SECRET JUROR SCREENING SPREADS TO WINDSOR

Lawyers Demand Action As Mistrial Shows Practice Isn't Unique To
Barrie

WINDSOR - A judge here has declared a mistrial in a murder case
because the Crown had police do secret background checks on jurors - a
development that has lawyers predicting a flood of defence challenges.

The ruling shows that the secret screening of potential jurors isn't
confined to Barrie, which saw a recent mistrial and the dismissal of
two jury panels last week.

Attorney General Chris Bentley said yesterday he still does not
believe the practice is widespread.

But Greg Goulin, one of the defence counsel in the Windsor trial,
predicted a rush of inquiries by members of the defence bar.

"There is no question that for every case under appeal, perhaps for
every case where a jury sat, there's going to be probably letters
going from the counsel that appeared in those cases to Crowns and
prosecutors in those cases saying, 'Did you vet the jury in this
case?'" he told reporters.

Frank Addario, president of the Criminal Lawyers' Association, urged
Bentley to address the issue head on.

"In our view, the attorney general should not let this fester," said
Addario. "That just creates suspicion and uncertainty."

Peter Kormos, the provincial NDP justice critic, said that Bentley has
not been straightforward about the extent to which "these highly
inappropriate background checks have been taking place."

Kormos said Bentley has created a scenario where a large number of
convictions are now in doubt.

He said it's imperative that Ontarians know how long this "illegal"
conduct has been going on, and who has been doing it.

Bentley said yesterday that the province's chief prosecutor, John
Ayre, has issued a directive to stop wide-ranging background checks
and is phoning all Crowns' offices as a follow-up.

Where pre-existing lists of such broadly screened jurors do exist,
Crowns are instructed to disclose them to the defence and "take
whatever steps are necessary, including starting with a new panel,"
Bentley said in an interview.

In Windsor's Superior courthouse yesterday, after two months of
hearing evidence in the first-degree murder trial of Richard Zoldi and
Shane Huard, Ontario Superior Court Justice Bruce Thomas dismissed the
jurors, informing them that he had declared a mistrial because of jury
vetting. Thomas told jurors that he found the process in their case
"to be offensive."

Under Canadian law, background checks on jurors are supposed to be
conducted only for the most serious convictions. But among the
comments written beside prospective jurors' names, provided to the
Crown by a Windsor police detective, were "dislikes police."

Other jury candidates were cited as having criminal
associates.

There were references to marijuana and other criminal charges (but not
convictions), young offender records, provincial offence tickets, and
people with conditional discharges or pardons for criminal offences.

The judge said he doubted that citizens who had dealings with the
Windsor police contemplated that the Crown would be using their
information when they were called up for jury duty.

Jury vetting beyond serious criminal checks has been condemned by
critics as an invasion of privacy and, if not illegal, incorrect.

Under Canadian law, all Crown or defence counsel are supposed to know
are the name, address and occupation of prospective jurors.

Under the Juries Act, the local court Sheriff must keep lists of
jurors under "lock and key" until 10 days before jury selection.

But in three cases in Barrie challenged by defence counsel in recent
weeks, the Crown has had the lists several weeks before jury selection
and has been asking Ontario Provincial Police detachments and some
local police forces in Simcoe County to conduct background checks on
candidates.

The controversy led OPP Commissioner Julian Fantino to make a
statement Monday stressing that the force has stopped the practice
since the story first broke on May 25 and has been reviewing its
policies "to ensure that OPP policy reflects the privacy rights of
individuals."

In the Windsor case, Huard, 27, a former amateur boxing sensation, and
Zoldi, 31, are accused in the 2006 shooting death of Windsor drug
dealer Troy Hutchinson, 28.

Goulin, who represented Huard, and Kirk Munroe, acting for Zoldi,
challenged the fairness of the jury selection after the issue came to
light.

The background information, obtained from Windsor police databases,
was not disclosed to the defence and was used by prosecutors in
rejecting prospective jurors, the judge found.

Jury selection with new panels resumes in the murder trial July
6.

"What was done here just went overboard," Goulin told reporters,
adding that it breached their rights to privacy, freedom of
association and expression.

Munroe said that juries are supposed to be a buffer between the state
and citizens.

The whole process of police vetting juries attacks this principle, he
told reporters. "It's frightening what they did."

It appears the practice has been going on in Barrie for at least four
years.

It was cited by Toronto lawyer Greg Lafontaine as a new ground of
appeal over the 2005 jury selection in the first-degree murder trial
that led to the conviction of his client, Ibrahim Yumnu.

The appeal is being watched closely by the attorney general's ministry
and Ontario's information and privacy commissioner.

James Morton, a defence lawyer and past president of the Ontario Bar
Association, said he believes that defence lawyers will now focus on
this case more intensely and several will seek to re-examine old cases.

But he too said he does not believe the broad Crown-initiated jury
screening is widespread. "It's not proper," he said.