What is the public’s role in our justice system?
This is the seventh and final part of a series with Ottawa criminal lawyer Céline Dostaler that examines the basic principles of Canadian criminal law.
Judges and lawyers are key players when a case goes to trial. But there is an equally important group of people who take part in each case and they are the members of the public. In Canada, each of us has a part in ensuring that the law is administered fairly. The three main areas where the public plays a part in our judicial system are serving on a jury, testifying as a witness and knowing the law. Let’s examine each one.
What is it like to serve on a criminal jury?
Serving on a jury and deciding whether someone has violated a Criminal Code offence is both challenging and rewarding for participants. While some may have reservations when they start the process, I believe most people enjoy jury duty. They experience something completely different from their everyday life and see firsthand how the law is applied and what lawyers really do in the courtroom. It has been my observation that most jurors develop an appreciation for nuances of the law that people outside the courtroom may not understand.
Anyone charged with a criminal offence where a prison sentence of five years or more is a possibility has the right to a trial by jury. The biggest responsibility of a juror is to decide on their guilt, a decision that could put the person behind bars for years. After all of the testimony is heard, jurors meet in a room outside the courtroom to decide whether the prosecutor has proven beyond a reasonable doubt that the accused is guilty. All jurors must agree on a verdict. If they cannot, the judge may discharge the jury and call a new trial with a new jury panel.
Throughout the trial and beyond, jurors are not permitted to tell anyone else about their deliberations.
What if I am called for jury duty?
A criminal law jury is made up of 12 people selected from a pool of jurors in the province or territory in which the court is located. Any adult Canadian citizen can be considered for jury duty. It is your civic duty to serve if selected. Jury questionnaires are mailed to about 700,000 people in Ontario every year. The questionnaire only determines if you qualify for jury duty; it is not a summons for jury duty. If you get a questionnaire, complete it within seven days. Your results will tell you what to do next, and if you should complete the check-in tool closer to your summons date.
Your answers in the questionnaire may allow you to receive a deferral or excusal from jury duty. Reasons for a deferral include sickness, a booked trip, an employment issue or some other hardship. Only a judge can grant a deferral or excusal and you may need to provide documentation to support your request.
Who cannot serve on a jury?
As a lawyer, I am ineligible for jury duty, as is my spouse. Other ineligible groups include: doctors, coroners, veterinarians, police officers, firefighters, members of the Armed Forces, judges or justices of the peace, and provincial and federal politicians. People employed in these professions are still required to fill out the questionnaire and return it, explaining why they are ineligible.
Do I get paid for jury duty in Ontario?
Employers are required by law to give employees time off for jury duty, though the law does not require them to be paid a salary during this time. Some firms provide payment or jury pay can be stipulated in a unionized contract.
In Ontario, jurors receive the following payment for serving on a jury:
- From day one to ten: No fee
- From day 11 to 49: $40 per day.
- From day 50 to the last day of trial: $100 per day, though trials of this length are rare.
There is no allowance for childcare expenses or parking. Those receiving Employment Insurance benefits can attend jury duty and continue to receive benefits.
When the trial is over, jurors in Ontario can receive free counselling. That can be done over the phone, in-person, via email or videoconference, in English or French, The Juror Support Program is confidential and available 24 hours a day, seven days. Jurors are provided up to four one-hour counselling sessions.
What do I need to know if I am asked to testify at a trial?
A person who has information that the Crown or the accused believes to be useful may be called to give evidence in a criminal trial. That includes someone who witnessed the event or has a document or other evidence that is key to the trial. People with knowledge about a particular subject may be called as expert witnesses to help the court answer technical questions.
People with information related to the case may come forward voluntarily. Witnesses can also be summoned by subpoena to give evidence in court. Those who are subpoenaed must testify or face a penalty. All witnesses must take an oath or affirm that they will tell the truth. They must answer all questions they are asked, unless the judge rules a question is irrelevant.
As a lawyer, I know that it is important that witnesses tell the truth. Witnesses who exaggerate or withhold information will only hurt their credibility. It might be a daunting process to testify but it's important that witnesses do their part.
Am I responsible to know the law?
It is often said that ignorance of the law is not a defence. If you are charged with an offence, you cannot be excused by claiming that you did not know you were breaking the law. Our laws are publicly debated before being passed in Parliament. You are not expected to be an expert in the law, but you should have a general understanding of what is legal and what is not.
For example, everyone should know it is illegal to drive while under the influence of drugs or alcohol. Another example is that Canadians are not permitted to force a partner or spouse to have sex with them. It does not matter if you were born in a country where that practice is allowed. You are in Canada now, and you must abide by Canadian laws and seek consent before sex.
If you are unsure what the laws are in a certain area, there are many online resources, as well as public legal information associations and the police. If you are still uncertain about the law, consult a lawyer.
Contact me for more information
Every time I am in court, I see the important role the public plays in our judicial system. If you are in the Ottawa area, perhaps I will see you on a jury or serving as a witness. Those seeking legal representation can contact me for more information. I offer free 30-minute consultations in French or English.