N.S. COURT TO HEAR APPEAL ON JURY VETTING

Defence Not Told; Dismissal Of Charges Over Grow-op
Sought

The Nova Scotia Court of Appeal is being asked to overturn a marijuana
grow-operation conviction because of secret background checks
conducted by Halifax police and the RCMP into potential jurors.

Kevin Hobbs was convicted by a jury in Halifax on June 1, 2009, just a
few days after the National Post first reported on the practice of
improper jury vetting by police and provincial Crowns in some
jurisdictions in Ontario.

The federal Crown attorney prosecuting the Nova Scotia case did not
disclose the existence of the wide-ranging jury vetting until after
Mr. Hobbs was convicted and before his sentencing.

The defendant is now asking the Court of Appeal to dismiss the charges
against him or at a minimum, quash the conviction and order a new trial.

"The misconduct in this case was not only against Mr. Hobbs, it was
against the members of the jury pool who had their privacy violated,"
states defence lawyer Luke Craggs in written arguments filed in the
Court of Appeal on April 15.

While both the federal and provincial Crown offices in Nova Scotia
have updated their policy manuals since the jury vetting practice in
Ontario was exposed last year, Mr. Craggs says the charges against his
client should be thrown out to send a message about the seriousness of
the misconduct.

"While one would hope that future jury pools would take comfort in
knowing that new policies have been implemented, it may be difficult
for them to overcome the sense the Crown is an all powerful entity
which doesn't have to respect the rights of jurors," writes Mr. Craggs.

In the prosecution of Mr. Hobbs, four confidential databases were
searched by two members of the Halifax Regional Police and the RCMP
Integrated Drug Section, along with two civilian assistants. Overtime
pay was approved because of the time consuming nature of the searches.

The Supreme Court of Canada has stressed on several occasions that the
Crown and defence are permitted very little information about
potential jurors, unlike the United States where they can be
questioned at length.

The information obtained from the databases, including whether
individuals had any contact with the criminal justice system, was
shared only with federal Crown attorney James Whiting.

There is no provision in the Nova Scotia Juries Act that provides for
background checks by police. As well, an individual must have been
previously convicted of an offence and sentenced to more than two
years in prison to be ineligible to serve as a juror.

In a ruling released last week, the Court of Appeal refused a request
by Mr. Craggs to cross-examine Mr. Whiting about the jury vetting.

The federal Crown and police instead submitted written explanations
and maintained it was to ensure that individuals were eligible to
serve as jurors.

Noting that the only specific request in the searches was to see if
potential jurors had any drug-related criminal record, Mr. Craggs
disputes the explanation.

"What purpose other than obtaining a strategic advantage in jury
selection could the background checks have served," he writes.

The Nova Scotia Court of Appeal is expected to hear the appeal in
early June. Also that month, the Ontario Court of Appeal is expected
to decide on the next step in nearly a dozen appeals, including cases
as serious as murder, in which improper jury vetting was conducted by
the Crown and police.