Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence
OTTAWA, Thursday, December 6, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill C-15A, to amend the Criminal Code and to amend other acts, met
this day at 11:01 a.m. to give consideration to the bill.
SenatorLorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, I see a quorum. This session of the
Standing Senate Committee on Legal and Constitutional Affairs is now met. Today
we will continue our consideration of Bill C-15A, and we have before us Mr.
Trudell, Chair of the Canadian Council of Criminal Defence Lawyers.
Mr. William M. Trudell, Chair, Canadian Council of Criminal Defence Lawyers: On
behalf of the Canadian Council of Criminal Defence Lawyers I thank you for the
opportunity to appear before the committee.
We have put together a short memorandum. I am sorry that the Criminal Lawyers'
Association and the Canadian Bar Association are not here today. I understand
that the CBA will be coming next week, so I say this to you: We will ask you to
consider the presentations of the Canadian Bar Association and the Criminal
Lawyers' Association, who I imagine will be represented by the CBA and we will
adopt the provisions that they assist you with. I am sure they will be much more
comprehensive, and I apologize for the paucity of the brief I am putting before
This bill extraordinary for us, in the defence bar, to see all the changes in
criminal legislation that are coming down and that you have been dealing with in
the last little while. Bill C-15A has been the product of considerable
consultation. I see representa tives of the Department of Justice here today,
who we consulted with on behalf of the Canadian council on this bill, and there
are many provisions in this bill that are welcome.
We feel that the use of electronics in the criminal justice system brings us
into the 21st century. We very much welcome the ability for counsel to be
designated by an accused and, therefore, an accused person appearing by counsel.
These provisions will expedite the important work of our courts and we applaud
these provisions and support them wholeheartedly. There are com plaints about
the slowness of the criminal justice system and I can tell you that one of the
problems are the intake and the many appearances that do not accomplish
If we can relieve the necessity of the accused being there, giving up their time
at work and things like that, until we will really ready to get started, I think
that is very important and the use of electronics will also enhance the ability
of the courts to run much better.
The ministerial reviews regarding miscarriages of justice is a reflection of a
real problem that we have in this country with wrongful convictions. I make
these comments to come back to the one part of the bill that we are very
The Criminal Lawyers Association and the CCCDL at one point hoped that a
provision would be set up that was completely independent of the Attorney
General, but the Attorney General's proposals in this bill are perhaps a good
You may hear submissions next week from others who feel that the outside
independent investigative process and commissioner, if I can use that word,
ensures the independence and accountabil ity in relation to these examinations.
However, this is a good first step in relation to addressing the real issues
about miscarriages of justice. It seems that the minister can delegate an
inquiry process that we think is a positive one, and we urge it to be used. We
hope it never has to be used, but we believe it is a first and good start.
What is of real concern to the Canadian council is "Procedures before
Preliminary Hearing, which amends section 536.2 onpage 18 of the bill. The
preliminary hearing is probably one of the most important vehicles in the
criminal justice system because it allows for the early resolution of many
charges. In other words, a preliminary hearing, properly conducted, can be an
invaluable tool both to the defence and the Crown. From the point of view of the
defence, it is the only vehicle where we can find out prior to trial important
pieces of evidence. I like to say to my clients and people that defending a
criminal case is like performing an operation for a doctor. You get all the
X-rays and then you know whether the operation is necessary and where to
The preliminary hearing is the best example, if I can use that X-ray analogy, in
the criminal justice system. You would not want a doctor to perform an operation
unless he had X-rays. For the defence, the preliminary hearing allows us to find
information, to examine under oath, to make sure that there is an examination,
and proper disclosure of the case.
A number of years ago, the Supreme Court of Canada passed the case of Stinchcombe,
and Stinchcombe really set the high water mark for disclosure. It is
erroneous to think that now that we have Stinchcombe we do not need the
preliminary hearing as much. There are people, for instance, in British
Columbia, who would say, "Stinchcombe, Stinchcombe, we always
made full disclosure." There are people perhaps in New Brunswick who would
say there are different sort of forms of disclosure, but Stinchcombe said
that disclosure must be given.
