JURYGATE; BRITISH COLUMBIA; OPPOSITION CRITIC BLASTS SECRET JURY VETTING BY PROSECUTORS IN HIS PROVINCE BUT DOES NOT CALL FOR PUBLIC INQUIRY;

"“IT’S A VERY TROUBLING STORY. I’VE NOT HEARD OF IT BEING DONE BEFORE, SO THIS COMES AS A BIT OF A SURPRISE,” SAID KROG. “I THINK THAT THE JUDGE’S REACTION WAS THE APPROPRIATE ONE.”

THE OPPOSITION CRITIC IS A LAWYER BY PROFESSION, ALTHOUGH HIS PRACTICE BEFORE POLITICS WAS IN THE FIELD OF FAMILY LAW.

“THIS IS THE ONLY INSTANCE (OF JURY VETTING) THAT I’M AWARE OF,” KROG NOTED. “I SUSPECT THIS MAY BE THE LAST YOU’RE GOING TO HEAR OF THIS KIND OF ISSUE. A CAPABLE, PROFESSIONAL CROWN PROPERLY INSTRUCTED IS NOT GOING TO ENGAGE IN THIS.”"

REPORTER JOE FRIES; KELOWNA.COM;

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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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British Columbia's Justice Critic has spoken out against jury vetting, Kelowna.com reports.

"No public inquiry is necessary to investigate a report of jury vetting in Kelowna, but the B.C. Criminal Justice Branch must make it clear that this was an isolated incident, says NDP justice critic Leonard Krog," reporter Joe Friese's September 17, 2009 story begins, under the heading, "Jury vetting is ‘not what we do in British Columbia’: NDP critic."

"“I think it’s most important to articulate a clear policy that says this is not what we do in British Columbia,” Krog told Kelowna.com in response to recent reports of a jury panel that was sent home after a judge learned the Crown prosecutor on the case had looked into the backgrounds of potential jurors through a database of criminals," the story continues.

"“It’s a very troubling story. I’ve not heard of it being done before, so this comes as a bit of a surprise,” said Krog. “I think that the judge’s reaction was the appropriate one.”

The Opposition critic is a lawyer by profession, although his practice before politics was in the field of family law.

“This is the only instance (of jury vetting) that I’m aware of,” Krog noted. “I suspect this may be the last you’re going to hear of this kind of issue. A capable, professional Crown properly instructed is not going to engage in this.”

Kelowna.com asked for Attorney General Mike de Jong to comment on the matter, but was told he thought it more appropriate for the Criminal Justice Branch to handle the query. Spokesman Neil MacKenzie confirmed in an e-mail that the Criminal Justice Branch “has examined this situation and is taking steps to ensure that all prosecutors are aware of the role of the Crown in relation to this type of check.”

The provincial CORNET database, which tracks offenders in and out of custody, was used in this case.

“Conducting CORNET checks of those on a jury list is not a standard practice of Crown Counsel,” MacKenzie noted. ”The Criminal Justice Branch will co-operate to the fullest extent possible in dealing with any inquiries from the Office of the Information and Privacy Commissioner in connection with this case.”

Jury lists are compiled by local sheriffs and provided to lawyers from both sides in advance of a trial. It would be naive to think that names are never at least given a cursory check using commonly available tools, Krog said.

“We can’t stop people Googling…. You’re not going to stop that. But in terms of getting access to information of a private nature, that’s just not right,” he said. ”You should not give any more weight on the scales of justice to the Crown side that aren’t available to the defence. And clearly, I don’t think jury vetting should be practised on either side.”

CORNET use is governed by electronic access agreements. Kelowna.com was told it had to file a freedom of information request to look at one of the documents. The request is on its way."

The article can be found at:

http://www.kelowna.com/2009/09/17/jury-vetting-is-not-what-we-do-in-british-columbia-ndp-critic/

Harold Levy...hlevy15@gmail.com

UP-DATE; JURYGATE; JURY VETTING CONTROVERSY SPREADS BEYOND ONTARIO TO BRITISH COLUMBIA; KELOWNA.COM REPORTS; JUDGE DISMISSES PANEL;

"IT WAS DISCLOSED THAT THE JURORS’ NAMES HAD BEEN RUN THROUGH THE CORNET DATABASE CRIMINAL TRACKING SYSTEM, ACCESSIBLE BY B.C. CORRECTIONS STAFF AND CROWN COUNSELLORS. IT ALSO RAISES CONCERNS OF TRIAL FAIRNESS SINCE DEFENCE COUNSEL ON THE MATTER DIDN’T RECEIVE SUFFICIENT NOTICE OF THE VETTING."

