Law Times

Law TiMes • May 2, 2011 NEWS PAGE 3 Judge's inquiry prompts debate on juror compensation Issue arises as web sites offering advice on evading service proliferate BY MICHAEL McKIERNAN Law Times G overnment action to compen- sate jurors must offset efforts to enforce jury duty, a Brampton, Ont., criminal lawyer says after a judge there tracked down and challenged sev- eral people who failed to show up. Vince Houvardas, first vice president of the Peel Law Association, says Superior Court Justice Casey Hill's inquiry into missing jury candidates highlights a com- plicated 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 some- body 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by law, I think the government really has to step up and put some compensation together for jurors because it's way out of date. Al- though 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 com- posed 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 serv- ing and there are no childcare allowances. Five years ago, the chief justice's ad- visory committee on criminal trials rec- ommended 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 re- gardless of the distance travelled, as well as for parking, meals, and daycare. "There's tremendous hardship for ju- rors 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 ap- peared for jury selection. Hill launched his own inquiry to find out where 43 of the missing jurors had gone after ac- counting 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 fol- lowing appearances by 28 of the miss- ing 43 people. Jury duty is a "well-established ob- ligation, though perhaps not fully rec- ognized by many as a duty and indeed a privilege," Hill added, noting that in- convenience and financial loss are "in- evitably a cost of public duty." Confusion in communications and changed addresses accounted for many of the absences in the murder case, al- though Hill noted the court could have found at least six potential jurors in con- tempt. "Because the inquiry in this case was the first organized delinquency audit of a Brampton jury panel, and very much concerned with process examination, le- niency was appropriate," Hill wrote. Further appearances have accounted for 42 of the missing jurors, and the fi- nal 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 improve- ment in attendance rates during a hear- ing 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 creat- ing a "perception that such a court or- der may be ignored with impunity." Quite apart from those who ignore Justice Casey Hill has made headlines for his inquiry into juror absences in Brampton. their summons, many attempt to get themselves excused before appearing at court or deliberately eliminated during jury selection. According to Rose, a pro- liferation of web sites offering tips for get- ting out of jury service has helped breed an attitude that characterizes it as an ir- ritation rather than an obligation. One site, fullduplex.org, advises reluc- tant jurors to play dumb or look dirty when they appear in court. "Remember, the court is looking for objective, nor- mal 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, CORRECTION A headline in the April 18 edition of Law Times incorrectly identified the firm that had hired two new lawyers at its Paris office as FMC (Fraser Milner Casgrain LLP). In fact, the firm was Fasken Martineau DuMoulin LLP. and I hope the message gets out that jury duty needs to be taken seriously." Rose notes he recently came peril- ously 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 mur- der 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 delin- quency. "I think Justice Hill should be applauded for his inquiry," he says. "I have no doubt there is a shortage of ju- rors 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 hap- pened 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." YOUR INCORPORATION SOLUTION FOR ONTARIO ENTITIES NEW COMPANY FORMATION PACKAGES FROM CYBERBAHN® Incorporating a company? Registering a business name? Cyberbahn® manages new company formations with packages that take you from start to finish – and fast turnaround. One-stop incorporation packages give you the most value for your dollar and include customized corporate supplies. We process all required paperwork, complete the filings, and submit the forms – all on your behalf. One package. One company. One complete solution. MULTIPLE SERVICE PACKAGES FOR ONTARIO COMPANIES OF ANY TYPE Simply choose from multiple service packages. Our law clerks understand government requirements and business processes. They will review and validate your entity documents to ensure quick and accurate filing of your new business. 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