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Jury problems solved: Reductio ad absurdum | Marcel Strigberger

Friday, February 26, 2021 @ 2:32 PM | By Marcel Strigberger

Marcel Strigberger %>
Marcel Strigberger
I’ll bet you think this is a good time for a quote from Charles Dickens. Here it is. The opening lines from A Tale of Two Cities speak volumes today.

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, the courts were conducting jury trials, the courts were not conducting jury trials ...”

Well maybe Dickens didn’t include the part about the jury trials. But he as may well have. The system is topsy-turvy as jury trials these days are prohibitive, devouring the court’s limited resources, creating much longer and complicated trials. I have a solution.

We all know back in the year 1215 the Magna Carta noted that the king was not above the law and that folks had the right to be judged by a jury of their peers. (At least something like that if you can understand Middle English.) However, nowhere does it say a criminal trial jury must be composed of 12 jurors. I say considerable time would be saved if we cut it down to nine. That’s a whopping 25 per cent off. And after all, even the Supreme Court of Canada bench needs only nine panel participants. Surely nine would be good enough for the lower courts.  And maybe with the monetary savings, we could even spring for some of those Supreme Court scarlet robes for the jurors. This would certainly add incentive for those otherwise reluctant to do jury duty. Win-win?

Hold it. We can do better. Civil jury panels number six. If criminal juries follow suit that should save even more time and resources. Fifty per cent off.  Who needs the other six? The Magna Carta probably reads something like, “Beware, too many jurors spoil not only the broth.” Or likely, “ye brothe.”

Wait a minute. The Court of Appeal works just fine with a quorum of three. If it’s good enough for the province’s highest court, it’s good enough for the juniors. That’s 75 per cent savings now. And if you think about it further, usually one judge writes the reasons and does all the work. Barring a dissent, the other two just sit there. You never know what they’re thinking about. Last night’s Leafs’ game? Tonight’s supper? Next visit to Costco? Who knows? All they have to do after the one colleague drone is done is say, “I agree.”

Surely if it works for the Court of Appeal, a jury of one should work just dandy. Now we’re talking an economy of 11/12. (Don’t ask me the percentage. You work it out)

And how do we cut more resource corners? Glad you asked. Much time is lost with the jury having to step out of the courtroom for a voir dire. The judge then listens to what the issue is about and decides whether or not the jury should hear this possibly verboten evidence. I think we can dispense with voir dires. It should be obvious to anybody where this is going when a police officer testifying and about to introduce a confession, says something like, “I asked the accused what he was doing with that machete …”

Even if the juror were a Martian, he may just get some idea why the judge is exiling him on a time out. I note the Perseverance Rover landed on Mars recently and I have no information that it picked up any chatter like, “Hey, why do you earthlings have voir dires?”

Then we have the further issue of protecting the juror from getting infected with COVID-19. The system can save on Plexiglas, masks and sanitizer by allowing the juror to make an executive decision and pass the juror torch over to the judge. As a token of appreciation, offer him as a souvenir one of those scarlet robes.

We would then have the jury functions rolled into the judge. What you ask, about that right to be tried by your peers? No problem. After all, judges follow hockey, eat supper, visit Costco. Can it get more peery than that?

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit Follow him @MarcelsHumour.

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