Court to decide legal remedy for secret jury vetting

Source: National Post
Shannon Kari, National Post Published: Sunday, January 31, 2010


The Ontario Court of Appeal will hear arguments on Monday in a case that could lead to several convictions being overturned in the province as a result of secret jury vetting by the Crown and police.

The appeal filed by Ibrahim Yumnu and two other men is the first opportunity for the court to decide on a legal remedy for the improper jury checks that occurred across Ontario for several years, until the practice was exposed last spring by the National Post.

There are at least a dozen other outstanding appeals where jury vetting took place, including the case of a young man convicted of killing a police officer, all awaiting the outcome of the Yumnu case.

Yumnu and two co-defendants were each convicted in 2005 by a jury in Barrie, Ont., of first-degree murder in the slaying of two people suspected of stealing money from a marijuana grow operation.

Local police services in the Barrie area searched confidential databases to uncover information about hundreds of potential jurors, which was passed on to the Crown. Unlike the United States, only limited information is made available about potential jurors in Canada. The Supreme Court has stressed that the process is aimed at selecting an impartial jury, not one favourable to the Crown or defence.

The secret jury checks in Barrie, which took place in more than 50 cases in just the past three years, have "tarnished the appearance of fairness," writes Yumnu's lawyer Greg Lafontaine in arguments filed with the court.

The inadvertent disclosure in Barrie last spring about the jury vetting "triggered a chain of events that has caused some members of the public to question the very legitimacy of Ontario's criminal justice system," Mr. Lafontaine suggests.

He notes that it resulted in a mistrial in a murder proceeding in Windsor when it came out there were secret jury checks in that case. As well, that sparked a review by the Ontario Privacy Commissioner who issued a report that revealed improper jury vetting had taken place in about one third of all Crown offices since 2006.

Premier Dalton McGuinty described the practice as "against the law" after it was first reported by the National Post. The province moved to amend the Juries Act to address privacy concerns and ensure that any checks for eligibility are performed at an independent jury centre that is separate from the Crown and police.

The Crown though, is downplaying the significance of the secret checks, in its written arguments in the Yumnu case. "The Crown was executing its responsibilities to ensure juror qualifications," states Michal Fairburn, a senior lawyer in the Ministry of the Attorney-General. "Jurors with criminal records are not simply an abstract concern," she adds.

None of the 800 people investigated by police in the Yumnu trial were found to have a conviction for an indictable offence, which would have made them ineligible to serve as a juror, notes Mr. Lafontaine. "The ostensible target group (people with criminal records) of the Crown's police database checks was fictional. It makes little sense that Canadians who have been adjudged among the least civic minded in the population would be so anxious to perform the most onerous of civic obligations that they would fraudulently attempt to perform jury duty," he states.

Lawyers in the other jury vetting cases are scheduled to meet with a Court of Appeal judge later this month to decide when their arguments will be heard.

One of the appeals is the case of Troy Davey, convicted of first-degree murder in the 2004 death of Cobourg police officer Chris Garrett.

It was recently disclosed that the Crown asked fellow prosecutors and police to examine the jury lists to see if there was any "personal knowledge" they could pass on about individuals, which was kept from the defence. "There was not a level playing field," said Catriona Verner, who is representing Davey on his appeal. "It seems they were aware of the policy [not to conduct background checks] and were trying to circumvent it," she added.

National Post

skari@nationalpost.com



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