Criminal Law

1. Introduction
A recent Global Television poll claims that 90% of Canadians are upset with Canada’s criminal justice system. Can anything be done to change this perception? Not while we have our present Constitution.

2. Constitutional Mistakes
The criminal justice system got off to a very bad start in 1867 when the framers of our Constitution made two fundamental mistakes.

First, they gave the subject of criminal law to federal legislators. This mistake overlooked the fact that most criminal conduct like most civil misconduct are best controlled by local or provincial law makers. The federated common law nations of Australia and America with similar geographical features are two comparable examples. Their local state legislators enact their general criminal laws. Scotland is another example. Its criminal law is quite different from that of England.

Second, Canada’s constitutional framers compounded their first error by ignoring the principles of responsible government accompanying the 1867 Constitution. Under responsible government, the non-elected executive branch of government advises the elected legislative branch on the effectiveness of the legislation it intends to pass. Once enacted, the same executive branch administers those laws. Those common sense principles apply to almost every other federal and provincial subject matter in our Constitution

Ignoring those principles, Canada’s Constitutional framers went off in another direction. Instead of giving the federal executive branch authority to administer federal criminal law, misguidedly it gave that authority to the executive branch of each Canadian province. Since there are no front line federal civil servants in the nation’s provincial courthouses who are able to advise federal legislators in Ottawa, they legislate mostly in the dark.

Provincial legislatures must then tax their provincial inhabitants to pay for the cost of administering federal criminal laws, whether those federal laws or the lack of them are well thought out or not.

3. Examples of Federal Legislative Failures
Examples of federal failures include inadequate jury instructional rules; sequestering jurors until they reach a verdict; unlegislated speedy trial provisions and case disposition standards; inadequate preliminary hearing standards; prosecutorial disclosure and rules governing counsels’ addresses to the jury – to name a few.

(a) Jury Instructions
The Criminal Code does not mention this important part of every criminal jury trial. Therefore, its development became the responsibility of Canadian appellate courts. Ignoring other jurisdictions such as U.S. State and federal courts, Canadian appellate courts imposed almost impossible standards for Canadian trial judges to meet. They seem unique to the common law world.

American judges have a set of jury instructions authorized expressly or implicitly by their appellate courts. They usually are called Pattern Jury Instructions. In most instances, trial judges can put together a set of approved jury instructions in about 30 to 60 minutes. So long as they give these instructions, appellate courts will not intervene. Judges do not have to review the evidence for the jury. That is the duty of the lawyers. If a lawyer fails to object to an instruction given by the trial judge, that objection cannot be raised on appeal. Jury instructions rarely last more than 30 minutes.

By way of contrast, Canadian appellate courts do not expressly or implicitly approve any particular set of published jury instructions. Trial judges are on their own. At the end of the trial, judges must put together a set of instructions in a few hours or so lest the jury will start forgetting the addresses of counsel and the evidence. While doing this, they must examine the trial evidence taken from their own longhand notes and weave it into the relevant law. Trial lawyers need not say anything about a defective charge. They can silently preserve any trial court errors and raise them at the appeal hearing.

As a result of these differences, the American jury instructional system experiences a failure rate of about 1% to 3% for jury instructions reviewed by their appellate courts. Canada’s similar historical failure rate is about 30% to 50%.

Canadian jury instructions can last many hours and even days in order to meet the meticulous academic requirements of the appellate courts. There is no empirical evidence saying that jury instructions containing a review of the evidence are of a better quality than those that do not. Nor is there any statistical evidence proving that jurors understand and remember every word of the judge’s instructions that may last four to five hours or more. Common sense and practical experience indicates that after about the first 20 or so minutes of oral instructions, jurors’ concentration and memories start going downhill rapidly.
Trial judges’ jury instructions are a reasoned judgment on the law minus any findings of fact. Unlike the trial judge, appellate courts do not impose on themselves the obligation to produce a reasoned judgment within a few hours after the appeal is over.

Appellate courts and the federal government failed to support a 1991 attempt to modernize Canada’s antiquated jury instructional system. It remains little different today from what it was then. This may account for the steep decline of Canadian criminal jury trials.

(b) Sequestering Jurors at the end of the trial

Section 647(1) of the Criminal Code requires a trial judge to sequester the jurors at the end of the trial until they reach a verdict. In most provinces judges rarely sequester civil trial jurors.

Almost all American State and federal laws do not seem to compel trial judges to sequester civil or criminal trial jurors at the end of the trial. After 5:00 P.M. or so, judges usually tell jurors that they may leave the courthouse and return the next morning at 9:00 A.M. but they must not discuss the case with anyone else who is not on the jury.

The cost of sequestering jurors in criminal cases falls on the provincial taxpayers. It can be burdensome. Each of the jurors gets a separate hotel room. For security reasons, they must be supervised during the night by provincial jury guards. Then, both the jurors and the jury guards must be fed at provincial expense. Jurors can take as many days as necessary to reach a verdict.

The answer is to give Canadian trial judges the discretion of sequestering jurors at the end of a criminal trial depending on the circumstances.

