Jury trials in Canada: past, present and future

INTRODUCTION

In Canada, the public is given a crucial role in ensuring the proper functioning of laws in the country. One of the significant ways to help in the justice system is by becoming a part of Canada’s jury system. The history of the jury system in Canada is obscure because of its evolutionary nature. Some theorists claim that the jury system was unread because of its sacred nature and secret functioning. However, with the introduction of interdisciplinary research, the study of the jury system has been prevailing. Recently, the law reform commission of Canada has also analyzed the trials by jury. The recent years have brought a lot of clarity about the history of jury trials in Canada, which we will study in detail in this article.

Every country has majorly two types of law; one is criminal law, and the other is civil law. In Canada, the jury system has been followed in criminal as well as civil law systems.

HISTORY OF JURY TRIALS IN CANADA 

  1. Evolution Of Jury Trials In Criminal Law: The evolution of criminal trials was gradual and in slow fashion. One would be intrigued to know that the early trials in English law were conducted by physical combat. The result of the fight was proportionated to the legal judgment. With time, the use of the jury was developed, and they were given the task of providing the reports for local crimes and suspects. The jurors constituted personal knowledge about the offence committed. By the thirteenth century, gradually, trials by jury because a regular practice in serious offences. However, they were accused of judging in favour of prosecution most of the time. Further, the jury’s effectiveness was questioned due to the installation of the same people who complained about the accused as jurors. The complainants decided the guilt or innocence of the accused. With time it had to go through various reforms and modifications in the jury system. In one of the landmark judgments of Bushell’s Case in 1670, the practice of punishing jurors for granting the wrong verdict, despite the fact that in most of the political trials, they acquitted the accused. When the English Canadian colonies began to develop, the right to trial by jury was introduced under the English law in Canada. Later we see that these Canadian-English colonies came together to form one nation, i.e. Canada. For instance, when the English population started to exceed the French population, Nova Scotia recognized this right of jury trials in the 1750s. The right to jury trials could be invoked under Supreme Court trials and inferior court trials for civil and criminal matters. The types of juries introduced were coroner’s jury and grand juries. The latter was used to help in administering local government by working under magistrates. Juries were required to follow various duties. One of the duties travelling distant areas, lodging and spending under juries’ budget, trial duties. Initially, the jury system was primarily reserved to try matters of grave importance or indictable crimes. After the British North America Act, 1867, established Canada’s Dominion status, the nation recognized the right to jury trials by passing the criminal code in the parliament. Initially, the members of the jury were from the local community. They acted as sources of information in cases and took oath to produce everything they know of the case’s facts. Before the Norman Conquest, the justice was administered by the neighbours who had local knowledge about the affairs of the accused. Earlier, a member bench of 12 members was chosen randomly from the general public to analyze the facts in criminal matters. However, the jury is also used to determine the guilt or innocence of the accused. Initially, the jury’s work was considered to be of utmost importance because they were to decide the verdict unanimously. It was considered clear evidence of the people’s participation in the country’s justice system. The theorists who favoured jury trials were the ones who valued the juror’s ability to act as the conscience of the country. They believed in the jury’s ability to bring a logical quality to decision-making in the Canadian courts.
  2. Civil Law Jury Trials: This system of jury in civil trials was adopted by Canada before confederation in 1867 from England. Initially, in most of the provinces of Canada, the juries in civil trials were mandatory, especially in Ontario. The juries’ mandatory nature in civil trials was considered a safeguard against the courts’ dominion status and provided a defence against infringement of fundamental freedom. Unfortunately, jury trials have suffered a lot of criticism during its later evolution, where the jurors were accused of corruption and bribery. In 1868, the presumption that the jury would conduct the trials under civil law was altered with the Law Reform Act’s formation 1868. After the passage of this act, the trials were to be conducted by a judge unless one party calls for a jury trial. This rule was subject to certain exceptional case matters. After implementing various reforms in the jury trials, the reforms were managed to be backfired at the institution itself. Another side of the view argued that jury trials are expensive trials and consume way too much time. The most famous argument against the jury was a question on the jurors’ ability or laypeople to decide legal matters. With the famous arguments, the use of the jury was curtailed, and it did not recover from the consequences of the criticism till now. The civil trials were regularly and ordinarily used across Canada, but today they are rarely used. The prevailing law has changed this regularity and has minimized the jury’s use in trials, which we will see later in this article.

