1. Introduction
Numerous previous postings discuss the failure of Canada’s trial court jury instruction system. Historically, around 30% to 50% of jury instructions reviewed by Canadian appellate courts result in new trial orders because of instructional errors.
The infamous B.C. case of R. v. Kelly Ellard arose out of a killing that occurred on 14 November 1997. There have been three trials. One resulted in a hung jury. The two others were sent back for new trials because of faulty jury instructions. See posting of 21 January 2009
Recently, another B.C. case was sent back by the B.C. Court of Appeal for a new trial because of instructional errors: R. v. Taylor 19 Feb. 2009, paragraphs 22-24. Note that the appellate court was unable to articulate the precise words the trial judge should have used to avoid the error:
http://www.canlii.org/en/bc/bcca/doc/2009/2009bcca64/2009bcca64.html
American state trial and appellate courts suffered from similar problems until about 50-60 years ago. They then got together and invented the Pattern Jury Instructional System (PJIS). Failure rates dropped almost immediately and now run around 1% to 3%. For a discussion on the PJIS see:
http://books.google.ca/books?id=pMi9mNJ1jYUC&pg=PA206&lpg=PA206&dq=American+pattern+jury+instruction+system&source=bl&ots=urbkUCeJT2&sig=OffpVqb7KUJWjH6reb0kkaRr5AA&hl=en&ei=GOelSb_jApDUnQeGzrWbBQ&sa=X&oi=book_result&resnum=10&ct=result#PPA218,M1
Despite the obvious benefits of the PJIS, including enormous savings in taxpayers’ dollars, Canadian federal and provincial legislators, Canadian appellate courts and the Supreme Court of Canada (SCC) refuse to consider the American system. See posting of 3 August 2007
This posting like the others dated 18 Sep. 2007; 11 February 2008; 23 June 2008; 21 December 2008 and 21 February 2009 will attempt to explain why jury instruction failures continue to happen and how they can be fixed. It will also recommend a new collaborative approach to reforming Canada’s criminal justice system.
2. Brief history of jury instructions
In 1879 Sir James Stephens took all the English criminal judge made law, Parliamentary criminal law and condensed them into legal principles in the form of an organized written Code. English Parliamentarians judges and lawyers rejected the idea. They still do.
However, Canada gave the Stephen’s Code a warm reception. In 1892 Canada’s federal Parliament took the Code and revised it to fit Canadian circumstances. Since jury instructions were not then an issue, there was no mention of them in Canada’s Criminal Code. There still isn’t.
Consequently, the law on jury instructions developed helter skelter on a case by case basis using decisions of the ten provincial appellate courts and ultimately the Supreme Court of Canada (the SCC). Today, thousands of appellate and SCC decisions scattered throughout numerous series of law books now govern Canada’s jury instructional process. The SCC has responsibility for Canada’s jury instructional process. For better or worse, trial and appellate courts must follow its lead.
Before the 1970s, provincial appellate courts and the SCC infrequently ordered a new trial because of faulty jury instructions. Times and appellate court attitudes then started to change. Provincial appellate courts and the SCC now expect that every trial judge will have a perfect memory of their jury instruction decisions over the last 30 so years and apply them flawlessly.
3. Law making in a democracy
There are three branches of government in any democracy: Legislative, Executive and Judicial. The Legislative branch enacts the laws, the Executive branch administers them and the Judicial branch interprets them on a case by case basis.
The Legislative branch is supreme since its members are elected by the people. It can accept or reject any advice from the unelected Executive branch members or from judges.
With one exception, the federal Parliament can set aside or overrule decisions of the judicial branch relating to criminal law and in particular jury instructions. The exception occurs when Parliament tries to set aside a Charter right dealing with the constitutional rights of persons charged with a criminal offence. Charter rights seldom if ever play any part in jury instructions.
Parliament could legislate a PJIS if it chose to do so. For reasons unknown it does not. Hence instructional errors will continue occurring to the detriment of our criminal justice system.
