1. Introduction
Rena Virk was 14 years old on 14 November 1997 when she was killed by a swarming group of teenagers at Victoria, B.C. Kelly Ellard and Warren Glowatski were charged with her murder. Mr. Glowatski pleaded guilty and testified on behalf of the prosecution at Ms. Ellard’s trials. Other teenagers either pleaded guilty or were found guilty of lesser charges: http://en.wikipedia.org/wiki/Reena_Virk#cite_note-15
This posting describes Canada’s unacceptable criminal jury trial system that governs Canada’s jury trial courts and prevents them from processing cases efficiently and fairly. Keep in mind a fair trial means a fair trial for the defendant as well as a fair trial for the people of Canada as represented by the prosecutor.
2. Time table
a) 14 November 1997 – date of crime.
b) 9 March 2000 – Ms. Ellard convicted by a jury.
c) 4 February 2003 – B.C. Court of Appeal orders a new trial because of faulty jury instructions and the way Ms. Ellard was questioned at the trial:
http://www.courts.gov.bc.ca/jdb-txt/ca/03/00/2003BCCA0068.htm
d) 18 July 2004 – second trial – hung jury – new trial ordered.
e) 12 April 2005 – third trial – Ms. Ellard found guilty.
f) 5 September 2008 – B.C. Court of Appeal orders a fourth trial because of faulty jury instructions:
http://www.courts.gov.bc.ca/Jdb-txt/CA/08/03/2008BCCA0341.htm
g) 21 January 2009 – B.C. prosecutors still considering whether to launch an appeal to the Supreme Court of Canada, have a fourth trial, or discontinue the prosecution.
Probably any fourth trial will occur in the spring or fall of 2009. If there is no appeal from that trial, it will have taken about nine years from the date of the first trial or twelve years from the time of the incident to complete the process.
Should the Supreme Court of Canada uphold the 5 September 2008 B.C. Court of Appeal new trial decision, add on another year or so for the commencement of the fourth trial. There can be further appeals after that trial.
3. Failure of Canada’s jury instructional system
R. v. Ellard is an embarrassing example of all that is wrong with Canada’s jury instructional system. Appellate courts expect trial judges to remember and apply perfectly tens of thousands of evidentiary rules during the course of the trial witnesses’ testimony; whether trial counsel object or not. Trial judges are supposed to do this in a blink of an eye before a witness begins answering a possible illegal question.
Similarly, at the end of a long trial, appellate courts expect trial judges to remember tens of thousands of appellate court jury instructional requirements found in hundreds of case books. They must then recite these requirements perfectly. Trial counsel usually need not object to the words in the charge and can reserve their remarks until the appeal.
Trial judges only have a few hours at the end of the trial to put together a comprehensive set of instructions that will both meet jury understanding and appellate courts’ minute scrutiny,
The process in the appellate courts is quite different. Appellate court judges require counsel to provide them with detailed written briefs outlining trial judges’ evidentiary and instructional mistakes and quoting the relevant law. At the appeal hearings they also expect counsel to present oral arguments on these issues. Trial judges seldom receive any such assistance.
Appellate courts can take up to a year or so to render their decisions. In their jury instructions, trial judges must render the rough equivalent of appellate court judgments within a few hours after the end of the trial. Sometimes those oral instructions may take many hours or even days to deliver.
Unrealistically, appellate courts assume that the jurors understood and remembered every word contained in those hours and hours of trial judges’ oral instructions.
4. Comparing jury instructional systems
As mentioned previously on this site, the Canadian political and judicial hierarchies have closed minds when it comes to examining how American Courts process their cases. As to alleged mistakes made by jury trial judges, here are some examples of the different reactions between Canadian and American appellate courts when hearing appeals from jury trial verdicts:
a) Defence trial counsel failing to object to prosecutor’s inadmissible evidence or procedures:
Canada: Usually, criticism of the trial judge and a new trial order.
America: Usually, defence counsel must object at the time and detail the nature of the objection. Even then, the error must affect a substantial right (an essential right that potentially affects the outcome of a case and is capable of legal enforcement and protection, as distinguished from a mere technicality or procedural right.).
b) Failure of counsel to provide the trial judge with proposed written jury instructions:
Canada: No duty on defence or prosecution counsel to assist the trial judge. Often a new trial order if instructions have even a slight error.
America: Duty of defence and prosecution counsel to provide trial judge with written copy of proposed instructions if asked. Appellate courts will not order a new trial based on faulty instructions unless the instructional mistake affects the defendant’s substantial right.
c) Appellate court authorized pattern jury instructions:
Canada: No authorized instructions. Trial judges must draft their own instructions from available unauthorized precedents.
America: Authorized instructions in most states approved by appellate courts. When applied by trial judges no right of appeal by defence counsel.
d) Frequency of appeals allowed and new trials ordered because of trial courts’ alleged faulty procedures, evidentiary rulings or jury instructions:
Canada: About 30% to 50%
America: Seldom – about 1% to 3% of all appeals. There must be an error affecting a substantial right.
5. Reasons for Canada’s obsolete criminal jury system
Here is a partial list of reasons why Canada’s criminal jury trial system is so prone to error and takes so long:
• Before the early 1980s, county and superior court trial judges tried about 30% to 40% of all criminal cases with a jury. Most involved minor crimes such as assaults, breaking and entering, fraud, etc.
• After several years of trying these types of cases, they graduated to trying more serious crimes such as attempted murder, manslaughter, murder, etc. Trial counsel often did the same.
• Around the mid 1980s, Ottawa with the consent of the provinces enacted legislation that had the effect of decreasing the number of criminal jury trials from around 40% in the 1980s until around 3% to 5% today. Most jury trials now are murder cases.
• Today, there are a dwindling number of trial judges and counsel who have had any experience trying less serious jury crimes.
• Because appellate courts tend to insist on something close to absolute perfection by trial judges who try murder cases, this lack of judicial and lawyer experience invites appellate court new trial orders.
• While the provinces saved money on fewer jury trials after 1980, probably they have spent most or all those savings on second and third trials arising from numerous murder trial appeals.
Bottom Line:
1. Ottawa should enact new legislation encouraging more jury trials and modernize the jury instructional process.
2. This would have the effect of training many more jury trial judges and jury trial counsel resulting in fewer costly appellate court new trial orders.
21 January 2009
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