We, the jury.

In the midst of the Covid-19 emergency, the courts have ground to a standstill. Civil jury trials, in particular, have been suspended indefinitely. This week, in Higashi v. Chariot, an Ontario Superior Court judge issued an order stating a civil action arising from a serious automobile accident should not be heard by a jury, because of the uncertainty of the return of civil jury trials in the Ottawa region.

This emergency takes place within the context of a debate in our province over the scrapping of jury trials in civil cases altogether. The Ontario Attorney General is studying this issue. The majority of such cases involve motor vehicle accident litigation. However, there are other cases such as libel and other cases where community standards are very much in play.

The proponents of removing civil actions from the hands of juries cite problems of delays arising from longer trials, inconvenience to the public of being called for duty, and lower awards. The first two categories of complaints are lawyer-made and judge-made problems arising from lawyers who seek to introduce inadmissible evidence (resulting in lengthy in-trial motions), and judges’ lack of experience or confidence in deciding such disputes efficiently. The third is rooted in an unfounded belief propagated by the stray opinion of a judge in Mandel v Fakhim that “jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies.”

The conceit that an appointed official with a law degree is more capable of assessing the value of injured parties’ damages than six members of the general public is the height of elitism. Moreover, the logic of it runs counter to the public policy of excluding lawyers from jury panels for the very reason that their legal expertise may interfere with the just determination of facts. As stated in item 3.2 of National Judicial Institute’s standard jury charge:

“You are the sole judges of the facts. You must decide this case only on the evidence presented to you in this courtroom.  I am the sole judge of the law, and it is your duty to accept the law as I explain it to you. You must not use your own ideas about what the law is or should be, and you must not rely on information about the law from any other source.”

The belief that jury trials are less efficient must be challenged by the U.S. experience, where they take less time than bench trials precisely because American attorneys are better trained in introducing admissible evidence, and where cases reach trial in less than a quarter of the time of civil actions in Ontario. Prior to the 1990’s a larger number of automobile accident cases were tried by juries, and the cases took less time. Jury verdicts also take less time for the parties waiting for a decision. Apart from filling out short questionnaires regarding liability (yes or no), percentage of relative fault (a percentage), and amount of damages ($$ amount), juries do not deliver reasons. In contrast, judges have six months to deliver reasons. In more complex cases, the judges use up those six months because the time and effort to write them take away from their ability to hear other trials.

Judges are also quick to point out that the democratic right to justice by one’s peers is not absolute, at least in Canada. (Although the right of judges to be judged by one’s peers is absolute, by virtue of s. 63 of the federal Judges Act.) These statements are inevitably seen from the perspective of the party seeking a jury trial. The analysis never sees the question from the perspective of the jurors, viz. randomly selected members of the public.

As a principle of democracy and anti-corruption, selection by lot is a concept as old as Athenian democracy itself. Randomized selection is now a scientific principle behind the trustworthiness of fact-finding, including the clinical trials currently underway to find a safe and effective vaccine for the Covid-19 pandemic. As skilled and thoughtful as many judges are, the mind of one is less reliable than the minds of six when it comes to this important, non-legal function of the court. Arguments based on institutional efficiency should not be allowed to take away the right of Canadian citizens, not only to be judged by peers, but also to be the “sole judges of the facts.” We must therefore shift the terms of reference of the debate. Removing juries from civil trials is not about reforming a hobbling justice system. It is about taking away a democratic franchise: our rights as citizens to be selected to decide what the facts are.

Democracies where citizens have a voice in important decisions do not fare well in crises such as the Covid-19 pandemic, because diversity of thought gets in the way of mobilizing populations. Just witness the relative experiences of China and the United States. Historically, emergencies have been used by one authoritarian regime after another to curtail democratic rights. The civil jury is very much the canary in the coal mine. (It is hard work to keep one alive.) If we extinguish its life, it will say more about us and the coal mine of public participation in Canada’s institutions than about the canary itself. Instead of seeing abolition as a quick efficiency fix, let us do everything we can to make courthouses safe places of gathering, and let us support justice, ahead of holiday travel or professional baseball games, as the most important institution to restore to normality.

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