Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 1 - Evidence for June 22, 2011

OTTAWA, Wednesday, June 22, 2011

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 3:31 p.m. to examine the subject matter of Bill C-2, An Act to amend the Criminal Code (mega-trials).

Senator John D. Wallace (Chair) in the chair.


The Chair: Honourable senators, distinguished guests and members of the viewing public, I am John Wallace, a senator from the great province of New Brunswick, and I am very proud to chair this committee. I welcome each of you to today's meeting of the committee.

We are here today to discuss Bill C-2, to amend the Criminal Code in respect of 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, the Standing Senate Committee on Legal and Constitutional Affairs was authorized to examine the subject matter of Bill C-2 in advance of the bill's coming before the Senate. The intent of Bill C-2 is to address the delays that are common when court proceedings are complex and drawn out in what have been termed "mega-trials." Of course, mega-trials deal with serious offences such as organized crime and gang-related activity and terrorism.

We are pleased today to welcome as our first panel to deal with Bill C-2 the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. Accompanying Minister Nicholson, from Justice Canada, we welcome Catherine Kane, who has been with us many times before, Director General and Senior General Counsel, Criminal Law Policy Section; and Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section.

Minister Nicholson, I believe you have an opening statement.

Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much, Mr. Chair. Senator Wallace, let me congratulate you on your assumption of the role of chair of this committee. I congratulate all members of this committee who are prepared to serve. It is a busy committee. I know that, of course. The subject matter with which you are seized is very important for this country. I congratulate all of you for taking on this responsibility.

I am pleased to appear before you today on Bill C-2, the Fair and Efficient Criminal Trials Act, which aims to improve criminal procedure and streamline the conduct of long, complex cases that are often referred to as mega-trials. The criminal justice system and its participants must have tools to respond to the demands raised by mega-trials and to ensure that these cases are brought to a conclusion in an efficient and timely manner.

Mega-trials may be hard to avoid, but the way they function can and must be improved for the benefit of all Canadians in our criminal justice system. Bill C-2 is an important step in achieving that goal.


This bill is the result of a great deal of consultation and collaboration with the various branches of the criminal justice system.


The result has been a general consensus on the measures required to improve the conduct of long, complex prosecutions. The amendments included in this package aim to strengthen case management, reduce duplication of processes and improve criminal procedure.

The amendments to strengthen case management were informed by the comprehensive policy work that has been done in the area of mega-trial reform. Among other things, this work emphasized that stronger judicial control of the proceedings, particularly with respect to the preliminary stages of a trial, is of vital importance in ensuring that long, complex cases proceed efficiently and effectively.

This bill would assist in achieving this goal by allowing for, among other things, the appointment of a case management judge where it would be beneficial to the overall management of the case and in the best interests of the criminal justice system. In situations where it is not feasible to assign a trial judge early in the process, the appointment of a case management judge may alleviate a number of difficulties and promote early consideration of a number of issues.

For example, the case management judge would be empowered to, among other things, exercise greater control of the proceedings by assisting the parties to narrow the issues, make admissions and reach agreements. In order to streamline the stage at which the evidence on the merits is presented, the case management judge would be empowered to rule upon preliminary issues such as those relating to the admissibility of evidence or the Canadian Charter.

The role of the case management judge would continue even after the preliminary issues have been dealt with and the presentation of the evidence on the merits has begun, and it would include adjudicating issues referred to him or her by the trial judge. This may, in some situations, avoid interruptions during the presentation of the evidence to the trier of fact and allow the sharing of responsibilities between the case management judge and the judge presiding over the presentation of evidence on the merits.

As well, with respect to reducing the duplication of processes, this bill would prevent the re-litigation of issues fairly adjudicated unless exceptional circumstances warrant that an issue be reopened, such as where fresh evidence is introduced. Furthermore, if a case ends in a mistrial and a new trial is ordered, decisions on certain preliminary issues would continue to bind the parties, unless the court is satisfied that this would not be in the interests of justice.

Often, preliminary issues relating to admissibility of evidence, the Charter or disclosure involve similar evidence and are raised in separate but related trials. Lengthy and complex hearings must be conducted before different judges, resulting in a duplication of effort. This is an inefficient use of resources, and it increases the risk of inconsistent rulings that can ultimately reduce the public's confidence in the justice system. In response to this concern, the bill also includes provisions that would reduce duplication of processes by allowing preliminary motions in related but separate cases that involve similar evidence to be adjudicated at the same time at a joint hearing. This innovative new procedure, which is consistent with Recommendation 28 of the June 2010 Air India report, would bring important gains in system effectiveness and efficiency, while of course preserving the accused's right to a fair trial.

The bill also proposes amendments that relate to direct indictments, which is a special procedure that requires the written consent of the Attorney General or Deputy Attorney General. It allows the Crown, in special circumstances, to send a case directly to trial.

