Court File and Parties

Court File No.: CR-24-915
Date: 2025-01-13
Ontario Superior Court of Justice

Between:
His Majesty the King
Amber Lepchuk & Elise Quinn, for the Attorney General
Attorney General of Ontario

-and-

Alessandro Giammichele
Kendra Stanyon, for the Respondent
Respondent

Heard: January 10, 2025

Decision for Jury Compensation

Note: There is no order prohibiting publication of this decision pursuant to R. v. Wright, 2020 ONSC 7049 at paras 5-9, 56-58 and R. v. Mentuck, 2001 SCC 76, paras 32-39.

Overview

[1] The accused Alessandro Giammichele is charged with first degree murder. He has chosen to be tried by judge and jury. The trial is scheduled to last for 3 months.

[2] It is anticipated, as occurs regularly, that many jurors will not be able to participate in a jury trial without an order to provide reasonable compensation for their willing participation.

Issues

1. How important is the right to a jury trial in a democratic society?
2. Is there a jurisdiction to make an order increasing juror compensation over and above what is provided in the regulations enacted pursuant to the Administration of Justice Act?
3. If such jurisdiction exists, what is the appropriate amount of compensation to be ordered above and beyond legislated amounts?

Issue #1 – Importance of Jury Trials

[3] The right to trial by jury is enshrined in the Canadian Charter of Rights and Freedoms – the s.11(d) right to a fair trial by an impartial tribunal and the s.11(f) right to a trial by jury – see Moldaver J. in R. v. Kokopenace, 2015 SCC 28 at para 1.

[4] In R. v. Stillman, 2019 SCC 40, Justice Moldaver and Brown outlined the history supporting the right to a trial by jury as follows at paras 24-28:

[24] Jury trials in English courts can be traced back more than 900 years to the time of William the Conqueror (see R. v. Bryant (1984), 48 O.R. (2d) 732 (C.A.), at p. 742, citing W.S. Holdsworth, A History of English Law (5th ed. 1931), vol 1, at pp. 312-50). The jury “protected accused persons in times past when the monarch could exert undue influence on proceedings being conducted in his own courts” (R. v. Lee, [1989] 2 S.C.R. 1384, at p. 1401) and provided “a mean[s] of counterbalancing the broad powers of the King and later the State” (R. v. Trépanier, 2008 CMAC 3, para 75).

[25] The modern-day understanding of the nature and importance of the right to a trial by jury was explained in R. v. Turpin, [1989] 1 S.C.R. 1296, where Wilson J. wrote:

The right of the accused to receive a trial before a judge and jury of his or her peers is an important right which individuals have historically enjoyed in the common law world. The jury has often been praised as a bulwark of individual liberty. Sir William Blackstone, for example, called the jury “the glory of the English law” and “the most transcendent privilege which any subject can enjoy”: Blackstone, Commentaries on the Laws of England (8th ed. 1778), vol. 3, at p. 379.

The jury serves collective or social interests in addition to protecting the individual. The jury advances social purposes primarily by acting as a vehicle of public education and lending the weight of community standards to trial verdicts. Sir James Stephen underlined the collective interests served by trial by jury when he stated:

… trial by jury interests large numbers of people in the administration of justice and makes them responsible for it. It is difficult to over-estimate the importance of this. It gives degree of power and of popularity to the administration of justice which could hardly be derived from any other source.

(J. Stephen, A History of the Criminal Law of England (1883), vol. I, at p. 573).

In both its study paper (The Jury in Criminal Trials (1980), at pp. 5-17) and in its report to Parliament (The Jury (1982), at p.5) the Law Reform Commission of Canada recognized that the jury functions both as a protection for the accused and as a public institution which benefits society in its educative and legitimizing roles.

(pp. 1309-10)

[26] Not long after Turpin was decided, L’Heureux-Dubé J. described the role and significance of the jury as an institution in R. v. Sherratt:

The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole.

(pp. 523-24)

[27] More recently, the majority in R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, emphasized that “[t]he right to be tried by a jury of one’s peers is one of the cornerstones of our criminal justice system” (para 1). This is illustrated by the fact that under s.471 of the Criminal Code, every person charged with an indictable offence shall be tried by a judge and jury unless otherwise stipulated by law.

[28] This brief review reveals that the right to a jury serves two main purposes. First, at the individual level, it protects the accused by giving him or her the benefit of a trial by his or her peers. Since the right is held by the accused, this individual dimension is of utmost importance. Secondly, at the societal level, it provides a vehicle for public education about the criminal justice system and lends the weight of community standards to trial verdicts.

