Carvell, John T.

English

University of New Brunswick: Centre for Digital Scholarship Journals

U.N.B. LAW JOURNALThe Evolution of Civil Liberty and Equality?T rial by jury of a civil action is a raritv in our Province since the Rules of Court were changed in 1938, and it does not appear to me that this latest chapter concerning the jury system and this latest development in the evolution of civil liberty and equality should be w ithout comment.As an expression of the democratic ideals of liberty and equality, trial by jury, rather than by arbitrarily appointed officials, became the accepted mode of trying both crim inal and civil actions at a very early period in English legal history. At the tim e of the Judicature Acts, all common law actions were tried with a jury, and suits in E quity were tried bv a Judge alone. After the Acts, the English Court of Appeal ruled, that, “wherever there was, before . . . , a right to trial by a jury,such right still exists.” ( 1 ) -------This right to the trial of an action atlaw bv a jury bccame part of the law of this Province upon the inception of the laws of England, and it was preserved by the Rules of Court under our Judicature Act 1909. (2)In England this right to a jury trial was, generally speaking, unre­pealed until 1933; in that year the Administration of Justice Act provided that in a civil action the order upon the summons for directions must indicate whether the action is to be tried with a jury or w ithout a jury. T his enactm ent has been held to have placed the question regarding themode of trial w ithin the absolute discretion of the Judges. (3)-------TheNew Brunswick rules regarding the mode of trial for civil actions were repealed in 1938, and new and different provisions were substituted. (4) After providing for a right to a jury trial in actions for libel, slander, breach of promise of marriage, crim inal conversation, seduction, m ali­cious arrest, malicious prosecution and false imprisonment, the new rules direct that all other actions be tried by a Judge alone, unless the Court or a Judge directs a jury trial, because, “the questions in issue are more fit for trial by a jury than by a Judge.” These new provisions have never been interpreted bv the Court of Appeal; however members of the pro­fession embrace tHe view that the amended rules repeal any common law right to a jury trial.The lawyers of New Brunswick cheerfully accept the inferiority of juries for the trial of all issues, since, presumably as a result of their advice to their clients, there are no applications for civil jury trials. W ei l l  Jen k in s  v. Bushby (18911 60 L .J. Ch. 254, per L ind ley, L J .«2• Fftlrw eother v. Foster 11918» 46 N.B.R. 40. per W hite, J . ,  a t 60.13• Hope v. G.W .R. (19371 L .J. 563.< 4 • O rder 36. Rules 1-6.have far outdone the rest of the common law world in the m atter of the abolition of civil juries. The right to a jury trial is only slightly abridged in any other common law jurisdiction in Canada; on an appeal after a jurv trial in another Province, the Supreme Court of Canada may still malvc this observation: “A jury is an em inently proper body for the trial of a negligence action arising out of an automobile collision.” (5) In England it is certain ly still common practice to obtain a direction that a jury find the facts in issue between litigants in a civil action. The doc­kets of C ircuits Courts in New Brunswick are alone uncmcumbered by jurv trials. It may be said that in our Province we set an example for the rest of the common law world in the m atter of the simplification of the adm inistration of justice. (S im plic ity is a mark of perfection! Of course it can not be said that the process of sim plification has really culm inated vet. W h ile  we arc still burdened by the now outmoded laws of evidence (6) and not fully adjusted in every way, the abolition works a severe hard­ship on our very capable, but very overworked Judges, for Hicir task of adjudicating legal disputes approaches the impossible since they have been deprived of the assistance of juries.)The reasons advanced bv the m ajority of the members of our Bar as dem onstrating the superiority of non-jurv trials are said to become apparent even when one considers the points concerning this superiority about which there m ight be debate, and certain ly the superior fitness of a Judge alone to try actions which involve issues of law onlv or issues of fact involving the integration of complicated data is not debatable.It has been said that seven heads are better than one for weighing issues of simple fact, so that a jury would be the proper body for the trial of such issues. Even if it is adm itted that individual jurors, as opposed to an entire jury, are equally as reasonable as a Judge and equally as fit to try issues or simple fact, especially since their unfam iliarity w ith the intricacies of law insures that their deliberations on a question of fact arc not distractcd by considerations of points of law, it is said that one should realize that each additional member of a body of triers increases the chance that the body w ill err; seven persons have seven times the capacity for error of one person. It is subm itted that this fact rebuts the clever sophism, that seven heads are better than one.T he additional expense of jurv trials is the factor which must out­weigh any advantage which society m ight have derived from more general participation in the adm inistration of justice by its citizens, so as to nullify what m ight otherwise be a sufficient reason for preferring trial by jury of cases which m ight properly be delegated to juries. Of course the weight of any advantages to be realized from more general participation in the adm inistration of justice is only slight, otherwise it would not be less than the factor of the small additional expense. T he same thing, that it is outweighed by the additional expense, must be true of the possible advantage, that the form ality of jurv trials engenders an awe which acts as a detcrrant to perjured testimony by witnesses.8 U.N.B. L A W  JOURNAL<51 Telford  v. Secord; Telford  v. Nasmith 11947) 2 D.L.R. 474. (61 See the final paragraph.U.N.B. L A W  JOURNAL 9One must regard the abolition of civil juries as an important dev­elopment in the evolution of civil liberty and equality. Ever since indi­viduals first banded together, there have been disputes concerning the conflicting interests of different persons; the resolution of these disputes was alwavs a major concern of socictv. T he abolition of civil juries can only be interpreted as evidence of the fact that individuals have learned to co-opcratc to such an extent that our society is enabled to concern itself less with these conflicts between the interests of its citizcns. There was a time when laymen were sufficiently uninformed, that, except for the fact that they were an integral part of the Courts and fam iliar w ith their necessary role and the noble way in which they discharged their duty by reason of sitting 011 juries, thcv m ight not have appreciated this role and m ight even have suspected the arbitrarily appointed Judges ancl court officials of favoritism and the denial of Hie equality of all men before the Courts. I Jovvcvcr today, since the advantages of more general participation in the adm inistration of justice arc outweighed by the factor of the additional expense involved, the knowledge of the average layman has apparently increased to such an extent that, even though lie takes 110 part in the adm inistration of justicc, he is aware of the role of the Courts ancl is confident of their integrity. Consider what a fine com­plim ent this is to litigants, who arc now w illing to entrust the determ i­nation of their disputes to apparently casual treatm ent in a practically deserted courtroom or a Judge’s chambers!It is to be hoped that our lawyers, who must be credited with un­selfishly abolishing civil juries even though it results in the relegation of their art to a lower placc in the m anagem ent of our society, w ill now apply themselves to the sim plification of our procedural rules and especially to the modernization of the rules of the Law of Evidence applicable to civil trials, for inasmuch as the rules of evidence are largely a product of the jury system they are superfluous to non-jury actions.JOHN T . C A R V E LL,M oncton, N.B.McDonald, Joyal, Fogarty & MillsBarristers and Solicitors53 Q U E E N  S T . ,  O T T A W A  -  T e l e p h o n e  5-6 7 6 8SUPREME & EXCHEQUER COURT, DEPARTMENTAL AND PARLIAMENTARY AGENTS, PATENTS, TRADEMARKS, COPYRIGHTS, CORPORATION, TAXATION, CUSTOMS AND EXCISE AND GENERAL PRACTICEJ O H N  H . M C D O N A L D .  . M A R C E L  J O Y A LK E N N E T H  H .  F O G A R T Y .  J ,  T .  M U R R A Y  M I L L S .

The Evolution of Civil Liberty and Equality?

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The Evolution of Civil Liberty and Equality?

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