In this issue, both Legal Ethics columnist Philip Slayton and incoming Canadian Bar Association president Kevin Carroll touch on the explosive issue of police and prosecutors doing background checks on potential jurors. At least two mistrials in Ontario were declared once the irregular, perhaps even illegal, practice came to light.
Ontario’s privacy commissioner and Attorney General Chris Bentley jointly have sent out detailed questionnaires to all 54 Crown prosecution offices in the province “to determine the nature and extent of this practice.” The Ontario Criminal Lawyers’ Association has also demanded that Bentley’s office provide “full disclosure of all information in the ministry’s possession relating to any prior jury trials in this province in which this practice is known to have occurred.”
Chances are there are more cases in which this has occurred than the few that have become public. It’s not just a question of whether the privacy of jurors has been breached but that secret background checks on the jury pool are essentially illegal under the Ontario Juries Act.
The implications of this practice do more than simply bring the administration of justice into disrepute, it will be costly on many levels. If it’s found to be widespread, there will be a wave of defence counsel filing appeals, which will take valuable court time. Likely there will be civil lawsuits filed against police and prosecutors. Will it be the individuals involved that are going to pay damages if they’re found culpable? Unlikely. Taxpayers will, once again, have to foot the bill.
The AG must come down hard on prosecutors who have participated in this folly: any Crowns who may have been involved should be reported to the law society. It, in turn, must institute disciplinary proceedings. Those Crowns found to have been involved should be disbarred. It would send a message both to other Crowns and to the public that the justice system has integrity — and don’t mess with it.
