News Release October 5, 2009
Commissioner Cavoukian Orders Crown attorneys to stop collecting personal information on prospective jurors – Recommends single screening process, in light of widespread background checks Investigation finds one-third of Crown attorney offices engaged in excessive background checks, in a practice that “should have been put to a stop 16 years ago.”
TORONTO – Ontario Information and Privacy Commissioner, Dr. Ann Cavoukian, today ordered Crown attorneys to cease collecting any personal information of potential jurors, beyond that which is necessary under the Juries Act and Criminal Code. Proposing a fundamental shift in the way that prospective jurors are screened, the Commissioner also called on the Ministry of the Attorney General (MAG) to implement a single, centralized juror screening process through the existing Provincial Jury Centre, minimizing the need for numerous background checks to be conducted across multiple offices. The new process addresses the lack of consistency in the “patchwork of practices” presently employed by Crown attorney offices and the police.
The Commissioner’s office (IPC) conducted a major investigation into whether the privacy rights of prospective jurors were breached when the police, on behalf of Crown attorneys, conducted background checks through a variety of means, ranging from accessing confidential databases, to informally gathering anecdotal information.
Key findings include:
•One third, or 18 of the 55 Crown attorney offices in Ontario had received background information about prospective jurors since March 31, 2006 – this practice extended well beyond the four locales previously identified in the media;
• All 18 Crown attorney offices had gathered personal information that exceeded the criminal conviction eligibility criteria set out in the Juries Act and Criminal Code – in doing so, they had also failed to comply with applicable privacy legislation; and
• There were varying practices regarding the disclosure of this information by Crown attorney offices to defence counsel.
“I want to be clear that we are not talking about a sweeping epidemic – in a relatively small number of cases, the violation of jurors’ privacy was a routine practice,” said Commissioner Cavoukian. “However, while these practices varied in terms of their invasiveness, the fact remains that 18 Crown attorney offices across the province gathered personal information that exceeded the criminal conviction eligibility criteria set out in the Juries Act and Criminal Code. What I find regrettable is that this invasive practice should have been put to a stop 16 years ago.”
Under the Juries Act and Criminal Code, an individual is ineligible to serve as a juror if they have been convicted of an indictable offence for which they have not received a pardon. The Criminal Code also allows a juror to be successfully challenged for cause by the Crown and defence counsel if they have been convicted of an offence for which a term of imprisonment exceeding 12 months has been given. The investigation found that practices had developed across Ontario that, in some cases, went far beyond these limits.
This issue of jury vetting was formally flagged by MAG in 1993, after Ontario Superior Court Justice Humphrey questioned the appropriateness of jury background checks. Within weeks, a memorandum on the issue had been written by a senior Crown attorney, culminating in a recommendation that the practice should stop. But it did not stop, and no further action was taken, at that time. Since then, a series of opportunities to provide clear guidance to Crown attorneys were missed, despite this issue surfacing again and again over the years. It was not until March 31, 2006 that a formal instruction to Crown attorneys came into effect, in the form of a MAG ‘Practice Memorandum.’
“Unfortunately, the 2006 Practice Memorandum was not sufficiently clear as to what practices were acceptable,” added the Commissioner. “We found that a patchwork of practices developed across the province, with a wide variety of opinions across Crown attorney offices as to what background checks were appropriate. My Order will hopefully provide clear direction as to what personal information may or may not be collected in the jury selection process.”
The Investigation
On May 25, 2009, media reports emerged that, in Barrie, Ontario, police services had been conducting background checks of prospective jurors, at the request of Crown attorneys. Upon learning that the practice extended beyond Barrie to include other Ontario locations, Commissioner Cavoukian launched an investigation under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act into the practices of conducting background checks of prospective jurors, and whether these practices violated the privacy provisions of the legislation.
The Commissioner’s investigation received the full support of the Ontario Government. The Premier, the Honourable Dalton McGuinty, expressed the following view as part of a news conference: “The Attorney General has made it perfectly clear this is unacceptable, it’s not in keeping with practice and in fact, it’s against the law …. We will offer whatever cooperation is required in order to ensure that [Commissioner Cavoukian] can conduct whatever full review that she might and we look forward to receiving any recommendations.”
To ensure a comprehensive investigation, the Commissioner’s office pursued multiple channels of inquiry, including:
1. Conducting in-person interviews at four different Ontario locations with various parties: Crown attorneys, court staff, police officials and defence counsel;
2.Undertaking an intensive province-wide empirical survey of all 55 Crown attorney offices;
3.Receiving sworn affidavits from senior Crown attorneys;
4.Retaining the services of the Auditor General’s staff to review the document capture process involving jury lists; and
5.Receiving legal submissions from the Ministry of the Attorney General, the Ministry of Community Safety and Correctional Services, the Criminal Lawyers’ Association, the University of Toronto’s David Asper Centre for Constitutional Rights, and the Canadian Civil Liberties Association.
