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Jury duty should be essential service during COVID-19, advocate says

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Speaking to reporters outside Rideau Cottage in Ottawa on Wednesday, Canadian Prime Minister Justin Trudeau said that as provinces and territories being to reopen their economy, certain government programs introduced to help mitigate the economic impact of COVID-19 would need "phasing out."

The federal government should declare jury duty an essential service during the novel coronavirus pandemic and fast-track the support jurors will need once courts reopen, a former juror and mental health rights advocate says.

“Jury duty is essential to our justice system and one of the cornerstones of our democracy,” said Mark Farrant, founder of the Canadian Juries Commission, a non-profit group that seeks to improve Canada’s jury system.

“It needs to be declared an essential service in this pandemic and post-pandemic.”

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Jury duty, along with nearly all court proceedings across Canada, has been suspended during the COVID-19 pandemic, including jury selection, which typically sees several hundred people gather in the same location to decide if they’ll be among the jurors.

Farrant served as a juror in the 2014 murder trial of Farshad Badakhshan, a Toronto man who was convicted of second-degree murder after stabbing his girlfriend Carina Petrache and then setting fire to their home.

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After the trial, Farrant was diagnosed with post-traumatic stress disorder, but found there were few supports available to jurors struggling with mental health issues. He started the Canadian Juries Commission to advocate for improved services for jurors and greater inclusion of minorities in the jury process.

Now, with courts planning to reopen amid concern of a possible second wave of COVID-19, and with many Canadians under financial strain due to the economic crisis, he fears Canadians could be unwilling to serve on juries, potentially leading to fines or even jail time for those who refuse.

“Health and safety concerns are going to be at the forefront, especially (among) seniors and individuals with health conditions,” Farrant said.

Part of making jury duty an essential service, Farrant argues, includes making sure provinces and territories have adequate supplies of personal protective equipment for juries, plus encouraging sufficient financial compensation for anyone selected to serve.

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Government, courts to make recommendations

The government has created a special “action committee” co-chaired by Supreme Court Chief Justice Richard Wagner and Attorney General David Lametti to address issues around COVID-19 and court reopenings.

In a statement released on May 26, the committee said the “challenges of jury trials and hearings in small court rooms, circuit and remote courts could be areas of immediate focus for forthcoming national guidance.”

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The committee hasn’t yet released this guidance, but “risk mitigation” will be a crucial aspect of reopening courts, it said. This could include the use of physical barriers in courtrooms, such as plexiglass shields, personal protective equipment and physical distancing whenever possible.

“One of the most important things we must keep in mind is that the success of our justice system, and indeed the rule of law, depends on public confidence and trust,” Wagner said.

“This means that we cannot simply view our response to COVID-19 as temporary measures to bridge us back to ‘normal.’ They must be seen as opening the door to imagining a new normal.”

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Global News asked the government if it intends to declare jury duty an essential service and what support, if any, it will provide to provinces and territories once courts reopen.

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A spokesperson for Lametti’s office said protecting the health and safety of jurors is critical to the proper functioning of Canada’s justice system.

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“As provinces and territories are responsible for the administration of justice, final decisions related to the resumption of these activities, as well as the parameters in place to support the health and safety of all actors, will be made by each respective jurisdiction,” said Rachel Rappaport of the AG’s office.

Lametti’s office did not say if the government will give financial or any other direct support to the provinces specific to jury duty.

Required by law

Jury duty is a federally-mandated civic responsibility, yet it has not been declared essential by the government.

This, Farrant said, sends the wrong message to the provinces, which are responsible for making sure jurors are safe once courts reopen. It also sends the wrong message to employers, he said.

While Canadians can’t be fired for missing work due to service on a jury, only Newfoundland and Labrador requires employers to continue paying normal wages to jurors during a trial.

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There’s also no minimum federal standard for direct financial compensation to jurors from provincial governments, with daily rates ranging from $30 a day in Manitoba to $103 a day in Quebec. Rates increase in some provinces depending on the length of a trial.

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In Ontario and Manitoba, jurors receive no pay for the first 10 days of service.

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This is despite a Parliamentary report from 2018 recommending all provinces raise minimum payments to jurors to $120 a day plus expenses.

Given the unprecedented financial stress many Canadians are currently experiencing due to COVID-19, Farrant believes the federal government should guarantee provinces and territories that it will provide whatever support they need to restart jury trials.

Concern over potential health risks

Vanesa MacDonnell, a lawyer and co-director of the University of Ottawa’s Public Law Centre, isn’t sure that jury trials are necessary, let alone practical, during a global pandemic.

While she appreciates the democratic value of juries, and says some crimes require that trial by jury be available to the accused, she said the most important thing courts can do right now is begin hearing cases again by whatever means possible.

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This could include virtual trials, where people participate via secure video conference, or trials by judge only, which would eliminate the potential health risks associated with convenining a jury.

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“The idea that somehow we’re going go from no trials to jury trials — I think that’s going to take a while,” she said.

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MacDonnell said courts must also balance the interests of everyone involved when deciding how and when to resume trials, including victims, prosecutors and lawyers, and judges.

For anyone awaiting trial in prison who’s not yet been found guilty of a crime, the delays caused by COVID-19 are most significant, she said. That’s because prison conditions, including shortages of PPE, have created potential health risks for many inmates.

Short term, MacDonnell thinks jury trials will likely be impossible in most cases. Long term, they could be resumed but only when the courts, jurors and public health officials are confident everyone is safe.

“You have to ask yourself, is the function of the jury so important that it’s akin to getting groceries?” she said.

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“I think it’s really important, but I don’t necessarily think that it’s worth putting peoples’ lives at risk.”