"THE CASE, SET TO BE HEARD BY THE ONTARIO COURT OF APPEAL NEXT MONTH, CHALLENGES THE CROWN'S SYSTEM OF ENLISTING POLICE AGENCIES TO VET JURIES, A PRACTICE BANNED BY THE PROVINCE OF ONTARIO AFTER A SERIES OF NATIONAL POST REPORTS. JURY VETTING IS AT THE HEART OF DOCUMENTS FILED IN THE APPEAL COURT THIS WEEK BY LAWYERS REPRESENTING DAVEY, WHO IS SERVING A LIFE SENTENCE. "THE CROWN ILLEGALLY OBTAINED INFORMATION ABOUT PROSPECTIVE JURORS, DID NOT DISCLOSE THAT INFORMATION TO THE DEFENCE AND THEN USED THAT INFORMATION IN SELECTING THE JURY," WRITE LAWYERS CATRIONA VERNER AND CHRISTOPHER HICKS. THE PRACTICE VIOLATED THE JURIES ACT, SEVEN SECTIONS OF PROVINCIAL PRIVACY LEGISLATION AND INFRINGED THE RIGHT TO A FAIR TRIAL, THEY STATE."
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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 -- The jury deciding the fate of Troy Davey deliberated for fewer than 12 hours before finding him guilty of first-degree murder in the 2004 killing of an Ontario police officer," the National Post story by reporter Shannon Kari, published earlier today under the heading, "Cop killer appeals over jury vetting," begins.
"Davey, then 18, lay in wait for Constable Chris Garrett after placing a fake 911 call and slashed his throat," the story continues.
"More than three years after the jury in Cobourg returned with its verdict, the conviction could be overturned as a result of "illegal" probes of potential jurors by police.
The case, set to be heard by the Ontario Court of Appeal next month, challenges the Crown's system of enlisting police agencies to vet juries, a practice banned by the province of Ontario after a series of National Post reports.
Jury vetting is at the heart of documents filed in the appeal court this week by lawyers representing Davey, who is serving a life sentence.
"The Crown illegally obtained information about prospective jurors, did not disclose that information to the defence and then used that information in selecting the jury," write lawyers Catriona Verner and Christopher Hicks.
The practice violated the Juries Act, seven sections of provincial privacy legislation and infringed the right to a fair trial, they state.
Three weeks before jury selection was scheduled to begin, the list of the 400 people in the jury pool was handed over by the Crown to the Cobourg and Port Hope police and a local Ontario Provincial Police detachment. The Crown asked police for their "opinions" on the "suitability" of the potential jurors, according to documents filed in the Davey appeal. The "suitability" was whether or not someone was considered to be "partial" to the Crown.
The jury lists were returned with notations such as "good" or "ok" or "no" next to the names of prospective jurors and the information was not disclosed to the defence.
At least five potential jurors, with "good" next to their names, had ties to the police.
The conduct was described as "shocking" by Sanjeev Anand, a criminal law professor at the University of Alberta and former prosecutor.
"If the allegations are true, they were trying to get a stacked jury. The fact that police were directed in this way is so contrary to the role of the Crown prosecutor. It strikes at the core of our justice system, the right to an impartial jury," said Mr. Anand.
Given that it was a high-profile case in the community there was even more reason "to ensure that everything was above board," he added.
The Davey case marks the first time that the Crown has admitted that it vetted potential jurors to help in obtaining a pro prosecution jury.
In other cases the Crown insisted the probes were to ensure citizens were eligible as jurors.
The province has since put a halt to the practice and amended the Juries Act to strengthen privacy protections, following an investigation by the Ontario Privacy Commissioner.
In a landmark case about jury selection in 1991, the Supreme Court of Canada outlined the core principles. "The modern jury was not meant to be a tool in the hands of either the Crown or the accused," said the court. "It was envisioned as a representative cross-section of society, honestly and fairly chosen."
Police in Cobourg were routinely asked to use their "personal knowledge" to help the Crown. They have denied using confidential police databases to find information.
The Davey appeal is scheduled to be heard late next month. The Crown is expected to file its written arguments within the next week. About a dozen cases before the Ontario Court of Appeal involve improper jury checks by police."
The story can be found at:
http://www.nationalpost.com/news/story.html?id=3075171
Harold Levy...hlevy15@gmail.com;
