Jury vetting -- at least a dozen cases at risk of retrial

On Tuesday the Court of Appeal will release its decision in R. v. Yumnu, Duong and Cardoso.

Yumnu, Duong and Cardoso were convicted on December 22, 2005 of first degree murder and conspiracy to commit murder after a nine month trial before a jury in Barrie, Ontario. The appellants appealed their convictions. During the hearing of the appeal, it became known that what is colloquially referred to as "jury vetting" had taken place prior to the commencement of the trial.

The Crown was given the jury lists in advance of what was is customary -- otherwise confidential information from government data bases was then used to choose jurors potentially favourable to the prosecution. Local police services had searched confidential databases to uncover information about hundreds of potential jurors, which was passed on to the Crown. The prosecutor, when picking the jury, had a list of potential jurors with notations from police beside their names such as "ok," "possible record," "fraud-dismissed," "criminal record peace bond entered," and, for a teacher: "accused of assaulting student." The defence had no such material -- and didn't know the Crown did.

The appeal was adjourned to permit the appellants and the respondent Crown to introduce evidence and arguments regarding the validity of the proceedings in light of this information.

A basic principle of Canadian justice is that the person deciding a case is impartial. The Supreme Court has stressed that the process of picking a jury is aimed at selecting an impartial jury, not one favourable to the Crown or defence. Jury vetting puts that principle aside and risks bringing the administration of justice into disrepute.

There are at least a dozen other outstanding appeals where jury vetting took place, including the case of a young man convicted of killing a police officer, all awaiting the outcome of the Yumnu case on Tuesday. Should a new trial be ordered -- and such a result is very possible -- many other cases will likely have to be retried.