SENTENCING – CREDIT FOR TIME SERVED REVISITED

 

In determining the sentence to be imposed on a person

convicted of an offence, a court may take into account

any time spent in custody.

Criminal Code of Canada, s. 719(3)

1. Introduction

  Giving offenders a sentencing credit for time served before trial has attracted a good deal of public and media attention. Many commentators blame trial judges for allowing offenders this credit. However, the requirement to do so is set out in many appellate court decisions that trial judges are duty bound to follow.

2. History

   The double time credit first arose in Toronto apparently because of "deplorable conditions" in Toronto’s pre-trial custody facilities. They were then and may still be "desperately overcrowded and rife with violence and disease." However, that does not seem to be the case in similar facilities outside of Toronto nor in any other Canadian province.

   B.C., provincial jail pre-trial conditions are essentially the same as conditions for prisoners already sentenced. There have not been and still aren’t any condemnations of B.C. provincial jails similar to those levelled at Toronto’s pre-trial facilities.

   Nonetheless, Canadian appellate courts decided that offenders who served time waiting for trial in every provincial jail were entitled to at least a double time credit unless prosecutors proved otherwise.

   Offenders gradually caught on to the advantages of the appellate courts’ double credit by not applying for bail "in order to rack up as much pre-trial (custody) time as possible." Here is the way it often works.

   If offenders waiting trial realize they will probably receive a 4 year sentence if convicted, they will drag out the wait as long as possible for 2 years by seeking adjournments, bringing on motions for disclosure, delaying the completion of preliminary hearings, etc. Once 2 years pass they will then plead guilty.

   Assuming they receive a sentence of 4 years, they will then get the credit of double the 2 years of wait off their four year sentence and walk out the jailhouse doors.

3. Federal government amendments to s. 719(3)

   Within the last 12 months or so, the federal government persuaded the House of Commons to approve amendments to section s. 719(3) by restricting the amount of the credit to the actual time the offender spent in pre-trial custody. The Bill now languishes in the Senate.

   One provision is that trial judges may allow a credit on a 1.5 to one ratio providing they give reasons. Very few Provincial Court trial judges who do over 95% of criminal offences have the time or the administrative support to write these lengthy reasons as Parliamentarians should know. That will not stop appeals that they should have given the 1.5 credit.

   Lost in the debate is the reason why offenders serve time in jail pending trial. Generally this happens for three reasons. First they never applied for bail. Second, they probably would have been denied bail because they are a flight risk and might not turn up for their trial. Or third, if released on bail they might interfere with prosecution witnesses.

   It is hard to understand why offenders should get a sentencing benefit because they failed to apply for bail or it were refused because of their bad character traits.

4. Interpreting s, 719(3)

   A plain reading of the above section indicates that trial judges "may", not "must" take into account any time an offender spent in custody. For the most part Canadian appellate courts have decided that "may" usually means "must."

   If trial judges do not give the credit they must provide reasons that meet the standard of appellate court review. Appellate courts easily can find trial judges’ reasons failed to reach that standard. Besides, trial judges often sentence 12 or more offenders a day in a busy Provincial Court. They just don’t have the time or the administrative support to write these reasons.

   Prosecutors rarely object to judges giving a sentencing credit for time served because they too rarely have the time and resources to prepare a case against the discount that will eventually satisfy their provincial appellate court.

5. Credit for time served in other jurisdictions

   An internet search on the subject covering the U.K., America federal and state courts and Australia states courts indicates that most have provisions for giving offenders credit for time served. But it seems to be used sparingly and not automatically. Under the American court system, when legislators give trial judges a discretion, appellate courts will not overturn that discretion if it is inside the boundaries set by the legislators. Australia appears to be the same.

  But in Canada, even though trial judges exercise their discretion within the boundaries set by legislators, appellate courts will intervene and substitute their discretion because "the trial judge did not act judicially." Sentencing is a prime example.

6. Parliamentary due diligence

   Due diligence is a relatively new term used for a number of concepts involving either the performance of an investigation of a business or person, or the performance of an act with a certain standard of care.

   In this day and age, the act of drafting laws requires due diligence with a high standard of care. To meet that standard of care Parliamentarians should have posted papers on line describing attendances and interviews with frontline provincial defence and prosecuting counsel, provincial trial and appellate court judges, provincial prison guards, etc. from all ten provinces. They should avoid relying on any high ranking officials such as federal and provincial Cabinet Ministers and Attorney Generals. Usually, those politicians are just briefed by their own officials who usually want to put the best spin on their operations.

   Due diligence is an onerous obligation since the Constitution mistakenly restricts Ottawa to just enacting Canada’s criminal laws and leaves to the provinces the far more difficult job of making those laws work in practice. Provincial civil servants are not responsible to federal law makers. And, there are no federal civil servants in provincial courthouses that federal law makers can call upon to get information on how its legislation works in practice. Consequently, federal legislators more or less "wing it" in the vain hope their legislation will be practical. Often it is not. Credit for time served is a good example.

   In other words, the way that Ottawa goes about amending the criminal law in isolation falls far short of any due diligence standard.

Bottom line:

1. Because our Constitution mistakenly gives the legislative or theoretical side of the criminal law to the federal government and reserves the administrative or practical side for the provinces, Ottawa cannot be expected to know much about how its criminal legislation is administered in each province and by the courts of those provinces.

2. If the Constitution gave the provinces authority to enact and administer their own criminal law as happens in the 6 Australian states and the 50 American states each province could decide whether to give or not give credit for time served and if so for how long.

3. Besides the necessity for Constitutional change with respect to criminal law, a Sentencing Guideline System would solve the problem of credit for time served and the courts would have no involvement.

3 October 2009

CRIMINAL LAW – SENTENCING – MINIMUM AND MAXIMUM SENTENCES

 

1. Introduction

   Canada’s federal Parliament may set mandatory minimum and increase maximum sentences for the crimes or offences it creates. Conflicts occur when mandatory minimum sentences are found to be unconstitutional by the Supreme Court of Canada (SCC) and increased maximum sentences clash with other sentencing principles.

   This posting tries to illustrate the nature of Canada’s highly technical and contradictory sentencing system. Literally, appellate courts have written millions of words and hundreds of thousands of pages trying to rationalize sentence under a confusing and often contradictory system. Trial judges resign themselves in trying to meet the vague standards set by the appellate courts and at the same time satisfying public demand.

2. Mandatory minimum sentences

   Parliament sometimes fixes mandatory minimum sentences when there is an outbreak of certain crimes that it wishes to deter. Judges cannot sentence below that minimum.

   In a 1987 decision called R. v. Smith, the SCC considered the legality of an 8 year sentence for importing illegal narcotics into Canada. The quantity involved was 7.5 oz. of 85% to 90% of pure cocaine that the defendant brought back from Bolivia. At the time, Parliament fixed a mandatory minimum of 7 years for this offence.

   The SCC found the Parliamentary 7 year minimum was so excessive as to outrage public decency. It held the minimum should be declared unconstitutional because it infringed the defendant’s s. 12 Charter right to be free of "cruel and unusual punishment." The court returned the case to the BCCA to fix an appropriate sentence.

