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.