It has been suggested that, when weighing the issue of complexity, regard should be had to the fact that over the years juries in criminal trials have decided some very complex and lengthy trials, some exceeding a year in length. The suggestion is that if juries are able to manage lengthy and complex criminal trials, then the same should hold true for civil cases. I do not think that the comparison to criminal cases is particularly helpful. As Reid J. pointed out in Rahmaty v. Kentner, [1982] O.J. No. 2284, 31 C.P.C. 300 (H.C.J.), the problem with this suggestion is that it ignores the fact that in criminal cases there is no room for the exercise of a judge's discretion with respect to whether a case would be better tried with or without a jury. Factors that are absent in disputes between private litigants come into play in criminal trials. Accused persons have an absolute right to be tried by a jury when charged with specified offences. As such, juries must deal with some criminal trials no matter how complex and no matter what a judge may consider to be the best way to achieve justice in the particular case. The same is not true for [page674] civil cases. While parties in civil cases have a substantive right to a jury trial if they choose, courts are given a discretion to try a case without a jury "in a proper case".
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