As courts prepare to restart jury trials, advocates call for fair pay for jurors

Canadians would rather get poked with a needle and give blood than sit on a jury, according to a recent national study conducted by the Canadian Juries Commission.

The survey found that the only thing Canadians rated worse than jury duty was volunteering at a hospital during the pandemic.

Now, with nearly two million Canadians out of work — and with personal anxieties over health and financial issues mounting — jury duty will become even more unpopular, especially since jury pay remains persistently low and uneven across the country, said the commission's CEO and founder Mark Farrant.

"I think most people would agree that when somebody receives a summons, the first thing that goes through their head is, 'How can I get out of my summons and how can I get out of my civic duty?'" Farrant said.

"Jury duty pay can't be seen as an honorarium or a thank-you anymore. It has to be seen as income replacement and it has to be seen as a catalyst for participation, which we believe it will be."

Although jury duty might be the last thing on people's minds right now, summonses will begin roaring back into individuals' mailboxes soon, as most provinces and territories prepare to resume jury trials this fall.

Farrant has asked provincial and territorial governments to raise jury duty pay to at least the level of the minimum wage, which would amount to $120 per day.

Jury pay increase recommended 2 years ago

Despite the financial difficulties Canadians are facing, Farrant said he has been told there are no plans at the provincial and territorial level to increase juror compensation. 

Farrant is urging the federal government to fill in the gap by declaring jury duty an essential service.

That move, he said, would allow Ottawa to either direct provinces and territories to boost juror compensation or subsidize the difference between current juror pay and the minimum wage.

Justice Minister David Lametti and Supreme Court of Canada Chief Justice Richard Wagner have provided guidance to courts on best practices for the return of jury trials, such as maintaining physical distancing and the use of personal protective equipment.

But the federal government does not have any plans to push for an increase in jury pay, even though that was recommended by the House of Commons justice committee two years ago.

In a statement, Lametti's office said the question of juror pay is one for provinces and territories to answer.

"Provincial and territorial legislation addresses the basis for identifying possible jurors from the community to establish the jury roll, the grounds upon which a person is ineligible for jury membership, as well as juror compensation," said the statement.

Conservative MP Michael Cooper, who recommended an honorarium increase to the House justice committee, said the lack of federal action is disappointing.

"There needs to be a stronger federal leadership role and perhaps that does mean declaring jury service an essential service," Cooper said.

"It is, at the end of the day, a federally mandated form of civic duty, so it would send the right signal to the provinces and territories to take measures in the way of providing greater supports for jurors. It would also send the right message to employers in terms of accommodating employees who are summoned."

'Impacts not just you, but your family'

Patrick Fleming was able to get full pay from his employer when he served as jury foreman on the 10-month trial of Jennifer Pan, a young Markham, Ont., woman who was sentenced to life with no parole for 25 years for arranging the murder of her parents. (Her mother died in the attack but her father survived.)

Fleming said he recognizes that not everyone enjoys the same job benefits — especially in a pandemic-crippled economy.

"The low amount of pay while doing your civic duty impacts just not you, but your family," said Fleming, who now serves as a commission board member.

"On top of it, when you do serve as a juror, you have to pay for your own lunches."

Juror compensation is a patchwork across Canada and most jurors receive less than the minimum wage: 

• Newfoundland and Labrador: This is the only province with legislation that stipulates employers must grant a paid leave of absence to employees if they are asked to serve on a jury.
• Nova Scotia: $40 per day, parking is reimbursed and jurors receive 20 cents per kilometre to and from the courthouse.
• Prince Edward Island: $40 per day and travel costs payable at the government employee rate.
• New Brunswick: $20 for a half-day's attendance and $40 per day for a full day. If a trial lasts longer than 10 days, the fee increases to $40 for each half-day and $80 for each full day.
• Quebec: $103 per day or part of a day. Compensation is increased to $160 beginning on the 57th day of a trial. Jurors in Quebec also can claim expenses for meals, transportation, accommodation, child care and psychological treatment.
• Ontario: No pay for the first 10 days of service, $40 per day thereafter. Jurors are given $100 each day after 49 days.
• Manitoba: $30 a day, starting on the 11th day of service.
• Saskatchewan: $110 for each day. Parking, mileage, meals and dependent care also may be eligible for reimbursement.
• Alberta: $50 per day and travel expenses.
• British Columbia: $20 per day for the first two weeks, $60 per day between day 11 and 49, then $100 per day if a trial lasts beyond 50 days. 
• Yukon: $80 per day
• Northwest Territories: $80 per day
• Nunavut: $100 a day for the first five days, then $150 per day starting on the second week.

Fleming said he doesn't want Canadians — already under heavy financial pressure due to the pandemic — to face an extra burden from jury duty.

"The federal government definitely has to move quickly on this if they want the criminal justice system to be right and do right for the Canadian citizens," he said. 

Financial and mental burdens

On top of pay issues, jurors can also pay a psychological and emotional price for their service. While most provinces offer free counselling services to jurors, it is illegal for them to divulge details about court deliberations with mental health professionals due to the jury secrecy law.

Cooper tried to change the law through the private member's bill C-417 in the last session of Parliament. The bill, which would have amended the Criminal Code to allow jurors to discuss jury deliberations with a licensed health-care professional, died on the order paper.

The proposed legislation got a second lease on life when Conservative Sen. Pierre-Hugues Boisvenu, in December 2019, introduced a version of it in the Red Chamber. It's currently at second reading stage in the Senate.

Jury duty took a heavy toll on Fleming, who said he isolated himself from his family.

"You have to sort of stay to yourself and contain all your information that you've heard and seen during the day to yourself. So it does impact just not you, but your family as well and close friends," Fleming said.

"You're out of one world and into the world of the unknown. When you get home, you don't really want to share too much of your day, so you end up sort of isolating yourself from your family slowly."

With statistics showing a rise in depression and anxiety among Canadians due to COVID-19, Independent Sen. Lucie Moncion said it's even more important to ensure there are appropriate mental heath resources in place to support juries.

Moncion, who supports Boisvenu's bill, suffered from post-traumatic stress disorder (PTSD) after serving on a jury for a month-long first-degree murder trial in 1989. She said she saw and heard traumatizing and graphic evidence during the trial.

"As we were leaving, we were told that's it. You go home and you don't get any help," Moncion said. "It took me 12 years before I realized that I had a problem."

"Right now, in the court, judges get help, lawyers get help, staff who are in the courtroom get help ... The only people who cannot get help are the people who are on jury duty."

Moncion said she agrees jury duty needs to be reformed because, under the status quo, she wouldn't want to serve again.

"There has to be an incentive to get people to really agree to do jury duty," Moncion said.

"I always said to myself if I ever was called again for jury duty, I think I would find a way to not be chosen because it was so difficult and it lasted so long."