Questions raised about jury notice naming accused

The courts in Barrie, Ont., are facing new questions about irregularity in the jury selection process in the recent prosecution of two defendants charged with fraud.

A special panel assembled for a trial that was supposed to have begun in September received a notice that named the two defendants and their alleged crime weeks before the jury selection process was to begin in court.

The juror information sheet sent out to approximately 300 people in Simcoe County for what was expected to be a lengthy proceeding stated: “You have been summoned as a possible juror in the fraud trial of James Emms and Vernon Martin. It may last three to four months.”

This is the second time there have been alleged irregularities in jury selection in a case involving Emms.

The Supreme Court of Canada will hear his appeal next spring of a 2008 conviction in a separate fraud prosecution because of the secret background checks previously conducted by the police on behalf of the Crown in Barrie.

There is no allegation of background checks in the most recent Emms case. There’s no provision in the Juries Act, however, that instructs the sheriff to name defendants, their alleged offences, and the length of trial in notices sent out to potential jurors.

The standard Juries Act summons issued in Ontario lists only the date and location for a potential juror to attend.

There was no jury selected in the Emms and Martin case this fall due to a stay of the charges for unreasonable delay.

The Crown and police repeatedly failed their disclosure obligations in a case that took more than five years to get to trial from the time of arrest, Ontario Superior Court Justice Alfred Stong concluded.

“What prolonged the intake time was primarily disorganization and a lack of resources to conduct simple tasks such as photocopying, not any inherent complexities of the case.”

Defence lawyer Carlos Rippell, who represented Emms, didn’t specifically address the circumstances of the jury notice because of the successful Charter motion related to the delay.

But he remains concerned about what was in the jury notice and whether it’s a common practice in the province.

“It encourages potential jurors to do research before they are properly instructed by the court,” says Rippell. He notes he only learned of what was in the notice when a potential juror who came forward to disclose that he knew the co-defendant presented it.

“I can’t conceive of a justification” for naming the accused and their alleged offence weeks before the jury selection process began, says Rippell.

The Ontario Ministry of the Attorney General administers the jury-roll process through its court services branch.

“Jury information sheets are mailed out along with jury summons at the direction of a Superior Court judge,” said ministry spokesman Brendan Crawley. “Any content that is included in the juror information sheet is in the discretion of and at the direction of a Superior Court judge.”

Naming defendants and their offence in the jury information sheet occurs “on occasion in Barrie and other areas of the province where the judiciary provide such direction,” Crawley noted.

The Juries Act outlines the authority of a Superior Court judge to direct the sheriff with respect to the number of people required on a panel to select a jury. There’s no reference in the act to the content of the form sent to a potential juror.

The ministry didn’t respond by press time to a question about whether it was suggesting that the trial judge in the Emms case had directed the sheriff to include the additional information on the jury notice.

For more information on past jury controversies in Barrie, see "Jury vetting practice used in nine trials."

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