Does COVID-19 Mean the End of Jury Trials?

The COVID-19 pandemic has caused significant trial backlogs in court systems across Canada. In jurisdictions that already had backlogs, the pandemic has exacerbated the issue. Now, as the provinces and territories gradually scale back anti-COVID safety measures, the legal community is considering options to address the delays. The decisions made over the coming weeks will have a major impact on the experienced lawyers in our Canadian lawyer directory and their clients.

One of the most popular – and controversial – proposals to address the court backlogs is to eliminate or suspend jury trials. The rational is simple: not only will jury trials be difficult to organize amid social distancing measures, they also tend to take far longer than judge-only trials.

In Alberta, the Chief Justice of the Court of Queen’s Bench, Mary Moreau, said: “In these difficult times … I’m hopeful that consideration would be given by the bar to bringing down the number of jury trials we have.”

In Ontario, Attorney General Doug Downey has sought input from the legal community about removing civil juries.

“The needs of the justice sector have changed during this outbreak, and the demands on the system will continue to evolve as we begin to see the province reopening in stages,” Downy wrote in a letter. “To address these changes, we will continue to act on the guidance of public health experts, and we will continue to work together to develop new ways of conducting matters.”

The Ontario Trial Lawyers Association (OTLA) publicly agreed that “the biggest hurdle for many of the postponed and upcoming trials will be constituting juries,” but called for a temporary suspension of jury trials rather than their elimination.

Former OTLA president Steve Rastin told Canadian Lawyer Magazine that he agrees with Downey’s proposal: “I think it’s bold, I think it’s appropriate,” he said. “I think what the attorney general is doing is giving some thought to how are we going to deal with the massive backlog that’s in the system right now.”

One London, Ontario, personal injury lawyer told CTV News: “At this time, access to justice has to be paramount. That has to be the centre of the discussion, and if it is the centre of the discussion, then we can say without hesitation that the existence of civil trials is denying access to justice.”

In Windsor, Ontario, personal injury lawyer Greg Monforton issued a statement calling for the elimination of jury trials.

“Although we truly value our clients’ right to have a jury of peers decide their case, the realities of COVID-19 mean that our clients will suffer many more years of delay to get their cases to court,” the statement read, according to the CBC. “COVID-19 has closed our courts to jury trials. Eliminating juries will avoid more delay because we can immediately try cases ‘online/remotely’ before a single judge.”

Support of the elimination of jury trials is far from unanimous: the Toronto Lawyers Association (TLA) recently came out against the proposal. Its president, Brett Harrison, wrote in a letter to Downey that juries are especially important in diverse jurisdictions like Ontario.

“Against this social backdrop, civil juries provide a vast array of life experiences including different socioeconomic, racial, cultural and gender-based perspectives,” the letter read.

The TLA further noted that judge-only trials could lure legislators away from settlement opportunities, which might lead to further delays.

Other stakeholders suggested that Ontario’s court delays could be better addressed through modernization and improved funding than the elimination of jury trials.

“People keep talking about how it’s too slow and it’s an access to justice issue, but what about devoting the resources they should have done in the first place?” Toronto personal injury lawyer Michael Smitiuch told CTV News. “There should have been more resources thrown at the judicial system well before this, and I think it’s just convenient now to use the pandemic as an excuse to eliminate or get rid of juries.”

Bill Trudell, President of the Canadian Council of Criminal Defence Lawyers, told CTV News that jury trials are essential to criminal proceedings.

“I hope that there is an encouragement to restart jury trials. I hope we don’t get used to not having jury trials,” he said. “I think a lot of people might say, ‘Hey, let’s go judge alone because it’s more efficient and more expeditious and expedient,’ and that’s a terrible way of looking at it.”

Even proponents of eliminating or temporarily pausing jury trials seem to agree that juries should still play a role in certain types of cases. Greg Monforton, the Windsor lawyer, told CBC that cases involving “community values” – sexual assault, medical malpractice, false imprisonment, etc. – would still require input from members of the public.

ExperiencedLawyers.ca will continue to track this issue as the provinces move closer to reopening their court systems. In the meantime, if you require legal services, consult our Canadian lawyer directory for access to experienced representation in your region.