Why pay for jurors became an issue at Saint John murder trial

When juror No. 13 called his employer to say he'd been selected for jury duty in a first-degree murder trial in Saint John last month, he was told he wouldn't be paid. 

As a result, the employee of the Town of St. Stephen asked the presiding judge to excuse him from jury duty. 

Court of King's Bench Justice Darrell Stephenson wasn't pleased that a municipal government wouldn't pay an employee while doing his civic duty. 

Without hesitating, Stephenson called St. Stephen town hall and put chief administrative officer Jeff Renaud on speakerphone in open court and challenged him about it.

Renaud said his interpretation of the law supported the town's position to not pay the employee. 

While the province's Employment Standards Act doesn't force employers to pay, Stephenson said, he believed all municipalities in the province were committed to the administration of justice. 

"This is completely unbelievable," the judge said. 

Stephenson asked all six Crown and defence lawyers involved in the case whether they had ever heard of municipalities refusing to pay, and none had. 

The judge described it as "an affront to the administration of justice in this province" and said he hoped the instance was "an outlier." 

Stephenson released the employee from jury duty, but he made his displeasure clear to the court. 

He later informed the court that a town official called back to say they had decided to pay the employee after all. But by then, the juror was already long gone. 

All of those details were protected by a publication ban that was lifted at the conclusion of the murder trial. 

Renaud did not respond to interview requests left over the last two weeks.

St. Stephen Mayor Allan MacEachern confirmed the town ultimately decided to pay the employee.

He said the town believes in supporting the justice system but said losing an employee for more than a month would be "challenging" for a small municipality like St. Stephen, with a population of about 8,600. 

He said officials will hold discussions on how to respond, should an employee be asked to serve in future. 

Employers not obligated to pay

Although employers aren't obligated to pay employees during jury duty, many municipal governments do, as well as the provincial government. 

For example, Saint John, Moncton, Fredericton, Rothesay and Quispamsis all pay their employees — minus the payment jurors receive. 

In New Brunswick, jurors receive $40 a day. But if they sit less than four hours, they only get $20. If a trial lasts 10 days or longer, the fees double, starting on Day 10 of the trial.  

In the case of the recent first-degree murder trial over which Stephenson presided, the trial began on Sept. 16 and ended with a conviction on Oct. 17. In between, the jury got a number of days off because of hearings that had to be held in their absence.

Those days off at mid-trial prompted the judge to wonder whether jurors get paid when they're not in court. 

The answer is that they do not. 

Department of Justice and Public Safety spokesperson Allan Dearing said that under the province's Jury Act, "fees are paid to jurors for the days they attend the hearing of the trial.… Fees are not paid to jurors if they are not in court."

Juries deserve a raise, says law prof

While employers can't fire an employee for serving on a jury, they don't have to pay them while they are — not even government employees, said Nicole O'Byrne, an associate professor in the faculty of law at the University of New Brunswick.

"Employers have an obligation to not fire people for serving on a jury. But there's no obligation — unless it's laid out specifically in a collective agreement or in a terms of employment — to actually continue to pay the juror while they're serving in that capacity, which is why there's jury pay," O'Byrne said.

She said the rate of jury pay should be raised. The current rate hasn't changed "in a very long time and needs to be looked at, because you have jurors now who are saying that they can't serve because of the financial hardship that they will suffer."

At $40 a day, O'Byrne points out, that it's about $5 per hour. 

She said serving on a jury is viewed as a civic duty, but people should "not suffer financial hardships to do so." 

O'Byrne also stressed the importance of being judged by a jury of one's peers, a concept which dates back to the Magna Carta of 1215. 

"And so the commensurate part of that, the obligation is that all citizens should be able to serve on that jury as well," said O'Byrne. 

"It's a very important aspect of what it means to be a citizen. And when people cannot serve on juries because it will cause a serious financial hardship to them, that should be a concern for everyone."

According to the Jury Act

Every New Brunswick resident who is 19 years of age or older — and a Canadian citizen — may be called for jury duty.

Some people are ineligible to serve, including most people who work in the criminal justice system and their spouses, "duly qualified medical and dental practitioners," veterinarians, firefighters, anyone in the armed forces and anyone with a criminal record. 

People may be exempt if they've served on a jury in the five years preceding the summons, if they're 70 or older, or if they suffer from "a physical, mental or other infirmity that is incompatible with the discharge of the duties of a juror."

Potential jurors may also be excused if "service of 10 or more days would cause serious and irreparable financial loss" or if they provide care for a child under 14, a person who is "infirm or aged" or a person who is mentally incompetent.

Getting out of jury duty

Jurors can apply to the sheriff's office in writing to make their case to be relieved of jury duty. Requests can also be made to the judge during jury selection. 

In Stephenson's recent trial, more than 70 people appeared at the Saint John Law Courts in response to a summons sent by Sheriff Services.

One by one they were brought before the judge and given a chance to ask to be excused from duty. Out of the first 29 called, 13 asked to be excused for a variety of reasons, including several health-related ones, or because they knew someone involved in the case. 

Three were initially released for financial hardship and another two after being sworn in.