However, that is not enough or may not be enough in relation to the important
opportunity to examine witnesses.
The defence gets a chance to find out what the case is all about. The statistics
show that after preliminary hearings cases are often resolved. In other words,
it is a real opportunity the defence counsel to inform his client that the
Crown's case is strong, but it is not strong in this area. It relieves the
necessity for an expensive trial.
From the Crown's point of view, it does two things: It allows the Crown to
examine the case to ensure that they are prosecuting properly, and it allows
them to see what strengths and weaknesses the case has.
For the state, it ensures that an accused person should not go to trial if there
is no evidence that a jury could consider.
It is an important screening out process. You know of all those cases where we
have horrific but wonderful examples of preliminary hearings. The best one that
comes to mind is the preliminary hearing in relation to the deaths at the
Hospital for Sick Children in Toronto when Susan Nells was charged. This poor
woman was identified in the press as a baby killer. However, after a lengthy and
properly conducted preliminary hearing, it was discovered that there was no
evidence to be found. The preliminary hearing created an amazing result and
proves that the criminal justice system works.
There is a lot of anecdotal evidence. The Crowns will tell you about the
terrible preliminary hearings where defence counsel get up and does a
cross-examination and wastes the court's time; bad cases and bad lawyers should
not change the law. However, there are defence counsels who may say to you,
"The Crown was hiding evidence on us, and if it was not for the preliminary
hearing we would have not known about it." So there is a real balance.
Let us look at the provisions in this bill. We are concerned that these
provisions have been enacted as a result of the anecdotal evidence that
witnesses are being abused, preliminary hearings are taking too long and the
system cannot afford it. I would ask you, honourable senators, to ask those
proponents of significant changes to the preliminary hearing to produce the
statistics. I think you would find that the statistics indicate that preliminary
hearings are useful mechanisms.
Yesterday, I spoke to Sue Cooper from Nunavut. She is on our board. She looked
at the bill and sent me her comments. She said that the preliminary hearing is
important where she lives because they have to travel long distances with
expensive jury trials. She said that the preliminary hearings do not take any
more time, they last about 45 minutes and they are done in the ordinary court
docket. She commented that they are concerned up there as preliminary hearings
are looked upon as a cost saver.
This provision does not do away with preliminary hearings; preliminary hearings
are still there, but you have to ask for them. Then you have to indicate what
witnesses you may want to call, and highlight what the defence may be. In other
words, no one will say to me, "Tell me what your defence is," but it
may very well be that there is disclosure provided for in the proposed sections
536.3 and 536.4 that we may not want to give.
Right across the country there are management meetings, or pre-trial
conferences, that occur between counsel and judges. In Ontario, and in other
provinces, you cannot schedule a case that will take any more than an hour
without having a pre-trial. Informal management meetings are taking place. There
are rules that apply. Some provinces do not have these pre-trials.
In Ontario how long a preliminary hearing will take is defined. Counsel talks
about what witnesses the Crown needs to call. Management hearings are taking
place. Proper management of the courts will not necessitate some of the
provisions of this bill.
Let me just suggest a couple of things. Clause 28 of the bill which deals with
section 537(1)(i) states:
(i) regulate the course of the inquiry in any way that appears to the
justice to be consistent with this Act and that, unless the justice is
satisfied that to do so would be contrary to the best interests of the
administration of justice, is in accordance with any admission of fact or
agreement recorded under subsection 536.4(2) or agreement made under section
That may be acceptable. However, in our respectful submission we believe it to
be a very dangerous proposed section.
I refer to clause 28(3), which states:
(3) Section 537 of the Act is amended by adding the following after subsection
(1.1) A justice acting under this Part shall order the immediate cessation of
any part of an examination or cross-examination of a witness that is, in the
opinion of the justice, abusive, too repetitive or otherwise inappropriate.
