PO-2826-Excessive Background Checks Conducted on Prospective Jurors: A Special Investigation Report

TABLE OF CONTENTS

COMMISSIONER’S MESSAGE

EXECUTIVE SUMMARY

CHAPTER 1.0 BACKGROUND

CHAPTER 2.0 METHODOLOGY

CHAPTER 3.0 CRIMINAL JURY SYSTEM IN CANADA

CHAPTER 4.0 CRIMINAL JURY SYSTEM IN ONTARIO

CHAPTER 5.0 BACKGROUND CHECKS ON PROSPECTIVE JURORS: LAW AND PRACTICE

CHAPTER 6.0 RESULTS OF THE INVESTIGATION

CHAPTER 7.0 LEGAL ISSUES ARISING FROM THE INVESTIGATION

CHAPTER 8.0 LEGAL ANALYSIS AND CONCLUSIONS

CHAPTER 9.0 SUMMARY OF RESULTS OF THE INVESTIGATION

CHAPTER 10.0 THE ORDER

CHAPTER 11.0 RECOMMENDATIONS

APPENDICES:

1. IPC’s Formal Empirical Survey of Crown Attorney Offices
2. Sample Sworn Affidavit from a Regional Director of Crown Operations
3. MAG Practice Memorandum No. 17 - March 31, 2006
4. MAG Direction and Reminder - May 26, 2009
5. OPP Commissioner Memorandum and News Release - June 10, 2009
6. Excerpts from the Canada Criminal Code
7. Excerpts from the Ontario Juries Act and Regulation
8. Sample Juror Qualification Questionnaire under the Juries Act
9. Mock Vetted Jury Panel List
10. Chart of Jury Selection in Jurisdictions across Canada

GLOSSARY

Related Documents

• NEWS RELEASE: Commissioner Cavoukian Orders Crown attorneys to stop collecting personal information on prospective jurors – Recommends single screening process, in light of widespread background checks
  
  
• CHRONOLOGY OF EVENTS: How the Ministry of the Attorney General (MAG) responded to Juror Vetting over the years
  
  
• Key Facts from Commissioner’s Investigation
  
  
• Range of Background Checks
  

• Excessive background checks conducted on prospective jurors.
• Section 2(1) (personal information) – the information contained in jury roll lists, jury panel lists, and additional background information about prospective jurors provided by the police qualifies as “personal information”.
• Part III – FIPPA does not apply to the records generated by Court Services staff carrying out their functions under the Juries Act.
• Court Services’ authority to collect personal information of prospective jurors from assessment rolls – Court Services has the authority under sections 5(3) and 6(2) of the Juries Act to collect the names and addresses of prospective jurors from assessment rolls held by MPAC under the Assessment Act.
• Court Services’ authority to collect personal information from prospective jurors – Court Services has the authority under sections 6(1) and (5) of the Juries Act as well as Ontario Regulation 680, to collect personal information from prospective jurors.
• Court Services’ authority to collect personal information of prospective jurors from other individuals or organizations for the purpose of verifying information supplied on the juror questionnaire – The Juries Act contains no express authorization for Court Services to confirm eligibility information provided by prospective jurors. However, Court Services may have an implicit authority under the Juries Act to collect personal information from outside sources for the purpose of verifying juror questionnaire information.
• Court Services’ authority to disclose personal information to Crown attorneys and accused persons or their counsel – Court Services has the authority under section 20 of the Juries Act to disclose the personal information contained on jury panel lists to Crown attorneys and accused persons or defence counsel.
• Section 38(2) (collection by Crown attorneys from Court Services) – The Ministry of the Attorney General (MAG) has the authority under section 20 of the Juries Act to collect the personal information contained in jury panel lists, therefore, this collection is in compliance with section 38(2).
• Section 42(1) (disclosure by Crown attorneys to police services) – MAG’s disclosure of jury panel lists to the police for the purpose of obtaining information that is relevant to jury selection in a specific criminal proceeding is in compliance with section 42. However, MAG’s disclosure of jury panel lists to the police for the purpose of obtaining information that is not relevant to jury selection in a specific criminal proceeding is not in compliance with section 42(1).
• Section 38(2) (collection by Crown attorneys from police services) – MAG’s collection of personal information relevant to criminal conviction eligibility criteria from the police is in compliance with section 38(2). However, MAG’s collection of personal information beyond information relevant to criminal conviction eligibility criteria is not in compliance with section 38(2).
• Section 42(1) (disclosure by Crown attorneys to accused persons or their counsel) – To the extent that MAG has a common law duty to share personal information of prospective jurors, any disclosure made pursuant to this duty would be in compliance with section 42(1).
• Section 28(2) of MFIPPA/38(2) of FIPPA (collection by police services from Crown attorneys) – The collection by the police of personal information of prospective jurors in jury panel lists for the purpose of obtaining information relevant to juror criminal conviction eligibility is in compliance with section 28(2) of MFIPPA and section 32(2) of FIPPA. However, the collection by the police of personal information of prospective jurors in jury panel lists for the purpose of obtaining other information, not relevant to juror criminal conviction eligibility, is not in compliance with section 28(2) of MFIPPA or section 38(2) of FIPPA.
• Section 31of MFIPPA/41(1) of FIPPA (Use) – The use by the police of personal information of prospective jurors in jury panel lists and in police databases for the purpose of obtaining information relevant to juror criminal conviction eligibility criteria is in compliance with section 31 of MFIPPA and section 41(1) of FIPPA.
• Section 32 of MFIPPA/42(1) of FIPPA (disclosure by police services to Crown attorneys) – The disclosure by the police to MAG of personal information of prospective jurors relevant to juror criminal conviction eligibility is in compliance with section 32(e) of MFIPPA and section 42(1)(e) of FIPPA. However, the disclosure by the police to MAG of additional personal information of prospective jurors, beyond that which is relevant to juror criminal conviction eligibility, is not in compliance with section 32(e) of MFIPPA and 42(1)(e) of FIPPA.
• MAG was ordered to immediately take the necessary legal and administrative steps to ensure that it cease collecting personal information beyond that which is necessary.
• For the purpose of verifying compliance with this Order, MAG was required to provide proof of its compliance by October 30, 2009.
• The Order also contains 22 Recommendations – nine to MAG Court Services, nine to MAG Crown attorneys and three to the Police and one to the Law Society of Upper Canada. The most significant recommendation is to centralize the process of conducting background checks on prospective jurors at the Provincial Jury Centre.

• FIPPA
• MFIPPA
• 2(1) personal information
• 38(2)
• 41(1)
• 42(1)
• 59(b)(i)
• Section 31
• Section 32
• 2(1) personal information
• 28(2)

• cease collection practice
• jury background check