Jury Vetting

About 1100 years ago Ethelred the Unready established a legal system where twelve landholders of each district were directed to investigate crimes without a bias. A key aspect of Ethelred’s juries was that they be impartial and render only an unbiased and fair verdict.

The jury system that evolved over the last millennium no longer has juries doing investigations of their own. Indeed, for a jury to consider anything beyond what they are told in open court is considered to be serious misconduct. That said, juries still have great value in serious criminal cases for two main reasons:

1. a panel of ordinary people, chosen at random, is seen as the best way to ensure a fair trial in very important criminal cases. The consensus of 12 ordinary people will result in a correct and common sense decision;

2 in important criminal cases the participation of a jury ensures public involvement in the system. By having juries comprised on ordinary citizens the decisions are seen to be those of the community as a whole.

Both reasons for having juries require a strict impartiality by the jurors. A jury must be able to decide without bias and evaluate the evidence with an open mind. Moreover, a jury must not only be impartial but must seen to be impartial.

In Canada the juries are selected from Canadian citizens who have not been convicted of a serious criminal offence. Nevertheless, juries are not chosen without input by the Crown and the accused – a pool of potential jurors is created and from that pool jurors are chosen at random. Once a juror is selected both the Crown and the accused have a right to excuse a limited number of jurors from consideration without giving a reason.

The decision to exclude a potential juror is usually based on little more than a gut reaction. The only information a lawyer normally has is the occupation and appearance of the juror. Having said that, the list of potential jurors is available to the Crown and accused a little more than a week before trial and, in theory, some background about each potential juror could be obtained by searching the internet or making local inquiries about individuals.

However, as has been widely reported, Crowns in the past had some special advantage.

Secret background checks of jurors in the Barrie Crown office took place in dozens of cases, dating back at least until 1996. Under the Juries Act neither the Crown nor the defence is permitted access to a jury list until 10 days before jury selection. But in the trial of Ibrahim Yumnu and his co-defendants, the Barrie Crown office got the jury list nearly seven weeks before any juror was supposed to attend court.

Once the Crown's office had the lists, they were sent to police. Hundreds of potential jurors were investigated using more than one database. Otherwise confidential databases that contain a wide range of information were used in the probe.

The results were turned over to the Crown's office and a colour coded list was constructed to help decide on the acceptability of a potential juror. One of the police officers involved in the vetting admitted that even addresses were analyzed to see if someone lived in a "nice area" which might make them more Crown friendly. People who had been charged with a crime, even if it was later dismissed, received a "thumbs down," because they might be critical of police, the officer admitted.

Now it is important to remember that Crown counsel are entitled to use whatever knowledge they have and there is nothing wrong with investigating the background of jurors. In a small town, for example, the local Crown would know who has, and who has not, had run-ins with police. The issue is not the investigation so much as the early release of information and the use of otherwise restricted data bases.

That said, there is a sense of unfairness. Twenty years ago the Supreme Court of Canada made it clear that “an accused [does not have] the right to a favourable jury”. More generally, the Supreme Court held:

The modern jury was not meant to be a tool in the hands of either the Crown or the accused and indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen

The matter is now before the Court of Appeal and may well end up in the Supreme Court of Canada.