Is the Supreme Court of Canada "Kicking It Old School"?

When I practiced as appellate counsel in the Court of Appeal for Ontario, I came to know the differing approaches of the Justices of Appeal very well. Just prior to the hearing date, I would call the Registrar's office seeking the one piece of information which could make or break a favourable hearing: the panel list. Would there be a Justice on the panel familiar with and sympathetic to criminal law issues? Or would the panel be stacked with Justices more concerned with commercial liens and the division of property?

In truth, the best panel was not filled with Justices learned in the law but those hardened by the trial courts: those Justices who had spent the prime of their career sitting in the lower level courts presiding over murders, robberies, and drug conspiracies. Judges like Justice John Brooke, Justice Allan Goodman, and Justice Horace Krever were the best draw in a criminal appeal as they exercised their judgment and common sense in a manner made for a criminal appeal. True they were no stranger to case law, indeed, they made case law. But their legal acumen was enhanced by their uncanny ability to seize upon the heart of an issue and render a fair and equitable decision. For this panel, the law was known, and the advocate's challenge was to adroitly respond to the comments made by these wily and nimble judges, who could see the play of a trial in their mind's eye, like an intricate chess game, and thus appreciate the dynamics of the case before them.

In contrast, the Supreme Court of Canada seemed to be more lofty, requiring a sublime understanding of the case law. Only Chief Justice Lamer, as he then was, (and yes, I just dated myself) offered a refreshing glimpse of one who was, like Leo Bloom in Ulysses, a journeyman accustomed to the realities of the trial courts. 

This nostalgic foray was brought about by the recent decisions of the Supreme Court of Canada, some of which I have written about in prior postings here, here, and here, culminating in the last effort when the SCC released the jury vetting trilogy. The trilogy decision seemed effortless, straight forward, almost easy and uneventful. On the second reading, it dawned on me why this was so: the decision was based on a common sense and practical approach to criminal law. The decision was pure trial judge.

Essentially, the decision approves of background criminal record checks of jurors, where legislation permits, as long as the information is subsequently shared with the defence. By extension, should the police or the Crown come across other pertinent information relating to the potential juror through other investigative techniques, then that too can be used in choosing a jury, but again with the concomitant obligation to disclose the material.

However, this disclosure is not limitless in its aspect. Often experience and intuition are invaluable tools, producing invaluable information. Such irreplaceable information gleaned through years of practice, need not be shared and cannot be reproduced to form part of a disclosure package. How true. Common sense cannot be packaged and this decision, together with the other recent SCC decisions I blogged about show that common sense can make precedents. As an aside, these decisions were all written by Justice Moldaver, a recent SCC appointment from Ontario, who not only sat as a Trial judge but was also a defence lawyer. It seems as though the SCC is truly kicking it old school!

Important Judgments To Be Released From The Supreme Court of Canada

The Supreme Court of Canada will be releasing two judgments in the next two days: the N.S. case, resolving the question of testifying behind the veil and the jury vetting trilogy cases in Duong, Cardoso, and Yunmu. I have written blogs on both cases: Testifying Behind The veil: A Study of Conflicting Charter Rights; Testifying Behind The Veil: The facts in the N.S. case; Testifying Behind The Veil: The Human Factor; Jury Vetting and The Supreme Court of Canada; and Jury Vetting and The International Perspective. Check back to this blog site for further discussion of these issues.

Jury Vetting: The International Perspective

In my previous posting, I discussed jury vetting, which is at issue in the Duong, Cardoso, and Yumnu cases scheduled to be argued on Wednesday and Thursday this week before the Supreme Court of Canada. Jury vetting involves the investigation of potential jurors outside of the legislated jury selection process. It is frowned upon in Canada and in the last posting I explained the legal issues involved and how jury vetting impacts our criminal justice system. Today I want to discuss the International perspective with a view to revealing how other jurisdictions approach jury vetting.

