As jurors in the Shafia murder trial returned to a Kingston, Ont., courtroom Tuesday, at least some of them were no doubt getting increasingly anxious about the financial toll the lengthy trial could have on them personally.
The trial of the husband, wife and son accused of killing four family members was interrupted last Thursday, two weeks after it began, when one of the defendants had to be taken to hospital, delaying a trial that was already expected to last several months.
Jurors hearing the Shafia case won't get any compensation for their services for the first 10 days of the trial. In Ontario, jurors receive $40 a day starting on the 11th day, and the amount increases to $100 a day if the trial extends past 50 days. They will not be reimbursed for child care or other expenses. Only those who live outside Kingston will have travel costs covered.
Those lucky enough to work for an employer with generous benefits might receive their regular wages, but most will get nothing more than a guarantee — mandated by law — that their job will be there when they get back to work at the end of the trial.
Some in the legal community say such nominal compensation places an unfair burden on the people who have to serve on juries and is a serious shortcoming of Canada's jury system. Others view serving on a jury as a civic duty that shouldn't require compensation any more than voting in an election does.
James Stribopoulos of Osgoode Hall Law School in Toronto falls in the former camp.
"Remuneration for jurors is woefully inadequate, and that is the source of all sorts of other related spin-off effects, including high juror absenteeism," said the associate professor of criminal law.
Stribopoulos sees inadequate compensation as the main reason why people ask to be excused from jury duty and the main obstacle to a truly representative jury system.
"Not many people can afford to sit on a jury," he said. "And as a result, we tend to get people who are either civil servants or employed by large corporations that give employees paid leave … or retirees — and not very many other people at all."
Young people and the self-employed, for example, are rarely found on juries, Stribopoulos says.
Fees vary by province
Levels of jury compensation vary from province to province [see chart] — anywhere from $20 a day in B.C. to $90 a day in Quebec. Some jurisdictions start paying jurors from Day 1 of trial; others don't give compensation until after the 10th day. Many increase the fees on the 11th and then again on the 50th day of trial. Most will cover some meal, travel and accommodation expenses, but few include childcare costs.
Potential jurors are usually not compensated at all for the time spent waiting to be selected.
Newfoundland has the most generous system: it requires employers to pay jurors the same wages and benefits they would have earned were they not serving on a jury.
Quebec is one of the few jurisdictions to cover the costs of child or elder care . It also provides an allowance for five one-hour sessions of psychotherapy for jurors who need help dealing with what they experienced during a trial.
Juror fees become particularly relevant in complex trials that can take months to play out. Such lengthy trials have become more and more common, says Stribopulos, especially since judges have moved away from hard-and-fast rules governing the admissibility of evidence to an approach that requires a more thorough analysis of a variety of factors and legal issues.
"Jury trials are taking a lot longer to litigate … than they did a generation ago," Stribopulos said. "And that ties back to the remuneration question, because if you're asking people to give up a week of work, that's one thing, but if you're asking them to give up three months or four months, that becomes rather burdensome, and very few people can afford to do that."
Nevertheless, Stribopulos says an increase in juror fees is unlikely to happen any time soon since, in the eyes of many, the trial system is managing to chug along fine at the current rates.
"It's an expenditure that people would prefer not to make," he said.
Too many exemptions, some say
Not everybody has to serve on a jury in Canada. People who work in certain professions are exempt, including members of Parliament and provincial legislatures, senators, federal and provincial justice department employees, police officers, lawyers, judges, individuals convicted of certain offences within the past five years, correctional officers, medical examiners, and probation officers.
"The lists [of exempt professions] keep growing over time, and you wonder whether or not you do get a representative sample of the population in terms of socioeconomic status, educational attainment and these kinds of things," said Stephen Penney, professor of criminal law at University of Alberta in Edmonton.
Exemptions are also available to anyone over 65, students, those with health problems or those who would suffer extreme financial hardship if forced to sit on a jury. People can also make a personal case for why they shouldn't have to serve on a jury during the selection process.
"Certainly, judges have a lot of discretion," Penney said. "And even the provincial administrators who in some provinces administer the selection process also have power to excuse people for personal hardship, and that can include pretty much any reasonable cause."
In Quebec, for example, 7,959 of the 18,935 people summoned for jury duty in 2010 asked to be exempted, and 6,029 of those exemptions were granted.
"It's a fact that a lot of people don't wish to serve on juries, and they attempt to find any way to get out of it," Penney said.
Juror absences irking judges
Ignoring a jury summons is punishable by fines – which vary from $25 to $2,000 – and in some instances, jail time. That didn't stop nearly half of the 600 people summoned for jury duty in the Jordan Manners murder trial in Toronto this March from failing to show up.
Earlier in the year, juror absences delayed another murder trial — in the Superior Court of Justice in Brampton, Ont., about 40 kilometres northwest of Toronto. The presiding judge in that case, Justice Casey Hill, ordered each of the 43 no-shows (out of a total 219 people summoned) to appear before the court to explain their absence and then launched a broader inquiry into juror absenteeism at the Brampton courthouse. He found that between September 2010 and January 2011, the proportion of people summoned who failed to show up for jury duty ranged from 11 to 21 per cent.
In a similar incident last week, a judge in Tampa, Fla., summoned 246 people who didn't show up for jury duty last month to his courtroom and made them recite the Pledge of Allegiance before giving them a stern lecture on civic responsibility.
In Quebec, such judge-initiated crackdowns seem to have improved jury participation rates.
"Some judges in Quebec took to the habit of sending warrants and summoning people in front of the court in order to get them to explain why they never showed up, so usually, we don't have that much of a problem with [absenteeism]," said Danièle Roy, a criminal defence lawyer and spokesperson for the Quebec Association of Defence Lawyers.
