Jennifer McPhee
Northern News Services

Yellowknife (Sep 08/03) - It's no big shocker that Crown and defence lawyers try to select jurors who will see things their way.

During the jury selection process, lawyers can challenge whether certain potential jurors make the cut.

In the United States, former jurors write entire books and appear on trashy television shows about their jury duty experiences. But those who perform jury duty in Canada must never divulge how they reached their verdict. Fail to keep the secret and you could face up to two months in jail or a $500 fine or both, according to the territorial Jury Act. Under the criminal code, the penalty is a maximum of six months in jail or a $2,000 fine. To serve on a jury, you must be 19-years-old, a Canadian citizen or permanent resident of Canada and able to speak and understand an official language. You cannot serve if you've spent more than a year in jail or have a physical or mental disability incompatible with the duties of juror. People with certain jobs are exempt from jury duty if they choose, including: RCMP, judges, coroners, lawyers, clergy, firefighters, doctors, dentists, nurses, druggists and prison guards. Judges can remove someone from the list of names who would suffer undue hardship or serious inconvenience if they served on a jury. A bailiff uses names from the voter's list to serve about 200 people with summons to appear in Supreme Court for jury selection. If a jury isn't selected from the first jury pool, the sheriff can actually hit the streets looking for people and serve them with a summons to appear in court. The sheriff makes sure the jury is fed and comfortable, but cannot discuss or answer questions about the trial. Sheriffs deliver written questions to the justice, and the answers are given in open court. Jurors are paid $40 a day, plus lodging and meals. They can choose from among several menus, but in Yellowknife, Boston Pizza is the most popular choice.

But what's behind their decision to challenge some and not others?

Legal Aid lawyer James Brydon revealed a little of what goes through his mind during this process.

Brydon receives a list of potential jurors about two days before jury selection. He then runs through the list with his client, which includes the potential jurors name, address, and -- if possible -- their employer and occupation.

"You have to say, who do you know here who's going to be a problem for you? You don't want his worst enemy on the list. You don't want his best friend either."

Sometimes his clients don't tell him everything. "One guy didn't tell me and he put his alcohol counsellor on the jury," said Brydon. "Needless to say, he was convicted."

On jury selection day, possible jurors (their names taken from the voter's list) are called forward one by one.

The defence then calls out "accept," "challenge" or "challenge for cause." If the defence accepts the person, it's the Crown's turn to make these choices.

If either party challenges for cause, they must show they have legitimate grounds why the person shouldn't be on the jury -- for instance, if the person is a related to the accused or complainant. There is no limit on how many times each side can challenge for cause. But if the lawyers say challenge, the person is dismissed -- no questions asked. There is a cap on how many times each side can challenge, said Brydon, and the magic number depends on the charge.

If the charge carries a maximum sentence of five years, four challenges are permitted. In most other cases, 12 challenges are allowed. In murder and high treason cases, the number rises to 20.

"That's 20 times you can just say bye," said Brydon.

So who and why does he challenge?

"Realistically, you are looking for a jury that is going to be sympathetic to your way of looking at the situation," said Brydon.

But what strategy he uses depends on the case. He has tried selecting as many people as possible with scientific backgrounds -- people he believes can think clearly about what reasonable doubt means.

On the other hand, sometimes Brydon wants jurors to be very emotional about the case. "So you pick people with certain kinds of jobs."

What kind of professionals does he feel are guided by their emotions?

"Teachers to a degree, social workers, people like that. Grannies."

Some defence lawyers believe putting criminals on the jury is beneficial, said Brydon. Those with criminal records can serve on a jury as long as they've never been sentenced to more than a year in jail.

"There are some lawyers I know who just delight in having those people on the jury," he said. "I tend to shy away from it myself."

So who would he want on a jury in a sexual assault case?

If the debate at trial was going to be whether the alleged victim consented, Brydon would try and get young and middle aged women on the jury, he said.

The reason?

"They are likely to say I wouldn't do that, she was asking for it. All the things we're not supposed to ask."

Brydon would also try to keep older women off the jury. "They tend to be more judgemental of the conduct of the man, he explained. He would want young men, but not middle-aged men. "Middle aged men tend to have daughters about that age."

"In a sense, you're feeding on everyone's prejudices," he admitted. "It's maybe not the way it's supposed to be but certainly the way it is."

Still, no one ever truly knows how a person will see things. "It's a lottery," he said. "You can try and take some of the odds your way."

"There are people who claim they know what the jury is going to do. I don't believe them."

People have surprised him, he said. During a sexual assault trial in Norman Wells, the second juror he picked had been a sexual assault victim in a case where the man was acquitted.

"Had we known, we would have kept her off the jury. But we didn't know and she voted to acquit with everyone else. I don't suppose you can every second guess anything too well."

The best thing about juries is they are full of common sense, he said.

"These are people who live in the community and they are going to be forced to live with the person if they acquit or with their conscience is they convict."