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.

How A Charge Is Laid Under The Canada Elections Act

With all the recent news of election fraud and automated phone calls or robocalls directing voters to the wrong polling station in the last federal election, it is worthwhile to take a walk through the Canada Elections Act and particularly look at the Act’s mechanism for enforcement. In this blog posting, I will explain how a charge is laid under the Canada Elections Act.

According to the Elections Canada website, the Commissioner of Canada Elections, as appointed under the Act by the Chief Electoral Officer of Canada, is an independent, non-partisan, officer whose duty is to ensure that the Canada Elections Act is complied with and enforced.

Who is the Commissioner? Well, presently, Canada Elections is seeking a new Commissioner and the deadline is tomorrow, March 2, 2012. The current Commissioner is William Corbett, who was appointed in 2006.

How is a possible violation investigated? Under s. 510, the Chief Electoral Officer, presently Marc Mayrand, may refer to the Commissioner for an inquiry a violation committed by an election officer or any person who may have committed an offence under sections:

1. 486(3)(a) - signing nomination papers where ineligible;
2. 486(3)(d) - publication of false statement of withdrawal of candidate;
3. 488 - unauthorized printing of ballots;
4. 489(3)(g) - being a deputy returning officer and placing identifying mark on ballot;
5. 493 - failure to appear before a returning officer and;
6. 499(1) - removal of posted election documents.

Additionally, according to s. 511 of the Act, the Commissioner, if he believes on reasonable grounds that an offence under the Act has been committed, may refer the matter to the Director of Public Prosecutions, now Brian Saunders, who will then decide if a prosecution is warranted. If a prosecution is warranted the Director then requests the Commissioner to lay an Information before a Justice of the Peace or a Provincial Court Judge.

An Information is the charging document initiating the prosecution. In order to lay an Information, the Informant, in this case the Commissioner, must swear under oath and in writing, his reasonable and probable grounds for believing an offence has been committed. The Commissioner must also indicate the place and time of the alleged offence.

Once the Justice receives the sworn statement from the Commissioner, the Justice must determine if the sworn statement actually discloses reasonable grounds for the commission of an offence. Although this is the first judicial determination made on an allegation, the Justice is not deciding upon guilt or innocence. The Justice is simply satisfying himself that there is a prima facie case based on the sworn statement. The Justice does not weigh the evidence at this point but takes the evidence contained in the sworn statement at face value, meaning the Justice assumes the truth and integrity of the information. If the information, as presented, fails to satisfy the Justice that there are reasonable grounds for the charge, then no process is issued (as in a summons to court or an arrest warrant) and the charge is not initiated. 

Therefore, in some circumstances, a charge under the Canada Elections Act cannot be laid until a myriad of steps have been fulfilled such as:

1. The Chief Electoral Officer reviews the alleged violation and if the Chief has reasonable grounds to believe there may be a violation, refers the matter to the Commissioner for inquiry;
2. The Commissioner then conducts the inquiry and if the Commissioner believes on reasonable grounds a violation may have been committed, he may refer the matter to the Director of Public Prosecutions;
3. The Director of Public Prosecutions reviews the violation and if prosecution is warranted, the matter is sent back to the Commissioner;
4. The Commissioner must attend before a Justice of the Peace to lay an Information, the JP, must receive the complaint from the Commissioner, but must only issue process or initiate charges, upon being satisfied there are indeed reasonable grounds for the offence before a charge can be laid under the Canada Elections Act.

In the end, it is much more difficult to lay a charge under the Canada Elections Act, than it is for a charge to be laid under the Criminal Code. Anyone can appear before a Justice and swear an Information that they believe on reasonable grounds that a crime has been committed under the Code. If a Justice is satisfied there are reasonable grounds, then process is issued and a charge is laid.

Considering the right to vote is constitutionally protected under s. 3 of the Charter of Rights and Freedoms, the layers of inquiry required involving three different officials, who all must have reasonable grounds to proceed, seems incongruous. This is particularly puzzling in light of the Supreme Court of Canada’s robust and expansive interpretation of the democratic right to vote as being more than merely the right to cast a ballot. Indeed, the right to vote includes a citizen’s right to play a meaningful role in the electoral process.

There is, therefore, a positive obligation on the government to provide appropriate arrangements for the effective exercise of the right to vote. The government, to fulfill this obligation, must create an electoral apparatus to permit the exercise of this right, including implementing the rules and procedures for ensuring fair elections by providing the protection against violations of that right. The importance of this right cannot be underestimated or taken for granted and should be protected as all rights guaranteed under our Charter are so protected. It remains to be seen if this present "scandal" will effect any changes in order to re-align the actual electoral process more appropriately with our cherished Charter values.

Safety First: Laboratory Safety and the Criminal Code

A Scientific American article on the safety of academic laboratories recently caught my eye. The article entitled Are University Labs Criminally Dangerous? revealed a systemic weakness in the safety standards on campus labs resulting in some serious and at times fatal lab incidents.

