In a move that has stoked controversy, England and Wales are considering scrapping jury trials for all but the most serious criminal cases and some complex civil cases as well.
The proposed reform aims to reduce major court backlogs that are impeding timely access to justice.
That problem may sound familiar to Canadian readers. In Canada, court wait times range from about a year for small civil matters to upwards of five years for complex cases, according to a 2023 report by the Advocates’ Society.
In criminal cases, the accused at least has the right to a timely trial. But the deadlines for hearing criminal cases can perpetuate their own form of injustice: hundreds of criminal cases have been thrown out because the trials were not held in time.
So the question is: should Canada also consider abolishing jury trials in some cases?
Perhaps. But there are lower-hanging opportunities for reform to be tried first.
The conservative impulses in us caution against radical changes to jury trials. Such trials are one of the oldest and most foundational practices of democracies. They were used in Ancient Greece and the Roman Republic and subsequently taken up in England, which guaranteed the right to a jury trial in the Magna Carta in 1215. Canada’s own constitution lists a right to a jury trial for serious criminal cases.
Jury trials are considered fundamental for many reasons. They are a form of democratic participation; an opportunity for communities to express their values in the judicial process; a check on judicial bias and government power.
Perhaps this explains why they remain a deeply embedded part of democratic and media culture, even if they touch few lives directly. And it may help explain why England and Wales’ proposal for jury reform has touched a nerve.
For all these reasons, incremental reforms may also be more likely to be successful.
Fortunately, Ontario is already on top of this. Since 2024, the province has been quietly conducting a Civil Rules Review to identify procedural rule changes that could increase access to justice and the efficiency of the courts, and reduce complexity and costs.
One of its proposals is for more simple court matters to be heard by a single judge, rather than a panel of three judges.
In one of this week’s must-read articles, civil procedure professor Noel Semple argues persuasively for such a change.
Lawmakers ought to be asking whether the added benefit of having extra judges consider relatively minor matters exceeds the costs. Costs must be looked at expansively, taking account not only of direct costs (such as the cost of staffing more judges) but also indirect costs (such as backlogs preventing other cases from ever being heard).
In a similar vein, Semple argues for reforming civil jury rules. He does not go so far as to say civil juries should be scrapped for simple matters (although he is open to the idea). Rather, he says Ontario should introduce rules for when litigants can contest the use of juries in certain cases.
“Many jurisdictions have abolished civil jury trials and this may well be a good idea. But even if they persist, it should be possible to create a firm rule identifying the cases in which they should be present and absent,” he writes.
If this example sounds minute and trivial, that is sort of the point. Reform is not always glamorous or headline grabbing. Often, it is in the details.
The Canadian courts’ labyrinthian rules of court procedure exist to make the process as fair as possible. Now, reforms are needed to ensure the system does not collapse under its own weight.
We hope other provinces will take up reviews as Ontario has done. And if the Ontario Civil Rules Review’s final recommendations are not controversial enough to make headlines, that may just be a good thing.
Leave a comment