Lawyers call for AG probe into jury vetting

OTTAWA - Ontario defence lawyers have been shaken by revelations police disclosed personal information from their computer files to Crown attorneys for vetting prospective jurors.

Senior lawyers say Attorney General Chris Bentley must conduct an investigation to determine whether the practice has been used anywhere in the province other than two confirmed cases in Barrie and Windsor courthouses.

They add that an investigation launched last week by Privacy Commissioner Ann Cavoukian is insufficient, since her office does not have enough authority to conduct the kind of in-depth inquiry required to determine the potential extent of personal information abuse.

“The public needs to know what’s going on,” says Ottawa defence lawyer Norman Boxall, a vice president of the Criminal Lawyers’ Association.
“I don’t know how far afield it is, and the fact that we’re even thinking of whether Crown lawyers took part is disturbing,” he tells Law Times.

Superior Court Justice Bruce Thomas ended a first-degree murder trial in Windsor after a Crown attorney disclosed police vetting in response to questions from the defence lawyer, Greg Goulin.

Goulin, the immediate past president of the Ontario Bar Association, says he and his co-counsel, Kirk Munroe, decided to seek the information after an earlier disclosure that police vetting had taken place in Barrie.

In a lengthy interview with Law Times, Goulin expresses shock at the kind of information the court discovered police had given the Crown attorneys about prospective jurors before challenging and selection.

The list included one juror who had a young offender record, which Goulin notes should not have been available to anyone.
Another notation said a juror had a theft and assault conviction, with no further description, another had seven “tickets,” another had two “tickets,” and another juror’s record simply had the notation “pardoned.”

Another had the record notation: “dislikes police.”
By coincidence, Thomas had excused those jurors on grounds of hardship. But the Crown used police information to challenge three other jurors, including one who lived at an address “associated with handguns” and another for undefined “criminal associates.”

The police information on another juror stated with no explanation “kid has messed up.”
Goulin says the description “criminal associates” could apply to anyone vaguely associated with a convicted person - including pastors or others who take part in programs to assist offenders.

He and other lawyers say the secret Crown use of confidential police files contravenes disclosure rules and privacy laws and could lead to more mistrials or appeals based on Charter violations, including freedom of association.

Goulin adds that not only was the information vague, but there was no way of confirming its accuracy.
“It’s a matter of trust,” he tells Law Times. “The Crown and the police said, ‘We didn’t know we were doing wrong.’”

But police and Crown attorneys throughout Ontario should be aware the practice of using police files to vet jurors has been expressly forbidden since 2006, when the attorney general issued a directive warning against it, says Goulin.

He and the other defence lawyers say Bentley simply reiterated that position in response to the latest two incidents.
Ottawa defence lawyer Michael Spratt says the disclosures may have been illegal.

“The vetting was done in secret, with no disclosure to the defence,” Spratt tells Law Times. “The Crown has constitutional disclosure obligations that they may not have complied with. This is a good example of the state using its power and resources - which are not available to the accused, who is presumed innocent - in an unfair manner.”

Ontario Bar Association president Jamie Trimble tells Law Times the use of police information for vetting jurors could undermine public confidence in the justice system.

“The concern that the public has and certainly that the Ontario Bar Association has is that one possible interpretation of this is that there is a perception that the police will have an edge in the jury selection process,” he says.

Goulin points out the secret vetting system could have a tragic effect on prospective jurors Crown attorneys challenge because of potentially unreliable and vague information from the police computers.
Families, friends, and even the prospective juror could be hurt personally, and possibly professionally, if a juror is rejected for unknown reasons.

“It appears that the information is not just whether they’ve been convicted or not of an offence, it’s whether they’ve been charged with an offence, convicted or not, their family background; we have concerns with this,” says Trimble.

Jurors may be excluded if they have been convicted of an indictable offence, says Goulin, but not if they have been pardoned.
As well, juries convicted of summary offences may be excluded only if they have served more than one year in jail.

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