Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for June 23, 2011
OTTAWA, Thursday, June 23, 2011
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-2, An Act to amend the Criminal Code (mega-trials), and Bill S-1001, An Act respecting Queen's University at Kingston, met this day at 10:34 a.m. to give consideration to the bills.
Senator John D. Wallace (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome. Honourable senators, distinguished guests, and members of the viewing public, I am John Wallace, senator for New Brunswick and Chair of the Standing Senate Committee on Legal and Constitutional Affairs. I welcome you to today's hearing. We are here today to continue our review and consideration of Bill C-2, An Act to amend the Criminal Code (mega-trials). The short title of this bill is the Fair and Efficient Criminal Trials Act.
Bill C-2 was introduced in the House of Commons on June 13, 2011. On June 14, 2011, this Standing Senate Committee on Legal and Constitutional Affairs was authorized to examine the subject matter of the bill in advance of the bill coming before the Senate. The intent of the bill is to address the delays that are common when court proceedings are complex and drawn-out in what have been termed "mega-trials." These mega-trials deal with serious offences such as organized crime, gang-related activity and terrorism.
Honourable senators, to resume our public hearings, I am pleased to welcome to our first panel Mr. Jacques Dupuis. He was admitted to the Quebec bar in 1974. After an extensive career as a litigator and a professor of law, he acted as a permanent Quebec Crown prosecutor assigned to fight against organized crime.
In 1998, Mr. Dupuis embarked upon a career in politics, serving a number of prestigious parliamentary and government positions in the Province of Quebec, including Minister of Justice, Attorney General and Minister of Public Safety.
Mr. Dupuis, we welcome you. I believe you have an opening statement.
[Translation]
Jacques Dupuis, as an individual: Mr. Chair, thank you very much for inviting me to be here.
[English]
It is absolutely an honour to have been invited to testify to a certain extent in front of you.
At no time should be comments be viewed as being the opinion of the Government of Quebec.
[Translation]
I do not represent the Government of Quebec. I am appearing before you as a citizen who is interested in the fight against organized crime. I took the time, with Ms. Anwar's permission, to provide you with a plan for my short speech. I heard the chair's comments, and I will try to be as brief as possible with my statement that will launch these discussions. So it is a plan of the presentation. I will then have a suggestion to make concerning a possible amendment to Bill C-2. I have no illusions, but I hope to share this possible amendment with you, and I will discuss it a little later.
I think that you will agree with me that the relevance for the government of tabling and then adopting Bill C-2 is no longer in question. Proof of this lies in the agreement of all the parties represented in the House of Commons, with the exception of Ms. May, who wanted to hear from a certain number of witnesses. The consensus in the House of Commons is that not only is Bill C-2 relevant, but it must also be adopted as quickly as possible. And in that respect, the agreement of all the parties in the House of Commons proves it.
It is important to say that Bill C-2 is the result of a long process of reflection that began in 2003 on holding mega-trials. Why? Because over time the police organizations have specialized their investigations, which have become more and more complex. Why? Because crime and criminals have become increasingly organized. They have built organizations that they wanted to be secret; and to infiltrate them, new investigation methods were needed. So police investigations have become more complex because criminals became more organized and more secretive.
Crown prosecutors have adapted to these investigations and, within the provincial Crown, particularly in Quebec, but I know this is the case elsewhere in Canada as well, they have created squads of Crown prosecutors who specialize in proceeds of crime or organized crime. We have even added to this and, when police investigations into well-structured criminal organizations begin, Crown prosecutors follow police officers as the investigation progresses to ensure that their actions are always verified by a Crown prosecutor to make sure that everything remains legal.
So Bill C-2 overlaps with this new way of investigating organized crime so that we can bring individuals before the courts. We have discovered that since these organizations are so well organized, when charges are laid, they are being laid for criminal activity that has been going on for a number of years and that has had several consequences, so hence the word mega-trial.
The other important aspect is that Bill C-2 introduces this concept of a judge that would be appointed to manage the case, so case management. People listening to us must know that this trend, particularly, but not exclusively, in the Supreme Court, of enabling judges to manage the case, to get involved in a certain number of sectors in order to control the case before them. This is a trend that has already been under way in Quebec and elsewhere for some time.
For example, in Quebec there has been a desire to reform the civil code. Many provisions have been suggested to enable a judge to hear a trial or to allow the chief justice to appoint a judge to manage a case before the evidence regarding the merits of the case have been heard by a puisne justice. It is not surprising that we are introducing this issue of case management in Bill C-2.
Three things before I conclude. First, it seems to me, and I say this with all due respect, and I think other witnesses have told you the same thing, that it is urgent that Bill C-2 be adopted. Urgent because we want to be efficient; urgent because, with respect to the province of Quebec, trials will have to begin and will take place starting in September, criminal organizations that I cannot identify here because these files are pending before the court, but also to restore public confidence, so that the public knows that its leaders, the House of Commons and the Senate of Canada, are interested in having individuals who commit crimes that can be proven, while respecting the presumption of innocence, prosecuted as effectively as possible. So it is urgent that this legislation be adopted. You are the last bastion in the adoption of this bill, so I encourage you to adopt it and have the Governor General give Royal Assent as quickly as possible.
Second, it seems to me, and we can discuss this during the question period, that this is a bill that some might describe as a procedural bill. Under the federal legislation Interpretation Act, a procedural bill enters into force as soon as it receives royal assent, so if it was adopted right now, it could be applied to files for cases that are pending before the superior court in Quebec, for instance, and that are to start in September. But I have one fear.
[English]
I was a defence lawyer at a certain point in my life, a long time ago, but I did not forget a few of tricks of the trade. My worry is that a defence lawyer who would be creative enough would argue that Bill C-2 is not strictly a procedural law.
[Translation]
Bill C-2 is a substantive bill so that defence lawyers —
[English]
— could argue that it should not apply right away and should not apply at the trials that are supposed to begin, for example, in Quebec in September.
[Translation]
Along those lines, please allow me, as a citizen and with all due respect, to present to you a plan, a thought I had about a possible amendment to the legislation that would confirm that it is in fact a procedural bill so that there would be no question in the minds of the judges who will have to interpret petitions that would be brought forward, that this bill must come into force as soon as it is adopted. We can perhaps discuss this during the question period. That is my first comment: ensure that it absolutely clear that the bill is a procedural bill so that it comes into effect as soon as it is adopted.
Finally, and I will conclude with this, not for the work of your committee, but I think that the federal government will very quickly have to weigh the relevance of amending the Criminal Code to legalize, not legitimize, but legalize the method of disclosing evidence electronically.
For example, in the SharQC file, a trial that is to begin in September, if we had to describe the evidence that the police have amassed in terms of the amount of paper, we would have 145 kilometres of paper. So there are all kinds of problems with disclosing evidence electronically, and the lack of knowledge that lawyers have about these questions. Myself, at my venerable age, I am a dinosaur when it comes to electronic means. Perhaps you are much better at it than I am, particularly Senator Fraser, given her background. I have difficulty with these electronic means, but lawyers more and more are learning about this. So it is important to look into this.
As for the fight on organized crime, particularly in Quebec, since the creation of the Bureau de lutte au crime organisé within the provincial Crown in 2001, 558 people have been found guilty of organized crime offences. So let us not give up. Yes, we are fighting organized crime. There are obstacles. Of course there are obstacles, obstacles that are being put in our way, first of all by criminals. As a public power, I encourage you not to add to these obstacles, but to help remove these obstacles. Bill C-2 seems to me to be a tremendous instrument in the many ways that society can fight organized crime and criminals. I thank you for taking the time to study it.
Senator Fraser: Mr. Dupuis, good morning and welcome to the Senate. Yesterday, we heard from a lot of interesting witnesses, among others, including a representative of Quebec prosecutors, who found that the legislation itself was good, but who told us that it would not be as useful as hoped because of other factors, namely the lack of resources in Quebec.
I am not asking you to comment on the budget policy.
Mr. J. Dupuis: Despite all your best efforts, I am going to try to stay far away from politics.
Senator Fraser: I am asking you, when you look at the situation as it stands, without political criticism or praise, but as it stands, according to the judge — a lack of rooms, a lack of judges, a lack of everything, it is probably like this across the country — do you think that this legislation, if adopted, would really improve things, or was the prosecutor who testified yesterday right when he said that the other things are going to hinder the effectiveness?
Mr. J. Dupuis: I would say that there is no doubt in my mind that Bill C-2 is going to improve the situation. Let me give you an example, one you have probably heard the most, but one that is the most relevant. The provisions in Bill C-2 allow us to present several preliminary motions dealing with the authorization of electronic monitoring, for instance, when there are several accused individuals involved, who are accused in a few files of the same charges that stem from the same facts. Are we going to admit electronic monitoring and is the authorization legal? So, we are going to be able to bring together all these accused individuals, from all these trials to present the preliminary motions once — only once — and not have to start the same preliminary motions again at each of these trials, since a provision in Bill C-2 would allow the judge managing the case to hear one preliminary motion, render a decision on that preliminary motion and, if the interests of justice are in order, that decision would apply to all of the accused individuals. That is the first part of my answer.
The second is this: as I mentioned before, criminals are becoming more and more organized, they are becoming more and more secretive, and this is having a significant impact on their criminal activities. As you have seen, the police have adapted to this by developing new ways of conducting investigations, such as using informants, electronic monitoring, video surveillance, and these investigations take a lot of time. The Crown has adapted by setting up specialized teams and having Crown prosecutors work with the police.
For spring 2001, an operation prior to SharQC, Quebec built a courthouse to handle these lengthy trials. After Spring 2001, having realized the difficulties, the Government of Quebec added $3.9 million to review the organization.
I read in the newspapers recently that the Quebec minister of justice had indicated that he would provide additional financial resources to review the rooms. I read in the newspapers that the Quebec minister of justice had indicated that he would add 96 Crown prosecutor positions, and I also read in the newspapers that negotiations are currently under way with prosecutors. Is everything perfect? No. If everything were perfect, we would not be here. So not everything is perfect.
But, I also heard the director of criminal and penal proceedings recently say, after the famous ruling by the Honourable Justice Brunton, that we will be able to hold the trials.
I am aware of the difficulties that the Association des procureurs de la Couronne is experiencing in their negotiations with the government. Being an optimist by nature and knowing that the Crown prosecutors are, above all, people with a calling, I think that this matter is going to resolve itself and that we will be able to move things forward.
But yes, this will begin to get things done. Very important things. I apologize for taking so long. I hope I have answered your question.
Senator Fraser: Thank you very much.
Senator Boisvenu: Good morning, Mr. Dupuis.
Mr. J. Dupuis: Mr. Chair, let me acknowledge Senator Joyal and Senator Boisvenu specifically, whom I had the chance of meeting in a former life. You will notice that I am greeting them in the order they came in the Senate, because I do not want to take sides.
Senator Boisvenu: Since I was involved in the parliamentary commissions on bills as president of the association, who would have thought that one day our roles would be reversed?
Mr. J. Dupuis: Exactly. But I will be nicer than you were then. I am just teasing you.
Senator Boisvenu: I will be the nicer one. I am going to ask you a question about the costs.
An issue that is really bothering me is the financial support that the government gives to alleged criminals, such as bikers. I have a moral question when I see that regular people do not have access to legal aid, and that, when they do have access, they only get the minimum whereas these alleged criminals get up to three times the threshold.
I was reading in the papers that the government had to spend $240,000 on one of the 31 alleged criminals who have recently been released in Quebec. In terms of paying crown prosecutors and in terms of delays, Quebec has twice as much trouble as Ontario. As Justice Brunton said, "The only reason I am releasing these 31 criminals is because of the delays. The trials would have gone on to 2020."
Should Quebec and the provinces not look deeply into their conscience and think about these alleged criminals who have been involved in money laundering all of their lives, who have polluted our high schools with drugs, and who have corrupted our 12- and 13-year-old girls into prostitution? Maybe the government should not pay for these people, but should use that money to invest in our police force, in our tools and in better supporting the legal system.
Mr. J. Dupuis: I had the same concern as you when I was a crown prosecutor for the proceeds of crime team because, at the time, we were seizing the goods that these criminals got as a result of their wrongdoings. I also had this concern when I was the Minister of Public Safety and Minister of Justice.
I think we have to acknowledge first that the fees paid to lawyers are based on a court decision. Courts are clearly the ones making the decision; the government does not make that decision, courts do.
I will be honest with you and tell you what my answer is after having given it some thought. It seems to me — and I do not want to blame anyone — but it seems to me that the investigations police officers do when a request for fees is prepared before a judge should be as thorough as the investigations that are conducted in order to find evidence on the merits. Let me explain. In court, the alleged criminal — you are right to use that term — must prove that he cannot afford a lawyer for such a lengthy and complex trial. The Crown therefore has to prove that the person is not telling the whole truth about the assets they might have. So I made a point at the time that police officers had to take those investigations very seriously so that they could submit evidence to the contrary in court when the accused claimed that they had a right to a lawyer.
Having said that, senator, I obviously cannot comment on the court decision because only courts make those decisions.
And I understand your concern since, for the accused who are tried under the Quebec justice system and who are subject to a decision like that, the federal government is paying 50 per cent of the bill because these amounts are now paid from the legal aid budget.
I would insist that the police officers conduct serious investigations to be able to show, based on those people's lifestyles, that they can afford more than they have claimed in court. I know it is an incomplete answer, but I thought about it and it is the only answer I can give you.
[English]
The Chair: Senator Boisvenu, if you do not mind, if you have another question, could it wait until the second round? With the passage of time, we will run short. If senators could restrict their comments particularly to the issues related to Bill C-2, I know there are some issues that are incidental to it.
Mr. J. Dupuis: I might be too long in my answers, as well. Please do not hesitate to signify that I am taking too much time in my response.
The Chair: On the other hand, we want to hear from you. However, if you could keep that in mind, we would appreciate it.