One such incident in 2008 killed She­harbano “Sheri” Sangji, a 23 year-old lab research assistant at UCLA. Sheri died eighteen days after chemicals she was working with burst into flames and spread to her clothing. She was not wearing a protective lab coat as required by safety code regulations.

Now felony charges have been laid against the U.C.L.A. chemistry professor in charge of the lab, Patrick Harran, and the Regents of the University of California for criminally breaching lab safety codes under the occupational health and safety code. Harran, if convicted, faces up to 4.5 years imprisonment.

UCLA vigorously denied any criminal responsibility calling the charges “outrageous.” In the statement released by UCLA after the charges were laid, the University questioned the “truly baffling” charges, which were inconsistent with the University’s co-operation in an “exhaustive” safety investigation, the subsequent finding there was no “willful violations” by UCLA, and the fining of the University under regulatory offences. The University was fined $31,000 by the California Division of Occupational Health and Safety in 2009 as Sangji was not properly trained, had not been provided with protective clothing, and had not addressed “deficiencies noted in an internal safety inspection two months before the fatal fire in Harran’s organic chemistry lab, including a finding that workers were not wearing lab coats.”

The arraignments on the charges have been delayed until March 7, 2012.

Universities in Canada implement their own lab regulations, which tend to require even higher safety standards than the already strict lab safety guidelines. Safety training is even an integral part of school science curriculum. Individual school boards also set safety guidelines.

However, industrial lab accidents are not unknown in Canada, even with a strict regulatory regime. In 2008, approximately two months before the UCLA incident, Roland Daigle, working for the drug manufacturer Sepracor Canada as a lab technician, was exposed to vapours from trimethylsilyl diazomethane while doing a test and subsequently died after his lungs filled up with fluid over an eighteen hour period. Similar to the UCLA offences, the company was charged under the Nova Scotia Occupational Health and Safety Act with “failing to ensure adequate personal protection equipment was in place in Daigle’s work area, failing to ensure that an adequate venting system was in place, failing to ensure he was instructed in the safe use of the chemical, and failing to ensure that no person would disturb the scene of an accident after it occurred.” In a May 2011 plea negotiation, Sepracor pleaded guilty to one charge of failing to provide ventilation and was fined $45,000. The Daigle Family publically denounced the plea negotiation as a “slap on the wrist.”

Of course, the Sepracor incident was dealt with under the provincial regulatory framework and such offences, being public welfare offences and not criminal, do not typically attract serious sanctions. The maximum punishment under the Nova Scotia OHSA is a fine of not more than $250,000 and/or imprisonment not exceeding two years.

However, 2004 amendments to the Criminal Code created under s. 217.1 a legal duty to for “Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."

Such a legal duty can underpin a criminal code charge, which requires as an element of the offence a failure of an accused to act where there is a legal duty to do so. Thus, a corporation or manager may be charged under s. 219(1)(b) of the Criminal Code with criminal negligence by “omitting to do anything that it is his (legal) duty to do” and “shows wanton or reckless disregard for the lives or safety of other persons.” To date, only two employers have been convicted under this new workplace duty.

The question whether regulatory behaviour should be criminalized has been much debated. On one hand are the facts of each particular case such as the deaths of Roland Daigle and Sheri Sangji. On the other hand are deeply held fundamental principles of our criminal law, which cannot and should not be lightly set aside. I will leave this fascinating, yet complex discussion for another posting, but what is clear, as seen by the Canadian and American cases, is that our workplaces can be “criminally dangerous.”

The Trial Judge Deserves Deference!

Oftentimes a Supreme Court of Canada decision can be, at first glance, unimportant, particularly when the decision is brief. This can happen when the Court readily agrees with the lower Court decision, either the majority or even the dissent, and does not feel the need to add to the already cogent written decision. Sometimes, these one-liners by the SCC, fly under the radar and are not recognized as impactful decisions.

Such was seemingly the case in a recent decision of the Supreme Court of Canada in R. v. T.L.M. released on February 14, 2012. The case, heard by a panel of seven justices as opposed to the full court complement of nine, was an appeal from the Supreme Court of Newfoundland and Labrador - Court of Appeal. In a pithy yet brief decision, Madame Justice Deschamps stated:

We agree with Hoegg J.A., dissenting at the Court of Appeal, that the trial judge committed no reviewable error. Therefore, the appeal is allowed.

This innocuous manner of overturning a lower Court decision belies the true nature of the case as revealed by a closer reading of the lower Court decision. Indeed, through the lower court decision, T.L.M. takes on a more complex meaning and sheds light on another decision of the SCC, the D.A.I. case, released only four days previously.

