James C. Morton is the president of the Ontario Bar Association and head of the litigation group of the law firm Steinberg, Morton, Hope & Israel. He has lectured on evidence law, at Osgoode Hall Law School at York University and Thomas M. Cooley Law School at Lansing, Mich.

An artist's sketch shows Robert William Pickton as he appeared in B.C. Supreme Court on Monday in New Westminster, B.C. (Jane Wolsak/Canadian Press)

Who is eligible for jury duty?

Any Canadian citizen who is mentally sound and who has not been convicted of an offence with a sentence of more than five years.

What are the reasons a person in the jury pool might not be picked to serve on a jury?

There's a number of different reasons why people would not be picked for the jury or thrown off the jury pool. They don't understand the language the trial's going to be conducted in: English or French. They have some physical infirmity that stops them from sitting and listening for a number of hours. And there are some professions that are excluded: lawyers, police officers and judges.

There are also other reasons that would apply, especially in cases like Pickton, that wouldn't apply in a more typical motor-vehicle or drug case.

One of the issues in Pickton is the length of the trial. The Pickton trial is going to last at least a year. Obviously, there are many people for whom serving on a jury for a full year would be an undue hardship: young mothers, self-employed people whose businesses would be destroyed. In any long jury trial, the judge is going to purge the pool of people who are not able to give the amount of time necessary.

The other reason why people get excluded is for prejudice, as defined by the court. The most specific example would be that you actually know the people involved.

People are also excluded because they have an offence-based prejudice. The example I give is if someone in your family is killed by an impaired driver, you're probably not a good person to sit on a jury dealing with impaired driving, but you may be fine to deal with fraud.

The other reason why people might be excused in Pickton is similar to the reason some people were excused in the Bernardo case. There are some people whose sensitivities are such that they could not reasonably review the evidence. Even the judge in the Bernardo case - Justice Patrick LeSage, a very fine judge - was emotionally overwhelmed by the evidence. If the people called for jury duty can't bring themselves to look at the evidence, then they can't be jurors.

Given all that, who's left to serve on juries?

Not many. That points out a problem with long, complex trials.

Generally speaking, you're going to have people who are retired, unemployed or employed by large businesses or government, without a lot of family obligations. And these people will have to be emotionally strong.

Also, realistically, in a case like Pickton, if you evince a desire not to sit on the jury, you won't be on that jury. If a person doesn't want to sit on a 10-day jury trial, the judge will say, "It's your civic duty. Shut up and do it." They won't do that with a trial that's looking to last a year.

Clarification

Jury pay rates vary from province to province. The rates mentioned are for Ontario jurors. In B.C., jurors are paid $20 a day for each of the first 10 days and $60 a day for the 11th to 49th days. If a trial lasts for 50 or more days, jurors are paid $100 a day. - J.B.

How much do jurors get paid?

You don't get very well paid as a juror. Jurors will be paid $20 a day for the first two months and after that $100 a day. It's hard if you're the supporter of a family.

What does the law say about jurors' jobs?

It varies by province, but if you're called for jury duty, your employer is required to keep your job for you. They don't have to pay you, but most large organizations and some smaller ones do.

How does the jury selection process work?

Once you get your pool, the prosecutor and the defendant have the right to set aside individuals they don't like. In a first-degree murder trial, each side would have 20 pre-emptory challenges. The prosecutor and the defence can - for any reason at all - say, "I don't like that person. Next."

In addition to that, you can have challenge for cause. In Canada, that's done rather differently than in the United States. In Canada, we don't have the jury voir dire, where you get to ask questions and investigate the background of the prospective jurors. We have the name and the occupation as shown on the voter list, and you get to look at them. That's it.

You have to show that there is some basis for saying that there is challenge for cause. It could be because of racial prejudice. There is also offence-based prejudice. And you can also talk about pre-trial publicity, which might be a big one in Pickton because there's been a lot of press.

If you convince the judge that there's a legitimate ground to suggest that there may be partiality, then some questions can be put first to the judge and then to the jurors. In Canada, the person who decides whether or not you're prejudiced is not the judge. It's other members of the jury. It's a process we are not used to by watching American TV.

What strategy do Crown and defence attorneys use when selecting jurors?

The defence is probably not going to be looking for jurors who have any political or social agenda. What they will be looking for, though, are jurors who, because of their life experience, are more likely to disbelieve what authority says.

That's not easy. The received wisdom is that you want to look for people from ethnic minorities, although that's very dangerous and a stereotype because there are lots of ethnic minorities who are very law-and-order.

For example, many of the alleged victims of Mr. Pickton are of First Nations origin. Normally, a defence counsel would like to have aboriginal jurors. The sense is that aboriginal jurors are more likely to look with great care at evidence from the prosecution. I don't know if they would feel that way in this case.

In general, my sense is that prosecutors are looking for people who are open to convicting, but not people who are biased towards it.

How does it affect a juror to go through a lengthy trial, such as Pickton or the Air India trial?

It's devastating. There's no question about it.

Think about it. You take a year and you investigate in great detail the dismemberment - and apparently even worse - of young women, and that's going to affect you.

Justice LeSage in the Bernardo case said in speeches that it was something that would wake him up at night in the months and years afterwards. And he's a chief justice. Someone who's seen everything. I don't envy what they're going to see.

And it will be hard for these jurors to make an impartial decision because they will have to abstract themselves from the horror of what happened.

What is available to the jurors to deal with the stress?

They really don't have anything, and they can't because the jurors are sworn to secrecy. They can't talk about what they see, or hear or decide with anybody. So, they're really very much on their own.

On long trials, the court will sometimes provide for more pleasant retiring rooms or slightly nicer meals. In Canada, it's very rare to sequester a jury, to require them to stay in a hotel. So, they'll be looking at this horrific stuff and then getting into their cars and driving home.

Jurors can't even talk to a counsellor or a psychiatrist after a trial?

They're not supposed to. Practically speaking, they probably do.

They are required to maintain confidentiality, and that's something that's maintained in Canada quite strictly. In the States, it isn't. In the States after any major criminal trial, you see the jurors going on TV. In Canada, that would be an offence.

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