy commissioner's investigation was on jury vetting since March 2006, when the Ministry of the Attorney General issued a directive to all Crown attorneys. Background checks were only to check for criminal records and all information was to be disclosed to the defence, the memo stated.
The jury vetting issue though, was discussed internally by senior officials in the ministry as far back as 1993. At that time, the head Crown attorney in Toronto sent a memo to other senior officials, suggesting that the practice had to stop."
The story can be found at:
www.nationalpost.com/related/links/story.html?id=2067446
Harold Levy...hlevy15@gmail.com;
