'This is a case about the Crown cheating'

A panel of three Ontario Court of Appeal judges was urged yesterday to order a new trial in a double murder case because of secret vetting of potential jurors by the Crown and police.

"This is a case about the Crown cheating. This is a case about the Crown breaking the law," said defence lawyer Greg Lafontaine during the appeal court hearing.

Mr. Lafontaine was arguing on behalf of Ibrahim Yumnu, who was convicted along with two other people of first-degree murder in 2005 by a jury in Barrie, Ont., in the slaying of two people suspected of taking money from a marijuana grow operation.

Local police services in the Barrie area searched confidential databases to uncover information about hundreds of potential jurors, which was passed on to the Crown in the Yumnu prosecution and dozens of other cases.

The information was kept from the defence, although some details came out nearly three months into the trial.

The Crown argued police and prosecutors were required to probe potential jurors to confirm their eligibility to serve.

"There is absolutely nothing wrong with criminal record checks," said Crown attorney Michal Fairburn in the potentially precedent setting case at the Ontario Court of Appeal.

Yumnu and the two other men are asking the Court of Appeal to quash their convictions.

The Yumnu case is the first of about a dozen appeals that the court is scheduled to hear where jury vetting took place, which could lead to orders for several re-trials.

The practice, first disclosed by the National Post last spring, led to an inquiry by the Ontario Privacy Commissioner. Her report issued last October revealed that one in three Crown offices in the province had engaged in improper jury vetting since 2006. In Barrie, where it occurred in every case, there were jury checks in more than 50 trials in the past three years.

The Ontario government ordered a halt to the practice and recently amended the Juries Act so that any potential checks for eligibility would be conducted at an independent centre in the province. The information will not be shared with the Crown or police.

The three-judge panel was told yesterday by Ms. Fairburn, that while there was "late disclosure" by the Crown in the Yumnu case about the background checks, there was no improper purpose. "The Crown was not up to silliness. There is not a scintilla of evidence of wrongdoing, in fact quite the opposite," Ms. Fairburn said.

Anyone with a criminal conviction for an indictable offence was not allowed to serve as a juror in Ontario, which was the reason for the database searches, she explained. Since potential jurors are not required to provide a date of birth, police had to search a number of databases including motor vehicle registries as part of their probe.

"There was a need to go through other records. There is no magical record system where we can put in a name and address and find out if someone is clean," Ms. Fairburn said.

As well, in smaller towns, Ms. Fairburn suggested police may have first-hand knowledge about some jurors and passing on information to the Crown about individuals such as "whether they live near a biker clubhouse," is also legitimate.

Of the nearly 800 potential jurors subjected to the background checks in the Yumnu case, not a single person was found to have an indictable record that would make them ineligible.

Justice Karen Weiler asked whether it might be OK for police to conduct background checks, as long as the Crown did not obtain the jury lists until 10 days before jury selection, as allowed by law.

"Don't open the door to large scale inquiries" of potential jurors, Mr. Lafontaine said. "Shut it down."

Mr. Lafontaine reminded the court that the Crown had jury lists in its possession weeks before it was permitted to under the Juries Act.

"To say it was all about checking for criminal records is just wrong and not what happened," he said. It is not "self-help time" for the Crown to use databases to get a "leg up on jury selection" under the guise of checking eligibility, he argued.

The Court of Appeal reserved its decision yesterday.