Jordan: It’s a tough job. You don’t know how long it will last when you take it. It comes with the potential for lasting mental harm. You don’t even make minimum wage. But it’s also one of your fundamental rights, and if you don’t do it, our whole system breaks down. Yes, jury trials are expected to resume this month after being on hold since March. The courts were already backlogged and now they’re even further behind. But in order to have jury trials, you need jurors. You need them to come in and be in a courtroom in person. And so that hard job gets even harder in 2020. Will people even reply for jury duty when they’re called this fall? Will they take time off work, if they’re lucky enough to have it, to make their way down to the courthouse, go through COVID-19 protocols just to spend hours in a room close to other people? Would you do it? If trials are necessary, and so our juries, then what’s being done to keep them safe? And what needs to happen to make jury duty even possible for people who are busy trying to keep their jobs and hold their families together during a pandemic? And maybe is this the excuse that we’ve long needed to actually make jury duty work for everyone? I’m Jordan Heath Rawlings. This is The Big Story. Mark Farrant is the CEO of the Canadian Juries Commission. Hi, Mark.
Mark: Hello, Jordan.
Jordan: Why don’t you start by just telling us what’s happened to the court system since the beginning of the pandemic?
Mark: Well, the courts followed much of the public health and safety measures that were issued across the country. So in mid-March the courts began to close. There were some active cases where the jury and the judge and other court actors agreed to continue, but those were very rare. Most of the cases were either paused or stayed until just recently where the courts have begun to reopen and jury summons are slated to be sent out to most of the country. Many people have already received questionnaires to begin the jury empanelment now.
Jordan: When you say courts are opening, what does that look like? Do we know what they look like? You mean like in-person everybody in a court room?
Mark: The conditions are going to be very different this time around than before. So Alberta and Ontario, for example, have discussed moving court cases and jury selection to very large venues like the Metro Toronto Convention Centre, and in Calgary, even the Saddledome and the Stampede Parade grounds, the stampede centre, our venues for jury selection and even the trials themselves. The federal justice minister created an action committee on COVID-19 and court operations throughout the pandemic. That was involved with the chief justice of the Supreme Court of Canada, as well as some other high profile provincial representatives. And they issued a set of recommendations for health and safety provisions to the provinces as part of a reopening procedures. So they’re very rigid, as you can imagine. So physical distancing, safety, hand washing, masks are all mentioned throughout. So physical distancing will be in place. But we honestly, you know, we haven’t been invited into the courts yet, so we really don’t know what they look like and we haven’t walked through the gates to see what’s going on. So, we’re still probably a little ways away from seeing that.
Jordan: Right, cause when we were discussing talking to you for this episode, you know, the first thing that came up is 12 people seated side-by-side is kind of the– indoors, all day, and often sequestered a long time is like the opposite of all the recommendations we’ve been practicing for months.
Mark: That’s it. And that procedure is also unavoidable in terms of administering justice. So the jury have to be seated in the same room and they have to be there to witness the evidence. They have to be there to witness all the proceedings, take notes, and are, you know, jurors are judges of the facts. And so they have to be able to witness and see all the evidence that is presented to them. So it is a very complicated undertaking. This isn’t any small measure. But it’s necessary because people want their courts to reopen, the Canadian public wants to see justice continue. There’s an enormous backlog of cases that have to be addressed.
Jordan: Right. And what about the prospect of just continuing to do it all virtually? I guess for security reasons, that’s probably pretty tough.
Mark: Jury trials just would not be able to be conducted in a virtual setting. Bail hearings have been done virtually and, you know, the initial stages of a trial, pre-jury, have been done remotely. And I think that will likely continue, but a jury trial has to be done physically. It’s just, it would be impossible to ensure quality and integrity and safety and security, as you mention, in a virtual setting.
Jordan: And you reached out to us, and to other media outlets, because you’re worried about what happens when court resumes.
Mark: Well, we’re concerned chiefly that the conditions for jurors have not changed, as a result of the pandemic or even, you know, throughout the course of my work as an advocate and others. Jury duty pay remains shamefully low across the country. It’s well below the $120 per day recommendation from the House of Commons justice committee two years ago. And millions of Canadians are still out of work. They’re experiencing job insecurity, they’re experiencing unemployment, they’re experiencing tenuous work, reduced hours. And jury duty shouldn’t be a financial burden, but it also shouldn’t be a means to dismiss individuals from their right to sit on a jury and their ability to sit on a jury. So we shouldn’t be– while any Canadian can raise his or her hand and say, your Honour, I cannot participate in this because it’s a financial burden to me, that’s your right. And many justices would recognize that. We think that jury duty pay is a catalyst for participation. So if we raised jury duty pay to $120 per day, which is minimum wage, it will be at least a means of support for an individual who is self-employed or experiencing any of those conditions to participate in jury duty. We’re concerned also about the workplace and the lack of support that we’ve seen in the workplace for decades. And it’s time for employers to respect jury duty for what it is, that it’s the last mandatory civic duty in our society, and to support and honour an employee’s jury service and not to denigrate them for accepting or, you know, being selected for that responsibility. So there are still baseline conditions that are poor and inadequate that need to be addressed as part of all of the other measures that we’re putting in place for the courts to resume.
