The Supreme Court of Canada’s released its decisions in R. v. Yumnu, 2012 SCC 73, R. v. Emms, 2012 SCC 74 and R. v. Davey, 2012 SCC 75, a trilogy of cases that examined the consequences of improper, privacy-invasive background checks that the Crown and police undertook into potential jurors. While the results of these background checks were used by the Crown, they were not disclosed to the defence as required by law. The Supreme Court ruled that, although the Crown’s conduct was “improper and should not be repeated,” there was no violation of fair trial rights and the actions did not rise to the level of a miscarriage of justice. Deferring to the factual findings at the Court of Appeal, the Supreme Court ruled that there had been no actual impact on the composition of the jury, that the government had acted in good faith when conducting the background checks, and that the failure to disclose the information to the defence, while serious, was “not done for improper reasons.” The Court therefore concluded that the conduct did constitute a serious interference with the administration of justice, and was not so offensive to the community’s sense of fair play and decency that the proceedings should be set aside. All the appeals were dismissed.
CCLA has major concerns regarding the judgments – in particular the precedent it sets for court responses to improper Crown and police behaviour and the privacy-invasive disclosure practices it sanctions.
In the cases before the court, the Ministry of the Attorney General violated the privacy rights of thousands of potential jurors, contravened the Juries Act in the way they disclosing the names of potential jurors, and violated their disclosure obligations – a key constitutional safeguard against unfair trials and wrongful convictions. The police also misused confidential police databases, repeatedly contravening provincial privacy laws. And this improperly-obtained information was used by the Crown during the jury selection process. Yet the Court’s decisions provide absolutely no remedies for these serious and wide-spread wrongs.
The decisions also set the stage for serious continuing privacy invasions into the lives of potential jurors. The Court ruled that police may only check their databases for criminal convictions or other information that would legally disqualify a person from serving on a jury. They also stated, however, that in the course of these background checks authorities may come across other information that would “call into question” a person’s suitability for jury duty. This might include, for example, whether a person has been a victim or complainant in another matter – information that then must be shared with the defense counsel as well. CCLA has spoken out loudly about the privacy consequences of disclosing the intensely personal information contained in police databases. We fear that this decision, and the process it sets out for juror background checks, opens the door to significant, wide-spread, and regular privacy invasions into hundreds of thousands of Canadians.
Between 2006 and 2009 about one third of Ontario Crown offices asked police to conduct background checks on potential jurors by searching confidential police databases. Often the information they obtained was used to inform the prosecution’s jury selections and was not disclosed to defence counsel. In a 2009 report the Ontario Information and Privacy Commissioner found that the actions of Crown counsel and police had violated thousands of individuals’ privacy rights, and policy changes were subsequently put in place to ensure that all background checks were strictly limited to whether or not an individual was competent, under the law, to serve on a jury.
The CCLA appeared before the Court to argue that, when determining whether there has been a breach of the Charter, the Court should consider not only the fair trial rights of the accused, but also the impact of government conduct on the privacy rights of thousands of Canadians. State actions contravened government policy, privacy laws, jury list distribution rules, and disclosure obligations. In the CCLA’s view, the repeated violation of thousands of potential jurors’ privacy rights and the use of confidential personal information to inform prosecutorial jury selections constituted an abuse of process and a violation of the Charter.
To read CCLA’s factum before the Supreme Court click here.