1. Introduction
Previous postings describe the astronomic filing fees that B.C. litigants must pay when they seek trial by a civil jury in the Supreme Court of British Columbia (SCBC). For example, a party to a civil action in B.C. who needs a 10 day trial with a civil jury must pay the government well over $6,000 in filing, hearing and jury fees.
Similar fees in other jurisdictions are far more reasonable. Here are a few comparative examples:
• Washington State: $480.00
• Oregon State: $817.00
• Ontario: $619.00
• U.S. Fed Crt.: $350.00
This posting argues that the SCBC hearing and jury fees paid by litigants to the provincial government are either, constitutionally discriminatory or are of such a magnitude that that they are beyond the authority of the government to impose.
2. System for fixing the amount of jury fees
When B.C. provincial legislators enacted the Jury Act, they delegated to the provincial executive branch (the Cabinet) authority to fix the amount of filing fees, Sheriffs’ fees; hearing fees and jury fees.
http://www.bclaws.ca/Recon/document/freeside/--%20j%20--/jury%20act%20%20rsbc%201996%20%20c.%20242/00_96242_01.xml
For a ten day civil trial, the amounts for Sheriffs’ fees, jury fees and hearing fees are:
a) Sheriff’s fees for summonsing the jury panel: $1,500
b) Fees due for eight jurors for ten days 1,600
c) Government daily hearing fees 3,640
Total $6,740
There is some question about the pre-payment of hearing fees. My understanding is that those litigants who have the right to a jury trial must pay them in advance since they are part of the “jury process.”
3. Jury fees for British Columbia criminal trials
Defendants in B.C. criminal trials who elect trial by a 12 person jury do not have to pay any fee to the Sheriff for summonsing the jury panel. Nor do they have to pay daily jury fees or hearing fees for each day of the trial.
Instead, the B.C. government pays jurors daily fees from general revenue. The amount that each juror receives for attending at a criminal and civil trial is:
(a) $20 a day for each of the first 10 days of the trial;
(b) $60 a day for the 11th to the 49th days of the trial;
(c) $100 a day for the 50th and each succeeding day of the trial.
http://www.bclaws.ca/Recon/document/freeside/--%20j%20--/jury%20act%20%20rsbc%201996%20%20c.%20242/05_regulations/10_282_95.xml
Probably, the Legislature contemplated the Cabinet would prescribe one set of jury fees for criminal cases payable by the government and another set of far more modest fees payable by the losing party in a civil action.
4. American civil trial jury fees
Research indicates that the only fee a civil litigant has to pay for a civil jury trial in most/all American States is a modest sum covering the cost of summonsing a jury panel. Fees usually are set by Local superior court rules and not by State wide rules. For example, King County Washington requires a payment of $125.00 to summons a six person civil jury panel. Why should the B.C. government charge litigants $1,500 for summonsing an eight person civil jury panel?
http://www.kingcounty.gov/courts/clerk/FeeSchedule.aspx
Daily fees for American jurors in civil cases run around $10.00 to $45.00 per day and usually are paid out of the County’s general revenue, although State governments may contribute. These fees are not a charge on the litigants who request a civil jury trial:
http://www.wsba.org/media/publications/barnews/2004/nov-04-president.htm
http://www.awcnet.org/documents/justiceinjeopardy101304.pdf
About 60% of all civil trials in America are tried with a civil jury:
http://www.ojp.usdoj.gov/bjs/civil.htm . In B.C. it is around 2%.
3. Purpose of the Canadian Charter of Rights and Freedoms
Before 1982 when Canada got its Charter, the federal Parliament and provincial legislatures were supreme. They could enact whatever legislation they desired no matter how it affected the democratic rights of Canadians. In theory the only way to change any discriminatory laws was for the public to elect different politicians who promised to repeal those laws.
Recognizing how difficult it was to accomplish change and how slow that process could be, the Charter now puts federal and provincial governments on notice that they cannot enact undemocratic laws contrary to the Charter or those laws will be declared ineffective by the courts.
