JURY-VETTING PROMPTS COURT TO ORDER NEW TRIAL

The Nova Scotia Court of Appeal has ordered a new trial for a man
convicted of running a marijuana growop, in the first case in Canada
to rule on improper jury-vetting by Crown prosecutors.

The decision could have broad implications in Ontario, where the
province's Court of Appeal has yet to rule in at least a dozen cases
in which the police conducted secret background checks of potential
jurors on behalf of the Crown.

In Nova Scotia, the appeal court yesterday quashed the conviction of
Kevin Hobbs because the federal Crown obtained an improper advantage
in jury selection.

A Halifax jury found Mr. Hobbs guilty on June 1, 2009. However, the
Crown did not disclose until after the trial that Halifax police and
the RCMP ran database checks on more than 300 potential jurors. The
searches were wide-ranging and disclosed even if individuals had
traffic tickets. Many of the checks were to see if potential jurors
had any past connection with the criminal justice system.

The Crown prosecutors maintained the background checks were done to
ensure potential jurors were impartial.

The Court of Appeal rejected the explanation, noting that the Supreme
Court of Canada stressed nearly 20 years ago that the aim of the jury
selection process is not so it will favour one side over the other.

"The jury selection process must be fair," wrote Justice Duncan
Beveridge, with Justices Nancy Bateman and Linda Oland concurring.
"The failure to disclose the information, in the circumstances of
this trial, gave the Crown an unfair advantage that actually impacted
on the selection of the jury," the court added.

Defence lawyer Luke Craggs was unsuccessful in arguing that the case
should be thrown out completely, as a result of what he argued was an
"abuse of process" by the Crown.

"I see it as tainting the whole process," said Mr. Craggs, who noted
that fewer people might be willing to serve as jurors as a result of
the infringement of privacy rights.

The jury-vetting in the case of Mr. Hobbs came to light after the
National Post published an article in May 2009 that revealed improper
background checks in some parts of Ontario. After the conviction and
before the sentencing hearing, the Crown disclosed the jury checks
once it learned the practice was "the subject of some controversy,"
the appeal court noted yesterday.

The Public Prosecution Service of Canada now restricts background
checks to ensuring that someone is eligible to serve as a juror. Any
information must be disclosed to the defence.

The Ontario Ministry of the Attorney-General also ordered an end to
jury-vetting in the province last year, following a series of
National Post stories and a report by the provincial Privacy
Commissioner that disclosed the extent of the secret background checks.