(c) Speedy Trial Provisions and Case Disposition Standards
American States have speedy trial legislation compelling the State to bring an offender to trial within three months of arrest unless the defendant agrees to a postponement. They also have criminal trial case disposition standards or targets recommending that 90% of all defendants be disposed of within 120 days of arrest; 98% within 180 days of arrest and 100% within 12 months of arrest.

Canada has no speedy trial legislation. Appellate court law sets a rough limit of 18 months for the start of any criminal trial. Nor does Canada have any case disposition standards or targets for completing trials from the time of arrest. Cases can take many years from arrest to disposition. These unproductive features cannot become part of Canadian law without amendments to such things as Preliminary Hearings and prosecutorial disclosure.

(d) Preliminary Hearings
A Preliminary Hearing is not a Constitutional right. When a defendant elects to be tried by a superior court judge or a superior court judge and jury, the Criminal Code gives the defendant the right to a Preliminary Hearing before a Provincial Court Judge. Two criminal law defects prevent this from being a speedy process.

Firstly, appellate court law sets an unrealistic and arguably an unprincipled standard for committal. A Provincial Court Judge cannot commit a defendant to stand trial unless, “there is admissible evidence which could if it were believed result in a conviction.” Hence, the Judge can only hear evidence that would be admissible at the trial and could amount to proof of guilt beyond a reasonable doubt. This lengthens out Preliminary Hearings that can last up to seven or more months.

Secondly, appellate court law failed to take into account that a Preliminary Hearing is not a trial for the purpose of determining guilt or innocence. It is only a type of administrative hearing to decide whether a defendant should be put on trial. Under the law, evidence given at administrative hearings does not have to meet the strict standard of evidence given at a trial.

Most American Preliminary Hearings take a few hours or less. Hearsay evidence is admitted because it is not a trial. The test for putting a defendant on trial before a judge or jury is whether there is probable cause to believe that a crime has been committed and there is probable cause to believe that the defendant committed it.

Federal legislators should amend the Criminal Code to allow hearsay at a Preliminary Hearing and prescribe the American probable cause standard for committal.

(e) Prosecutorial disclosure
Canada’s Criminal Code does not contain any provision requiring prosecutors to disclose information to a defendant before the trial commences. In a 1991 case called R. v. Stinchcombe, the Supreme Court of Canada ordered prosecutors to disclose to the defendant before the trial all “relevant” or “material” information. The Court elevated the duty to disclose by making it a constitutional requirement. That means the quality of disclosure in every case ultimately is a matter for the Supreme Court of Canada and not Parliament.

Comparatively, American appellate courts decided that disclosure was not a constitutional requirement. The Supreme Court of Canada overlooked that American law in Stinchcombe, supra. While not a constitutional issue, American law makers in many States have enacted legislation requiring prosecutors to disclose such things as any statement the defendant made to the police; any statements made by persons who testified before a Grand Jury and any evidence that tends to favour the accused. In most instances, the timing of disclosing material is left up to the prosecutor.

In Stinchcombe the court said in part “ … I am confident that disputes over disclosure will arise infrequently.” That fond hope has not materialized. Anecdotal evidence indicates that disclosure in Canada has become a time consuming exercise in many criminal cases. One B.C. trial has been delayed four years from the time of arrest due to disclosure issues and is unlikely to come to trial in the near future.

Parliament should enact disclosure requirements and procedures to help streamline the process leaving it up for the Supreme Court of Canada to eventually decide whether they are constitutional.

(f) Counsels’ closing addresses to the jury
On the civil side of the law, counsel for the plaintiff make their submissions to the jury first. Counsel for the defendant then follows. They point out to the jury the strength of their case and by way of reply the weakness in the plaintiff’s case. Counsel for the plaintiff addresses the jury last by pointing out the weaknesses in the defendant’s case. In this way each side gets the opportunity to argue the strength of their own cases and the weaknesses of their opponent.

That is not the way it works in criminal cases. Section 651(2) of the Criminal Code prevents counsel for the defendant from replying to the case for the prosecutor if the defendant calls evidence. If defence counsel does not call evidence, the prosecutor addresses the jury first and defence counsel addresses the jury last. Defence counsel may then reply to the prosecutor’s argument and also argue the strength of the defendant’s case. In this scenario the prosecutor has no right of reply to the defendant’s argument.

This nonsensical arrangement compels defence counsel to weigh the advantages of speaking to the jury last against the possible advantage of calling of evidence. It is unfair.

The Criminal Code should be amended by adopting the civil law system of addressing jurors. The prosecutor will always go first. In that way the defendant can call evidence and still have a right of reply to the prosecutor’s argument. After the defendant finishes, the prosecutor will have a right of reply to the defendant’s argument.

This arrangement gives a jury a better understanding of each side’s position as compared to the existing system where one side or the other does not get a right of reply depending on whether the defendant calls evidence.

4. Conclusion
Public criticism of our dysfunctional criminal justice system is wasted when it is directed mostly at trial judges and lawyers. They are mere messengers for our defective Constitution and our criminal law statutes. Just as the provinces have the right to enact and administer all civil laws the Constitution must be changed to give them the authority to enact and administer all general criminal laws.

If that happens many of the deficiencies in the federal Criminal Code will likely disappear and provincial criminal law will become more effective and responsive to the Canadian public.