Tuesday, October 6, 2009

Crown attorneys told to stop illegal juror checks

If it's illegal, why no charges?

Ontario's privacy commissioner has ordered the province's Crown attorneys to halt the collection of personal information about potential jurors beyond what is legally necessary.

In a report released Monday afternoon, Ann Cavoukian also asked the province's attorney general to create a single, centralized juror-screening process to minimize unnecessary background checks.

The 213-page report is the product of a four-month investigation into whether the privacy rights of prospective jurors were breached by police officers who conducted background checks on them on behalf of Crown attorneys.

The investigation found that 18 of the 55 Crown attorney offices in Ontario received background information about potential jurors that failed to comply with applicable privacy legislation.

It also found that practices regarding the disclosure of that information to defence counsel varied from jurisdiction to jurisdiction.

The results don't point to "a sweeping epidemic," Cavoukian said.

"However, while these practices varied in terms of their invasiveness, the fact remains that 18 Crown attorney offices across the province gathered personal information that exceeded the criminal conviction eligibility criteria set out in the Juries Act and Criminal Code," she said, referring to a law that bars individuals who have been convicted and not yet pardoned of an indictable offence from serving on a jury.

Implementing a new juror screening process would amount to "a fundamental shift in the way that prospective jurors are screened in Ontario," Cavoukian said.

The process would be run by the London-based Provincial Jury Centre, which already receives the names and personal information of all prospective jurors.

The PJC is "in an ideal position to implement strict privacy and security measures that can be strongly enforced," the report said.

Investigation launched after media report
Cavoukian launched her investigation on June 10, less than three weeks after a report in the National Post described jury vetting practices in Barrie. Reports of similar vetting in Windsor and Thunder Bay soon followed.

Commissioner employees were sent to conduct in-person interviews with Crown attorneys, court staff, police officials and defence counsel in four Ontario locations, including Windsor and Barrie. They also sent empirical surveys to all 55 Crown attorney offices and sought legal submissions from a variety of legal bodies including the Ministry of the Attorney General and the Canadian Civil Liberties Association.

The most frequent use of invasive background checks occurred in Barrie/Simcoe County, the report concluded, where jury vetting took place in at least 53 jury trials. In Sarnia/Lambton County and St. Thomas/Elgin County, it happened in 12 cases.

In one case, in Windsor/Essex County, jury vetting led one judge to declare a mistrial in a first-degree murder case.

In June, police in Windsor acknowledged reviewing ticket histories, pardons, family issues and young offender records of potential jurors in the hopes of determining which jurors might be most amenable to the prosecution.

At the time, the police didn't "have a policy on that type of thing," said Chief Gary Smith. "It has gone on," he said. "I don't know the frequency and I don't when it started."

Problems flagged in 1993
Cavoukian's report says the issue of jury background checks was first formally flagged to the attorney general's office in March 1993, after a judge questioned disseminating a juror's personal information. Despite a memorandum sent to a branch of the attorney's general office recommending that background checks should stop, they didn't, Cavoukian points out, leaving in place "this invasive practice."

"Since then, a series of opportunities to provide guidance to Crown attorneys was missed," Cavoukian said. "In the absence of clear direction, a patchwork of practices developed across the province."

Cavoukian hopes her order and recommendations create accountability in a process that "sits at the very heart of our judicial system."

"Jury duty is one of the core legal and moral obligations that we assume as citizens," she said.

"It follows that any practice that taints, or is perceived to taint, the jury process, strikes at the very heart of the values we share as citizens of a free and democratic society."


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