Senator Baker: As a lead-in, I might say that Senator Boisvenu was referring to the Attorney General rates. He was not referring to the legal aid rates. He was not referring to, as I understand him to put the question, motions made by the defence for the release of proceeds of crime, of which you are aware. You have been through that application, which is another matter.
You have legal aid rates, and then you have the release, which is up to the defence to apply and the judge to judge on.
What Senator Boisvenu was touching on is a matter of concern, and that is that the Attorneys General of the provinces have established a rate above that, normally 15 per cent above.
Mr. J. Dupuis: I am well aware of the fact there was a negotiation, particularly in Quebec, between the defence lawyers and the Attorney General.
Senator Baker: We all know what you are talking about when you say you love to have a hard copy of disclosure. However, the day is gone, as you know, and you no longer have a right in Quebec to have hard copy of all of those disclosures. You must accept the CD-ROM, and then you have to prove there is something wrong with the CD-ROM.
Mr. J. Dupuis: That is correct.
Senator Baker: We are into a new era. All of these things have caused this proliferation of time, and arguments and motions. In the most recent case of R. v. Auclair, the judge was very clear: He blamed the problem mostly on institutional problems. Only two courtrooms in Montreal, in the entire province, could even handle the case even up to the year 2021. You have not addressed that issue. Furthermore, the judge said we need more Superior Court judges. Those people are appointed by the federal government, not by the province. They are paid by the feds, and they are not saying they will appoint more judges with this bill.
How do you answer the judge in Auclair, who says the problem is institutional, which goes against the Crown, as you know, in determining an 11(b) argument. Unavailability of courtrooms goes against the Crown in the determination. It is not systemic. How do you answer the judge and how do you answer the fact that the federal government has not told us they will increase the number of judges?
Mr. J. Dupuis: Even though you are trying your best to bring me to the table as a political party, I will refuse that invitation. I refuse the invitation, with respect.
I said a few moments ago that the whole thing is a problem. The very fact that the mega-trials have not been dealt with in the law is one thing that you will cure today, at least I certainly hope so.
The question of how technically we can hold the trials, first, in 1999-2000, a courthouse was built in Quebec, especially to be able to house those trials. After spring 2001, as it should be called, which was the first mega-trial in Quebec, the government discovered there were problems with that courthouse, so they injected $2.9 million to correct those problems.
He did not speak to me, of course, but I read recently in the paper that Quebec's Minister of Justice is investing money to renovate a few of those courtrooms that could be used in mega-trials. He has added 96 Crown prosecutors to the provincial Crown. He has negotiated with the Crown attorneys concerning their salary issues.
Those are the efforts being made to meet the requirements of the judge in the Auclair case. Not only is the judge in the Auclair case, but this what the population is asking of the government.
As I said a little earlier, we do not live in a perfect world, but we are adapting, as much as and as fast as we can, to the situation. I can tell you that.
Again, with respect, I will now shut my mouth.
Senator Baker: Wise choice.
The Chair: Senator Baker, does that concludes your question?
Senator Baker: I figured that.
The Chair: It was a question, but I appreciate the answer. It was very good.
[Translation]
Senator Joyal: Welcome, Mr. Dupuis. It is nice to see you again this morning. In a former life, we shared the same stages on Canada's behalf and, as you know, commitment to Canada is a daily commitment to Quebec. Despite the fact that you left the political arena, I hope you will continue to stay true to this commitment.
Mr. J. Dupuis: Senator Joyal, if I may, that is exactly why I said this morning that it was an honour to be invited to testify before the Senate to give my opinion on Bill C-2.
Senator Joyal: I would like to go back to the second point you made about implementing the bill.
Mr. J. Dupuis: Yes.
Senator Joyal: If you look at clause 17 of the bill, called the "Coming into Force," at the bottom of page 11 and the top of page 12, you will see that there are two provisions for the coming into force that make a distinction between some of the sections, including sections 1 to 6, 10, 11, 14 and 16 in the first part.
Mr. J. Dupuis: Yes.
Senator Joyal: In the second part, we have sections 1, 3, 7, 8, 9, 12 and 13. Written right into the bill itself, it seems the coming into force will be done in two stages. In my view, that goes against what you are proposing today in terms of making an amendment to send the bill back to the House of Commons.
The House of Commons is about to adjourn. The question is whether there will be consent to pass the bill as amended by the Senate. That might push the bill back to the fall. But the objective of your amendment is to make sure that the bill can have an immediate impact.
Mr. J. Dupuis: Yes, exactly.
Senator Joyal: Instead of running the risk of pushing everything back to the fall, should we not accept the bill in its current form and ask the government to make a stronger commitment to the two orders in council that divide the implementation of the bill into two stages?
Mr. J. Dupuis: Thank you for your question. First of all, I was under no illusions about my amendment being adopted right away because I am aware that legal experts have to review and study it.
But I have moved these amendments because I thought it was important to point out that, if people want to challenge Bill C-2, they have to understand that it is a procedural bill and therefore one that has to come into force and to be used when the trials begin in September.
I was under no illusions, but at least it is there; I have brought it forward. If, at some point in the future, there has to be a debate in court about the bill not being procedural and that it cannot therefore be used in the trials in September, the Senate committee would have this modest testimony from me.
Second, the order in council allowing the bill to come into force is one thing, but the requests that can be made in court are something else. Despite the coming into force of the bill, defence lawyers might not feel constrained about starting proceedings with the argument that it is not a procedural bill, but a bill that attacks the competence of the court and that therefore should not take effect in September.
That is why I tabled the amendment, but I follow you perfectly, Senator Joyal. I do not have anything specific in mind and I am not arguing a case. I am not asking the Senate to suggest that the House of Commons amend the bill. But there it is; it is a statement of my personal opinion.
[English]
The Chair: Senator Joyal, your other question will have to go to second round, if we have time. I am sorry.
Mr. J. Dupuis: I would have been surprised if he had not had another question.
Senator Runciman: Mr. Dupuis, do I understand you correctly that you were a former Crown attorney?
Mr. J. Dupuis: Yes, I was.
Senator Runciman: You were a former public safety minister, former Minister of Justice and, at one point in your career, a defence lawyer.
Mr. J. Dupuis: Yes, I started as a defence lawyer. Then, I discovered that it would be better to be Crown. I am kidding.
Senator Runciman: It is wonderful to have someone with your range of experience testifying. We are hearing from every perspective accept the accused. I am assuming you are not providing that testimony.
Mr. J. Dupuis: Not as an accused, I certainly hope not.
Senator Runciman: I want to have your perspective, given your range of experiences. We had some excellent presentations yesterday with respect to a number of issues that were in contention from the Canadian Bar Association and Mr. Justice LeSage who appeared before us, as well. One of those issues was with respect to the need for a rigid definition of mega-trials. Of course, the former Chief Justice feels that would be limiting the descriptors. As a former Chief Justice, he felt that they will go through the process; they will not appoint someone as a case management judge unless that case is a complex and challenging one. Do you have a view with respect to that issue?
Some of those individuals felt that one judge should be both case management and trial judge. This legislation does not preclude that as a possibility. However, they also said that the case management judge's recommendations should not be binding, which, to me, neuters the legislation. They mentioned the increase of the number of jurors to 14 and that that may cause some problems. I would like to get your feedback on those issues.
Mr. J. Dupuis: I will address the binding issue first.
I had the opportunity to read the Canadian Bar Association's brief. I was very surprised.
[Translation]
If we accept what the Canadian Bar Association claims in its brief, the bill would be useless.
[English]
There would be no use for a C-2 Bill. What they suggest is exactly the contrary to what we want to do in Bill C-2. Not binding is exactly what is happening now. Not binding a decision is exactly what we are living through now.
I remind the committee of Mr. Justice Jean-Guy Boilard, a well respected Quebec Superior Court judge who decided, after four months of trial, that he could no longer sit on the mega-trial of the accused from Operation Printemps. The trial had to begin all over again with Quebec Superior Court judge, Mr. Justice Pierre Beliveau.
If Bill C-2 had been adopted by then, all the decisions that had been rendered by the Justice Boilard would have applied. In front of Justice Beliveau, we are again trying those preliminary motions. It took four months. I think it should be binding. Parties know that and will have to accept that.
With respect to definition of mega-trials, when I first read Bill C-2 when I received it at the office, I was surprised that there was no definition of "mega-trial." However, after thinking about it, I thought, "That is a hell of a good move." Do you know why? If there were a definition of mega-trials in the law, then all defence lawyers would argue that it should not be a mega-trial for this-and-this reason, and this motion would last for weeks.
Senator Runciman: That is an excellent point.
Mr. J. Dupuis: It will be at the discretion of the judging chief. The parties can make suggestions so that the provisions of Bill C-2 should apply to a particular trial. This is a decision that will be made. However, that should stay as it is now. Thank you for your question.
Senator Meredith: Mr. Dupuis, thank you for your frank and passionate presentation today.
We talk about the sophistication of crime groups who are well organized and the hurdles put up with respect to getting off on these charges. Having previously been a defence lawyer, can you elaborate for us on some of these hurdles? Can you explain how Bill C-2 removes them?
Mr. J. Dupuis: When you are an accused who is well represented by very competent defence lawyers, you understand that time is of the essence. In other words, the more elapsed time in between the time you are charged and the time you go to trial, the more this benefits you because the memory of witnesses tend to lapse. Any other incidents can happen during the trial that are of benefit to the accused.
When you are a defence lawyer or an accused, time is of the essence. Every trick of the trade that one can use to postpone the time of trial will, in theory, be beneficial.
Therefore, without Bill C-2, one can table a number of motions, which can take weeks to argue. These motions can also take a few weeks to be decided upon by the judge who has heard them. With Bill C-2, one takes this possibility of using time as benefit from the defence lawyers and from the accused. However, we must be reminded all the time that the accused has the right to a full defence. You cannot infringe upon his or her rights under the Canadian Charter of Rights and Freedoms; we respect that. Bill C-2 allows the trial to be held without interruption, if the preliminary hearings are heard previously. In case an incident happens during the trial and we have to re-try the person, a few of the decisions that have been rendered will apply, which is an important improvement.
The Chair: We have others who wish to ask further questions of you, Mr. Dupuis, but we are regrettably beyond our time for this section.
On behalf of the committee, I thank you. Your experience as a litigator, Crown prosecutor and Attorney General in Quebec shows through. Your very practical view of the issues addressed around this table is very valuable to us. We thank you for taking the time to be here.
For our second panel today, I am pleased to introduce from the RCMP, Deputy Commissioner of Federal Policing, Bob Paulson. Also on this panel is Mr. Richard Dupuis. Mr. Dupuis spent over 30 years in the Montreal Police Service where, among his many responsibilities, he held the post of Commander of the Major Crimes Unit.
We will begin with an opening statement from Deputy Commissioner Paulson, followed by Mr. Richard Dupuis.
[Translation]
Bob Paulson, Deputy Commissioner, Federal Policing, Royal Canadian Mounted Police: Thank you for inviting me to appear before your committee this morning.
[English]
I have not prepared any written introductions, so I thought I would introduce myself and those with me who have come here to discuss this important bill.
I am currently the Deputy Commissioner for Federal Policing with the RCMP. That encompasses all of our organized crime work, market enforcement work, border integrity work, as well as other large investigations in which we engage. Prior to coming to Ottawa, I was an organized crime, major case manager in British Columbia for several years. Before that, I was a major crimes investigator and a homicide investigator. I have been around the major cases for most of my service. I think this is an important opportunity to bring some efficiency to the process.
I am pleased to be here with you today to answer any questions you might have.
The Chair: Mr. Dupuis, please go ahead.
[Translation]
Richard Dupuis, as an individual: Mr. Chair, I appear before you today as a Canadian citizen with some expertise in criminal investigations. I was a police officer in the Service de police de la Ville de Montréal for 30 years, the last 20 of them as an investigator. Among other positions, I worked as an inspector in the intelligence division where I was responsible for the entire area of witness protection, meaning special witnesses, such as informers and those in need of protection.
My responsibilities included expert witnesses and the anti-intimidation plan, a program of the Service de police de la Ville de Montréal. I also commanded the major crimes section. I looked after the administrative and operational management of homicide, kidnapping, hostage-taking and robbery cases, and negotiators. At the end, I was the commander of Montreal's Escouade régionale mixte, whose dual mandate was to combat criminal bikers and to bring the mega-trials that followed Opération Printemps 2001 to a successful conclusion.
With that introduction, I would like to thank the members of the Standing Senate Committee on Legal and Constitutional Affairs for allowing me to participate in this dialogue, to comment on Bill C-2 and to contribute in a small way to this advance in criminal law in Canada. Having read Bill C-2, I would like to draw the committee's attention to two points that particularly stand out for me, given the areas in which I have expertise.
The first point arises in part 18.1, section 551.3(1)(g). This deals with the question of expert witnesses. This section refers to the responsibility given to police expert witnesses in mega-trials on gangsterism charges, that is, first and foremost the responsibility to establish the profile of the criminal organization of which the accused allegedly are part. Several days, if not weeks, are necessary in order to establish this profile, with a whole team of investigators. As a principle, it is quite complicated. All of the police event reports, the arrests, the arraignments, the observations, the surveillance reports, the electronic surveillance summaries, the gatherings, and all information about any parties that the people attend, meaning the people linked to organized crime and the criminal organizations targeted by our investigation. It all must be analyzed and prepared into official statements so that they can take the form of a report. This document must provide the evidence that the group in question is one that carries out criminal activities. Then, that whole line of investigation has to be repeated for each of the people involved in the previously mentioned events.
This process will help trace an accused's criminal career within a criminal organization and their involvement in the substantive offences they are being charged with.
Few police officers are recognized as expert witnesses. What is more, each of them is specialized in a specific criminal group within their area of responsibility. Therefore, you can appreciate that an expert in Asian-based organized crime could not testify in a trial involving Italian-based organized crime.
Take project SharQC as an example. That operation led to the arrest of more than 150 individuals affiliated with the Hells Angels criminal gang. In addition to the colossal amount of work required on the part of police organizations, extremely long delays go hand in hand with such legal proceedings given that only a limited number of police officers will be recognized as experts in the area and authorized to testify as such.
