CROWN'S VETTING OF JURY 'UNFAIR'

New Trial Ordered After Police Asked To Do Background Checks On Over
300 Potential Jurors

A man convicted of operating a marijuana grow-op in Halifax will get a
new trial because the Crown ordered secret background checks on
potential jurors.

In a ruling thought to be the first of its kind in Canada, the Nova
Scotia Court of Appeal said the federal Crown exercised an unfair
advantage when it asked police to check the criminal backgrounds of
more than 300 potential jurors.

Halifax Regional Police and the RCMP provided prosecutors with
information on about 100 people in the jury pool.

The Crown did not tell defence attorneys about the jury
vetting.

Justice Duncan Beveridge, with concurring justices Nancy Bateman and
Linda Oland, said jury selection is an integral part of the justice
system.

"The jury selection process must be fair," Beveridge wrote. "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 Appeal Court said background information from police was a factor
in the Crown's five peremptory challenges of jurors.

On June 1, 2009, Kevin Patrick Hobbs, 30, formerly of British
Columbia, was found guilty of possessing and producing marijuana for
the purposes of trafficking.

Police found 203 marijuana plants in the basement of a rented home at
69 Chelton Woods Lane in the Clayton Park area of Halifax, estimated
to be worth up to $335,000.

He was to have been sentenced last July, but the hearing was postponed
when federal Crown prosecutor Kevin Whiting told the court and the
defence about the jury vetting after the practice received media
attention in other jurisdictions.

Hobbs's lawyer asked the court to declare a mistrial or stay of
proceedings, which was denied.

Hobbs ended up appealing his conviction and sentence of 30 months on
each of two charges based on the information about the background
checks on jurors.

Federal and provincial Crown offices have since shored up their
policies on criminal checks, mandating they only be done to confirm a
juror has an unpardoned conviction with a sentence of 12 months or
more. All information must also be disclosed to the defence.

Mike Taylor, a past president of the Nova Scotia Criminal Lawyers
Association, said having the ability to mine police databases for
information gave the Crown an unfair advantage during jury selection
since attorneys usually only have the most basic information to work
from.

"If one side is able to do it and the other isn't, it's clearly an
advantage," he said. "We get a list with names, addresses and
occupations, at best, and most times those lists are incomplete. So we
get nothing."

Taylor said secret jury vetting was also an invasion of privacy for
potential jury members.

"(The Crown) is using a lot of information (on jurors) that is highly
speculative and could mean absolutely nothing," he said. "It's
extremely unfair, to say the least."

There are several similar challenges currently before the courts in
Ontario.

Beveridge noted that it had been prosecutor Whiting's first jury trial
and that he had ordered the criminal checks and withheld the
information from the defence after conferring with more senior colleagues.

"(Whiting) said there was no issue of seeking a strategic advantage,
but was simply trying to ensure an impartial jury, and not one
favourable to the Crown," the judge wrote.

The Appeal Court did not hear what the police turned over to the
Crown, but did see evidence from a police officer's notes that said
potential jurors were flagged for "drugs pending" or whether or not
they had traffic tickets.

Hobbs has had a prior case before the Nova Scotia Court of
Appeal.

In 2008, he was found guilty of possessing and transporting drug money
when $32,000 in heat-wrapped plastic was found while going through
Halifax Stanfield International Airport en route to Vancouver. He
claimed it was for gambling.

In June, the court rejected his appeal, filed on the grounds of
ineffective trial counsel, the wish to introduce fresh evidence and
errors by the original trial judge.