Tuesday, October 5, 2010


"The appeal court agreed that these database checks should have been disclosed immediately to the defence. However, during the trial, it came out that criminal record checks had been conducted and Judge Watt faulted the defence lawyers for not taking steps to address this issue. “In this case, the failure of counsel at trial to pursue disclosure assumes a place of prominence,” wrote Judge Watt. The decision issued Tuesday is the first of a dozen cases before the Ontario Court of Appeal where improper jury vetting is a key issue."



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;


"The Ontario Court of Appeal has refused to order a new trial for three men convicted of murder in a marijuana grow-op dispute, in a case where police conducted secret background checks of potential jurors and supplied the information only to the prosecution,"
the National Post story by reporter Shannon Keri published earlier today under the heading, "Court of Appeal refuses to order new trial in jury vetting case," begins.

"The ruling issued Tuesday that upheld the first-degree murder convictions of Ibrahim Yumnu, Vinicio Cardoso and Tung Chi Duong, is the first time the Court of Appeal has addressed the jury vetting issue since it was uncovered by the National Post in May 2009,"
the story continues.

"“Wide-ranging inquiries to equip the prosecutor with the wherewithal to select jurors favourably disposed toward the prosecution,” cannot be justified, wrote Justice David Watt on behalf of the three-judge panel. The specific circumstances of the Yumnu case though and the background checks conducted by police in Barrie for the Crown, were not serious enough to order a new trial, the court said.

The defendants were convicted by a jury after a lengthy trial in 2005 of the execution-style killings of a former associate and his wife in a dispute over their drug trafficking operations.

The Crown case was described as “overwhelming” by Judge Watt. Even if the information obtained about potential jurors from confidential databases had been turned over to the defence, the verdict “would not have varied a scintilla,” said Judge Watt, with Justices Eileen Gillese and Karen Weiler concurring.
The three-judge panel heard that police in the Barrie-area were given the jury pool lists well in advance of what was permitted under the provincial Juries Act. At the time, anyone with a conviction for an indictable (serious) offence, was not permitted to serve as a juror. There was no provision that permitted investigations into the background of potential jurors.

Police conducted criminal record searches on nearly 800 people in the Barrie-area, using transportation ministry databases to obtain their dates of birth. The Crown practice was to do this in every case in Barrie and police were asked to find any “disreputable persons” who the prosecution would not want as a juror. No potential juror who was subjected to a database search in the Yumnu case, was found to be ineligible,” the court heard.

The appeal court agreed that these database checks should have been disclosed immediately to the defence. However, during the trial, it came out that criminal record checks had been conducted and Judge Watt faulted the defence lawyers for not taking steps to address this issue. “In this case, the failure of counsel at trial to pursue disclosure assumes a place of prominence,” wrote Judge Watt.

The decision issued Tuesday is the first of a dozen cases before the Ontario Court of Appeal where improper jury vetting is a key issue.

The background checks revealed by the National Post last year, led to an investigation by the Ontario Privacy Commissioner, which disclosed that one-in-three Crown offices in the province had engaged in improper jury vetting. The Ontario government ordered a halt to the practice and amended the Juries Act to put measures in place to protect the privacy of potential

The federal prosecution service and the Crown in Nova Scotia also amended their policy manuals last year to ensure that if any background checks are conducted of potential jurors, the practice is fully disclosed."


The story can be found at:



COMMENTARY: JAMES C. MORTON: JURY-VETTING DOES NOT LEAD TO NEW TRIAL; (James C. Morton describes himself as a lawyer, law professor and media commentator who is located in North York, Ontario.)

"It is common to hear complaints that the Courts are soft on crime and allow criminals to go free because of procedural errors by police or prosecutors. Such complaints are misfounded – Canadian courts are focused on substance. This week’s Ontario Court of Appeal decision in the Yumnu (“jury vetting”) case makes that abundantly clear.

On December 22, 2005 Ibrahim Yumnu and two others were convicted of first degree murder and conspiracy after a nine month jury trial in Barrie, Ontario. Yumnu and the others appealed their convictions; it was a straightforward appeal until, during the hearing of the appeal, an allegation of jury vetting was raised.

Jury vetting occurs when the Crown has special additional information, unknown to the defence, about jurors. This may allow the Crown to choose a jury less inclined to acquit. The Attorney General has repeated forbidden the practice. In Yumnu's case the Crown received the jury list at least a month before it was supposed to. The list was then circulated to police for review.

A secretary for the senior Crown in Barrie wrote to six OPP detachments in Simcoe County, as well as three other police services saying:

"Please check the attached jury panel list, for the persons listed in your locality and advise if any of them have criminal records. It would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror. All we can ask is that you do your best considering the lack of information available to us. Please relay the information by telephone."

Despite the scope of the Crown Attorney’s request, in the end, the police inquiries were limited to as to whether a prospective juror had a criminal record. It is proper to determine if a juror has a criminal record.

The Juries Act requires the list of names to be "under lock and key" until 10 days before a panel of potential jurors is to appear in court. The letter with the "attached jury panel list" was sent to police six weeks before jury selection began for Yumnu and his two co-accused-- more than four weeks before Crown or defence were supposed to be permitted to see the jury rolls. Nevertheless, even though the Crown seems to have had the jury list early, there was no significant impact on the jury process because only criminal background checks were performed. Such checks are proper and could have been performed within the ten day period had the Crown not received the list early.

In deciding if the trial should be set aside the Court of Appeal faced a difficult task. On the one hand, the reputation of justice depends on the public seeing that trials are fair – but on the other hand, persons convicted of dreadful crimes should not be allowed to go free because of procedural failures.

A basic principle of Canadian justice is that the person deciding a case is impartial. The Supreme Court has stressed that the process of picking a jury is aimed at selecting an impartial jury, not one favourable to the Crown or defence. Jury vetting puts that principle aside and risks bringing the administration of justice into disrepute. As the Court wrote: “Essential to the overall fairness of a criminal jury trial is a jury that is and appears impartial in their determination of the adequacy of the prosecutor’s proof. Neither the composition nor the conduct of the jury should give rise to a reasonable apprehension of bias. …To sustain a claim of a lack of trial fairness based on a reasonable apprehension of bias, the composition of the jury must be such that it leaves the well-informed observer with a reasonable apprehension of bias in favour of the prosecution.”

That said, the Court concluded that here, no actual prejudice resulted from the Crown’s request for review of records related to potential jurors. To demonstrate an impairment of the right to make full answer and defence, an accused must establish a reasonable possibility that the failure affected the outcome at trial or the overall fairness of the trial process. Here no such failure was shown and the trial decision stood."

(R. v. Yumnu, 2010 ONCA 637);

This commentary can be found at:



PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:


For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:


Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;