AG joins probe into juror background checks

OTTAWA - Ontario Attorney General Chris Bentley has joined an inquiry into the extent Crown prosecutors have improperly - and possibly illegally - used police sources to screen prospective jurors.

Bentley jointly wrote a letter with Privacy Commissioner Ann Cavoukian containing detailed questionnaires to all 54 Crown prosecution offices in the province “to determine the nature and extent of this practice,” a spokesman for Bentley confirms to Law Times.

The letter went out in mid-June, just two weeks after Bentley said only that his ministry was “calling around” to Crown attorney offices and that the inquiries showed the practice of jury vetting did not seem widespread, according to media coverage of his comments at the time.

Cavoukian’s office issued an update on her investigation into jury vetting on June 15, mentioning Bentley’s assistance in the statement’s second paragraph.
But there is no record of Bentley’s office issuing an announcement of his role, and defence lawyers were unaware last week that the attorney general was taking part in the inquiry.

The move could mean a shift in focus from privacy rights of jurors and the Crown’s failure to share information with defence counsel to the legal consequences of prosecutors using information from police computer databases to select jurors they might believe would be more likely to convict.

 “The priorities in all cases are a fair trial process and the protection of privacy,” Brendan Crawley, a spokesman for Bentley, tells Law Times. “We take the privacy interest of jurors seriously and will be working with the privacy commissioner to ensure respect for privacy protections in the context of fair trial rights.”

The failure of Crown attorneys to disclose the information to defence counsel in at least two instances - one that resulted in a mistrial for a murder case in Windsor - has been central to a windstorm of defence counsel objections.

Law Times has learned the Criminal Lawyers’ Association recently wrote to John Ayre, Bentley’s assistant deputy attorney general in the ministry’s criminal law division, to make an unprecedented demand that could have sweeping implications for past convictions across the province.

The association is seeking a written record of all the relevant information available from police and Crown attorneys.

“In view of the highly unusual circumstances that this issue presents, I am going to make a novel request,” CLA president Frank Addario wrote in the letter to Ayre. “I ask that you prepare full disclosure of all information in the ministry’s possession relating to any prior jury trials in this province in which this practice is known to have occurred,” the letter goes on.

“The request for disclosure includes the names of the criminal trials in which this practice is known to have occurred, the names and relevant notes of the police officers and Crown officials who were directly involved in or who had knowledge of the practice in those cases, and the nature of the information transmitted by Crown counsel in those cases.”

Toronto defence lawyer Adam Boni, a director of the association who is also leading the information-gathering initiative, says determining the extent of jury vetting is only the first step.

“In terms of properly unpeeling this onion, we have a long process to go through.” Locations where it has been revealed that Crown attorneys obtained information about prospective jurors from police now also include Toronto and Thunder Bay.

Two lawyers in Windsor representing the two accused in the murder trial that was suspended after the discovery of undisclosed Crown jury vetting have asked for a stay of the charges, primarily because of the interference with jury selection.

One of the lawyers, Kirk Munroe, tells Law Times efforts to obtain more information about the extent of vetting jurors through the Windsor police department have failed.
Superior Court Justice Bruce Thomas quashed subpoenas that would have forced Kingston police chief Gary Smith to explain statements he made to the Windsor Star about previous instances of co-operation with prosecutors.

Thomas also shot down an attempt to discover whether two different Crown prosecutors appointed for the new trial in the case had taken part in secret jury vetting in the past.
“These are public servants; how come they’re not telling us what they’re doing?” Munroe says. “If their people have engaged in misconduct, you don’t think the public has the right to know what misconduct they’ve engaged in.

“It’s been found by every court that’s dealt with it, that’s misconduct. So why don’t you tell us, has your office been engaged in it, was it systematic, was it just a few bad apples? Tell us about it.”

The other defence counsel in the case, Greg Goulin, says neither defence nor prosecution lawyers should have access to some of the information Kingston police provided - including references to a young offender record. “It’s information, in and of itself, that no one should possess except for specific purposes,” says Goulin.
“It’s like radioactive material.”

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