Civil juries play key role in system

Brian McDaniel
Times Colonist


Lawyers and judges who call for the abolition of juries in motor-vehicle personal injury cases should be careful what they ask for.

A jury of one’s peers is one of the foundation pillars of our system of justice. It ensures that justice will be meted out by ordinary members of the community — not by appointed elites.

The principal argument used in support of the abolition of civil juries is that litigation is too complex for them to understand.

Hogwash. If it is complicated, it is because lawyers and judges make it complicated.

There is nothing particularly challenging about deciding who caused a car crash, what injuries were suffered and what compensation should be awarded to the injured victim. This is all that juries are required to decide in ICBC cases.

It is also suggested that the existence of monopoly automobile insurance in British Columbia makes it difficult for injured people to recover reasonable compensation. The argument presumes that juries will favour their own economic self-interest over that of the plaintiff.

Should we abandon civil juries because almost all members of a jury will have experienced trauma? Of course not. This argument ignores the fact that juries, when properly instructed on the law, almost always rise to the occasion and do the right thing. On those rare occasions when it occurs, juror misconduct can be rectified by the trial judge or by a court of appeal.

Jurors, like judges, should not park their common sense and experience at the doorstep of the courtroom, whether that experience is as a consumer of automobile insurance or as a victim of trauma.

It was not that long ago that a relatively complex personal injury case could be tried before a judge or a jury in five days. Now, because of the double parade of experts (one line for the plaintiff and one line for the defendant), a similar case could take 25 days. Many in the legal profession and the judiciary lament this development.

Juries are valuable where the state of the law offends a common sense of justice. Justice is distinct from law. Law is a formal set of rules that governs conduct in a civil society. Justice is a product of the application of the law and society’s sense of what is right.

Justice is the more important of the two concepts. The jury system is one of the checks and balances that we have to ensure that justice is done.

The elimination of civil juries may lead to a very slippery slope. The delivery of justice might become the exclusive domain of elites.

As long as those elites are part of an independent judiciary, there is still some hope.

However, the slippery slope can lead to the withdrawal of decision-making power from an independent judiciary and placing it with an appointed bureaucracy.

The Worker’s Compensation system in this province is a classic example of what could happen. There are no judges and few lawyers in that forum. Why is it that, when given a choice, most litigants prefer to seek compensation from the courts rather than the board?

A provincial experiment with an Expropriation Compensation Board for cases involving the compulsory taking of property by government from citizens was fortunately short-lived.

It highlighted the pitfalls of placing decision-making power with a "specialized tribunal of experts." This board was dissolved three years ago when authority in expropriation cases was returned to the courts.

The poignant warnings of Justice Mary Newbury of the B.C. Court of Appeal in the Victoria case of MacPherson vs. Czaban bear repeating:

"The problems of expense and length of trials and accessibility to justice will require structural change. Unless something like this happens … I suspect the right to have a jury of one’s peers in a civil trial will become a thing of the past."

Even more importantly, the use of the trial process itself will become a luxury available to only the government and the very rich. In the long run, that is not, in my view, the road to justice or fairness."

Lawyer, judges and litigants should heed this warning.

Brian McDaniel is a lawyer in Duncan.

© Times Colonist (Victoria) 2009

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