I cannot speak for judges. However, in my respectful submission, this is almost
insulting to judges. They have the power to control their courts. They have the
power to restrict lengthy cross-examinations. This provision in the Criminal
Code will result in application across the country that is not balanced. It
opens the door to abuse. It restricts an accused's right to have a full and fair
Honourable senators, this is there for the bad cases and it is not needed. This
section is the anecdotal section. It is placed in the bill because of a couple
of highly publicized cases in which defence counsel cross-examined witnesses
ad nauseam and this resulted in a cry that the preliminary hearing is being
abused. It is anecdotal, is not correct, and it is not necessary.
If I have a victim in the witness stand and I am cross-examin ing that witness
in an abusive or repetitive way, I am doing nothing but damage to my client. Why
do we need this provision?
In other words, a judge can look at this section and say, "You are not
asking that question," whereas another judge may feel that the question is
appropriate because it is subjective in relation to what that justice feels. He
can order the immediate cessation of any part of an examination. Of course he
can. He can do it now. This opens the door to an incredible interference with
preliminary hearings by those judges and Crowns who respectfully submit that
preliminary hearings are a waste of time. It will be abused. We are vehemently
against this section.
I refer now to subsections 540(7), (8) and (9). We believe that these
subsections should not be in the Criminal Code.Subsection (7) states:
A justice acting under this Part may receive as evidence any information that
would not otherwise be admissible but that the justice considers credible or
trustworthy in thecircumstances of the case, including a statement that is
made by a witness in writing or otherwise recorded.
The proposed subsection 540 (9) of the bill states:
The justice shall, on application of a party, require any person whom the
justice considers appropriate to appear for examination or cross-examination
with respect to informa tion intended to be tendered as evidence under
This means that the Crown can say, "I will just introduce the doctor's
letter. I will put the doctor's letter in and it is inappropriate for my friend
to be asking for the doctor to appear under the proposed subsection (9)."
This is another door to an expeditious preliminary hearing. We will have
preliminary hearings by paper. What does this mean? What are the issues that a
court will consider in deciding whether they will allow someone's evidence to be
given by paper? Holidays? Travel? Absolutely, it will be abused. That is not
right. If that proposed section stays, then subsection 540(9) must read:
the justice shall, on application of a party, require any person to appear for
and not read:
any person whom the justice considers appropriate.
The justice is not deciding about this case. In my respectful submission, this,
again, is anecdotal and it is for the bad cases.
We respectfully submit that the preliminary hearing does not need to be changed.
We believe that the preliminary hearings should reflect nationally what is going
on. What is going on now in the nation is defence counsels are getting together
with Crowns because of pre-trials that exist and working out how long cases will
take and they are getting rid of the necessity for calling witnesses. The
thrust, I am sorry to say, of this bill is that it is inconvenient for witnesses
to have to come to court and testify on more than one occasion.
No one wants to put a victim through the necessity of having to testify and
every defence counsel and Crown feels the same way. We have something else,
however, and that is the presumption of innocence. The preliminary hearing is
not in place for the witness. No matter how horrifically that witness has
suffered, the preliminary hearing is there for the administration of justice to
ensure that cases do not go forward that should not go forward. These proposed
sections are an attempt to manage what is being managed throughout this country.
They are for the bad cases and for the provinces and jurisdictions that have not
got it together to have management meetings and pretrial hearings.
This is not just a defence situation. Crown attorneys will tell you that the
preliminary hearing is an invaluable, important tool. It is important that
things can be accomplished by agreement. If the Criminal Code needs to say that
counsel can agree on facts and on paper admissions, but the preliminary hearing
must remain the same. The government will say, "We did not touch the
preliminary. You still get a right to have your preliminary. All you have you to
do is put your hand up and ask." That is not true. If you go through the
bill, you see that there are considerable controls. If the key is to have
expeditious justice and to get through the list, then, pass all these sections
because that is what will happen. There will be lots of cases that go a lot
faster, but what will you have at the other end? You will have expensive, long
drawn-out adversarial trials because things were not rooted out in the first
There is provision in this bill for the court to make rules, including rules
governing the preliminary hearing. That is okay. They are making them now.
