Wednesday, June 10, 2009

Jury vetting exposed in Windsor and Essex County

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


  1. Case highlights the need to move away from this old dinosaur

    What these incidents highlight is that greater collaboration between the Crown and the police agencies does not necessarily mean automatic transparency and partiality. The result may be collusion between the Crown and police due to [this] enhanced collaborative decision-making and extensive involvement between the two parties. Apart from the privacy concerns these incidents raise, it opens a pandora’s box with respect to ongoing or scheduled trials- just how many tainted trials are ongoing currently where jury selection has been tampered with? Many critics, most notably criminal defence lawyers, have often advanced similar apprehensions about this rather close working relationship between the police and Crown. The highest court in the land held in Stichcombe that a failure in disclosure of relevant information is a constitutional violation.

    The author of this post advances a crucial reminder that the Crown counsel, as Ministers of the Crown, has the great burden of working in the public interest; however, these incidents only erode public confidence in what is supposed to be a fair prosecutorial public service, safeguarded by democratic ideals. Indeed, Crown counsel has a broader public interest obligation to ensure a fair prosecution conducted in good faith. Of course, a corollary of this is to refrain from taking any actions that obstruct justice by tampering with the jury pool. While these incidents have lifted the veil of naiveté of those that deem the Crown to be entirely independent from the police, the [incidents] have broader implications in that they have shifted the discourse to the whole institution of the Crown. So it is worth advancing the argument that maybe it is time after all for an independent public prosecution service, similar to those already established in the United Kingdom. At the end of the day, these cases provide credence to the argument that the Crown serves the Crown and there is an inherent conflict of interest. Unless the time-old institution can be drastically reformed, it seems the only way to restore public confidence is to wholly transform the delivery of prosecutorial services in Canada. It my humble opinion, the delivery of prosecutorial services should be just as independent from the government as services provided by criminal defence lawyers. These and other incidents have shown, and as defence lawyers have graciously reminded us when these occur, that the administration of justice requires equilibrium between the defence and Crown: a fundamental principle of our justice system. Incidents such as the ones in Barrie, Simcoe County and Windsor are a reminder that it is about time to democratize this old dinosaur.

  2. This comment has been removed by a blog administrator.

  3. This comment has been removed by a blog administrator.

  4. Why were these last two comments removed after one day, when the comments from Mandy Cheema have been left up for over two weeks? So much for free speech.

  5. The last two comments were removed because I realized that the objection taken by you related to my op-ed in the Windsor Star not to the blog entry and so the context was not present. There is no discussion of the Kirkham case in the blog.

    Essentially, you (assuming you are anonymous)took objection to my characterization of Kirkham, the prosecutor in the Latimer case, as "narrowly escaping" conviction for obstruct justice. He was charged once it was revealed that he had tried to find out background information about prospective jurors. You were concerned that my characterization was inconsistent with the presumption of innocence; that I was somehow betraying my defence counsel roots; and, that I made the comment because the accused was a prosecutor. As I explained in my response, I teach the case together with Ken Murray's case. He was a defence lawyer who hid the Bernardo tapes. He too was charged with obstruct justice.

    They were both acquitted because our law does not recognize recklessness as a sufficient fault element for obstruct justice even though it does for other intent based crimes. The distinction is, in my view, one without reason or principle. My point, which I appreciate should have been explained, was that he, like Murray, would have probably been convicted using a recklessness standard.

    In any event, the point is really irrelevant to the question of prosecutors being on notice that jury vetting is improper and that is another reason I deleted both comments.

    I hope that this answers your question. It is not a question of "free speech." In fact, if you re-submit your comment, I will publish it now that the context is clear.

  6. Actually, the original version of the LEAP blog entry on this topic did carry your comments on the Kirkham case, and cited the same troubling passage you wrote in your op-ed piece. For some technical reason I could not post a comment at that time. I noted that the blog was later edited and the Kirkham reference removed. I personally thought that the original blog entry, my reply and then your entry after that provided a very fair and understandable discussion overall.

