The integrity of the jury system has become a pressing topic for our courts of late, with articles about jury duty frequently appearing front and centre in the press.

The recent message from the Nova Scotia Supreme Court has been clear. It is time for a second look at our attitudes about jury service and for a bit of a call to arms, reminding us that a jury summons is more than an untimely hassle. Jury duty is an invitation to participate in an ancient institution fundamental to a free and democratic society, and – please note – regrets are no longer being accepted without question.

THE MESSAGE FROM THE BENCH

This year, some of the province’s friendliest Judges have gotten downright angry about citizens’ apathy and unwillingness to participate when summoned for jury selection.

In February, on Valentine’s Day, Justice Glen McDougall, who had ordered the sheriff to round up those who had ignored jury summonses prior to a high profile murder trial and bring them before the court to explain themselves, sent a message from the Supreme Court to Nova Scotians.

With the absentees assembled before the court, Justice MacDougall heard excuses, some marginally acceptable and others quite flimsy, issued some small fines, and let the delinquents know, in no uncertain terms, that jury summonses are not to be ignored.

His Lordship emphasized that failure to appear jeopardizes the accused’s right to a fair trial, and he also made clear that jury duty, rightly viewed, is a privilege and an opportunity, allowing the average citizen to participate in the justice system in a concrete and meaningful way.

Apparently, Justice McDougall’s valentine missive did not reach as far as hoped.

In early May, Justice Peter Rosinski followed suit and ordered jury no-shows back before the court, upping the $50 fines from February to $200.

Later in May, Chief Justice Joseph Kennedy was dignified but clearly outraged and sent yet a stronger message as he worked through the jury selection process for a criminal trial on charges of aggravated assault. Ninety-five people, 40 per cent of those summoned as prospective jurors for this trial, had simply not shown up.

Upon entering the courtroom filled with potential jurors, the Chief Justice stated in his inimitable style:

           My name’s Kennedy. I’m a judge of the Supreme Court. We’ve
got a jury trial starting today. We need a jury. I know that all of
you are inconvenienced. I recognize that, and I want to
particularly express my understanding and my thanks to
you for participating. It is a duty to participate, but not
everybody apparently understands that, so I’m going to say
some things about that before we get going today.

Getting straight to the point, Chief Justice Kennedy went on to talk about the 19–year–olds, who were “scared to death” when the front of their landing crafts dropped at Normandy, and the generation of Canadians who climbed out of the trenches at Vimy Ridge to face machine guns. Previous generations offered up their lives because they believed it to be their duty to defend the principles that underlie a free society, including the right to be tried by a jury of one’s peers.

Justice Kennedy urged us all, here and now, to remember:

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. So I’m going to get these people off of
Facebook and into this courtroom. They’re going to go pull
themselves away from Judge Judy’s courtroom and come into
my courtroom, and, when they do, Sheriff, when you contact
them, ask them to bring their toothbrushes with them. Because
they’re going to spend a day learning what it is to be Canadian.

Although the Chief Justice took the jury selection in May as an opportunity to let the public know that the court would send the sheriff’s deputies to “drag them out of Tim Hortons”, just a few days later, Justice McDougall had to take further action, once again ordering the sheriff to round up a group of people who did not appear in response to being summoned for jury duty.

This time, Justice McDougall was not offering up valentines. His Lordship told the sheriff’s deputies that he wanted “every effort possible expended, and nothing short of a grave marker” would satisfy the court this time as an excuse for failure to appear.

How far this judicial effort to safeguard the jury process will go is, as yet, uncertain. The maximum fine for skipping jury selection is a $1,000, with the additional possibility of a finding of contempt of court and a jail sentence. While such penalties have not been imposed in Nova Scotia in recent memory, as recently as 2007, Newfoundland Supreme Court Justice James Adams put six people in a lockup for more than five hours for ignoring their civic responsibility when called for jury duty, and the current situation is clearly escalating.

THE ROLE OF THE JURY

It is time to get back in touch with the reasons why jury duty is not to be avoided except in bona fide cases of hardship, illness, or serious inconvenience. With all due respect to Robert Frost, a jury is more than twelve persons chosen to decide who has the better lawyer.

The right to a trial by a jury of one’s peers can be traced back to the 13th century when, under Henry II, jurors in the form of witnesses were summoned to take oath in favour of one or the other of the litigants. The first litigant to have twelve swear in his favour was the successful party.

Often lauded, sometimes vilified, trial by jury has withstood the test of time and has acquired such importance that it has been entrenched in the Canadian Constitution through s.11(f) of the Charter of Rights and Freedoms. Every person who may be liable to five years imprisonment or to a more severe punishment is entitled to the benefit of a trial by jury.

