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Judge’s inquiry prompts debate on juror compensation

|Written By Michael McKiernan

Government action to compensate jurors must offset efforts to enforce jury duty, a Brampton, Ont., criminal lawyer says after a judge there tracked down and challenged several people who failed to show up.

Justice Casey Hill has made headlines for his inquiry into juror absences in Brampton.

Vince Houvardas, first vice president of the Peel Law Association, says Superior Court Justice Casey Hill’s inquiry into missing jury candidates highlights a complicated issue. “There’s two sides. One is enforcement of the law, but that has to be balanced with some understanding of the general public’s difficulties.

People wouldn’t be doing it unless they were compelled to, and when you have somebody compelled to do something by law, I think the government really has to step up and put some compensation together for jurors because it’s way out of date. Although it’s not correct, it’s understandable that they would look to avoid it.”

But Toronto criminal lawyer David Rose says jury pay shouldn’t become a substitute for a salary. “Remuneration is not meant to compensate people for the lost time. This is a civic obligation. You don’t do this to make money. You do this because our system is reliant on having jury trials where the jury is composed of one’s peers.”

Since 1989, jurors in Ontario haven’t received compensation for their first 10 days on a trial but they will get $40 per day for days 11 to 50. After that, the rate jumps to $100 per day, although trials of that length are rare.

They can’t get daily travel expenses unless they live outside the boundaries of the city where they’re serving and there are no childcare allowances.

Five years ago, the chief justice’s advisory committee on criminal trials recommended in its final report that juror pay should start from Day 1 at $40 and increase to $100 per day after Day 10.

It also suggested jurors should receive compensation for all travel expenses regardless of the distance travelled, as well as for parking, meals, and daycare.

“There’s tremendous hardship for jurors to come in and take time out of their work and their families,” Houvardas says. “Having said that, I would never condone anyone breaching the law or disobeying the notice. They have to show up.”

The problem is that fewer people are showing up. Hill’s rare inquiry into the issue followed delays in a second-degree murder trial when 20 per cent of the expected pool failed to appear for jury duty.

The original panel of 300 declined to just 174 by the time members appeared for jury selection. Hill launched his own inquiry to find out where 43 of the missing jurors had gone after accounting for authorized absences and undelivered notices.

Hill’s investigation found that between September 2010 and January 2011, jury panels in Brampton had delinquency rates of between 11 and 20 per cent.

“A systemic problem has emerged,” he wrote in his March 1 judgment following appearances by 28 of the missing 43 people.

Jury duty is a “well-established obligation, though perhaps not fully recognized by many as a duty and indeed a privilege,” Hill added, noting that inconvenience and financial loss are “inevitably a cost of public duty.”

Confusion in communications and changed addresses accounted for many of the absences in the murder case, although Hill noted the court could have found at least six potential jurors in contempt.

“Because the inquiry in this case was the first organized delinquency audit of a Brampton jury panel, and very much concerned with process examination, leniency was appropriate,” Hill wrote.

Further appearances have accounted for 42 of the missing jurors, and the final panel member has been ordered to appear before Hill on May 13.

Hill has ordered random checks of jury panel memberships and said his inquiry had already resulted in significant improvement in attendance rates during a hearing on April 26.

In his March 1 judgment, Hill said a failure to follow up on absences could diminish respect for the system among those who do show up and risked creating a “perception that such a court order may be ignored with impunity.”

Quite apart from those who ignore their summons, many attempt to get themselves excused before appearing at court or deliberately eliminated during jury selection. According to Rose, a  proliferation of web sites offering tips for getting out of jury service has helped breed an attitude that characterizes it as an irritation rather than an obligation.

One site, fullduplex.org, advises reluctant jurors to play dumb or look dirty when they appear in court. “Remember, the court is looking for objective, normal people, not self-proclaimed radicals who might throw the system,” it reads.

“It’s a really sad commentary on our state of obligation to civic duties,” Rose says. “There’s a plethora of web sites that seem to be devoted to avoiding jury duty, and I hope the message gets out that jury duty needs to be taken seriously.”

Rose notes he recently came perilously close to exhausting a jury panel when just 175 out of 250 people showed up for selection. Elsewhere in Toronto, 270 out of 600 panel members recently failed to show up for jury selection in the high-profile Jordan Manners murder trial, which delayed the process and prompted Superior Court Justice John McMahon to order a report on why so many were absent.

For his part, Rose welcomes judicial moves to highlight instances of delinquency. “I think Justice Hill should be applauded for his inquiry,” he says. “I have no doubt there is a shortage of jurors and I’m sure it has been a problem in the past. It’s just that people don’t talk about it too much.”

Rose believes greater public education could help improve attendance rates and says potential jurors could be surprised by their experience if they embrace it. “My late father once sat on a jury about 60 years ago.

He didn’t tell me what happened other than it was one of the most interesting experiences of his life. I wish that everyone understood that and I’m sure if people showed up and sat on a jury they would get the same experience.”

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