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In defence of civil jury trials | Sam Goldstein

Monday, June 29, 2020 @ 8:44 AM | By Sam Goldstein


Sam Goldstein %>
Sam Goldstein
Attorney General Doug Downey floated legislative amendments recently that would eliminate some or all civil jury trials in Ontario. Eliminating jury trials is seen as a partial solution to the problem of court backlog exacerbated by the pandemic. The AG has said that the move is part of a broader effort to modernize this province’s justice system. Ontario is one of the few provinces that still allows civil jury trials for most cases.

The deadline for public input had passed by the time I heard about it; nevertheless, I would like to say that not only do I think we should be keeping civil jury trials, we should be increasing their use.

Ontario last engaged in a comprehensive study of civil juries in 1996. The Law Reform Commission of Ontario Report on Civil Jury Trials made several findings and recommendations. One of its findings was that that jury trials were no more expensive, or more lengthy, than non-jury trials.

True, the Civil Jury Report is one year short of a quarter century ago. A lot has changed in society since then. If there is a silver lining to be found in this pandemic, it is the realization that we must modernize our court process. Downey’s background as a former Newmarket provincial court clerk, prior to becoming a lawyer, and his graduate degree in court administration, make him an excellent candidate to drag, push and cajole all stakeholders into the 21st century.

The Ministry of the Attorney General’s website defines “backlog” as the number of trial-ready cases waiting to be heard. In other words, backlog means that the demand for judges and courtrooms is greater than the supply of civil cases ready for trial, so the queue grows longer and the waiting time to be heard increases by the day.  

If the issue is demand versus supply, then the obvious answer is to hire more judges and build more courthouses. It is unfortunate that the government is adding to the backlog problem by cancelling a much needed, long-awaited and deserved new courthouse in Halton Region.

It is hard to imagine that all the excess demand for judges and courtrooms happened in the last three months when the entire judicial system was put on hold. If there is an increase in cases awaiting trial then that is the government’s doing, not a sudden increase in the litigiousness of the people of this province. In other words, at least some of the excess demand is temporary and will be resolved naturally when civil courts resume. And, if courts do open at only half-capacity due to pandemic concerns, eliminating or reducing jury trials likely will have a piddly effect on reducing backlog; and, given their importance to building social capital, why not just suspend the use of jury trials for a limited duration until the old normal returns?

Juries not only provide justice (one hopes) but are of important sociological benefit. Jury duty provides ordinary citizens an opportunity and a requirement to participate in the working of their society’s justice system. To that end, civil juries have an important educative function in civics and civic responsibility.

In Democracy in America, Alexis de Tocqueville observed that juries “instill some of the habits of the judicial mind into every citizen … teach men equity in practice by judging their neighbour … teach each individual not to shirk responsibility for his own acts  … make men pay attention to things other than their own individual selfishness [by making] all feel they have duties toward society  … [and juries] should be regarded as a free school … in which each juror learns his rights [and] comes into daily contact with his fellow Man.”

Backlog erodes the public’s confidence in the judicial system. But for me the greater crisis in society today is the loss of faith in the liberal democratic project. What better way to stimulate cross-cultural conversation, when accusations of racism plague society, than to bring people together to solve a problem? Behind closed doors the middle-class white housewife must speak to the Ethiopian immigrant, who in turn must explain himself to the second-generation Asian bank teller. All must co-operate for justice to be done.

The public space for such interactions is in peril of disappearing. We should be looking for ways to increase this space, not decrease it.

Sam Goldstein is a Toronto criminal lawyer. You can e-mail him at sam@samgoldstein.ca and follow him @Willweargloves.

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