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How B.C.’s low pay for jurors is preventing some accused from being tried by their peers

B.C. pays jurors less than minimum wage, which advocates say could be affecting the makeup of juries selected to decide the outcomes of dozens of criminal and civil trials every year.
Low pay, advocates say, could be affecting the makeup of juries who are selected to decide the outcomes of the dozens of criminal and civil trials every year in B.C.’s 26 provincial courtrooms. DARRYL DYCK, THE CANADIAN PRESS

VANCOUVER — When jurors were selected to serve last year on the high-profile murder trial of Ibrahim Ali, for first-degree murder and sexual assault of a Burnaby teen, they were told to expect to sit for three months.

The trial in B.C. Supreme Court lasted eight months.

The death of a Crown witness, threats against defence lawyers and the accused’s health delayed proceedings.

On Dec. 7, after deliberating for a few hours, the jury delivered a guilty verdict. Before dismissing the jurors that day, Justice Lance Bernard said he “wanted to extend my gratitude for your patience and dedication.”

While the 14 men and women (12, plus two alternates) may have felt satisfaction performing their civic duty, they received comparatively little in jury pay for putting their lives on hold for those months — earning less than minimum wage.

And that low pay, advocates say, could be affecting the makeup of juries who are selected to decide the outcomes of the dozens — there were 76 in 2019 and 44 in 2022 — of criminal and civil trials every year in B.C.

Over the eight months of the trial, they earned B.C.’s daily rate of $20 for the first 10 days, $60 for Days 11 through 49, and $100 after Day 50 — or about $8,000, an amount that someone working full-time for minimum wage would have earned in three months.

And the province has no plans to raise the rate, despite a federal committee’s recommendation.

Compared with other provinces, B.C. falls in the middle of the pack. For a similar length trial, jurors in Ontario, Manitoba and New Brunswick can also expect about $1,000 a month on average.

Canada’s highest paid jurors live in Quebec, where they would receive more than $1,700 a month on average for a trial of a similar length to Ali’s, and in Saskatchewan ($1,460). The lowest paid live in Nova Scotia ($530), and Alberta and P.E.I. ($660).

Advocates say base jury pay should start at about $150 a day, which for an eight-month trial sitting 106 days would work out to $2,000 a month on average.

A federal parliamentary committee in 2018 deemed jury pay “inadequate” and recommended provinces increase the pay to at least $120 a day and tie it to inflation. That $120 would be worth $150 in today’s dollars, according to the Canadian Juries Commission, a non-profit group that advocates for jurors.

Because provinces, including B.C., typically allow prospective jurors to ask to be exempted due to serious financial hardship, that could prevent a true cross-section of citizens from sitting on juries, the 2018 report from the standing committee on justice and human rights also said.

Exemptions for financial hardship “can make juries less representative,” which means a “segment of the population is effectively missing from the jury,” said the report.

“It makes me wonder how we are providing (the person on trial) with a jury of peers,” said Janika Ekdahl, a member of the commission.

Ekdahl, who lives on Vancouver Island, served on a jury in the 2012 trial of members of the Greeks gang accused of three brutal slayings around Vernon. At 18 months, it was the longest criminal trial in B.C. history at the time. The jury convicted five men.

Ekdahl had agreed to sit “to serve my community,” but her then-employer, a financial services company, asked if she could get out of it.

They later “tried to include (jury duty) in my annual performance review as a negative but I made them take it out,” she said.

Employers are required by law to grant leave to workers to sit on a jury and can’t fire someone for serving, according to the B.C. Supreme Court’s website.

Nor can an employer change without consent a serving worker’s conditions of employment and must continue to provide standard calculations for vacation, salary increases, pensions, medical and other benefit-plan entitlements.

Employers aren’t obligated to pay employees while they sit on a jury, although union shops may do so as part of their collective agreement.

Ekdahl continued to receive pay from her employer, minus her jury pay, which she noted was low and “the same rate as now and that was more than 10 years ago.”

Mark Farrant, founder and CEO of the Canadian Juries Commission, said for young people who work in retail or in the gig economy or who are underemployed or self-employed, it would be a challenge to live on the B.C. jury pay and he’s heard from people who have taken on credit card debt while on a jury. The income is also subject to tax.