In terms of recommendations or suggestions, I would respectfully submit to the committee that, when an organization has already been deemed a criminal organization under the law, it should continue to be treated as such by all courts to avoid duplication and unnecessary work.
I would also respectfully submit to the committee that, in cases where an accused has already been convicted of gangsterism and faces the same charges in the future, the burden of proof should be shifted. The onus would be on the accused to prove that, since the previous conviction, they had dissociated themselves from the criminal group and had absolutely no involvement in the group's activities.
The second and final point I would like to make has to do with strengthening measures to protect jurors' identity, as set out in section 631(6). Of course, this is a step in the right direction. But as we all know, the criminal groups targeted by mega-trials are powerful, and their branches are both highly organized and influential, unfortunately giving them the ability to exert undue pressure on those called upon to serve as jurors in their trials. Not only is it important to protect their identity, including their name as set out in Bill C-2, but it is equally important to prevent jurors from coming into any physical or visual contact with the accused and their counsel, during both jury selection and the trial.
In order to provide jurors with full protection, it would be necessary to review the ways in which jury members are allowed to move around both inside and outside the courtroom. Furthermore, to enable every jury member to perform their duty to the best of their ability, it is key, in my view, to re-examine the compensation plan for individuals recruited to serve as jurors.
I personally experienced a case where two jurors asked to be dismissed four weeks into a trial for financial reasons, given that they were self-employed and thus the sole source of income for their families. Their requests were denied, and since they had disclosed their situations openly and publicly to all the parties, the two jurors had put themselves in a vulnerable position that the accused did or could have taken advantage of. In my opinion, the ideal solution is not simply to increase the number of jurors who are available to hear cases as large as those heard during mega-trials, a measure set out in Bill C-2. On the contrary, all that provision does is harm even more people. The only way to protect jurors is to protect their physical, moral and financial integrity, thereby preventing any corruption attempts.
I have three quick suggestions or recommendations. First, protect jurors' anonymity. Second, put adequate security measures in place — and I am referring to video transmission or protective screens so that jurors do not come face to face with the accused. Think of the case mentioned earlier, and picture yourself as a jury member sitting in front of 25, 30 or 40 individuals charged with 15 or 20 murders. Just imagine the psychological impact of that contact and the pressure you would feel.
In conclusion, I have high hopes that the legislation arising from Bill C-2 will make it easier to administer justice and to improve the effectiveness and efficiency of those who have made it their mission to keep our streets safe. It is often necessary to take extraordinary measures to deal with situations that are far from ordinary. Mega-trials are a perfect example of that. However, certain amendments are needed so as not to create other problems. Thank you.
[English]
The Chair: Thank you very much, Mr. Dupuis. We will now turn to questions from our committee members, beginning with Senator Boisvenu.
[Translation]
Senator Boisvenu: Thank you for your brief, Mr. Dupuis. I am delighted to see you again. We had the opportunity to work together on providing better service to the families of murder victims, especially in the Montreal area. I want to commend you for your work. You were one the most motivated and motivating partners involved in that initiative.
I found your brief extremely interesting. I was particularly struck by your suggestion regarding the criminal history of these individuals, when they are known to belong to a criminal gang, to the underworld, and in most cases, return to that lifestyle. When those same individuals again become the subject of mega-investigations, which cost the government a fortune, the burden of proof is still always on the Crown, as though the Canadian Charter of Rights and Freedoms protects the rights of criminals more than the rights of our institutions and honest citizens.
I would like you to put yourself in the shoes of a police officer or an investigator whose job it is to work on these investigations — investigations that are not always easy, investigations that are often discouraging when you see 31 criminals being released into your region after you have spent years on an investigation, undoing any progress you had made. I can see how you would be crushed, unmotivated to start over.
How will Bill C-2 better arm investigators and make their work easier in this regard?
Mr. R. Dupuis: I would say that simply by making it possible to transfer previous decisions from one court record to another, Bill C-2 will significantly reduce work in the future and favour unanimous decision making in all of the cases involved.
As you know and as the honourable Justice Brunton pointed out in his recent decision, court proceedings were expected to last until perhaps 2015 or 2016. Given the accused's membership and the criminal group in question, once a decision was made, Bill C-2 would ensure that all the proceedings following that decision were binding. Right off the bat, that cuts out a considerable chunk of duplicate police efforts.
You can appreciate that an expert police officer, who has to go from one court to another, often giving the same testimony, is quite likely to make a tiny error that the defence counsel can seize upon. If that officer is required to testify just once and that testimony is included in the other court records, that alone would ease the police work burden, based on what the officers I still have significant contact with tell me.
[English]
The Chair: Deputy Commissioner, do you have any comments to make to the senator's question?
Mr. Paulson: I agree with my colleague. The assignment of the case management judge, to my mind, depending on how the case management judge manages the applications and is persuasive in having the parties agree to facts, will streamline the frequency and the time that officers have to spend in court. On the issue of severance and so on, the idea that there will be this sort of binding approach to pre-trial motions and constitutional arguments that are settled will also reduce the amount of time that officers have prepare and defend their work.
[Translation]
Senator Boisvenu: Mr. Chair, I just want to apologize to Mr. Paulson for not greeting him.
Mr. Paulson: Thank you, senator.
[English]
Senator Baker: Before I ask my question, I want to point out to the committee that Mr. Paulson is a person who over the years was frequently referenced in court decisions in British Columbia and recognized by several Superior Court judges as being an outstanding expert in the technique of interviewing persons in major crimes. It is quite remarkable that a judge would pass such a comment — and in one case, the judge went on for 59 pages. I think the court ruled in favour of the defence on a Charter application, but in the process the court gave you great praise. Most of the cases were murder cases that I recall. It is unfortunate that you have now been promoted up the line.
Mr. Paulson: Unfortunate, indeed.
Senator Baker: You can no longer give us that expertise that we need in the interview room.
Deputy Commissioner Paulson, we have heard from a number of defence counsel who are happy with this legislation. We have heard from Crowns who are happy with this legislation. We have heard from a former Superior Court judge who is happy with this legislation. There is only one other group of people involved in this process. Someone has got to have the work on their shoulders in this entire process, and I think it is the police.
You have to now produce every single bit of disclosure between the time the arrest is made and the decision that a judge will be appointed to manage this and make these decisions. These are very complicated trials. You said in your presentation that you try to avoid mega-trials where you can. They are very complicated. After you have charged people, is not there an incredible amount of work that the police have to do in preparation for trial that you will now have to speed up in order to address these advance applications?
Mr. Paulson: Thank you, senator, for the kind words.
If we look at the continuum of the pre-investigation, investigation, charge and post-charge approach to this problem, there are many opportunities for the police to influence how the trial will proceed — in other words, avoiding the mega-trial.
What we are trying to do in the RCMP these days is to alter our strategies, to be more focused in terms of going after some of these large criminal organizations. We work very closely with our prosecuting partners at the provincial and federal level, and we get into an uncomfortable area where we begin to make strategic decisions around who we will charge, having regard for the challenges that lay before us once the arrests are made. Some of my Crown colleagues often make fun of the police or tease us that once the arrests take place, the work really begins, which I think is at the heart of your question.
Senator Baker: Yes.
Mr. Paulson: Supporting the prosecution in terms of providing an easy, accessible, reliable data framework in terms of the investigative effort is key to allowing the prosecutors to move slowly and successfully through the trial.
One of the things that the prosecutors stress upon us is that once the information is sworn and the indictment is brought, the court process takes on a life of its own. If the prosecutor is not positioned with all of the logistical and administrative challenges foreseen and overcome, that is where we stumble into trouble.
Our efforts are focused on organizing ourselves in terms of the hours and days of intercepted communications and transcripts and all of the things that we generate in these big cases to make sure that they are ordered, properly disclosed and available for the Crown to manoeuvre through.
Senator Meredith: First, on behalf of the committee and myself, I want to thank you and your men for the background work that you constantly do day in and day out in the interests of public safety. Having worked with various chiefs of police in the GTA with respect to youth and gang violence, I know that these young people were not born with guns in their hands. The gang violence is a result of organized crime and the supply of guns to them in protecting turf and ensuring that sales are made. As a result, many lives have been taken.
I am very passionate about this issue because we see it played out time and time again across our urban centres. Thank you for the work you do. As an honorary detective, I understand the intricacies of putting your men behind enemy lines to ensure public safety in this country. I appreciate that.
With respect to this bill and the obstacles or challenges that you see cross police lines when the RCMP, the OPP or the local police divisions have to be brought in, do you see any challenges that will occur in evidence gathering that this bill does not currently address? If so, how can this committee make recommendations or amendments to ensure that it does address them?
Mr. Paulson: I will take a quick stab at answering that question.
I think this bill goes a long way to streamlining and bringing efficiency to the criminal trial process in these large cases. The extent to which those changes then impact on our evidence gathering is minimal, because I think the requirement for orderly, comprehensive and detailed collection of evidence remains no matter what. The Charter has brought great changes to policing, and those will continue to be issues that we have to respect as we launch our investigations.
If anything, what it does is reinforce the point I was making earlier that we have to be smart around how we organize our investigations. Some mega-trials will be unavoidable, but some will be avoidable, which reinforces that in these major cases the police will have to think through how they go about dismantling these organized crime groups or other large criminal enterprises.
[Translation]
Mr. R. Dupuis: I would like to draw a parallel with what is happening right now in mega-trials in Quebec. It is important to keep in mind Justice Brunton's ruling, which does not call into question or doubt policing work, but the strategy Crown prosecutors use in terms of how they proceed in the various cases.
And what that actually boils down to is there are two ways of tackling organized crime as we know it. You can go after the foundation and if you are persistent and succeed in targeting those at the top, the tough part is to draw the line between the people you are accusing and those you are not.
In Quebec, when the investigation is complete, we create an evidence chart. We say that we have this evidence for this person, that he committed this offence on this day. We hand over all that evidence to the prosecutor in charge of the case.
From that point on, the case belongs to the prosecutor. The prosecutor decides which strategy to pursue. He or she is the one who decides whether to arrest both the lowly street dealer who sold a quarter of a gram of drugs and the person accused of 15 murders. If the crown prosecutor decides to go after both of them, then we, the police, arrest those individuals because there is sufficient evidence for both of them.
I would say the problem occurs when you have to use informers, electronic surveillance and other techniques to gather that evidence. The entire case is disclosed. Will the prosecutor recommend using informers for a drug dealer, or will the prosecutor recommend using an informer, knowing full well that, after testifying a few times, the informer will necessarily mix up the number of days on which their testimony was required?
Consequently, prosecutors will make the recommendation in murder cases, keeping in mind that drug dealers were arrested on the same day. Are you getting a sense of what the delays would look like if those pieces of the case were pursued before getting to the person with the fewest or least serious charges?
What Justice Brunton is saying is that when you get to that point, that individual will have spent six or seven years in prison serving a sentence that may have been set at four years. The weight on either side of the scale, that is where the problem lies.
In fact, the work done by police throughout all the investigations involved has hardly ever come under criticism, be it the work of the RCMP, the Sûreté du Québec or the Montreal police department. The same can be said for the manner in which that evidence was provided. The criticism is often directed at the strategy used by the Crown in court proceedings.
[English]
The Chair: Senator Meredith, I am sorry. I wish we could, but we are pressed for time. I will have to move along.
Senator Chaput: I have a short supplementary. It will be my only question.
The Chair: Yes.
Senator Chaput: Mr. Paulson, I think I understood you to say that a mega-trial could be avoidable. Could you just explain what you meant?
Mr. Paulson: I was following my colleague's comments concerning who we will arrest and charge. If we go into criminal organization A comprised of 100 potential criminals and obtain evidence on all of them, is it really in the public interest to charge them all given that they will have exposed themselves differently to criminal liability? In other words, some of the traffickers may be less sophisticated and determinative of the organization's effectiveness than say, as an example, the head of the organization.
In cases that I have managed previously, we have gone after the heads of the organizations, limited the number of accused and tried to have a focused strategy. That way we do not end up with multiple accused in a courtroom, with multiple defence lawyers making multiple motions in respect of all of the things that this legislation contemplates.
Senator Lang: I just have one observation, because the statement has been made a number of times that this bill is being rushed through Parliament. I find it interesting that the initial discussions on the principle of this bill were held back in 2003 and we are now in 2011. A lot of water has gone under the bridge since then.
Deputy Commissioner, these mega-trials obviously are not strictly confined to Canada. We are not an island. We have affiliations with the United States, and so do these gangs that we speak of, and maybe even to the United Kingdom or other places. We have a piece of legislation here designed to hear a number of motions at the same time so that we can save time: court time, your time and that of the judicial system.
I do not know if you have this knowledge, but does the United States or do other systems of justice have this type of procedure in place so that they can hear these motions and move on with the case, as opposed to the situation where we have a quagmire?
Mr. Paulson: How I might answer that is to limit it to my personal observations and experiences. Our partner countries are not immune to the same phenomenon. In some of the large organized crime cases or perhaps terrorism cases in the United States, you see lengthy trials with all of the attendant issues that we face here.
In terms of a comparison, I do not think I would be well placed to offer you any view on that except to say that I keep close relationships with colleagues in the U.K, Australia, the United States and New Zealand. This is a phenomenon that we all share in terms of the information age. All the information that we collect in our investigations must be managed in accordance with the traditions of our laws. It does present a logistical challenge for all our partners.
Senator Runciman: Mr. Dupuis, I caught a reference in your opening statement to designating criminal organizations. I am curious about that, in light of the way we designate terrorist entities. I wonder if you could talk about that issue a little more, expand on it and explain the exact difference. The deputy commissioner might want to answer that question as well.
