“Tradition … is the centripetal force that holds us together in the face of centrifugal forces wanting to pull us apart. Things like gowning or bowing to the court, or talking about a place called “Upper Canada,” may seem quaint and old-fashioned, but they give us a sense of rootedness and they guard against the human tendency to the arrogance of the here and now.” – Dean Ian Holloway

Trial by jury is a tradition that dates back to the Magna Carta. In 1215 AC, the Magna Carta stated that “No free man shall be captured, and or imprisoned…but by the lawful judgment of his peers, and or by the law of the land.”

In Legroulx v. Pitre, 2008 CanLII 4308 Justice Power declares that there is no absolute right to a jury trial in civil cases. In arriving at that conclusion, Justice Power canvasses the history of civil juries.

The civil jury was introduced in Upper Canada in 1792 and, at that time, its use was mandatory in all civil actions.  It was, of course, imported from England where it had been treated as a cornerstone of a democratic society since the Magna Carta of 1215.  The early Ontario jury system was, however, fraught with a number of practical difficulties … This led to the introduction of reforms in 1850 and following.  Criticism of the jury system continued however, particularly in relation to its cost and its inefficiency.  Thus, in 1868 the presumption that civil trials were to be heard by a jury was reversed…

Despite the Magna Carta, there is no longer an absolute right to a jury trial in a civil case in England…

“Juries in civil matters still exist only at the periphery, playing nowhere near the central role in administering justice as their counterparts in the United States.”  In concluding his paper, W.A. Bogart observed that, “… civil juries stand in marked contrast to the critical – and constitutionally entrenched – role that juries play in the administration of criminal justice.  Furthermore, there are no compelling policy reasons, or justification based on costs, that can establish the case for consigning the jury to such a small role in the administration of civil justice.”

In 1973, another report concerning the civil jury issued by the Ontario Law Reform Commission noted that motor vehicle cases constitute the majority of civil jury trials.  The Commission also observed that, in these cases, the jury was used primarily for tactical advantage, not for the preservation of the litigants’ liberties.  As a result, the Commission recommended abolishing the civil jury except in cases involving libel, slander, malicious arrest, malicious prosecution and false imprisonment.  The recommendation was rejected.  More recent data indicates a sharper increase in the use of juries in motor vehicle actions.

Anecdotal evidence suggests this trend is a consequence of the greater use of the jury by defendants whose defences are usually conducted by insurance companies and the apparent tendency of juries in Ontario to make smaller awards of damages than do judges.

Justice Power’s reference to the motive behind electing for a jury trial undermines the legitimacy of juries and speaks to an arrogance of the here and now.