The issue has come about due to a rather unusual event which took place here in London where 20 people were rounded up in the street and told to appear before a judge the next day as potential jurors.
Here is what happened:
On January 17th, three men were being tried for the serious offenses of assault, forcible confinement, and threats. It had been over two years since the crimes and this was the third attempt at beginning the proceedings when the judge ran out of jurors having vetted over 130 already. There was still one vacancy for an alternate juror called a talesman. Not wishing to see trial delayed any further Justice Kelley Gorman ordered the Middlesex County Sheriff and the London police to round up 20 bystanders off the street and order them to appear in court the next day as potential jurors.
Here are the observations (from the London Free Press) of one of these hapless people, a mister Scott Johnston who likened his experience to bullying.
“I was walking to my car on a darkened street corner when approached by a woman. I was asked if I could be spoken to for a minute. I decline and politely indicate am in a hurry. All of a sudden, out comes a sheriff’s badge pointed towards me and I am told that I “have to speak to her and that I cannot leave.
“At that moment, a uniformed officer who was standing a bit of a distance away walked over to the side of the woman and looked at me but said nothing. I thought to myself that I have no option but to remain because if I tried to leave there would have been a chase or worse.
“I was asked two questions: Are you a Canadian citizen? Are you over 18? I answered yes. I was then presented with a piece of paper and asked for identification in the form of a driver’s license. I produced it and the sheriff started writing down my name and address information on a clipboard. I was informed I must show up in court the very next morning at 9:30 am for jury duty.”
These 20 people were being rounded up under a little used provision of the Canadian Criminal Code called section 642(1) Summoning other jurors when panel exhausted. It reads:
“If a full jury and any alternate jurors considered advisable cannot be provided notwithstanding that the relevant provisions of this Part have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer to summon without delay as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury and alternate jurors.”
When I first asked the question whether or not people should be compelled to sit as jurors I am willing to bet to anyone not familiar with these events that you might find it reasonable to receive a letter in the mail asking you to report in two to three weeks’ time, plenty of time for many of us to put their affairs in order, and report to the courthouse for jury duty. You might also have expected that you would be given the opportunity to get out of jury duty due to extenuating circumstances. And you would be right. This is how it is usually done. But many of those rounded up had missed trains (as Mr. Johnston had), or work, or had to arrange for baby-sitting, or any other myriad of excuses that 20 people might have had given the order to forget about what you had planned for tomorrow because you are going to court.
This Criminal Code provision, while an obvious attempt to allow for speedy justice, is unjust in itself. What it does is take innocent people, subject them to force and given no option but to comply regardless of circumstance.
But is jury duty under any circumstances justified?
Consider this quote from Cicero:
“We are all servants of the laws in order that we may be free.”
By this I take it that the Roman Statesman was acknowledging the fact that in order to be free in a political context there must be laws, and by implication a system of justice. If we accept this then must we accept to have our rights infringed upon from time to time as a price to pay for the enacting of this system of justice?
On the one hand I would agree that the right to a trial by a jury is a fundamental component of a system of justice. The alternative would be that for every serious offense you are to be prosecuted by the state and judged by an employee of the state. To be able to plead your case to a community of peers is a fundamental component of our judicial system.
But must we compel citizens to sit in judgment of us? I don’t believe so and for the following reason, you are compelling someone to think.
Put yourself in the shoes of those 20 people rounded up. Section 642(1) states that while it is the judge who gave the order it was at the request of the prosecutor. So here you are, totally inconvenienced and possibly at great expense sitting in judgment of three people the same prosecutor wants you to find guilty. Do you think that it is possible that out of resentment for the actions of the prosecutor you find in the defendants favour just to spite the prosecutor? In other words, the compulsion to attend has tainted your ability to think through the facts of the case without bias.
I would contend that only a jury made up of volunteers, properly compensated for their time, is able to properly consider the facts of any court case without bias for or against the accused due to the manner in which they were asked to act as jurors.
There are thousands of eligible citizens in this city willing and able to perform the function of a juror if they were treated with respect, if their rights were not violated, if they were properly requested to attend, if they were given opportunity to decline, and if they were compensated for their time.
Yes, by today’s law you may be able to lead a juror to court but you cannot make him think. And that after all, is exactly why he is there.
(Originally broadcast on Just Right #235, February 2, 2012)