CONSTITUTIONAL LAW – A NEW BEGINNING – AN OVERVIEW

There can be no liberty where the legislative and executive powers
are united in the same person or body or magistrates or, if the power of judging be not separated from the legislative and executive powers.

Montesquieu
1689-1755

1. Introduction

   Canada’s 1867 Constitution places almost all the trust and power of government in the hands of federal Prime Ministers and provincial Premiers. That arrangement does not qualify us as a democracy. To become one, we must have a division of authority between the head of the executive branches controlled by Prime Ministers and Premiers and the elected legislators who represent the people.
   This and following postings outline how we can achieve this desirable democratic status. Without that accomplishment, Canada will remain an autocratic state with touches of democracy here and there.

2. The American model

   I make no apology for recommending many American constitutional principles. They will help convert Canadian governments from autocratic to democratic rule.
   In 1791 the constitutional rights of individuals became part of the American Constitution in its Bill of Rights. About 191 years later in 1982 Canadians received similar rights by the passage of our Charter of Rights and Freedoms. Let’s not wait another 191 years after Canadian confederation in 1867 to get a democratic Constitution.

3. Inspirational language

   In 1867 Canadian politicians gave British parliamentary draftsmen a brief summary of the important features they wished included in the BNA Act. Its final form is like any ordinary statute lacking statements of hope and aspirations.  Nor did it make Canada independent of Great Britain. It just raised Canada’s status a bit above that of a British colony. Embarrassingly, a section of the 1867 Act still gives the British government the power to disallow federal Canadian statute laws within one year of their making.
    A new Constitution must have words that inspire Canadians, not just words used by Parliamentary drafters. Framers of the Constitution should include eloquent statements of democratic principles for all Canadians to read before the final draft is circulated. Once accepted by a Constitutional Convention, the draft must be approved by a vote of the people or by a vote of their representatives.
   It will not be just a statute of the British or Canadian Parliaments. Rather, it will stand independently as a document approved by the Canadian people binding upon all law makers and every citizen.

4. Opposition to change

   Besides the natural reaction of most people to change, politicians and others in high office tend to resist it more feverishly. They naturally favour the status quo since it allows those in command to exercise power, relatively free of constitutional restraints.
   Opposition parties seldom criticize the system. Apparently, they want it left intact so if they achieve power, they too can then impose their will on the people arbitrarily.
   Through the collective good sense of the Canadian public these politically entrenched attitudes can be overcome.

4. Schedule of postings

   Three main topics highlight the following debate. They are:
• The position and authority of Prime Ministers and Premiers
• The organization and authority of legislators
• The role of the judiciary
   Others might get added.
25 June 2009

CONSTITUTIONAL LAW – THE DEMOCRATIC FAILURE OF THE BRITISH AND CANADIAN PARLIAMENTARY FORM OF GOVERNMENT

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

Preamble to the British North America Act 1867

1. Introduction

   In 1867 the British government gave Canada its Constitution by way of a British statute called the British North America Act.
   This posting argues that the Constitution no longer meets the needs of Canadians. It should be abandoned and replaced by a modern Constitution acceptable to the majority of Canadians.
I start with the circumstances that existed in Britain from about 1832 to the late 1800s and how they played a part in the development of Canada’s governmental institutions.  At the end, I mention recent remarks by British commentators about the failures of the British Parliamentary system of government.

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

Introduction
 
   On 14 November 1997 Ms. Kelly Ellard murdered Ms. Reena Virk. Three trials followed. On 9 March 2000, the first trial of ended in a conviction. On 4 February 2003 the B.C. Court of Appeal (the BCCA) ordered a new trial because of faulty jury instructions. On 18 July 2004, the second  trial ended in a hung jury. On 12 April 2005, the third trial ended in a conviction. On 5 September 2008, the BCCA ordered a new trial because of faulty jury instructions.
   Finally, on 12 June 2009, - nine years after the first trial - the Supreme Court of Canada (the SCC) set aside the BCCA decision of 5 September 2008 and restored the jury verdict of guilty. For a history of the case, see posting dated 21 January 2009.