Jury duty is an opportunity to be directly involved in the administration of justice. The right to sit on a jury and to serve as a juror is a key incident of Canadian citizenship. However, in certain situations, this right may be perceived more as a burden than a benefit. Many prospective jurors see serving on a jury less as a cornerstone of a free and democratic society and more as a minor (or even a major) imposition. As our bench is now reminding us, we need to get back to the understanding that, for both the juror and the accused, participation in a jury trial is a fundamental priviliege and right.

EXEMPTIONS FROM JURY DUTY

In Nova Scotia, a juror need only be a Canadian citizen who is 18 years of age or older, unless a member of a group of persons automatically exempted from duty under the Juries Act and Juries Regulations.

The following people are automatically exempt from serving on a jury:

• anyone who has been convicted of a crime and sentenced to two or more years in prison;
• anyone who has attended or is attending a law school;
• anyone who works in the administration of justice (for example, a police officer or an employee of the provincial or federal departments of Justice);
• a Member of the House of Commons, the Senate, the House of Assembly or the Lieutenant Governor; and
• an officer or non-commissioned member of the reserve Armed Forces on active service or an officer and non-commissioned member of the regular Armed Forces and special Armed Forces.

Jurors will not be automatically excused because of race, religion, political beliefs, or occupation (other than those occupations listed above). Doctors, dentists, and clergy are no longer automatically exempt.

ASKING TO BE EXCUSED

If you receive a jury summons, your name was selected at random from names taken from the provincial Department of Health’s health registration list. Every year in Nova Scotia, approximately 25,000 names are selected. Being selected means that you must return the enclosed juror information form and report for jury duty, unless you have been excused by the jury coordinator, but it does not mean that you will necessarily sit on a jury.

Jury summons packages from the court enclose an application to be excused from jury duty. The jury coordinator or a judge may excuse you from jury duty if serving will cause you hardship or if you are ill. If you are asking to be excused because you are ill, you must have a medical certificate form filled out by your physician (unless you are aged seventy (70) or older). If serving on a jury is inconvenient now, but you could serve in the near future, the jury coordinator may defer your service to the next session.

If the jury coordinator does not excuse you or defer your service to a later date as you request, the jury coordinator will automatically forward your application to be excused and, where applicable, your medical certificate form, to a judge for review. If your grounds for excuse are genuine and sufficient, the judge may decide to either excuse you or defer your service on the basis of illness, hardship, or inconvenience.

DISQUALIFICATION

Once you attend court, you may be disqualified and excused from jury service before the trial starts if one of the following apply:

• you have a personal interest in or special exposure to the matter being tried and are unable to be unbiased.
• you personally know or are related to someone involved in the case, including the judge and lawyers.
• you persuade the judge to excuse you for a good reason. For example, a juror will be excused where the trial is in French and the juror only understands English.

A juror may also be excused if he or she is deemed not competent or capable of meaningful participation in deliberations. In a noteworthy Ontario case from 1952, R. v. Rodgers, a juror was disqualified due to his intoxication at the trial. At the opening of the second day of the criminal trial, counsel informed the presiding judge that one member of the jury was noticeably intoxicated. The judge discharged the juror and addressed the remainder of the jury as follows:

  I have satisfied myself that this juror was not competent
to adjudicate on a criminal case, and we have had to dispense
with his services. … Every day in this country men are summoned
to court and made to appear, and it is costing them a very
considerable amount in personal convenience and in money
they would normally earn to carry out their duty to the country.
There was a very considerable sacrifice in the case of one
juryman in the last panel that came to my attention. He suffered
a very severe financial loss, yet he carried out his duties here
without any complaint whatever.

Turning to the case of the particular juror in question, the trial judge had this to say:

As to his excuse for taking this liquor, there is absolutely no
excuse for a man taking two quarts of beer in the morning before
reporting for jury duty.

The intoxicated juror avoided jury duty, but, as a penalty, he spent thirty days in the common jail on a charge of contempt of court.

THE BOTTOM LINE

Unfortunately, while rarely resorting to public intoxication to do so, members of the professional classes in Canadian society often use the available excuse mechanisms to avoid jury duty. While this is understandable given the inconveniences associated with service, the higher resort to the excuse mechanism by particular segments of society creates some question as to whether juries are truly as representative of Canadian society as they are meant to be.

The bottom line is that, when called, everyone who is eligible needs to show up and bring the best they have to offer.

As Sir William Blackstone reminded the readers of Commentaries on the Law of England, “Let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters.”

More recently, the American novelist Harper Lee, author of To Kill a Mockingbird, which, for many of us was the first introduction to what it could mean to be a part of the administration of justice, said, “I’m no idealist to believe firmly in the integrity of our courts and in our jury system – that is no ideal to me, it is a living, working reality.”

And, as the Chief Justice put it to us last month, “as bad as it is, it’s as good as it gets.”

The foregoing is intended for general information only. For more on our firm, refer to www.stewartmckelvey.com.