Protecting juror’s background – The Law

Q: I recently received a summons for jury duty. I have some things in my background that I don’t want discussed in the community. Do I have to attend?

A: Generally speaking, you must attend or respond when you receive a summons for jury duty. Your name was chosen at random.

Provinces use different systems for choosing jurors such as health cards or voters’ lists. Your summons should tell you where and when to report for jury duty and include information about applying to be excused.

If you are employed in the justice system or are the spouse of someone who is, you can be excused and may be disqualified.

There is usually not much information about jurors disclosed during the selection process. Your occupation is noted and sometimes any criminal record. This information is disclosed to the lawyers but they may discuss it with their clients.

You should be aware that there have been cases of crown officials or the police doing secret background checks on potential jurors. When they have been discovered, they have been greeted with massive disapproval from our courts.

It is important to differentiate between what happens in Canada and elsewhere. Here, lawyers are only supposed to get the name, age and occupation of a juror, but if they have a criminal record for a serious offence, that information goes out because it can automatically exclude someone from serving.

In Saskatchewan, a farmer was accused of murder in what some called a mercy killing. An overzealous prosecutor and a police officer sent a questionnaire to the potential jurors to assist the crown in selecting jurors.

Five of the people who had received the questionnaire ended up on the actual jury. The farmer was convicted but on appeal it was overturned and a new trial ordered when the jury tampering was discovered.

The Supreme Court of Canada dealt with this issue at length. The court said the “actions of crown counsel at trial, which were fully acknowledged by crown counsel on appeal, were nothing short of a flagrant abuse of process and interference with the administration of justice.”

The question of whether the interference actually influenced the deliberations of the jury is beside the point. The interference contravened a fundamental tenet of the criminal justice system. The prosecutor involved was charged with obstruction of justice but found not guilty because it could not be proven that he intended to obstruct justice.

This has surfaced more recently in Ontario, where a crown practice of conducting secret background checks on jury panels was uncovered. This issue arose just a few weeks ago in Barrie, Ont., when defence lawyers accidentally discovered that police had provided private information on many people to the crown.

There were notes made beside jurors’ names such as “suicidal in 2001,” “neighbour dispute, neighbour shot cat,” “dad is a drinker and assaultive to mother.” Others were labelled “OK.”

It was discovered before an actual jury was empanelled but was not without great cost. About 240 people were sent home and had attended for nothing and the cases were delayed.

It raises questions about other people found guilty by juries. Were these juries properly selected? Was the crown given an unfair and possibly illegal advantage in the case? Why was the defence not told of this during each such case? How likely is this to encourage people to carry out their civil duty and serve as jurors if they know the police might be prying into their private lives and histories?

In your case, it will be difficult to know whether this is happening. But if you receive any direct questions from the police or other officials or if people who know you report that there is prying going on, you should report it to the defence lawyer involved or directly to your justice minister.

Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. He can be reached at thelaw@producer.com.

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