Steering Committee on Justice Efficiencies and Access to the Justice System

3.2 The conditions in which jurors perform their duties

Specific focus was placed on two areas of concern relating to jury duty: the safety of jurors and jury compensation.

3.2.1 The safety of jurors: anonymity

The proposals on the safety of jurors made during the consultation relate mainly to the protection of their anonymity.

In the current procedure, the cards used to form a panel bear the name, panel number and address of the prospective jurors (s. 631(1) Cr.C.). The cards are then drawn in open court and the rule requires the clerk to call out the name and number of each juror (s. 631(3) Cr.C.). Sections 631(3.1) and 631(6) of the Criminal Code set out exceptions for the purpose of preserving the anonymity of jurors:

" (3.1) On application by the prosecutor or on its own motion, the court, or a judge of the court, before which the jury trial is to be held, if it is satisfied that it is in the best interest of the administration of justice to do so, including in order to protect the privacy or safety of the members of the jury and alternate jurors, may order that, for the purposes of subsection (3), the clerk of the court shall only call out the number on each card.

[...]

(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if an order under subsection (3.1) has been made, make an order directing that the identity of a juror or any information that could disclose their identity shall not be published in any document or broadcast or transmitted in any way if the court or judge is satisfied that such an order is necessary for the proper administration of justice.

[Emphasis added] "

Some consultation respondents pointed out the inadequacy of those measures in that:

  • the measures should be automatic, not exceptional: the case law, although scant, has admittedly at times given strict construction to the scope of the provision and the onus imposed. [26] Although safety and privacy are two separate grounds, they are considered by some to be cumulative. Jurors, however, may very well wish to have their privacy, in particular their address, protected from the public without there necessarily being grounds for fearing for their safety. Nevertheless, the state of the law on the application of s. 631(3.1) has not yet sufficiently developed to make necessary any legislative intervention regarding the burden of proof for obtaining the order;

  • the name, address and occupation of jurors should not be accessible to the parties; since the cards are drawn in court they are part of the court file and nothing prevents the accused or accused's counsel from accessing the information in the court file or in the list that is given to the parties: access to the cards was commonly available prior to the passage of s. 631(3.1). [27] In the spirit of the objective of s. 631(3.1), the trial judge would appear to have the inherent power to restrict an accused's access to that information, whether it appears on the cards or the list.[28] Under the common law, a judge could also order that the cards and list be sealed once the jury has been selected. Failure to comply with such an order could be punished as provided in s. 127 Cr.C. (disobeying a court order);

  • the s. 631(6) non-publication order is linked to the order under s. 631(3.1) although it may have a different objective: some jurors may not mind if their identity is disclosed to justice system participants or the limited public attending the hearing but they may not want their face broadcast on the evening news with all the resultant inconveniences, such as having to answer the questions of curious bystanders. The inherent powers of the trial judge could be relied on to deal with situations that are not expressly covered by s. 631(6);

  • current measures do not expressly provide for the possibility of ordering that the jury be screened off from the public: although the power is recognized in the common law, [29] some believe it would be prudent to provide for it expressly because of its exceptional character; the use of the measure could also be circumscribed by criteria for its application;

  • jurors should only be referred to by their number throughout the trial, whether or not an order is made under s. 631(3.1).

Measures implemented to protect the privacy of jurors, although praiseworthy, must not interfere with the empanelling of an impartial jury. An accused who does not recognize the face of a prospective juror might remember having had dealings with that person upon seeing or hearing the prospective juror's name. Or a member of the public attending the selection process might be aware of a ground for a challenge (such as a relationship with the accused or Crown counsel) unknown to the parties. Defence counsel respondents to the consultation also argued that the security measures requirements must be assessed on a case-by-case basis and care must be taken not to prejudice the accused in the eyes of the jury and impair the presumption of innocence. The measures must attempt to strike a delicate balance between the interests of the jurors, the integrity of the justice system and the accused's right to a fair trial.

The Steering Committee considered whether the development of legislative amendments, substantive rules of court or best practices aimed at improving jury anonymity could benefit from an examination of special orders made by judges who in the exercise of their discretionary power had carefully weighed all the interests involved. An order made by the Honourable Justice Ferguson, which appears to provide maximum anonymity to the jury without compromising the empanelling of an impartial jury, is worth citing here for the purposes of our discussion:

  1. The panel lists for the three groups of persons summoned to come for jury selection in this case or for any further persons summoned shall not be disclosed to anyone without my order.
  2. The panel lists showing juror numbers, names, addresses and occupations shall be provided to each of the six counsel in this case if all six counsel give the court an undertaking that, unless the court orders otherwise:

    1. they will not disclose to their client or any other person whatsoever the names or addresses or any identifying information about any person on the panel lists except the person's juror number and occupation; and
    2. they will not make copies of the panel lists.
  3. The court staff will prepare the jury cards stating the juror's number, name, address and occupation. These will be accessible to no one but the Registrar and the trial judge.

