Prosecutors are free to ask police to look into the criminal background of potential jurors provided that information they obtain is disclosed to a defendant before his jury has been selected, the Supreme Court of Canada ruled Friday.
In a series of three unanimous decisions, the court approved the Crown using information that sheds light on their eligibility to serve on a jury.
It said that while Ontario prosecutors had failed to disclose information they obtained in the cases – two murder trials and a fraud trial – their errors did not cause a miscarriage of justice and was insufficient to warrant new trials.
"There was no appearance of unfairness that would shake the public's confidence in the administration of justice," Madam Justice Andromache Karakatsanis wrote in one ruling, R v Davey.
The key question for the top court went to the heart of the integrity of the jury system: Can the state be allowed to peer into the background of potential jurors before deciding whether to select them for a trial?
It's answer was yes, provided the police do not sift through the personal background of potential jurors and provided they disclose pertinent information to the defence.
However, Judge Karakatsanis said that informal consultations with police officers "must be approached with caution."
She advised the Crown to avoid engaging in, "systematic consultations with police services regarding the suitability of jurors, given the real risk that such inquiries could represent access to an informal database of the contacts a prospective juror has had with the police services and the criminal justice system."
However, Judge Karakatsanis said it is acceptable for the Crown to ask specific police officers who are attached to a case for their opinions about the partiality, eligibility, or suitability of any prospective juror.
"Provided that any relevant information is disclosed, consultation that is limited to a few individual police officers does not, in itself, create an imbalance or an appearance of unfairness," Judge Karakatsanis said. "Nor does it represent an unjustified invasion of juror privacy."
She noted that information consisting of mere opinion or general biographical facts which either side could easily obtain need not be disclosed to the defence.
"General impressions, personal or public knowledge in the community, rumours or hunches, need not be disclosed," she said.
In a second murder case before the Supreme Court – R v Yumnu – Mr. Justice Michael Moldaver said that the Crown erred by not disclosing information obtained by police jury-vetting. However, he said their omission fell short of altering the course of the trial.
Judge Moldaver set the bar high for overturning trial results where unfair jury-vetting has taken place. In order to obtain a new trial, Judge Moldaver said, the defence must show that the jury would likely have been constituted differently had the Crown shared the information it had on prospective jurors.
Judge Moldaver said that the danger of a wrongful conviction arises when penetrating information has been mined by the Crown and kept from the defence.
"When conduct of that nature is found to exist, it matters not that the accused may otherwise have had a fair trial; nor is it necessary to find that the accused may have been wrongfully convicted," he said. "It is the conduct itself that gives rise to a miscarriage of justice and demands that a new trial be ordered."
In a third ruling, R v Emms, the court expressed particular concern that the Crown had engaged in jury-vetting efforts which went against a directive the Ontario Ministry of the Attorney-General had issued recently.
Judge Moldaver said that the Crown in the case had asked the police to make a legitimate criminal record check for each potential jurors. But police went further and supplied information from their databases that indicated some jurors appeared to be "of disreputable character."
While the information ought to have been provided to the defence, he said, the error was not so serious as to warrant a new trial.
The cases are amongst a series that have popped up in recent years and raised questions about the impartiality of juries.
The issue erupted into sustained controversy in 2008, after the Crown revealed that police in Barrie, Ont., had been systematically running computer checks on potential jurors.
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.
Prosecutors in Barrie had begun 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 learned of the practice in 2008 and attacked the Crown for allegedly trying to hand-pick jurors in order to improve their chances of gaining a conviction.
Lawyers for the defendants accused the Crown of attempting to sugar-coat a reprehensible practice.
"The objective of jury-vetting is to obtain a favourable jury," defence counsel Gregory Lafontaine during oral hearings in the Supreme Court. "There is no other logical reason – laudable or otherwise – for the Crown to resort to jury-vetting."
In a related case last month, the Ontario Court of Appeal overturned a guilty verdict in a four-month murder trial on the basis that prosecutors had obtained masses of private information about potential jurors in contravention of a Crown directive instructing them not to do so.
The decision granted a new trial to a Barrie man, Clare Alexander Spiers, in the abduction and murder of a woman and the abduction of her infant grandchild.
The Crown at the 2007 murder trial had been privy to private, background information about the mental health, age and driving records of many of the 280 citizens in the jury pool.
It later emerged that, prior to trial, prosecutors had sent jury-panel lists to seven police detachments. Police were asked to provide details or comments that might help the Crown determine whether a potential juror was pro-law enforcement or held negative attitudes toward police.
Police assembled hundreds of pages of material by consulting criminal records, highway traffic-act violations and databases that contain information about incidental encounters with police. The jury-panel lists were returned with comments such as, "has mental issues," "complaint in domestic assault," or "hates police."
In their defence, the prosecutors said they had been unaware of a Ministry of the Attorney-General directive forbidding any jury-vetting that goes beyond criminal-record checks.