R. v. Yumnu, 2010 ONCA 637
It is common to hear complaints that the Courts are soft on crime and allow criminals to go free because of procedural errors by police or prosecutors. Such complaints are misfounded – Canadian courts are focused on substance. This week’s Ontario Court of Appeal decision in the Yumnu (“jury vetting”) case makes that abundantly clear.
On December 22, 2005 Ibrahim Yumnu and two others were convicted of first degree murder and conspiracy after a nine month jury trial in
Jury vetting occurs when the Crown has special additional information, unknown to the defence, about jurors. This may allow the Crown to choose a jury less inclined to acquit. The Attorney General has repeated forbidden the practice. In Yumnu's case the Crown received the jury list at least a month before it was supposed to. The list was then circulated to police for review.
A secretary for the senior Crown in
"Please check the attached jury panel list, for the persons listed in your locality and advise if any of them have criminal records. It would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror. All we can ask is that you do your best considering the lack of information available to us. Please relay the information by telephone."
Despite the scope of the Crown Attorney’s request, in the end, the police inquiries were limited to as to whether a prospective juror had a criminal record. It is proper to determine if a juror has a criminal record.
The Juries Act requires the list of names to be "under lock and key" until 10 days before a panel of potential jurors is to appear in court. The letter with the "attached jury panel list" was sent to police six weeks before jury selection began for Yumnu and his two co-accused-- more than four weeks before Crown or defence were supposed to be permitted to see the jury rolls. Nevertheless, even though the Crown seems to have had the jury list early, there was no significant impact on the jury process because only criminal background checks were performed. Such checks are proper and could have been performed within the ten day period had the Crown not received the list early.
In deciding if the trial should be set aside the Court of Appeal faced a difficult task. On the one hand, the reputation of justice depends on the public seeing that trials are fair – but on the other hand, persons convicted of dreadful crimes should not be allowed to go free because of procedural failures.
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. As the Court wrote: “Essential to the overall fairness of a criminal jury trial is a jury that is and appears impartial in their determination of the adequacy of the prosecutor’s proof. Neither the composition nor the conduct of the jury should give rise to a reasonable apprehension of bias. …To sustain a claim of a lack of trial fairness based on a reasonable apprehension of bias, the composition of the jury must be such that it leaves the well-informed observer with a reasonable apprehension of bias in favour of the prosecution.”
That said, the Court concluded that here, no actual prejudice resulted from the Crown’s request for review of records related to potential jurors. To demonstrate an impairment of the right to make full answer and defence, an accused must establish a reasonable possibility that the failure affected the outcome at trial or the overall fairness of the trial process. Here no such failure was shown and the trial decision stood.
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