Before 1895 civil juries were required to be unanimous (as criminal juries still are); but in that year by the new Judicature Act, 58 Victoria, c. 12, s. 112 (3), it was declared sufficient if ten jurors agreed in the verdict or in the answer to the questions. It was raised more than once but never decided whether the same ten must agree in the answers to all of the questions. This question was laid to rest by the Judicature of 1913, 3-4 George V, c. 19, s. 58 (3), which answered it authoritatively in the negative. In the case of a special jury (rara avis in terris, nigroque simillima cygno), unanimity is still required - I have seen two special juries in my thirty years' experience, and do not expect to see another. I do not know the slightest advantage they present, and it is not unlikely that "institution" will die of inanition. The jury system in the Supreme Court and the County Courts, I have now explained. A Surrogate Court is found in each county or union of counties, presided over by a Judge who (in every instance but one) is also the Judge of the County Court. This Court deals with grants of probate and administration, executors' accounts and the like. In 1793 by 33 George III, c. 8, Surrogate Courts were established in every district, but no power was given to try issues of fact with a jury. In 1855, the Act 22 Victoria, c. 93, by s. 18, gave power to the Judge of the Court to try any question of fact with a jury; and this is still the law, 10 Edward VII, c. 31, s. 28, which directs the trial to take place at the next sittings of the County Court. This is to some the expense of making a special call for a jury. The jurors in all these Courts are of the traditional number of twelve. The lowest Court of all is the Division Court which is the poor man's court. This is presided over by a County Court Judge who tries practically all the cases without a jury. The origin of the Division Court is to be found in the Court for small debts provided for in the Act of 1792, 32 George III, c. 6, and called the Court of Requests. This was presided over by two or more Justices of the Peace till 1833, when by the Act 3 William IV, c. 1, it was enacted that Commissioners should be appointed as Judges by the Governor. In 1841 the Act 4-5 Victoria, c. 3, provided that the Acts should be called Division Courts and be presided over by the Judge of the District Court (the District Courts became County Courts in 1849, 12 Victoria, c. 78, s. 3). The same Act, 4-5 Victoria, c. 3, by sec. 29, gave either party the right where the claim exceeded £2.10.0 ($10.00) to require a jury on paying the proper fees in that behalf, but in all other cases the Judge remained the final and only authority. In 1845, the Act 8 Victoria, c. 37, by sec. 6, made it necessary that the jury should be unanimous. The law remains the same except that to entitle to a jury the claim must now be over $30 unless in tort or replevin when the amount must be over $20. In the Division Court also, even if the parties have not demanded trial by jury, the Judge may have any fact or facts controverted in the cause tried by a jury. This provision was introduced in 1853 by the Statute 16 Victoria, c. 177, s. II, and has been in force continuously ever since. In the Division Court the jury is composed of five persons; in all other Courts of twelve. The number of cases tried in the Division Court with a jury is very small indeed, almost negligible. In the Division Court in Toronto last year were tried 2,853 cases without a jury, and one with a jury. In the Surrogate Court at Toronto, i. e., the Surrogate Court of the County of York, there never has been a case tried with a jury, and extremely few in the Province. (I know of only two in my thirty years' experience.) There were six cases tried in Toronto without a jury in 1913. In the County Court at Toronto there came on for trial at the jury sittings 67 cases, of these the jury notice was struck out in 13, leaving 54 actually tried with a jury. Including those in which the jury notice was thus struck out there were 238 tried without a jury, i. e., in 67 cases a jury was asked for by one party or the other, while in 225 both parties desired the trial to be by the Judge without a jury. I may add that of these 292 cases, 40 were appealed. In the Supreme Court in Toronto in 1913, 71 cases came on for trial at the jury sittings, in 2 the jury notice was struck out and 69 were tried with a jury. One hundred and ninety-three were tried without a jury. Most of the cases in which a jury is permitted are for damages against railways, street railways, automobiles, etc., and especially in cases of injury to workmen. If actions by workmen against their employers be taken from the jurisdiction of the Courts as is suggested, the jury cases will be very largely cut down. The number of cases in which a jury is asked for is not increasing but rather the reverse, and there is no desire on the part of the people to take away from the Judges the power of dispensing with a jury. So far, I have been speaking of civil cases. I shall now add something as to criminal cases. The old common law rules as to trial by the Quarter Sessions and Courts of Oyer and Terminer long remained in but it became cumbrous. In 1834 by the Act 4 William IV, c. 4, power was given to a Justice of the Peace to try cases of assault and battery, not accompanied with attempts to commit felony, also malicious injury to property (not felonious), and disturbing religious worship, but an appeal was given to any one so convicted to the Quarter Sessions and the appeal was before a jury. This it will be seen was an interference with the traditional right of trial by jury in every criminal case. The procedure was found advantageous, and from time to time power was given to Justices, one or two, to try other offences. I do not intend here to give a history of evolution but simply to state the law as it at present stands. By the British North America Act of 1867, 30-31 Victoria, c. 3, s. 91 (27), the Dominion was given jurisdiction in "the Criminal Law, except the legislation of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters." Notwithstanding this the Province has the power to make the violation of any of its enactments a crime; and to enable municipal corporations to make by-laws and to make violation of such by-laws a crime, these crimes are tried by Justices of the Peace without a jury. But in these cases the word crime is used in a broad sense. In crime proper, the Dominion has full and exclusive jurisdiction, and the law of crime has been codified by the Dominion Parliament. It is now to be found in the Revised Statutes of Canada (1906), c. 146, with a few amendments. Crimes are divided into indictable offences and offences not indictable. The latter are tried without a jury, the former in most cases may be tried without a jury if the accused prefers. Non-indictable offences are as follows (I add the trial tribunal): Sec. 83. Resisting a warrant for searching for a deserter. Sec. 104. Two Justices of the Peace. Sending challenge to fight a prize fight. Sec. 105. Fighting a prize fight. One Justice of the Peace. Sec. 106. Being present at a prize fight. One Justice of the Peace. Sec. 107. Leaving Canada to engage in a prize fight. One Justice of the Peace. Sec. 116. Carrying offensive weapons so as to cause terror. Two Justices of the Peace. Sec. 118. Carrying pistols, air-guns, etc. One Justice of the Peace. Sec. 119. Selling pistols, etc., to minors under 16. Sec. 119. (2). Selling pistols, air-guns without keeping record. One Justice of the Peace. Sec. 120. Having pistols, etc., on person when arrested. Two Justices of the Peace. Sec. 121. Having pistols on person with intent to do harm. Two Justices of the Peace. Pointing firearm or air-gun at anyone. Two Justices of the Peace. Carrying bowie knife, dirk, etc. 2 |