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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD August 28, 2002

Our jury system will
continue to survive


Judging from some of the reactions to the recent melt down of the Hells Angels mega trial you would almost think that our jury system suffered a fatal blow. According to some legal pundits, the one and only lesson is that our juries are simply unable to handle long and complicated trials. They are wrong. Our jury system has repeatedly proven its resilience and not only in this province.

The Hells Angel mega aborted trial was an exceptional disaster. Had Justice Boilard not quit smack in the middle of the trial, our attention would still be to riveted to the evidence and not the chaos that immediately followed. For those who still believe that the disparaging remarks by the Canadian Judicial Council did not warrant his sudden withdrawal, the financial waste estimated at $1.5 million remains particularly difficult to swallow.

Jury trials involving multi-accused and as many lawyers, serious charges and complicated evidence, are naturally costly and extremely trying on any jury. Being obliged to absorb mountains of information while listening to longwinded lawyers for months at a time can require Herculean efforts.

Having pleaded hundreds of jury trials as a career prosecutor I naturally sympathize with their litany of complaints. Many of my own jury trials lasted between one and three months and it was obvious that the jurors found them to be long and arduous. Failing a shortsighted policy based on bargain basement plea deals, biker mega trials are not on their way out. Furthermore, ever since Justice Boilard, under the threat of mass desertion by the bikers' attorneys, upped their weekly legal aid fees from the weekly $2500 set by law to $9,000, much of the incentive to settle may have been sapped. Today, such mega trials have to do with organized crime involving biker gangs, tomorrow they may target business tycoons involved in investment or computer fraud.

Although jurors often participate in an unforgettable emotional and intellectual experience, there is often a hefty price to pay. Except for those who are lucky enough to receive their ordinary salaries while on jury duty, there are also many who suffer a financial loss such as employees on commissions and those who own their own businesses. Because jury remuneration is the responsibility of provincial legislatures the per diem fee varies considerably from province to province. In Quebec, jurors are entitled to $90 per day of trial plus an allowance for transportation and meals. In Ontario, jurors receive a daily fee of $40 but only after the 10th day of trial. After 50 days, the amount is increased to $100 per day. In some of the other provinces jurors are paid close to the minimum wage.

Traditionally our jurors have had little choice but to accept the financial and personal sacrifices that go with their important responsibilities. Fortunately, the vast majority has accepted the hardships without as much as a whimper. Perhaps this is because jury duty has always been considered as one of the few fundamental duties demanded of Canadian citizens.

The mere fact that our jury system is capable of handling long and complicated trials shouldn't prevent our lawmakers from trying to reduce the financial hardships many jurors must endure. Ideally, jurors should not have to suffer a loss of earnings just because they have been selected to act as judges of their peers. However, hiking jury fees across the board would not necessarily solve the problem. Since jurors normally represent a cross-section of their community, their respective economic hardship is relative. For some, a sizable increase would amount to a windfall while for those used too much higher earnings, the same increase would have little or no impact. On the other hand, compensating each juror according to his or her loss would not only be very costly it would offend the principle that all jurors must be treated as equals. Forcing employers to continue paying their employee's salary while on jury duty sounds simple and logical. However, in many instances such a sweeping obligation would cause undue hardship, particularly for smaller businesses.

The "hiring" of professional jurors for lengthy trials or worse, jury candidates who happen to be unemployed or on social welfare would clearly violate jury representation. Above and beyond the qualities of impartiality and competence our jury system allows for jury representation. This is to ensure that that every jury panel represents a fair cross section of the judicial district where the crime was committed.

The suggestion that our jury system would be better suited if, instead of one trial with multiple accused the Crown proceeded with separate trials, is ludicrous. For one, it fails to recognize the additional cost factor when the same evidence must be presented in as many trials. As long as their defenses are not incompatible our courts have always recognized the rule that those who are accused of committing the same crime should stand trial together.

The idea of holding separate trials in order to simplify the jury's task is as unrealistic as prohibiting plea-bargaining in order to guarantee a higher quality of justice. In either case no judicial system can afford such a luxury.

Obtaining the necessary material and human resources to fight complex crimes rarely comes without a fight. Insofar as the biker gang investigations and prosecutions are concerned it required years of public pressure on all government levels. Now that the police are finally doing an effective job, it is hardly the time to let up. However, no matter how productive the police may be, the final verdict will always depend on whether our judicial system can provide the accused with a fair trial. Whether by choice or by law, this often means having to find twelve ordinary citizens at random so that they can decide the fate of their fellow human beings.

If we can find ways to lift their morale while they adjudicate criminal cases, then I'm all for it. In the meantime, rest assured, our jury system will continue to survive.