  4. On the day each panel or group arrives, defence counsel may before court convenes show their clients the list for that panel or group and discuss the contents but shall not permit their clients to make any notes about the contents. This is the only exception to the undertaking in para. 2.

  5. Crown counsel may on the day each panel or group arrives show the content to the two instructing police officers, [...] and discuss the content but shall not permit those officers to make any notes about the contents. This is the only exception to the undertaking in para. 2.

  6. After the opportunities mentioned in paras. 3 and 4, counsel may not show or discuss the content of the lists with their respective clients except for the juror number and occupation. They may only disclose the juror number and occupation to their respective clients during jury selection.

  7. During jury selection, the Registrar will read out only the juror number and occupation (s. 631(3.1)).

  8. When a person's card is chosen from the box, that person will be asked to come to the front of the courtroom. The Registrar will show that person the juror card and ask the person, “Is the information on this card about you and is it correct?”. If the juror answers in the negative then the juror will be asked to write the correct information on the card.

  9. Except as permitted in paras. 3 and 4, no one shall mention the name or residence of any person on the panel lists or any person chosen as a juror and all references to those persons shall be by juror number.

  10. At the conclusion of the jury selection, the panel lists will be collected from counsel and shredded. The Registrar and judge's lists and all juror cards will be sealed in an envelope and placed in the court file which shall not be opened without a judge's order.

  11. No information or image that could disclose the identity of the members of the jury shall be published in any document or broadcast in any way.

  12. When jurors are called in for the challenge procedure, the Registrar shall ask the person: “Do you or any member of your family know either of the accused, Mr. Jacobson or Mr. Hall or any member of their families?” “Have you ever seen Mr. Jacobson or Mr. Hall anywhere outside the courtroom?” If they answer either question in the affirmative the judge shall make an enquiry. [30] [Emphasis added]

Discussion

In view of the above, four options were examined by the Steering Committee. Since they elicited no opposition, the Steering Committee decided that they be the subject of recommendations.

3.2.1.1 Examine various orders made by judges under their inherent powers to complete the measures provided for in ss. 631(3.1) and 631(6) C.Cr., identify best practices and use them as a basis to make legislative amendments, to make rules of court or to develop model orders

For the sake of uniformity, these objectives would be best addressed by legislative amendment. It would not be desirable for the anonymity of jurors in one province to be better protected than that of jurors in other provinces.

Of interest for comparative purposes are New Zealand's recent amendments to its Juries Act, whose effects are substantially similar to those sought by paragraphs 2, 4, 6 and 10 of the order cited above:

  • 14A Restrictions on use of jury panel

    • (1) The purpose of this section is to help to prevent names or other information disclosed in a copy of the panel from being used to facilitate actions (for example, actions prejudicing a juror's safety or security) to interfere with the performance of a juror's duties.

    • (2) A barrister or solicitor to whom a copy of the panel is made available under section 14(1) because the barrister or solicitor is acting for a party to criminal proceedings, and any person acting on behalf of that barrister or solicitor,—

      • (a) may show the copy (the document) to a defendant in proceedings that are due to be heard during the week for which the jurors on the panel are summoned to attend for jury service; but
      • (b) must not leave the document in the defendant's possession; and
      • (c) must not leave the document in the possession of any witness for either party; and
      • (d) must not leave the document in the possession of any victim (within the meaning of section 4 of the Victims' Rights Act 2002); and
      • (e) must take all reasonable steps to ensure that the defendant, any witness, or any victim, as the case requires, does not copy the document. [...]
    • (4) Every person who, in connection with proceedings that are due to be heard during the week for which the jurors on the panel are summoned to attend for jury service, receives, or makes a copy or copies of, a copy of the panel must return the copy or copies to the Registrar or a member of the Court registry staff as soon as practicable after the case is opened or the accused is given in charge. [31]

Rules of court could be adopted to take into account regional characteristics or the trial judge could make an order to respond to particular concerns relating to a matter of which the judge is seized. Nevertheless, it seems advisable that standards be established in the Criminal Code. In addition, current provisions may be interpreted as limiting the power to make certain specific orders (for example, restricting access to cards drawn in court).

3.2.1.2 Assess the advisability of systematically restricting access to information about jurors in all trials by following best practices, which could necessitate new amendments to section 631

It would be advisable to research into the origin of the parties' access to the personal information of jurors during jury selection and at the same time examine the currency of its justification in view of the reliability of existing administrative checks (electronic voters' lists, data banks, means of disclosing information about individuals, etc.). Why does calling prospective jurors only by their number remain an exceptional measure? Are there reasons for believing that a jury constituted in that manner would be less reliable than one constituted with the usual procedure of calling out the names? Concerns that a prospective juror may have ties to one of the parties, not live in the judicial district of the offence, be biased because of his or her profession or occupation or not be the person whose name appears on the panel could surely be addressed by asking general questions rather than by requiring the disclosure of specific information to the parties (name, address, occupation, etc.).