[5] Justice Moldaver in Kokopenace held at para 2:

[2] In my view, representativeness focuses on the process use to compile the jury roll, not its ultimate composition. Consequently, the state satisfies an accused’s right to a representative jury by providing a fair opportunity for a broad cross-section of society to participate in the jury process. A fair opportunity will be provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a [page412] broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected. When this process is followed, the jury roll will be representative and the accused’s Charter right to a representative jury will be respected.

Conclusion – Issue #1

[6] I conclude from these authorities that the right to a jury trial is a long-standing pillar of democracy that guarantees, when necessary, freedom and liberty from oppressive laws and their enforcement. This is a precious privilege available to all persons regardless of citizenship, race, education, gender, creed, religion and socioeconomic background.

[7] In my opinion, all reasonable steps must be taken to preserve and enhance a person’s right to a jury trial.

Jurisdiction to Order Increased Jury Compensation

[8] Jury compensation is legislated pursuant to the Administration of Justice Act, RSO 1990, c A.6 and regulation entitled Fees and Expenses of Jurors and Crown Witnesses, R.S.O. 1990. Regulation 4, section 1 states:

1. 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.

[9] A 3-month first degree murder trial consists of approximately 12 weeks times 5 days equals 60 days. For the first 49 days at 6 hours per day totaling 294 hours, the jurors would be paid $1,560, receiving $5.30 per hour. That is dramatically less than the current minimum wage in Ontario of $17.20 per hour – see R. v. Huard at para 7.

[10] For the remaining 11 days, (60-49) the jury would receive 11 x 100 = $1,100 for 11 days x 6 hours for an additional 66 hours.

[11] For the total 60 days therefore, the jury would be paid ($1,560 + $1,100) = $2,660 for a total of 294+66 = 360 hours. The jury for the entire 60 days of sitting would be paid a grand total of $7.39 per hour which is not even half of the current minimum wage.

[12] In addition, jurors are not paid for days when the trial does not sit, i.e. for days required for a voir-dire – see Huard at para 7. Jurors are not compensated for expenses – see Huard at para 7.

[13] Given this unreasonable compensation structure, the result may be an inability to empanel a jury representative of the community in which the trial is held – see Huard at para 7 relying on the May 12, 2006, report by the Chief Justice’s Advisory Committee in the Superior Court of Justice, chaired by Justice David Watt and Justice Bruce Durno.

[14] The advisory committee in 2006 expressed concerns about inadequate jury compensation at that time. Despite significant inflation for the almost past 20 years, the level of jury compensation still remains unchanged.

[15] In my opinion, it is the height of hypocrisy for the justice system to trumpet the vital importance of juries and at the same time pay peanuts as a reward for that important civic duty.

[16] In R. v. Alves, 2022 ONSC 3006, Justice Akhtar rejected a Charter application requesting an increase in jury compensation – see Alves at para 25.

[17] However, in R. v. Huard, at para 27, Justice Thomas, in 2009, increased jury compensation to $100 per day for every day of an anticipated 6-month first degree murder trial.

[18] Justice Thomas, in Huard, based his decision, not on the Charter, but on the inherent jurisdiction of a trial judge to increase juror compensation – see Huard at paras 14-21.

[19] Justice Thomas concludes at para 22:

[22] Since inherent jurisdiction can only be removed with clear and precise statutory language, it is conceivable that the language in the Administration of Justice Act and in the Fees and Expenses Regulation is not clear enough, nor precise enough, to remove the inherent jurisdiction of a judge to supplement the amounts provided for in the legislation. In the absence of clear and precise language, judges may be able to increase the fees and expenses payable to jurors, particularly if one views the issue of empaneling a representative jury as being connected to the principle of trial fairness, and therefore within the inherent power and jurisdiction of the judge.

[20] I do not see that Alves and Huard are in conflict. Alves dealt with a Charter application and made no mention of the Huard decision. Huard dealt with the extent of the inherent jurisdiction of a trial judge to control the trial process.

Conclusion – Issue #2

[21] I adopt Justice Thomas’ reasons in Huard and agree that a Superior Court of Justice has the inherent jurisdiction to increase the fee and expenses payable to jurors in a criminal jury trial.

Issue #3 – Appropriate Compensation

Procedure

[22] The Ministry of Attorney General, Court Services Division, made a submission and “asks that no challenge or position with respect to these orders be taken”. Defence counsel agrees that orders increasing fees and expenses of jurors are appropriate. I asked counsel to let me know if I was overreaching by making these orders. There was no submission at all that I was overreaching by making orders increasing jury compensation, with respect to all three of my orders about to be discussed.