PRESENT SCENARIO OF JURY TRIALS IN CANADA

  1. “JURY” IN CRIMINAL TRIALS: Since Confederation, the procedural functions of the jury in Canada have evolved. Trials by jury have now established a new procedural law under Part XX of the criminal code. Juries are composed of laypersons selected to impartially judge the guilt or innocence of the accused on legal grounds. The Canadian law mandates that indictable offences are to be tried by a jury and a judge unless it is mentioned explicitly that certain offences may not be tried by a jury as given under section 471 of the Criminal Code. A jury is generally composed of 12 persons, ten male or female. They have to analyze the facts of the case and then evaluate whether the crown has proved the person’s guilt beyond any reasonable doubt. Section 7 of the Fair and Efficient Criminal Trials Act (S.C. 2011, c. 16) amended the criminal code to allow judges to increase the limit the number of members in the jury to 14 members. This amendment was essentially required due to the increase in the complexity of cases. The increase in jury members would ensure the easy evaluation of the facts. Also, since the jurors can withdraw from the jury trials due to bad health and other emergency circumstances, the trial jury would be less than 10 to give the actual verdict. The increase in the number of jurors would allow the verdict with proper analysis even when some jury members cannot give the verdict. The number of jurors can be increased to 13-14 to avail justice for the accused; however, only 12 jurors may deliberate to give the verdict. An accused who is being tried by a judge and a jury for an indictable offence has a right to have a preliminary inquiry. A preliminary inquiry is a process where the provincial court judge is asked to inquire about the charges and evidence of the accused’s case. He analyses whether there was sufficient evidence to warrant on which the accused is being tried. In reality, only some cases are only tried with a jury, and usually, cases are tried by a judge alone. In cases like murder, the case is automatically tried by a judge and a jury unless the defendant requests the court to try by a judge only with the attorney general’s consent. In less serious cases, the accused has to be tried by a judge only. A young person (12-18 years at the commission of the offence) has also been given a right to be tried by a judge and a jury Youth Criminal Justice Act.
  2. THE RIGHT TO BE TRIED BY A JURY AND JUDGE IN CANADA: The Constitution Act of Canada provides the right to be tried by a jury if the offence conducted has a prescribed maximum punishment of at least five years of imprisonment. The right has been given under section 11(f) of the Canadian Charter of Rights and Freedoms (Canadian Charter).
  1. Trial by a judge and a jury is a mandatory process unless accused, as well as the attorney general, agree to trial by a judge alone – S.473 of the Criminal Code: Indictable offences mentioned under section 469 of the criminal code include murder, conspiracy to commit murder, treason, intimidating Parliament or a legislature, and other offences. In trial under these offences, the accused has to be tried by a judge and a jury in superior courts unless the attorney counsel and the accused themselves agree to conduct a trial by only a judge.
  2. Trial by judge alone: Even in indictable offences, trial by judge alone in provincial court has been prescribed under section 553 of the Criminal Code. A theft of amount under $5000 or mischief committed where the property’s value was under $5000 and offences related to gambling are other offences whereby a jury trial would not be permitted even if the accused wishes to have one.
  3. Trial by judge and jury or by judge alone: In all other cases, a jury or a judge can try the matter in a superior or a provincial court with even a judge alone (section 536(2)). The majority of the criminal offences mention that the accused shall be allowed to decide which trial he wants to pursue a jury and a judge or only a judge. Furthermore, under s. 568, the Attorney General can direct the accused to try the matter by a judge and a jury if she thinks it is in the public interest.
  4. Before trial selection of jurors: Jury members are selected randomly from the local community, where the trial is to be conducted. The pre-requirement is that they should not be biased and should have the capability to render justice impartially between the accused and the state. The jury selection process in Canada is a two-tier system. The first stage is the selection of prospective jurors from a list of candidates before the trial. The process of compiling the list of candidates is different in most of the territories of Canada. It is generally done based on people who live in judicial colonies, as stated in the voters’ list. Every province of Canada has different eligibility for becoming a juror. For example, the Ontario province has their own juries act. In most Canadian provinces and territories, a person is eligible for becoming a jury member when he is 18 years of age and a Canadian citizen. The statues that specifically provide the eligibility of jurors exclude lawyers, members of parliament, police officers, and of course, judges from being jurors. Different provinces and territories of Canada provide their separate exemption laws and exclusion policy based on which they select the jurors. For example, mental hardships and physical imbalances exclude these people from being a jury member. The second stage of the selection process is the in-court selection process.
  5. In-court selection of jurors: The second stage of selection of jurors involves the in-court selection of the jury members, but before the trial begins. The governing law is the criminal code. The process starts with the presentation of a potential jury in the court. The panel number with the name and other details of every potential juror is written on separate cards and is delivered to the court clerk. The court clerk draws the card one by one after shaking the box rigorously. After drawing, the panel number and name and other details are cross-checked. The cards are drawn until the judge feels the number of jurors is sufficient to try the case. After selection, the jurors are then sworn in the court.

CHALLENGING THE MEMBERS SELECTED IN THE JURY

  1. When the judge disqualifies a jury member

S.632(a) – The criminal code vests powers with the judge to disqualify or excuse any jury member he thinks may have a personal interest in the matter to be tried.

  1. 632(b) – Relationship between a juror and the judge or any of the accused or prospective witness’s counsel may lead to disqualification of the juror.
  2. 632(c) – The juror’s personal problems may allow him to be excused from the panel.
  3. When the counsel challenges the juror

At the trial, the counsel or the attorney general can challenge any potential juror. This power is given to remove unwanted jurors in the trial and prevent those who may prove biased. The counsels can challenge the jurors in three ways:

  1. They can challenge the individual member of the jury by peremptory challenge

The defence and prosecution have limited the number of challenges they can claim to challenge any jury member. The counsels can challenge any juror before they take oath for the trial. The gravity of the crime decides the number of peremptory challenges a counsel may get.

