The Supreme Court of Canada and the Ontario Court of Appeal are presently considering a number of cases where the Crown probed the personal backgrounds of prospective jurors, including mental health records, driving records, and entries on police databases. See Kirk Makin’s article in the Globe and Mail today.
This jury vetting undermined the sanctity of the jury system and fair trial rights of accused persons for a number of reasons.
Aside from the invasion of privacy involved in the vetting, this information also had the potential to give the Crown an unfair advantage in trials. The Crown did not share this information with defence counsel, contrary to the Crown’s obligation to disclose all potentially relevant information to the defence.
Most Canadians likely believe that potential jurors are questioned by lawyers to weed out biases, or to find favourable jurors, as we usually see in American movies. The reality, however, is that in Canada lawyers do not get to ask questions to potential jurors. Instead, the trial judge asks potential jurors a few questions to make sure they do not know anyone involved in the case, have no prejudices, and have an open mind about the accused’s guilt. As a result, the Crown had the potential to gain a significant advantage by using police resources to conduct background checks.
The vetting practice is also offensive because Ontario’s Juries Act contains very few restrictions on who can be a juror. Every Canadian citizen over the age of 18 can be a juror unless that person:
(a) has a physical or mental disability that would seriously impair his or her ability to discharge the duties of a juror; or
(b) has been convicted of an offence that may be prosecuted by indictment, unless the person has subsequently been granted a pardon.
When the Crown excluded jurors based on the ill-gotten information obtained from jury vetting, they offended the democratic principles of equality which underlie an accused’s right to a trial by a jury of his or her peers.
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