[Translation]
Mr. R. Dupuis: Take the Hells Angels, for example. In British Columbia, they are a recognized criminal organization. As soon as someone identifies themselves as a member, or belongs to or uses all the branches of that group, and as soon as any court of law in Canada, whether in Nova Scotia or Quebec, becomes the venue for a mega-trial case against an organization called the Hells Angels, should it be necessary to re-establish the profile of that organization, to duplicate all the efforts to have that group designated as a criminal organization? That is the question I am asking.
Unless I have misunderstood, Bill C-2 is trying to help us save time, so I think this could factor into a solution aimed at saving time and energy.
[English]
Senator Runciman: In essence, it would be comparable to what we do with terrorist entities. Why are we not doing it with criminal organizations?
Mr. Paulson: I do not know why we are not doing it with respect to criminal organizations.
I would add, however, that criminal organizations manifest in many different ways. We have the Hells Angels. At first blush it would not seem too difficult to find them and know who they are because they advertise. There are other organized crime groups that are not quite as distinct and identifiable, but I am with my colleague on this.
Senator Runciman: It would certainly simplify the way you approach many of these cases.
Mr. Paulson: With respect to the Hells Angels, but how do you deal with others?
Senator Joyal: I would like to draw the attention of Senator Lang to U.K. legislation in relation to mega-trials. It is the Criminal Procedure and Investigations Act 1996. They already have a system of their own, which addresses the issue of mega-trials. They have to organize it.
[Translation]
Mr. Dupuis, I wanted to come back to your recommendation of identifying criminal organizations.
Section 467 of the Criminal Code sets out the definition of a criminal organization, but does not make it an offence to belong to a criminal organization. As Senator Runciman mentioned, contrary to terrorist activities, the Criminal Code very clearly sets out how a terrorist organization becomes a criminal organization; the Governor in Council issues a declaration designating it as such under the Criminal Code. And as soon as you belong to a recognized criminal organization, you are automatically considered to be in violation of the law.
I think a parallel can be drawn between membership in a terrorist organization and membership in a criminal organization or an organization involved in organized crime. Did you take into account the criteria used by the government to define a terrorist organization?
Mr. R. Dupuis: The point I am trying to make is not that membership in a criminal organization should be an offence. When a determination has been made in a previous trial, would it be possible to say, from a jurisprudence standpoint, that criminal organization X has been deemed a criminal organization, rather than having to re-establish the organization's profile in another trial? Could we not use the decision by a previous court? The issue is not to make belonging to a criminal organization an offence, but rather to avoid the constant duplication of work for the sake of efficiency.
If a well-informed court determines that organization X is a criminal organization, could we not apply that decision to future proceedings? For instance, if a Nova Scotia court rendered a decision of that nature, could Quebec not use the same decision since it is dealing with the same organization? That would avoid having to reinvent the wheel every time, as well as debating the issue for weeks on end.
I will spare you the details of the work involved, but I am simply talking about having the prerogative that says, when a court in Canada has deemed a given group as a criminal organization, it is possible to apply that decision from a jurisprudence standpoint and to have that decision taken into account.
That is the point I wanted to make. I apologize if I did not make myself clear.
Senator Joyal: No, not at all.
Mr. R. Dupuis: I am not trying to say that we should target organizations or those who belong to them in the same way as terrorist organizations. I do not mean to say that it should be an offence to belong to an organization, just that it should be possible to take a previous decision and apply it in current cases strictly in the interest of efficiency.
Senator Joyal: That could be problematic legally speaking. If you proceed based on a binding precedent, defence counsel could argue that the circumstances in question are different. And that would reopen the whole debate surrounding the evidence on the criminal nature of the organization, whereas, if membership in a criminal association were deemed to be an offence, merely belonging to an association would subject an individual to criminal liability. That is not what you are asking?
Mr. R. Dupuis: That would be the ideal solution.
Senator Joyal: So why are you not asking for the ideal solution?
Mr. R. Dupuis: I am not sure.
Senator Joyal: That was done for terrorist organizations through section 83.05 of the Criminal Code. It was the Standing Senate Committee on Legal and Constitutional Affairs that adopted it over a decade ago, for that matter. In my attempt to understand your logic, I am trying to see the case against giving the "criminal" designation to a certain number of organizations whose main activity is crime.
Mr. R. Dupuis: I agree with you, Senator Joyal. In a perfect world, that is how it would be. I approached the issue more from the standpoint of what Bill C-2 is trying to achieve: minimize intervention, shorten trial times and streamline the presentation of evidence.
[English]
The Chair: Thank you for that, senator. That concludes our questions.
Deputy Commissioner Paulson and Mr. Dupuis, I want thank you. I know that you have arrived here on relatively short notice. However, with the experience you both have, it took very little preparation to speak knowledgeably about the topic; that came across loud and clear. What you have provided us is very helpful and we very much appreciate it.
Continuing our consideration of Bill C-2, we are pleased to introduce the two witnesses on this next panel. The first witness I would like to introduce is James Stribopoulos, Professor at Osgoode Hall Law School, where he teaches criminal law, criminal procedure and evidence in Osgoode's JD program. Professor Stribopoulos conducts research and publishes on topics related to criminal law, criminal procedure, evidence and the legal process. The professor's research and teaching are informed by his extensive practical experience as a criminal trial and appellate lawyer. As an appellate lawyer, he has argued appeals regularly before the Court of Appeal of Ontario and the Supreme Court of Canada.
Welcome, professor.
In addition, I would also like to welcome Bruce A. MacFarlane, Q.C., who was called to the Manitoba bar in 1974. He was subsequently called to the Saskatchewan bar in 1979 and the Alberta bar in 1987. He actively practised before the criminal courts in all three provinces, as well as in the Supreme Court of Canada. From 1993 to 2005, Mr. MacFarlane was the Deputy Minister of Justice and Deputy Attorney for the Province of Manitoba. Prior to that, he was Assistant Deputy Attorney General (Criminal Law) for Canada. Presently, he is a professional affiliate teaching criminal law in the Faculty of Law at the University of Manitoba.
Welcome, Mr. MacFarlane.
I understand you both have statements. Mr. MacFarlane, we will begin with you.
Bruce A. MacFarlane, Q.C., as an individual: Thank you. When I commenced practising criminal law, prosecutions in particular, three decades ago, mega-trials were virtually unheard of. The typical trial in Canada at that point would usually occupy about three to six days of court time. The trials were quite manageable. The impact on jurors was manageable, as was the impact on justice participants.
That all started to change in the late 1990s and throughout the current century, to the point where we are now faced with the spectre of trials that are simply unmanageable; we are faced with trials that will last 10 months, 12 months or 15 months.
We are facing both serious and practical problems at the moment. In my opening comments, I would like to address a few of points and messages.
The first message is that the solutions for the mega-trial dilemma require a multilayer response. They require responses by the prosecution bar, by the defence bar and by the judiciary. They also require a legislative response in a legislative package.
In my view, this is very progressive legislation, and I will comment on that in a moment. My first point is that there will need to be a response on the parts of all of the players in the system if we are to see any changes. This is an important part of a response.
My second message that I would like to bring to this committee is that the bill on the table provides a number of very important tools for the judiciary.
In my respectful view, if this proposed legislation is passed, the spotlight will then move to the judiciary in terms of how they will implement it. There will need to be an understanding on the part of the judiciary that we need to wipe the slate clean in terms of previous precedents and previous practice to use the tools in this bill in a new and innovative way.
I had an opportunity over the past three years to participate and prosecute in International Criminal Court at The Hague. If you think it appropriate, I can point to some parallels between practices at The Hague and some of the provisions in this bill; but it will fall to the judiciary to ensure that the slate is wiped clean and that there are new approaches. Otherwise, the bill may well not fulfill its objective.
The third message I would like to bring to the committee is that, in my view, the policy objectives of this bill are sound. The bill is well thought out. It covers a number of practical issues. There are always improvements that could be made to any bill, but the policy objectives are sound, and it will assist in a practical way.
I have one small recommendation that I would like to put forward. It does not change any of the policy objectives. It is not a large change, but it will have a positive practical effect on jurors exposed to a mega-trial, should we get to that point. I can summarize it in this fashion: Clause 13 of the bill on the provisions concerning jurors and the selection of jurors is based largely on a model from the State of Victoria in Australia, which I thought was a good model to choose. When you have a greater number of jurors than 12, all of them believe that they are full-fledged jurors, so that they will not just sit around and that they will be balloted out at the end of the trial and before deliberations if there are more than 12 of them. All of that is a fine sound approach. When I testified before the Air India inquiry, I put that model forward.
There is one feature missing that is important for jurors. Traditionally, juries select a foreperson. That person usually has the confidence of the other members of the jury panel and is their spokesperson. They go through a process to select that leader. Imagine sitting in a mega-trial for eight to 12 months. Your elected leader has been there for that extended period of time and you come to know and have respect for your leader. However, there is the prospect under the bill of balloting out the leader that the jury has chosen.
In the Australian model, the foreperson's number and name is not included in the box for balloting out. In essence, the foreperson is immunized from being balloted out. In my respectful view, that would be a sound policy choice because balloting out a leader of a team after 12 months may cause problems. We do not know for certain because we cannot study juries, which is another story. I would not say that it would destabilize the jury, but it might cause some initial tension, which is unnecessary, especially when the jury members selected their leader.
This would be a relatively small amendment. The bill would simply say that in the balloting out process, the number of the foreperson selected by the jury is not to be put into the box to be drawn out. It would be as simple as that. I put it forward on the basis that we are asking an awful lot of jurors to put their lives on hold for eight to 12 months. This would be a sign of respect for their selection — the first and only decision that they have made in the process. The amendment, if deemed appropriate, would respect that decision and would demonstrate a measure of respect for the jury process.
That is my only recommendation. Short of that, I believe that the bill is sound. I thank you for allowing me the opportunity to speak and for being attentive during my opening comments.
James Stribopoulos, Professor, Osgoode Hall Law School, as an individual: I thank members of the committee for this unique opportunity to weigh in on such an important piece of legislation. I will begin with some general comments that will echo much of what Mr. MacFarlane had to say in terms of praise for this bill.
I share the view that this bill is well conceived, well drafted, and much overdue. A sigh of relief will greet this bill, when it is passed, from the various stakeholders within the criminal justice system. I commend the government for developing this proposed legislation in the model of what I think, as a criminal law academic, we should aim for in criminal justice law reform. It emerges from a real problem identified by the actual participants on the ground in the system. All of the stakeholders have voiced their concerns on this topic: judges, prosecutors, defence lawyers, police officers and, I dare say, victims too. If you are a victim in one of these cases, which go on forever, your life, like that of the juror and other participants, is also on hold for the duration of the trial, which can last 12 to 18 months. To the extent that we can move cases more effectively and efficiently through the system, this bill will benefit everyone.
Beyond those immediately interested in the actual courtroom proceeding, Bill C-2 will benefit all members of the Canadian public from a taxpayer standpoint. A tragic waste of resources on some of the inefficiencies has historically marred many of these mega-trials. I truly believe that this proposed legislation will go some distance toward ameliorating some of those problems. I agree with Mr. MacFarlane that the bill is not a silver bullet, by any stretch.
I have a few more general comments to make after which I will provide some specific suggestions. I will be happy, along with Mr. MacFarlane, to take your questions.
Mega-trials prove the old adage that bigger is not always better. Recent experience has taught us that. As Mr. MacFarlane said, and as I have discovered from speaking so some of my senior colleagues at the criminal bar, this is not the way it always happened in the criminal justice system. The LeSage-Code report outlines why we where we are in terms of these cases coming into the system. There are many causes. It is not a matter of allotting blame but rather it is the reality of our world in terms of developments in constitutional law, evidence law and the nature of some of the legislative changes that Parliament has made. Some would argue that some offences are more complicated than they need to be and some added ones are arguably unnecessary. There is no blame being allotted — I make that as an observation only.
Experience has taught us over the last 15 years that these cases often collapse under their own weight, somewhat unavoidably. I will be clear. As one of the witnesses said earlier, mega-trials are here to stay for all of the reasons already outlined. We will not get rid of them. In many instances, they are simply unavoidable for all of the reasons that have been identified. In certain cases, the sheer volume of evidence alone and the complexity of the legal issues raised make a so-called mega-trial a very long, protracted trial unavoidable. I am thinking of the Air India prosecution that took place in British Columbia. I do not know how that litigation could have been conducted in a more time efficient manner given the volume of material that had to be sifted through.
Earlier witnesses testified, and I agree, that other mega-trials are arguably avoidable through good planning. Just because we have the evidence to say that 150 people are connected to a particular criminal organization and can therefore charge them does not mean that we should charge them together and put them in the same courtroom. The same is true if it is only 10 or 15 people. The moment there are more than 2 or 3 accused, things get complicated. With each accused that you add, you add one or two counsel.
I am a criminal lawyer, and I think that many criminal lawyers will concede that some of our brethren can be a bit eccentric in our ways. If you have 12 defence lawyers in the room, it only takes one who is poorly trained and lacking in judgment to throw a monkey wrench into the efficient litigation of a criminal charge. One person with poor judgment or who does not know how to pick their spot or how to concede the right issues is all it takes and suddenly everyone is along for the ride, not just one accused, his or her lawyer, the prosecutor and a judge, but 15 defence lawyers. It becomes unruly and unmanageable. These things ultimately result in mistrials.
You can package cases or accused together in a way that makes it much more efficient. You collect the members of the upper echelon of the organization, the kingpins, and you prosecute the three or four of them together for conspiracy, murder or whatever it is. It could be criminal organization, but some would argue that you do not necessarily need to go that route. It is a complicated offence to prove because you have to establish that the organization is indeed a criminal organization. I know that there were some questions about this. There are arguably constitutional reasons for that. You cannot allow a determination in one proceeding to control another because the person charged in the second proceeding did not have standing at the first to defend the allegation, so you get into some difficulty.
I know there is an efficiency consideration: Why can we not allow the one ruling to apply in the other proceeding? That is the reason we cannot. I know that we have done it in terms of the legislation that has been enacted in the terrorism context, but it remains to be determined whether that will survive constitutional challenge for that very reason.