The D.A.I. case is of huge national importance pronouncing on the capacity of adults with mental disabilities to testify at trial under s.16 of the Canada Evidence Act. Section 16 outlines the procedure to be adopted when an adult witness’s mental capacity to testify is challenged at trial. If the witness does not understand the nature of an oath or a solemn affirmation and cannot communicate the evidence, the witness cannot then testify. If however, the challenged witness does not understand the nature of an oath but can communicate his evidence, he may testify upon promising to tell the truth in accordance with s. 16(3). In the D.A.I. case the trial judge upon entering into an inquiry as required by s.16 found the 23 year-old witness, who had a mental capacity of a three to six year old, could not testify as she did not understand the duty to speak the truth.

The majority of the SCC, speaking through Chief Justice McLachlin, found the trial judge erred in her application of s.16 by requiring the witness to understand the meaning of telling the truth before being permitted to testify. Section 16(3) merely required the witness to be able to communicate the evidence as a prerequisite to testifying. Once this was fulfilled, the witness could then testify upon promising to tell the truth. There was no need for the trial judge to determine whether or not the witness understood what such a promise entailed. Thus, Chief Justice McLachlin’s decision gave this second part of the s. 16(3) determination, the promise to tell the truth, a broad and generous interpretation consistent with the public policy of the “need to bring to justice those who sexually abuse people of limited mental capacity — a vulnerable group all too easily exploited.”

The connection between these two cases, T.L.M. and D.A.I., is found in the appellate principle of deference, referred to in both decisions, but more specifically, as referred to by Justice Binnie and Chief Justice McLachlin.

The main issue in the T.L.M. appeal, as discussed in the lower Court decision, related to the admission of similar fact evidence in a trial involving sexual offences against a child. The similar fact evidence was of another sexual offence against a child, which occurred at the time of the offences before the court. The main issue was credibility, with the accused, the child’s uncle, denying the offence. The similar fact evidence, which was admitted by the trial judge, was relied upon in disbelieving the accused and convicting him of all charges.

The majority of the Newfoundland appellate court found the trial judge erred in his application of the legal test for admissibility of similar fact evidence. To come to this decision, the majority relied upon the principles for admission as enunciated by Justice Binnie in the SCC decision of R. v. Handy. The dissent of Mr. Justice Hoegg disagreed with the majority and found the trial judge made no legal error in admitting the similar fact evidence. Justice Hoegg also relied on Binnie J.’s decision in Handy and made especial reference to Justice Binnie's comments on the “substantial deference” to be given to the trial judge’s decision on admission of similar fact evidence. It is Hoegg’s dissent, which the SCC accepts in allowing the appeal. neither Justice Binnie nor Chief Justice McLachlin sat on the appeal.

Chief Justice McLachlin, in D.I.A., also commented on the principle of deference: an appellate principle in which the court reviewing the trial judge’s reasons defers or accepts the trial judge’s decision based on the judge’s superior position having heard and observed the evidence as opposed to the appellate court, which only reads the evidence and arguments in written form. In Chief Justice McLachlin’s opinion, the trial judge’s error was fundamental and therefore no deference should be given to her decision.

Justice Binnie in dissent, and no stranger to the issue of deference as pointed out in the Handy case, disagreed and stated the following:

The majority judgment in the present case repudiates the earlier jurisprudence and the balanced approach it achieved.  It entirely eliminates any inquiry into whether the potential witness has any “conception of any moral obligation to say what is ‘right’”. 

In the result, despite all the talk in our cases of the need to “defer” to trial judges on their assessment of mental capacity, a deference which, in my opinion, is manifestly appropriate, the majority judgment shows no deference to the views of the trial judge whatsoever and orders a new trial.  I am unable to agree.  I therefore dissent.

Justice Binnie’s very strongly worded dissent takes issue with the lack of conviction the majority has with the principle of deference: in other words, the Chief Justice and the other Justices concurring in her decision, do not “walk the walk” when it comes to deference. These incongruous comments on deference by the majority become even more incomprehensible in light of the oft-quoted Marquard case, involving testimonial capacity, in which Chief Justice McLachlin stated:

It has repeatedly been held that a large measure of deference is to be accorded to the trial judge's assessment of a child's capacity to testify.  Meticulous second‑guessing on appeal is to be eschewed.  As Dickson J. (as he then was) put it (at p. 135) in the oft‑cited case of R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), aff'd [1966] S.C.R. v, a trial judge's discretion in determining that a child is competent to testify "unless manifestly abused, should not be interfered with."

Justice Binnie relied on McLachlin C.J.’s Marquard decision in his dissent in D.A.I.

In the end, the deference issue may come down to this: appellate courts will give deference more readily when the trial judge admits evidence than when the trial judge finds evidence inadmissible. It appears at least in matters of admissibility the SCC prefers to give deference to the principle of admissibility over exclusion. Although this approach may recognize more readily the public’s desire to have a matter tried, it may do so at the cost of a fair trial.