CRIMINAL LAW – DISCLOSURE – R. v. BASI, et al – PROVINCIAL TAXPAYERS’ BURDEN

1. Introduction

   An article written by Mr. Les Leyne of Canwest Publishing on 19 May 2009, reveals once more how Canada’s criminal law disclosure system unnecessarily cost provincial taxpayers millions of dollars and create huge delays in administering criminal justice.

   Canada’s 1867 Constitution divides the responsibility for legislating and administering the criminal law between the federal government in Ottawa and the ten provinces. Ottawa legislates and provincial taxpayers in each province pay the costs of administering Ottawa’s legislation. 

   This posting argues that each province should have the constitutional right to both legislate and administer its own criminal laws. This is what happens in all the 50 U.S. states and the six Australian states. If Canada did the same, the many federal legislative criminal law deficiencies that now exist would disappear. That would include the excessive costs arising from Canada’s uncodified disclosure rules.

CRIMINAL LAW – PRE-TRIAL DISCLOSURE RULES – PROSECUTORS AND DEFENDANTS

1. Introduction

   Recent media reports state that “reducing the burden of disclosure rules is near the top of the B.C. government’s anti crime agenda.” However, I could not find any suggested disclosure/discovery rules recommended by the B.C. government to the federal government.

CRIMINAL LAW-GANG VIOLENCE-CONSTITUTIONAL CHANGE

1. Introduction

   A feature article in Maclean’s magazine of 16 March 2009 highlights how illegal gang and drug activity is a serious crisis in B.C., Alberta, Saskatchewan and Manitoba.
   To help solve the problem, B.C., Alberta and Saskatchewan Premiers plan to travel to Ottawa and lobby the federal government for three changes in the federal Criminal Code.
   This posting argues that the Premiers are wasting their time by attacking the symptoms while ignoring the disease. The symptoms are many. They include expensive long trials, an antiquated jury system, overcharging by prosecutors, untrained defence counsel, inadequate legal aid compensation, etc.
   The disease caused by these symptoms is the Constitution. It divides up responsibility for the criminal justice system between the federal government and the provinces leaving each side to blame one another for its many failures.

CRIMINAL JUSTICE – MODERNIZING THE SYSTEM

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

CRIMINAL LAW – GANG ACTIVITIES – WAR ON DRUGS

1. Introduction

   The Metro-Vancouver area of B.C. currently is experiencing an outbreak of murders involving hand guns and semi-automatic weapons. Innocent people are getting killed in the crossfire. Police speculate that the violence arises from turf wars between gangs who traffic in illegal mind altering drugs.
http://www.edmontonsun.com/News/Canada/2009/02/09/8316111-sun.html
http://www.timescolonist.com/news/Gang+warfare+family+conflict+raged+2008/1146444/story.html
   To combat these gang fights, politicians asked police to bring together adjoining city, municipal, and regional police forces into one Task Force. So far no one person yet is in charge.
   This posting argues that while the Task Force is a step in the right direction, it only may attack the consequences of gang fights without dealing with their causes. Those causes are the distribution and sale of mind altering illegal drugs. What we need is a Singapore/South East Asia type solution without capital punishment.
http://en.wikipedia.org/wiki/Criminal_law_of_Singapore
http://goseasia.about.com/od/travelplanning/a/seasia_drugs.htm

2. Why gangs fight

   Gangs fight because fortunes can be made selling and distributing illegal drugs. Arguably, the larger the territory that each gang controls, the more money it makes. Gangland drug traffickers probably pay no income taxes on their earnings. If caught now, vague, lenient federal sentencing legislation and provincial appellate court decisions control trial judges’ sentences. Often these sentences result in penalties that many consider lenient.
   Governments tend to ignore the issue’s enormity since gangs and traffickers mostly operate in the shadows of low income neighbourhoods where these overlooked people have little political clout.

3. Today’s artificial war on drugs

   Canadian politicians and others often speak of the “war on drugs.” To win any war, victors must commit themselves to applying massive and overwhelming force against their enemy. Half way measures won’t do. They usually result in defeat.
   So far, Canada’s war on drugs consists only of light skirmishes. Illegal drug activity keeps increasing.  Reducing substantially consumption of illegal drugs will result in fewer if any gang fights and fewer if any deaths or injuries to innocent bystanders.