“We have made every effort to deliver a full review of the issues associated with background checks, and to provide workable solutions, to bring to an end any unacceptable practices,” said Commissioner Cavoukian.
The Order and Recommendations
Based on the findings of the investigation, the Commissioner is ordering Crown attorneys to cease collecting any personal information of potential jurors beyond that which is permitted under the Juries Act and the Criminal Code, relevant to criminal conviction eligibility.
Further, the Commissioner is recommending a fundamental shift in the way that prospective jurors are screened in Ontario. Proposing a complete overhaul of the existing system, the Commissioner has recommended that MAG, through its Provincial Jury Centre (PJC), be the only central body to screen jurors who are ineligible for jury duty, based on criminal conviction. As the single entity already in receipt of the names and personal information of all prospective jurors, the PJC is the obvious candidate to perform this role. Operating from a single location in London, Ontario, the PJC is also in an ideal position to implement strict privacy and security measures that can be strongly enforced, thereby providing a consistently high degree of protection for personal information.
In total, the Commissioner made 22 recommendations directed primarily at Ministry of the Attorney General (MAG), including:
•The Provincial Jury Centre of MAG should be the only central body to screen out jurors who are ineligible for jury duty, based on criminal conviction;
•Crown attorneys should cease the practice of requesting the police to provide criminal conviction information relating to potential jurors, barring exceptional and compelling circumstances;
•Where Crown attorneys do obtain criminal conviction information relating to prospective jurors, they should share this information with defence counsel, in accordance with MAG policy;
•MAG should re-write and re-design the jury service qualification questionnaire in order to make it more clear, transparent and user-friendly for all prospective jurors;
•MAG should develop and implement a policy for Crown attorneys on the appropriate retention and disposal of jury panel lists.
“Any practice that taints, or is perceived to taint, the jury process strikes at the heart of the values we share as citizens of a free and democratic society,” said Commissioner Cavoukian. “My Order and Recommendations should ensure that a number of important goals are met. Juror privacy will be enhanced, all parties to a criminal proceeding will have equal access to relevant information on prospective jurors, and we will have increased accountability surrounding the entire jury selection process.”
For a complete copy of the Order, visit www.ipc.on.ca
The Information and Privacy Commissioner is appointed by and reports to the Ontario Legislative Assembly, and is independent of the government of the day. The Commissioner's mandate includes overseeing the access and privacy provisions of the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act, as well as the Personal Health Information Protection Act, which applies to both public and private sector health information custodians, in addition to educating the public about access and privacy issues.
Media Contact:
Bob Spence
Communications Co-ordinator
Direct line: 416-326-3939
Cell phone: 416-873-9746
Toll free: 1-800-387-0073
bob.spence@ipc.on.ca
Showing posts with label Background Checks. Show all posts
Showing posts with label Background Checks. Show all posts
Monday, October 5, 2009
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)
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)
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
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
Thursday, May 28, 2009
Court of Appeal allows police disclosure of withdrawn charges pursuant to a consent for a Vulnerable Persons Search
In Tadros v. Peel (Police Service), the Ontario Court of Appeal held that police can disclose the existence of charges withdrawn where the person consents to a Vulnerable Persons Search for the purposes of employment. The Court left open whether disclosure could occur in the absence of consent pursuant to the relevant provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 or the Police Services Act, R.S.O. 1990, c. P. 15.
The respondent, Tadros, had been charged with four counts of sexual assault and four counts of sexual exploitation against children who lived in his group home. Ultimately, the charges were withdrawn when Tadros entered into a peace bond. Subsequently, Tadros sought employment and consented to a Criminal Records Search and Vulnerable Persons Search by the Toronto Police Service. When he learned that the Peel Service had disclosed the charges to the Toronto Police Service, Tadros brought an application for an order requiring the Peel Police Service to expunge any reference to the withdrawn criminal charges from their records. He was successful in the lower courts.
The Court of Appeal allowed the appeal and set aside the injunction. The Court reasoned that because Tadros had already received the results of a Criminal Records Search and was then asked for further consent to disclose additional information for the Vulnerable Persons Search, he should have reasonably assumed that information about the eight charges may be disclosed. Second, even if by consenting, he was unaware that the withdrawn charges would be disclosed, he became aware when he received the reports and was turned down for the jobs he was applying for. The Court, therefore, concluded that Tadros had given his consent to the disclosure of the eight charges, and therefore set aside the injunction order made by the Superior Court.
Tadros also cross-appealed the lower court holding that the disclosure of information did not violate his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. The cross-appeals were dismissed. With regards to s. 8, the Court held that the respondent’s privacy was not violated because the Peel Police Service had lawfully obtained and retained the information. With regards to s. 7, the Court held that disclosure by one police service to another did not infringe on the respondent’s liberty or security of the person. Tadros also failed to identify an operative principle of fundamental justice even assuming there was an infringement of his liberty or security of the person.
