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Jury vetting dubious

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In March, the Supreme Court of Canada heard appeals of four murder convictions from two different cases based, in part, on the controversial practice of prosecution jury vetting. Decisions are still pending.

But if Canada's highest court condemns the practice, the convictions could be overturned and new trials ordered. And dozens of other already-decided cases could be impacted, leading to a cascade of criminal appeals.

All of this is due to prosecutorial conduct that's not only passing strange, but passing foolish.

Jury vetting involves police and Crown prosecutors doing background checks on potential jurors to determine whether they're likely to convict or acquit an accused.

The most notorious practices arose in the Barrie, Ont., Crown attorney's office, where prosecutors were privy to information about the age, mental health and driving records of individuals summoned for jury duty. Just how helpful to the Crown much of this information ultimately was is debatable. Much of the information gathered was fairly innocuous.

But jurors are supposed to be selected at random from a fair cross-section of the community. And they're supposed to be impartial as between the accused and the state.

The intention of the Crown's office is undeniable. It wanted to gain an advantage. When it came time to select a jury, it wanted to know who was, and wasn't, likely to convict an accused. The Barrie Crown's office sought to skew the jury-selection process in favour of the prosecution. To what degree it succeeded remains unclear.

The Ontario Crown Attorney's Office argued before the Supreme Court that jury vetting should be permitted because it reveals whether potential jurors have a criminal record or a possible conflict of interest. But clearly Crown attorneys' inquiries went beyond these narrow purposes.

Jury vetting is, at best, a suspect practice.

There's no legislation authorizing background checks of jurors. Neither the Criminal Code of Canada nor the various provincial juries acts that set out pretrial rules for organizing a court composed of judge and jury sanction it. It also flies in the face of hundreds of years of common law about the sanctity of being tried before an impartial jury of one's peers.

It's also unnecessary.

The Crown already has enough weapons in its legal arsenal to get the jury it wants.

If a Crown prosecutor has any inkling a prospective juror isn't impartial, he or she can "challenge" the juror by asking questions that might disclose a bias. The Criminal Code mandates a mini-hearing be convened before two other potential jurors, or alternatively two other persons appointed by the judge, who decide whether the impugned juror is biased. If they find the potential juror not impartial, he or she's dismissed.

But even where the Crown loses, it still usually wins.

Notwithstanding that the Crown's challenge of a juror's impartiality is defeated, the prosecution can still use what's called a "peremptory" challenge -- essentially an automatic veto -- to bar that same juror from hearing the case.

The Criminal Code grants the prosecution (and the accused) 20 peremptory challenges in the case of first-degree murder, 12 where the charge carries a penalty of imprisonment longer than five years. No reason for rejecting someone as a juror need be cited.

Thus, peremptory challenges already allow the prosecution to, in large measure, control the makeup of a jury. The Crown can eliminate anyone from trying a criminal case for any reason -- no matter how illogical or baseless.

All of which raises the question of why Ontario prosecutors would recklessly engage in the legally dubious practice of pretrial investigations of members of the jury pool in the first place. Their systemic jury vetting has not only jeopardized the murder convictions currently awaiting Supreme Court decisions but also potentially opened the door to a raft of similar criminal-conviction appeals.

The Crown's conduct has also done collateral damage to public faith in the criminal justice system.

The media and online commentators are often quick to criticize the judiciary, sometimes wrongly, and sometimes crassly. If a judge acquits an accused, there's a good chance he or she will become a lightning rod for criticism.

But jury verdicts have always been less suspect in the eyes of the public. In hard cases, where the law demands close calls and tough decisions, if a jury acquits an accused, it's usually accepted by the public and media. And surveys repeatedly disclose that people believe -- rightly or wrongly -- that a jury is more likely to arrive at a just and fair verdict than a judge.

Trial by jury still induces confidence in the justice system. But public belief in the legitimacy of the criminal justice system has taken a hit in the wake of these cases.

It will take an even bigger hit if the Supreme Court allows jury vetting to continue. The smart money says the it can't let it continue, and won't.

 

Douglas J. Johnston is a Winnipeg lawyer.

 

Republished from the Winnipeg Free Press print edition June 1, 2012 A13

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