The province also raised its per diem juror fees a few years ago from $25 to $90.
For David Rose, a criminal defence lawyer in Toronto, the problem of absenteeism comes down to the fact that people who skip out on jury duty don't know what they're missing.
"My impression from people who have sat on juries is that they have almost uniformly found it to be one of the greatest experiences that they've gone through as an individual, and I don't think people understand that," he said.
Too many people view jury duty as an onerous obligation to be avoided, Rose said, and while financial compensation does play into that, lack of public awareness is also a factor.
"Jury duty is not something that you do for pay; it's part of your civic duty," Rose said. "We would all want the largest availability of jurors to pick if we needed a jury of our peers to judge us fairly and impartially. So, in my view, there's not enough … discussion about why jury duty is a good thing."
But coupled with the issue of civic duty, Rose does agree with Stribopulos that low juror fees can dissuade people from serving on juries and thus limit the range of people represented on them.
Aboriginal representation on juries subject of review
Just how much juries resemble the communities they serve is the subject of an ongoing judicial review of aboriginal representation on jury rolls in Ontario headed by former Supreme Court justice Frank Iacobucci.
The review was ordered by the province's attorney general and sprang from a court case that questioned whether First Nations people living on reserves were adequately represented on jury rolls used in two coroner's inquests in northern Ontario. The case was launched by the Nishnawbe Aski Nation (NAN), which represents 49 First Nations communities, and the families of Reggie Bushie, 15, who drowned in the McIntyre River near Thunder Bay, and Jacy Pierre, 27, who died of a drug overdose in a cell at the Thunder Bay District Jail.
One issue is that lists of potential jurors are compiled from government records such as motor vehicle registration databases, voters lists and property tax rolls. Aboriginal people living on reserves who do not pay taxes, for example, do not appear in many of these records and as a result, often get excluded from jury lists.
"There's been, historically, a problem with getting aboriginal individuals onto the jury rolls so they can be picked," Rose said.
In Ontario, the Juries Act requires court sheriffs to obtain the names of residents on reserve from "any record available," and in the past, says Rose, the federal government was expected to provide those names to the province so they could be incorporated into the jury pool, but those measures have evidently fallen short. Iacobucci is to report his findings by Aug. 31, 2012.
Jury trials rare in Canada
A small fraction of the hundreds of thousands of cases that make their way through Canadian courts result in jury trials. In criminal law, they are reserved for only the most serious of offences, such as murder.
In Ontario, of the more than 600,000 criminal charges filed between April 1, 2009, and March 31, 2010, there were 513 criminal indictments disposed of by jury and 340 by judge alone. In the same period, out of 97,266 new civil proceedings initiated, 2,096 were disposed of by jury and 3,053 by judge alone.
Article 11(f) of the Charter of Rights and Freedoms guarantees everyone the right to a trial by jury for offences that carry a maximum sentence of imprisonment of five years or more. In criminal law, cases that fall under the indictable offences found under Section 469 of the Criminal Code, such as murder, are automatically tried before a judge and jury in superior court, although they can sometimes be tried by judge-only if both the accused and the Crown prosecutor agree.
A separate category of "hybrid" offences can be tried either in provincial court by a judge alone or in superior court by a judge and jury. Some indictable offences, such as assault causing bodily harm, were reclassified as hybrid offences several years ago in an effort to streamline pre-trial proceedings and reduce the number of jury trials.
The use of juries in civil cases varies by province. Quebec doesn't use civil juries at all, and Alberta does so rarely. In B.C., those who want a jury trial in a civil case must pay the juror fees and other expenses themselves. In Ontario, most civil jury trials involve cases related to motor vehicle accidents.
In most cases, the plaintiff must file a jury notice indicating he or she wants a jury trial, and the judge has the right to refuse the request if he or she deems the case too complex for a jury.
Civil trial juries have fewer jurors — usually six compared to 12 in criminal trials — and generally don't require a unanimous decision as juries in criminal trials do.
Judge panels more common in Europe
In the U.S., where the right to a trial by jury for both criminal and civil cases is more firmly entrenched in the constitution, jury trials are much more common. They are used in criminal cases where the offence carries a punishment of imprisonment for six months or more and in civil cases with a claim of more than $20 US tried in federal court. Many states also guarantee a right to a jury trial in civil cases in their constitutions.
Jury compensation in the U.S. varies by state and is comparable to that in Canada, ranging from $10 US plus mileage in Idaho to $50 US a day in Arkansas. Some states, like New York and Colorado, require employers to cover the juror fee for the first few days of trial.
In continental Europe, it is much more common for cases to be tried before judges alone or before a panel of professional judges and lay judges. In those systems, judges have an investigative role and are able to question witnesses, for example, whereas in North America, the judge decides only points of law while the jury establishes the facts of the case.
Judge vs. jury
Whether a judge- or jury-based system provides the best chances of a fair trial and the greatest safeguards against miscarriages of justice is still an open question, says Penney. To date, both systems have managed to produce relatively fair, effective criminal justice systems.
"We [in Canada] do have this sort of long-standing allegiance to the idea of the jury … and the notion that it provides a way for ordinary citizens to participate and [that] you get greater acceptance of the law and the legitimacy and fairness of the law when you have that kind of citizen participation," Penney said. "Whether or not those values still resonate, whether or not people still think it's important that there be juries, it's very difficult to say."
But while there may be grumbling in some legal circles about juror fees and the skewed demographic profile of juries, most experts agree there is currently little appetite for reforming the jury system and even less for abolishing it — not least because that would require a constitutional amendment or the invoking of the notwithstanding clause.
"I think any changes that you do see to the jury system in Canada are going to be incremental as opposed to radical," said Penney.