As Canada is a Commonwealth country and our laws are based on the English common law tradition, it is best to start our review with the United Kingdom. In England, the legislated jury process is similar to Canada’s procedure. As in Canada, challenges are permitted in the in-court selection of jurors but limited by legislative requirements. As in the recently amended Ontario Juries Act, a criminal records check is automatically done on potential jurors.

There is also a mechanism for a more detailed check called an “authorized jury check,” which may delve deeper into government records on an individual and may include, for example, a Security Services check. This can only be done upon the authorization of the Attorney General acting in accordance with the Attorney General’s Guidelines on Jury Checks. Typically, this kind of exceptional check is done in cases of “public importance” where it is in the “interests of justice” to further safeguard the jury process and any potential bias. Such cases may be those, which engage national security or a “terrorist” case. Indeed, in the mid-1970s before these guidelines were in place, such exceptional checks were conducted for the 1974 trials of IRA activists.

Australia, another Commonwealth Nation, also retains similar jury selection practices as in Canada and the UK. In the early 1990s, a jury vetting scandal rocked the justice system, which resulted in an inquiry into the matter. The improper jury vetting practices arose out of two very high profile cases, involving politicians, whereby potential jurors were asked for their political views and private investigators were hired to do in-depth investigations of the backgrounds of potential jurors. The resultant Inquiry revealed the vetting practice was more widespread. The prosecution also vetted jurors on the basis of criminal records and under the authority of the Australian Criminal Justice Rules. Although the Rules survived an unsuccessful legal challenge, the difficulty in Australia has been the inconsistent jury vetting practices exercised in differing districts.

Many jurisdictions in the United States check potential jurors for criminal records as authorized by their legislation. However, many jurisdictions do go further and use background information gathered by investigators, usually private ones, in the actual in-court jury selection process. This information results in carefully crafted questions put to the potential jurors based on their potential bias as gleaned by their personal background information.

It appears that many jurisdictions perform criminal records checks on potential jurors but as connected to the legislative requirements for jury selection. Although Australia does not have a consistent practice, which has raised fairness issues, the UK does have a set procedure.

The problem with the Ontario case is two-fold: first, criminal record checks were performed and second, background reputation evidence was gathered. Of course the first issue was subsequently fixed by amending the Ontario legislation. However, in some provinces such as Alberta, the Jury Act does not permit the police to engage in such checks. In fact, a juror is excluded from service if convicted of a criminal offence (either indictable or summary conviction) or if simply charged with a criminal offence. The Alberta Act is therefore more restrictive in its eligibility requirements than the Ontario version.

The second problem arising from the Duong, Cardoso, and Yumnu case is the use of reputation information. This is clearly not permitted in any legislation and provides additional information, which is not normally available or provided in the jury selection process. This kind of information is not gathered in the UK and Australia, as a result of inquiries into jury vetting practices, however this type of information is properly gathered in some jurisdictions in the United States. The real question for Canadians will be where should we draw the line on jury vetting practices. Unfortunately, the Court of Appeal for Ontario did not address this issue. The hope is the Supreme Court of Canada will.

When the news of the jury vetting in the case hit the media, “jurygate” in Ontario was born, and the issues became a public one. What resulted, even before the appeal was heard, was an investigation by the Ontario Ministry of the Attorney General into jury vetting practices as well as an investigation by the Ontario Privacy Commissioner. The Commissioner’s Report called for an end to the jury vetting practices used in the case.

Not matter on what basis the SCC decides the issues, the situation is also a problem of consistency. Both the Federal and provincial governments will have to create a legislative process whereby potential jurors are checked for only ineligibility issues. Provincial Jury legislation must reflect this consistency. If we want to safeguard our jury system and provide a fair trial for all, we must ensure jury-vetting practices are in line with our fundamental values and are fulfilled equally in all jurisdictions.