4. Significant errors made by appellate courts and the SCC
Like any Canadian trial judge, appellate court judges and SCC judges make mistakes from time to time. One constitutional duty of the federal Parliament is to correct judicial mistakes so as to put the law on a more rational footing. In modern times Parliament declines to do so in many areas of the criminal law; particularly jury instructions.
Examples of mistakes made by Canadian appellate courts and the SCC in the field of criminal law that remain uncorrected by Parliament include the following:
• In 1977, the SCC mistakenly described the wrong test for committing defendants for trial after a Preliminary Hearing: Posting: 7 October 2007.
• In 1991, the SCC mistakenly failed to anticipate the costs and delays of prosecutorial disclosure and erroneously made it a constitutional right: Postings: 22 November 2007; 9 January 2008; 12 December 2008.
• In 1985, 1986, 1991 and 1997, provincial appellate courts and the SCC mistakenly defined the concept of reasonable doubt for jury instructional purposes: Posting: 4 February 2008.
• Since around the 1980s, the provincial appellate courts and the SCC mistakenly began requiring trial judges to review comprehensively the trial evidence in their jury instructions: Postings: 15 December 2007; 11 February 2008.
• Since around the 1980s provincial appellate courts and the SCC irrationally assume that each juror will understand and remember every word that trial judges utter in their three to twelve hours of oral jury instructions: Posting, 15 December 2007.
• Etc.
5. Criminal laws and their administration
Five different semi-isolated organizations have various uncoordinated areas of responsibility in supervising Canada’s criminal justice system. They are:
• Federal legislators
• Provincial executive branches in each of the ten provinces
• Supreme Court of Canada judges
• Provincial appellate court judges
• Federal and Provincial trial court judges
Federal legislators enact Canada’s criminal laws. The ten provincial government executive branches administer those laws using their provincial civil servants, police officers and court officials. Provincial legislators play no part in this day to day administration.
Trial judges and juries decide cases that provincial officials bring before them. Prosecutors or defendants may appeal decisions of trial judges or juries to their provincial appellate court. With the leave or consent of the SCC, prosecutors or defendants may then appeal decisions of their provincial appellate court judges to the SCC.
6. Communications between the players
Within this complex setup, there is little private communication between the players. Federal legislators seldom listen to trial, appeal court or SCC judges about how federal legislation could help improve the criminal justice system. SCC judges and provincial appellate court judges seldom if ever ask for input from provincial trial court judges for the same purpose.
Provincial government executive branch members seldom seek reform suggestions from provincial appellate and trial court judges.
The ten provincial executive branch members and the federal executive branch members now meet secretly about once a year to discuss criminal justice issues. They seldom if ever invite proposals from judges or lawyers on how to improve the system. Nor do they encourage any public dialogue on the subject.
Anecdotal evidence indicates these intergovernmental executive branch meetings mostly concentrate on reducing the cost to provincial taxpayers for administering the criminal justice system. E.g. getting rid of jury trials; allowing for easy release on bail; conditional sentences (no jail time), credit for time served (reduced jail time), etc.
If there is any communication between these different groups, it usually comes in the form of criticism from those at the top directed at those on the bottom – trial court judges. Presently, those at the top do not tolerate let alone encourage any public or private initiatives authored by trial judges. There lies the failure.
Bottom line:
1. Hierarchical political and judicial leaders administer Canada’s criminal justice system using the mid 1800’s management methods of speak when you are spoken to. New ideas must come from the top or they will not be considered.
2. Another reason for the many breakdowns in our criminal justice system occurs because of an 1867 constitutional mistake that divides responsibility for the system between the federal and provincial governments.
3. Provinces should have the right to both enact and administer their own general criminal laws just as the States do in every one of the 50 American and the 6 Australian States.
4. Until that happens, representatives from all five organizations with their divided responsibilities for administering Canada’s criminal justice system should meet regularly for the purpose of constantly improving the system.
5. They should commission and publish research papers and actively seek comments from all branches of the legal community and the public.
6. These reforms would help discard the present top down policy of mere tinkering and jump start real advancements in Canada’s criminal justice system.
26 February 2009
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