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

1. Introduction

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

CIVIL JURY TRIALS – CHALLENGING JURORS FOR CAUSE – LEGISLATORS AND JUDGES AS JURORS

The voir dire process may impress upon the jury
the importance of their task and may enhance their awareness
of their duty to decide the case fairly and impartially

      Zeisal and Diamond
      Stanford Law Review
      30 (1978) 512

1. Introduction

   For those that do not know what the above words “voir dire” mean, American law refers to it is the process for empanelling jurors to try civil and criminal cases. Canadian law interprets their meaning as a trial within a trial.
   Some of the problems mentioned in my posting of 24 May 2009 arose in a recent Vancouver civil jury motor vehicle accident trial causing the trial judge to declare a mistrial. He did so because jurors expressed a concern that their own motor vehicle insurance premiums might go up if they gave the plaintiff a high damage award.
   Applying English case law, the B.C. appellate court decided that B.C. lawyers should not suggest to a jury an appropriate range for an award of damages covering the plaintiffs claim for compensatory damages (pain, injury, suffering and loss of enjoyment of life). Nor can trial judges do so since the amount of those damages is a question of fact and facts are for the jury not for the judge.
   Apparently frustrated by the lack of assistance they received on this issue, one juror collected information on damage amounts from the web. Those amounts were not evidence in the trial. Therefore, the jury should not have taken them into account in its deliberations.
   Because of these procedural errors, the trial judge declared a mistrial. That caused both sides the extra expense of a second trial in about 6 to 12 months.
   This posting suggests how some of these errors can be corrected.

4. Summonsing the jury panel – politicians and judges

   Under our quirky Constitution, provincial legislators enact the laws on summonsing eligible individuals for jury duty in both civil and criminal cases. Thereafter, federal legislators enact the laws on the empanelment of jurors in criminal cases. Provincial legislators enact the laws on the empanelment of jurors in civil cases.
   The B.C. provincial Jury Act describes the kind of people who are disqualified for sitting as jurors in both civil and criminal trials. Interestingly, the Act exempts members of the federal Parliament, the provincial legislature and judges from jury duty.
   Federal and provincial legislators are not the people’s masters. They are the people’s servants. Why should these legislative servants escape their civic responsibilities of jury duty when their masters cannot? So long as legislators do not have to attend sittings of their respective legislative bodies they should be eligible for jury duty. Probably, they would only serve on one jury during their lifetime.
   The same goes for judges. Their names should be on the jury list so long as they are not engaged in judicial duties. Like most Canadians they will probably serve on just one jury. 
   These three groups of people either make or apply the law. What better way to discover if jurors have difficulty in using that law to achieve justice? Their participation as jurors from time to time will make them better legislators and judges. It will also serve as a reminder that they are the servants of the people not their masters.

2. Posting of 24 May 2009 – juror information sheet 

    My posting of 24 May 2009 recommended the adoption of a comprehensive juror information sheet and a challenge for cause procedure. Right now, potential B.C. jurors do not have to reveal information about themselves except for their municipal residence and their occupations.
   Perhaps counsel on the next civil jury trial can persuade the trial judge at a pre-trial hearing that jurors be required to complete an information sheet. With that in hand, perhaps the trial judge would agree to a challenge for cause procedure. 
   A suggested form for a juror information sheet can be found at this link: http://www.courtinfo.ca.gov/forms/fillable/mc001.pdf
 Now to a suggested procedure of challenging civil jurors for cause.

3. Challenging civil jurors for cause – English or American procedure

   B.C.’s Jury Act gives the parties the right to challenge jurors for cause. For unknown reasons, the B.C. Cabinet declines to publish the necessary rules although it has this authority under the Court Rules Act.
   Two models exist for this process. Canada’s Criminal Code outlines a process for challenging jurors for trial in criminal cases. Like so many procedural Code sections, it is based on ancient English laws, leaves out vital steps, and takes too much time. Drafting similar civil rules would invite lengthy debate and likely end in failure.
   The second is the American model. There does not seem to be any published rules governing the process. It is very flexible. Appellate courts give trial judges a wide discretion and rarely interfere.
   A helpful book written by Randolph N. Jonakait – The American Jury System, Yale University Press, Chapter 10, outlines the challenge for cause process in American courtrooms for both civil and criminal trials.
  Usually 12 potential jurors selected randomly from the jury pool come to the courtroom, and take an oath to answer any question truthfully that counsel or the judge might ask. They are then examined individually by the judge or counsel. Counsel may ask the judge to disqualify a juror because of bias. When this happens, judges will often ask the potential juror: “In spite of your present views, do you think you can reach a fair verdict based on the evidence you will hear and the law I will give you?” Almost always jurors will agree they can and those jurors are then empanelled.
   Mr. Jonakait estimates only one juror in twenty is excused from jury duty for cause.