   Black’s Law Dictionary defines cruel and unusual punishment as "Punishment that is tortuous, degrading, inhuman, grossly disproportionate to the crime in question, or otherwise shocking to the moral sense of the community."

  Had Mr. Smith eluded Canadian customs officials, he could have diluted the almost pure cocaine into many smaller packages for street sale. Police now estimate that 75% of all crime is drug related. My police sources tell me that the 7 oz of cocaine probably would be diluted into 70 to 140 packages for street sale. Given these facts, arguably an 8 year sentence today for a similar offence would not be grossly disproportionate to his crime or otherwise shocking to the moral sense of the community.

   Today, the statutory maximum for such importation is 10 years. There is no mandatory minimum. Sentences now range from 2 to 10 years depending upon the quantity of drugs and their addictive character.

  The fallout from the 1987 SCC decision seems to have dampened Parliament’s enthusiasm for setting minimum sentences for other crimes because the SCC might declare them unconstitutional.

4. American law on sentences amounting to "cruel and unusual punishment

   The Eighth Amendment to the U.S. Constitution prohibits sentences that amount to cruel and unusual punishment. See:

http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution#Punishments_specifically_allowed

   A 1972 decision of the U.S. Supreme Court (UCSC) called Furham v. Georgia set four principles for determining whether a sentence was cruel and unusual. They are:

 A severe punishment that is obviously inflicted in a wholly arbitrary fashion

 A punishment must not by its severity be degrading to human dignity," especially torture.

 A severe punishment that is clearly and totally rejected throughout society.

 A severe punishment that is patently unnecessary.

   When it comes to drug possession, in 1991 the USSC allowed a mandatory sentence of life imprisonment for the offender’s possession of 650 grams of cocaine. Applying Canada’s 1987 Smith decision to the American test makes it at least arguable that Mr. Smith’s sentence of 8 years for importing 7.5 oz. of almost pure cocaine was not cruel and unusual punishment.

4. Maximum sentences

   Each crime in Canada’s Criminal Code sets a maximum sentence for offenders who commit the offence. Very few ever receive the maximum. For example, the sentence for breaking and entering a dwelling house (B&E/; home invasion) is life imprisonment. Appellate courts have approved a few sentences of 11 to 13 years. Mostly they restrain trial judges from imposing sentences of no more than 7 years.

   Sometimes Parliament raises the maximum length of a sentence for a particular crime from say 5 years to 10 years. It does so because it believes the previous maximum was so low that sentences did not sufficiently deter offenders from committing the crime.

   When sentencing under the new 10 year maximum regime, how do trial judges fix a reasonable sentencing figure? The Criminal Code says that "sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." It would seem to follow that when trial judges sentence offenders convicted under the new 10 year maximum regime, they must impose a sentence "similar to" those given under the previous 5 year maximum regime.

   Raising the maximum sentence to double the number of years does not raise sentences by the same factor. Perhaps I overlooked sections squirreled away in the Criminal Code rationalizing these conflicts. If not, increasing maximum sentences will have little effect on actual sentences.

Bottom line:

1. Canada’s Constitution mistakenly divides responsibility for the criminal law between the federal and provincial governments. Ottawa enacts the legislation and the provinces administer its provisions. Ottawa has no insider knowledge as to how its criminal laws work in practice because provincial administrators are not responsible to federal legislators.

2.  An interim measure is to establish a federal Sentencing Guideline System controlled by federal legislators under a Commission they establish. The long term measure is to amend the Constitution so that each province can enact and administer its own criminal laws to suit its own particular circumstances as do all Australian and American states.

3. When that happens, most provinces will probably switch to a Sentencing Guideline System. That will relieve judges from exhaustively examining Ottawa’s sentencing system and passing sentences that the public finds unacceptable.

4. In the meantime, trial judges will continue struggling to produce sentences that comply with appellate court judges’ interpretations of Ottawa’s legislation. Thousands of judicial hours and millions of judicial words will be added unproductively to Canada’s sentencing laws.

25 September 2009

CRIMINAL LAW – SENTENCING – SIMILARITY - PROPORTIONALITY

 

A sentence should be similar to sentences imposed on similar offenders

for similar offences committed in similar circumstances.

Criminal Code of Canada, s. 718.2(b)

1. Introduction

        Many Canadians severely criticize the sentencing decisions of trial judges. Mostly they find them too lenient. But trial judges must impose sentences by applying confusing sections of Parliament’s Criminal Code and within very rough guidelines set by their provincial appellate courts. It is no easy task.

   A description of the process for fixing a sentence at the trial level is set out below. It does not follow that every trial judge uses this procedure all the time.

2. Sentencing evidence and information

   When offenders plead not guilty, trial judges apply the facts arising from the trial evidence in support of their sentencing decisions. When offenders plead guilty and do not testify, prosecutors submit the undisputed facts that proved the crime. If offenders have a criminal record, prosecutors put details of that record in evidence at the sentencing hearing.

   Offenders rarely testify at a sentencing hearing by taking the witness stand and giving sworn evidence because they would be exposing themselves to cross examination by the prosecutor. Instead, the law allows their lawyers to pass on unsworn "information" they received from their clients. Usually, defence lawyers will use words such as, "My client informs me he is remorseful for his conduct, he has got back together with his wife and children, he has a job waiting for him if he does not have to go to jail, etc."

   All of that information may be true, some of it may be true or none of it may be true. It depends on how truthful offenders are with their lawyers. Hence, many sentences have a shaky foundation in fact resulting in overly lenient penalties.

3. Sentencing submissions by prosecutors and offenders

    After presenting the evidence and the offender’s information, the lawyers then make their submissions to the judge as to what would be an appropriate sentence. Frequently, they hand up to the judge four or five copies of different previous sentencing decisions given by many different judges over recent years that involve the same crime. Some may be 20 to 30 pages long; others two to three pages. They may all be trial decisions or they may include decisions of their own provincial appellate court. They may or may not contain the age of the offenders, the details of any previous convictions, their work and social history, etc. One sentencing decision of an appellate court that is close to being similar, trumps all other trial court decisions.

   Where the Criminal Code sets a maximum statutory penalty of say 10 years for a particular crime, previous legal decisions relied on by prosecutors usually will suggest a high range of sentence of say between 4 to 6 years. Defence decisions usually will suggest a low range of either one year or at most a conditional sentence (no jail time-2 years less a day maximum).

   Often, any similarity between the details of these previous decisions and those of the case before the trial judge is that they all committed the same crime.

   Failure of trial judges to articulate in lengthy detail the reasons that support their findings is beyond criticism. In a busy Provincial Court, trial judges frequently will hear and pronounce a dozen or more sentences in one day. Provincial governments do not provide administrative resources for them to write lengthy treatises on each sentence. Federal politicians seem unaware of this factor.

4. Sentencing rulings by trial judges

   When sentencing an offender, trial judges must consider at least 20 vaguely defined Criminal Code "objectives"or "principles" of sentencing. Statutory objectives require judges to impose sentences that "denounce unlawful conduct" or "assist in rehabilitating" offenders. An example of a principle is that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender."