4. Legalizing drugs

   Since politicians show little interest in committing Canada to becoming a drug free nation, frustrated citizens search for some other solution. One of these is “legalizing” drugs. Those who advocate this approach rarely publish how it might be done. It would be a cure that is worse than today’s sickness.
   Some say drugs could be sold out of government stores much like government liquor stores. Would these stores be located in up scale neigbourhoods, in lower income areas, in shopping malls or everywhere? How many hours would they be open? Could young children purchase drugs there? Would frenzied drug addicts rob and steal from those who frequent these stores? Would government stores advertise end of the week specials? Could each drug taker purchase any amount?
   Would private illegal drug dealers still offer competitive after hour services such as home delivery? Would they undercut the prices in government stores? Would they provide more potent ingredients than the government is willing to supply? Would Canada become a nation of illegal drug users who sit around on street curbs nodding off? Will the nation become just like the notorious Vancouver downtown east side where almost anything goes?
   With the right to consume as many drugs as they can afford, what will addicts do for money if they lose their jobs because of their addiction? Will they steal and rob just the way they do today? Will this enhance the reputation of Canada in the eyes of other nations? What will happen to Canada’s economy?
   Some nations attract sleazy visitors who go there to molest children. Will Canada become the nation of choice for out of country drug addicts who will come here to take advantage of our legal drug laws?
Will a Canadian passport raise alarm bells at every other nation’s port of entry because of our legalized drug laws? Will those other nations automatically route every Canadian through baggage inspections and investigations?
   Those who propose legalizing drugs carry the burden of proving that their solution will result in a more drug free nation, healthier citizens and less crime. From this brief analysis, it seems that burden cannot be met. We will just be exchanging one set of problems for many others in a desperate hope of finding an easy way out. There isn’t one.
   We already have the legalization of two other mind altering drugs: alcohol and tobacco. Their over consumption brings misery to themselves and many others. Why legalize dozens of more intoxicating drugs that will increase this misery?

5. A real war on drugs

  Police say that around 75% of all crime is drug related. Get rid of illegal drug use and we then will have far less crime. Emergency hospital rooms full of overdosed addicts will become a thing of the past. Welfare payments will decrease since addicts will either be in jail or have broken their habits and gone back to work. Insurance costs on automobiles and other private property should fall, along with the decline in drug addicts.
   Lower crime rates means less taxpayers’ money will be needed for police officers, prisons, lawyers and judges. More taxpayers’ money then will be available for schools, hospitals and other necessary public facilities. Life will be much better and far easier for most Canadians. These are the ultimate goals that a war on drugs should strive to achieve.

6. A new sentencing regime

   The only way to rid Canada of the intolerable situation arising from drug addiction and drug traffickers is to get them off the street for lengthy periods of time. While incarcerated, they are not wasting away their lives with hourly or daily shots of illegal drugs bought from the proceeds of crime. Nor will traffickers be shooting at one another and killing members of the public.
   Treatment should be available for drug addicts even though it has no proven track record of significant long term success.
   For traffickers and importers, sentencing penalties must be severe. While in prison they are not harming themselves and others. Here are my recommendations:  
For illegal possession of a small amount of drugs for personal use:
• First offence: completion of a drug treatment program or two years in jail.
• Second offence: Two years in jail.
• Third and subsequent offences: Four years in jail.
For street traffickers:
• First offence: Ten years in jail
• Second and subsequent offences: Twenty years in jail.
For importers and those who provide drugs to street traffickers
• Life imprisonment 
   After about five to ten years, drug traffickers will get the message that Canada is a very unfriendly place in which to do business. Rates of incarceration then should decline resulting in fewer new jail cells.

7. Bail and sentencing conditions

   Arrest and sentencing must have a bight to it or else the war on drugs will be meaningless. The present bail provisions and sentencing regime is a good part of the problem. It is not part of the solution. Besides the length of sentences, here are four recommendations that are needed to win a war on drugs. 
• No bail pending trial.
• No credit for time spent waiting for trial.
• No parole.
• Life imprisonment will mean prison for the rest of the inmates’ natural lives.

Bottom line:
1. It may be necessary for Parliament to employ the constitutional notwithstanding clause with respect to bail for addicts and traffickers since bail is a constitutional right.
2. Ridding Canada of illegal drugs will make us a model for other nations to follow.
3. With no more illegal trafficking there will be no more drug gang wars.
4. Since Canada will become a safer and more crime free nation, it will attract more tourists more businesses and more jobs.
22 February 2009

CRIMINAL JUSTICE REFORMS – A SUMMARY

1. Introduction

   Now seems a good time to summarize most of the many criminal justice reforms recommended in previous postings and adding one or two more. Using the following capsulated form, visitors may better understand the basis for these recommendations. Eventually, this may cause the political and judicial hierarchies to take action.
   I will add links to most postings if visitors wish a more thorough understanding of the recommended reforms. For those who want to check the Criminal Code, here is the link to that federal statute:
http://laws.justice.gc.ca/en/showdoc/cs/C-46///en?page=1
   Those who may want to examine Canada’s Charter of Rights here is the link to that site:
http://laws.justice.gc.ca/en/charter/
   Here goes!