My point is that to the extent that they can be avoided, we should avoid them. I think the police appreciate that and that prosecutors are increasingly appreciating that. The defence bar and judges appreciate that, too, but some are inevitable. To the extent that they are inevitable, I am strongly of the view that this legislation will go some distance to making them more efficient in their progression through the criminal justice system.
I said before that this is well conceived and well drafted legislation. I have only three small points to make in terms of possible amendments that you might consider making.
The first is with respect to proposed subsection 551.3(4). This is the provision that dictates that legal decisions made under subparagraph (1)(g) where there is a mistrial, a severance of accused, et cetera, are binding on the participants going forward. That makes absolute sense. There is no need to reinvent the wheel and go back to square one just because there is a mistrial. My only concern is the way in which it has been drafted in terms of leaving the judge room to manoeuvre in light of further developments in the case.
The last clause in the subsection reads:
. . . even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations fresh evidence has been adduced.
I like the introductory language because it is open ended. It is not prescriptive; it is not saying that this is the only situation. It is contemplating a variety of situations that could necessitate revisiting decisions that have already been made. My only concern is the reference "fresh evidence has been adduced." I am strongly of the view that you will see this being the subject matter of unnecessary litigation. It is clearly not the intention to privilege situations where there is fresh evidence. The purpose is clearly to allow flexibility when circumstances change.
Why not simply say that it would not be in the interests of justice because, among other considerations, there has been a material change in circumstances, and do not privilege "fresh evidence"? Sometimes it is not only the evidence that changes. The evidence may remain the same but the tactics can change. The judge may have decided the severance application brought by one accused at the beginning one way, but in the middle of the trial the accused are suddenly employing cutthroat defences, and there is a need to revisit the severance application because the landscape has changed. The evidence has not changed at all. It is the tactics of the parties that have changed.
A judge has to be in the position to reconsider an earlier severance application, for example, in those circumstances because, if they cannot, they might be visiting an unfair trial on one of the participants, and that will be a reversible error on appeal. Why even leave that open to debate? That is my first suggestion.
My second suggestion relates to proposed subsection 551.7(3). This is the provision that enables the chief judge of the court to decide that it is in the interests of justice to collect legal issues from different cases together because they are shared issues, even though they are separate proceedings, and have them determined at once by a single judge so there is not a conflict between what is decided in one case as compared to another. In that way, we have the benefit of economies of scale. Everyone is in the same courtroom and we are only arguing the motion once. The same thing is not being done in five different proceedings. It makes good sense.
The provision contemplates that the judge could actually dictate the territorial jurisdiction or division where the arguments will be made. For example, there may be a trial going on in Toronto, which has the biggest courthouse. Other members of the organization are perhaps being prosecuted separately in Kitchener and some in Sudbury. They are all alleged to be members of a criminal organization, and a similar constitutional challenge is being launched by all of them. Why have them all litigated separately? Bring them all together. Under this provision, the judge can dictate that they all come to Toronto because it has the biggest courtroom and the best resources for accommodating all of those litigants under one roof. That makes perfect sense.
My concern is that this provision does not give that judge the power to make an order for costs to be covered when an accused and a defence counsel or witnesses are forced to come from Sudbury or Thunder Bay. You could repeat this in any province; I do not mean to be Ontario-centric. There is a cost associated with that, and who will bear that cost? It is not a cost that the litigant has voluntarily taken on in terms of choosing to be brought together in this way to argue jointly with the other accused in the proceeding in Toronto.
The judge should have the room, where circumstances warrant, to make an order for costs to be covered in such circumstances. Otherwise, there will be a gap and, rest assured, it will be argued. There will be protracted argument about whether the judge has the jurisdiction. Why allow that kind of argument to unfold time and again? Rather, it should be addressed it in a proactive, prospective way.
I will make one last comment on an issue that is arguably beyond the jurisdiction of Parliament, at least in some respects, and that is about juror compensation, which is woefully inadequate right across this country. It is a responsibility that falls within the administration of justice of the provinces. There are provincial jury acts and regulations that prescribe remuneration for jurors.
We ask people to take a year off work to sit on a jury and, depending upon the jurisdiction, give them very little compensation. You heard testimony earlier about the hardship claims made by jurors, and legitimately so. Everyone else in the room is being compensated. These trials are expensive, but jurors should not be suffering an economic harm because they are doing their civic duty.
It is beyond your mandate, I know, but at the same time it is not in the sense that there could be something in this bill that gives the judge the power to order a topping up of jurors' income. I would argue that criminal procedure is squarely within Parliament's bailiwick under the division of powers. It is exclusively Parliament's job to talk about criminal procedure. I think that is something worth considering.
One of the problems is the unfairness to jurors, but also the jury system suffers. One of the things we champion about our criminal justice system is the jury and its representativeness, but when you preclude people who cannot afford to sit on the jury from doing so because they cannot suffer the financial harm, the jury stops being representative of the community. It starts reflecting a very small segment of the community.
That is not what we believe in as a society in terms of the institution. We pride ourselves on the institution. We hold it out around the world as something to model ourselves after in terms of the fairness of the Canadian criminal justice system. To have it become unfair because it is not representative is most unfortunate. There is that larger systemic concern beyond the unfairness to individual jurors.
It is interesting listening to Mr. MacFarlane talk about the selection of the foreperson. I teach criminal procedure in a part-time graduate program that has distance learners from across the country, so I have lawyers coming in on the webcast from different parts. I am always amazed that when there is silence in the code on an issue, different practices develop on the ground in different jurisdictions.
The interesting thing about Ontario is the foreperson is never selected until the jury goes back to deliberate. It is one of the instructions they are given — that the first thing to do when they begin their deliberations is to elect a foreperson. That is one of those practices. I do not see anything wrong with the proposal he has put forward; I think it makes good sense in those jurisdictions where that is the way it is done.
I am happy to answer your questions.
The Chair: Thank you, gentlemen. Those were excellent, informative opening comments. We will now proceed to our questions.
Senator Fraser: It is a treat for us to hear from such extraordinarily expert witnesses as yourselves. I have a question relating to something that neither of you raised. I suspect that means it is not a problem, but I would like to hear your views anyway.
In at least a couple of places in this bill, proposed section 591(4.2) and again in 653.1 — that would be on pages 7 and 11 — deal with the binding nature in future proceedings of rulings that have been made "or could have been made" before the stage at which the evidence on the merits is presented.
Regarding that insertion, "or could have been made," one of our witnesses yesterday drew our attention to it, and it does strike me as rather unusual. Could the two of you comment on it, not necessarily at length, but as to what you see as its utility or any other views you might have?
Mr. Stribopoulos: One of the benefits of this process is you have many people looking at the same piece of text. I missed this in my initial read-through. I do not understand what purpose that language serves, frankly.
Do you have a sense of what the answer might be, Mr. MacFarlane?
Mr. MacFarlane: No, I do not. It is a curious inclusion. I do not know a parallel to that. I am not sure what the purpose was.
Senator Fraser: Let me offer a hypothesis. I am a non-lawyer here, but I wondered if it might have been inserted as a limiting factor. As our colleague Senator Baker keeps pointing out, huge numbers of Charter rulings cannot be made until you have heard the evidence. I assume that some could be, so would this have the effect of limiting the number of Charter-related rulings that would carry on? I do not know.
Mr. Stribopoulos: I am at a loss, senator.
Senator Fraser: We will have the Justice officials back and I will ask them about that.
Mr. Stribopoulos: I like to think that I am usually pretty good at interpreting legal text, but I am at a loss to even offer a hypothesis.
Senator Fraser: I feel better.
The Chair: It takes a non-lawyer to find that point.
Senator Fraser: No, it was a lawyer who drew it to our attention.
The Chair: It is a very interesting point indeed. Thank you, Senator Fraser.
Senator Angus: Mr. MacFarlane, you used the expression over and over again of "balloting out." I do not understand what it means. What I envisage is that they select, by lot, the jurors that will not continue. Is that right? Is that what you mean?
Mr. MacFarlane: Yes. I drew the phrase "balloting out" from the Australian literature because that is how it is referred to there, but it involves pulling cards from a box.
Senator Angus: You pick out number 6, number 8, goodbye.
Mr. MacFarlane: Yes.
Senator Meredith: Mr. MacFarlane, you raised the issue of the jurors and the ballot. On Senator Angus's point, I raised it yesterday with respect to the protection of jurors, those who are then taken out, and whether this legislation affords them the necessary protection. Then Mr. Stribopoulos indicated with respect to the remuneration of these jurors that it is a problem right across this country. The previous witnesses who appeared before us talked about being drawn in by the sophistication of the organized crime groups to be tempted to take remuneration to affect the outcome of the trial.
Talk to me a little bit about the protection. Do you think that we have gone far enough with respect to their protection? Could you also comment on the remuneration of jurors?
Mr. MacFarlane: In terms of the issue of protection, we do not have a history of problems in that respect. That is not to say that it could not happen.
Senator Meredith: With regard to the complexity of these mega-trials and how organized these individuals are now, you have gone into the lion's den and alerted them to the fact that they have been drawn into this web. The police have done their investigative work, but there could be reprisals.
Mr. MacFarlane: I wanted to make that point first, though. That is not an answer to your question, which I will get to in a second.
Canada has not had experienced that to the same extent as, for instance, the United States. That having been said, some protections are available under this bill. There is the ability to proceed anonymously by number. That is probably the best protection. It is an offence for a juror to disclose what took place in the jury room, so there is that as well. The jurors are instructed that they cannot talk to anyone about what happens in the jury room, so that would be an offence.
In terms of your ultimate point of organized criminals approaching a former juror, the most that could be extracted from the former juror would be what was discussed and what the jury was thinking. However, at that point, the jury is in the process of deliberations and are sequestered, so they are untouchable.
There are at present, and under the bill, some protections. Whether or not that is enough, I guess that is debatable, but there are some.
On the question of remuneration, I agree with Professor Stribopoulos that for those who are exposed to a lengthy trial, it is a serious problem for them financially. When I first started out, prospective jurors wanted to be on a jury. They thought it was a great honour because it would only take three, four or five days. It was a new experience for them.
The tendency now is when a prospective juror hears that this will be a mega-trial, they want off, and so you end up with a loaded jury. Often you have students and retired persons; so the cross section of society that is so important to us starts to be more illusory than real.
I agree that we need to develop a new approach to compensation. I am interested in Professor Stribopoulos's proposed solution of Parliament conferring jurisdiction on a trial judge for a top-up. That might need constitutional analysis, but at first blush it may be viable. However, I think we to take a closer look at the constitutional dimensions.
Mr. Stribopoulos: I understand the concern about juror safety. They are legitimate concerns. I am sure people who are involved in these cases feel threatened by the very prospect of being involved. Thankfully, in Canada, so far, there are only isolated examples. I can think of a case from British Columbia many years ago involving a romantic relationship between an accused and a juror. For the most part, we do not have many cases of jury tampering or jury intimidation.
I understand your question: Will the failure to remunerate make jurors who are involved in a protracted trial and are financially at their wits end vulnerable to possibly being bribed? One of the markers of the most corrupt judicial systems in the world is that they do not compensate justice officials adequately and people resort to self-help. Whether that will happen in Canada is speculative. We do not have that track record, but there is that remote possibility.
I do want to comment about some of the testimony we heard earlier today. I am not sure if you will embrace the idea of putting a screen between the jury and the accused or of having the jury in a separate room from the accused. I think that would be a dangerous move. It would be antithetical to many of our traditions in terms of the jury being in the room and the presumption of innocence, which applies in these trials, too.
If you say from the start, "Well, jury, this trial will last 18 months and you have to remain unanimous, and, by the way, you will sit in a vault down the road, watching this on video," what are the chances that they will give the accused, no matter who they are, the benefit of the doubt, which is their sworn duty to do? That, I worry about. Trust me; I understand the concerns.
Senator Meredith: That is what leads to the protection of jurors. If the accused can identify jurors, then that creates a complex situation. When they are no longer jurors, what happens to them individually and also their families?
Mr. Stribopoulos: The key is anonymity. Without someone's name, one would have to have face recognition software to track them down. It could be done. They could follow someone home from the courthouse, but anything could happen. We have to deal with the concrete realities of our experience. Thankfully, in this country, we have avoided that kind of activity so far. I have my fingers crossed.
Senator Baker: I recall approving an amendment to the Criminal Code many years ago. I think it was section 482, "Rules of Court." It allowed for the appointment of a case management judge. All of our courts in Canada embraced that suggestion. Now, today, in the Rules of Court, be they provincial or superior, a procedure is laid down. Under normal circumstances in very complicated trials, a judge will organize matters and set a date for the hearing of pre-trial motions. That is normally set 15 or 20 days after the get-together by the Crown, the defence and the judge. The notice of Charter application will be made, followed by a further meeting to determine which dates they would be heard.
That is the practice today, but it is up to the person moving the Charter violation to prove the facts and to present the evidence. The Crown says, "Well, that is your job, defence lawyer; you do that." The judge says, "Just a minute now, Crown counsel. We will hear the evidence. In the hearing of the evidence, which will apply to the trial, we will enter into a voir dire relating to these Charter violations."
Charter decisions are personal things. Charter violation is against the person, not the product. In the case of a section 11 CDSA warrant — on which Professor MacFarlane wrote extensively — or any of these warrants, most of these people will not have standing to even enter into such an argument pre-trial or even at trial. Do you envision this as giving an opportunity to someone accused to get off the hook? They did not have standing to do it on their own, but someone else could do it.
The system is not working today. It is done at trial. One must have an evidentiary foundation. How will the system work, having all of the evidence presented prior to the trial? Is it workable?
Mr. Stribopoulos: There will be some selection undertaken in terms of the sorts of issues that are argued. It might not make the most sense. Let us use the example of bringing different accused together in one place to argue a motion challenging the constitutionality of the legislation, as opposed to a motion to exclude evidence. That should remain in the courtroom relative to that accused. You are right. It is an individual claim and they are seeking an individual remedy, vis-à-vis them. I do not think these provisions can in any way expand the scope of standing.