REPORTER JOE FRIES; KELOWNA.COM;

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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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The Kelowna.com report by reporter Joe Fries ran Friday under the heading, "Potential Kelowna jurors dismissed after subjected to criminal background checks," and the sub-headings, "A police officer who shot Mark Pauls isn't due in court until November, although details of the incident came out on Wednesday," and "The backgrounds of potential jurors drawn from the population at random were subjected to background checks."

"Criminal justice authorities went snooping into the backgrounds of as many as 120 Kelowna residents this month for the sole reason of being randomly selected as potential jurors in a criminal trial, Kelowna.com has learned," the story began.

"The B.C. Supreme Court justice dismissed the entire panel of jurors when he learned of the practice and its late disclosure to the defence lawyer just days before the trial," the story continued.

"The potential jurists had been summoned to hear a criminal case set for trial next week. It could have resulted in a significant delay for the trial, however Justice Lance Bernard mitigated the harm by calling in a different jury pool that was also in the courthouse to hear a civil matter.

It was disclosed that the jurors’ names had been run through the CORNET database criminal tracking system, accessible by B.C. Corrections staff and Crown counsellors. It also raises concerns of trial fairness since defence counsel on the matter didn’t receive sufficient notice of the vetting.

On Wednesday, Crown counsellor David Ruse, who is prosecuting the case, declined comment as the matter is still before the court. However, the Crown is not specifically barred from using CORNET to inspect a jury panel ahead of time, says a spokesperson for the Criminal Justice Branch of the Attorney-General’s office.

“The Criminal Justice Branch doesn’t have any specific policy relating to jury privacy, but it’s not the Crown’s practice to conduct inappropriate juror screening,” said Neil MacKenzie, spokesman for the branch. ”I’m still looking into the circumstances on this.”

MacKenzie said Crown lawyers typically use CORNET to prepare for bail or sentencing hearings, at which an accused’s criminal record is an important consideration. Officially, lawyers are permitted to know only three things about a potential juror: name, address and occupation. However, since lists of potential jurors for a matter are sent to lawyers in advance, it’s not unreasonable to expect they may do a cursory background check of the people who will decide the case.

But Crown lawyers gain an unfair advantage by screening jurors using the CORNET system, which they can access and defence lawyers can’t. It remains unclear just how much information is available. Sierra Systems, which developed the technology, notes on its website that CORNET “provides a central provincial repository of data about all offenders (both adult and youth) in provincial corrections programs.”

“It tracks all offender activity from admission through to discharge and re-entry into the community. CORNET also allows related agencies (such as the provincial releasing authority, health services, police, courts, and crown prosecutors) to share and re-use information, as appropriate, in accordance with inter-agency policies and security regulations.”

Jury vetting in Canada took on prominence earlier this year in both civil and criminal trials. In Ontario, up to 11 cases have been identified where Crown lawyers used police records to check out potential jurors, thereby providing possible grounds for appeal, according to a report published in Law Times. Here in B.C., ICBC was forced to report itself to the privacy commissioner and write apology letters to jurors in a civil trial after it was revealed the agency checked the claims history of two jurors deciding an ICBC case.

Using CORNET to prepare for jury selection though, is just not fair in the trail at hand, one Kelowna lawyer said.

“All that we are permitted to do is make sort of general inquiries,” explained Joe Gordon, a criminal defence lawyer. “We have no ability to investigate people in terms of whether or not they have criminal records, that sort of thing.”

Gordon has never heard of a jury being vetted using the CORNET system, but doesn’t think such research would be kept secret.

“Most Crowns, if they do such a thing, they would share it with the defence, but I would be very uncomfortable having access to that information, because I think a judge would frown upon it,” he said.

Jurists also have a reasonable expectation to privacy, Gordon added. B.C.’s Office of the Information and Privacy Commissioner was unaware of the matter in Kelowna, but an official said she would look into it. It’s not clear if the jurors were told of the background checks or the reason for their dismissal.

Jury panels are often composed of 110 to 120 people. The panels are drawn by sheriffs from the voters list. Anyone convicted of, or charged with a crime in the past five years that is punishable by a $2,000 fine or one year in jail is ineligible for jury duty, unless a pardon was issued.


The story can be found at:

http://www.kelowna.com/2009/09/11/potential-kelowna-jurors-dismissed-after-subjected-to-criminal-background-checks/

Harold Levy...hlevy15@gmail.com