4. Challenging Canadian civil jurors for cause – modifying the American procedure

   Presently, provincial Sheriff’s officers summons eligible jurors for both civil and criminal trials. In criminal cases, Sheriffs usually summons about 75-100 people for say 4 criminal trials. Without a challenge for cause procedure, usually the process can empanel 48 jurors in one day. Judges then tell these jurors to come back for their four respective trials at four future days when those trials begin.
   In civil cases, the Sheriff summons about 20 individuals to make up an eight person jury. Each side has four peremptory challenges – dismissal of a juror without having to show cause. If they use these four challenges that leaves 12 persons out of the original 20 available for selection to sit as jurors. 
   The twenty potential civil jurors summonsed may not be sufficient if the parties exercise their right to challenge individual jurors for cause. However, the Sheriff could summons around 80 jurors for the empanelment of 32 jurors to try four civil cases. A potential juror challenged in one trial might be accepted as a juror in one of the three other trials.
   American experience indicates it can take around two hours to empanel a civil jury using the challenge for cause procedure. B.C. lawyers and judges should be able to do the same. After the parties agree to the selection of eight jurors for each of the four trials, the judge will give them a date to return for these trials.
   As mentioned in other postings, provincial legislators should amend the Jury Act to provide for six jurors not eight. There are no studies proving that eight jurors produce better justice than do six. Similarly, the rules might consider the appointment of one additional juror as an alternate. He or she would sit with the other six jurors during the trial in case one of the six regular jurors becomes unable to act. Verdicts should be unanimous.

Bottom line:

1. History proves that autocratic leaders never tolerated trial by jury. As an English judge once said; “… it is the lamp that shows that freedom lives.”
2. Canada’s parliamentary system of government is another form of autocracy. Controlled by Prime Ministers, federal legislators have almost eliminated trial by a criminal jury through design or neglect. Provincial Premiers have not complained. B.C. Premiers have done the same to civil juries by neglecting necessary reforms and charging the parties outrageously high governmental fees.
3. To restore our democracy, Canadians should promote and encourage the reform and maintenance of our civil and criminal jury trial system.
4. Adopting the many jury reforms mentioned on this site would be a giant step forward.
8 June 2009

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

1. Introduction

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

CIVIL JURY TRIALS – CHALLENGES FOR CAUSE – JURORS’ PRIVACY

All that it takes for bad laws to prevail is for enough

good lawyers and judges to do nothing

Edmond Burke

1729-97 (edited)

  1. Introduction

    A 20 May 2009 article in the local paper describes a situation dealing with jurors’ right to privacy. In that case, the lawyer representing the defendant’s insurer asked the insurer to provide her with the personal claims history of the eight jurors already chosen to try the case. The trial judge considered this practice improper. Had defence counsel shared the information with plaintiff’s counsel perhaps that would have been acceptable.
    British Columbia has compulsory third party liability insurance for all motor vehicle owners through a government insurer titled: Insurance Corporation of British Columbia (ICBC). Therefore, ICBC would have the claims history of any jurors who owned a motor vehicle. Presumably, the defence lawyer wanted to use this information as an aid in presenting her defence.
    This posting discusses the right of parties to gain information from potential jurors before they are empanelled to determine whether they could fairly try the case based on the evidence they would hear.

CONSTITUTIONAL LAW – 2009 B.C. ELECTION – VOTER TURNOUT – MANDATORY VOTING

1. Introduction

   British Columbia just completed a general election. Media commentators and politicians worry about the relatively poor voter turnout. In 1983 it was 70.5%. Gradually it declined and in 2005 it was down to 58.19%. In 2009 it fell to 48.13%.
   To get some idea of whether B.C. is out of step with similar democratic jurisdictions, this posting compares the voter turnout situation in other comparable nations. It also discusses probable reasons for the decline not often mentioned in polite company.

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.

CONSTITUTIONAL LAW - EXCESSIVE POWER- CRIMINAL AND CIVIL JUSTICE SYSTEMS

1. Introduction

   Not one of the three candidates for Premier in the 12 May 2009 election has elevated the quality of political debate by discussing and answering important questions relating to the Constitution and the civil and criminal justice systems. 
   On the other hand, members of the public often mention these issues in their letters to newspaper editors and their calls to radio talk shows.
   Here are issues and questions that the public and interviewers could ask the three candidates to test their suitability for high office.