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The Jury's Trial

Why does our legal system punish jurors to a criminal degree?

By Garry Gaudet 15 Feb 2006 | TheTyee.ca

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Served on a jury lately? If so, you know that jury duty is a criminally unjust, completely overlooked part of Canada's legal system. How would you respond if you got a jury summons for, say, the trial of a biker gang member, or Robert William Pickton? Got a few months to spare?

Most Canadians go through a lifetime and never get a jury summons. So far, I've been granted the bounty of three jury trials. Luck of the draw. Two were quite short, less than a week each. But the last was an ordeal that tormented me for months -- and inspired me to examine the business of juror selection, regulation and treatment.

Anyone charged with a variety of serious criminal code offences -- generally those carrying potential sentences of above five years -- may demand a jury trial. A few weeks before the trial date, the judge advises a regional sheriff to summons about 120 citizens, forming a "jury pool" from which the privileged dozen, and usually two alternates, are chosen. During the selection, defence and Crown counsel are allowed a number of challenges, to discard jurors about whom they may feel unease and the trial judge may excuse jurors who admit to some bias or prior knowledge of the case to be tried.

Jury trials are held in Provincial Supreme Court. Each province maintains its own list of citizens eligible for jury summons, drawn from various sources from province to province. Some use a database of provincially licensed drivers and vehicle owners. Others rely on a voters list. Provinces may draw from the names of property owners, or Medicare enrolees over 19. As a last resort, if mailed summonses produce insufficient numbers, citizens will be summoned from the street, malls and bars. Don't mess with the sheriff and ignore a summons, by the way. In Nova Scotia, failing to respond draws a $1,000 fine.

Losing your liberty

If selected, you might find yourself assigned to a complex and nasty trial that will run for weeks or months. You surely will lose aspects of your liberty.

Determining the fate of a defendant is extremely troubling. You swear to apply your most diligent, open-minded judgement to all the evidence to be presented and commit yourself to using all the common sense at your command in deciding what you do and do not believe. You will leave your daily job. You are cut off from normal support systems by being forbidden to discuss the case with loved ones and friends during the trial, even though the case may be covered daily in the media. The judge will likely urge you not to read newspapers or watch TV news.

During a criminal trial, you will almost certainly see gory photos and hear details of violence that could haunt you for years. You will not be mentally or emotionally prepared in advance. You will not be able to dismiss the case from your mind on weekends and holidays, and will spend the length of the trial, and possibly much more time after it, obsessing over details of testimony, possible scenarios of a crime. Many of your own questions will be unanswered and some witnesses you desperately want to hear from may not be called or permitted to testify. No matter what level of psychological discomfort you reach, of all the provinces and territories, only Quebec explicitly offers payment for post-trial counselling. Other provinces leave such help to the discretion, goodwill and budget of the sheriff. It may not be mentioned or offered unless jurors specifically ask for it.

Everyone in the courtroom is being paid, decently to lavishly, except the accused, the witnesses and you, the juror. You might not get one cent for some or all of the days you sit. Ontario and Manitoba pay nothing for the first 10 days, while Newfoundland and Labrador pays its jurors nothing for the entire trial, no matter how long. However, it does require that employers of jurors with jobs continue their normal pay, and that employment insurance continues to flow. Contract employees, freelancers, homemakers and retirees just get stiffed.

Other provinces pay jurors insulting amounts starting at $10 per day in wealthy Alberta, $20 in BC, if you don't have an employer or union contract that continues your salary during jury service. The rates rise after 10 days and again after an unthinkable 50 days in the courtroom.

The torture of your peers

For the duration of the trial, you will share a small room with fellow jurors of assorted ages, education, experience and interests. Some will talk your ear off. Others will hardly say a word. You will spend much time together, because jurors repeatedly sit idle during courtroom conferences held "in the absence of the jury".

Fellow jurists might not share many interests with you. Among a dozen strangers in a room, discussion frequently turns to such stimulating TV fare such as "reality" and makeover shows. Jurors might follow CSI, Law and Order (which is sadly inconsistent with Canadian law), People's Court, Judging Amy and Police Chases. You may even be among those who adore new-wave shows featuring people who marry strangers or eat insects and rodents. Not keen on TV? Too bad. You will probably find it impossible to read or do homework in a small, noisy jury room. There is no quiet place you might escape to. You might be tempted to turn to Prozac or alcohol during lunch and smoke breaks.

You will soon realize that much of what you sit through in court is time-wasting, extraneous clutter.