However, you must have standard procedures across the country in relation to how
a preliminary hearing is conducted. Judge A will say that it is going too far
and judge B will say nothing. In other words, it will be applied inconsistently
across the country.
This is so unnecessary because we, who work in this system, all know that the
courts must be managed. You must manage your time efficiently. The way to manage
it is not to have justices saying that you are going to far and that counsel is
taking too long. It will not work that way. It will result in the use of the
other section that we started to talk about, namely, ministerial reviews,
because there will be wrongful convictions. There will be miscarriages of
justice because disclosure still does not take place across this country. We are
learning it every day.
You might be getting tired of defence counsel coming here and talking about
wrongful convictions, but they keep coming, for example, in the Sophonow case
and in the inquiry by Mr. Justice Cory. There is a real problem in terms of
getting all the stakeholders in the system to understand that you must put it
all on the table. You do not hide things. You do not hold back. The preliminary
hearing is the major tool for the purposes of doing that.
I should also like to deal with clause 27 at page 19, which amends subsection
536.4(2). It does not read properly. It is the position of the Canadian Council
of Criminal Defence Lawyers that the proposed sections 536.3 and 536.4 should be
deleted, along with the other sections I have indicated. They are not necessary.
The proposed subsection reads:
536.4(2) When the hearing is completed, the justice shall record any
admissions of fact agreed to by the parties and any agreement reached by the
It must be clear that it is for the preliminary. Admissions are made at
preliminaries but they are only for preliminary hearings. I would not want this
to be taken as it reads, namely, that I can make an admission that binds for
later on. All kinds of admissions are made at preliminary hearings, for
instance, the witness's curriculum vitae, his or her expertise, the facts about
the drugs, the fact that there was no issue of continuity. All kinds off
admissions are made to get through preliminary hearings. That must clearly be in
reference to the preliminary hearing.
At page 28, clause 49, which deals with section 606 of the act reads:
(1.1) A court may accept a plea of guilty only if it is satisfied that the
(a) is making the plea voluntarily; and
(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and
Originally when this section was introduced, defence counsel asked: Why do you
need this? Is this usurping the position of defence counsel, et cetera? We are
not really concerned whether it satisfies the administration of justice that
someone really understands the plea. Subparagraph (iii) states:
(iii) that the court is not bound by any agreement made between the accused and
It is absolutely clear that a joint submission, to the judge by counsel does not
bind the judge. The judge does not have to follow it. If that is all it means,
that is fine. However, the trend has been, that the court should give great
deference to a joint submission worked out between counsel.
I bring that to your attention because, as it reads, it is okay, but the spirit
of the law is clear that a court should not interfere with an appropriate joint
submission worked out by counsel.
Those are the main submissions that I would like to make about the bill. The
bill is a move-ahead bill in many ways, but it is regressive in relation to the
preliminary hearing. Someone has been tampering or tinkering with the
preliminary hearing for years. The proof is that it is most important and a
workable vehicle if run properly. All we need to do is have people get together
to manage their time efficiently and you cannot legislate that.
The success of pretrial testimony has been remarkable. In the last five years,
right across the country, the resolutions that have resulted because of a
pretrial are remarkable as well. In my respectful submission, if you restrict
the preliminary hearing by these sections, then you will have more problems down
the line because things will not be discovered and cross-examinations will be
confined. You will lengthen the trial, which means longer jury trials to ensure
that we do not have to use those miscarriage of justice sections. In many
respects, this is a bill that really moves forward and helps with the
administration of justice. In other respects there are proposed sections that
really concern us.
Senator Nolin: Thank you for your testimony today. We have learned from
your expertise, and it has been very interesting.
Chairman, it would be appropriate to have statistics that reflect what the
witness has said about the net effect of preliminary hearings. Could we have
those statistics from the department? We would like the statistics broken down
by provinces if possible. The witness mentioned the northern territories as
being important. It would be nice to have a breakdown showing change of plea
after a preliminary hearing and the statistics on when the Crown decides to
withdraw its charge.