Jordan: I’m going to ask you about the survey you did and some of the results in just a minute, but by my other question is just, you mentioned being able to sort of put your hand up and claim financial hardship, but if I’m summoned to jury duty, can I put my hand up and say, I’m scared of the Coronavirus? I don’t want to do this, I don’t think it’s safe?
Mark: I would imagine that in any circumstance, if a juror has a preexisting medical condition, is immunocompromised, or has fear for their health and safety, certainly you have a right to address that to the court. And like any other circumstance where you raise a concern, and a valid one, the court will address those concerns and will ask the juror to explain their concerns and will respond in kind. So, you know, you are allowed, certainly, to raise any concerns that you have about your ability to sit in court. Childcare, for example, and elder care and family care obligations are going to be enormous. As schools reopen and people are sending their kids back to school. Some individuals and families will be making decisions to homeschool or go to partial virtual learning. So family care and childcare expenses across the country, each province is different, but they’re not reimbursed generally speaking. And again, just like the financial burden, we should be providing remuneration across the board to ensure that a single parent with kids can fulfill their civic duty and have childcare expenses covered. And covered also to match the expense and rate of childcare in the province that you live in. So it can’t just be well, here’s our global reimbursement. It has to be, you know, remuneration for the receipt that is provided by the individual.
Jordan: And you guys tried to gauge public opinion a little bit about jury duty in general. Tell me about that.
Mark: Well, as the courts were beginning to shut down, we looked at, you know, obviously we all experienced this pandemic, and chiefly we were concerned about what would happen when the courts reopened. So we undertook a survey to gauge Canadians’ sentiments around jury duty and juxtapose that against sort of other similar civic responsibilities and civic participation. So we found that Canadians were extremely unwilling to serve on a jury post-COVID-19 public health emergency, and were more willing to donate blood, to go to a centre to donate blood, and we’re more willing to volunteer for a community organization. The only thing that eclipsed jury duty was volunteering at a hospital, for obvious reasons. Canadians expressed concerns for sitting in proximity with others in the same way as riding on public transit and riding in a crowded elevator. So your point earlier about jurors sitting in close proximity together, Canadians expressed a concern around that. And their day-to-day concerns around mental health have increased. And we know that the mental health data coming out of CAMH and other organizations has shown an increase in depression, anxiety, and other ill mental health as a result of the pandemic. And so we know that jury duty can be an extremely stressful experience. For some, it can be a life altering experience. And so Canadians are going to be walking into court with the established ill mental health that they’re feeling as a result of the pandemic, coupled with the burden of participating in a difficult trial. And by burden. I mean, it’s our civic duty to perform jury duty and to sit on jury duty. That’s part of the job. And those circumstances are unavoidable. But we have to ensure that mental health, post-trial mental health is there for jurors across the board and across the country.
Jordan: What happens if, given everything you’ve just outlined to me, regarding childcare regarding finances and people’s understandable fears of the virus, what happens if it becomes really, really difficult to find jurors? What does that do to the system?
Mark: It’s going to put an enormous stress on the system, eventually. The province of Ontario sends out a hundreds of thousands of questionnaires each year, as a result of the impaneling process. I have no doubt that there will be more Canadians expressing very real concerns and very real and valid reasons for wanting to be dismissed from jury duty. And that’s why we have expressed very firmly the recommendation to increase jury pay so that it provides a financial incentive and a cushion for individuals to accept the responsibility. Jury duty pay is not an honorarium anymore. It just can’t be seen that way. It has to be seen as income support. And you know, juries cannot be maintained by large corporations and workplaces that have a practice in place to maintain salaries during a trial, or seniors and retired people who are living off pensions. And by providing that financial cushion, it also serves to improve diversity and representation of a visible minority groups on juries. And also it affects the income profile of jurors as well. And so it’s adding new voices and voices that we know are desperately needed, especially given systemic racism in our justice system and the barriers to individuals sitting on juries across the country. So this improves the likelihood of better representation on juries.
Jordan: That is a really good point. I’d never thought about the income inequality impacting diversity in terms of just who can afford to do it.
