"According to Lafontaine the decision “seems to open the door to the investigation into the private lives of prospective juries at the instance of either the Crown or the defence. The parameters placed on the inquiries are that they relate to one of the potential grounds for challenging a juror, that there not be any direct or indirect communication with prospective jurors or members of their families, and that any information gathered by the investigation must be disclosed to the other party and produced to the trial judge.”
Lafontaine suggested there are still grey areas. “In this judgment, the Court of Appeal did not squarely address the defence concern about a potential imbalance resulting from the Crown‘s ready access to police databases,” he said. “The court also does not squarely address the role, in the assessment of the fairness of the jury selection process, of any unlawful conduct by the police and the Crown in accessing the list of jurors and the misuse of police databases.”"
REPORTER CRISTIN SCHMITZ; LAWYERS WEEKLY;
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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’ defence counsel Gregory Lafontaine contends the Ontario Court of Appeal’s ruling “seems to open the door” to the Crown and defence investigating prospective jurors’ private lives," the Lawyers Weekly story by reporter Cristin Schmitz published in the October 15, 2010 issue, under the heading, "Jury vetting storm heads for top court," begins.
"The Supreme Court will be asked to decide whether, and to what extent, it is proper for prosecutors to do background checks on potential jurors," the story continues.
'“Mr. Yumnu will be seeking leave to appeal,” Toronto defence counsel Gregory Lafontaine told The Lawyers Weekly after the Ontario Court of Appeal upheld the first degree murder convictions of his client, Ibrahim Yumnu and two co-accused in the slaying of two people involved in a drug-related dispute.
Before the trio’s jury selection began in Barrie, Ont. in Feb. 2005 the prosecutor did not inform defence counsel that police forces in Simcoe County were conducting background criminal record checks on prospective jurors or about the information obtained from those checks.
Section 4(b) of Ontario’s Juries Act declares ineligible for jury service anyone who has been convicted of an indictable offence and who has not been granted a pardon for that conviction.
In appealing their convictions four years later, the accused told the Court of Appeal that the prosecution’s investigation of the prospective jurors’ backgrounds was unlawful because police were asked to go beyond checking for criminal records to looking for any contact the prospective jurors might have had with law enforcement agencies.
According to the accused, the purpose of the background checks was to ensure that the jurors chosen were favourably disposed towards the prosecution, and not simply to weed out those who were ineligible or disqualified because they were previously convicted of serious offences.
Evidence showed that the Crown did seek information beyond the potential jurors’ criminal records, by suggesting to police “it would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror.”
However in dismissing the appeals Oct. 5, the Court of Appeal said that police did not supply such comments to the prosecution and “the circumstances of this case reveal no colourable use of legitimate criminal record checks of prospective jurors to obtain a favourable jury.”
The panel ruled that the Crown’s “overwhelming” case against the trio was not weakened by a less-than-perfect charge to the jury at the trial, nor by the Crown’s failure to disclose to the defence before the empanelling of the jury the information gathered about the criminal records of prospective jurors.
“The evidence upon which the jury rendered its verdict, to convict the appellants and to acquit the remaining co-accused, would not have varied a scintilla had disclosure of the result of the criminal record inquiries been made in a timely way,” Justice Watt wrote on behalf of Justices Karen Weiler and Eileen Gillese.
The decision marks the first time the Court of Appeal has pronounced on the contentious issue of jury vetting — a longstanding (and until recently unregulated) practice in some Ontario regions, which has spawned a recent spate of defence challenges to the court.
Justice Watt affirmed that the Crown may properly inquire into whether potential jurors have been convicted of serious crimes, but may not conduct free-ranging inquiries into other aspects of their backgrounds.
The Crown must also share the information it gleans with the defence, he stipulated.
Crown counsel Michal Fairburn of the Ontario Ministry of the Attorney General told The Lawyers Weekly she could not comment on the judgment. According to Lafontaine the decision “seems to open the door to the investigation into the private lives of prospective juries at the instance of either the Crown or the defence. The parameters placed on the inquiries are that they relate to one of the potential grounds for challenging a juror, that there not be any direct or indirect communication with prospective jurors or members of their families, and that any information gathered by the investigation must be disclosed to the other party and produced to the trial judge.”
Lafontaine suggested there are still grey areas. “In this judgment, the Court of Appeal did not squarely address the defence concern about a potential imbalance resulting from the Crown‘s ready access to police databases,” he said. “The court also does not squarely address the role, in the assessment of the fairness of the jury selection process, of any unlawful conduct by the police and the Crown in accessing the list of jurors and the misuse of police databases.”
Justice Watt noted that since determinations of jury duty ineligibility under s. 4(6) of the Juries Act, and disqualifications under s. 638(1)(c) of the Criminal Code, must be based on evidence, it is reasonable to conclude that both Crown and defence are entitled to adduce evidence to support a claim of ineligibility under s. 4(b), or a challenge for cause based on a prior unpardoned crime conviction under s. 638(1)(c).
The judge said that in express terms, or by necessary implication, the Rules of Professional Conduct permit inquiries about prospective jurors to ascertain any basis for challenge, and use of the results of those inquiries as the basis for a challenge.
“The Rules require disclosure of any information obtained to both the presiding judge and opposing counsel, and bar any direct or indirect communication with the prospective jurors or members of their family,” he said. “The scope of permitted inquiry would include investigations about criminal records. Impermissible inquiries contravene a fundamental tenet of the criminal justice system: R. v. Latimer, [1997] 1 S.C.R. 217.”
The court went on to distinguish its ruling from R. v. Hobbs, 2010 NSCA 62, decided last July, in which the Nova Scotia Court of Appeal granted an accused a new trial because the Crown failed to disclose to the defence criminal record background checks conducted on potential jurors. The lack of disclosure actually affected jury selection since prosecutors used the secret information they had about the jury pool to decide which jurors to challenge, while the defence exhausted all its peremptory challenges without the benefit of that information.
Ontario’s Ministry of the Attorney General issued a policy memo March 31, 2006 stipulating that “in choosing a jury, both Crown counsel and defence should have access to the same background information material. To that end, results of criminal record checks of potential jurors, if obtained by Crown counsel, should be disclosed to defence counsel. Crown counsel should not request police to undertake any further or other investigation into the list of jurors. Crown counsel should not request police to conduct out-of-court investigations into private aspects of potential jurors’ lives.”
An investigation last year by Ontario’s Privacy Commissioner revealed that for years jury lists were vetted by the Ontario Provincial Police, who sometimes commented on such private matters as the potential jurors’ drinking habits, mental health and domestic abuse problems. “Neighbour shot his cat,” said one comment, while another suggested the potential juror was “suicidal.”'
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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:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