Mr. Trudell: There is a guideline that all Crown attorneys apply, and
that is a reasonable prospect of conviction. That is different from the test at
a preliminary hearing. However, you will often find that the Crow will tell you
that after a preliminary hearing, they may find that they do not have a
reasonable prospect of conviction. Then it is their duty not to go ahead with
Senator Nolin: I think it would be useful to have that.
The Chairman: We will transmit that to the department almost immediately,
and hopefully they can get some information for us. We will not promise the
Senator Nolin: You referred to the overall power of the court to maintain
order and ensure that justice will be rendered properly in court. I am more
accustomed to the civil court. However, I am sure there is a specific power in
the code that gives that authority to the tribunal. Could you enlighten the
committee and tell us where the power is referenced in Bill C-15A? Is itclause
28, which deals with section 537(1)(i)?
Mr. Trudell: Yes.
Senator Nolin: If it is redundant in other another omnibus or catch-all
power for the court, I would be glad to have that section of the code.
Mr. Trudell: I am referring to the inherent power and the powers of
contempt. There is no question that if a lawyer goes too far, a judge will stop
him from going any further. If the lawyer continues to go on, he is walking into
the potential of being charged with contempt. That happens.
The reality of the situation is that if a judge tells a lawyer that he is going
to far then he will stop or ask that he can go just a little farther. There is
obviously the power to hold counsel in contempt, but the reality is that most
lawyers who stand in front of courts represent clients, not themselves, will
stop and take guidance from the court. It is the same here in the senate. If you
say, "Mr. Trudell, we have heard too much, and you are going on too
long," I will stop.
The Chairman: I generally say that to senators, not witnesses.
Senator Nolin: I am a civil lawyer from Quebec, and in our code, there is
specific clause giving that authority to the judge. However, I understand your
I want it go specifically to proposed sections 536.3 and536.4 and the plea you
have made to delete those sections. Would you explain to the committee how is it
working now and how it is intended to work? I refer specifically to that request
from either party to go through the preliminary hearing. Please tell us how it
can affect the proper delivery of justice. Reading those sections, it appears
that the only evidence produced at the preliminary hearing will be that evidence
which is specifically requested. Do I understanding this properly?
Mr. Trudell: Yes.
Senator Nolin: It should be the reverse.
Mr. Trudell: That is correct.
Senator Nolin: I ask for a preliminary hearing, and the Crown provides
Mr. Trudell: The Criminal Code provides for a preliminary hearing in
cases that are indictable and not in the absolute jurisdiction of a provincial
court judge. You have an automatic right to a preliminary hearing and a right to
waive that preliminary hearing. Why are these sections necessary? If we did not
have these sections, would that mean we could not have a preliminary any more?
No. These sections say that if you want a preliminary, you have to ask for it.
Then you have to say why you want it. Then you have to say whom you want called
to give evidence. Then I will decide whether it is appropriate.
This is a legislated way of reducing the use of a preliminary hearing, but it is
also a legislative way of managing the system. I see it as an interference with
the preliminary hearing. I can do this right now. Let us say that I am going to
have a preliminary hearing and you are the judge. You suggest a pretrial and I
tell you that I am only going to need two days of your time or, that I will need
six weeks of your time and I tell you why. You ask the Crown who he is going to
call and then you ask me if I want to hear anyone else. I name whom I want to
hear and the Crown makes him available. The Crown might object to the number of
people that I want to call and the judge may question it also. This is the
essential point. I agree with their objections and we leave. That is it. It
happens all the time. It is called a pretrial. Under this proposed legislation
you are required to ask for the pretrial.
You are required to answer questions, and you are right, it is not me who is
trying to prove something, it is the Crown who is saying that they have evidence
against this accused. In my respectful submission, that opens door to
expediency. It is not necessary. It is trying to legislate management. If the
court says you can have rules, including rules about how the preliminary hearing
is to be run, that is all we need to do here.