3.2.1.3 Dissociate the publication ban under s. 631(6) from the order under s. 636(3.1) Cr.C.

Section 486.5(2) allows the judge to make a non-publication order regarding information that could identify jurors in circumstances that are not covered by s. 631(6). The provision however applies only to cases involving criminal organization offences (ss. 467.11, 467.12 and 467.13) or the offence of intimidation of a justice system participant (s. 423.1 C.Cr.). The power to make such orders should be extended. It could be argued that just as the interests of justice require protecting a victim's anonymity to encourage the reporting of certain offences, so do they require restricting freedom of the press to limit the inconveniences of sitting as a juror to encourage public participation in the jury system.

3.2.1.4 Assess the necessity and/or advisability of providing for other more exceptional measures that could be ordered by judges to protect jury anonymity, such as the use of a screen

Judges have already made innovations in this regard in the exercise of their inherent powers to ensure the peace of mind of jurors: layout of the courtroom to screen the jurors from public view; prohibiting visible tattoos, restricting traffic in the courtroom while jurors are present, prohibiting access by individuals whose presence may disturb the equanimity of participants, which include jurors, etc. It is important, however, that such measures not prejudice the accused in the eyes of the jury. The measures must be balanced against the right of the accused to a fair trial and must at times be the subject of a special instruction to limit their effect on the jury's perception of the accused.

Recommendations

  • 4. Amend s. 631 Cr.C. to provide for the systematic calling of prospective jurors by their number only and to control access by the parties to their personal information. In so doing, consider the orders that have been made to that effect under a judge's inherent powers, keeping in mind the original reasons for calling out the names of prospective jurors and allowing access by the parties to that information.

  • 5. Facilitate the obtaining of orders banning publication and broadcast of information that could serve to identify a juror by an amendment to the Criminal Code.

  • 6. Examine the advisability of codifying the judge's power to order other more exceptional measures to protect the anonymity and safety of jurors, while preserving the accused's right to a fair trial.

3.2.2 Jury compensation and accommodations

There appears to be a consensus among all respondents to the consultation that the compensation paid to jurors is insufficient. Although the meagre compensation paid to jurors has historically contributed to the value of their commitment and of the jury system, it clashes with the realities of modern society. There are also wide variations among the provinces:

  • in the amount of compensation paid to jurors and the payment scheme. In addition to the marked differences among the provinces, the rational basis for some payment schemes is difficult to understand: when it is known at the outset that the trial will last for weeks, why pay rate X for the first 10 days of jury sittings and higher rate Y (even up to double) for the following days? The contribution made by jurors during the first 10 days is not of any lesser value than that during subsequent days;

  • in the payment of meal and travel expenses. In certain jurisdictions, payment of meal and travel expenses is similar to the rate paid to public service employees;

  • in the payment of expenses for supervision or care of dependents. The expenses that may be incurred by the juror for such supervision or care, that would not have been incurred were it not for the trial, are likely to outweigh the compensation, even result in a financial deficit;

  • in the payment of compensation for the jury's non-sitting days because of issues that must be argued in the absence of the jury to allow the parties to prepare or because of the absence of a player. A non-unionized employee replaced by the employer for the duration of the trial will often not be able to work on the jury's non-sitting days and thus not receive any pay or compensation for those days, even though, technically, the jurors can be considered to be available to the court during proceedings in the absence of the jury. A juror's economic security should not be dependent on the uncertainties of a long trial; [32] where there is a greater likelihood of suspension of hearings in the presence of the jury (in particular for disposition of issues in the absence of the jury);

  • in the allowance for psychological care. Only one province appears to provide the allowance, on court order. Jurors may indeed be confronted with disturbing details (accounts of violence against vulnerable individuals, autopsy photographs, medical report findings, etc.) that can distress them long after the trial is over. Defence counsel respondents to the consultation nevertheless expressed concerns regarding such a measure;

  • in the treatment of prospective jurors who travel for the selection process but who are not selected. Contrary to the case law on compensation for jurors, no power to order compensation for prospective jurors appears to have been conferred on the judge at the selection process. [33] There is consequently a legislative gap where compensation is not provided for by law.

Some members of the Steering Committee also pointed out the needs observed regarding the improvement of infrastructures and accommodations at the jurors' disposal (deliberation rooms, resting rooms, etc.), and the variations between regions.

Discussion

Although jury duty remains above all a civic duty that should not be motivated by economic gain, the realities of modern society must also be considered.

