SUPREME COURT: RULE 18A

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What you Should Know About SUPREME COURT Rule 18A and the Denial of Jury Trials due to Rule 18A

Be prepared and informed when faced with any Rule of Courts most particularly Rule 18A.

The definition of Rule 18A as per the Canadian Legal Dictionary:

A Rule of the Supreme Court of British Columbia providing for the summary trial, on affidavits, of civil actions where a judge is able fairly to decide the case or an issue in the case, usually without hearing witnesses. This process is available only in British Columbia.

Myth: Rule18A was brought into force in 1986 to meet the needs of the day: a rising volume of litigation with concomitant increases in costs and delay.

Myth: Fair trial under Rule 18A.

Important Fact: Madam Chief Justice McLachlin, was one of the major key players at implementing Rule 18A to the Supreme Court Rules of B.C. In 1988 Beverly McLachlin was elevated to the position of Chief Justice of the Supreme Court of British Columbia, where she served until her appointment to the Supreme Court of Canada in 1989. She was appointed Chief Justice of Canada on January 7, 2000.

In 1989, same year Beverly McLachlin was elevated to the highhest court in Canada, Rule 18A was expanded so that a summary trial could be held even though one party had filed a jury notice. In effect the rule then abolished both the right to trial as we have known it and also the right to jury in civil cases --Dugald Christie--

In effect, Madam Chief Justice Beverly McLachlin holds the distinct position of killing the Jury Trial starting in British Columbia and then Rule18A spread across the country like a bad virus---

Dugald Christie, a practicing lawyer, who recently died on July 31st, 2006 as a result of being tragically hit by a car en route to Ottawa by bicycle, delivering a Petition to Prime Minsiter Stephen Harper, calling for Reform to the Justice System, had given his own legal opinion regarding Rule 18A and the following is what he had written in 1999 in an unpublished book:

It is astonishing to me that we should allow the right to trial and the right to give evidence in person to be nibbled to death without a word while a National debate rages on the rights of pedophile to possess pictures of children being sodomized. We truly "strain on a gnat and swallow a camel"!

The dimension of our error is enlarged when we examine the history of the common law trial. It was evolved over the centuries to prevent all kinds of unfairness.

It gave the claimant the right to speak first and in his own words;

It gave both parties the right to test the adverse witnesse's veracity by cross-examination in front of a judge;

the right to test subpoena unwilling witnesses;

the right to have a reasonable time within which to prepare for trial;

the practical ability to appear without counsel and still have a reasonable chance of winning and a host of other rights.

All the hitherto sacred rights are set aside in the bold social expiriment of Rule 18A!

We have not simply allowed error to creep into the law. We have betrayed our heritage, one that has brought us closer to true democracy and personal freedom than any other system yet conceived!

From the point of view of a practicing lawyer to express such sentiments would only alienate the Court of Appeal!

From the lawyer's more practical point of view, fighting a case in the Court of Appeal is a little like playing a chess game. Moral argumnents carry as little weight as popular opinion. It is the practical consideration that are the most telling in the Court of Appeal, more so than anything else including the law itself.

It is all very well to argue that the law requires a certain result. However, to push the Court of Appeal judge into deciding in a way he or she does not think is practical is usually as useless as pushing string.

In my view, none of the Court of Appeal Judges want to invalidate thr Summary Trial at this stage. They see too many practical difficulties. The crying need to make proceedings faster gave birth to the Summary Trial. That need is now greater than ever before. Judges are under the impression that if the Summary Trial is abolished, the court trial list will be inundated and we will never catch up. I suspect a proper study would show that it is not so.

In any event, the real answer is to reform the Court's time-consuming and archaic procedures so as to shorten proceedings. That is the correct approach and not to throw the baby our with the bathtub and abolish the right to trial!.

Another reason why Judges support the "Summary Trial" is that they like things neat and tidy. It is nice to have all the evidence neatly bundled into affidavits, readily tabbed and referenced to written submission.

The alternative, the traditional trial, requires the judge to scrupulously take notes and hear days of boring oral evidence. The fact that the "evidence" in most Summary Trials consists of words chosen by a lawyer is lost on most judges. They are more interested in intriguing points of law than enduring hours of boring oral evidence to determine what really happened.