Senator Nolin: I have a question on the latter suggestion you have made
concerning the deletion of the proposedsubsections 540(7) and 540(9). I want you
to tell us if those amendments can affect the possibility of a voir dire of a
specific declaration that the Crown wants to use?
Mr. Trudell: I will try to understand the question. This provision, can
shortcut the proper hearing and examination of witnesses in relation to issues
of admissibility. Does that help?
Senator Nolin: If the defence asks for a declaration from the accused and
the judge agrees, do those amendments limit the possibility to question the
surrounding environment that led to the charge, what happened during the
interrogation and the signing of the charge? Does it affect that?
Mr. Trudell: Absolutely. There is no question about it, because it leaves
it up to a judge to decide what is appropriate and what he will take into
consideration. A counsel in Nunavut yesterday said to me that they have such
distances to travel, that their officers sometimes just cannot be there. It may
very well be that he is quite a ways away from Iqaluit so we will do the
procedure by paper. There is no question about it that it interferes with the
examination around the admissibility issue that will be germane at the
preliminary or at trial.
Senator Nolin: If it is not done at the preliminary hearing it will
definitely be there at trial.
Mr. Trudell: That is correct.
Senator Nolin: Everyone will find out that someone did something wrong,
and it is tainting the admissibility of the declaration.
Mr. Trudell: Not only that, but it is a waste of the time of the court
and a waste of the jury's time. If you have a voir dire and you were not able to
find out all this information at the preliminary, what will happen? You will
delay the orderly process of a jury trial when you could have rooted this stuff
out a lot earlier.
Senator Grafstein: Thank you for appearing before this committee. I
always find your evidence informative andinstructive, and in many instances I
agree with you but today I do not.
Mr. Trudell: I do not know whether to thank you or not. That is the first
time you have ever said that so I am coming back next week.
Senator Grafstein: Keep coming because many times you have persuaded this
committee. We have moved amendments because of your persuasive arguments and you
will see that in some of our reports and at least some our comments. Again, I
want to commend you and your efforts because I always find them enlightening,
careful, prudent and instructive, and many times I agree but in this instance I
do not. Perhaps we can have an exchange to see if you can convince me otherwise.
I did practice criminal law over four decades ago and I found it a very useful
and challenging experience. Many of the skills I noted amongst the prosecutors
and defence lawyers were always instructive. My models in those days were G.
Arthur Martin and Arthur Maloney two of the great criminal lawyers of all time,
and I worked with them and against them. Another classmate of mine was Canada's
outstanding legal theoretician and that is Dr. Martin Friedland who has done
some intensive work on the Criminal Code and also on evidentiary matters
relating to criminal practice. I must say that I have read all his books because
he sends them to me and then demands a response, so it compels me as a friend to
read and listen to what he has to say.
I have not had an opportunity to review all of the material, but just from
memory it was Professor Friedland's view that preliminary inquiries were a
problem, and he is written extensively on this issue.
The nature of the problem was exactly the problem that the minister has tried to
adopt in this particular legislation, which is that it is an effective tool to
sort out the facts, and to improve the efficiencies of the court without
impugning or derogating from the rights of an accused. It is not only to be
effective and efficient but also to be fair.
It is clear that if you take a look at the civil experience, the courts were in
a mess up until five years ago primarily because of delays in the courts and the
improper use of discoveries. The courts in Ontario finally took hold, based on
U.S. models that forced litigants to come to quick determination of the facts,
to reduce the scope of the inquiries and to force lawyers to enter a tighter
schedule. Now the court load on the civil side in Ontario has been drastically
reduced. Justice delayed is justice denied and we do have justice in the civil
Turning to the criminal courts, Senator Nolin and I were recently in Toronto
when we were pursuing his view about legalizing marijuana, and we had some very
interesting meetings there under his leadership. The chairman was there as well.
