Crown prosecutors are free to vet potential jurors for signs of a criminal past, the Ontario Court of Appeal ruled Tuesday.
In an important test case of the contentious practice of jury vetting, a 3-0 majority said the Crown did nothing wrong when it directed police to check the criminal records of potential jurors prior to a 2005 murder trial.
Rather, it criticized defence lawyers for lying in the reeds and raising no objection to what the court called a relatively innocuous vetting process until the trial was long over.
"Not a whisper of complaint, a request for further disclosure, a suggestion of impairment of the right to make full answer and defence, or a request for a remedy," Mr. Justice David Watt said, writing on behalf of Madam Justice Karen Weiler and Madam Justice Eileen Gillese.
"One would be naive to think that, had the non-disclosure been of such significance as it is now said to have assumed, that six weeks into a nine-month trial defence counsel would not have done something about it," they said.
The court upheld convictions against Ibrahim Yumnu, Vinicio Cardoso and Tung Chi on two counts of first-degree murder and two counts of conspiracy to commit murder. The victims, Dung Ton and his wife, Bon Bui, had fallen afoul of their killers in a drug-trade dispute.
Paul Burstein, president of the Criminal Lawyers' Association, said Tuesday that he would be very surprised if any defence start to investigate potential jurors in the wake of the ruling.
"They will almost always be constrained by the realities of a defendant's limited resources - especially as compared to the Crown who, as this case showed, has the benefit of the police and all of the police information databases," Mr. Burstein said.
The Crown and defence at a criminal trial are entitled to know the name, address and occupation of potential jurors. Both sides may reject a prescribed number of potential jurors based on this information plus their instincts.
The appeal court agreed with Crown counsel Michal Fairburn and Susan Magotiaux that the evidence used to convict the defendants, "would not have varied a scintilla had disclosure of the result of the criminal record inquiries been made in a timely way."
However, it warned that context of each case is critical and there may be instances where the Crown goes too far in probing potential jurors.
Jury vetting has been an open secret for many years. In a 1997 case involving Saskatchewan farmer Robert Latimer, the Crown was criticized for directing police to solicit the views and beliefs of potential jurors.
In arguably the most flagrant instance of all, The Globe and Mail revealed in 1999 that prosecutor Alain Godin secretly compiled research on the ideological leanings, criminal records and personal habits of prospective jurors at a murder trial in Thunder Bay, Ont.
Beside each of the dozens of names on the list, Mr. Godin had made notations such as: "Gun Club Guy - could convict;" "Good guy. Strong beliefs. Could convict;" "Son an idiot."
Mr. Godin also noted intelligence levels, marital status and likelihood of a jury convicting Mr. Perlett. "Prozac," said one notation. "Cannot handle stress." It identified a social worker as: "Bleeding heart. Could not convict." Another man was described as "Few bricks short.
"Bob's wife - could convict," said another. "Husband says so."
Despite controversy at the time, the practice continued in many pockets of the province in a scaled-down manner until last year, when the Ontario Crown was criticized by Ontario's Privacy Commissioner.
The issue is likely to land in the Supreme Court of Canada, since the Nova Scotia Court of Appeal took the opposite tack in a recent decision. It overturned a man's conviction for running a marijuana grow operation learning that police had run database checks on more than 300 potential jurors.