A series of cases occupying the country's highest courts has cast a spotlight on Crown attempts to probe the personal backgrounds of prospective jurors, potentially undermining the sanctity of the jury system.
With the Supreme Court of Canada still deliberating over three cases involving such jury vetting, the Ontario Court of Appeal has wrapped up a week of appeals that also included a look into whether the jury system treats aboriginals unfairly.
The most contentious case involves a 2007 murder trial in Barrie, Ont., where the Crown was privy to private, background information about the mental health, age and driving records of many of the 280 citizens in the jury pool. The defendant, Clare Alexander Spiers, is appealing his conviction on the basis that the background checks stacked the odds against him.
The case is the most flagrant example yet to surface of jury vetting – a practice of uncovering information about jurors that might shed light on their willingness to convict or acquit.
The information police compiled for the Crown also included detailed records of CPIC – the Canadian Police Information Centre – that showed the frequency and reasons some potential jurors had come into contact with police. It caused prosecutors to shy away from one juror based on what they felt were "mental issues," and to avoid people who had had past brushes with police.
Most lawyers believe that individuals with particular attitudes or life experiences are more prone to convict or acquit an accused criminal. In theory, an awareness of those factors can provide a crucial edge.
While the courts have yet to map out the legality of these background checks, the defence bar has long assumed that both sides operated on a level playing field in which they knew only the name and occupation of each prospective juror.
The Ontario Crown takes the position that modest background checks are legitimate, provided information the police obtain about potential jurors is disclosed to the defence.
After deliberating for six days, the jury at Mr. Spiers' trial convicted him in the first-degree murder of Massoumeh Khonsari, the wife of a prominent doctor.
Mr. Spiers' lawyers claim that the Crown unfairly knew which members of the jury pool who had been victims of crime; whether police records indicated they were innately suspicious of authority; and whether particular individuals had a history of thumbing their nose at the law.
Lawyers Anthony Moustacalis and Peter Thorning maintain that the Crown's actions were underhanded, improper and tore at the fabric of the jury system itself.
"Two hundred and eighty people had their privacy rights breached because the Crown wanted to form a jury that was to their liking," Mr. Thorning, a former prosecutor, said in an interview.
He said that citizens performing a civic duty should not have to endure their personal privacy being violated. "The Crown used the resources of the state to get all this background information, they didn't share it with the defence, and they used it to cull people without having to demonstrate that they were partial," Mr. Thorning said.
He said that had the extensive jury vetting been disclosed to him, he would have applied for a mistrial. "Frankly, whether or not defence counsel knows about it, the practice is illegal," he said.
However, in the event that the trial judge had refused a mistrial, Mr. Thorning said he would have used the data to reject seven or eight of the 12 jurors who ultimately formed the jury.
In arguments last week at the Court of Appeal, Ontario Crown counsel Michal Fairburn and Gillian Roberts defended jury vetting as a relatively innocuous practice that was conducted in good faith by the Barrie Crown's office for many years.
They said that jurors take the oath of impartiality they swear seriously. "There is a strong presumption that jurors are impartial," the Crown lawyers said in written brief.
The Crown conceded that the prosecutors at Mr. Spiers' trial should have disclosed the jury vetting information to the defence, but they contended that defence lawyers were also at fault for not making proper inquiries.
The prosecutors in the Spiers trial, Lorne McConnery and Elizabeth Quinlan (now an Ontario Superior Court judge), maintained in court documents that they did not know about a 2006 directive from the Ministry of the Attorney-General stating that any information obtained about prospective jurors must be shared with the defence.
The other key case in the Court of Appeal last week probed a relative lack of aboriginals in jury pools in northern districts where the majority of defendants are aboriginal.
Lawyers for aboriginal associations argued that, notwithstanding the difficulty of locating many aboriginals who live on remote reserves, a jury cannot be said to properly reflect the community if it is predominantly white.
In response, the Crown argued that those responsible for creating rolls of prospective jurors have gone to extraordinary lengths to seek aboriginal jurors on far-flung reserves.