   What do all those meaningless phrases stand for when trial judges search for an appropriate sentencing number?

   To trial judges, they mean what their provincial appellate court says they mean. Using the above example of a statutory 10 year maximum sentence, most trial judges will first consider an appropriate sentence as half way between defence counsel’s suggested minimum of 1 year and the prosecutor’s suggested maximum of 6 years. That works out to around 3.5 years.

   Then they may cut back the potential sentence to say 2.5 years. They do so by taking into account the tendency of appellate courts to reduce trial judges’ sentences far more often than they increase them. Sentencing on the low side avoids putting the parties to the expense of an appeal. It is very easy for appellate courts to change sentences by finding the trial judge failed to take into account the objective of offender "rehabilitation," or to not give sufficient consideration to less restrictive "sanctions," etc.

   At 2 years less a day, the possibility of a conditional sentence comes into play. If trial judges determine that the evidence and the information indicate the offender is unreliable, they will stay away from conditional sentences. They do so in the belief that the province does not have enough probation officers to properly supervise offenders making offenders a potential threat to the community. When they enacted the conditional sentencing provisions, it is doubtful that federal Parliamentarians had any knowledge of the number of provincial probation officers necessary to supervise offenders while they served their time in the community.

   One can see that criminal sentences are not governed by the pious objectives and principles of sentencing. They are governed by appellate court decisions. When fixing a sentence, trial judges and appellate courts first find an appropriate number and then cherry pick the relevant objectives and principles from the Criminal Code that tend to support the number. There is nothing wrong with that exercise since no figure comes easily to mind by just reading the Criminal Code’s objectives and principles of sentencing.

Bottom line:

1. Canada’s sentencing system is bankrupt. It starts with Parliament’s naive belief that offenders will always tell the truth about themselves when they give information to the court at a sentencing hearing.

2. Publishing lofty objectives and principles of sentencing in the Criminal Code does not guarantee public safety.

3. Canada needs to switch from this unworkable system and adopt the American style Sentencing Guideline System. It transfers the authority to set minimum and maximum ranges of sentences for each crime to a Sentencing Commission supervised by legislators: see my posting of 3 January 2009.

4. No system is perfect. Nonetheless, the Sentencing Guideline System is far more certain and has far more public support in America than Canada’s discretionary system has here.

19 September 2009 

Civil Jury Trials - Number of Jurors - Challenging Jurors for Cause

 

Trial by a civil jury empowers citizen jurors who hold no office and have no professional status. It helps strengthen their confidence in the judicial system.

Jurors are a part time institution of government. They have no ambitions of their own and are therefore worthy of trust.

They are free of any direct personal interests in their verdic

Professor Paul D. Carrington,

Duke University, N.C., 2004

1. Introduction

    This is a slightly edited version of a paper I delivered at a Continuing Legal Education Conference in Vancouver, B.C. on 11 September 2009.

  Trial by a civil jury in B.C. declined significantly over the last 40 or so years to about 2%-3% of all civil trials. Much of this happened because B.C. government rule makers neglected to modernize the rules governing civil jury trials. The rest can be blamed on the atrociously high hearing and jury fees that the B.C. government penalizes litigants who seek a civil jury trial.

  This paper recommends new procedures and practices that will help rejuvenate trial by a civil jury.

2. Number of jurors

    At one time in Canada and England all criminal and civil jury trials were heard by 12 jurors. In 1964, the English Court of Appeal abolished civil jury trials in England and Wales except for defamation actions.

  American State civil jury trials started with 12 jurors. Now, most State civil jury trials are heard by 6 jurors. American studies found there is little difference in the quality of decisions whether there are 12 or 6 jurors. About 65% of all American State civil trials are tried with a jury.

   B.C. civil jury trials started out with 12 jurors. Subsequent provincial legislation reduced the number to 8, where it stands today. In the other eight Canadian common law provinces, some provinces have 7 person juries and some 6.

   B.C. should change its legislation to allow for 6 person civil juries.

3. Pre-trial investigation of juries

  When England had civil jury trials it never allowed any pre-trial examination of jurors to test them for possible bias. It just wasn’t done! American’s did the opposite. U.S. counsel have the right to examine potential jurors through a process they call a "voir dire." It used to take several days to complete. Now it lasts around two to three hours.

   Up to approximately the end of the 1970’s, B.C. Sheriffs usually provided counsel with a list of potential jurors a week or so before the trial. Some counsel hired private investigators to learn more about each juror. Others just ordered credit reports from a credit agency. Most did nothing. Because of privacy concerns, gradually Sheriffs stopped providing counsel with the jury list until a few hours before the trials began.

4. Challenging jurors for cause

   Section 20(2) of the B.C. Jury Act states: "Each party is entitled to challenge any of the jurors for cause."

   Because there are no B.C. Rules of Court outlining the procedure, there is no governing process to guide lawyers and judges in challenging civil jurors for cause. There are only peremptory challenges. These are challenges each side may use to disqualify a potential juror without assigning any cause for the challenge. Assuming there is just one plaintiff and one defendant each side may exercise four peremptory challenges.       

    Given these circumstances, Sheriffs will usually summons around 20 potential jurors. Eight are for the jury panel; eight more if both counsel use their four peremptory challenges and four spares in the event some acceptable jurors are excused by the judge for valid reasons such as sickness, etc.

5. American challenge for cause procedure

   Apparently there are no published American rules on challenging civil or criminal jurors for cause. American trial judges have their own individual systems. They design them to ensure the parties receive a fair and impartial jury. In many states and the federal system, judges question the jurors, not counsel. Appellate courts rarely interfere with trial judges’ procedures.

   Even if potential jurors answer questions indicating they would rather not be on the jury, judges may ask them a question along the following lines: "But even though you do not want to serve on this jury, if you are chosen will you be able to decide the case fairly and impartially according to the evidence and the law?" If the potential juror answers "yes" as they usually do, any challenge for cause will fail.

   The general standard for excusing a potential juror for cause is whether the individual "has a state of mind that is likely to preclude him or her from rendering an impartial verdict based on the evidence adduced at trial."

   American literature indicates that on average about one in twenty potential jurors are excused for cause

6. Proposed B.C. challenge for cause procedure

   Following is a suggested challenge for cause procedure designed to take no more than two hours in the B.C.S.C.

1) At least two days before the trial, counsel should exchange between themselves and provide the judge with a list of questions they wish the judge to ask the jury. It should contain no more than two double spaced letter sized pages. Sheriff’s should supply counsel and the judge with a "Juror Information Sheet."

2) With the 20 or so potential jurors in the courtroom, each counsel should read out the names and occupations of the witnesses they intend to call and a brief description of their testimony. They should provide the judge with a copy of the list.

3) The Clerk should then randomly select 12 potential jurors to come forward and sit in the jury box. The Clerk should then ask them to stand, raise their right hands and swear to any questions that counsel or the judge may ask.