It will become interesting. Suppose that there are co-accused. There is a search, they execute a warrant and it is challenged successfully. The judge says that evidence is inadmissible against accused A but is still admissible against accused B. The solution to that is severance. The judge will sever the two accused. It does not happen that often. Sometimes accused B does have standing. You can obtain standing if you stand up and say to the Supreme Court, "The drugs found in the basement were mine, too." While you would not have a defence at trial, you would have a claim on the Charter argument. That is the way those issues will be negotiated and practised on the ground.
I agree with you. If one reads the Rules of Court, one might think, "Wow, what a beautifully designed system." Unfortunately, it does not always work the way it was designed. Sometimes there are lawyers showing up pre-trials who have not even read the file. These are not just defence lawyers but often prosecutors as well who are overworked and strapped. Usually, the people who take a good, hard look at the evidence are those who litigate the case. That often happens in the days or hours leading up to the litigation. I do not know how we change that. That is a cultural problem within the legal profession. It is also a product of how overburdened the participants are. There has been action in Quebec from prosecutors. Their complaints are a product of their experiences as prosecutors. On the other side in terms of defence lawyers and legal aid funding, those are concerns, too. Something gives.
The mentoring does not take place as much as it once did because of the economics of criminal practice today. Very few experienced, capable criminal lawyers find it a good business decision to hire an articling student. That was how mentorship took place in the criminal bar. Increasingly, there are fewer and fewer good jobs to be had. I see students who want to be criminal lawyers unable to find articles and obtain the necessary training to be in a position to behave like professionals, come prepared and make good decisions.
That shortcoming in terms of funding peters throughout the system. Today, young lawyers who have articled somewhere and closed real estate deals do not get rehired. They say, "I want to become a criminal lawyer; I have watched a lot of TV." They roll into court and model what they do on what they have seen on Law & Order. That is not ideal. A lot of larger problems like that are happening. No single bill can fix all of those problems, but this is a small step in the right direction.
The Chair: Did you want to respond, Mr. MacFarlane?
Mr. MacFarlane: In view of the time, I have a couple of brief comments that flow from Professor Stribopoulos's comments, with which I largely agree.
First, I am not sure this will increase the number of severances. Trial judges will strive to ensure that jurors understand that this package of evidence only applies to this accused and not to another. I think they will try to keep these trials intact to the extent that they can.
My main comment is that some appellate court judges across the country, particularly in Ontario, have been emphasizing that you do not always need to have viva voce evidence in a voir dire. Rather, in some situations, you can make decisions based on the submissions of counsel and collapse the amount of time required.
It will be interesting to see if that practice increases. My thought is that we need to wipe the slate clean; we need a new approach.
Senator Baker: Would there be no cross-examination, then?
Mr. MacFarlane: Right. I recognize that would be a radical move based on past practices, but the rest of the world is moving in the direction of not needing to have viva voce evidence for everything. I wonder if the judiciary will start to move in certain voir dires in that direction with a view to collapsing a three-month voir dire down to a day.
Senator Runciman: I appreciate your concern about remuneration for jurors. However, I suspect if it passed the constitutional smell test, the provinces that are supportive of this bill may say "Where is the money?" since they are responsible for the administration of justice.
I wanted to ask a quick question about the juror issue you raised with respect to the foreperson. We heard about the Ontario practice of selecting at adjudication. On your interpretation of this change, does that preclude that kind of an option?
Mr. MacFarlane: On the basis of the proposed change that I put forward, do you mean?
Senator Runciman: Yes.
Mr. MacFarlane: No. Rather, the change could simply say "Where there is . . . ."
Senator Runciman: We will probably not amend this legislation at this late stage. I am talking about what is before us. Does that rule out the Ontario practice going forward in that they would have to simply accept this?
Mr. MacFarlane: I do not think it would preclude any practice.
Senator Runciman: It could be handled through administrative guidance from the chief judge of the jurisdiction, perhaps, could it not?
Mr. MacFarlane: That would be an option, if chief justices were in agreement. The practice could vary from province to province.
The Chair: Professor Stribopoulos, you referred to proposed subsection 551.3 (4); namely, that the decisions of the case management judge would be binding "unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced." You had some concern about the reference to fresh evidence.
If I understood your comments, I thought you were saying you felt it might be too restrictive and pose an unnecessary restriction on the determination of what is in the interests of justice. Do you not feel that the inclusion of the words "among other considerations" from the quote "among other considerations, fresh evidence has been adduced" would fix that?
Mr. Stribopoulos: Maybe I did not preface my comments as clearly as I should have. I do appreciate that it is permissive. When you put up "fresh evidence has been adduced," it is only being offered up as an example. However, whenever you give a single example, rest assured that those who interpret the legislation will rush to it as the template or archetype of what is expected.
If you are to give something concrete, which is sensible, the more effective choice of language would be something along the lines of "there has been a material change in circumstances." Then it would read: "unless the court is satisfied that it would not be in the interests of justice because, among other considerations, there has been a material change in circumstances." I think that would be an easy fix to preclude getting into these sorts of debates that readers will otherwise have, rest assured.
The Chair: Thank you.
Gentlemen, it is a real pleasure for us to have two academics with the qualifications you have, which are also based upon real-life experience you have had as litigators and in the political world as well. It is very valuable to us and we appreciate your having taken the time to be here.
For our final panel, I am pleased to introduce Jamie Chaffe, President of the Canadian Association of Crown Counsel. He has appeared before us many times before and we are very pleased to have him back with us today.
The Canadian Association of Crown Counsel is the national association that represents the collective interests of Crown prosecutors and Crown lawyers. Please proceed with your opening statement.
Jamie Chaffe, President, Canadian Association of Crown Counsel: I want to thank the committee in particular for making time to hear from the association. We certainly appreciate your flexibility with respect to getting us here.
One thing I want to point out is that when the Canadian Association of Crown Counsel makes comments on a proposed piece of legislation, we are not here to take a position with respect to whether it is a good or bad piece of criminal law policy. What we hope to inform this committee about is how this legislation might actually work on the ground, the systemic impact of the legislation.
As you are aware, Parliament has already heard from some of our member organizations directly. Marco Mendicino, President of the Association of Justice Counsel, was before the House of Commons Standing Committee on Justice and Human Rights late last week, and yesterday you heard from Thomas Jacques of the APPCP, the Quebec prosecutor association. We have attempted to canvass as many jurisdictions as time permitted in order to provide you with a national perspective regarding the systemic impact of this bill.
One of the provinces that conducts a lot of mega-trials is Ontario, and I received a submission from the Ontario Crown Attorneys' Association. Given that they are one of the prime mega-trial provinces, I intend to read it into the record. Scott Rogers is President of the Ontario Crown Attorneys' Association, and he writes:
On behalf of the OCAA, I support the submissions made to the Committee by the Canadian Association of Crown Counsel, unreservedly. The extreme difficulties, perhaps "failures", we see in the criminal justice system seldom arise from issues of criminal procedure. It is the refusal on behalf of the Federal Government and the Provincial Governments (in many jurisdictions (Quebec most notably)) to make justice a financial priority. Without financial support for the system, most new laws on criminal matters are little more than "show".
After victims of crime, there is no one more upset than prosecutors when a case is cut short and not heard on its merits. This is what happened in the "Hells Angel's" case.
Which this committee has heard a bit about.
If Bill C-2 is the only response from Parliament to this unfortunate circumstance, then nothing will happen. The chairs will be rearranged.
That is signed by Scott Rogers, President of the Ontario Crown Attorneys' Association. What the CACC has tried to do is canvass as many jurisdictions as possible. We are here to present a national position on the impact of Bill C-2. Here it is: Jurisdictions that conduct a significant number of mega-cases on an annual basis report a general consensus that stronger case management of these cases should prove successful in enhancing efficiency and fairness. Further, there is general consensus that certain discrete legal issues may be decided well before trial — issues dealing with third party records, admissibility of wiretap evidence generally, the qualification of experts, et cetera. There are efficiencies to be gained in terms of having one judgment apply to multiple proceedings.
Of course, certain pre-trial applications cannot be heard within the current system or within the one envisaged in Bill C-2 — and you have heard a bit about that from the AJC — particularly disclosure requests that engage the National Security Act and the Canada Evidence Act.
Finally, the CACC fully agrees with the housekeeping amendment put forward by the AJC in its submission to the House of Commons Justice Committee. That is with respect to the rights of appeal set out in section 673 of the Criminal Code. They need to be clarified to include the decisions of the case management judge if Bill C-2 is to become legislation.
However, these large mega-case jurisdictions also foresee the possibility of duplication of work by the proposed case management judge and the trial judge in circumstances where the original case management judge ruling is revisited. We are of the view that this may not be a rare occurrence in these mega-trials.
Further, there are certain types of legal applications, particularly those that require hearing viva voce evidence, evidence that would be heard at trial, which carry a high prospect of revisitation in the trial. We say "possibility" because it would appear that Bill C-2 gives the case management judge the discretion to hear such issues or to leave them to the trial judge. That appears to be within subsection 551.3(1).
Other jurisdictions, jurisdictions that conduct fewer mega-trials, are strongly of the view that the actual trial judge should hear all pre-trial applications and that, if enacted, Bill C-2 may result in significant duplication of work and inconsistent judgments, actually lengthen trials, and result in an added workload for the criminal justice system.
All jurisdictions report that fair and efficient mega-trials engage massive prosecutorial, judicial and defence resources. These are massive investigations that deliver uniquely voluminous disclosure obligations, complex legal issues, interesting security issues, capacity issues for courtrooms for all parties involved. You have heard some evidence already from the PPSC. They deal with about 75,000 cases annually and 1 per cent of these trials are mega-trials, which engage about 20 per cent of their resources. In B.C., mega-trials engage 52 of the 500 prosecutors in that province. If the justice system is to conduct these large and complex cases, it is recognized by all justice partners that massive resources have to be added.
With very few exceptions in Canada, no sufficient resources, if any, are added, and the prosecutorial service and the rest of the criminal justice system must rob significant resources from its regular serious work to feed the mega-trial. We regularly rob Peter with serious consequences to Paul.
In our most under-resourced jurisdictions, there is simply no one to rob. You heard from Thomas Jacques yesterday in his description of the disgraceful and frankly dangerous state of the criminal justice system in Quebec. Anti-corruption positions cannot be filled by experienced prosecutors, if at all. The drain of resources created by a mega-trial in Quebec on the rest of the system is crippling.
I hope that you heard in Mr. Jacques' presentation the passion and the supreme frustration of prosecutors who have stayed in the system to fight for justice in that province knowing that delivering justice on a regular basis has become a physical impossibility in that province. According to the justice who stayed the prosecution of 31 accused in the SharQC mega-trial case, they simply did not have the resources to prosecute that case in Quebec.
Bill C-2 will not help the Quebec criminal justice system to prosecute mega-trials. From the perspective of the CACC, Bill C-2, with all its good intentions, is treating the symptoms of what ails this criminal justice system — the real disease, which is chronic underfunding. All jurisdictions welcome the very early appointment of a trial judge in large and complex criminal matters. In an adequately funded criminal justice system, there would be sufficient judicial resources to appoint a trial judge at the outset of the trial process. There would be sufficient numbers of prosecutors with adequate training and experience to prepare and prosecute these massive cases to the high standard that is required without draining the rest of the system. That is simply not the current system, which is chronically under-resourced.
That is my opening statement.
The Chair: Thank you, Mr. Chaffe. We will move to questions.
Senator Fraser: If we had a magic wand around this table, we would produce buckets of money and hundreds more prosecutors, judges and courtrooms; but we do not have one. We are actually stuck looking at the bill.
I would like to come back to the point you raised about the ability to appeal, which was also raised in the other place by Mr. Mendicino. I do not want to put words into his mouth, but as I understand it he was arguing, as I think you were arguing, that the bill should be clearer in making it explicit that rulings by the case management judge are appealable. We heard from the minister and I believe from officials as well that such rulings are appealable under the terms of this bill. The words "case management judge, as a trial judge" would guarantee that. I know there is a section in the bill that goes to the same point. Of course, I cannot find it now as I am riffling through the bill, but I know it is in there.
Are you suggesting that if the bill is not amended those decisions will not be appealable, or are you saying that it would be better if it were clearer because otherwise we will find ourselves with challenges?
Mr. Chaffe: We view this largely as a housekeeping matter of drafting. The Association of Justice Counsel has raised the matter and we agree. It is a simple amendment. We appreciate the intent of Parliament that if this bill is enacted the decisions of the case management judge will be appealable. It would be extraordinarily simple to clear up this vagueness. Will those decisions be appealed? Of course they will be appealed, but the vagueness may complicate those appeals.
Senator Fraser: Nothing is simple in the criminal law, which you know; nothing is simple in Parliament, either. We all learn, to our cost.
[Translation]
Senator Boisvenu: Mr. Chaffe, you brought up funding, something that concerns me a great deal. Mega-trials require considerable resources, and despite wanting to expedite the process, I am very pessimistic about the idea of the provinces increasing judicial resources, especially if they are running a deficit.
With a failing health care system and an education system that is not doing so well, justice is very likely to be the government's fifth, or even sixth, priority. So the goal is to find other funding resources.
Seizing the proceeds of crime is a possibility, but those proceeds often come from money laundering or money lost in tax havens. What worries me is the financial support being given to criminal organizations. Hells Angels are not alleged criminals, they are criminals.
In Quebec, there was a mistrial and, though it led to no conclusion at all, almost $3 million came out of the pockets of Quebec taxpayers in legal aid costs. Should we not be following the Americans' lead and deny legal aid to recognized crime groups?
The Americans do not always make poor choices; if Al Capone were still alive today, we would hate to see the government paying for his defence. By not providing crime groups with legal aid, we could use those millions of dollars to hire crown prosecutors for the mega-trials.
