Jury Vetting

R. v. Davey, 2010 ONCA 818, released online today, is another jury vetting case.

In Davey, however, while the jury list was released early it appears both the Crown and defence received the lists at the same time. Further, while police were asked about the jury list they did not access otherwise confidential databases. As a result, the claim of improper jury vetting failed.

The Court writes:

[21] The jury array in this matter came from two panel lists. These lists were provided to the Crown on December 18, 2006, 21 days before the jury was empanelled. The lists would have been available to the defence at the same time and trial counsel (not Mr. Hicks) believes that he received the list a couple of weeks before the trial. Section 20 of the Juries Act provides that the jury list shall not be disclosed until ten days before the sittings of the court for which the panel has been drafted. The parties speculate that the early disclosure in this case is related to the fact that the Christmas holidays intervened before the January 8, 2007 scheduled date for the trial.

[22] In accordance with the practice in the Crown's office in this jurisdiction, copies of the lists were provided to the court officers from the three local police services in the region from which the jurors would be drawn. The officers were asked for their opinions as to the suitability of any of the potential jurors about whom they had an opinion. The officers added notations such as "good", "yes", "ok" or "no" to their copies of the lists, which were then returned to the Crown. An employee of the Cobourg Crown's office then transferred the information to a master list. The master list was given to Crown counsel prosecuting the appellant, but not to defence counsel.

[23] The court officers who received the lists might ask fellow officers for their opinions. They did not, however, access police databases such as CPIC. The common understanding of the police and Crown was that the Crown was inviting comments based on the officers' knowledge of potential jurors in the community. One of the court officers noticed that the deceased's brother-in-law was on the jury list. The officer notified Crown counsel who in turn notified the court and this person was removed from the jury array. Comments were made in relation to 118 of the 400 potential jurors. In this case, there was a challenge for cause. Thirteen of the 118 jurors about whom there were comments, made it past the challenge for cause stage.

[24] Defence counsel, who was from Toronto, showed his copy of the list to the appellant, his family and possibly the local referring solicitor.

…

[27] The appellant submits that the jury vetting in this case violated various provincial statutes concerning protection of privacy as well as the Juries Act. He submits that the failure to disclose the information in the master list was a breach of the Crown's disclosure obligations. Finally, he submits that the non-disclosure and the use Crown counsel made of the information led to an appearance of unfairness thus requiring a new trial.

Violation of Provincial Legislation

[28] The premature release of the jury list in apparent violation of s. 20 of the Juries Act does not affect the fairness of the trial or the validity of the jury selection process. The appellant submits that the purpose of the requirement that the list be kept under lock and key until ten days before the sittings of the court is so that neither Crown nor defence receives an unfair advantage. That may or may not be the purpose of the legislation. In any event, there is no evidence that the Crown did obtain an unfair advantage by reason of the release 21 days before the sittings of the court. According to the agreed statement of facts the defence also received the list before the ten-day period. There is no evidence to show that the defence was hampered in any way in making whatever inquiries it wished in preparation for jury selection.

[29] The appellant also submits that in seeking opinions from police officers, the Crown and the police violated various provisions of provincial privacy legislation such as the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. This is a complex legislative scheme with various exceptions permitting disclosure of information in the law enforcement context. The matter has been examined by the Privacy Commissioner, who has issued a report, Excessive Background Checks Conducted on Prospective Jurors: A Special Investigative Report (Toronto: Information and Privacy Commissioner of Ontario, 2009) which will no doubt be helpful in the future to the government in shaping privacy policy. In fact, there have already been amendments to the Juries Act since the jury vetting issue came to public attention. However, the appellant has not established any violations of the legislation. In any event, violations of privacy legislation do not in and of themselves undermine the fairness of the jury selection process. In this case, the appellant has not articulated how the alleged violation of this provincial legislation undermined the fairness of his trial and, in particular, how alleged violations of the privacy rights of others (the potential jurors) affected his right to a fair trial.

Disclosure

[30] The Crown's disclosure obligations are broad but they are not unlimited. In my view, the limit is reached where what is sought is nothing more than the personal opinions of police officers about potential jurors. The most recent explanation of the Crown's obligation is provided in R. v. McNeil, [2009] 1 S.C.R. 66 at para. 17:

The Crown's obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe [R. v. Stinchcombe, [1991] 3 S.C.R. 326] made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (pp. 343-44).

[31] Police officers' personal opinions about potential jurors are not relevant information relating to the investigation and are clearly not evidence to be adduced against the accused. Finally, such opinions are not "information" that will assist the accused in making full answer and defence. Obviously, some opinions fall comfortably within the Stinchcombe/McNeil disclosure regime. Opinions by experts, opinions by witnesses about the identity of the perpetrator and opinions by police and lay witnesses about the speed of a vehicle involved in a collision are potential evidence, or may assist the accused in the exercise of their right to make full answer and defence. Personal opinions about potential jurors are not.

Appearance of a Miscarriage of Justice

[32] The appellant's principal submission on this branch of its argument is that the Crown had an unfair advantage in jury selection that potentially enabled it to select, not an impartial jury, but a jury that would be biased in favour of the Crown. The appellant submits that he need not establish actual bias, merely the appearance of bias. An examination of what actually occurred in this case does not support this submission. I begin with the "information". What Crown counsel received were one-word opinions not based on CPIC or any other police data base. Only 13 of the potential jurors with these notations made it past the challenge for cause phase to a point where the information would have been useful to Crown counsel. The usefulness of the information is demonstrated by the fact that Crown counsel did not challenge one of the potential jurors with a "no" comment and that person became a member of the jury.

[33] The highest the defence can put its case, is that had they had the same information as the Crown, they might have exercised their peremptory challenges differently. Speculation that the accused might possibly have exercised his peremptory challenges in a different way does not establish the appearance that the Crown was able to obtain a favourable jury or establish the appearance of a miscarriage of justice. A reasonable and right-minded person viewing what occurred realistically and practically would not come to the conclusion that the jury appeared biased. In reaching that conclusion the reasonable person would take into account the following.

[34] First, the information was of limited use to Crown counsel. Second, Crown counsel actually disclosed instances where there was a real potential for bias: the brother of the deceased's widow and the juror who expressed an opinion about the appellant's guilt. Third, there was a challenge for cause in which potential jurors were questioned about their connection to the police force. Specifically, the trial judge agreed to ask if anyone was "closely associated with" a member of the police force or a correctional worker, and excused individuals accordingly.

[35] Finally, this so-called jury vetting must be put in context. The opinions gathered by Crown and defence were all in aid of the exercise of their peremptory challenges. Even where there has been a challenge for cause, as in this case, counsel have little more than intuition to assist in making decisions about how to exercise their peremptory challenges. In a smaller town, like Cobourg, the counsel, the accused and local police officers may have some information about the character or reputation of potential jurors, but little or no information that could possibly predict how a potential juror would act. Even with the short comments provided to the Crown counsel in this case, the exercise of peremptory challenges was little more than guess work, guess work that is permitted and sanctioned by the peremptory challenge regime.