The Ontario government is giving the legal community 10 days to say why civil juries should be allowed to exist.
In a letter dated June 5, Attorney-General Doug Downey makes two arguments for eliminating most or all civil-jury trials from the province: that the justice system’s needs have changed during the COVID-19 outbreak; and that Ontario is "one of the last Canadian jurisdictions” to maintain a right to a jury trial for most civil matters.
“I am considering an amendment to the Courts of Justice Act to eliminate some or all civil jury trials,” he says in the letter to members of the legal community, adding that they have until June 15 to make their views known. He asks them to list any types of legal actions that they believe should still be permitted juries. Some jurisdictions in Canada, he said, reserve civil juries for “matters that engage community values and a person’s character, such as defamation, false imprisonment and malicious prosecution.”
The idea of eliminating civil juries or reducing their use is meeting opposition from the legal community, both from lawyers who tend to represent defendants such as police or insurance companies, and those who act for plaintiffs – people who file legal actions.
But it is also receiving some support from those who say juries add time and expense to the civil-justice system, which has years-long backlogs.
The short time frame and lack of any supporting data have angered much of the legal community, though.
“If the City of Toronto was contemplating changing the direction of travel on a one-way street, they would take more than 10 days,” Scott Maidment, outgoing president of the Advocates’ Society, a legal organization, said. His group received an e-mail from the Attorney-General on June 5 at 6:24 p.m., leaving just five business days to consider the matter.
“When you begin to insulate the justice system from the public, you inevitably affect its broad legitimacy.”
Jenessa Crognali, Mr. Downey’s press secretary, declined to say why the minister is allowing just 10 days for the consultation.
The historical purpose of civil juries was to ensure that outcomes reflected the “sensibility and conscience” of the community, says Toronto lawyer Will McDowell, a former assistant deputy minister of justice with the federal government, where he had responsibility for civil litigation. He said some cases deserve “a whacking big damages award,” and judges tend to be reluctant to stray from precedent.
Some issues simply should not be delegated to judges, says lawyer Rob Talach of London, whose practice focuses on sexual abuse victims. “Sexual abuse survivors definitely want the jury system to remain," he said.
“Sexual abuse is an abhorrent act which breaches the most fundamental moral standards of our society. You need society to judge those. You can’t delegate that away to a handful of individuals who generally all come from the same background, who were all raised up through the same legal career system.”
A lawyer who represents police when they are sued expressed a similar view. Even today, when police are under fire over videotaped instances of brutality, Douglas Smith of Borden Ladner Gervais in Toronto said he would support trying civil cases in which police are defendants in front of a civil jury.
“It’s a bit of a barometer. We all want to see what the community thinks of certain conduct,” he said. “That’s exquisitely important in the area of police liability right now. Whereas a judge is a human being, but she or he is highly trained and is going to apply a different standard than the six members of the community.”
Max Hufton of the Canadian Defence Lawyers, an organization of civil-law practitioners, says his province, British Columbia, has preserved civil jury trials. “I think the loss of the jury system is a loss for democracy,” he said.
Jury trials take longer than those with a judge alone, adding to the expense for taxpayers and litigants, said Laura Hillyer, president of the Ontario Trial Lawyers Association, whose members represent plaintiffs. Courts were backlogged even before the pandemic, she said, and the problem will now be even worse. (Jury trials have been suspended in Ontario for civil and criminal cases.)
Plaintiffs in civil cases are often “people with catastrophic, life-changing injuries,” she said, and “cases are taking so long to get to court now; something has got to give. COVID has shone a very bright light on this issue, but it existed well before COVID.” She said civil juries should be preserved for certain types of public-interest cases, such as sexual assault and defamation.
Efficiencies should not compromise access to justice and fairness, says Colin Stevenson, president of the Ontario Bar Association. “The bar is divided right now over whether the elimination of civil jury trials is consistent with that principle,” he said in a statement.
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