4) The judge will then ask the 12 potential jurors individually or collectively to answer the appropriate questions taken from counsels’ list and any other questions the judge thinks necessary. The judge reserves the right to edit the list.

5) Where the claim involves a motor vehicle accident, one question might be: "Have you or anyone you respect had a bad experience with ICBC that may prejudice you against it in these proceedings. Alternatively, if you decide to award the plaintiff damages can you put out of your mind the fact that any award you make may only have an infinitesimal effect on your ICBC premiums?

6) After the judge asks the questions and gets the answers from the 12 potential jurors, counsel may then exercise their right to challenge them one by one alternately. If they do not succeed on any application to challenge a potential juror for cause, they may use one of their four peremptory challenges.

6) Once eight jurors are selected from the twelve first summonsed, the remaining eight potential jurors plus those successfully challenged may leave. If fewer than eight are selected, they will be asked to take a seat in the courtroom and the Clerk will ask the remaining eight potential jurors to come forward as a group and take a seat in the jury box.

7) The procedure used for examining the first group of potential jurors should be followed for the remaining eight without being too repetitive.

8) Once eight jurors are accepted, they should be sworn in as jurors to decide the case and the trial will then begin. Those not accepted to serve will be excused.

This is a rough outline of the challenge for cause procedure. Actual practice may vary from some of the above procedures.

7. Witnesses' testimony containing the word "insurance"

        For many years, B.C. trial judges would have to declare a mistrial in a civil jury case if a witness used the word "insurance" during his or her testimony. Without any empirical evidence, appellate courts automatically assumed that jurors would award a plaintiff a much higher than usual sum of damages if they believed the defendant was insured for the loss.

   Today, in any automobile accident case most jurors know that because of compulsory government insurance all defendants are insured for most awards. Testimony given during the course of the trial will often use the phrase ICBC as in "I went to see the ICBC doctor."

   Few trial judges will declare a mistrial today because of that. They will usually tell the jury, "that they should only award reasonable compensation based on the evidence. Just because the defendant has insurance should not affect the size of their award one way or another."

8. Counsel arguing the range of non-pecuniary damages

   Section 6 of the Negligence Act states that; "In every action the amount of damages or loss ... (is) a question of fact." It is trite law that in judge alone trials counsel have the right to argue the facts arising from the evidence. That includes the amount of non-pecuniary damages.

   On the other hand, BCCA case law following the English Court of Appeal says that counsel should not argue the amount of non-pecuniary damages before the jury. Yet, counsel may argue the amount of all other heads of damages such as past and future loss of income, special damages, etc.

   Counsel have the common law right to argue what facts the jury should find from the evidence. By statute, the amount of all damages is a question of fact arising from the evidence. Therefore, counsel have the right to argue before the jury the amount of non-pecuniary damages the plaintiff should recover.

   In most cases juries do not know what reasonable amount of non-pecuniary damages the plaintiff should recover when they find liability. Allowing counsel to argue those amounts before the jury will assist them in arriving at a reasonable award. Often this will save the parties the cost of appeals and new trial orders. 　

9. Interviewing jurors after the verdict

An unreported 1968 oral decision of the BCCA states that it is contempt of court for a lawyer to discuss the case with a jury after the entry of a verdict. Until then, lawyers usually interviewed the jury after the trial.

  Following an American jury trial, trial judges often ask jurors if they would mind waiting in the jury room since counsel may wish to ask you them a few questions about the trial. They also tell the jurors that they have no legal obligation to speak to anyone about the case. Where jurors agree to be interviewed, counsel often learn from the jurors what did or did not help them arrive at their verdict.

  Similarly, the media may interview jurors. Those interviews generally increase public confidence in the jury system.

   In 1982, s. 2(b) of the Charter of Rights and Freedoms gave every Canadian the right to "freedom of expression." Hence, jurors have the freedom to discuss the trial proceedings after their verdict with anyone should they so choose. Apart from threats of physical violence from other jurors or pressure from outside sources, anything that jurors say to counsel or the media after the trial will not affect the verdict they rendered.

10. Bottom Line:

 

• Most trial judges like civil jury trials. Juries relieve judges from the onerous task of writing lengthy judgments after the trial in order to meet the demands of the appellate courts. This may take months while the litigants wait patiently for the result. On the other hand, civil jury litigants produce a decision shortly after the trial ends.
• Adoption of the procedures recommended above will help improve the quality of jury verdicts and begin the process of regaining public confidence in the B.C. civil justice system.

 

Honourable John C. Bouck

Supreme Court of British Columbia (retired)

15 September 2009

 

BRITISH COLUMBIA RULES OF COURT, 2010 – COST AND EFFECTIVENESS

1. Introduction

   B.C. government rule makers persuaded the B.C. Cabinet to enact Civil Rules of Court for the Supreme Court of British Columbia effective 1 July 2010.

http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/CivilRules07-07-09.pdf

   They are a modest improvement over earlier drafts but still reflect the heavy hand of provincial bureaucrats. Several visitors to this site rightly mentioned how complicated and expensive these rules will be for the average litigant. That appears to be the case.

2. Proportionality – May 2008 Rules 4-1 to 4-5

    The theme of the original drafts ending on 15 May 2008 was to stop almost all proceedings at the beginning of an action by condemning the parties to attend a proportionality or Case Planning Conference. It was a thinly disguised government proposal designed to ration justice for those claims deemed unworthy of equal justice.

http://bcjusticereviewforum.ca/civilrules/downloads/CivilRules_ConceptDraft_May2008.pdf

   Because of the organized Bar’s rejection of the idea, a Case Planning Conference or proportionality hearing is no longer compulsory; Rule 5-1(1) of the 2010 Rules.

3. DEPOSTION OF WITNESSES – RULE 7-5, 2010 Rules

   Instead of allowing the parties to depose or examine witnesses before trial if they so chose, the 2010 Rules have elaborate and costly provisions requiring them to apply for a court order to accomplish the same thing. An application to obtain such an order probably will cost each litigant about $3,000 to $5,000 in legal fees.

   Why should the parties who cannot afford these costs have to wait for the trial when the witness then discloses a vital ingredient that could have resulted in a settlement without a trial?

   American litigants do not have to go through this costly bureaucratic exercise. Their lawyers do it without a court order. Where are the B.C. government research papers proving that such orders are needed? Is this in keeping with the government’s promise of "Effective and Affordable Justice?"

4. Civil jury trials – Rule 12-6 – 2010 Rules

   B.C. adopted the 1883 English Rules in 1893. They imposed severe restrictions on the right of litigants to a jury trial because of lack of juror literarcy. They seem based upon the lack of educational standards at the time. For example, in 1876 England, 16% of men and 22% of women could not sign their name with a mark. Apparently, it was thought that the average juror could not understand complicated medical and scientific terms or issues of a complex character. These same provisions are in the new 2010 Rules.

   But today, many jurors have university degrees or equivalent and are quite able to understand these matters. Once more, there are no published B.C. government research papers justifying the continuation of such antiquated prejudices in its 2010 Rules.

