Introduction
On 14 November 1997 Ms. Kelly Ellard murdered Ms. Reena Virk. Three trials followed. On 9 March 2000, the first trial of ended in a conviction. On 4 February 2003 the B.C. Court of Appeal (the BCCA) ordered a new trial because of faulty jury instructions. On 18 July 2004, the second trial ended in a hung jury. On 12 April 2005, the third trial ended in a conviction. On 5 September 2008, the BCCA ordered a new trial because of faulty jury instructions.
Finally, on 12 June 2009, - nine years after the first trial - the Supreme Court of Canada (the SCC) set aside the BCCA decision of 5 September 2008 and restored the jury verdict of guilty. For a history of the case, see posting dated 21 January 2009.
2. Canada’s failed jury instructional system – pattern instructions
Previous postings dated 11 February 2008, 26 February 2009, and 2 April 2009 reveal the intricate and complex nature of Canada’s jury instructional system making it prone to error. This often results in expensive new trials.
In 1892 Canada codified its criminal law. Before then, its criminal law was a mix of various English and Canadian statutes and judicial (common law) decisions. Codifying had the effect of organizing all the criminal law in one statute called a Code. Previous statute laws and decisions in conflict with the Code were no longer law.
At that time the Code did not mention anything about the jury instructional system. It still doesn’t. This left the SCC and Canada’s provincial appellate courts (the appellate courts) with the responsibility of designing a jury instructional system on a case by case basis. Literally tens of thousands of these appellate court cases are scattered about in various law reports and computer databases in a disorganized way. Some decisions are 10 to 20 pages long. Many are over 50 pages.
Appellate courts expect trial judges to remember every one of these cases in detail and include relevant words in their jury instructions. Almost always, appellate court decisions place sole responsibility for the contents of the instructions on the trial judge.
With limited time at the end of the trial to prepare appeal proof instructions, the process is prone to error. This results in about 30% to 50% appellate court new trial orders because of trial judges’ faulty instructions.
Since 1991, Canadian appellate courts, along with federal and provincial governments knew about the American pattern jury instructional system because of the published paper I wrote on the subject for the federal Department of Justice. Without any proof of a reduction in delivering justice, American models are able to cut down the number of their appellate courts’ new trial orders arising from faulty jury instructions to around 1% to 3%.
Federal and provincial governments gave the 1991 proposal “long term priority.” After 18 years, the priority time has yet to arrive. Back then, appellate court leaders suggested the recommendation be given “further study.” After 18 years they have yet to commission any such study.
A profound policy difference or mindset exists between American appellate courts and Canadian ones. American state and federal appellate courts seem to acknowledge that as part of their public duty they should strive to maintain a modern judicial system including uniform jury instructional systems that are not prone to error. To meet that public duty they either publish organized sets of jury instructions or approve instructions written by others.
Canadian appellate courts do not seem to recognize a similar pub lic duty. They wait for the federal government to act but it certainly is not in any hurry. Just think of the milllions of taxpayers' dollars waisted on new trial orders that could be used for better health care services and the like!
Bottom line:
1. If the pattern jury instructional system was in place at the first trial of Kelly Ellard ending on 9 March 2000, probably there would have been just the one trial and the one appeal ending on 4 February 2003.
2. Instead, it took more than six years with three trials ending on 12 April 2005 and three appeals ending on 12 June 2009.
3. The Canadian public, trial judges, defendants and prosecutors deserve a better system than our political and judicial hierarchies seem willing to provide.
16 June 2009
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