“For them it is a financial hardship, which is one of the reasons to be exempted, and sadly we’re seeing more and more examples of this,” he said. “We’re losing (young persons’) voices as a result.”

Farrant said some provinces, including Saskatchewan, Quebec and Manitoba, have recently raised their jury pay rates.

B.C.’s Attorney General Ministry wouldn’t comment on the 2018 report recommendation that called on provinces to increase jury pay to at least $120 a day.

“Many union contracts and employers provide that employees are paid their regular earnings while serving as a juror,” said B.C. government communications director Catherine Pate in an email. She also noted the exemption for financial or other hardship reasons.

The $20-$60-$100 pay scale in B.C. hasn’t changed since 2003, though reimbursements for expenses were increased in 2020.

B.C. jurors can claim certain receipted expenses, like up to $20 a day for parking or $15 a day for taxis or buses. And B.C. offers up to $50 a day in necessary child-care costs, the court website says. Other provinces offer similar reimbursements.

Jurors are required to buy their own meals during trial, but accommodations and meal allowances are provided if they’re sequestered during deliberations.

One academic observer said jurors are performing a civic duty and should be compensated like others in public service, such as civil servants, politicians and first responders.

“It essentially should be fair compensation,” said Werner Antweiler, an economist and professor at the University of B.C.’s Sauder School of Business who has written about reform of the jury system. “The government has to compensate jurors for lost income and not just offer a token.”

Otherwise, you don’t get a fair representation of society on the jury but instead “the most affluent or ones who work the least,” he added.

“That’s a problem. Who are the peers?” he said, saying it may be only retirees who have time to sit on a jury, which is “not a true representation” of society.

Antweiler also rejected the idea that employers be mandated to pay employees, as they are in Newfoundland, because they may be paying twice, both a salary for the missing employee and a second to replace them.

“Why should businesses be punished because an employee got selected?”

The call for higher pay is not new. A 2009 parliamentary report from the steering committee on justice efficiencies and access to the justice system also called for an increase in jury pay, saying the “meagre compensation has historically contributed to the value of their commitment … (but) it clashes with the realities of modern society.”

Figures released by the B.C. Attorney General Ministry show B.C. paid jurors fees and expenses, including hotel bills, of almost $500,000 for 32 criminal trials in 2022, and about the same amount for 43 criminal trials in 2019. Office expenses, the majority of which are postal services, amounted to $330,000 in 2022 and $250,000 in 2019. (COVID-19 reduced the number of jury trials in 2020 and 2021.)

In 2022, about 230,000 summonses were mailed out to prospective jurors, the attorney general said.

Civil jury expenses are paid by litigants who request a jury. A Court of Appeal ruling in 2017 — in which the Trial Lawyers Association of B.C. lost a constitutional challenge of the Jury Act’s requirement that a litigant in a civil trial pay for the extra sheriff and for jury pay — shed some light on the cost of civil jury trials.

The reasons for judgment said the litigant would pay for costs of between $800 to $1,200 a day, plus $1,500 in pretrial costs, amounting to about $5,000 a week, and more per week the longer the trial lasted.

“Jurors deserve to be fairly compensated,” said Trial Lawyers Association president Michael Elliott in an email. “Low pay for jurors places a significant and unfair burden on British Columbians who can least afford to take time away from work or caring for family members.”

What jurors are paid across Canada

Jury pay in the provinces:

• B.C. — $20 a day for Days 1 to 10; $60 for Days 11 to 49; $100 for Day 50 and beyond, plus expenses.

• Alberta — $50 a day, plus receipted parking expenses.

• Saskatchewan — $110 a day or part of a day for those not paid by employer, plus expenses.

• Manitoba — In 2021, pay rose to $80 a day and begins on Day 1 (recently up from $30, beginning on Day 11).

• Ontario — No pay until Day 11, then $40 a day until Day 50, when it rises to $100 a day for duration of trial.

• Quebec — $103 a day or part of day when sitting or confined to the premises by a sheriff, rising to $160 a day starting with Day 57, plus $52 for evening sitting. Double pay of $206 if the day falls on Saturday, a statutory holiday, Dec. 26 or Jan. 2, plus expenses.

• New Brunswick — Day 1 to 9, $20 for half days, $40 for full days, double starting Day 10.

• P.E.I. — $25 per half day plus travel costs.

• N.L. — No daily pay, and employers must continue to pay employees while they serve.