PHOTO: People line up for jury selection in Saint-Jérôme, Que., on Dec. 24, 2015. Canadian courts that don't have enough jurors for a trial can summon random people from public to serve on the jury, thanks to an archaic procedure on the books since the 1800s. (Thomas Daigle/CBC)
Earlier this month, 50 Calgarians were summoned from a mall’s food court, at lunch time, and told to go at once to the nearby Calgary Courts Centre to participate in jury selection.
This was because the court realized the jury pool wasn’t big enough for an upcoming trial — too many prospective jurors had been exempted, according to a prosecutor who was at court.
So a justice issued orders to find more.
The procedure, known as “talesman,” was imported in the 1800s from England — and can be invoked by a court anywhere in Canada as a last resort to fill spots on a jury.
English sheriffs “could simply go and … say, ‘Come with me. You’re now going to be a juror,'” said James C. Oldham, professor emeritus of law and legal history at Georgetown University.
Those jurors were known as “talesmen.”
Prospective jurors in Canada are typically selected from voter or health registration lists, and receive a summons in the mail.
Those who fail to show up can be fined or jailed, though the penalties vary between provinces and territories and are often left to a judge’s discretion.
A talesman summons carries the same weight, though legal experts say the procedure is rarely used today. Some told CBC News they weren’t even aware of it, or didn’t know enough to comment.
But it’s been invoked at least once a year in Canada since 2018, according to information provided to CBC News by provinces and territories.
In September 2021, prospective jurors were picked at random in public in Steinbach, Man.; one of six times in the past 15 years that a Manitoba court has invoked the talesman procedure.
It was last used in Saskatchewan in 2018 and Yukon in 2019, and by Newfoundland and Labrador in 2020, say officials.
In 2016, 21 people were summonsed from a grocery store and gas stations for a trial in the Northwest Territories.
Ontario has used the procedure at least five times since 2012. A spokesperson for the province’s Ministry of the Attorney General did not respond to specific questions about when or where.
A spokesperson said its use in Nunavut is not “extraordinary” but did not provide further detail.
P.E.I. last used the talesman procedure in 2009. Officials at New Brunswick’s Department of Justice and Public Safety said they don’t keep records about its use but confirmed a sheriff handed out summonses at a mall in Dieppe for a court matter in Moncton “some time ago.”
B.C. and Quebec also do not keep such records, and Nova Scotia has no record of it ever being used, officials said.
International experts in jury selection say they are surprised the talesman procedure is still in such common use in Canada.
“It’s a breakdown in the normal system,” said John Baker, professor emeritus in English legal history at Cambridge University.
“One ought to have some sort of cover ratio to cope with people claiming exemptions of various kinds, but it may just be that more and more people are now being released [from duty] and it’s becoming more difficult to ensure that there’s a jury.”
That was the case in Salisbury, England, in 2016, when court staff went out to find a 12th juror for a sexual assault trial, after two people in the jury pool of 14 said they knew someone involved in the case, and another prospective juror fell ill.
It was “extremely rare” for U.K. courts to invoke the procedure, a spokesperson for the U.K. Ministry of Justice said, used “only as a last resort given that it is highly inconvenient for the persons summoned unexpectedly.”
New Zealand abolished the talesman procedure in 1981, while it still remains in rare use in Australia.
In the United States, a mistrial would be declared if there were insufficient jurors, Oldham said.
In Canada, pandemic shutdowns caused major disruptions for courts, especially jury trials. Now, as courts rush to clear the backlog of cases, lawyers warn that jury pools could become strained, especially in smaller towns and cities where the defendant may be well-known in the community.
“We’re going to have cases where we don’t have enough jurors, and we might have these conflicts — like a juror ends up knowing something about the case or being connected, so we have to replace them and we don’t have enough,” said Maya Shukairy, a criminal defence lawyer based in Ottawa.
Officials in most provinces and territories say they are confident there’s an adequate jury pool for upcoming trials, but did not rule out invoking the talesman procedure if they ran low in the future.
As for whether you can refuse the summons, lawyers advise that it’s best not to try.
“A plain reading of [the Criminal Code] would suggest that if you tell the sheriff, ‘Forget it, I’m not coming’ or ‘I don’t believe you,’ you could be dragged in against your will,” said Brian Hurley, a criminal defence lawyer in Edmonton, where the talesman procedure was last used in 2020.
“You would be legally required to follow the sheriff, just like you’d be legally required to follow your regular jury summons.”
Shukairy points out that being called for jury duty — whether by a summons in the mail, or a sheriff in a mall — doesn’t automatically mean you’ll end up serving.
People can be excused because of the trial’s subject matter, or even their vacation plans, for instance.
“If you have a legitimate justification and you can show hardship that you really can’t [serve] because you have some very specific personal circumstances that won’t allow you to be there, you can explain that.”
– With files from Jade Markus
Laura McQuillan is an online journalist with CBC News in Toronto. She covers general news, social issues and science and has a special interest in finding unexpected answers to unusual questions. Laura previously reported from New Zealand and Brazil. You can reach her at email@example.com