Two weeks ago, we learned that police forces in Barrie and Simcoe County had been conducting background checks of potential jurors without their knowledge (or the knowledge of defence counsel) for several years at the request of Crown Attorneys. Now, the practice of jury vetting has been exposed in Windsor. This week, Justice Bruce Thomas issued a sternly written judgment and declared a mistrial in the first-degree murder trial of Richard Zoldi and Shane Huard.
At the end of May, the practice of jury vetting was first reported by the National Post. The Post described how several police forces had been involved in providing information to Crown Attorneys involving whether potential jurors had been charged with a minor offence, had charges dropped or had been involved with the mental health system. The Juries Act does not permit such background checks. Indeed, “[t]here are instead strict rules that restrict the Crown and defence to knowing only the name, address and occupation of a potential juror from court records.” However, when the issue was raised by the defence at the trial of Zoldi and Huard, Justice Thomas found that a much more personal commentary of potential jurors had been provided to the Windsor Crowns. Police had made notations beside prospective jurors’ names after completing background checks. During the four-day hearing concerning whether illegal juror background checks had taken place, Windsor police Detective Mark Denonville admitted that he had “offered” to do background checks on prospective jurors, and that he and a colleague “made notes” on the information they discovered using the police database. The notations included criminal charges, regardless of whether there was a conviction, simple highway traffic offences and convictions from before the potential jurors were even legal adults. One officer wrote beside a prospective juror’s name: “Doesn’t like police.”
The practice raises a number of legal and ethical issues. Prosecutors are Ministers of Justice whose goal is to protect the public interest not to use any means necessary to secure a conviction. They also have a constitutional and ethical obligation to disclose any relevant information. Both of these duties appear to have been breached. There is a need for the Ministry and/or Law Society of Upper Canada to conduct an investigation into these cases.
There are also privacy issues and concerns about the impact this scandal will have on the administration of justice and the willingness of individuals to serve on juries. These concerns were aptly raised in an editorial in today's National Post entitled "Twelve Vetted Men".
On the issue of privacy, Ontario's Information and Privacy Commissioner today launched an investigation into whether the privacy rights of prospective jurors were breached by the background checks.
This issue also raises alarm bells over what kind of information is collected by the police and stored on their computers. What makes it particularly problematic is the inability of individuals to ever review the information and/or have it expunged.
Finally, there is the question of the impact of these revelations on ongoing trials and convictions obtained in these jurisdictions. There are potentially hundreds of cases in jeopardy and subject to some kind of review.
Posted by Professor David M. Tanovich