What we discovered, and what I discovered subsequently, is one of the real
problems that we have in Toronto is in the criminal courts. They are overloaded,
overburdened, and they are struggling to deal with the caseloads they have
One model that we encountered was the drug court. Frankly, it is a small court,
but it is doing a tremendous job, and there the workload is limited to eight or
10 cases a week. It is limited by the amount of resources. The problem we are
confrontedwith is that the courts are tremendously overloadedparticularly with
respect to drug offences at the lower courts. It involves 60 or 70 per cent of
Senator Nolin: It also includes offences induced by drugs.
Senator Grafstein: Hence, Senator Nolin's inspired view that perhaps we
could reduce the resources, reduce the cost to the taxpayer and improve
efficiencies by dealing with some of the offences.
The Chairman: May we get back to this bill, senator?
Senator Grafstein: I am giving a long wind-up to a very short question. I
do recall and I have not had a chance to paginate it, but the Law Reform
Commission did some serious studies about this as well. They joined Professor
Friedland's conclusions and the Law Reform Commission's conclusions that the
practice of preliminary hearings had to be reformed. I think both came to that
conclusion, and I will double check that before we finish with this bill, but I
think that was the case.
Having said that, the minister is trying to address this and trying to do a very
good job. I will just come to two questions, because I think it is important to
that background on the record. Let us take a look at your comments with respect
to proposedsection 536.2. You say that is not properly drafted because the
hearing is completed, there is an agreement reached and you hope that the
agreement only applies to the preliminary and not to the actual trial.
Take a look at proposed section 536.5. In order for that agreement to be
applicable to the trial itself, it must be filed. It says that it shall be filed
with agreement. Is it not a two-step process there? First, you reach an
agreement. If that agreement meets the concurrence of both parties, then it is
filed and then it becomes part of the court record in that sense. Does not that
answer your concern?
Mr. Trudell: I do not have any big concern with the proposed section
Senator Grafstein: Let us deal with this narrow point. You raised this as
a drafting point. I do not agree. I think it is pretty clear and succinct. I do
not have a question as to how that would apply. I do not think any judge would
read this as an agreement reached at preliminary without further assent would
then be adopted holus-bolus in trial and then be prejudicial to the accused.
Mr. Trudell: I do not think we should spend a great deal of time on it,
if you think it is clear. Some counsel asked me to raise this issue.
Senator Grafstein: Fair enough.
Let us get back to the other major point you have, namely, that judges already
have the power. We have discovered, and I am sure the minister has discovered
that there must be much more precision every step of the way as it applies to
the courts. This has taken place in the civil courts.
In Florida, for example, you cannot even get to a civil court unless there is an
informal hearing that is schedule for a day or so, for a hour, to settle the
issues. You cannot even get to the court unless you try that preliminary thing.
That is on the civil side. The courts in Florida are now much more effective
because of that. I was involved in one of those and I found it to be very
effective. Within one hour you had to settle the issues and do it quickly and
get to the root of the problem.
Criminal trials are different nuances, but on reading this it strikes me that it
is fair. This will not, in any way, shape or form, hinder any of the parties
from being other than efficient, effective and fair. It sets a standard across
the country as opposed to specific applications in different courts. I have been
before magistrates that you have, which were embarrassing. Unless you could turn
to a particular section in the code, you got no solace from a judge or from a
This is helpful to the accused to limit the time and attention so that you can
focus on the real issues as opposed to a discovery approach to make allegations
that cannot be supported.
I do not agree with this. I think we should allow the witness to have his say
and then I will say nothing more.
Mr. Trudell: I like coming here to answer your questions. I agree with
many of the positions you take. I was very proud of what you did in New York but
I do not agree with you on this. I will tell you why.
Management of civil lists have been successful because of two things: The move
to mediation and to get parties together to get judges to deal with it, and the
pretrial. It is working in the criminal system, too, because the pretrial is
enforced in most jurisdictions. In Toronto, for instance, before you launch off
on a long drug preliminary that can take forever, you must have a pretrial to
manage it. However, this is open to abuse. If the minister is trying to say that
we need some standards across the country for preliminary hearings, then
proposed section 537(1.1) does not give it:
(1.1) A justice acting under this Part shall order the immediate cessation of
part of an examination or cross-examination of a witness that is, in the opinion
of the justice, abusive, too repetitive or otherwiseinappropriate.