[23] For years, I have followed the Huard decision and ordered jury compensation of $100 per sitting day.

[24] Given the significant inflation since the pandemic shutdowns, I have recently increased that amount to $150 per sitting day. Other judges in this same courthouse have made no order, or orders for lesser amounts. It is my understanding that, on occasion, jurors on different trials in this courthouse learn of these differing compensation amounts and of course, resentment by the jurors would naturally follow.

[25] Accordingly, some consistency is required in judicially ordered compensation orders for jurors.

[26] Pursuant to the procedure outlined in Huard, at paragraphs 11–13, I have notified the defence and crown that I intend to make an increased juror compensation order of $150 per day and I set a day aside for submissions. I have also asked the Crown to advise the Attorney General of Ontario for directions. I have also asked the Registrar to advise the Hamilton Sopinka Court administration of this hearing and invited the administration to make submissions either personally or by counsel. As previously stated, the Attorney General made a brief submission. The Hamilton Sopinka administration did not appear or make submissions. I declined their request for a private meeting as I wanted these important issues dealt with in an open and public forum.

Determination of Compensation Amount

[27] I indicated to counsel, at the outset, that what I hoped to achieve in this hearing are orders that are fair and reasonable regarding the treatment of jurors and, at the same time, recognizing that there are limits to what the public purse should be paying.

[28] Justice Akhtar in Alves at paras 23, 24 indicates he is unable to determine what level of remuneration would be sufficient to decrease excusal requests.

[29] For many years, I have made orders of $100 per day increasing to $150 per day in the last couple of years.

[30] The $100 per day orders were based on Justice Thomas’ order in Huard in 2009.

[31] After the significant inflation occasioned after the COVID-19 shutdowns in 2020 and 2021, I came to the conclusion that $100 per day juror compensation was no longer sufficient.

[32] However, my current $150 juror compensation orders were not pulled out of a hat.

[33] At the opening of a jury trial, I instruct the jurors that they are the only judges of the facts and that I am the only judge of the law – see Watt’s Manual of Criminal Jury Instructions – 2023 – preliminary 15 and preliminary 20-B, at pages 36–37, 50, 51.

[34] Basically, the jury and the trial judge are judges of the Superior Court of Justice, and are equals with differing roles. Equity would demand relatively equal pay as well.

[35] In 2024–2025, a Superior Court trial judge earns gross pay of approximately CAD $400,000 per year. Based on an approximate working schedule of 200 days per year, that works out to approximate CAD $2,000 per day. There are 12 jurors; $2,000 per day divided by 12 jurors works out to $167 per day.

[36] Accordingly, juror compensation of roughly $150 per day is a fair and just compensation and in line with the compensation of the trial judge, who is a jury trial equal.

[37] $150 per day divided by 6 hours of sitting time equals $25 per hour, which works out to almost $8.00 per hour more than minimum wage or roughly 50 percent more than $17.20 per hour.

[38] And why should it not? Murder trials involve weighty matters regarding literally life and death decisions. I have seen many jurors distraught and distressed after reaching a decision with enormous consequences for the parties affected.

[39] I fully acknowledge that my orders of $150 per day for juror compensation are not based in science. It really comes down to this: are you going to pay 50% less than minimum wage to preserve a pillar of democracy designed to protect freedom and liberty? Or, alternatively, are you prepared to pay 50% more than minimum wage to illustrate that your justice principles are more than mere lip service and pomposity?

[40] Accordingly, pursuant to my inherent jurisdiction to ensure an efficient, convenient and fair trial process, I order that the jurors chosen to serve shall be paid by a fee of $150 per day – see Schedule “A”. Counsel do not oppose this order.

Snacks and Meals

[41] It is a sad reflection on the administration of justice that this relatively insignificant administrative matter has to be addressed.

[42] For several years now, matters have arisen which have to be embarrassing for anyone who cares about the criminal justice system.

[43] During short recesses in the morning and afternoon, tradition has arisen that jurors be provided with drinks and snacks during those brief recesses.

[44] This makes eminent sense for three reasons:

1. The recesses are too brief to allow 12 jurors to go to a nearby location to purchase drinks and snacks; and
2. It is totally undesirable to have jurors mingling in the hallways to obtain snacks and drinks where lawyers and witnesses may be present.
3. Recently, on March 1, 2023, a Hamilton juror was threatened in the front lobby of the courthouse during the first-degree murder trial of R. v. Jeng and Wise. Appropriate orders were made to ensure the safety of the jurors. Limiting jurors’ exposure to lobbies and hallways increases the security of jurors and prevents threats/interference with jurors performing their civic duty.

