(This is an edited version of our Client Guide which provides general information and is made available to our clients to assist them to understand jury trials and the process if they are selected for jury duty. This is not intended to constitute legal advice, which by its nature is situation specific. If you have questions about a specific legal problem, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation before providing that advice, rather than relying on the general information provided in this Guide.)

The right to trial by jury is one of the hallmarks of the common law. While there are certain types of crimes and civil proceedings in which a jury trial is not available, there are still many opportunities for Canadian citizens to participate as a juror in a criminal or civil case. For reasons that are unclear, juries are not as popular in civil litigation in Ontario as they are in the United States and most civil trials in Ontario are held in front of a judge alone. However, the civic responsibility often weighs heavily on those individuals who are selected for duty, particularly where the trial is lengthy.

In criminal proceedings, the jury is composed of 12 persons while in a civil proceeding there are only six persons on a jury.

Eligibility

A person is eligible to serve on a jury in Ontario if he or she is eighteen years of age or older, a Canadian citizen, resident in Ontario and has not been selected to actually sit on a jury in the past three years. It is possible to be called for jury duty for up to three years in a row without being selected.

There are certain exceptions to eligibility for jury duty including: members of Parliament and senators, judges, lawyers, doctors veterinarians and persons engaged in law enforcement. A person is also ineligible if he or she is suffering from a physical or mental disability such that his or her ability to discharge the juror's duties is impaired. A person who has been convicted of an indictable offence for which a pardon has not been granted is also ineligible.

Selection Process

The process begins when the sheriff of the county or district sends a notice to eligible persons in the county or district. At this stage, the sheriff, with the written approval of a judge, may excuse a potential juror where it appears that such person will be unable to perform jury duty. It is unlikely that at this stage of the process, except in unusual circumstances, the potential juror would know that he or she is being considered as a potential juror. It is possible that in smaller centers, the sheriff may be aware of such persons through personal knowledge and accordingly may excuse a person at this initial stage.

The notice to potential jurors includes a short questionnaire or form that is to be returned to the sheriff within five days. From the list and questionnaires, the sheriff prepares a jury roll for the county or district. The sheriff, in the presence of a justice of the peace, prepares ballots containing a number, places them in a container and draws out the ballots one by one. From this random drawing, the numbers on the ballot are assigned to each name on the jury roll. This is called the panel list.

Once the approximate number of jurors to be required is obtained from the court the sheriff notifies each prospective juror by mail in the order indicated by the juror's randomly drawn number on the panel list at least 21 days prior to the date on which a juror is to be required.

This is likely the first opportunity that the prospective juror usually has to seek a postponement of jury duty. If you are faced with this situation, act quickly. Contact the sheriff by telephone immediately since the sheriff has authority to excuse anyone from this sitting on the grounds of illness or in circumstances where serving as a juror may cause serious hardships or loss to the person or others. The earlier the request, the less likely that the sheriff will be concerned about not having enough jurors on a panel.

As set out more fully below, employers cannot impose any sanctions on an employee who is called for jury duty by reason of his or her acting as a juror. Accordingly, is unlikely that an employee could rely on serious hardship to himself as an excuse for postponement. However, a key employee may be involved in a particular project that may impose hardship on an employer or other employees. The sheriff will consider your circumstances and may excuse you from this sitting. Unless the judge of the court directs otherwise, while you are excused at this stage, you are expected to be available at the next sittings of the court. The sheriff will likely require you to set out the details of your hardship in writing but initially, you should make contact with the sheriff's office as soon as practicable after the jury notice is received. Be realistic in assessing your hardship; the sheriff will be unsympathetic in cases where the hardship is not serious. Many people find this civic duty a burden and will exaggerate their situation on the hardship grounds. Since this is only a postponement in most cases, such exaggeration will be of little practical effect. Be prepared for close questioning from the sheriff on the issue of hardship and lack of other alternatives to alleviate the problem for you.

Another avenue for relief from serving as a juror in serious cases is available from a judge prior to the scheduled hearing. This usually requires a formal motion and supporting affidavit setting out the circumstances. In addition to illness and hardship, the judge at this stage can also excuse a prospective juror where service as a juror is incompatible with the beliefs or practices of the religion or religious order to which the prospective juror belongs. It is obviously preferable to have the issue determined as quickly as possible. Certainly, in cases of importance, it would be prudent to seek to be excused prior to the actual commencement of the trial.

Even if you are summoned for jury duty, it does not mean that you will be chosen to act as a juror. Your notice from the sheriff will tell you which room at the courthouse you should look for. In larger centres, there is usually an information desk available for assistance in locating the jury room. Jury room facilities vary by region but none is luxurious. Identify yourself to the sheriff’s deputy in the jury room (it ensures you get paid later if you’re entitled). Bring a book to read or other appropriate activity and be prepared for lots of waiting. Once it is time to go into the courtroom, the sheriff will gather up the entire panel and direct you to the body of the courtroom 

The presiding judge at the trial also has the authority to excuse the prospective juror on the grounds of illness, hardship or religious beliefs. The judge will usually make an announcement to the entire panel as it is assembled for the first time in the courtroom about the possibility. If these situations pertain to you be sure to speak up loud and clear right at the start. This is the last practical point to be excused for hardship or religious reasons.

