Who's to blame for juror no-shows: 'Sad generation' or broken system?

When a Nova Scotia judge recently decried a "flabby, sad generation" for failing to appear for jury duty, he likely struck a chord in courtrooms across Canada.

Most provinces and territories that track absenteeism among prospective jurors (and few of them do) report that about one-fifth of citizens don’t show up when summoned.

"I believe that many of them don’t know that it’s a duty that they have," said Richard Prihada, vice-president of the Quebec association of criminal lawyers and president of Montreal’s criminal lawyers association. "A lot of times people ask me, ‘Well, how can I get out of it?’"

Prihada discourages them from escaping jury duty, saying they’ll actually benefit from the experience.

But simple discouragement may not be enough. In Nova Scotia, three justices in the past few months have cracked down on no-shows in an attempt to send a message about the importance of jury duty.

Nova Scotia Supreme Court Chief Justice made local headlines last week when he demanded to know why 95 prospective jurors — about 40 per cent of the pool — did not show up.

"It's a duty to participate. But not everybody apparently understands that," said Justice Kennedy. "We haven't been asked to do that much. When we are asked, we don't vote, we don't show up for jury duty. We are a flabby, sad generation."

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In the past few months, two other justices in the province called absentee potential jurors to the courtroom to answer for not showing up for jury selection. Four faced fines, ranging from $50 to $200 — about 13 per cent of those who were tracked down and appeared before the judges.

And on May 23, Nova Scotia Supreme Court Justice Glen McDougall ordered sheriffs to round up seven people who didn’t show up in court after being summoned for jury duty, saying he wanted "every effort possible expended, and nothing short of a grave marker" would satisfy him.

In the case before Justice Kennedy that sparked his remarks about the sorry state of the jury-selection system, the absentee rate was 40 per cent, double what the province’s justice department says is the usual rate (though it doesn’t keep detailed statistics).

Nova Scotia is not alone. Yukon reported a 21 per cent absentee rate for potential jurors in the past 14 months, the Northwest Territories saw 19.5 per cent fail to show up, and British Columbia estimates its rate is 20 per cent. 

Quebec’s justice ministry says in Montreal, absenteeism is about 20 to 25 per cent. Saskatchewan doesn’t track absenteeism, but sends out extra summonses in anticipation that 30 per cent will fail to appear.

Manitoba only tracks the number of absentee jurors who get hauled before a judge to account for missing the jury pool summons: it’s less than 0.1 per cent of all those summoned. The Ontario government doesn’t track prospective juror absenteeism.

Apathy

The numbers beg the question why jury duty is so unpopular in many parts of Canada.

"Human nature being what it is, there may be some apathy, there may be some misunderstanding of what the process is really about," says Josh Arnold, vice-president of the Nova Scotia Criminal Lawyers Association.

Brampton, Ont., resident Jonathan Jocham disagrees. The 25-year-old says the issue lies not in apathy of citizens, but an apathetic system that fails to punish no-shows.

Jocham failed to appear for his summons to jury selection at a Brampton courthouse on May 8 because he forgot about it. The next day, he showed up at the courtroom to apologize and expected to be fined.

"The punishment I received was basically an eye-roll from the court clerk," said Jocham. The clerk sent him in to the jury selection process, which was still going on. When he came before the judge, he contritely told her, "I unintentionally missed my first day of jury selection."

"The judge didn’t even bat an eyelash," said Jocham. "Nobody cared that I didn’t show up."

Compensation and penalties

Another possible reason prospective jurors aren't showing up in court is the lack of compensation during jury selection, and insufficient compensation during trial.

Across the country, compensation for a sitting juror ranges from $20 a day to $100. In Ontario, for example, sitting jurors aren’t compensated during the first 10 days of trial. Over the next 39 days, they receive $40 per day and each day over 50 is $100.

"It’s ridiculous," said Jocham. "People should get paid top dollar to go in and do this."

Even at the top rate, Jocham said it wouldn’t even amount to half of his monthly earnings. In the end, the judge exempted him from jury due to financial hardship, as Jocham is the owner of a new painting business. Judges are often lenient with those with legitimate reasons such as illness or financial hardship, but prospective jurors are supposed to appear in court to explain their reasons.

Newfoundland and Labrador is an anomaly in Canada, in that employers must continue to pay their employee’s salary during jury duty or face fines of $1,000 and up to three months in prison. Citizens can also be fined up to $1,000 or face six months in prison for not appearing, but most get fined $50.

"[The compensation] does not solve all the problems," said Bob Simmonds, a defence criminal lawyer in Newfoundland. "That solves some but it does not solve all of them …. Self-employed small business people, it is a real problem for them."

Still, the province has the lowest recorded rate of absenteeism, at less than one per cent. Out of 2,908 summons issued in Newfoundland and Labrador recently, only 24 prospective jurors were absent.

Simmonds suggests the high compliance rate in Newfoundland might also have something to do with a high-profile case in 2007 where a judge took the unusual step of not only hauling the no-shows into court, but locking them behind bars for several hours and threatening to charge them with contempt of court.

Descriptions of teary jurors emerging from lockup in St. John’s who described a "day from hell" made the local paper.

Simmonds, who represented two of the jurors who feared a contempt charge on their records, called the reaction a "tad over the top."

"Having said that, it seemed to correct the problem. I have not heard of that [type of problem] since then."

Even so, he doesn’t agree with using a heavy-handed approach to send a message to Canadians about their civic duty.

"You don't want to use a sledgehammer when a tack hammer or something more precise will do it," said Simmonds, who's been a lawyer for 33 years. "And you certainly don't want to turn people off the justice system. That's not a wise thing either. That brings as much disrespect as other things."

"But I do think we fall short on the educational process on how important jury trials are to the foundation of our system. And they are the foundation of our system."

Jocham agrees. "There’s not enough emphasis on why we should be on jury duty," he said.

And Nova Scotia’s Josh Arnold says Canadians need to understand that there must be a large enough panel of prospective jurors to choose from to ensure a fair trial by a jury of one's peers.

"If there aren't, then there's of course the risk that the jury won't be able to be empanelled in a timely fashion, that more extreme measures will have to be used in order to make sure that there is an appropriate size jury. And there's a risk of delay and then of course the risk of an unfair trial."

What everyone seems to agree on is that the jury duty process needs to improve, but the question remains how.

"If there's something that needs to be done in order to make it more attractive or more reasonable, even, for somebody to sit on a jury, then sure, let's do it," said Arnold. "But that doesn't alleviate an individual's responsibility or their civic duty to attend as it stands now."