Imagine being ordered by the government to leave your job or family each day and go to work for little or nothing. Does that sound like a work camp in a dictatorship? It happens across Canada every week. It is called jury duty.
Recent media stories have told of judges in Ontario making special orders to pay jurors from their first day of attendance - as is done in British Columbia and Nova Scotia, for instance. One such incident was the result of dire unemployment in Windsor.
In fact, some judges make such orders periodically across Ontario when they simply find the government's policy on pay to be unconscionable.
It is doubtful that judges in the province have the authority to make these orders, but the government complies, I suspect because they want to duck the issue. A judge sitting on a jury case will routinely receive dozens of requests from people summoned for jury duty asking to be excused. The most common reason is that they simply cannot afford to lose their pay at work.
What do jurors get paid?
It varies from province to province.
In British Columbia, they receive $50 a day and the cost of meals. In Nova Scotia, they get $40 a day.
In Ontario, they receive: zero for the first 10 days; $40 a day for the next 39 days; $100 a day after that.
Just think about that. Imagine losing your employment income for two weeks. That would be a hardship for anyone. If politicians were told that they would randomly lose their pay for two weeks, you can bet that a special session of the legislature would be called to change the law. Unfortunately, we will never see this reaction because MPPs are not eligible for jury duty. Neither are lawyers, doctors (but nurses are), police and a few other occupations.
Every week across the country, thousands of citizens receive a summons to attend court to perform jury duty. Every week, judges give fervent speeches to the assembled disgruntled panel of prospective jurors to convince them that serving on a jury is their civic duty, that they should be willing to give up their income, or most of it, to be part of the justice system.
This scenario has been in place for decades - and it is time to end it. It is unfair. Yes, trial by jury is a fundamental part of our justice system. But it should not be operated in a way that punishes the jurors.
A juror is chosen randomly by a computer using voter-registration data. But jury duty is not shared by all. Many are excused by sympathetic judges for reasons that include: illness, child-care or elder-care responsibilities, disability and economic hardship. Trials used to last a few days to a month. Now, it is commonplace to last two weeks to a year. Imagine getting paid only juror fees if you were on a jury.
For example, in an two-week trial, a juror whose annual income is $30,000 would lose $1,154; one making $100,000 would lose $3,846. In a 12-week trial, the losses for the same people, taking into account the juror fees they would receive, would be $4,263 and $20,417.
Can this be called fair? It would put most people in serious financial trouble. In some cases, the personal loss to jurors exceeds the amount awarded to the successful party in a civil case, or even the penalty to the person convicted.
This system also has a number of other negative consequences.
First, we don't end up with a jury "of our peers" - a group representing a cross-section of society. We usually get a jury of those who can afford to do it. For long trials, a judge will probably excuse most everyone except those who are unemployed, retired or lucky enough to work for a large company or government that has a benefit plan that pays their salary while on jury duty.
Second, we are unfairly placing the burden of jury duty on a few. Everyone pays taxes to pay for policing, running the courts, paying judges and operating jails. Why should only a few (the jurors) have to bear most of the cost of juries?
We pay millions a year for legal-aid lawyers to defend accused people. But we pay a pittance to tax-paying citizens who sit on juries.
This is not a political issue - all parties in all governments have ignored this unfairness for years. And no, it is not the most pressing economic issue of the day. But hard times make the issue even more obvious.
It is past time governments across the land fixed this. Governments have new-found money from confiscating property related to crime. Why not use it to pay jurors decent compensation?
Dan Ferguson is editor of Ontario Courtroom Procedure.