Civil and Criminal Jury Trials: 5 Key Differences

By Bergeron Clifford, Joseph Dart posted in Events on June 6, 2019

There are numerous small but important differences between a criminal and civil jury trial in Ontario.  This article addresses five of them.

  1. Can I get a jury trial? Entire papers can be written on the right to a jury trial.  For the purposes of this post, it is enough to point out that the right to a jury trial arises differently and is treated differently as between a criminal and civil case.  In criminal cases where the accused faces a prison sentence of five years or more, the right to trial by jury is enshrined in section 11(f) of the Charter of Rights and Freedoms and is, therefore, a constitutional one.  While this section eliminates many offences including most drinking and driving offences, most simple assaults, thefts, simple drug possession offences and even some sexual assaults, it nonetheless preserves the right to a jury in the more serious criminal cases.  In a civil case, the right to a jury trial is not a constitutional one, and either is or can be, limited in many circumstances.  Section 108 of the Courts of Justice Act prohibits juries in several types of cases including small claims court cases, cases involving many types of property disputes, cases against municipalities, and cases seeking declarations and equitable relief.  Other legislation prohibits juries in family law cases and cases against government entities.  In some provinces (Quebec, for example) juries are unavailable entirely in civil cases.  In Ontario, rule 47.02 of the Rules of Civil Procedure allows any party to a case to bring a motion to the judge for a ruling that a case is, for example, too complicated to be heard by a jury.  If the motion is successful, the case is heard and decided by the judge sitting alone.  No such statutory right to strike the jury exists in the Criminal Code of Canada.
  2. If available, how do I request a jury trial?  In a criminal case, the procedure for electing trial by jury is outlined in the Criminal Code of Canada, and particularly section 536.  Where the right to a trial by jury is available, that selection is generally the choice of only the accused person in all but a very limited number of offences where a jury trial is mandatory (such as in murder and treason cases).  In a civil case, where a jury trial is available, either party (being the plaintiff(s) or defendant(s)) can request a jury trial and it only happens if one of the parties makes such a request by filing Jury Notice with the court before the close of pleadings.  In other words, there are no cases in which a jury trial is mandatory in a civil case.
  3. Number of jurors: An interesting distinction between jury trials as between criminal and civil cases lies in the number of jurors for each.  In a criminal case, there are generally twelve jurors, while in a civil case, there are generally six.  In complex criminal cases, a judge can order that one or two alternate jurors be appointed in case one of the twelve original jurors falls ill or otherwise cannot complete the trial.  The Courts of Justice Act does not provide for alternate jurors in civil cases.  That said, in both criminal and civil cases, if a juror is unexpectedly unable to complete a case, a judge can allow a jury to proceed and decide the case with less than the full complement of jurors (so, 10 or 11 in criminal cases and 5 in civil cases) in the appropriate circumstances.
  4. Who gets to sit on the jury and can jurors be challenged? Unlike what you see in many American movies, Canadian jurors are not questioned, in either civil or criminal cases, about their backgrounds, politics, views, etc.  Rather, the ability to strike a juror is limited and generally based on very little information about the juror in question.  In criminal cases, depending on the seriousness of the case, both the prosecutor and defence counsel are entitled to a set number of peremptory challenges which they can use to strike jurors of their choice.  The number of peremptory challenges ranges from four (in less serious cases) to twenty (in first-degree murder cases, for example).  Further, in criminal cases, there is a “challenge for cause” procedure in which individual jurors, at the request of either the prosecutor or defence counsel, can be questioned on their ability to remain impartial as between the government and the accused on a particular characteristic of the case or juror (most often, the race of the accused).  In civil cases, there is no similar challenge for cause procedure and peremptory challenges are limited to four per party, no matter the size of the case.
  5. Do jury verdicts have to be unanimous? In a criminal case, the verdict, whether guilty or not-guilty, has to be unanimous as between the twelve jurors.  If the jurors cannot reach a unanimous verdict, then the jury will be discharged, a mistrial declared and a new trial scheduled.  In a civil case, the verdict need only be agreed upon by five of the six jurors.

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