   At the very least, the bureaucracy could have reduced the number of jurors from eight to six as it is in most North American jurisdictions. Apart from saving the parties from cost of the government’s exorbitant hearing and jury fees, a six person jury would deliver justice of as good a quality as could be done by an eight person jury. Again, no research papers.

5. Trial Management Conference - Rule 12-2, 2010 Rules

   At least 28 days before the trial date, lawyers and the parties themselves must attend a Trial Management Conference (TMC) before a judge or master. Most of the time, it will be held before a judge. Even if it is held before a master, the logistics will be challenging.

   B.C. courthouses were not designed for conducting such Conferences. Judges Chambers or offices cannot accommodate more than two or three other persons, say two lawyers and a Court Clerk. If the litigants must attend, there is no room. So, most of the TMCs must be held in a courtroom. Because these will be occupied with trials, the TMC litigants and their lawyers must come back at some future time when the same thing may happen again; all at great cost in legal fees to the litigants.

   To avoid having lawyers and litigants standing around for hours on end waiting for a TMC, it is likely the Registry will only schedule about two or three TMCs a week.

   At the TMC, the judge must hear submissions from counsel or the lay litigants on about 19 different issues such as "a plan on how the trial will be conducted." Considering all these 19 issues and resolving them in one meeting could take days of discussion particularly if there are numerous parties. The time spent by lawyers preparing for and attending at a TMC will cost litigants around $250.00 to $350.00 per hour.

   To do a decent job judges will have to prepare a written decision setting out their conclusions on all the issues argued before them at the TMC. Conducting other trials and delivering judgments on them could easily delay the delivery of a TMC decision for many months.

   The historical time from filing to trial in the Supreme Court of B.C. (SCBC) is three to five years. Under the 2010 Rules litigants cannot get a firm trial date until a TMC order is made. Delays caused by the TMCs could easily delay trials on the waiting list up to five to seven years or more from filing.

   The B.C. government calls this "Effective and Affordable Justice." As with other B.C. 2010 government Rule’s initiatives there are no published research papers on these issues.

6. B.C. Attorney-General’s Report 2009

   Recently, the Attorney-General published a document titled "Annual Service Plan Report."http://www.bcbudget.gov.bc.ca/Annual_Reports/2008_2009/ag/ag.pdf.

  At page 17, the Attorney General’s Department set out the public’s perceptions of the civil justice system. The government’s goal to achieve a satisfactory public perception of the civil justice system was set at 12%. In 2008/2009 it met that 12% goal. Its goal for achieving a public perception of ensuring access to the civil justice system for all parties was set at 26%. In 2008/2009 the public perception on that issue was only 23%.

   Setting its own expectations at such a low standard of relieves it from providing the public with a modern and efficient civil justice system. Most citizens would expect the government to do far better.

   For providing justice quickly and ensuring access to justice to all parties, the public perception standards should be set at 70% to 80%. The government should then strive to meet that perception. There are many ways of raising the public’s perception of the civil justice system as I have recommended in other postings but the government won’t even debate them.　

Bottom Line:

1. After ignoring the plight of B.C. civil justice litigants over the last 50 or so years it is a shame that the government’s 2010 Rules will cost them more and delay their access to the civil justice system.

2. The lack of government scholarship, published research papers justifying its many new costly procedures, and its failure to reform outdated Rules sadly reveals its complete indifference to modernizing B.C’s. civil justice system.

9 September 2009

CIVIL JUSTICE REFORM – RULES OF COURT – PROPORTIONALITY

Everyone knows … that for the ordinary citizen unqualified for Legal Aid

a lawsuit is quite out of the question

Lord Devlin

1. Introduction

   Visitors to this site will find many postings that illustrate the failure of the B.C. government to enact modern civil rules of court for the Supreme Court of B.C.  Its long awaited initiative was the first major overhaul of the 1883 English rules it previously enacted for the Supreme Court of B.C. in 1893. After spending a few short “research” days in England, it decided to impose on B.C. litigants new English Rules based on the questionable concept of “proportionality.”
   The B.C. Trial Lawyers Association and the B.C. Law Society did not approve the proportionality idea, nor did any local Bar Association to my knowledge. Only one judge of the 100 or so B.C. Supreme Court judges spoke publicly in favour of the idea. Despite this lack of support on 7 July 2009 the B.C. government announced that the rules it wants will come into force on 1 July 2010.
   These final rules are supposedly published on the government’s website at: http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/CivilRules07-07-09.pdf.   Unfortunately, the site is not available because: ”files are damaged cannot be repaired.” Hence, the following comments depend upon information acquired from recent press releases.
   Recent press releases indicate that the fuzzy concept of proportionality would only be voluntary and not mandatory as it consistently proposed. That is a step forward. Apart from this issue and a few other minor changes the new Rules will be little different from the old 1883 Rules.

2. Proportionality

    The B.C. government’s proposed new rules used the meaningless word “proportionality” as its theme. Apparently, the government expected judges to ration justice at the earliest stage of the litigation by denying litigants with minor claims the full right to certain discovery processes.  The underlying purpose was to prevent as many cases as possible from going to trial.
   At the beginning of any lawsuit the issues are not clearly defined. What may look like an insignificant claim when the parties file their initial pleadings can blossom into a substantial dispute involving hundreds of thousands of dollars. The opposite is also true. 

3. The English civil justice system and “proportionality” 

    In 1893, the B.C. system of justice was similar to the English system. Over time they drew further apart. England always had a divided Bar. Before aggrieved litigants can recover judicial compensation for a wrong done to them they must first see a solicitor. After that, the solicitor prepares the case for trial and employs a barrister to actually try the case. 
   The apparent reason for England instituting the concept of proportionality was because the average citizen could not pay for the cost or employing a barrister or pay the costs of the defendant if the plaintiff lost. It was thought that early intervention by the court would help the parties settle their differences without having a full scale and ruinously expensive trial.
   Here is an example of English barrister’s fees taken from a 24 August 2009 posting on the web. It reveals the briefing and refresher (daily) fee for four randomly selected trial barristers in Legal Aid cases:
   “The following table lists how much was paid by way of brief fees and refresher fees to barristers that were paid a brief fee in the action.
£
Barrister                 Brief Fee, Refresher
Lord Brennan Q.C.  250,000, 97,500
Robin Oppenheim   134,500, 58,000
William Edis             114,500, 54,750
Richard Hermer       104,500, 40,000

