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Calls to eliminate civil juries have quieted down recently. In-person jury trials have resumed. However, we have likely not seen the last of efforts to abolish civil juries. These efforts arise at various times, for various reasons, and from various quarters in the legal profession and elsewhere.
Some argue that jury trials are unduly long and expensive. Others question the ability of juries to hear complex cases. Still others argue that juries are biased. Not only are these arguments are largely unfounded, but the civil jury system offers many benefits for Ontario’s justice system, as will be discussed below.
Human beings are fallible, and come with their own biases, prejudices and preconceptions. This maxim applies equally to everyone, including judges and jurors. Although both judges and jurors are duty bound to put such biases aside and remain impartial in their decision-making, there is no guarantee they will not succumb to bias, whether consciously or unconsciously, with the result that there is always risk that the trier of fact will bring personal prejudices to the judicial decision-making process.
A judge sitting alone is left unchecked in bringing his or her bias to the decision-making process. While I am confident that most of our judiciary strive to avoid this, even the most conscientious judge may bring unconscious bias to the process. The only limitation to this form of bias is the ability to craft a decision that appears fair and that will withstand the scrutiny of appeal.
Juries, however, have an inherent check against such risk, since they are made up of a group of people rather than one individual. This check arises from the simple fact that, as a group (and often a diverse group), the members of a jury must confront each other with their views of the case before them, and they must decide as a group, with at least 5 out of 6 jurors agreeing on each question of fact. Thus individual biases and prejudices will rarely remain unchallenged, as jurors must engage in a battle of perspectives and compromises in the jury room before they can come to a consensus.
Civil juries present the only opportunity for ordinary citizens to participate directly in judicial decision-making. Such participation is essential for two reasons. One, it instills a sense of civic engagement and civic pride among the public. While many may bemoan the prospect of being called for jury duty and the inconveniences (and even hardship) that may be associated with serving on a jury, my experience with juries has taught me that the citizens who ultimately end up on a jury take their task very seriously once they are empanelled. Far from observing discontent among empanelled jurors, they tend to engage themselves wholeheartedly in the process.
Two, such public participation in the judicial system is necessary as it is the only means by which community values are represented in judicial decisions. We must be careful that the decisions of our courts do not depart too drastically from the values of our communities, which could lead to a general disconnect between our courts and the communities they purport to serve. This concern is no less relevant in the civil context as it is in the criminal context. By inviting 6 representative members of the community to decide civil cases, we ensure a relative connection and consistency between our courts and the conscience of the community, which in turn instills public trust in our courts.
Civil juries ensure a level of diversity in judicial decision-making that is not possible when a case is decided by one judge sitting alone. As a group, rather than a solitary individual, a jury brings an inherent diversity to our courtrooms. Civil juries bring six perspectives to bear on a case rather than one.
Furthermore, juries are constituted of people from all walks of life with varied educational backgrounds, varied professional backgrounds, varied income levels, and a diversity of races and ages. Without juries, our civil cases would be left to be decided by judges, who are universally high-income, civil servants aged 35 and up with the same educational and professional background. Thus civil juries bring a diversity of perspective to the judicial decision-making process in Ontario that would otherwise be absent.
Members of a civil jury panel who are acquainted with counsel are immediately excluded from serving as jurors. This is due to the risk that the impartiality of a trier of fact may be compromised if he or she has a relationship with counsel. However, given that judges are drawn from the same profession as counsel, no such exclusion would be practicable if applied to judges, since relationships are all to common between the bar and the bench. Thus the risk of compromised impartiality is permitted to exist in a civil trial before a judge alone. This is not to say that judges cannot put their relationship with lawyers aside, but jurors, on the other hand, having no prior experiences with counsel, are better positioned to remain impartial.
Jury verdicts are very difficult to successfully appeal. The Court of Appeal gives greater deference to a jury verdict than a decision made by a judge, requiring that the jury verdict be “perverse.” The result is that the vast majority of jury verdicts are not appealed.
The same cannot be said of decisions rendered by judges, where the success rate on appeal is considerably higher, thus increasing the likelihood of appeal of a judge-alone decision. Civil juries reduce the risk of a swell of appeals and costly appellate litigation, as parties who are unsuccessful at trial will be more inclined to appeal their decision of a judge-alone decision than a jury decision, given the greater odds of success. Far from saving court time and resources, eliminating juries might only transfer the burden from trial courts to the Court of Appeal.
Many critics of civil juries complain that juries have difficulty comprehending complex medical evidence. Aside from there being no evidence to support this assertion, the simple answer to this criticism is that a judge is no more a medical expert than a juror. There is no reason to believe that a judge, whose education and background is in law, is any more qualified in understanding complex medical evidence (or any complex non-legal facts for that matter) than an electrician, nurse or salesman who may be serving on a jury.
In fact, a jury has an advantage in understanding complex evidence compared with a judge sitting alone. Again, this stems from the fact that a jury is a group. It is trite, but no less true, that six brains are better than one. Personally, I am continually impressed by the ability of juries to arrive at a just verdict despite being presented with complex evidence.
Another common criticism of civil jury trials is that they consume excessive judicial resources due to their length. It is true that jury trials tend to run longer than those without a jury. However, much of this could be avoided by a more economical presentation of the evidence, something that both counsel and the judiciary can work toward.
Given the importance of civil juries and the advantages they bring to our judicial system, far from being a burden to our civil justice system, juries are a shining light and should remain an integral part of our civil litigation process.
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