When the trial finally ends, you may freely discuss anything you saw and heard in the courtroom. However you may not, on pain of prosecution, ever discuss jury "proceedings" which took place during the trial. The law (Criminal Code 649) is unclear on whether you can later discuss jury room conversations or other non-identifying matters that did not touch upon the case itself.

The judge will advise you that he or she alone is the authority on the law. The appeal courts await any judicial slip-ups. Your job as a juror is to judge "facts", which will be elicited by lawyers questioning witnesses for the Crown and the defence. Some attorneys waylay your search for truth by dragging in every red herring and "alternate theory" of the crime the law will allow.

You will probably also be denied information that might assist you, as the testimony of witnesses and perhaps the accused ("direct evidence") is filtered through centuries of clammy legal precedent and the new inhibitions of the Canadian Charter of Rights and Freedoms. You will almost inevitably hear lies from someone sworn to tell "the truth, the whole truth, and nothing but the truth" and are left to sort out who you believe.

With luck, you may get some DNA and fingerprint evidence to work with.

How to beat the system

Cynics say juries are made up of people too dumb to avoid them. Yet, many people will never get a summons. How come?

In BC, only names on the provincial voter's list are used. If you move and leave no forwarding address, you're probably safe -- except in the malls, if the sheriff runs short. Alberta lists those who own cars and driver's licenses. Take the bus. Ontario calls only registered property owners to jury service. Be a tenant. Each province has its own particular quirks. You could look them up.

Other general exclusions you might consider:

Talked to death

My greatest peeve with jury duty is the utter disrespect for the juror's time. Jurors forego much to be there. We are less than impressed by proceedings moving at 18th-century speed. A great deal of trial decorum is mumbo-jumbo and repetition, having mainly to do with preserving the Court's "dignity" -- at considerable cost to efficiency. Witnesses' time is equally mistreated.

While the accused is entitled to presumption of innocence, the juror is entitled to a presumption of intelligence. So, lawyers, make your point and then move on. As Mark Twain said, "It is a terrible death, to be talked to death."

What can be done?

Judges and lawyers, steeped in the ponderous dignity of proceedings (and lavishly paid for their time), could expedite the process.

Pre-trial conferences organize the trial and agreements of fact are sometimes reached. These agreed admissions somewhat reduce trial time. Despite them, criminal trials can still drag on for months. More can be done.

Witnesses are flown across the land at considerable expense to attest the obvious. Trials are often delayed when witness travel arrangements break down. Can their evidence be taken more often by videotape or videoconference?

Is it necessary to spend the numbing amount of court time required to qualify and swear witnesses? Could they not be pre-sworn before taking the stand, and not "re-sworn" when resuming it?

Much time is spent tracking exhibits from the status of "police exhibit", to a "preliminary exhibit", then at trial introduced as "lettered exhibit", and finally after clearing sundry hurdles, "numbered exhibit". The process seems analogous to and almost as long as bringing a child from kindergarten to elementary school, through secondary and finally out the far end with a degree.

Should defendant access to jury trials be more restricted than it is? Perhaps longer trials could be held before professional, decently paid jurors.

Justices of the Peace and Court Masters adjudicate some legal matters. Why should these persons not be put to work as jurors for trials likely to last more than a couple of weeks? Some jury trials now run half a year, or more. There is no way an average citizen should be required to sit on such trials.

A variation of the Chinese system of paying a physician only when the patient is well might also hasten trials. I dream of stopping a lawyer's pay the moment he or she stands up to speak, resuming it only when the attorney stops.

Fighting for justice

Fortunately, only a few thousand Canadians are called for juries each year. In 2001-02, Alberta held 93 jury trials, using 1,116 jurors. Newfoundland and Labrador held 29 trials, inconveniencing 340 jurors. BC had170 criminal jury trials in 2003, pressing 2,040 citizens into service. A great many more trials are held before judge alone.

We jurors are yanked from our normal pursuits and interests, financially punished, and penned up with people with whom we share few interests. Some of us get pissed off. One jury was stuck for three months in a Northern BC trial that was supposed to last "a few weeks". On the third day of their deliberations, a fistfight broke out in the jury room.

We are put under the stress of evaluating evasive, conflicting and misleading testimony, scrutinizing gory photos and exhibits that will trouble some of us for life and having to decide the fate of multiple miscreants whose life choices and acts we can not begin to understand, much less condone.

Canada pours resource and thought into crafting new laws, law enforcement and both prosecuting and defending accused persons.

The justice system owes a much greater measure of justice to its jurors. It should now entertain ideas toward ending the mind-numbing theft of the juror's time, tranquility, privacy and personal liberty.

Garry Gaudet is a free man in Lantzville.  [Tyee]

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