[English]
Mr. Chaffe: There are provincial and federal initiatives with respect to going after the proceeds of crime. What is done with those funds is not up to Crown prosecutors. Do they go directly to funding mega-trials? I do not think so.
Vigorous pursuit of proceeds of crime is a necessary and effective policy, but we are talking about something that ought to be a core service of government — enforcing the criminal law as it is enacted. The origin of mega-trials is not simply the enactment of the Charter and the development of criminal evidence law. From a national perspective, it comes from a new and, in most cases, extraordinarily effective police strategy around taking down those they presume to be — and it is up to the Crown to prove that they are — criminal organizations or gangs that operate. The laws on the books with respect to criminal organizations, conspiracy and other such offences permit us to prosecute these offences as a package.
The funding of carrying that law into effect is the responsibility of government. We can go after the proceeds of crimes and we should do so.
[Translation]
Senator Boisvenu: In mega-trials, we have Crown prosecutors who are paid with taxpayer money and defence counsel who are paid by the government.
In a mega-trial, how can there be a balance when the defence lawyer is paid three times as much as the Crown prosecutor? Passing Bill C-2 is obviously a good thing, but if we want our trials to be successful, where is the balance when dealing with crime groups whose lawyers are paid three times as much as the Crown prosecutors? Some things just do not add up.
[English]
The Chair: Mr. Chaffe, did you hear the question?
Mr. Chaffe: Yes, I believe I heard it.
As I take it, the senator's focus is with respect to balance in the system. It is the Crown's perspective, from across the country, that every aspect of the system has to be well funded. That includes the defence bar. It certainly includes the prosecutorial team. It includes the judiciary and the police. If all aspects of the system are not equally funded, there are aberrant results. We see some of them unfolding in the courts across the country today. Throughout the past, we have learned a lot from mega-trials. However, the police are able to put together highly skilled and complex investigations. They are able to cast their net around those whom they presume to be, and have reasonable grounds to believe, criminal organizations.
Often, it falls down when it gets to the prosecutorial stage. Are there courts that can even handle the capacity of the number of people who have been charged? Are there enough Crown counsel to go through all the disclosure to ensure that, once things are disclosed, we are not mistakenly giving up the address of a potential witness and putting them at serious risk? Are there sufficient funds out there for the defence bar and for those people who meet the means test for legal aid so that they are not constantly going through adjournment processes just to find counsel? Do we have the judicial resources to properly case manage these cases right from the beginning?
Currently, there is no balance in the system. We need a massive injection of funds so that these matters can be properly prosecuted everywhere in the country.
Senator Lang: I would like the witness to comment on the evidence brought forward by former Chief Justice Patrick LeSage, who has studied this issue. He provided a report that is foundation for this legislation, at least in part. He clearly stated that, in these cases, it would help to make the court more efficient. It should, in good part, save on financial resources. He also said that the accused would be dealt with in a timely manner if the administration of this piece of legislation was done properly. If that is the case, then it would follow through that that would leave your organization and others with more resources to meet other obligations within the judicial system. I would like to hear your comments about that because that is why we are reviewing this legislation.
Mr. Chaffe: One would walk forever in this country before finding a wiser witness than Chief Justice LeSage with respect to this topic. I appreciate his deep intelligence on this topic and his commitment to criminal justice.
The difficulty we are experiencing in this country is a chronic absence of resources around criminal justice issues. Bill C-2 would work extraordinarily well in a well-funded system. Let me use an extreme example.
Thomas Jacques testified yesterday about how Bill C-2 will discover the problems in the Quebec system more quickly. Suppose a case management judge gets a large mega-trial in Quebec and the first meeting of counsel imposes a time deadline with respect to certain disclosure. Quebec does not have sufficient prosecutors to meet that deadline. You will find out quickly that the Crown is wildly under-resourced and is not able to meet deadlines that are necessary if you are going to have a fast, fair and efficient mega-trial.
There is nothing theoretically wrong with making a case management judge stronger or imposing conditions with respect to how the structure of a trial is to unfold, whether or not the applications will occur long before the hearing of evidence, or whether they will occur during the trial. All of this makes good theoretical sense. However, on the ground, if sufficient resources are not in play, it cannot have the desired impact. This law cannot be carried into effect.
If one examines the worst resourced area of the country, the province of Quebec, this bill will have no impact on that. It will not assist in the prosecution of mega-cases.
I hope that I have made myself clear with respect to that issue.
Senator Lang: You represent an organization that is very knowledgeable about the judicial system. Has your organization ever thought of bringing forward proposals that would streamline the system so that costs could be less and the responsibilities of your Crown counsel would be less, as opposed to coming here and strictly asking for money?
Mr. Chaffe: We are asking for justice to be a priority in terms of spending. We cannot keep up with the laws that are being put in place now. There must be some sort of cooperation from a national perspective between the people who write the criminal law and the people who have to support those laws with resources. There must be some connection between them.
Currently, we are dealing with a criminal justice system on the ground that has not kept up with the growth of population in this country. We do not have the infrastructure to support new laws and new police techniques without robbing Peter to pay Paul. It is a real issue.
The Chair: I thought that Senator Lang's question was this: Has your association ever come forward with suggested changes, procedural or otherwise, that could streamline the system and effect cost reductions as a result? It is true that more money is always needed. However, I believe Senator Lang was asking if we can take the system we have now and streamline it to get better cost efficiencies from it. We certainly have had evidence to the effect that Bill C-2 would do that. You have another view of it. However, has your association ever brought forward suggestions to help streamline the system and effect efficiencies?
Mr. Chaffe: I think we have, and we have contributed to committees, like this, with respect to legislation.
With respect to Bill C-2, we recognize that there are efficiencies to be gained in terms of parts of the legislation. The legislation itself allows the case management judge to decide to avoid those trouble areas where there might be duplicity or a revisitation of these things.
I am not sure that I am making myself entirely clear. We are front line prosecutors. We have to carry law into effect as written by this Parliament. Currently, we are being asked to decide, on a daily basis, which part of the Criminal Code we will prosecute. The blanket will not cover the whole book. That is our problem. We are right there where the rubber meets the road.
I hear your frustration, but you should walk a mile in our shoes.
The Chair: I will clarify my comment. It was not a comment made on my behalf to be accusatory or to suggest that your association does not do that. I have heard the contribution that your association has made around this table. However, based on your response to Senator Lang, I did not feel that you addressed it directly. However, I think enough has been said about that.
Mr. Chaffe: I misunderstand questions all the time, so I apologize.
The Chair: I do not think too often.
Senator Banks: In the pursuit of applying the law, will you sometimes undertake to prosecute a lesser charge to bring about efficiency rather than proceeding with what might otherwise be a more appropriate charge that would be more complicated and less efficient?
Mr. Chaffe: If you take the word "appropriate" out of that statement, which makes me feel uncomfortable, my answer would have to be yes. In the criminal justice system, we have to triage the charge menu that is brought to us by the police so that we can preserve valuable, limited resources of the justice system to prosecute the most serious crimes. The ones we triage are the ones for which we engage in strategies like that.
Senator Baker: It is not just the laws we pass that are affecting your functions and making life more difficult. There is also the McNeil disclosure that you now have to provide. We did not make that law, but it imposed an incredible burden on every Crown in the country as far as workload is concerned. It looks great on paper.
Seven of the eleven pages of the bill deal directly and indirectly with disclosure, the Charter and evidence. Now you have a responsibility whereby, as the previous witness outlined, a trial affecting you and your client, if you are a defence attorney, could be held in another province. You will then go to that province. Our provinces and regions have made their own rules over the years. For example, there is no national standard for disclosure on CD-ROMs.
How will that work? Do you think this bill might force the adoption of a national standard for disclosure of evidence in that one program will be accepted with a search capability for trial purposes? You have to produce the hard copy anyway for the judge, but you do not now have to produce it for counsel of these 40 or 50 people who will be charged.
How will that work, counsellor, if you are dealing with disclosure and you have completely different rules regarding the method and form of the disclosure across the country in one mega-trial?
Mr. Chaffe: I do not know. I can advise this committee that the mega-trial focus is one that has been fully engaged by many attorneys general. There is excellent training around best practices, disclosure on the structure of cases and the use of embedded Crowns in terms of formulating charges before they are laid. In terms of the prosecution end of these cases, a tremendous amount of work is being done so that best practices can be used across the country.
I do not know if a national standard for disclosure for mega-trial cases will arise out of this. However, if you would like some assurance, I can assure you that these cases are extraordinarily high profile. Where resources are available, they are often made available to the detriment of the rest of the system.
There is a real focus on doing things right, quickly and consistently across jurisdictions. One size will never fit all across this country in terms of any policy around disclosure. There are countless different police forces and countless different levels of technology. However, for mega-trial cases, I know that each province is at least attempting to pursue best practices.
The Chair: In your presentation you made reference to a percentage as to the number of cases that are mega-trial cases. With all of the evidence we have had, I do not believe I have heard anyone give an indication of the magnitude of how many mega-trial cases there would be across the country at any given time. Can you give us any sense of that at all?
Mr. Chaffe: There are not that many in terms of numbers, but it is educational with respect to just how much is required to actually hold them. That is the only reason I put them into the opening statement. The PPSC is saying that less than 1 per cent or 1 per cent of their entire trial load is mega-trials, and 20 per cent of their resources go into prosecuting them. That gives us a snapshot of just how costly they are in terms of criminal justice system resources.
However, there are not that many mega-trials across the country when you look at the number of charges that exist. It is a small part of what we do, but it attracts a lot of resources.
The Chair: Would you have an approximate number?
Mr. Chaffe: No, but I can tell you that we do about two a year in the Toronto region, if that helps.
Senator Fraser: Mr. Chaffe, I have been looking and cannot find the numbers, but the most recent budget bill documents talk about finding efficiencies in the Public Prosecution Service of Canada. "Efficiencies" is often a delicate word for "cuts." Do you know what is happening? Do you think there is fat there or do you think there are massive inefficiencies that will be easy to tidy up? This question is biased and I expect the answer to lean in the other direction, but I am trying to understand what is going on.
Mr. Chaffe: I know they are undergoing a review now. I do not know what the results are projected to be or what they will be. I can certainly say there is no fat in the PPSC. There are only bodies of prosecutors. Close to 90 per cent of the budget goes to actual prosecutors. There is nothing to cut there but federal prosecutors, if you are looking for efficiencies out of that particular organization. They are overburdened now. Is there fat now? No, there is only bone and marrow.
The Chair: Thank you, Mr. Chaffe. That concludes this portion of our consideration of Bill C-2. We are glad you could appear at this time today. We know you had some issues with prior times we were trying to direct you toward because of trial commitments. I know you were moving quickly to be here this afternoon, which we very much appreciate. We always enjoy hearing from you and receiving the benefit of the practical experience you bring to the table. It is valuable.
Colleagues, we will proceed to clause-by-clause consideration of the bill. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-2, An Act to amend the Criminal Code (mega-trials)?
Hon. Senators: Agreed.
Senator Fraser: I wonder if we might bring the Justice officials to the table. I have one question to put before we proceed.
The Chair: Certainly, Senator Fraser.
Senator Fraser: I do not know that we have the entire department at hand. We have Ms. Desaulniers.
The Chair: Thank you for joining us once again.
Senator Fraser: Ms. Desaulniers, I am interested in understanding some language that I see in proposed section 591(4.2) and again in proposed section 653.1. These are on pages 7 and 11. They say that decisions in subsequent proceedings "continue to bind the parties if the decisions are made — or could have been made." That is the unusual language I would like to understand. Could you tell me why that is there?
[Translation]
Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: There is nothing in the Criminal Code right now that talks about preliminary motions specifically and that defines what a preliminary motion is. Everyone in the field knows that a preliminary motion is a motion that can be dealt with before the presentation of the evidence on the merits. When we say a motion that could be dealt with before the evidence on the merits, we mean a preliminary motion.
What we were having trouble with was that we wanted the preliminary decisions — I was looking at section 591 — to continue to apply to the parties after the severance of counts. If we had simply talked about preliminary motions introduced during the presentation of the evidence on the merits, we were afraid that it would have encouraged the prosecutors from either side to wait until the presentation of the evidence on the merits to bring in their preliminary motions, so that they would not be bound by that provision.
The solution we came up with to avoid encouraging prosecutors to delay the presentation of preliminary motions was to say that those motions would either be presented before the evidence on the merits or would be delayed; they could have been dealt with before, or they could have been dealt with so as to not encourage prosecutors to delay presenting their preliminary motions during the evidence on the merits. Is that clear?
Senator Fraser: Yes, but it seems to me that this is going to lead to a great deal of discussion because, when we say "that could have been", does the "could have" refer to procedure, merits or both? For example, if circumstances change, will we continue to say that a decision like that could have been made beforehand because it has to do with the procedure related to the type of decision that could have been made beforehand? Or are we going to say no because, based on the facts, a decision like that could not have been made?
Ms. Desaulniers: The mechanism provides for a little bit of both; the mechanism ensures that decisions that are inherently preliminary motions continue to be binding on the parties. But the mechanism also provides for — other witnesses have talked about it — the possibility of having preliminary motions that, in some cases, could be handled separately from the evidence on the merits, but, in other cases, they are so related to the evidence on the merits that they should be dealt with at that stage. We want to make sure that, if a trial ever collapses, motions that should be dealt with at the same time as the evidence on the merits are not preliminary motions, and they should not be binding on the parties. That is the distinction we are trying to make.
We agree that there are preliminary issues that can actually be handled well before the jury trial, before the evidence on the merits, but there are also preliminary issues that, because of their nature or the facts of the case, should be dealt with at the same time as the evidence on the merits. And since these decisions are so closely related to the evidence on the merits, they are, out of necessity, no longer preliminary issues.
Senator Fraser: Thank you very much.
[English]
I foresee years of arguments in court about this.
Senator Baker: I am trying to understand this. Section 653.1 says:
In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial —
This is during the previous trial for which the judge has now recused himself or a mistrial has been declared; now we have a new judge and we are coming up to a new trial. Then, it says:
— are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.
