Pubdate: Mon, 19 Jul 2010 Source: Chronicle Herald (CN NS) Copyright: 2010 The Halifax Herald Limited Contact: http://thechronicleherald.ca/ Details: http://www.mapinc.org/media/180 Author: Pat Lee 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. - --- MAP posted-by: Jo-D