The jury system has existed longer than the country itself, yet the Supreme Court of Canada has never tackled a key question that goes to the heart of its integrity.
Should the state be allowed to peer into the background of potential jurors before deciding whether to select them for a trial?
In a series of five test cases this week, the Supreme Court will wrestle with the issue of whether so-called "jury-vetting" by police distorts the trial process.
Evidence of the practice has popped up periodically for years. However, it only erupted into sustained controversy in 2008, after the Crown revealed that police in Barrie, Ont., had been systematically running computer checks on potential jurors.
As the controversy mushroomed, it turned out that 18 of 55 Crown offices in the province had been doing similar checks. In each case, police used their research to instruct trial prosecutors about which potential jurors might be best avoided.
The Supreme Court will hear provincial arguments that jury-vetting advances the cause of justice, rooting out individuals with a criminal record or a possible conflict of interest.
"Just like the defence, there is nothing wrong with the Crown engaging in informal and discrete discussions about the list of prospective jurors," a brief from the Ontario Crown contends.
But lawyers for the defendants in the test cases accuse the Crown of attempting to sugar-coat a reprehensible practice.
"The objective of jury-vetting is to obtain a favourable jury," said a legal brief by defence counsel Gregory Lafontaine. "There is no other logical reason – laudable or otherwise – for the Crown to resort to jury-vetting."
Another defence counsel, Tim Breen, said that jury-vetting compromises the fairness of the entire jury process. "The result is a miscarriage of justice," he said.
While Ontario concedes that some of the information in the Barrie background checks should have been disclosed to the defence more swiftly, it said there was nothing covert or underhanded about what the police did.
The Alberta Crown took an even more aggressive stance in defence of jury vetting, stating in a brief to the Supreme Court that "there is nothing wrong, and everything right" with the practice.
In smaller communities, the Alberta brief said, there are often relationships between prospective jurors and those caught up in a trial. It said that jury-vetting is essential to discover whether these sort of relationships could skew the fairness of a trial.
"The ability to conduct various database checks is necessary to ensure a jury is properly constituted with eligible jurors," said Alberta Crown counsel Maureen McGuire.
An intervenor in the case – the B.C. Civil Liberties Association – maintains that, whether or not particular trials have genuinely been jeopardized by jury-vetting, the reputation of the justice system is at stake.
"The question is whether the Crown's jury-vetting undermined the public's perception of its impartiality," the BCLA brief said. "If the Crown is able to investigate the jury pool with an eye toward removing 'disreputable' persons from the jury, then the jury is no longer random."
Prosecutors in Barrie began requesting the police checks following an incident several years ago in which an individual already serving on a jury turned out to be serving an intermittent jail sentence.
The practice was quietly carried on for years until defence lawyers at a 2008 murder trial learned of the practice and attacked the Crown for allegedly trying to hand-pick jurors in order to improve their chances of gaining a conviction.
The Supreme Court is expected to reserve its decision for several months.