This is the third and final installment of a series looking at Ontario jury duty service. In part one, CityNews reporter Nick Westoll provided an in-depth reflection on his experience serving as a juror. Part two looked at why juries matter to the accused, the victims and society as well as the requirements of being a juror. Those interviewed as part of this series had no direct knowledge or connection to the experience outlined in part one.
For Mark Farrant, serving on a jury in 2014 for a first-degree murder case was an experience, he said, that shook him to his core.
“It was an exhausting case — very, very graphic. I was not prepared emotionally, mentally, for what I was going to be experiencing in that trial,” he told CityNews.
“You’re given no background as a rule, and then immediately you’re hit with images and testimony that you just couldn’t imagine.”
It’s a situation that many in Canada have to grapple with, and it’s a feeling that’s typically absent and not reflected in a larger, broader discussion.
While testifying before a 2017 House of Commons justice and human rights committee as part of a probe into how jurors can be better supported, British Columbia resident Michaela Swan shared her experience as a foreperson with MPs on a 2016 case involving a teenager charged with first-degree murder. Under the Criminal Code of Canada, jurors can’t discuss what happened during deliberations, but she summed up the experience this way.
“It’s an intense situation with opposing views, values, personalities, and inflamed tempers. As individuals are going through, all the normal comforts of life and most coping skills are removed. You don’t sleep in your own bed, you don’t eat your normal food, and you don’t have your friends or family for comfort or to talk to,” Swan told committee members at the time.
“It’s confusing and highly complicated, but there is an immense drive to do the right thing. At times, there can be a sense of hopelessness.
“Speaking as a forewoman, I believe there is extra stress in the position. Once back at the hotel room, I would lie awake at night thinking about how to bring 12 people to agreement. It was my only time alone to think. What questions could I ask? How could I get passionate people to listen to their peers and dig into the rationale for their thinking processes? It was exhausting.”
Based on his own experience and anecdotal stories he heard from other jurors, Farrant founded a non-profit called the Canadian Juries Commission. The aim is to provide advocacy for citizens chosen to serve as jurors on trials and coroner’s inquests, to push for improvements to the system, and to provide emotional support to those who need it.
His organization has been conducting and tracking polling over the past five years among Canadians to gauge their attitudes toward jury service and the results are grim.
“Only 19 per cent of Canadians are willing to serve on a jury: That’s lower than the willingness to donate blood and the willingness to volunteer in the community, and even during COVID it was on par with volunteering in a hospital,” Farrant said.
“That just shows you that the Canadian public has a very low opinion of jury duty. And when we dove deeper into that, only nine per cent of Canadians really understand a criminal trial jury and seven per cent a civil jury and four per cent a coroner’s inquest because coroner’s inquests also use juries in a different fashion.
“Jury duty is the last mandatory civic responsibility that we have left in our society. There’s nothing left aside from jury duty. It’s a responsibility of citizenship. So there’s a lack of understanding and awareness of jury duty.”
He said issues with employment, “misgivings” about the justice system and fears about having such a responsibility were among the top reasons cited by jurors as being against the task.
Despite Farrant’s experience and those polling statistics, he did point to the positives of serving and said it can be “rewarding.”
“There are so many Canadians who, again, had some trepidation going into court. Is it disruptive? It can be, but they came out the other side feeling that they had contributed and they had really gained a unique understanding of the justice system and the legal system,” Farrant said.
“Many have talked about it for the rest of their lives. They can’t get into the mechanics of it, but, you know, felt proud of what they had done, felt proud that they had served.”
For those who have completed jury duty and for legal experts, there isn’t a shortage of opinion on how the current system can be improved upon.
Time to modernize compensation for jurors, legal experts and advocates urge
CityNews spoke with multiple individuals for this series, and a common point made by all individuals was the need to modernize how jurors are compensated for their time and expenses.
Under current Ontario jury duty laws and procedures, there isn’t a requirement for jurors to receive any money for the first 10 days of service. Between day 11 and day 49, $40 a day is awarded, and in the rare instances where service is required for 50 days or more, that figure jumps to $100 a day. Jurors aren’t entitled to money for parking or child care expenses. Meals aren’t provided outside of being sequestered for deliberations. If someone lives more than 40 kilometres away from the court they’re serving in, they are eligible for a travel allowance once they are appointed to a jury.
“That $40 a day in Ontario that jurors make for the majority of jurors who are in three-to-four-week trials barely covers the cost of parking downtown Toronto,” Farrant said.
“So in Ontario, a juror is making roughly $6 an hour serving with jury based on a standardized day in court — well, well off the posted minimum wage … jury pay is insufficient to allow people to participate in their civic duty.”
The Honourable Justice James Stribopoulos with the Ontario Superior Court of Justice in Brampton said many judges in the province have stepped up and used their discretion to order stipends be paid from the very first day of service.
“The reality is if we didn’t exercise that discretion, we wouldn’t be able to impanel juries,” he bluntly said.
