This case concerns the vetting of jury members by the Crown and police. At issue is the right to a fair and impartial trial and whether such jury vetting and non-disclosure of the same to the defendant, affected the overall fairness or appearance of a fair trial.
The BCCLA was granted leave to intervene in the case. The BCCLA argued that the out-of-court discovery of prospective jurors using police databases to gain a tactical advantage in jury selection creates a pervasive air of unfairness or bias. The BCCLA also provided the Court with a contextual background to the importance of the appearance of unfairness, including historical case law, why such vetting is unlawful and the importance of the principle of randomness in the Canadian jury system. The hearing is scheduled for March 14, 2012.
The SCC rendered judgment in these cases in three related decisions: R. v. Yumnu, 2012 SCC 73; R. v. Emms, 2012 SCC 74; R. v. Davey, 2012 SCC 75. While the SCC made clear that certain of the conduct by the Crown in all these cases amounted to impermissible jury vetting, there was no actual unfairness in the trial itself, nor was there any appearance of unfairness. Nonetheless, the Court acknowledged that “jury vetting by the Crown and police is a risky business”, and observed as follows:
Appearances count. And regardless of the Crown’s good intentions, aligning itself with the police and using their vast resources to investigate potential jurors could be seen by some as incompatible with the Crown’s responsibility, as an officer of the court, to ensure that every accused receives a fair trial. Randomness and representativeness are two of the qualities we look for in juries. Widespread checking could give rise to a suggestion of stereotyping and arbitrariness in the selection process, particularly if it could be shown that peremptory challenges were being used to remove certain types or classes of people who would otherwise be eligible to serve as jurors.
R. v. Yumnu, 2012 SCC 73 at para. 40.
The BCCLA is represented by Gerald Chan and Nader Hasan of Ruby Shiller Chan Barristers.
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