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Commissioner orders an end to Crown privacy violations

|Written By Robert Todd

In the wake of the privacy commissioner’s scathing report last week on jury-vetting practices by Crown prosecutors, at least one group is calling for a broader inquiry.

“We would like to see a broader investigation with respect to the trial fairness aspect of this issue that probes more deeply into not just what has happened, but the broader implications of what has happened for particular trials and the justice system writ large,” says Graeme Norton, a lawyer with the Canadian Civil Liberties Association.

He suggests that could happen without the creation of a “full-blown public inquiry,” but others aren’t so sure that would be a good move.

“Really, the only question now is what will be the effect on appeals, and a public inquiry would be problematic in terms of appeals because it could lead to issues being before the court the same time they’re before a public inquiry,” says lawyer and Ontario Bar Association past president James Morton. “It’s something that’s problematic.”

The comments follow last week’s release of a report by Information and Privacy Commissioner Ann Cavoukian, who began her investigation in May after media reports alerted her to jury-vetting practices in Barrie and Windsor.

The reports included references to jury lists that included information about prospective jurors such as “calls a lot for minor complaints,” “neighbour shot his cat,” and “dad is a drinker,” noted Cavoukian. Juries tainted by the practice have led to a pair of mistrials.

She has now ordered Crown lawyers to stop gathering personal information on potential jurors that is not permitted by the Juries Act or the Criminal Code.

Cavoukian has also suggested the Ministry of the Attorney General put in place a centralized juror screening process that will eliminate the need for individual Crown offices to conduct their own research. She suggested the ministry’s provincial jury centre be the hub of that new system.

Some of the commissioner’s most striking findings include the discovery that 18 out of the province’s 55 Crown offices received background information on prospective jurors from police since March 2006. That’s up from the four locations previously identified through media reports.

All of the offending offices collected information beyond the criminal conviction eligibility criteria permitted by the legislation. Cavoukian noted that the practices also breached privacy laws.

At times, Crowns didn’t share the information with defence counsel, she said.

The worst offender was the Crown office in Barrie and Simcoe County. The commissioner estimated there were 53 jury trials involving that office in which jury vetting occurred without sharing the information with defence counsel.

In all, Cavoukian estimated that there were 143 trials across the province in which jury vetting may have happened.

The background checks ranged in depth, from narrow checks on criminal convictions to broad background checks of any information available on the potential juror.

“In coming forward to perform one’s civic duty, citizens should be thanked, not burdened,” wrote Cavoukian in the report.

“They should not be concerned about the prospect of any excessive background checks being conducted or that such checks will unearth personal details of their lives.”

She placed much of the blame on a lack of direction offered to Crowns from the Ministry of the Attorney General. She noted that the ministry first took note of the jury-vetting problem in 1993 after an Ontario Superior Court judge questioned the practice.

Weeks later, a senior Crown lawyer issued a memorandum stating, “if the defence can’t have it, we shouldn’t be getting it either,” according to the report. That led to a recommendation within the ministry that the practice should end.

However, a practice memorandum on the issue didn’t come into force until March 31, 2006. The lack of clarity led to “a patchwork of practices developed across the province,” said Cavoukian.

Morton says a certain level of jury vetting is acceptable. But he says the privacy commissioner’s report shows that some prosecutors went too far.

“There’s no reason why a prosecutor should not ask around, the same way that defence counsel, in a smaller community particularly, can ask around to try and figure out a little bit of background about jurors,” he says.

“But when databases created for one purpose are used for a totally different purpose, that’s clearly, to my mind anyway, a breach of privacy legislation. And it’s giving an unfair advantage to the prosecution, an advantage that looks badly for the administration of justice.”

Morton says he doesn’t believe vetting negatively influenced most jury decisions but suggests it “feeds into a sense, perhaps an unfair sense, that the system is not fair, that it’s a system where advantage is taken.”

Morton doesn’t believe Crown lawyers involved in jury vetting should face sanctions. He says the practice seems to have been widespread and not unethical or “underhanded.”

“I don’t think there’s any issue of any discipline or any wrongdoing of that nature,” he says.

“I would put it more along the lines of something that was common in the profession that turned out to be an error.

We’ve seen that in real estate, in family, in all kinds of areas of the law. So it’s something that should be corrected for the future, and if problems were caused, if there were miscarriages of justice, they should be repaired as best they can be.”

Thomas Hewitt, president of the Ontario Crown Attorneys’ Association, says Crowns will welcome the new guidelines offered through Cavoukian’s report.

“I think with clarifying the rules, as [Cavoukian] points out, people will recognize that Crowns are working in a very difficult position and were working with very unclear guidelines and were doing the best job they could,” says Hewitt.

The privacy commissioner has “taken an extremely thorough approach to this,” says Hewitt, suggesting a further public inquiry is unlikely to shed new light on the issue.

Still, he wouldn’t speculate on possible repercussions for Crowns involved in jury vetting.

“The sanctions for Crowns involved in this, that’s not part of my business,” says Hewitt. “Certainly that’ll be something that the Ministry of the Attorney General and the law society will deal with.”

The Ministry of the Attorney General didn’t respond by press time to Law Times’ requests for an interview with Attorney General Chris Bentley.

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