“In this day and age, the cost of living being what it is, most people are living pay cheque to pay cheque … they don’t have a substantial amount of savings stocked away for a rainy day, and they can’t afford to go a week or two, or a month or two, and the longer cases can take that long without being paid.
“They’ll end up bankrupt, and we can’t bankrupt people. That’s not what we expect people to serve. It’s their civic duty, but not at that kind of cost.”
While Ontario law states an employee can’t be fired from their job for serving on a jury, every company has different policies about paying employees who serve and there isn’t a legal requirement for paid leave.
Also, with more workers in the gig economy, being self-employed or employed on a part-time basis, the challenge becomes worse.
“If judges didn’t do what they have been doing in terms of making those discretionary orders, we would end up with juries that were largely made up of retirees or employees of large corporations or civil servants. And you know, that’s not the wide cross-section of the population that I think we would like to have,” Stribopoulos said.
“In circumstances like that, you’re not going to have any people in their 20s, for example, because they’re rarely going to be in a position where that’s going to be them. And you know, very often the people who are on trial are in their 20s.”
Theresa Donkor, a criminal defence lawyer and a director with the Canadian Association of Black Lawyers, echoed the benefits of creating better conditions to enable a wider range of participation. She noted that while there is documented over-representation of Black and Indigenous peoples in the criminal justice system, there is an under-representation on juries.
“One of the reasons why the court says there’s this under-representation of Black, Indigenous and marginalized communities is because jury service poses a hardship, and this usually results in the exclusion of individuals living in remote areas and low-income individuals,” she told CityNews.
“Racism, and in particular anti-Black racism, is ingrained in our community psyche, and I think that’s a very powerful thing for our courts to acknowledge. And so we can’t assume that instructions from the jury or other safeguards will actually eliminate those biases that are so deeply ingrained … that’s part of the reason why having more diverse representative juries is important because it allows for broader perspectives. It allows for the reduction in groupthink.”
“Research has shown that more diverse juries are actually more effective juries.”
A 2018 report by the House of Commons Justice and Human Rights Committee recommended a standardized payment of a minimum of $120 for each day of service with built-in inflationary increases to better protect all jurors’ financial security. It also called for support for other out-of-pocket expenses like parking and child care.
Farrant noted in Saskatchewan, jurors receive $110 for each day of service unless they receive employment income. In that province, parking, mileage, meals and dependent care costs could be eligible for reimbursement if necessary. In Quebec, jurors are paid $103 a day and receive meal and transportation allowances. Meanwhile, B.C. residents get $20 a day for the first 10 days and that jumps to a daily rate of $60 between the 11th and 49th days of service, and $100 a day starting on day 50 until the end of the trial while parking, transportation and child care allowances are also paid.
Judges can’t change the provincial policy with regard to jury compensation, but Stribopoulos said he believes now is the time for modernization since the current prescribed payment structure was set decades ago.
“The amount that becomes payable after a certain period of service is a pittance,” he said.
“It is something I think that needs to be attended to by the legislature … it should be consistent, and it isn’t at present.”
CityNews contacted Ontario Attorney General Doug Downey’s office to ask about the 2018 report as a whole and the calls to fix compensation. A spokesperson said the attorney general “recognizes the importance of supporting jurors, building capacity, and improving the administration of justice,” but didn’t confirm if changing the funding amounts would happen.
“We have already implemented several of the recommendations from [the 2018 report] on juror support, including enhancements to the jury duty online tool, which allows prospective jurors to request deferrals or excusals online in advance of their summons date,” Charlotte Carron wrote in a statement.
“We know there is more to do, and as part of our government’s plan to strengthen Ontario’s justice system, we continue to look at ways to increase support for jurors.”
Strong need for better public education on, and study of, Ontario jury duty
When it comes to jury trials in Canada, officials are quick to admit it is a far cry from what’s portrayed on television, movies and streaming services.
“The reality is television dramas and movies that use court proceedings as their focal point. It’s entertainment and so they’re going to give you a dramatized version of pieces of litigation that are most entertaining, and the reality is trials don’t unfold the way an episode unfolds on Law and Order,” Stribopoulos said.
“They’re a lot messier, and getting the evidence before the jury or the judge-alone trial is time-consuming. And you know, not every single question that gets asked is, you know, a highly-dramatic moment. In fact, there’s a lot of plodding along to get the story out from the witness, and the same is true in cross-examination.
“I think the thing that people would be struck by, sitting in a Canadian courtroom versus watching a drama on television, is just the pace. It’s much slower than what happens on TV, and secondly the lack of drama as compared to what you see on television.”
When a jury is impaneled, the trial begins right afterward. It means all the hearings to decide on what will be admissible in the trial happened long before jurors entered the courtroom.
“There’s a plethora of different pretrial applications that can be brought and decided either by the trial judge or someone designated to make those decisions, a case management judge, and sometimes those can require a day if there’s one discrete application, or it’s not uncommon in some cases for a pretrial application or the applications to have taken several weeks or months and have been decided six, seven months before the actual trial gets underway,” Stribopoulos said.