    For the record, I take you at your word and I found the explanation of your position on the Kirkham case credible and reasonable. Of course, no one who read your op-ed in the Windsor Star would have had the benefit of learning that you teach the Murray and Kirkham cases together (so that they might accept that because you do so you would argue that you don't approach the issue with any bias).

    I must say however that I find your argument that the reach of criminal negligence principles should be expanded to apply the standard of mere recklessness to charges of obstructing justice to be altogether troubling on its own. Respectfully, it is you, and not the courts, who should be justifying what would represent a change in approach. By its very nature the crime of obstructing justice is one which involves a wilful act of corruption, intimidation or force which interferes with the administration of justice. By contrast, crimes involving recklessness instead are characterized by the creation of an unjustifiable risk and a concomitant disregard for the consequences of that risk. Hard cases make bad laws, and each of the Kirkham and Murray cases is a hard case.

    Kirkham's astonishingly foolish contacting of jurors, to learn their views on the underlying moral issue in the case, was not a wilful act of corruption, intimidation or force. It was a clumsy and grossly inappropriate attempt to ensure that jurors were impartial and not prejudiced in favour of the accused. Similarly, Murray did not wilfully and criminally seek to interfere with the administration of justice. Rather, he found himself in an awkward conflict between the duties he owed to the justice system and those he owed his client. It is a testament to Murray’s clear lack of criminal intent and the relative ambiguity of the situation he found himself in that the Law Society eventually set up a special hotline so that lawyers – even seasoned ones – could call and receive advice when they find themselves in a hard case.

    In focussing on this aspect of the issue I don’t agree that in fact I missed the core point you were making in the pieces you wrote. The simple point of my reply is that the hyperbolic introduction into this discussion of the crime of obstructing justice has not been helpful (you are far from the worst offender; the related media coverage in Ontario has rather casually used the salacious term “jury tampering” even where clearly inappropriate, and even Ms. Cheema was somewhat “reckless” in her use of the term). Ontario’s jury screening process has itself become a “hard case” and there is little or no discussion in the blog regarding its current deficiencies – there are only attacks on the Crown. In our discussion perhaps we could be slower to vilify those who have the burden and privilege of making our system work and have a frank discussion about reforms to make it better.

  7. A couple of points in response.

    First, I am certainly not the first to suggest that the courts reluctance to extend recklessness to all crimes of intent is unprincipled. Professor Don Stuart at Queens has long taken this position.

    Second, I don't agree that Murray was a hard case. There was simply no rational explanation for holding on to evidence depicting murder and sexual assault.

    Third, you do offer a strong argument, however, for why obstruct justice is a special kind of offence that may require a higher level of intent. On the other hand, there is also an argument that in some cases, foreseeability of a risk that justice will be defeated should be enough to warrant conviction particularly from certain actors who owe special responsibilities to the system. And, as you know, even for serious offences like manslaughter, the courts have moved to objective liability and simply foreseeability of bodily harm because of the great harm that sometimes comes from violent conduct. The same arguments could be made in the context of playing with fire that potentially impacts the course of justice.

    Fourth, I am not sure that it is hyperbole to talk about "jury tampering." I am not saying it is only that we need to be talking about it. What makes this so disturbing is that it was done in secret so many years after the courts set out the Crown's obligation to disclose all relevant information; after the Crown policy manual was amended; and, after the Kirkham case. The fact that a juror may not like the police is certainly not a reason to remove them from the jury any more than if he or she liked and trusted the police. Is it not tampering to remove them having breached their privacy and accessing information that the Crown was not entitled to have and when it is done in secret? It is the accessing of information that is private and the secrecy of the process that are what is at issue.

    Fifth, the reason the conduct needs to be talked about as opposed to the issue of reform of the jury system is because it is such a gross violation of a prosecutor's oath of office. All criminal justice system actors from the police to defence counsel have a duty to make the system work. That is simply no defence to unethical conduct or a reason not to focus on that conduct. The fact that this was being done in secret raises a serious question about whether other information is not routinely disclosed by some Crowns or whether there is other conduct by Crowns that we should be concerned about.

    Finally, on the issue of reform, these incidents further support abolishing all peremptory challenges. There is simply too great a temptation for both Crown and defence to abuse them. For example, to remove female jurors in a sexual assault case or Black or White jurors in a police shooting case. The temptation to discriminate and intrude on the juror's private life through investigation provide compelling reasons for peremptory challenges to be abolished.