S.634(2)(a) – if the accused is being tried for a grievous offence of murder or treason, the counsels may get each 20 attempts to challenge the jurors.

S.634(2)(b) and (c) – In other situations, they may get 4 or 12 attempts to challenge depending on the maximum penalty of the offence the accused is being tried for.

  1. 634(3) – If the accused is tried for more than one offence, the counsel shall be given the chances of the offence in which they can claim the maximum number of peremptory challenges. No cumulative offences are given.
  2. They can challenge the entire panel of the jury;
  3. 629(2) – The entire panel can be challenged. It is referred to as a challenge to the array. There are three grounds on which the jury can be challenged:
    1. partiality;
    2. fraud or misconduct on the part of sheriff;
    3. other officers by whom the panel was returned.
      • They can challenge for cause.

The counsels may challenge the jury for cause if the cause’s grounds are specified and proven with a reasonable probability. Only on six grounds, the counsel can challenge the jury for cause. They have been exhaustively mentioned in the criminal code of the country.

  • if the name of the juror does not appear on the panel.
  • if the juror is not impartial between the Queen and the accused.
  • if the juror has previously convicted for an offence for which he was found guilty and punished for the imprisonment of at least 12 months or a death sentence.
  • juror is an alien
  • he would be physically unable to perform his functions and juror duties properly.
  • the juror cannot speak the language of the accused and the official language of Canada. Since he wouldn’t be able to analyze the context properly, the juror may be challenged.

The objective of allowing to challenge the potential jury is to ensure a fair trial and impartial jury.

RENDERING VERDICT BY THE JURY 

The purpose of the modern-day jury is not limited to analyzing facts. They must give a verdict on the guilt or innocence of the accused as well. The jury has to render a unanimous decision on acquittal or conviction of the accused. If the jury’s verdict does not reach any unanimous judgment, the judge may declare a mistrial and direct a new trial. If the jury is not satisfied by the accused’s guilt, and there remains a reasonable doubt in the guilt, the jury may acquit the accused. This concept of reasonable doubt has to be logically connected to the case and without prejudice.

The processes involved regarding the civil case jurors are similar to that of the criminal jury system. However, in civil cases, most of the time, juries are not present. There is not constitutionality to the concept of a jury in civil cases. Although the civil cases also may be tried by jury as well as a judge.

Further, there are only six jurors in the panel in civil cases, and not all have to provide for a unanimous decision. Until there are five jurors to one, the mistrial has not to be declared.

FUTURE OF JURY TRIALS IN CANADA

Jury trials have been suffering from greater delays due to the pandemic situation. Most of the provinces have suspended the jury trials and are continuing with only the judge trials. Defence counsels in Canada are worried about the impact of covid-19 on the jury trials even after the condition stabilizes. They claim unless territories and provinces provide support to the jury system, its existence is at risk.

The future of jury trials is claimed to change after the pandemic is over. There are various reasons for the change; one such reason is the commencement of the trial at an online medium. The bias a partiality of any of the jury may not be predicted from a computer screen. With the evolution of the virus, people have started to raise their concerns regarding jury service. Many jurors have claimed their inability to try the matter in this social distancing era. Mark Farrant, the founder of the Canadian Juries Commission, has expressed the need to address this problem on a priority basis. He states that the jury trials should be declared an essential service to arrange adequate resources to improve the present system. With the increase in backlog cases during the pandemic, this is the need of the hour.

The pressure of analyzing so many cases would be vast and difficult to survive. There are various causes of stress disorders of the jurors during or after trials, which has also to be looked into. In addition to the significance of jury trials, he added that although jury trials are essential, its number must be restricted. With this, it is to be made sure that the jurors are safe and secured during and after trials.

There are various errors in jury trials that have to be removed if the country wants to continue providing justice with the people’s help. The most fundamental and severe error in the jury system is that it is highly time consuming and expensive. They cause double the amount and energy required in a judge trial, which is why people claim that jury trials should be banned. Another critical challenge to the existence of the jury system is the non-presence of legal persons. The claim that layman is not as efficient in deciding a legal matter is worth resolving. Further,

Some of the lawyers in Canada state that jury trials will remain an essential part of the public participation in the justice system, which would not change. However, change is necessary at this stage so that the jury system is not disregarded.

In 2018, the Report of the Standing Committee on Justice and Human Rights on improving support for jurors in Canada stated various improvement needs and suggested different essential changes that should be brought in the Canadian jury system. The first recommendation was to increase the scope of the information that is provided to the jurors. To help cope with the jurors with the horrific cases, they have to hear and decide that affect their mental health and, in some cases, serve as a cause of stress disorder. The report suggests psychological support be mandated for them. The report also suggested that there should be mental health tests for the jurors after the trial is completed. The daily allowance for a living should be increased to $120 for the jurors to better support their living.

The report consists of other various recommendations that will enhance the jury system and will provide greater participation to the people of Canada in the justice system if accepted by the parliament.