On January 1, 2020, the maximum claim for simplified procedure actions (lawsuits) was increased from $100,000 to $200,000. At the same time, the use of Juries in simplified procedure was abolished, with the exception of defamation (libel and slander), malicious arrest, malicious prosecution and false imprisonment cases.
Covid-19 has presented massive challenges to Jury trials – both civil (6 Jurors) and criminal (12 Jurors). Jury trials start with Jury selection, a process requiring hundreds of Ontarians to congregate at their local Courthouse, where they often spend a day or longer in close quarters in a Jury assembly room and/or Courtrooms. The Jury trial itself requires the Jurors to spend considerable time in close quarters with one another as well as with Court staff.
Jury trials take more time and resources than Judge alone trials. That is not only due to Jury selection, but during the course of trial there are objections heard in the absence of the Jury, which may require the Jury to leave the room for the objection to be heard. The Jury must be charged (instructed) by the Judge on the law. And on a daily basis the Judge enters the Courtroom before the Jury and exits the Courtroom after, which simple takes time. Jury trials require more Court staff and more real estate both in the Courtroom and outside the Courtroom in terms of Jury rooms.
Despite these challenges, the Jury trial is a great thing. For trial counsel, a Jury trial adds a dynamic to the Courtroom that is fun – trying to persuade 6 Jurors in addition to the trial Judge. But what’s most important is that Jury trials empower and engage the public to play a crucial role in the justice system by tackling to their civic duty of acting as Jurors.
On June 5, 2020, the Ministry of the Attorney General sought input on 2 questions: first, whether civil juries should be eliminated and second, whether there are any types of lawsuits where juries should be permitted. There was no 3rd option of whether we should leave civil juries as they are, recently reduced for smaller claims under $200,000. This seems to be an indicator that the Ministry of the Attorney General may be leaning towards significantly reducing civil juries in Ontario.
Public sentiment towards civil juries tends to be along the lines of “how do I get out of Jury duty” yet the elimination of civil juries takes the power of important decision-making out of public hands and puts that in the hands of Judges. Superior Court Judges are appointed by the federal government. Superior Court Judges are expertly-trained, have great experience (10+ years in private practice) and in my experience do outstanding work. The elimination of civil juries would mean that public involvement in the justice system going forwards is in the capacity of voter as opposed to Juror.
What does this mean for democracy?
We are fortunate in Canada to have one of the world’s greatest justice systems.
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