  8. It is good to see that this topic has engendered a lively debate. This is exactly what’s needed if we are to implement long-overdue reforms to the Crown. First, I disagree with the comment by “anonymous” that I was “somewhat reckless” in using the term jury tampering. Webster’s dictionary defines tamper as follows: “to interfere so as to weaken or change for the worse” and “to render something harmful or dangerous by altering its structure or composition.” Soliciting private information on jurors from police officers, unduly influencing the selection of potential jurors during this process, does just that- it interferes, weakness, changes for the worse, renders something harmful or dangerous by altering the structure or composition of the jury pool.

    Second, on the issue of obstructing justice-“anonymous” comments that Kirkham contacting the jurors was merely foolish undermines the grave implications this has for the administration of justice. What may be merely “foolish” to individuals such as my friend “anonymous” may in fact have the implication of obstructing justice-in light of a very real possibility of an unjustifiable risk and disregard for the consequences created by those [impugned] actions. One would assume that Crown counsel would be trained and hence, fully aware of the ethical and constitutional implications of obtaining private information on jurors (not to mention the additional issue of not subsequently disclosing this to defence counsel- perhaps forgetting their obligations under Stinchcombe). Without a clear reckless standard, lawyers can conveniently hide behind this legal loophole- the Murray and Kirkham cases are prime examples of when this has occurred. Professor Tanovich discusses these cases in the context of legal ethics- which I think helps law students better understand the many ethical dilemmas they may themselves face once they are esteemed Members of the Bar.

    Third, “anonymous” argues that the blog only has attacks that vilify those who have the “burden and privilege of making our system work.” The Crown’s actions in these cases do the exact opposite- it undermines our system. Further, the remarks by “anonymous” that the focus should be on the deficiencies in the jury system and not the Crown does not recognize that the two are not mutually exclusive. Requesting private and perhaps, intimate information on jurors is an inextricable part of the current deficiencies in the jury system. The Crown, as Ministers of Justice, serves a very important function- and the erosion of public confidence does not further our collective aims of the fair and efficient administration of justice. This is not to say that other stakeholders in the criminal justice system- defence counsel- do not have to maintain high ethical standards. They too have the “burden and privilege of making our system work.” But I do not recall a time- and please correct me if there has been- where defence lawyers were recipients of personal and private information on jurors given to them by police officers.

    Finally, my comments with respect to reforms were made in the context of the need to examine the whole institution of the Crown. Although the jury selection process has many problems- including the many problems with peremptory challenges, as I had stated in my original comment to the post, other Commonwealth countries, such as the United Kingdom, have changed the delivery of prosecutorial services. The recent jury vetting cases are a stark reminder that we need to have this debate- a debate that is inclusive of all the stakeholders in the justice system- Crown counsel, defence lawyers, police officers and law students. Perhaps public consultations may also be helpful in providing a degree of accountability and transparency- safeguarding democratic ideals-such as in the United Kingdom where the public was recently consulted on the Code for Crown Prosecutors.

  9. Ms. Cheema's use in her reply of a simple and non-legal dictionary definition of "tampering" is a wholly unsatisfactory response to the point I made above. The serious point I made is that using a term for a specific criminal charge ("jury tampering") to describe conduct which the courts have already ruled falls well short of the criminal standard is careless and inappropriate. Words are important and in order to have a fruitful discussion we must choose them carefully.

    It is of course difficult to address Ms. Cheema's query regarding the equal sharing of background information ("But I do not recall a time- and please correct me if there has been- where defence lawyers were recipients of personal and private information on jurors given to them by police officers") without firsthand knowledge and potentially without violating an individual accused's person's rights. The query is noteworthy however since it is the first reference anywhere in the discussion to defence use of background information, however obtained. Assuming all contributors to the discussion are interested in making the system better and not simply in demonstrating animosity toward one side, we should not be so naive as to pretend that the defence never avails itself of such information. Since disclosure is a one-way street, this is another important yet completely unexplored feature of the debate.