CRIMINAL LAW – KELLY ELLARD - CANADA’S BANKRUPT JURY INSTRUCTIONAL SYSTEM

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.

CRIMINAL JURY TRIALS-VETTING JURORS’ CRIMINAL RECORDS-ONTARIO POLICE-JUROR INFORMATION SHEET

1. Introduction

   A posting of 3 June 2009 discusses the practice of some Ontario prosecutors obtaining pre-trial information about potential jurors through its police investigators. Their investigations revealed criminal records and alleged character flaws of many on the jury list. The main complaint about this practice was the failure of the prosecutors to share the information with the defence before the jury empanelling process began.
   A new revelation appeared in the 10 June 2009 edition of the National Post. It suggests the practice has been used in Windsor and Simcoe Counties. Apparently, prosecutors in these two counties ignored a government directive forbidding the practice. 
   This posting tries to bring together confusing constitutional and criminal procedural laws surrounding the process and recommend a fix.

CRIMINAL JURY TRIALS-JUROR INFORMATION SHEETS - CHALLENGES FOR CAUSE- ONTARIO PROSECUTORS’ SECRETS

1. Introduction

   Both sides in a criminal or civil trial naturally want to know details about any biases that prospective jurors might have if chosen to decide their dispute. Parties should be able to discover these qualities in open court during the course of empanelling the jury.
   A previous posting dated 24 May 2009 discussed the lack of a B.C. challenge for cause procedure in civil jury trials. That deficiency seems to be the same across Canada. 
   This posting concerns the criminal jury trial process. To level the playing field, Canadian prosecutors and defendants should have the right to question potential jurors under the guidance of the trial judge.

CRIMINAL JURY TRIALS AND APPEALS – ROBERT PICKTON

Perfect justice, in the form of flawless courtroom procedures
 and perfect judges, juries, and lawyers, is impossible to attain.

        M. Flemming
        Author
        Price of Perfect Justice

1. Introduction

   The appeal from Robert Pickton’s second degree murder conviction began in the British Columbia Court of Appeal (BCCA) at Vancouver on Monday 30 March 2009. It is supposed to last nine days.

  Following are the timelines leading up to the appeal and a discussion on the important legal issues described in the media.

CANADA'S CRIMINAL JUSTICE SYSTEM – PRODUCTIVITY

1. Introduction

   Canadian economists tell us that the worth of our Canadian dollar usually hovers around 20% less than the U.S. dollar. They say this is because Canadians are 20% less productive than Americans.
   When it comes to Canada’s superior court criminal justice system it is probably 40% to 60% less productive than similar American courts.  We should be ashamed.

CRIMINAL JURY TRIALS-JURY INSTRUCTIONS-ENGLAND AND WALES

Introduction

   Many previous postings dealt with the Canadian system of criminal jury trial instructions. For the most part, they compared Canada’s system with that of the 50 American states.
   Just recently, I received information from a knowledgeable judge concerning the jury instructional system of England and Wales. They ignore the Canadian system and track features similar to those in the American states.
   This posting will compare these features in summary form.

CRIMINAL LAW – KELLY ELLARD – JURY INSTRUCTIONS

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.

CRIMINAL JURY TRIALS – RE-INSTRUCTING JURORS – NEW TRIAL ORDERS

We can't solve problems by using

the same kind of thinking we used when we created them

Albert Einstein

1. Introduction

   A recent decision of the B.C. Court of Appeal titled R. v. Chahal and Dillon illustrates the practical and legal difficulties that trial judges often face when they must answer questions from jurors during their deliberations:
http://www.courts.gov.bc.ca/Jdb-txt/CA/08/05/2008BCCA0529.htm
   Until Canada adopts the Pattern Jury Instructional system along with its associated rules, Canadian criminal jury trials will remain a plaything for those who seek academic perfection in every word a trial judge utters to a jury.

CRIMINAL LAW – JURY INSTRUCTIONS – REVIEWING THE EVIDENCE

1. Introduction

  R. v. Daley is a recent decision of the Supreme Court of Canada (the SCC) on this topic. Unfortunately, it represents a weakness in scholarship and lacks understanding of the heavy burden that appellate court judges place on trial judges in criminal jury trials.

CRIMINAL LAW - REASONABLE DOUBT

1. Introduction

  The famous author of Wigmore, Evidence in Trial at Common Law had this to say about defining the words proof beyond a reasonable doubt:
“ … when anything more than a simple caution and a brief definition is given, the matter tends to become one of mere words and the actual effect upon the jury, instead of being enlightenment, is likely to be rather confusion, or at least a continued incomprehension.”
  This posting discusses the way that Canadian appellate courts have ignored the words of Professor Wigmore. Instead, they have drafted their own definitions making the words beyond the understanding of jurors. Probably they have sent back hundreds and hundreds of cases for new trials because they found the trial judges misdirected the jury by failing to use their words when dealing with reasonable doubt.