CRIMINAL LAW – DOUBLE JEOPARDY

1. Introduction

   Double jeopardy means a defendant found not guilty in a criminal trial cannot be tried again for the same offence. That is the essence of the concept in America but not in Canada. 
   It happens because of different constitutional arrangements.

2. Canada's Constitution

   Once a Canadian judge or jury acquits a defendant by returning a verdict of not guilty, defendants may still face a second trial for committing the same offence. Prosecutors can appeal the verdict.
   Appellate courts can later determine the trial judge made an error in law. If so, s. 11 (1) (h) of our Charter of Rights and Freedoms then allows prosecutors to recharge defendants with the same offence.
   On the second trial, the verdict may be the same: not guilty. Theoretically, prosecutors can appeal this second verdict and ask for a new trial because of trial court error. That can happen again and again following subsequent verdicts of not guilty.

3. American Constitution

  The Fifth Amendment to the American Constitution prevents defendants from being put on trial more than once for the same offence. A verdict of not guilty in the first trial ends the process because prosecutors cannot appeal such a verdict.

  However, there are situations where defendants may be found not guilty in state courts and later found guilty in the federal court for exactly the same crime. The 1991 Los Angeles Rodney King affair is one example: http://en.wikipedia.org/wiki/Rodney_King

4. Benefits of the American Fifth Amendment

  Because American prosecutors have no right of appeal from a verdict of not guilty, they must prepare their cases far better than Canadian prosecutors. Canadian prosecutors often can rescue a poorly presented case at trial by way of an appellate court new trial order. All the appeal court must find is a slight error made by the trial judge.
  Similar errors made by American trial judges would not suffice to salvage the prosecution’s case on any appeal to an American appellate court. I will discuss these differences in future postings under the title of “Appellate Court Standards of Review.”

Bottom Line:
1. Canada’s Constitution needs amending so that a verdict of not guilty at the trial level prevents any appeal from that verdict.
15 January 2009

CRIMINAL LAW – TRIAL JUDGES' REASONS – APPELLATE COURT REVIEW

"And in troth if Judges should set down the reasons and causes of their Judgments within every record, that immense labor should withdraw them from the very necessary services of the commonweath, and their Records should grow to be elephantini libri of infinite length and in time opinion lose somewhat of their present authority and reverence...."

Sir Edward Coke

Adam Islip, London 1602

 

1. Introduction

   On 2 October 2008, the Supreme Court of Canada (SCC) wrote a perplexing academic style judgment titled: R. v. R.E.M. It radically changes the nature and quality of trial judges’ reasons for judgment in criminal cases: http://scc.lexum.umontreal.ca/en/2008/2008scc51/2008scc51.html
   On 28 November 2008 the B.C. Court of Appeal applied R.E.M. in a case titled R. v. Sadler:
 http://www.courts.gov.bc.ca/Jdb-txt/CA/08/04/2008BCCA0491.htm
   Appellate courts now have the right to order a new trial “if the deficiencies in a (trial judge’s) reasons prevents meaningful review of the correctness of the decision.”
   This posting argues the test is so imprecise that almost always appeal courts will find errors in trial judges’ reasons if they choose to do so. Also, it will delay justice substantially while trial judges spend untold hours off the bench writing judgments in order to meet the fuzzy demands of appellate courts.

CRIMINAL LAW- DISCLOSURE – R. v. Basi – Virk

1. Introduction

   Previous postings on prosecutorial disclosure dated 22 November 2007 and 9 January 2008 discussed this subject. They tried to show how the 1991 decision of the Supreme Court of Canada (SCC) in a case called R. v. Stinchcombe was wrongly decided. This posting expands upon the earlier ones as a result of the serious delays in the titled case arising out of disclosure.

CRIMINAL LAW – CANADA’S PAROLE SYSTEMS

1. Introduction

   In 2007, the Salvation Army estimated there were more than 200,000 offenders who entered federal or provincial jails. On an average day, 34,000 are incarcerated and 100,000 are not since they are either on probation or paroled.
http://www.salvationarmy.ca/2007/01/25/lives-restored/
   Finding out what really goes on in Canada’s federal and provincial parole systems is not easy. For this and other reasons I will deal mainly with offenders who receive sentences of two or more years in federal prisons. Others more knowledgeable on this subject may feel free to correct me.