The issue of jury compensation is of particular concern to the Steering Committee. It affects efficiency since inadequate compensation can lead to applications for exemption, which lengthen the selection process, or applications for discharge during the trial. It also directly impacts the principle of jury representativeness. In fact, a number of observers, [34] in addition to respondents to the consultation, have noted that the situation contributes to excluding certain categories of individuals (the self-employed, single parents, non-unionized workers, etc.) to the advantage of others (the retired, unionized workers, childless persons, etc.).

Compensation also gave rise to judicial confrontations between judges who are inclined to grant “more” and attorneys general who defend the right to grant “less”. The negative impact of such confrontations on citizens who one day could be called upon to serve on a jury should not be ignored. Insufficient infrastructures and accommodations at the jurors' disposal will not only cause undue stress but may also turn into a bitter experience for the jurors who may dissuade their fellow citizens from performing their civic duty.

Juror compensation is an issue that comes predominantly under provincial and territorial jurisdiction. Nevertheless, in view of its possible impact on representativeness or on the complexity of empanelling a jury, it is also an issue of national interest that could in the long term contribute to questioning the institution. The Steering Committee considers that its composition makes it an ideal forum for general recommendations in the form of guidelines which could be used by the different jurisdictions, taking into account their particular economic and social factors (cost of living, number of jury trials, average length of trials, etc.).

It is important that the information given to jurors on their role and duty sufficiently inform them about all compensations to which they are entitled and explain to them how and to whom they should send requests.

More specifically with respect to psychological care for jurors, it should be noted that a jury debriefing program was established in Manitoba:

" The jury debriefing commenced a few days after the trial ended behind the closed doors of a hotel room. The debriefing team, which consisted of a social worker and his female administrative assistant (it was felt that the debriefing team should be made up of individuals from both sexes) then met for four hours with all 12 jurors and the sheriff/jury monitor. The sheriff/jury monitor was not debriefed but he attended the session to show support and encouragement to the jurors. The various aspects of the debriefing consisted of introductions, an explanation of the purpose of the debriefing session, a cautionary note pertaining to non-disclosure of jury discussions, and information about post-trial trauma, signs and symptoms, and mental health resources for jurors. After this information was exchanged, the jurors were asked about their overall experience, the emotions that they were feeling right now, if they were stressed and, if so, how they were coping and what, if anything, they needed. An evaluation of the session was completed by the jurors immediately following the session and they were contacted three months later and asked specific questions on how they were managing. All of the jurors expressed that they felt that the debriefing session had a beneficial effect. Moreover, on the follow-up session involving 10 of the 12 jurors, none of the 10 jurors expressed experiencing any post-traumatic stress resulting from their role as jury members.

All sheriffs/jury monitors in the province will take mandatory one-day workshops on recognizing stress symptoms in jurors.

[…]

Ultimately however it is judges who must authorize the debriefing to commence. Manitoba's Justice Minister, Gord Mackintosh, has stated that the jury debriefing program will probably focus on murder trials at first but that it may possibly grow to include other types of cases." [35]

Very few studies have been conducted in Canada on the phenomenon of post-traumatic stress experienced by jurors. [36] Some studies have been conducted in the United States on the phenomenon, but the methodology of the American studies is often criticized. The characteristics of the American system of jury trials limit extrapolation of the results of those studies to Canada (the greater intrusiveness of the selection procedure into the private lives of jurors, the prevalence of jury sequestration, the possibility of the death penalty after a verdict of guilt, etc.).[37]

In any event,“jury debriefing”and “post-trial counselling” are still in their infancy and there appears to be much debate about the advantages and disadvantages of the different approaches (debriefing involving only the judge, the judge assisted by experts, experts only, attendance or non-attendance of the sheriff, as a group or each juror individually, etc.). There appear to be very few studies on the results of such initiatives. [38] The Steering Committee considers that it would be premature to submit recommendations regarding psychological care for jurors. Provincial and territorial jurisdictions and representatives of the judiciary should observe the evolution and note the results of the Manitoba experience.

Recommendations

  • 7. In their compensation scheme for jurors and in the conditions under which they must fulfil their functions, provincial and territorial jurisdictions should consider:
    1. expenses for supervision or care of dependents that a juror would not otherwise incur;
    2. in the case of long trials, the jury's non-sitting days, at least for jurors who are not paid for those days under a collective agreement and cannot go into work on those days, either because of the structure of the juror's employer or the human investment required for the trial;
    3. the importance of the quality of infrastructures and accommodations at their disposal (deliberation rooms, resting rooms, etc.);
    4. the possibility of compensating prospective jurors who are not selected;
    5. rates paid to public service employees for payment of meal and travel expenses.
  • 8. Provincial and territorial jurisdictions should consult the judiciary when establishing juror fees and expenses.
  • 9. Jurors should be sufficiently informed about all compensation to which they are entitled and how to submit requests.

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