A Trying Question: The Jury in Nineteenth-Century Canada (review)

Trial by jury, traditionally lauded throughout the common law world as one of the bulwarks of liberty, continues to loom large in the public imagination. Yet in our own time, jury trials are rare events. In Canada, by the late twentieth century, use of the civil jury had declined markedly and the majority of criminal cases were tried by judge alone. Juries have ‘largely been extinguished’ (216).

This twentieth-century decline has long roots, and A Trying Question explores its nineteenth-century origins. Focusing on Nova Scotia and Upper Canada from the 1820s through the 1880s, R. Blake Brown reveals both nineteenth-century criticisms of the institution of the jury and the way in which responses to those criticisms led to a contraction of its role. Both jurisdictions had inherited jury systems from England. In the 1820s, those systems were integral to political governance as well as the administration of civil and criminal justice. By the 1880s, the use of juries in resolving disputes had diminished, and responsibilities once allotted to grand jurors had been transferred to elected politicians.

The decline in the role of the jury is by no means a uniquely Canadian phenomenon. In attempting to explain it, significant commonalities can be identified across the Anglo-American world, most notably a shift in legal thought, which increasingly privileged professionalism. The rise of legal formalism, which characterized the law as a set of scientific rules and judges as rendering impartial decisions based solely on those rules, resulted in a new and widespread distrust of lay participation in the administration of justice. Changes in political culture have also been cited: as governments became increasingly representative of the people, juries were no longer needed to protect the citizen from the state. Brown distinguishes his own approach to the issue of jury decline as attempting to establish the interrelationships among a number of ‘seemingly disparate’ contributing factors. His account also emphasizes the views of jurors themselves and considers the uses made of juries in criminal courts, civil cases, and local government, since ‘developments in one context often shaped the use of juries in another’ (6).

In Brown’s view, four factors contributed to the decline of juries in nineteenth-century Nova Scotia and Upper Canada: ‘the practical difficulties of employing juries; . . . the rise of the movement for responsible government; . . . nineteenth-century efforts at state formation; and . . . the growing hegemony of liberal values’ (6–7). The jury may have been ‘a cherished cornerstone of the British constitution,’ but such a view was rarely expressed by jurors themselves. Instead, it was ‘a bothersome duty’ (41), given the challenges posed by colonial geography and infrastructure. English jury ideology was arguably stronger in Upper Canada, especially among the elite, but colonists in both jurisdictions found jury service inconvenient. Allegations of jury packing for political purposes undermined public faith in the ability of the jury to defend the citizen from the state, and as power was increasingly handed over to democratically elected assemblies, the spectre of government tyranny was at any rate receding. Grand juries gradually came to be seen as ‘inherently undemocratic and irresponsible bodies that could frustrate the popular will’ (219), while petit juries, representing ‘the force of community values’ (220), could not easily be reconciled with the new emphasis placed on the individual by liberalism.

A Trying Question, as Brown is quick to emphasize, is an exercise in institutional history rather than an examination of the day-to-day business of juries. It is not, however, a narrow history told purely from the perspective of legal professionals, but instead grounds legal change in social and political history as well. One of this study’s strengths is Brown’s careful attention to historical context. The extent of jury decline on both sides of the Atlantic requires that we consider and incorporate explanations that span jurisdictions, as well as local variants. The impact in particular of liberalism and the desire to professionalize the administration...