Last week, my co-contributor Joseph Fearon wrote an article in Reasonable Doubt arguing for a reduction in the number of civil trials decided by juries. While his position (as it relates to civil trials) is sound and raises important access to justice concerns, I feel compelled to explain why juries are an essential part of our criminal justice system. The frequency of jury trials and the reasons for and against them differ somewhat between civil and criminal law, although the rationale and fundamental importance of a jury trial is common to both.
Historians disagree on the precise origin of the jury trial, although the best-documented history of its evolution comes from Anglo Saxon England. In contrast, the reason for the implementation of juries into the court system is relatively clear: it is recognition of the fact that most judges come from a different background than the accused. This is the basis for the right to be tried by a jury of your peers. While there has been ample scholarly and legal debate over what exactly a “jury of one’s peers” is, the continued use of the jury system has rarely been called into question.
There are several differences between a criminal jury trial and a civil jury trial. The most significant of which is that a criminal jury consists of 12 jurors and their verdict must be unanimous. A civil jury consists of six people and their verdict will be accepted as long five of them agree.
Canada’s constitution grants people who are charged with a criminal offence the right to choose to have a jury trial where there is a risk of imprisonment of five years or more. In some more serious offences, such as murder, the Criminal Code requires that the trial proceed before a jury. There is no equivalent right to a jury trial in civil law. In fact, laws that govern the conduct and availability of juries in civil trials set out various circumstances in which a jury trial won’t be available. For example, a jury cannot determine many property law disputes. The reasons for this are in keeping with those mentioned in Fearon’s article, the most significant of which is that jury trials take more time and cost more money.
Perhaps the main reason why jury trials are such an important part of the criminal justice system is the difficulty in reaching a unanimous verdict. It is the jury that gives meaning to the words “beyond a reasonable doubt,” the standard of proof in a criminal case (unlike the balance of probabilities that is required in a civil case). Even if one of the 12 jurors has a reasonable doubt regarding the guilt of the accused, the jury cannot convict. Understandably, this can lead to some tense moments in the jury’s deliberation room, which has recently given rise to calls that jurors be given greater access to counseling and medical assistance after serving on a jury. It would be difficult to imagine an alternative system that provides a similar guarantee of careful consideration before permitting a conviction to be entered.
There is another rationale behind the use of the jury system, which is cited less often but remains important. Every trial, whether it is criminal or civil, involves a significant amount of time spent educating the jurors about the law so that they know how to apply it to the case in front of them. There is nothing hypothetical or theoretical about this education. Juries are expected to apply it right there and then, in order to render a decision about the fate of the parties before them. This creates a memorable and meaningful sense of involvement and understanding in the judicial system, which can’t be replicated through any other form. This isn’t merely judicial education, it is a means of demonstrating to the public that the judicial system is theirs.
One of my most memorable experiences representing a client on a trial before a jury was at the end of three days of the jury’s deliberation. Through the foreperson, the jury told the judge that they were unable to reach a verdict. This was the second time the jury had sent the message and it was clear that there was no point in asking the jurors to try harder. As our judge thanked the jurors for their service and their efforts, several of the jurors began to cry. I will never know what prompted the tears. It could have been due to the fact that the jury couldn’t agree on the verdict that those jurors wanted or it could have simply been sadness due to the fact that the jury was unable to fulfill their task. Whichever it was, the emotions they showed were a moving demonstration of the jurors’ dedication to their task.
While I agree with my co-contributor that the use of the jury system may not be sustainable in certain civil contexts, I strongly believe that it remains an essential part of our judicial system as a whole, particularly in criminal law. If you’re interested in finding out more about the jury selection process, refer to my earlier article in Reasonable Doubt on the topic. For further reading on the benefits of juries, take a look at Paul Mendelle’s article in The Guardian.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
website@nowtoronto.com | @nowtoronto