It is these types of nuances and variations from courts in the United States that legal experts say promote the need for broader education.
York University law professor Benjamin Berger said there should be legal changes that would allow for the scholarly study of how juries function in an effort to improve the process.
“We have these interlocking rules that make it very secret, and there are all sorts of good reasons for that to protect open deliberation. The worry is that if people don’t know that it’s totally secret, they won’t be open in the jury deliberations … but it does tie the hands of researchers in terms of figuring out more about the experience in terms of understanding more about the quality of jury decision-making,” he said.
Speaking in her capacity as a defence attorney, Donkor said she echoes the need for more research, data collection and transparency to get more insight.
“In Canada, it’s kind of a black box because juries aren’t allowed to talk about their deliberations at all and there are a lot of really strict rules around what juries can and can’t do, which I understand, like the protections for jurors. I understand that, but I think the more data that we can collect on what’s going right, what’s working right and what’s working wrong, then that would lead to more effective reforms,” she said.
“It’s kind of hard to determine what’s actually happening in those jury rooms. Are we seeing a lot of wrongful convictions because juries are deliberating on things that don’t matter or don’t have an understanding of the law, or are actually using a lot of bias in their deliberations?”
Meanwhile, Farrant said his organization has been working to do more education on the process after receiving a grant from the Law Foundation of Ontario — particularly for workplaces, employees and managers.
He said the toolkit would “remind us all about why jury duty matters, why it is important, and why as good corporate citizens we need to support our employees when they are serving and support the jury system in this country.” Farrant said it would inform workers of their legal rights and that there would be tools for supervisors and human resources personnel “to assist them in the transition in and out of court with employees and how to support an employee while they’re serving, and how to support them when they are returning to the office, especially after a traumatic, graphic trial.”
Other opportunities to improve jury duty?
The House of Commons report also made other recommendations to provincial and territorial governments across Canada on other improvements that should be made such as:
- Preparing fulsome information packages on legal concepts, roles and responsibilities, compensation, deliberations, types of questions that can be asked of the court and mental health supports
- Creating a more “optimal physical environment” for jurors to minimize public interactions such as dedicated parking spaces, improved jury rooms with better lighting and private spaces for jurors who need time alone “to recharge if necessary”
- One-time federal funding to support implementing the report’s recommendations
It’s not clear if all 11 recommendations from the report will be fully adopted by the Ford government amid pronounced efforts to improve the justice system in Ontario.
When asked if there is room to loosen the rules when it comes to sequestering a jury during deliberations and cutting off access to different types of media and data, legal experts defended continuing the practice in the absence of a better way to safeguard against influence.
“Up until the moment the jury starts deliberating, everything that happened before the trial started, or everything that happened outside of the purview of the jury, is subject to a prohibition on publication and broadcast, so that’s in the Criminal Code,” Stribopoulos said.
“There’s a reason that the jury didn’t hear that evidence because it was ruled legally inadmissible, and it’s not something that they should have known about. So sequestration is a way of ensuring that they remain cocooned and protected from the influence of information that they shouldn’t be privy to.
“We don’t distinguish between high-profile cases and cases that aren’t high-profile. The Criminal Code requires it in every case the jury is not to separate once it begins deliberating.”
“Our world is changing so quickly, so a lot of our approaches and rules around jury decision-making were simply just obviously not made at a time of easy access to information on your cellphone and things like that … the principle of sequestration is really important, but you start to see these tensions with the nature of our modern world,” Berger said.
“(The) realities of the modern world that create some force, create some friction on these principles, so all of this needs to be thought about in a principled way.”
Supporting jurors’ mental health
While there are calls for various improvements, one area that has seen change is an approach to mental health.
In recent years, Parliament changed the Criminal Code to allow jurors to speak with registered mental health professionals about deliberations as part of treatment.
Farrant said that wasn’t an option when he served as a juror and it’s a change that was sorely needed.
“I did everything that you shouldn’t do in mental health and well-being, I ignored it, buried myself and hoped it would go away. And when I was ready to deal with it and ready to admit that I had a problem, I found that there were no supports available in Ontario at the time for jurors,” he said, reflecting on his experience a decade ago.
The Ontario government provides all jurors with access to post-trial counselling if they need it.
“The weight of it is considerable. I mean that’s something I’m cognizant of. It weighs on me when I’m making the decisions too in judge-alone trials,” Stribopoulos said.
The Canadian Juries Commission also now has a peer-support program made up of former jurors to help those who recently served.
“That came out of our research with former jurors who said, ‘I really wanted to connect with somebody who understood the burden that I experienced and the issues that I’m dealing with now. I’m just not feeling the same, I’m not feeling right,’ and they could connect with somebody who can normalize that experience and provide a sense of hope and a sense of understanding,” Farrant said.