That leaves it up to the subjective interpretation of individual judges and they
are human beings.
Senator Grafstein: That applies to the preliminary.
Mr. Trudell: Yes, to the preliminary. Why is that there? Frankly, there
are bad cases, and the bad cases are driving these sections. There are good
cases, too. With great respect, I do not think that Professor Friedland said
that the preliminary should be interfered with to this extent. We all recognized
that unless we did something to rectify it, trials and preliminaries were
becoming too long. Pretrial and case management, which is what happened in civil
cases, is being done now.
Senator Grafstein: I have not read the material recently and I want to
compare what Professor Friedland said with these provisions. With proposed
section 537(1.1) but withsubclause (1.1), at preliminary stage, the justice
says, "Enough is enough. You are too abusive, too repetitive."That
does not prejudice the accused.
Mr. Trudell: Why not?
Senator Grafstein: Because the accused can proceed at trial to overturn
Mr. Trudell: In the middle of the trial, the accused's counsel is asking
a question and the judge will say, "Why did not this question get asked
there? You want produce documents. Why did not this question get asked a long
Senator Grafstein: Certainly, when the judge does that, you note the
Mr. Trudell: I would rather have the judge say, "What is your
Senator Grafstein: The point I am making here is that the accused is not
prejudiced by that procedure. It is efficiency without prejudice. In the normal
course, if you do not like what the judge does you note it. I agree that there
can be abusive judges. Make your objection and if the matter comes up at trial,
you say, "I took strenuous objection to that and here's why." You have
a second kick at the can. The problem is the endless extension of the
administration of justice. I have made my point. I am trying browbeat the
witness into agreeing with me and, obviously, he is too smart for that. Let us
agree to disagree.
Mr. Trudell: The abuses are more apparent than real. Do you know what the
minister did? The minister had a consultative process where she brought everyone
together in the same room; defence counsel and senior Crowns. As a result of
that meeting we came out of the meeting thinking that there are anecdotal
bad-case stories, but the system is working pretty well. I shared information
with people from B.C. about the pretrial system. You do hear bad stories, but it
is working on a daily basis through proper case management.
Senator Nolin: You talked about plea bargaining. A few years ago, we had
an interesting debate on that. One of our colleagues, unfortunately, is not here
to catch up on your comment.
When defence counsels and Crowns are trying to settle one specific issue, the
judge should be looking more at the broad picture of justice. That is why I
think that amendment is quite appropriate. I am submitting that as an opinion
and I want to hear your rebuttal of it.
Mr. Trudell: I do not know of too many judges who will accept submission
from counsel that is inappropriate orunacceptable. In many cases, defence
counsel will stand up and say that the matter has gone through a pretrial and
urges the judge to adopt the joint submission of counsel. However, the final
decision is up to the judge. Often in these cases, with the real impetus of case
management, we have a pretrial and the judge will say that both the defence and
the Crown are wrong and find according to his own judgement. You can take 10
weeks to argue a case but no judge will accept that. He will suggest that the
two lawyers try to resolve it and he will tell them what he is considering as a
judgement. You can then go and do it. The pretrial covers all of this. I know,
in most cases, what my client will get in terms of a sentence because I have had
a pretrial and worked it out with the court. This is helpful for an accused
person who does not have counsel. This section is very important. Frankly, I
think that judges are not accepting joint submissions that fly in the face of
what they consider to be proper.
Senator Nolin: A judge who is listening to a joint submission from Crown
and a non-represented accused will read between the lines and discern what the
Crown is trying to achieve by that compromise. Do you not think so?
Mr. Trudell: Yes. Under this section, with un-represented accused the
judge will almost have to become his advocate.
The Chairman: There being no further questions, I thank you very much for
running over to see us this again this morning Mr. Trudell.