Issues with Magnotta case highlight history of Canadian jury trouble

Picking a jury for one of the most sensational murder trials in recent Canadian history is proving to be a little complicated.

It seems a lot of Montrealers are not keen to sit in judgment of Luka Rocco Magnotta, the 32-year-old former male model, stripper and porn actor accused of killing and dismembering Chinese engineering student Jun Lin in 2012.

Dozens of potential jurors from a pool of 1,600 have, so far, begged off for a variety of reasons, ranging from lack of fluency in English – the main language of this trial – to anxiety over the evidence or simple antipathy towards Magnotta.

Jury selection will probably take a while as the Crown and defence lawyers also exercise their challenges. There’s little doubt they’ll eventually find their panel of 12 impartial jurors and two alternates, but this case is an extreme example of the pressures facing Canada’s jury system.

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Magnotta, originally from suburban Toronto, is charged with first-degree murder and other counts in the death of Lin, who disappeared in May of 2012 while attending Concordia University in Montreal.

Parts of the Chinese international student were mailed to the Conservative Party of Canada’s Ottawa headquarters, as well as the Liberal Party (though that was intercepted at a Canada Post sorting facility), and to two B.C. schools. His torso was found in a suitcase dumped in a Montreal alley and his head two months later beside a small lake in a Montreal park.

Magnotta was arrested in June 2012 after an international manhunt, that ended in Berlin, and flown back to Canada on an air force jet.

Experts have long fretted about the difficulty in finding juries representative of the community to try major criminal cases.

The lion’s share of criminal trials take place before a judge alone, most of them lesser offences heard in provincial courts. And the accused, in certain kinds of major cases, can elect whether or not to have a jury or allow a judge alone to try the case.

But very serious cases, such as murder, must be heard by a jury. Jury service is considered a civic duty of Canadian citizens, like voting. But as trials have become longer and more complicated, it seems more people want to opt out.

CBC News reported that in 2010, 7,959 out of 18,935 people summoned for jury duty in Quebec asked to be exempted and 6,029 were excused. The roughly 30-per cent dropout rate from the jury pool comes despite the fact Quebec has one of the highest daily compensation rates for jurors – $90 a day. By comparison, B.C. offers just $20 a day for the first 10 days of a trial, rising to $60 for cases lasting up to 50 days and $100 for anything longer.

“I’m always surprised at the large number of people summoned to jury selection who ask to be relieved of that duty,” Peter Bowal, a professor of business and environment at the University of Calgary’s Haskayne School of Business told Yahoo Canada News.

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Bowal said many judges seem too liberal in their willingness to exempt prospective jurors for reasons of work. Employers are required to allow employees time off for jury duty, though not necessarily with pay. The yardstick for being excused is supposed to be that you are essential, but Bowal said that’s not often followed.

"I have seen what I thought were pretty weak reasons," he said. “I didn’t think that was the purpose of the legislation. If you look at it, it is more the exception than the rule.”

Many people seem unwilling to put their lives largely on hold, sometimes for months, to sit on a jury. Bowal said some feel they’re too busy or simply don’t want to get involved while others are fearful of what they might be getting into.

Some may be spooked by the attention a notorious trial like Magnotta’s can bring, with batteries of cameras sometimes tracking jurors on their way to lunch. For others, the grisly nature of the evidence may be too much to take, despite our apparent desensitization by movie and TV gore.

Bowal said the problem is that exempting a large percentage of prospective jurors undermines the representative nature of the jury system.

“If people excuse themselves of that civic duty you get a much more narrow demographic representation on the jury,” he said.

The problem can be magnified in smaller communities, where the jury pool is relatively small, complicated by the fact that more people may know details about the case that may prejudice their judgment of the evidence.

After a judge has dealt with jurors who want to be excused, lawyers on both sides of a case are allowed a set number of pre-emptory challenges to potential jurors without cause. They may challenge others if they feel uncertain about their impartiality.

Lawyers in Canada can ask only a limited range of questions, rather than the grilling their American counterparts can perform.

U.S. jurors fill out detailed questionnaires the lawyers use to vet them, sometimes employing jury consultants who produce psychological profiles to help determine which way they might lean.

"Pretty much they have gone through the whole list before that process starts," Bowal said, referring to jury selection. "So they know X, when he is called, they know all about him and they probably have a position on whether they would like him or not like him on the jury."

The leaner Canadian approach probably results in a more community-representative jury, Bowal said, adding he’s never seen expensive jury consultants used in Canada.

Despite the frustrations, one veteran Crown prosecutor said her experience with jurors willing to do their duty has been positive. Pauline Donnachie said part of it may be that she works in Victoria. With it’s large numbers of senior citizens and government employees, there seems little trouble in finding available jurors.

“My experience has not been that we’ve had a lot of people requesting to be exempted,” Donnachie, who also chairs the criminal law subsection of the Canadian Bar Association’s B.C. branch, said in an interview. “It’s unusual but most of the time it’s a few people at minimum who ask to be exempted and they usually have a good reason.

“It hasn’t been, in my experience, a huge or significant block to find a panel in quite a short period of time.”

Donnachie qualified that by saying she hasn’t worked a really long trial, such as the Air India bombing case, which ran for more than a year, or the trial of serial killer Robert Pickton, a grueling case that began in January 2007 and ended the following December with guilty verdicts.

Donnachie isn’t sure tightening up on exemptions would be beneficial.

“There’s nothing worse than having someone sitting on a jury who doesn’t want to be there,” she said in an interview.

"If I was the accused, for example, I certainly would want someone who was paying very close attention to the evidence and very close attention to what the judge said in making the determination as to whether I was guilty or innocent.”

Donnachie said once sworn in, jurors have proven a diligent and resilient lot. She recalled one case that went in fits for months due to a lawyer’s illness, with sessions sometimes cancelled at the last minute. But the only dropouts among the jury were due to illness.

Despite the cynicism sometimes seen around jury duty, Donnachie said those she’s encountered take it seriously.

"I get a sense of that, not just from the attention that they pay in court, but also the questions that they ask and the attention that they pay to the judge’s directions, and the varying time it takes for them to consider the evidence and come back with a verdict," she said.