   Other barristers were also paid for work on the case but they were not paid brief fees or refresher fees and did not take part in the trial.” http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo061101/text/61101w0003.htm
    For a five day, English plaintiffs in motor vehicle accidents involving damages of about $100,000 (Cdn.) Legal Aid would have to pay a top barrister around $370,000 (Cdn.). Often senior barristers insist on employing a junior. Add another $250,000 for an approximate total of $620,000. These are approximate figures for the English system. It has many unwritten practices that may not apply in every instance.
    Assuming the amount of these Legal Aid fees are reasonably close to barristers’ fees in a non-Legal Aid civil action, few English litigants could afford the cost of pursuing a civil trial. If they lost, they would not only have to pay their own barristers and solicitor, they would have to pay the fees for the defendant’s barristers and solicitor. 
   In an article written by Professor Herbert M. Kritizer of the University of Wisconsin and published n the ABA Journal in November 1992, Vol. 78, pp. 54-58, he compares the English system of fees and costs with those in American courts. There might be changes since then but probably they are not that significant.
http://users.polisci.wisc.edu/kritzer/research/law_misc/engrule.htm
    Quoting from Lord Devlin, Professor Kritzer says “Everyone knows … that for the ordinary citizen unqualified for Legal Aid a lawsuit is quite out of the question.”
   Professor Kritzer found that in a 1986 English study, plaintiffs in civil litigation avoided the risk of bankruptcy using at least two main aids. First, if they had few means or income, Legal Aid paid part of their costs. An estimated 28 percent of personal injury plaintiffs received legal aid. Even if they lost, they did not have to pay the costs that institutional defendants incurred in a similar action.
   Second, English plaintiffs who are members of a trade union do not have to pay their lawyers in a civil action. About 29% of accident cases in England are pursued by solicitors retained by unions.
    A mid-1980 study of settlement negotiations in 220 High Court cases found that defendants made a settlement offer to plaintiffs in just 53 percent of privately funded litigation. This compares to 66% of litigants funded by Legal Aid and 90% of cases financed by unions.

4. The Canadian civil justice system

   Canadian plaintiff’s lawyers may enter into a contingency agreement with their clients where plaintiffs pay their successful lawyers about one-third of the amount recovered from the defendants. But if plaintiffs loose at trial usually they do not have to pay their own lawyer any fees. However, they must pay the winner’s costs calculated from a published scale set by the government.
    In a B.C. accident case where a plaintiff recovers $100,000 in damages there is usually a contingency agreement where the plaintiff’s lawyer receives about one-third of the award or $33,000. If not successful, the B.C. plaintiff does not have to pay his or her lawyer anything since payment was “contingent” upon success.
    These figures compare with the English barrister’s fee where plaintiffs succeed in recovering $100,000. Since there are no contingency fees, English plaintiffs must pay their own barristers a briefing fee, a refresher fee and perhaps a junior’s fee of about $620,000. If not successful the English plaintiff would also have to pay the defendant’s barristers’ fees of $620,000 plus the defendants out of pocket expenses and the defendant’s own solicitors fees.

5. The American civil justice system

    America’s civil justice system is quite different from the English and Canadian systems. It has some similarities to the B.C. system since it does not have a divided Bar.
   However, unlike England and B.C., successful plaintiffs and defendants in an American civil action cannot recover from losers any fees and disbursements the winners had to pay their lawyers.  At most losers might have to pay winners the court filing fees and the sheriffs’ fees. Similar to B.C., plaintiffs do not have to pay their lawyers if the plaintiff loses. Using contingency fee agreements, they only have to pay a portion of their recovery to their lawyer if they win.

Bottom line:

1. Proportionality is an English invention designed to compel average litigants to settle without going to trial. It has no place in B.C. law where circumstances are quite different.
2. A real issue the B.C. government should have considered is whether the idea of loser pay costs should be abandoned thus allowing B.C. litigants greater access to a trial.
25 August 2009

CONSTITUTIONAL LAW – CANADA AND QUEBEC – AN ALTERNATIVE ARRANGEMENT

1. An apology.

   Over the past three months I have been affected by a serious health problem and could not keep up with my postings. I am hopeful for a complete recovery but there may be some bumps along the way. To my loyal visitors and others I apologize for not keeping you better Informed.  Thank you for your patience.

2. Introduction

   Even if we do not engage in the much needed constitutional changes as mentioned on this site, something must be done to resolve the constant political and legal battles that Quebec and the Rest of Canada (ROC) fight on an almost daily basis. It is a waste of both our energies.
   Canadians in one province should never be forced to remain in Canada if the majority of their constituents wish to leave. Nor should the ROC be forced to bribe them to remain within Canada using federal tax breaks and other benefits not generally available to Canadians in other provinces.

3. Geography

   If Quebec voted to separate from Canada that would likely impede land and water access to the Maritime Provinces and the St. Lawrence by citizens from the ROC. How can this be accommodated?

4. The European Union model for Canada and Quebec
  
   Nations who are members of the European Union (EU) elect their own governments and enact their own local laws to meet the needs of their local citizens. They can also travel back and forth between EU countries without having to pass through customs and immigration and provide a passport. Those are only necessary when they enter the EU from a non EU country; e.g. Canada and the USA.

5. Adapting the EU model to Quebec and the ROC

    Assuming a majority of Quebecers vote to separate from Canada, then Canada and Quebec should enter into an EU type agreement:
• Just as Polish citizens work in EU countries such as Ireland, a Canadian/Quebec arrangement would allow Canadians and Quebecers to travel back and forth and work freely in one another’s country without showing a passport.
• Quebecers could make French their national language and Canada would make English theirs.
• Quebecers could use the Canadian dollar, the French Franc or any  other currency they might select.
• Quebec and Canada would need similar legislation governing visas and immigration into their nations as well as similar fees and taxes payable on the importation of goods and services.
• Instead of a European Union type Parliament and its enormous bureaucracy there would be a Canada/Quebec Commission with a neutral Chairperson that would resolve inter-jurisdictional disputes.
• Etc.

Bottom Line:

1. The European Union seems to meet the needs of various European nations who speak many different languages and have many different customs.
2. Canada and Quebec could learn from this experience and craft a similar arrangement.
3. Each could then concentrate on improving their own situations without having to involve the other.
22 August 2009

CANADA’S NEW CONSTITUTION – REJUVENATING THE HOUSE OF COMMONS AND THE SENATE

Laws and institutions must go hand in hand with the progressof the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed,
and manners and opinions change, with the change of circumstances,
institutions must advance also and keep pace with the times.

Thomas Jefferson
12 July 1816  

1. Introduction

   Jefferson’s words apply today. Canada’s Constitution is the product of English Parliamentary thinking in 1867. Today, circumstances are quite different. Between elections, we do not want the ultimate power of government to exist in the hands of Prime Ministers and Premiers. It must be shared by them with legislators and the judiciary through a system of checks and balances. Only then can we call ourselves a democracy.
   The following is a primer outlining the highlights for a new democratic Constitution.

2. English dissatisfaction with its Parliamentary system

   Like Canada, English political observers are beginning to comment critically on how its Parliamentary system has descended into one person rule between elections. In an 11 August 2009 article a Conservative columnist Frederick Forsythe remarked that every five years the public troop to the polls “to elect a parliamentary dictator.” Once in power as Prime Minister that person does “virtually what he wants.”
   Party members are “terrified of the whips and are timorous little serfs of the party machine terrified of the whips and slavishly obedient. They are supposed to represent us out here in the provinces, yet between elections we are just about irrelevant. This utter sense of utter helplessness causes a national turn off from politics.”
   These observations are no different in Canada’s yet politicians in all political parties pretend the situation does not exist. There do not appear to be any English or Canadian writers who offer an alternative. This site attempts to do so by recommending a democratic system similar to that of America.
 