Mark: Precisely, because, you know, if you’re working a minimum wage job and you’re working tenuous hours and that is your family’s sole means of income, you can not afford to sit on a jury. And in some cases, you know, sadly, those employers are not reimbursing and not maintaining hourly wages for gig workers or those that are working part time in the service sector. And so that will improve, absolutely improve the diversity and ethnicity and income spectrums of particular panels. And that’s across the country, and it’s so necessary. You know, daily parking expenses, I know it sounds mundane, but imagine, you know, downtown Toronto daily parking is $25 to $30 a day. And so in Ontario, for example, you’re not even paid for the first 10 days of jury duty. It’s $40 a day. Beyond that there’s your parking expenses, gone, and the cost of a meal, that’s your jury duty pay. And so if you are, you know, on a fixed income as a senior, or in a lower income strata, that’s an enormous burden. And you know, $40 a day multiplied over a four month trial is upwards of $1,800 out of your pocket. And so, you know, again, jury duty should not be a burden. It should not be a financial burden to individuals, nor should it be maintained only by those who can afford to do it.
Jordan: So you mentioned at the beginning of our conversation, you know, some of the steps that have been taken by federal and provincial governments to reopen the courts and make things safer, hopefully. Are you getting any pickup on the financial aspect and the childcare aspect of it? Is there anybody working on this provincially or federally?
Mark: Certainly federally. We have presented this argument at the standing committee of finance and we presented it at the emergency standing committee of finance throughout the COVID-19 emergency. At the height of the pandemic I appeared before the finance committee and I urged the federal government, the justice minister, and members of the committee to make jury duty part of the list of essential services to combat COVID-19. Because we’re not out of the pandemic, we’re anticipating a second wave, the courts might close in a second way, but they might not. So, if we were to make jury duty an essential service, it’s already a mandatory civic duty, you’re illegally bound and required to respond to your summons. Ergo of its a legal requirement, certainly it must be a mandatory requirement. And by that, if there are provinces that have said, we do not have the financial means to increase jury duty, for example, or provide childcare expenses and the like, it’s the onus then for the federal government to pass through emergency dollars to the provinces to facilitate those mechanisms. We’ve had very good support from across the parties for that call to action. We presented that argument at the Senate and we’ve had broad support from senators who agree that all of the provisions for jury duty that we’ve identified should be put into place, and that jury duty should be made in essential service. Unfortunately, we’ve had no response from the federal government to that decision. The provinces unfortunately have said that it’s not within their financial means to increase jury duty pay and it’s not on the radar. And we’ve unfortunately heard that from Ontario, BC, and Alberta. Frankly, it’s absurd that they’re taking that position because we’re not talking about a massive financial burden to the government or to the taxpayer. And as members of the jury are taxpayers, I think they would appreciate, you know, tax dollars being spent in that fashion. It’s just time to do it. Again, it’s not 1950, jury duty has not kept pace with the modern world and the cost of living in Canada.
Jordan: Given that you kind of touched on what happens in the fall is courts reopen and a possible second wave, is this decision that’s in front of the federal government now, is this just a case of whether or not they can be proactive or they’ll have to be reactive as it gets worse in the fall?
Mark: I hope the provinces and I hope, you know, it’s not a wait and see type of scenario. I know that they’re thinking deeply about this issue. And I’m sure that we will see that jury roles are slightly more difficult to fill. I know Canadians are concerned about jury duty and are concerned about it, again, for very real reasons. Jury duty is an enormously rewarding experience as well. And certainly it’s an opportunity for you to participate directly in the justice system and directly in, you know, a measure of support for the community and our legal framework. And it is a rewarding experience. For some, it is a difficult experience as well. And you do participate and see things that you would never normally see in your life, and it’s very different sitting as a juror versus reading about these things in the paper or in true crime avenues.
Jordan: Of course.
Mark: Responding to your summons as well, you know, we mentioned about diversity and inclusion being increased as a result of increased jury pay, the best means to participate in the justice system for all is to respond to your summons. I’ve had great conversations with Indigenous leaders and I’ve had great conversations within the Black community and within diversity community organizations, that systemic racism exists. We know it does. We know there are barriers to justice within those communities. But it’s also vitally important that you respond to your summons to participate actively in the justice system. So by not responding to your summons and negating it, that is a potential voice and a potential presence that is not there in court. So that’s another important thing to consider. And we want people to go into court willingly, without fear, and without thinking that it’s going to affect their job or their livelihood or their mental health.
Jordan: Mark, thank you so much for all the work you do on this issue. And thanks for telling us about this today.
Mark: Oh, it was great. Thank you for the opportunity to speak with you once again. It’s my pleasure.
Jordan: Mark Farrant, CEO of the Canadian Juries Commission. That was The Big Story, for more, including the very first episode that we did with Mark, way, way back in our first week of recording, you can head to thebigstorypodcast.ca. You can also find us on Twitter at @thebigstoryFPN. Of course, you can email us firstname.lastname@example.org and find us in your favourite podcast player, whichever one you choose. Subscribe for free, leave us a rating, leave us a review. Thanks for listening. I’m Jordan Heath Rawlings. We’ll talk tomorrow.
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