Jury vetting by the Crown and police gives rise to a number of concerns. First is the prospect of the Crown and police joining forces to obtain a jury favourable to their cause. Second is the fundamental precept of our justice system that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. Third is juror privacy.
There are, however, countervailing interests at play that warrant some limited checking and some minimal intrusions into the private lives of potential jurors. Only those persons eligible to serve as jurors should be permitted to participate in the process. Under provincial statutes and the Criminal Code, a potential juror’s criminal antecedents, and in some provinces his or her pending charges, may render that person ineligible for jury duty or result in his or her removal from the jury pool following a successful challenge for cause. Self‑reporting is one way of screening potential jurors, but it has proved to be less than satisfactory. Accordingly, absent legislation to the contrary, the authorities should be permitted to do criminal record checks on potential jurors to determine whether they are eligible to serve as jurors. In addition, in those provinces where the eligibility criteria cover persons who have been charged with a criminal offence, this is also something the authorities may properly check for. It is thus permissible for the Crown, with the assistance of the police, to do limited background checks using multiple police databases to identify potential jurors who, by virtue of their criminal conduct, are not eligible for jury duty. The imbalance resulting from the defence’s inability to conduct such searches is overcome by the disclosure obligations placed on the Crown. Information received by the Crown that is relevant to the jury selection process must be turned over to the defence, thereby restoring the balance. In return, defence counsel, as officers of the court, must make disclosure to both the court and Crown counsel where they know or have good reason to believe that a potential juror has engaged in criminal conduct that renders him or her ineligible for jury duty or cannot serve on a particular case due to matters of obvious partiality.
When it is discovered at the appeal stage that information about prospective jurors which should have been disclosed at trial was not disclosed, persons who seek a new trial on the basis that this non‑disclosure of information deprived them of their s. 7 Charter right to a fair trial must, at a minimum, establish that: (1) the Crown failed to disclose information relevant to the selection process that it was obliged to disclose; and (2) had the requisite disclosure been made, there is a reasonable possibility that the jury would have been differently constituted. In addition to these two steps, in the event the jury would have been differently constituted, it may be that the Crown should then have the opportunity to show, on balance, that the jury was nonetheless impartial.
With respect to the appearance of unfairness, there must be conduct on the part of the Crown and the police, within and surrounding the jury selection process, that would constitute a serious interference with the administration of justice and offend the community’s sense of fair play and decency. When conduct of that nature is found to exist, it matters not that the accused may otherwise have had a fair trial; nor is it necessary to find that the accused may have been wrongfully convicted. It is the conduct itself that gives rise to a miscarriage of justice and demands that a new trial be ordered.
In the case at bar, the Court of Appeal acted as a court of first instance in respect of the jury vetting issue. In these circumstances, its findings, like those of a trial court, are entitled to deference. On the issue of trial fairness, there is no basis for interfering with the findings of the Court of Appeal on the impact — or the lack of impact — that the jury vetting practice had on the jury selection process. Although the Crown failed in its disclosure obligations, as found by the Court of Appeal, there was no reasonable possibility that the jury would have been differently constituted had the pertinent information obtained from the vetting process been disclosed. The appellants received a fair trial by an impartial jury.
As for the appearance of unfairness and the suggestion that the verdicts are the product of a miscarriage of justice, although aspects of the Crown’s conduct were improper and should not be repeated, what occurred here did not constitute a serious interference with the administration of justice, nor was it so offensive to the community’s sense of fair play and decency that the proceedings should be set aside as a miscarriage of justice. The record checks were carried out in good faith and there was no attempt on the part of the police or the Crown to obtain a favourable jury. There is no basis for ordering a new trial.
Source: R. v. Yumnu, 2012 SCC 73