Posted by Ashley Paterson (Law II) (Summer LEAP Intern)
The respondent, Tadros, had been charged with four counts of sexual assault and four counts of sexual exploitation against children who lived in his group home. Ultimately, the charges were withdrawn when Tadros entered into a peace bond. Subsequently, Tadros sought employment and consented to a Criminal Records Search and Vulnerable Persons Search by the Toronto Police Service. When he learned that the Peel Service had disclosed the charges to the Toronto Police Service, Tadros brought an application for an order requiring the Peel Police Service to expunge any reference to the withdrawn criminal charges from their records. He was successful in the lower courts.
The Court of Appeal allowed the appeal and set aside the injunction. The Court reasoned that because Tadros had already received the results of a Criminal Records Search and was then asked for further consent to disclose additional information for the Vulnerable Persons Search, he should have reasonably assumed that information about the eight charges may be disclosed. Second, even if by consenting, he was unaware that the withdrawn charges would be disclosed, he became aware when he received the reports and was turned down for the jobs he was applying for. The Court, therefore, concluded that Tadros had given his consent to the disclosure of the eight charges, and therefore set aside the injunction order made by the Superior Court.
Tadros also cross-appealed the lower court holding that the disclosure of information did not violate his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. The cross-appeals were dismissed. With regards to s. 8, the Court held that the respondent’s privacy was not violated because the Peel Police Service had lawfully obtained and retained the information. With regards to s. 7, the Court held that disclosure by one police service to another did not infringe on the respondent’s liberty or security of the person. Tadros also failed to identify an operative principle of fundamental justice even assuming there was an infringement of his liberty or security of the person.
Posted by Ashley Paterson (Law II) (Summer LEAP Intern)
Wednesday, May 27, 2009
How far-reaching are police checks of the background of prospective jurors in Ontario?
According to a series of stories this week by the National Post, police forces in Barrie and the surrounding region have allegedly been conducting background checks of potential jurors without their knowledge for several years at the request of the local Crown Attorneys. The practice allegedly dates back at least as far as December 2004. The National Post reported that the background checks were carried out using police databases. The information in the databases, which are administered by the Canadian Police Information Centre (CPIC) in Ottawa, are normally used by police in criminal investigations and require the consent of an individual to run a check that is not part of an investigation. The searches were allegedly an attempt to rid the jury pool of what the Crown considered to be “disreputable persons.”
Jurors were not told of the background checks and the information was not disclosed to defence lawyers, as is required under the legal and ethical obligations of the Crown. Although individuals convicted of an indictable offence cannot serve as jurors, the information obtained by the Crown through the police databases allegedly detailed whether a potential juror had been charged with a minor offence, had charges dropped or had been involved with the mental health system.
These alleged background checks raise issues of transparency with respect to police forces in Ontario, the Ontario Ministry of the Attorney-General and the Crown offices in Barrie and Simcoe County. If, in fact, this practice has been going on since 2004 there are likely countless cases that have been affected by it. Why did police comply with such requests from the Crown? The CPIC code of ethics does not allow for the police databases to be used for this purpose. Unquestionably, jurors that have served in Simcoe County since 2004 will be left wondering exactly what information was obtained about them by various police services and ultimately surrendered to the Crown. It is now necessary for Barrie Police Services to explain why they have participated in such background checks, in order to restore their transparency and accountability to the public. Only then can “…the people affected by it…make their own decision about a remedy,” said Frank Addario, president of the Ontario Criminal Lawyers’ Association.
This week, the Ontario Ministry of Attorney-General issued a directive ordering Crowns to cease background checks and permitting only checks to ensure that prospective jurors had not been convicted of an indictable offence.
Posted by Ashley Paterson (Law II) (Summer LEAP Intern)
Jurors were not told of the background checks and the information was not disclosed to defence lawyers, as is required under the legal and ethical obligations of the Crown. Although individuals convicted of an indictable offence cannot serve as jurors, the information obtained by the Crown through the police databases allegedly detailed whether a potential juror had been charged with a minor offence, had charges dropped or had been involved with the mental health system.
These alleged background checks raise issues of transparency with respect to police forces in Ontario, the Ontario Ministry of the Attorney-General and the Crown offices in Barrie and Simcoe County. If, in fact, this practice has been going on since 2004 there are likely countless cases that have been affected by it. Why did police comply with such requests from the Crown? The CPIC code of ethics does not allow for the police databases to be used for this purpose. Unquestionably, jurors that have served in Simcoe County since 2004 will be left wondering exactly what information was obtained about them by various police services and ultimately surrendered to the Crown. It is now necessary for Barrie Police Services to explain why they have participated in such background checks, in order to restore their transparency and accountability to the public. Only then can “…the people affected by it…make their own decision about a remedy,” said Frank Addario, president of the Ontario Criminal Lawyers’ Association.
This week, the Ontario Ministry of Attorney-General issued a directive ordering Crowns to cease background checks and permitting only checks to ensure that prospective jurors had not been convicted of an indictable offence.
Posted by Ashley Paterson (Law II) (Summer LEAP Intern)
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