Canada's already beleaguered court system has suffered from delays and a lack of modernization for decades, but now with the new constraints imposed by coronavirus restrictions, the courts are facing an even greater obstacle. Civil juries are ill-equipped to weather social distancing, and should no longer be maintained as part of the Canadian court system.
With the courts closed for three months, thousands of civil and criminal hearings and trials have been adjourned indefinitely. When reopened, criminal trials will take precedence as accused persons have a constitutional right to a timely trial, and the courts will not want to risk serious charges being stayed because of further delays.
This will result in an unprecedented backlog for Ontario’s non-criminal civil trials. While individuals and organizations do not have a constitutional right to timely civil trials, they should be able to expect that when they have a financial dispute, an insurance claim, or have sustained a personal injury, a trial will be held within a reasonable period.
There is already a significant backlog for civil jury trials throughout the province. The week before the State of Emergency was declared in Ontario in mid-March, I appeared in court to obtain trial dates for a lengthy jury trial. The court assigned a trial date nearly two years later, in February 2022. It is not hyperbole to suggest that once the courts reopen, litigants may be waiting 3 or 4 more years for trials to proceed.
While the pandemic has finally given the impetus to Ontario’s courts to adopt technologies such as teleconferencing and Zoom hearings for certain matters, our courthouses continue to remain effectively closed for all but urgent matters. This is mainly because of their technological inability to handle cases but also because courtrooms, which constitutionally must be open to the public, are tiny and ill equipped for social distancing.
In Ontario, civil jury selection occurs in person. Prospective jurors, selected from the public at random, are given notice that they are required to attend at court on a given day. Lawyers for all parties with imminent trials on the docket also attend; a typical day of jury selection could see well over 100 prospective jurors and dozens of lawyers packed into a courtroom. Prospective jurors approach the front of the courtroom and are either excused, challenged, or accepted as jurors. The process repeats itself for hours as jury panels are formed.
The jury selection process, by design, necessitates gathering in a (confined) physical space. A prospective juror must provide their jury summons and identify themselves; it would be impossible to verify if a prospective juror is the actual person summoned if jury selection occurred via videoconference. Jurors,
once selected, must also be physically present during a trial.
It would be impossible to ensure the objectivity of the trial process if a juror appeared via teleconference, when others could be in the room, or the juror could be researching the subject matter online instead of hearing the evidence and receiving direction from the trial judge. Given the configuration of courtrooms, civil juries as presently constituted do not adapt well to an era where social distancing is mandated.
In recent decades, the procedures used in, and evidence presented at trial have become much more complex. Take a typical personal injury case arising from a motor vehicle accident. While jurors are well-equipped to decide the facts from which the case arose (Was the traffic light red? Were the roads slippery?) they are ill-equipped to make factual conclusions about medical evidence. Personal injury trials often involve thousands of pages of documentation, and Ontario law requires that the parties file medical reports written by paid experts and, in most cases, these experts are called as witnesses at trial.
Jurors are barraged with complicated and competing medical opinions and reams of medical documentation, of which they can often make little sense. The result is that disputes over what evidence can be placed before a jury, and the need to distill evidence into a digestible form, can add weeks to a trial. Those extra weeks prevent other trials and hearings from starting, adding further delay and increasing court expenses on staffing and facilities (and ultimately costs to the taxpayer) while sometimes resulting in verdicts which inadequately compensate otherwise worthy litigants, particularly in medically complex cases.
Even assuming that juries are fully capable of rendering a fair verdict in complex matters, the system itself is rife with inequities. While jury duty is mandatory in Ontario, jurors are poorly compensated for their time. For the first 10 days of trial, jurors receive no pay. Thereafter, they are paid $40.00 daily and, after 49 days, $100.00 daily. While employers must allow jurors to report for jury duty, they are under no obligation to compensate their employees.
As such, those who can least afford jury duty–minimum wage and hourly wage workers – are those who are most economically affected by it. Such jurors are often those who are unable to present a valid reason to be excused from jury duty–while many professionals and entrepreneurs, who can otherwise afford time away from work, are often excused because of the nature of their employment. Still others, particularly those in the public sector, have employment agreements which permit them to be paid fully for their jury service. The romantic notion of having a case tried before a “jury of one’s peers”–a cross-section of the community–exists only in theory and not in practice.
Happily, the Ontario government has already taken steps to modernize the justice system during the present pandemic, though it can certainly do much more. The courts are still closed, but must soon reopen to the public. Trials will, for the most part, also continue in person. Virtual jury selection is impossible, and, even assuming that courthouses can be retrofitted so that jurors can comply with social distancing requirements, the costs will be exorbitant for a province that can ill-afford it.
Instead of forcing improperly-paid citizens to sit in a courtroom for weeks to hear about others’ private disputes, other Canadian provinces have abolished civil juries. In the COVID-19 era, the imperatives of public health, equity, and saving scarce taxpayers’ dollars demand that Ontario do the same.
Ryan O'Connor is a lawyer practicing civil litigation in Toronto.