2. Comparing the American federal House of Representatives with the Canadian House of Commons

   The American House of Representatives is roughly equivalent to our House of Commons. America has a population of about 330,000,000. Each of the 435 members of the House of Representatives, often called Congressman/ Congresswoman, has a constituency of about 600,000 people.
   Canada has a population of about 3,300,000. Each of the 308 members of the House of Commons (MPs) represents about 10,700 Canadians.  Comparably, we are grossly over governed. Part of this may be necessary since our population is more spread out than it is in America.

3.  Relationship between the President and the House of Representatives

   Presidents of the United States are not members of the House of Representatives. Presidents may submit legislation for the consideration of the Congressmen but they are not legally bound to enact it.  Congressmen who are members of the same political parity as the President are not duty bound to vote in favour of the legislation. Party loyalty is not strictly enforced. Congressmen may amend the legislation if they deem it necessary or they may reject it altogether. Anecdotal evidence suggests that Presidents eventually get their way about 75% of the time with or without amendments.

4.  Relationship between Canadian Prime Ministers and the House of Commons

   Canadian Prime Ministers are both the heads of the executive (civil service) branch and heads of the political party that has the majority of members in the House of Commons. Prime Ministers propose legislation for passage by the House of Commons. Members of the Prime Minister’s political party must vote for legislation proposed by Prime Ministers under the political doctrine of party loyalty.

5. Benefits to Canadians of a reformed House of Commons

   Under a new Constitution making the House of Commons a separate but equal branch of government, Prime Ministers will not be members of the House. They will be free to submit legislation for consideration of the House. It may enact the law in whole or in part. Here are some features that will make government more representative of the people and will divide power between the three braches of government.

 The End of Question Period

• Question Period will be a thing of the past since Prime Ministers will not be members of the House of Commons. Canadians will no longer have to tolerate the embarrassing spectacle of MPS shouting and yelling insults at one another. It is not the way that laws should be made and it degrades the sanctity of Parliament.

Members Speaking in the House

• When MPs wish to speak on a motion they will address the Speaker of the House who presides over its procedures from the front centre of the room.  Other MPs will have their backs or sides to those listening instead of raging at the speaker from across the aisle.

Initial control over taxation legislation

• All money bills will initiate in the House of Commons either though proposed laws sent to the House by Prime Ministers or by MPs themselves, of whatever party they belong.

Fixed four year elections for MPs and Prime Ministers

• MPS will stand for election every four years at the same time elections are held for the position of Prime Minister. Prime Ministers will be confined to two four year terms of office.

End of loss of confidence procedures
• No longer will Canadians be inconvenienced by interim elections because loss of confidence votes will be a thing of the past. Bills introduced by MPs or sent by Prime Ministers for consideration by the House fail to pass will just require the proponents to try harder the next time.

MPs may vote against the party leaders’ directions from time to time
•  Bipartisanship will be an important feature. Freed from the rigid constraints of strict party loyalty, MPs will have the opportunity to vote outside the party line from time to time if they believe that is in the best interests of their constituents and the nation.

MPs will control committee policies and membership
• MPs will control the number of Committees and who will serve on them. Prime Ministers will no longer control Committee membership or the authority of the Committees since Prime Ministers will not be members of the legislative branch

MPs and Senators will have their own investigation branch
• Together with the Senate, the House of Commons will have an investigative accountability office that conducts investigations of their behalf including how effectively the executive branch administers their legislation.

3. Comparing the American Senate with the Canadian Senate
 
 The American Senate 

   With a population of 330,000,000, America has a total of 100 Senators divided into two Senators for each of the 50 states. Senators possess a great deal of control over presidential powers. For example, Presidents must get the approval of the Senate to sign foreign treaties; to appoint federal judges, cabinet ministers and other executive branch officials; etc.
   The Senate may present non-money bills for debate. Any bill does not become law until it receives the approval of the House, the Senate and the President.

The Canadian Senate

    With a population of about one tenth the size of America, Canada has 105 Senators. Their numbers are spread disproportionately across the nation.  Canadian Senators are not elected. They are appointed by Prime Ministers as vacancies or needs arise. They must retire at age 75. Because they are unelected, they tend to do the bidding of the House of Commons and Prime Ministers. Their main purpose is a place of sober second thought with respect to legislation passed by the House of Commons.
   So much has been written about Senate reform that it is impossible to summarize them in a few words. See: http://en.wikipedia.org/wiki/Senate_of_Canada

4. A new Canadian Senate

    Electing Senators

• Picking the number of Senators to represent each province must be arbitrary. Besides, all the Senators in any province may or may not vote as a bloc. Some may come from different political parties. Others might have more concerns about rural issues as opposed to city ones. Etc.
Here is a comparison between the number of Senate seats now allowed by the Constitution and the reduced numbers for the new Senate:
Province                     Present Senate               New Senate
1. British Columbia                   6                               5
2. Alberta                                 6                               5
3. Saskatchewan                      6                               5
4. Manitoba                              6                               5
5. Ontario                               24                             11
6. Quebec                              24                             11
7. New Brunswick                   10                              4
8. Nova Scotia                        10                              4
9. Prince Edward Island           4                               4
10. Newfoundland & Labrador 6                               4
11. North West Territories*      1                               0

12. Yukon Territory*                1                               0
Total                                     104                             56

*Notes: Because they have relatively smaller populations and are not provinces, the Northwest Territories and the Yukon Territory should not have a seat in the Senate. Instead they should be granted additional seats in the House of Commons. The list comes from s. 22 of the Constitution Act. It only adds up to 204 seats instead of 205. The additional seat may have been given to the Territory of Nunavut but it is not mentioned in s. 22.  Again it might receive an additional seat in the House of Commons to make up for the loss of a Senate seat. 

 Senators as law makers
    Besides supervising Prime Ministers’ appointments, and supporting or amending House legislation in conference, the Senate may also propose non-money legislation for approval by the House and the Prime Minister.

Bottom Line:
1. This is just a sketch of how a new Constitution might come together. It will require the best brains with open minds and a nation wide grass roots debate.
2.  Probably, existing political parties will condemn it with vigor since it will mark the end of their leaders' opportunities to govern Canada autocratically.
18 August 2009

CANADA’S NEW CONSTITUTION – RE-ARRANGING FEDERAL AND PROVINCIAL JURISDICTIONS

To make us one nation as to foreign concerns, &
keep us distinct in Domestic ones, gives the outline
of the proper division of powers between the
general and particular governments.