[45] I have been informed that there were occasions in the past where expired snacks were provided to jurors after the best before dates. Whether these rumors are true or not, I chose not to investigate but rather I now make orders that nutritious drinks and order snacks be provided to jurors during recesses – see Appendix B. Again, counsel do not oppose this order.

Meals During Jury Sequestration

[46] This is yet another disturbing example of how pillars of democracy are dismantled, not by the mighty Samson, but by unaccountable bureaucrats.

[47] In a recent jury trial, I finished my charge at around noon hour. I was informed that lunch would be provided but no beverages. Water was good enough! How embarrassing is that? I pulled $50 out of my pocket and paid for beverages. I did not put in a claim for reimbursement, partially because it was Canadian Dollars, after all.

[48] On yet another occasion, when I interviewed a jury after the verdict, they told me that the supper was cold. Apparently, it was freezing outside, and the administration would not pay for a taxi. Court staff apparently put the meals in a trolley and wheeled it to the courthouse with full exposure to bitter cold and wind.

[49] On still yet another occasion, I was shown the menu from a local restaurant and court staff informed me that jurors were restricted to ordering appetizers only. The following morning, the jurors ordered breakfasts at their hotel. Their breakfast orders were rejected. They were forced to re-order pursuant to a more limited range of selections dictated by the administration. How humiliating that must have been! That type of embarrassing penny-pinching parsimony simply reduces the entire administration of justice into ridicule and disrepute. Recently, I have noted jurors are getting pizzas for supper. That is not my idea of a nutritious supper after many hours of deliberation.

[50] Despite the past numerous orders imposed on the Hamilton Sopinka Court administration, astonishingly, the problem appears to be worsening. On September 25, 2024, in a first-degree murder trial R. v. Miller, Justice Gambacorta again had to order a full dinner menu to be provided to the jury. In addition, she had to order that court services officers (CSO’s) be provided lunch and dinner while those CSO’s were guarding the jury while sequestered.

[51] How does this problem get solved apart from the trial judge cooking up the meals his or herself? S. 647(5) of the Criminal Code indicates merely that the trial judge shall direct that the jurors shall be provided with suitable and sufficient refreshment, food and lodging while they are together until they have given their verdict.

[52] Again, assuming that the judges of the facts should be treated equally with the judge of the law, the travel allowance claim pursuant to section 34–39 of the Judges Act provides a helpful guideline as to what should be paid for juror meals during sequestration.

[53] The claim form outlines maximums for daily meals as follows:

• Breakfast – max. $25.00
• Lunch – max. $25.00
• Dinner – max. $65.00
• All-inclusive per diem – max. $115.00

[54] The claim form indicates no receipts are required for those amounts. More can be claimed with receipts but that’s another issue.

[55] Accordingly, I feel it is appropriate that juror’s meals during sequestration to be allotted a budget of 12 x $115 = $1,380 per day for the whole jury until a verdict is reached.

[56] Court officers are required to accompany the jurors for meals to ensure the integrity of the trial process. Court reporters and registrars are also required to stay past regular court hours while jurors are deliberating. Historically, their meals were also paid for as they are not particularly well paid (I am informed base pay is $26.76 per hour for a CSO, which is roughly equivalent to jury compensation of $25 per hour based on a $150 per day order) and are by law required to stay with the juries during meals and cannot go home or elsewhere to obtain their meals. It is reasonable that court officers, accompanying the jurors, should also have their meals paid for in accordance with the same budget amounts available to jurors. The same considerations apply to registrars and court reporters who are required to remain in court past regular sitting hours.

[57] A sample order is attached as Appendix C. Counsel do not oppose this order. Defence counsel in submissions agrees that these orders are appropriate, reasonable and necessary in order for the accused to receive a fair trial.

Postscript – Purpose of Criminal Justice System

[58] I wish to address one additional concern that has developed over the last 10 years in Hamilton.

[59] Jury panels in Hamilton usually consist of a list of 200 potential jurors. After vetting the panel to excuse jurors for medical and financial difficulties, we now normally end up with 40–50 potential jurors who are willing to participate in a criminal jury trial. That means, currently in Hamilton, approximately 75–80 percent of the jury panel members do not wish to take part in a criminal jury trial. In my opinion, reasonable efforts must be made to improve these numbers.

