TORONTO -- The Ontario Privacy Commissioner has announced a formal investigation into the use of confidential police databases by Crown attorneys in the province to probe the backgrounds of potential jurors in criminal trials.

“The focus of our investigation will be whether this was a proper use of police databases and whether the privacy rights of potential jurors have been compromised,” said commissioner Dr. Ann Cavoukian in a statement issued Wednesday afternoon.

There are at least two regions in Ontario where police have engaged in secret background checks and then passed the information on to the Crown for help in selecting a jury that is more favourable to the prosecution.

The inquiries, which included very personal information including mental health data, were contrary to the rules of the Juries Act, the code of ethics for using police databases and may also violate the rules of professional conduct for Crown attorneys.

The practice has been in place in Simcoe County in central Ontario at least since 2004, according to court documents.

A judge in Windsor ordered a mistrial this week in the prosecution of two men charged with murder, after it was disclosed that police conducted similar checks earlier this spring on the eve of jury selection.

The practice was described as “offensive” by Superior Court Justice Bruce Thomas, who suggested that a formal inquiry might be appropriate.

The Ontario government has refused to call in an independent agency to find out how widespread the practice was by Crown and police in the province.

Attorney-General Chris Bentley said Tuesday that senior officials in his ministry are “calling around” and asking prosecutors to disclose if they have engaged in possible professional misconduct by ordering the background checks.

When the background checks in Simcoe County were reported by the National Post on May 25, the Attorney-General suggested it was an isolated incident. After the mistrial was granted in Windsor, Mr. Bentley stated that he believed it was the only other Crown office in the province to use information from improper background checks.

The initial assurance by Mr. Bentley that this practice was “restricted to one courthouse in Simcoe County,” is why an investigation was not announced sooner, said Ms. Cavoukian in the statement. “Since then we have learned that the practice extends to at least one other courthouse and possibly others,” she explained.

Along with the potential privacy violations, the Crown is likely to receive a flood of requests from defence lawyers asking if background checks were conducted in past jury trials in the province.

Mark Halfyard, a defence lawyer in Toronto, said he has asked the Ministry of the Attorney-General to disclose whether there were checks in two recent jury trials in Barrie that resulted in convictions.

“This may just be the tip of the iceberg. This is a very serious issue. It goes to trial fairness,” said Mr. Halfyard.

National Post