Friday, September 25, 2009

UofT Centre for Constitutional Rights concludes that jury vetting violates privacy of jurors

In June, the well-publicized scandal of jury vetting in several jurisdictions across Ontario was exposed. In short, several police forces had been providing information to Crown Attorneys about potential jurors, and the Crowns had not been in turn disclosing that information to defence counsel. The background checks being conducted on the jurors stepped over significant legal and ethical boundaries, investigating areas such as involvement with the mental health system and minor charges against jurors that had, often long before jury selection, been dropped.

After the exposure of the practice, Ontario’s Information and Privacy Commissioner launched an investigation, the results of which are yet to be seen.

However, the David Asper Centre for Constitutional Rights at the University of Toronto has since been asked to provide an opinion on the legality of the alleged background checks. As a result, the Centre has provided submissions regarding how the background checks impact the Charter rights of jurors and the accused, as well as submissions regarding the potential systemic significance of checks.

With respect to Charter rights, the Centre says that “the state conduct in these cases constituted an unreasonable search and therefore violated the s. 8 rights of potential jurors.” Further, the Centre reminds us that it is established law that any information obtained by the Crown regarding prospective jurors must always be disclosed to the defence. In terms of the systemic implications, the Centre points out the access to justice implications that arise from the checks. Specifically, potential jurors may not even know that their Charter rights have been breached. Without knowing, they cannot seek redress. Perhaps even more significant is that even if they did know, they would have no standing, and therefore no access to Charter breach remedies. A further systemic problem noted by the Centre is how the alleged background checks could further stigmatize jury duty. Accepting that the avoidance of jury duty is already well-documented, the Centre notes that prospective background checks will likely lead to further avoidance of jury duty, inevitably resulting in unrepresentative juries.

The Centre concludes, as LEAP did when it reported the story in June, that a full public inquiry is required. This is not an issue that can be swept under the rug. Its lasting effects may, as yet, be unknown – but it is potentially catastrophic to the outcome of past cases decided by vetted jurors. The accountability of police officers and Crown Attorneys who may have engaged in the process is at stake. However, as the Center points out, it is just as important to focus on the victims as it is to focus on the perpetrators. Jurors have potentially had their Charter rights violated, and an investigation into their personal situations is required.

Posted by Ashley Paterson (Law II)

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