The final selection process is once again by ballot. In open court, the sheriff or deputy selects the potential jurors’ names one at a time from the ballot box. The juror’s name address and occupation are read aloud. When the juror’s name is called, he or she proceeds to the jury box.

Thereafter, each side in the proceeding is able to challenge the juror. In a criminal case, there are unlimited challenges for cause for each side plus from four to twenty peremptory challenges depending on the type of offence. In Canada, although the process has become slightly more sophisticated, we do not have the extensive questioning of potential jurors common in the United States. There are consultants in the U.S. who make their living providing assistance to lawyers in preparing to challenge jurors.

In a civil proceeding, each side is allowed only four peremptory challenges.

A peremptory challenge is where no reason for the challenge needs to be given by the lawyer. The lawyer will use such challenges to remove potential jurors he or she thinks will not be sympathetic to his or her case or will be helpful to the case of the other side. In Canada, these decisions are made with very little information other than the name, address and occupation data on the jury panel list and an assessment of the potential juror’s demeanour as he or she is called by the sheriff to come to the front of the courtroom.

In the criminal proceeding, the presiding judge is also given the power to "stand by" persons who may suffer hardship by reason of serving on the jury. This is not as good as being excused to the next sitting since those jurors who have been stood by must remain available to be selected if the panel of jurors is exhausted through challenges for cause.

In rare cases, particularly in criminal cases, where there are an unusually large number of challenges, it is possible that jury panel will become entirely exhausted. In such cases, the sheriff is empowered to literally go on the streets in the vicinity of the courthouse to find persons who are eligible to serve as jurors and bring them to court. These unfortunate conscripts are called talesmen.

There is a residual power in the judge to excuse jurors after the commencement of the trial for illness or hardship. These situations occur rarely and only in very serious circumstances.

The Verdict

The purpose of the jury is to be the judge of the facts. They hear the evidence and the witnesses and make up their minds as to which evidence is to be believed. Each lawyer will make a closing argument to the jury to attempt to persuade the jury that the evidence favours the party whom he or she represents. The trial judge will provide an outline of the law and guidance on how the legal issues impact the positions taken by the parties. In a criminal case, the judge will explain the possible verdicts that the jury may render. In a civil case, the jury is usually asked to answer a series of questions. These questions have been agreed upon by the lawyers for the parties and approved by the trial judge. Usually the judge would explain how this process works. This description, in both criminal and civil cases is called the charge to the jury.

In criminal cases, all 12 jurors must come to a unanimous finding before there can be verdict. If the jurors are unable to do so, the judge has a discretion to declare a mistrial and a new trial may be ordered. Where jurors have been excused for illness or hardship after they have sat through a portion of trial by the trial judge, a verdict may be rendered for a particular criminal case provided that there are at least ten jurors who participated in the unanimous decision.

In a civil case, it is sufficient if five of the six jurors agree on the answers to questions. Unanimity is not required. It is not even necessary that the same five persons agreed to the answers to every question provided that at least five persons agreed to the answer to each question. Where a juror has been excused for illness or hardship after the commencement of the trial, the trial may continue with as little as five members if all five of them agree on any decision.

Penalties

Failure to attend for jury duty or a failure to answer in response to a calling of the juror’s name by the sheriff may result in the prospective juror being found in contempt. Penalties include a fine or imprisonment or both.

Unlike the practice in the United States, jurors are not permitted to discuss their deliberations or to speak with or consult with any other person regarding their deliberations. This cone of silence will be described by the trial judge to the jury. There are also criminal sanctions for a breach of this prohibition.

No Effect on Employment Status

Many prospective jurors are concerned about the impact of the jury duty on their employment, particularly when the trial is expected to be lengthy. Ontario law prohibits firing or imposing any sanction on an employee who attends for jury duty. An employer is required to give a leave of absence with or without pay to any person called for jury duty. Many collective agreements provide for full salary maintenance during the period of jury duty. Some employers also have a policy of paying their employees for this period of time in return for the modest honorarium given to jurors by law. While the law ensures that no employee will be fired for attending to jury duty, at the present time for many employees, the financial burden of pay loss falls on the employee.

An employee is entitled to his or her job back or a comparable position upon completion of jury duty.

Many employers are concerned about the impact of losing a key employee for an extended period of time. Limited relief is available for employers in serious cases of true hardship, as described above. 

For the independent business person, the consequences may also be very serious, particularly since no insurance is available to replace the income lost during the jury duty period.

At the present time, regulations under the Administration of Justice Act provide that a juror who attends a sitting of the Superior Court of Justice shall be paid a fee of $40 for each day of service after the tenth day of service up to and including the forty-ninth day of service and $100 for each day of service after the forty-ninth day of service. There is no payment for the first ten days of service.