History of the Jury and Its Decline in Ontario
By Jane Scharf
Origins: 100% Jury Trials in Criminal Cases
Historically, criminal cases were almost entirely decided by juries. This practice dates back to Anglo-Saxon England and was solidified by the Magna Carta (1215), which established trial by jury as a protection against arbitrary rulings by the monarchy. Under British common law, jury trials became a fundamental part of criminal justice, and Canada inherited this system.
Gradual Erosion of Jury Trials
Over time, several legal and procedural changes have drastically reduced jury trials, particularly in Canada:
Summary Offences vs. Indictable Offences
Initially, all serious crimes were tried by jury.
The introduction of summary offences (less serious crimes, tried by a judge alone) significantly reduced jury trials.
The rise of hybrid offences—where the Crown decides whether to proceed summarily or by indictment—shifted even more cases away from juries.
Expansion of Summary Convictions
Legislative changes have increased the number of offences eligible for summary trial.
The sentencing threshold for summary convictions was raised, allowing penalties of up to two years less a day, meaning more cases bypass juries.
Plea Bargains and Case Management
The justice system encourages plea deals, leading many accused persons to waive their right to a jury trial in exchange for reduced sentences.
Trial Delays and Cost Factors
Jury trials are more expensive and time-consuming, leading governments to favor judge-alone trials.
Ontario Court of Justice's Role
98% of criminal cases in Ontario are heard in the Ontario Court of Justice, which does not conduct jury trials.
Since this court handles most summary and hybrid offences, only about 2% of criminal cases in Ontario go to jury trial.
Implications for Totalitarian Government Policies
The near-elimination of jury trials in Ontario marks a shift toward centralized judicial control and aligns with totalitarian governance in several ways:
Loss of Public Oversight
Jury trials allow citizens to participate in the justice system, acting as a check on judicial and prosecutorial power.
The decline in jury trials places more control in the hands of government-appointed judges, reducing community influence over justice.
Increased Efficiency at the Cost of Rights
The push to reduce jury trials is often framed as a matter of judicial efficiency.
However, efficiency often comes at the cost of fairness, as accused persons may feel pressured into judge-alone trials or plea deals.
Expansion of State Control Over Individuals
With fewer jury trials, the justice system becomes more bureaucratic and state-controlled.
Government policies that restrict rights are more easily enforced when trials are decided solely by judges.
Erosion of Legal Protections
Historically, juries could nullify unjust laws by refusing to convict.
Without juries, controversial or oppressive laws are more likely to be upheld without challenge.
Conclusion
The decline of jury trials in Ontario, from nearly 100% in the past to just 2% today, represents a fundamental shift toward centralized state power. Jury trials historically served as a public safeguard against judicial overreach and government overregulation. Their near-elimination aligns with increasing totalitarian tendencies, where legal decisions are made exclusively by state-appointed judges, reducing transparency, public oversight, and the ability of citizens to challenge unjust laws.