Senator Angus: It is a timing thing.
Ms. Desaulniers: It is really to say that these preliminary rulings are so distinct and separate from the evidence on the merits that they could have, or should have, been presented before the beginning of the presentation on the merits.
Senator Baker: The rulings were made during the presentation of evidence in the mistrial. Is that what you are saying? Is that what that means?
Ms. Desaulniers: Yes, it is.
Senator Baker: Now I understand it.
Mr. Chair, do you understand it that way as well?
The Chair: Yes.
Ms. Desaulniers: This is in order to not invite parties, for example, to delay the presentation of a preliminary issue dealing with the Charter for strategic reasons, or to delay the presentation of this motion until the evidence on the merits starts so that this party later on could argue that it is not bound by section 651 regarding mistrials.
Senator Baker: If the decision could not have been made before the stage at which the evidence on the merits was presented, does it not apply?
Ms. Desaulniers: That is right. It is too closely linked to the evidence on the merits.
Senator Baker: Therefore, all of the decisions do not apply on the retrial.
Ms. Desaulniers: Not all of them.
Senator Baker: That is very important.
[Translation]
Ms. Desaulniers: Let me be very clear. We agree that, when there is a new trial as a result of a mistrial, there will be a new trier of fact to rule on the evidence on the merits, and the evidence will actually have to be presented again. What we are trying to do is to ensure that everything that is separate from the evidence on the merits can survive even if the evidence on the merits has to be redone. These are the preliminary motions. They are preliminary because they are completely separate from the evidence on the merits and they could have been dealt with beforehand or they should have been.
[English]
Senator Baker: Right now, we have a situation in which different provinces deal with it in different ways as per the rulings of the courts of appeal in those provinces. In some provinces, all decisions apply to the new trial.
This new thing that we are putting into law states that not all of the decisions will apply, only the ones that could have been made prior to the presentation of evidence on the merits.
Ms. Desaulniers: Yes. This example is particularly clear in the case of a jury trial. If there is a mistrial, you cannot avoid having to re-present the evidence on the merits to the jury. However, there is no reason to revisit all of the preliminary decisions on the law that were made by the trial judge, separate from the evidence presented to the jury. That is the argument this bill is trying to bring forward.
Senator Baker: However, if it is the judge alone and it is made on the evidence, then Charter arguments that were already determined in the previous trial do not apply to this retrial. If it is made during the trial that was declared a mistrial for which the judge had to recuse himself, then his decisions made on the evidence will not apply to the new trial.
Ms. Desaulniers: They will only apply if they could have been, or were, presented before the evidence on the merits. Only in this scenario are they through preliminary issues.
Senator Baker: Every Charter argument has an evidentiary foundation, the evidence on the merits. This is the issue. I thought all decisions made in the previous trial apply to the new trial; but, that is not true.
Senator Angus: Ms. Desaulniers said that it prevents new motions from being brought in a dilatory fashion that could have been made earlier but were not. That is how I understand Ms. Desaulniers.
I think it is clear and well expressed. I salute you, Ms. Desaulniers.
Senator Baker: It puts in place a whole new message.
Senator Angus: Senator Baker, you are talking about apples and oranges, with all due respect.
Senator Baker: A clarification was needed and I appreciate that.
The Chair: Is it a new message as opposed to a new understanding? It is different interpretations.
Senator Baker: Well, it was badly needed. In that trial, it will be badly needed.
The Chair: Thank you, Senator Baker.
Senator Banks: I apologize for my naivety, but let us say, for example, that a new trial follows one that was declared to be a mistrial. There is a new defence attorney, and he finds a question of evidence that he thinks ought to have been barred or admitted. Suppose he brings that forward in a new trial, before a new jury. Does the judge then say, according to the "or could have been made" wording in the bill, "Your predecessor representing the client or the Crown ought to have raised this but did not, and therefore you cannot do so now"? Is that right?
[Translation]
Ms. Desaulniers: No, absolutely not. The "could have been made" is just a term to refer to the timing, not to the idea that the motion could not actually be brought in the second trial since it was not presented in the first trial. The "could have been made" only refers to the moment when the motion could have been presented or was in fact presented.
[English]
The Chair: I think we have canvassed that sufficiently.
Honourable senators, I will go back to the beginning, prior to Senator Fraser's intervention.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-2, An Act to amend the Criminal Code (mega-trials)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Does the committee wish to consider appending observations to the report?
Senator Angus: Mr. Chair, I am not adamant about this, but I believe Mr. Jacques Dupuis said that it would be very helpful and would avoid future wrangling of a dilatory nature if it was made very clear by the legislators that these are procedural dispositions. I do not know what Ms. Desaulniers thinks about that, but I thought if it would be useful, we could add an observation saying that we were advised about this by a former Minister of Justice, et cetera. I do not know if that is really what he was saying, so I thought I would put the idea forward.
Senator Baker: For the sake of clarity, it would be advisable to have a departmental official presently at the table state the intention of the government regarding this legislation. Senator Angus is absolutely correct. I suggest we ask the witness.
The Chair: Are we to ask in the context of it being procedural in nature?
Senator Baker: Yes.
The Chair: The intent of the legislation is rather all-encompassing.
Senator Baker: The problem is the judge will have to look at this.
Senator Angus: It is legislative history. I do not know if it would help. The purpose of observations is to add greater clarity, but is this greater clarity? I think the chair is suggesting this might be confusing.
The Chair: Ms. Desaulniers, do you want to respond?
[Translation]
Ms. Desaulniers: As I understand it, the amendments that the bill is trying to make to the Criminal Code are strictly procedural; the bill does not in any way amend the substantive rights set out in the Criminal Code.
[English]
Senator Fraser: I am delighted to hear Ms. Desaulniers confirm the answer she gave when I put this question yesterday. Now we have it on the record twice.
Senator Baker: Excellent.
Senator Fraser: Actually producing observations will take a bit of time. On a purely practical level, I believe there are reasons for not wishing to take any more time than we must. Could we request of the sponsor and critic of the bill when they speak at third reading that they explicitly mention that we have had it confirmed? Could we ask that of them? It is a little irregular for someone to ask.
Senator Angus: It falls into the category of an observation that "could have been made."
Senator Fraser: All committee members were in agreement.
Senator Runciman: I am not sure when third reading will occur.
Senator Fraser: This day, I believe, or soon at any rate.
Senator Runciman: Today, yes, but I have a significant schedule this evening. In the past, I believe we approached it such that rather than doing it through speeches at third reading debate — an approach I am not ruling out — we sent a letter signed by the chair, and perhaps the deputy chair, indicating the areas raised during deliberations of which the minister should be made aware. I think that is another alternative. I am not ruling out Senator Baker and me speaking to this, but I think that could be another way to proceed.
Senator Fraser: For greater certainty.
The Chair: That is something we have done in the past. For the reasons Senator Fraser gave, we have to do this properly, but I think there is a strong will to move ahead and get this bill back to the chamber today. For the reasons she has given, the observation route would cause some issues.
I have no difficulty with that at all. If Senator Fraser agrees, I would be willing to sign such a letter to the minister.
Senator Fraser: Also, if Senator Runciman is around, please mention it.
Senator Runciman: I have my provincial leader in town today.
An Hon. Senator: But you are doing third reading.
Senator Runciman: We will see.
Senator Fraser: Somebody will do it.
The Chair: I will repeat: Does the committee wish to consider appending observations to the report? No; very well.
Finally, is it agreed this bill be reported to the Senate without amendment and without observations?
Hon. Senators: Agreed.
The Chair: Carried.
Thank you for your time and effort. We managed to get some very productive work done in a short period of time. Excellent evidence was presented. Thank you.
Senator Joan Fraser (Deputy Chair) in the chair.
The Deputy Chair: Honourable senators, Senator Wallace, the chair of this committee, has to be in the Senate chamber so he has asked me to chair this part of our proceedings.
We will now begin our study of Bill S-1001, An Act respecting Queen's University at Kingston. For the record, this is a private bill, which is, as we all know, different from a private senator's public bill. This is a private bill, that is to say, a bill designed to confer particular powers or benefits upon one or more persons or body of persons, or to exclude one or more persons or body of persons from the general application of a law. A private bill is one that relates directly to the affairs of an individual or group of individuals, including a corporation. It seeks something that cannot be obtained by means of the general law. It is founded on a petition from an individual or group of individuals to Parliament.
This bill has to do with Queen's University. We are delighted to welcome as witnesses the sponsor of the bill, Senator Lowell Murray, the much respected and, dare I say, beloved dean of the Senate, and Robert A. Little, Q.C., counsel representing Queen's University.
Thank you both for being here. We are sorry we had to keep you waiting a few minutes while we did some other business, but we are now open for business on your bill. I think you will both speak.
Hon. Lowell Murray, P.C., sponsor of the bill: Madam Chair, I speak only for the purpose of thanking the members of the committee for this accommodation, which is greatly appreciated, the more so given the heavy agenda and the pressing time constraints that are upon the committee.
As you know, this bill received second reading and referral to committee yesterday. I have with me Mr. Robert A Little, whom you have observed is the counsel for Queen's University and has been here in this capacity 15 years ago and I think on one other occasion when the university had to come to Parliament to have its charter amended. He has a brief opening statement to make, after which he or I, preferably he, will respond to any detailed questions you may have about the legality and constitutionality of this measure.
Robert A. Little, Q.C., Counsel, Queen's University: Thank you for the accommodation and the courtesy in hearing us so promptly and on such short notice. I also want to thank Senator Murray, who has been our sponsor once before, in 1996, and is again today, and also the Law Clerk of the Senate and the staff for the help in drafting this bill.
You may ask why an educational institution would be coming before the Senate. It lies in the fact that the university was brought into corporate being pursuant to the issue of a Royal Charter in 1841. After Confederation there was a genuine question as to whether Parliament or the legislature of Ontario could amend that charter. There was litigation involving the Presbyterian Church in Canada. As a result, in 1882, the local Member of Parliament for Kingston, Mr. Macdonald, introduced a bill that adjusted the internal governance of the university, particularly in relation to the university council.
The university has come back another seven times and this is the eighth time since then for various amendments in the internal government of the university. The principal one was in 1912, when the denominational aspect of the university — it was Presbyterian in character — was removed by an act of Parliament. It is that legislation that we are now asking the Senate to amend.
There are two main points. The first is to change the numbers of the board of trustees. The university is attempting to make itself more efficient and businesslike, as well as responsive to its various constituencies, but it has been running with a board of trustees of 44 persons. The effect of the amendment suggested here is to bring it down to 25. That is the major feature in relation to the board of trustees. The board is the governing body of the university in all non-academic matters, and it is important that it run effectively.
Added to that are details about bylaws that can be passed by the board regarding its internal management and internal government. Those are the two main changes in relation to the board of trustees.
In addition, there are changes to the university council. That is a large advisory body at this point comprised of the principal officers of the university, the chancellor, the rector, all members of the senate and all members of the board of trustees; there are over 100 members in this advisory board. What the bill does is to continue its existence and its powers, but give it the power to change its composition to make it a more effective body. That is done through the power to pass bylaws regarding its internal management and internal government.
These changes embodied in the bill have the unanimous support of the board of trustees, the faculty, the students, the members of the university council, indeed all the constituent bodies of the university. It gets here only after an extended period of debate and consultation with all those constituencies.
As far as I am aware, there is no objection internally in the university to this proposal. We would hope that you would see fit to give it a hearing and, if possible, recommend it for a third reading to the full Senate.
The Deputy Chair: The member for Kingston in 1882, Mr. Macdonald, would that have been one John A. Macdonald?
Mr. Little: Correct.
The Deputy Chair: What illustrious history you have. He would already have been also Sir John A., would he not?
Am I correct in my assumption that if this bill is adopted you will not have to come trudging back to Parliament again, ever?
Mr. Little: Not quite, but it will not be as frequent. We were here in 1961, 1996 and today.
The Deputy Chair: Once a generation.
Mr. Little: Three times in 50 years. I think I will be long gone before the next occurrence.
The Deputy Chair: I take it this will bring you more in line with the way other educational institutions — other universities — are governed, will it not?
Mr. Little: Very much so. Some of the powers that have resided in the act will now be delegated, in effect, to the board of trustees and the council through those bylaws I mentioned a minute ago. Senator Murray put it aptly by saying it is a form of patriation, and a good one.
The Deputy Chair: Honourable senators, do you have any questions for our illustrious witnesses?
Do you see how persuasive you have been?
Senator Lang: Thank you for coming before us. I want to congratulate Senator Murray, who obviously has a history here.
I am looking at proposed section 10 related to the board of trustees and the clear designation of the appointments and who they represent. Can you clarify why you have been so specific in clearly enunciating where your membership will come from for the purpose of the board of trustees, yet in proposed section 17 you have left the membership up to a bylaw to be determined within the confines of the university council?
Mr. Little: The reason lies in the fact that the university council is an advisory body only. It is not as critical to identify the constituencies that must be represented as it is for the board of trustees.
Senator Lang: I was asking about it because it might negate having to come back here if you wanted to change the membership of the board of trustees some time down the road.
Mr. Little: That council is comprised of members of the senate of the university and the board of trustees.
Senator Lang: I understand that. I wanted clarification as to why the other section was not more general, but it is fine.
The Deputy Chair: Gentlemen, I congratulate you. That was about as persuasive and efficient a body of testimony as I have seen before this committee in some time. Thank you very much.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-1001, An Act respecting Queen's University at Kingston?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the preamble carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Does the committee wish to discuss appending observations?
Some Hon. Senators: No.
The Deputy Chair: Shall I report this bill to the Senate without amendment and without observations?
Hon. Senators: Agreed.
The Deputy Chair: Thank you very much, honourable senators.
I know Senator Wallace would wish us to thank our staff and the vast array of people who help us, including the interpreters, the pages and everyone else, and wish them all a wonderful, well-earned summer break.
(The committee adjourned.)