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

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)

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)