Nevertheless, questionable federal and provincial legislation can survive a Charter challenge if it can be justified in a free and democratic society. This posting argues that the excessive civil jury trial fees are discriminatory and cannot be justified in any free and democratic society.
Charter law places the burden on the province of B.C. to prove that its discriminatory civil jury fee system is justified in a free and democratic society. If American courts can be used as a comparative free and democratic model, there is little doubt that the B.C. civil jury fee system is not justified.
4. Constitutional discrimination
Section 15(1) of the (the Charter carries the title of “Equality Before and Under the Law And Equal Protection and Benefit of the Law.” It states:
"Every individual is equal before and under the law and has the right to the equal protection and`benefit of the law without discrimination …"
Dictionary definitions define discrimination as an act of distinguishing between two or more entities. British Columbia’s civil jury statute unfairly discriminates between those litigants who seek a civil trial without a jury and those who request a civil trial with a jury.
Section 15 of the B.C. Jury Act, gives with one hand and takes with the other. Firstly, it says that nothing in the statute takes away the right of a party to an action to a jury trial. It then cancels that right by requiring the party who asks for the jury to pay all the fees up front before the trial starts.
Litigants who seek a trial without a jury do not have to pay a Sheriff’s fee to summons potential jurors. Nor do they have to pay up front any other fees such as hearing fees and jury fees.
Given these circumstances, it is at least arguable that British Columbia’s civil jury fee system is unconstitutional and should be set aside by Canadian courts since it offends s. 15(1) of the Charter by penalizing litigants who seek a jury trial..
5. Delegated legislation
The fees in question were not set by the B.C. Legislature. Instead, legislators delegated the fixing of those fees to the provincial Cabinet.
Some may say this gave the Cabinet carte balance to pick any dollar number they wanted. If they are right, Cabinet could set jury fees at ten or more times the present amounts and litigants would have no recourse in law.
Since B.C. legislators expressly give litigants the right to a jury trial, the Cabinet should not be able to defeat that right by imposing excessive fees. There is a presumed intent that legislators do not intend to abolish or otherwise interfere with the rights of their subjects. Failure of the Cabinet to comply with that legislative intent by setting horrific Sheriff's fees, hearing and jury fees is grounds for judicially striking down those fees. Besides the doctrine of presumed intent, the Cabinet's fees could be struck down by the courts on the grounds of bad faith.
In earlier postings I argued that all filing, hearing and jury fees should be based on the 1960 B.C. fee schedule adjusted for inflation. Alternatively, they should be founded on a basket of examples taken from other democratic jurisdictions including American ones
6. Benefits of civil jury trials
Trial by a civil jury empowers citizen jurors who hold no office and have no professional status. It helps strengthens their confidence in the judicial system. Jurors as a part time institution of government have no ambitions of their own and are therefore worthy of trust. They are free of any direct personal interest in their verdicts.
It is superior form of trial than trial by a judge without a jury. Litigants get to choose a body of persons who bring average common sense to bear upon the facts in issue. In a judge alone trial, litigants have no choice in selecting the judge. In a jury trial, the parties have the right to select their own judges. Juries have no concern about the attitude that appellate courts may have on various issues that often weigh on the minds of trial judges.
Juries are better fact finders than judges are. Jurors have to convince one another of a witness’s credibility. Judges need only convince themselves. Jury verdicts do not create precedents. Juries can decide hard cases without making bad law. Jury trials force judges and lawyers to translate complex legal jargon into words that jurors can understand.
For more on civil jury trials see: http://www.ajs.org/jc/jc_links_ncsc.asp and: http://www.abota.org/NetCommunity/Page.aspx?pid=272
Bottom line:
1. If American local Counties can pay the cost of civil juries out of general revenue, when 65% of their civil cases are jury trials, why can’t the Provincial government pay the same costs when only 2% of civil cases are jury trials.
2. At the very least there should be a modest separate scale of jury fees for civil actions as compared to criminal trials.
3. By modernizing the civil jury process, cutting the number of jurors from 8 to 6, reducing and eliminating many court fees, the B.C. government would show its commitment to a progressive and democratic civil justice system.
4. Continuing with the present system proves just the opposite.
12 March 2008
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