Jury vetting was last week the subject of three decisions of the Supreme Court of Canada. All three inevitably focus on trial fairness.
R v Davey, 2012 SCC 75 (21 December 2012) concerns personal opinions sought by the Crown from police officers about the suitability of prospective jurors, recorded in an annotated list that was not disclosed to the defence, and a trial in which two of the chosen jurors had been marked as "good" and "ok".
Karakatsanis J for the Court observed that this case did not involve police access to any database or any police investigation. However she held there should be no systematic distribution of jury panel lists to police services for comment regarding the suitability of potential jurors [8]. State resources should not be used by the Crown to enable it to choose a jury that may be perceived to be favourable to the Crown. Targeted consultation with a limited number of individuals working on the case with the prosecution is acceptable if it is to discuss concerns as to partiality, eligibility or suitability of a prospective juror [9], but any information relevant to the selection process must be disclosed to the defence.
Where the information that should have been disclosed had not been disclosed, the question was whether there was a real possibility that the jury was not impartial or whether, had it been disclosed, a differently constituted jury would have been selected. If not, the further question was whether the circumstances created an appearance of unfairness such as to interfere with the administration of justice or such as to so offend the community's sense of fair play and decency that the proceedings should be set aside as a miscarriage of justice [24], [54], [74].
The selection process must ensure an independent, impartial and competent jury [30], and neither party has the right to select a jury or a positive power to shape a jury.
Although there had been a breach of the disclosure requirement here, in the circumstances there was no unfairness and the appeal was dismissed. The reasoning is fact-dependent and the Court defers, with only a slight weakness appearing in [72] where mention is made of the defence not having used all its peremptory challenges.
An interesting and undecided point was what standard would be on the Crown if it had the burden of showing that the jury had been impartial or that there was no appearance of unfairness such as to amount to a miscarriage of justice [55, footnote 5]. Karakatsanis J thought it may be the balance of probabilities. Arguably there is no need for a further legal burden: on appeal the appellant has the legal burden and that should be that. But the point here is that a new issue – factual impartiality - is brought into play, as a sort of defence to the appeal. However you might well think that since the possibility that a different jury might have been chosen is not necessarily related to the real harm of a biased jury, it is inappropriate to make that a criterion for a successful appeal. Therefore it would be preferable to take the more conventional approach of requiring the appellant to succeed on either (i) establishing a real risk that the chosen jury was not impartial, or (ii) establishing the appearance of unfairness. No question of a burden on the Crown would then arise.
The second vetting case did involve use of a police database: R v Emms, 2012 SCC 74 (21 December 2012). Here Moldaver J delivered the judgment of the Court. Information obtained at the request of the prosecutor and not disclosed to the defence concerned whether prospective jurors had criminal convictions or were in other respects "disreputable persons". Although the Crown was entitled to have inquiries made for the purpose of checking eligibility to serve, which included absence of disqualifying convictions, or for other information to support challenge for cause, and was obliged to disclose that information to the defence, it was not entitled to have checks on the further question of whether a prospective juror might be disreputable. But if information on disrepute came to light it should be disclosed to the defence if the Crown considered it to be relevant to the jury selection process [48]. Here the appellant failed to establish that, had the information been disclosed, there was a reasonable possibility that a differently constituted jury would have been chosen [22]-[29]. Neither was the departure from what was, by the time of the trial, a required procedure, sufficient in the circumstances to amount to a serious interference with the administration of justice, or to offend the community's sense of fair play and decency to the extent of being a miscarriage of justice [43]-[49].
The third, and leading, decision (first in time and applied in Emms and Davey) is R v Yumnu, 2012 SCC 73 (21 December 2012). Moldaver J, for the Court, set out the fundamentals applicable to when police databases may be used in jury vetting. Nothing could do more harm to the criminal justice system than the Crown and the police joining forces to obtain a favourable jury [37]. The Crown has the responsibility, as an officer of the court, to ensure every defendant receives a fair trial [40]. Randomness and representativeness are two qualities looked for in juries, and checking that gives rise to an appearance of stereotyping through the use of peremptory challenges could be seen as incompatible with the Crown's responsibility [40]. The privacy of prospective jurors is also important [43], although there are countervailing interests in ensuring eligibility and impartiality [45]. Limited use of police databases is permissible to check for grounds for challenge for cause [50]-[51]. Sometimes those checks may reveal other relevant information. Any information that is relevant to jury selection (outside matters of public knowledge or feelings, hunches, suspicions, innuendo or other amorphous information [64]) must be disclosed to the defence [55], [63].
There is also a duty on defence counsel to disclose information where there is good reason to believe a potential juror may be ineligible or may not be impartial [66]-[67].
Importantly, jury selection is not a game and winning or losing are concepts that ought not to be associated with it. The aim is to obtain an impartial jury: "The jury does not belong to the parties; it belongs to the people." [71].
Attempts by one side or another to obtain a favourable jury are inimical to the right of every person who is charged with an offence to be tried by an independent and impartial tribunal [72].
In these kinds of cases the appellant must establish that the Crown did not disclose information that it should have disclosed, and that if disclosure had been made there is a reasonable possibility that the jury would have been differently constituted [75]. The point mentioned by Karakatsanis J in Davey above, about the Crown showing that nevertheless the jury was impartial, was left open for another day [76].
On the facts here the appellant failed to establish a real possibility that a differently constituted jury would have been selected [77]. And on the alternative ground of appearance of unfairness [79] what happened here was neither a serious interference with the administration of justice nor was it such an offence to the community's sense of fair play and decency that there was a miscarriage of justice [89].
Again one might object that the possibility that a different jury would have been selected is an inappropriate requirement: even if the defendant had known what the Crown knew about the juror, the defendant may have already run out of challenges at the critical moment.
This separation of two aspects of unfairness – actual unfairness and the appearance of unfairness – gives rise to an interesting interpretive question for those who will have to apply s 232 of the Criminal Procedure Act 2011 [NZ]. There, "an unfair trial" may be construed as including a trial that appears to have been unfair, although this is far from certain.
The Supreme Court of New Zealand has taken a rather more constrained approach to the Crown's disclosure obligations in relation to jury vetting: Gordon-Smith v R [2009] NZSC 20 (23 March 2009, noted here). The dissent of McGrath J in that case is in line, concerning what needs to be disclosed to the defence, with the Supreme Court of Canada's statement of the law. The majority however went so far as to give the impression there might be some justification for limiting trial fairness:
"[18] It is always important that there be no justified perception or real risk of unfairness in any respect, if that can be avoided consistently with other relevant features. The privacy and security of jurors is such a feature. ..." [emphases added]
But Gordon-Smith was decided in a torrid atmosphere of public unrest at the perceived and potential misuse of jury panel lists especially by unrepresented defendants.
This is not to say that the Supreme Court of Canada is not also capable of wobbling a bit when it comes to trial fairness for the defendant, as shall be seen when I come to discuss veiled witnesses. However as far as jury vetting goes, the cases invite discussion of when the court should react to procedures that, although improper, had no discernible effect on the result of a trial, and if reaction is appropriate, what remedy should be given to a defendant when those at fault are out of the court's reach.