Don't Pre-Judge! Jury Vetting and the Supreme Court of Canada

Next Wednesday and Thursday, the Supreme Court of Canada will be hearing the appeals of Tung Chi Duong, Vinicio Cardoso, and Ibrahim Yumnu, which raise the issue of jury vetting: a process where the prosecution does a pre-court check of potential jurors. The three Ontario co-accused were convicted of first-degree murder and conspiracy to commit murder involving a contract killing. The Crown’s office, upon receipt of the jury panel lists containing the names of potential jurors, requested police enforcement authorities to do criminal record checks of the listed individuals and to make any comments “concerning any disreputable persons we would not want as a juror.” The Crown did not disclose the information received through this pre-vetting process to the defence, although there was some evidence trial counsel was aware of this practice. The information was used by the trial Crown in selecting the jury for the trial.

In terms of the legislative authority to perform such a check, neither the Criminal Code rules relating to the jury selection process in court nor the pre-trial rules found in the provincial Juries Act, as enacted at the time of the trial, permitted the procedure. It should be noted that the Ontario Juries Act has since been amended, under s.18.2, to provide a procedure for police to pre-check a potential juror for the presence or absence of a criminal record. Such a check is required under s. 4(b) to determine if a potential juror is ineligible to serve as a juror due to a prior conviction for “an offence that may be prosecuted on indictment.” The phrase “may be prosecuted on indictment” refers to the mode of trying the accused’s case in the criminal courts.  An indictable offence is considered to be a more serious crime and carries a higher penalty than a less serious summary conviction offence. Certain indictable offences give the accused the right to have the trial in the Superior Court as opposed to Provincial Court. Some indictable offences, such as murder, also give the accused the right to a jury trial.

Generally, pre-vetting of jurors is not an acceptable practice in Canada. Such a pre-trial process is contrary to the fundamental principles of justice, which require the offender to be tried before an independent and impartial jury. Since the advent of the Charter, this fundamental principle has been constitutionally protected under s. 11 (d) and is inexorably bound up with another core criminal law principle: the presumption of innocence. I have written at length on the historical significance of the presumption in earlier postings. More generally, this procedural right to a fair trial is also protected under section 7 of the Charter as the principle lies at the very heart of the administration of justice.

The issue is one of impartiality under the Charter. Section 11(d) protects an offender’s right to a fair trial before an independent and impartial jury. Permitting pre-vetting of jurors has the potential effect of selecting biased juries, which are neither independent nor impartial, but based on selected criterion. The resultant effect is a pre-packaged or pre-determined jury, which would therefore favour the party using the pre-selection process. In other words such a jury would “pre-judge” the issues.

Even the potential for bias is contrary to our concept of trial fairness. As discussed by Justice Cory in the Bain case, apprehension of jury bias is to be avoided as the mere appearance of impartiality would be contrary to Charter principles. Although the concept holds the administration of justice to a high standard of impartiality, the apprehension of bias must be reasonably held. Thus, the question to be determined on the issue of bias is as follows: would reasonable and right-minded persons find there a reasonable apprehension of bias in the circumstances.

This question brings us back to the Duong, Cardoso, and Yumnu case. On appeal to the Court of Appeal for Ontario, appellate counsel did not refer to the arguments as outlined above but focused instead upon the Crown’s lack of disclosure of the vetting process. In the appellant’s view, this lack or delay of disclosure compromised the defence’s ability to make full answer and defence under s. 7 of the Charter. This position was easily dismissed by Justice Watt, speaking on behalf of the Court, as there was no evidence of any actual or perceived unfairness of the selection of the jury based on this non-disclosure. Unfortunately it appears the defence will be making the same arguments before the Supreme Court of Canada as revealed by a perusal of the appellant Yumnu’s factum.

However, a large number of Intervenors have filed material and will be making submissions on the issue such as the Criminal Lawyers’ Association, the Ontario Crown Attorneys’ Association, David Asper Centre for Constitutional Rights, Information and Privacy Commissioner of Ontario, Canadian Civil Liberties Association, and the British Columbia Civil Liberties Association. It remains to be seen what arguments will be finally presented on this issue and it will be of great interest to see how the Supreme Court of Canada ultimately deals with the issue of pre-vetting a jury.

In the next posting, I will continue the discussion through the international perspective on the efficacy and issues surrounding jury vetting.