CRIMINAL LAW SAMPLE EXAM QUESTION

THE JURY TRIAL (POLICE VETTING)

Assume you ascertained that the matter would successful pass the preliminary inquiry stage.
Moreover, assume you have conducted the actus reus and mens reus appropriate tests in relation
to the fact pattern/crime and concluded the accused is either not likely/likely to be convicted.

1. The trial is complete, and the accused has appealed as it has come to light that the police
undertook a practice involving researching potential jurors who had criminal records. The
Crown and the Police clearly joined forces and ensured that the jury was compiled of
mainly individuals who would support a conviction. As defence counsel, what if
anything, can be done?

JURY VETTING

Jury vetting is a practice that involves the police using research to see which juror should be
avoided – essentially, they root out individuals with a criminal record. Jury vetting occurred in
the case of R v Yumnu (2012), wherein the appellants became aware of a jury vetting practice in
the Barrie area, consisting of inquiries conducted by the police, at the behest of the Crown
Attorney’s office, as to whether potential jurors had a criminal record or whether they were
otherwise “disreputable persons” who would be undesirable as jurors (2 marks).

In the case at hand, it is clear that “jury vetting” was undertaken. This is severely problematic
and raises a number of concerns for three main reasons:
 First is the prospect of the Crown and police joining forces to obtain a jury favourable to
their case.
 Second is the fundamental precept of our justice system that “justice should not only be
done, but should manifestly and undoubtedly be seen to be done”.
 Third is juror privacy.
These are live issues in the case at hand. The Police and Crown clearly joined forces and the
justice system’s integrity was compromised as a result (3 marks).
MAIN ISSUE(S)

It is indeed permissible for the Crown, with the assistance of the police, to do limited background
checks using multiple police databases to identify potential jurors who, by virtue of their
criminal conduct, are not eligible for jury duty (1 mark). However, the issue is the fact that the
Crown and police clearly went beyond mere “limited background checks”. And more
importantly that they did not disclose (which is a Crown requirement as per Stinchcombe) the
fact that they conducted these background checks (1 mark). Information received by the Crown
that is relevant to the jury selection process must be turned over to the defence, thereby restoring
the balance, as per Yumnu. This was clearly not done in the case at hand and the practice of jury
vetting was only discovered after the trial was completed (1 mark).

FULL DISCLOSURE

When it is discovered at the appeal stage, as is the case at hand, that information about
prospective jurors which should have been disclosed at trial was not disclosed, persons who seek
a new trial on the basis that this non-disclosure of information deprived them of a section 7
Charter right to a fair trial must a minimum establish:
a) The Crown failed to disclose information relevant to the selection process that it was
obliged to disclose
b) Had the requisite disclosure been made, there is a reasonable possibility that the jury
would have been properly constituted

If we apply this test to the situation, it is clear that the first condition is fulfilled, as the Crown
did not disclosure the background checks that were conducted (i.e. jury vetting). In terms of the
second condition, if proper disclosure of the jury vetting was in fact made, it is likely that the
defence would have utilized perhaps their exemptions or challenges (for cause). As such, the jury
would have likely been differently constituted (3-5 marks).