The right of a judge to discard jury upheld

From Tuesday's Globe and Mail

Judges must continue to have the right to eject juries when the evidence in a civil trial appears too complicated, an Ontario Superior Court judge ruled yesterday.

In a novel challenge to a 55-year-old rule that gives a judge discretion to jettison a jury, Mr. Justice Denis Power said that judges have the experience and intellect to know when a jury is not up to snuff.

"Judges, on a daily basis, are required to deal with difficult legal and factual issues and possess learning and expertise in doing so - learning and expertise that is not possessed by the ordinary juror," Judge Power said.

"Surely, it cannot be argued that a judge does not possess knowledge, skill and experience superior to the ordinary juror.

"To conclude otherwise, it seems to me, is to negate the fact that judges are people who are skilled and experienced in deciding cases. Quite simply, deciding cases is their business," Judge Power said in his decision.

The rule - a curious anomaly in a justice system that otherwise makes a fetish of praising the wisdom of jurors - was challenged by the defendants in a lawsuit after Judge Power decided to send a jury home and try the complex case on his own.

Lawyer Todd McCarthy made the motion on behalf of Eric Pitre and Diane LaBrecque, who were being sued for nearly $4-million by Daniel Legroulx.

The plaintiff was rendered paraplegic in 2000, when a car in which he was a passenger - driven by Mr. Pitre - was in a serious accident.

Out of concern that the bedrock notion of judicial discretion was being threatened, the Advocates Society and the Ontario Trial Lawyers Association won legal standing to oppose the application.

Allan Rouben, a lawyer for the OTLA, said yesterday that, had the ruling gone the other way, it "would have thrown into doubt so much of our legal system where judges are given wide discretion."

Mr. McCarthy argued during the motion that it is unconscionable to remove the right to a jury, "based on some vague and arbitrary notion of what constitutes complex evidence."

However, Judge Power asserted the judges can tell when a case is beyond the ability of a jury to adjudicate.

"In my opinion, there are situations where a judge can, indeed, know, without being a mind-reader and without having to question jurors," he said.


Our commentary in the Globe and Mail

You (Ottawa Mens, from Ottawa, Canada) wrote: Justice Denis Power's brilliant legal ability is only exceeded by his conceited arrogance and contempt for anyone who utters anything that does not agree with his preformed opinion and conclusion. Sure, Judges MAY be have a better ability to understand the facts in a complicated matter but the problem is, Justice Denis Power is a CLASSIC EXAMPLE of WHY he should not be allowed to supplant himself to a jury. Justice Denis Power has a habitual habit of not reading the pleadings. Justice Denis Power suffers from “court rage” and what the legal profession call “judge-it is” that is a polite way of saying that he really hates being a judge and should return to private practice. Justice Denis Power makes Political decisions rather than legal decisions which is why Juries of 12 average ordinary people can make a more equitable decision than a professional abuser drunk on absolute power. Back in 2001, Denis Power did not like a judge ordering an expedited trial of custody in favour of a litigant who had previously been charged with the criminal defamation of a judge. Denis Power hit the father with a restraining order banishing him from Kingston simply to “end the litigation” and, act as an appellate judge when he could not. To use Denis Power’s own words “I can’t do anything about the order for an expedited trial of custody but I will issue a restraining order” when the evidence of threats and violence was the fact that the mother was charged with 5 counts of assaulting the father. According to Justice Denis Power the assault charges against the mother “constituted” evidence of harassment by the father. Justice Denis Power is an embarrassment to the legal profession. If Justice Denis Power was ever subject to a trial by Jury he would be removed from the bench. Now, interestingly, Justice Denis Power also uses costs orders and orders striking pleadings to “end litigation”.


Posted 12/02/08 at 10:58 PM EST