James Madison
16 December 1786

Introduction

   James Madison’s astute observation applies to nations with large geographical areas such as Canada, Australia and American. They reveal an obvious truth. The more power a Constitution gives to local authorities for resolving local issues the more loyal they are to their far away central governments.
   Canada’s 1867 Constitution in the form of a British Statute tries to divide up the legislative powers between the federal and provincial governments. With few exceptions, provinces just have the right to legislate on property and civil rights. Almost everything else falls within federal jurisdiction. It is a recipe for disintegration.
   After 1867, an English court called the Privy Council resolved constitutional disputes between the provinces and the federal government. For the most part, Privy Council decisions favoured the provinces.
Canada abandoned appeals to the Privy Council in 1949. The Supreme Court of Canada (SCC) then replaced it as the court of last resort. Since then, most experts agree that SCC constitutional decisions on intergovernmental disputes tend to favour the federal government.
   This posting argues that because of Canada’s population growth since 1867 some areas of federal constitutional authority should now be turned over in whole or in part to the provinces. They have the advantage of local circumstances that often vary from province to province. They can better craft a solution than can national legislators from ten different provinces and three different territories. None of them reside in more than one province.

CANADA’S NEW CONSTITUTION – DIVISION OF POWERS – LEGISLATORS - PRIME MINISTERS AND PREMIERS

The way to have good and safe government,
is not trust it all to one; but to divide it among the many,
distributing to every one exactly the functions he is competent to.

Thomas Jefferson, 1816

1. Introduction

   Under our existing 1867 Constitution, Canadian Prime Ministers and Premiers possess enormous unchecked powers allowing them to govern autocratically during their terms of office.
   They control the legislative branch as leaders of the political party with the most number of seats in their legislative bodies.
   They also control the executive branches as First Ministers of their respective governments. Dangerously, Prime Ministers claim a third right of appointing senior judges to Canadian superior, trial and appellate courts as well as the Federal Court. Premiers have similar rights with respect to Provincial Court trial judges.
   This right to exercise absolute power is not mentioned in the written part of our 1867 Constitution. Instead it arises from unwritten practices called conventions. Without them, the English Parliamentary system of government could not function.
   Jefferson was right when he said in effect that for good and safe government, powers must be divided among many and not just given to Prime Ministers and Premiers.
   This posting outlines how a new Canadian Constitution would rid us of Prime Ministers and Premiers who govern autocratically by using unwritten conventions and compel them to rule democratically under a written Constitution.

2. Name changes for Canada’s executive branch leaders

    Americans call the heads of their federal executive branch leaders “Presidents”. Canada calls them “Prime Ministers”.  American States call their executive branch leaders “Governors”. Canadian provinces call them “Premiers.”
   In recognition of our English heritage, a new Canadian Constitution, should continue calling the elected leader of the federal executive branch; “Prime Minister”. Leaders of the new provincial executive branches would retain the title of “Premier.” Instead of having “Vice Prime Ministers” and “Vice Premiers,” we should use the prefix “Associate” rather than “Vice.”

3. Preserving names for Canada’s governmental institutions

   Canada calls its lower legislative chambers the “House of Commons.”
Americans call their similar legislative branch the “House of Representatives.” Canada and America call their upper chambers the “Senate.” Canada calls their two legislative chambers “Parliament.” America calls its two, “Congress.”
   For the reasons set out above I prefer retaining English titles of Parliament consisting of the House of Commons and the Senate.
   Every Canadian province has just one legislative body. Every American state but one (Nebraska) has two.
  American state Constitutions vary from state to state. States often are referred to as the “laboratories of democracy.” 

4. Discarding the positions of federal Governor Generals and provincial Lieutenant Governors – fixed election dates

   Theoretically, federal Governor Generals and Provincial Lieutenant Governors represent the reigning British Monar ch. Federal appointees of Governors General are made by Prime Ministers. Provincial appointees of Lieutenant Governors are made by federal Governors General. Probably they act on the advice of Provincial Premiers. They usually have a five year term of office, subject to renewal. A recent Globe and Mail survey found that 65% of Canadians believe ties to the British Crown should be dropped once Queen Elizabeth dies. That would mean the end of our Consitution since Governor Generals are appointed by the reigining British Monarch and Canda would no longer have "a constitution similar to that of the United KIngdom."

    Another unwritten political convention arises when the majority members in the federal House of Commons vote no confidence in the party in power. Governor Generals are then called upon to decide whether that party should continue governing, whether the opposition should govern in its place or whether there should be an election. When similar circumstances occur in the provinces, Lieutenant Governors make those decisions.
   A new Canadian Constitution will set fixed elections dates every four years for Prime Ministers and Premiers. Occasions may then arise when the minority party rejects the majority party’s proposed legislation. This will not result in an election or a change in power as can happen today. Nor will it affect the heads of the executive branches who will not be members of the legislative branches.
   Political parties will just have to sort out their differences internally and not bother the public with unwanted elections.
   Consequently, the position of Governor General and Lieutenant Governor will become redundant. Canada may still choose to be a member of the British Commonwealth. 

5. Major Constitutional Reforms – Prime Ministers and Premiers

  Canada’s new Constitution should include the following major reforms

• Electing Prime Ministers and Premiers
   Today, leaders of political parties who seek the position of Prime Minister or provincial Premier run for election in their own separate constituencies. Just a few electors vote for the person who will be the next Prime Minister or Premier.
   Reform:
Candidates for the position of Prime Minister or Premier should be elected by all eligible federal or provincial voters for a term of four years.

• Additional lengths of time in office for Prime Ministers and Premiers
  Prime Ministers and Premiers may now stay in office so long as their political party continues getting the majority of seats in the House of Commons. That is unreasonable.
   Reform:
Prime Ministers’ and Premiers’ terms of office will be restricted to four years, renewable once for another four years.

• Appointing senior members of the executive branch

   While in office, Prime Ministers and Premiers now administer laws enacted by their respective legislators through the Cabinet Members they appoint.
   Reform:
   The new Constitution will still allow Prime Ministers and Premiers to appoint these senior executive branch members. Federally, they will require approval from the federal Senate. Provincially, they will require approval from their State legislators.

• Legislative authority of Prime Ministers and Premiers

   Today, Prime Ministers and Premiers present legislation to their legislative bodies for their consideration and passage. During that process legislators debate the quality and necessity for the new legislation.
   Reform:
   The new Constitution will still give Prime Ministers and Premiers the right to deliver proposed legislation to their respective legislators for their approval. Outside the legislative debates Prime Ministers and Premiers may still lobby these legislators to enact the legislation.

• Vetoing legislation passed by the federal Parliament or by  provincial Legislators

   Today, laws enacted by the federal House of Commons and the Senate, as well as those enacted by provincial legislators, come into effect on the signatures of federal Governor Generals or provincial Lieutenant Governors. Those individuals act on the advice of Prime Ministers or Premiers. In modern times, they accept such advice and pen their signatures.
   Reform 
   Under the new Constitution, the offices of Governor General and Lieutenant Governor will disappear. Prime Ministers and Premiers will then sign those documents into law.
A new Constitution will give Prime Ministers and Premiers the right to veto legislation enacted by their respective legislators. However, their legislative bodies may override the veto with a two-thirds vote of their members.

Bottom line
1.  These are but a few changes designed to make Canada’s governmental systems more democratic. Other recommendations will follow in future postings.
2.  Without these reforms, political leaders will contine to govern autocraically and Canada will never achieve its rightful destiny.
30 June 2008