[60] The rule of law is the foundation of all civilization. Without it, there can be no security or prosperity; only chaos and misery will remain. Stripped down to its bare essentials, the criminal justice system is designed to ferret out truth in the struggle between good and evil. Ultimately, justice can then be fairly dispensed for the benefit of all citizens and residents.

[61] Juries are an essential component of a civilized society’s eternal quest for truth and justice. My experience in almost 50 years of legal practice, is that criminal justice is best dispensed when all participants in the legal process are treated with dignity and compassion. When I speak to jurors after verdicts have been rendered, it is obvious to me that most jurors feel inspired by the realization that they have become part of something crucially important that is far bigger than themselves.

[62] Reasonable compensation and fair treatment for jurors recognizes a juror’s vital contribution to the maintenance of our democracy and also, ultimately, to the preservation of western civilization itself.

[63] Viewed in that light, the orders outlined in Appendix A–C are a bargain investment in ensuring society’s safety from evil acts perpetrated by individuals and also, perhaps more importantly, by the abuse of power by the state.

[64] If jurors are a part of something that special, they should be treated accordingly.

Andrew J. Skarica

Released: January 13, 2025

Appendix “A”

Order for Payment of Jurors

SINCE this jury trial may cause some financial distress to some jury members

AND TO compensate the jury members for their inconvenience and out-of-pocket expenses,

IN THE EXERCISE of my inherent jurisdiction enhancing the statutory jury compensation amounts will assist greatly in ensuring an efficient, convenient, and fair trial process;

IT IS HEREBY ORDERED that the jurors chosen to serve shall each be paid a fee of $150.00 per day commencing on Monday March 17th, 2025, and continuing up to the conclusion of the trial.

IT IS FURTHER ORDERED that no payment will be made for days, such as holidays or when the jury is not scheduled to sit or when the jury is sequestered. Payment shall be made when the trial is scheduled to sit and the jury is in attendance, even if the jurors are temporarily excused.

Subject to any further orders, any questions arising from the compensable days will be determined by the trial judge.

IT IS FURTHER ORDERED that the jury constable will provide a list of the names of jury members to the jury office for payment.

IT IS FURTHER ORDERED that payment will, at a minimum, be made on a bi-weekly basis.

Andrew J. Skarica

Released: January 13, 2025

Appendix “B”

Order for Daily Snacks and Beverages for Jurors During Trial

IN THE EXERCISE of my inherent jurisdiction to ensure an efficient, convenient and fair trial process;

IT IS HEREBY ORDERED that jurors will be served snacks, on a daily basis, which will include fresh coffee, tea, milk, chocolate milk, fruit juices and fresh fruit, granola bars (not expired), fresh muffins, yogurt (not expired) and fresh donuts.

IT IS FURTHER ORDERED that the jury constable will provide a copy of this order to the jury office and/or Sopinka Court Administration Officials in charge of providing meals/snacks to jurors.

Andrew J. Skarica

Released: January 13, 2025

Appendix “C”

Order for Hot Meals and Beverages for Jurors During Deliberations

SINCE the jurors are required by law to be sequestered while deliberating before a verdict is decided upon,

AND SINCE in a past jury trial, jurors were initially provided lunch without adequate beverages,

AND SINCE in a past jury trial, jurors were provided a “hot” supper which was served cold,

AND SINCE in past jury trials, jurors were restricted from accessing a full menu at a local hotel and/or restaurant,

IN THE EXERCISE of my inherent jurisdiction to ensure an efficient, convenient and fair trial process;

IT IS HEREBY ORDERED that the sequestered jurors will be served a hot supper and all meals, including breakfast, lunch and supper shall be provided from the full menu available to regular patrons in hotels/restaurants and will include a variety of drinks including fruit juices, pop, milk or any other reasonable beverage requested,

IT IS HEREBY ORDERED that the sequestered jurors be allotted a budget of $1,380 per day for nutritious daily meals,

IT IS HEREBY ORDERED that court officers accompanying the jurors during the meals be compensated for their meals up to a maximum of $115 per day per court officer. Court reporters and registrars, required to remain in court past regular sitting hours during jury sequestration, shall also have their meals paid up to a maximum of $115 per day per individual court official.

IT IS FURTHER ORDERED that the jury constable will provide a copy of this order to the jury office and/or Sopinka Court Administration Officials in charge of providing meals to jurors.

Andrew J. Skarica

Released: January 13, 2025