The current state of the law is that if a bail hearing has been held in relation to an information, and a direct indictment is subsequently preferred for the same charges, the preferment is viewed as a new beginning for the purposes of judicial interim release or bail. In such cases, a new bail hearing is held, which often involves highly technical and often very complex evidence requiring significant court time. These inefficiencies are further exacerbated where multiple accused or counts are involved.

To address this duplication, provisions of Bill C-2 would maintain bail or detention orders where the prosecution prefers a direct indictment charging the same or an included offence.

In addition, unlike standard indictments, the correction of technical defects on the face of a direct indictment is currently not permitted by the Criminal Code. This means the Crown is required to prefer a new indictment, which, as you may be aware, requires the written consent of the Attorney General or the Deputy Attorney General. Having to repeat this process for a technical error is redundant and wasteful.

Bill C-2 would empower the court to make such technical corrections in direct indictments as is currently allowed in the case of standard indictments.

Third, the bill includes measures aimed at generally improving criminal procedure by increasing the number of jurors hearing the evidence on the merits from 12 to a maximum of 14.

Over the last decade, the time required to hear criminal trials has steadily increased. We recognize that serving as a juror is an important civic duty that can be very demanding. However, it is simply unacceptable that cases result in mistrials when jurors are discharged and the jury is reduced to below 10, which is the minimum requirement under the Criminal Code.

Starting a trial from the beginning is an unacceptable use of criminal justice system resources and severely undermines the public's confidence in the criminal justice system.

The bill proposes amendments that would allow for the swearing in of up to 14 jurors where circumstances warrant it. If, at the time of deliberations, more than 12 jurors remain, this number would be pared down to 12 by a random selection process.

The bill also includes provisions that would enhance the protection of jurors' identity so they can perform their duties without fear of intimidation. These amendments would have jurors called in open court by their number and would make the use of their name the exception. Also, where circumstances warrant, access to juror cards or lists could be limited by the court.

This legislation would make a corrective amendment to the French version of section 536.3 of the Criminal Code to render the language consistent with the intent reflected in the English version.

Canadians have given our government a strong mandate to tackle crime and better protect Canadians. We intend to deliver what Canadians want and to fulfill our promise to stand up for victims.

I encourage members to support this legislative package, which aims to improve our courts' ability to conduct long, complex cases and to make significant improvements to the overall efficiency and effectiveness of our criminal justice system.

The Chair: Thank you, Mr. Minister, for that overview. It is very helpful. We have questions from our committee senators. We will begin with our deputy chair, Senator Fraser.

Senator Fraser: Minister, welcome. What is the rush is about this bill? It was pushed through the House of Commons in jig time. They organized the committee, heard the minister, and barely spent 10 minutes on another witness. It was done clause by clause, boom, boom, boom. We are all aware of the case in Quebec where the 31 accused members of Hells Angels were set free because of delays in the mega-trial process there. However, those horses are already out of the barn. What is the rush?

Mr. Nicholson: This bill has reached a consensus among all the political parties, all the players that are directly involved with this, the provincial attorneys general and the territorial attorneys general. I have received positive response since this bill was introduced back in November of 2010. It has been out in the public now for these last eight months. Any time we can improve and assist with the criminal justice system in this country, it is incumbent upon us to move as quickly as possible.

The bill has been out there for eight months. I was contacted by the official opposition, apparently with the concurrence of the Liberal Party, asking that we move quickly on this. I was only too happy to oblige.

Senator Fraser: It has not been before the Senate for eight months. This is our first crack at it.

Turning to the substance of the bill, it is labelled An Act to amend the Criminal Code (mega-trials). However, the phrase "mega-trials" does not appear in the bill. Nor is there any definition in the bill of whom these extraordinary measures and system would cover. One could appoint a case management judge and bring the whole system into play for anything. Am I missing something?

Mr. Nicholson: You have touched on a number of things. In fact, the legal name for the legislation is the Fair and Efficient Criminal Trials Act. For the edification of the public, we do refer to it as the cover refers to it, as mega-trials. That is what we are talking about here.

With respect to your comments that a definition of mega-trial is lacking, you are quite correct. We are permitting the chief justice, or the chief judge, as the case may be, to define in appropriate circumstances when he or she is faced with a mega-trial. In answer to the next question you might ask me, this is consistent with the LeSage-Code report, which suggested that we not codify the definition of a mega-trial. This is judicial discretion. Many times, I am asked about giving discretion to the judiciary. I have complete confidence in the chief justices and chief judges in this country to make that decision.

Senator Fraser: I will sum up a page from the LeSage-Code report. It says that for the purposes of the report they will not get into definitions. However, when it comes to the implementation stage, or the implementation of their recommendations, some of which are implemented in this bill, they recommend the kinds of definitions that are described a few lines above in the report.

They were the experts. They were the people who studied it, and they thought definitions would be helpful.

Mr. Nicholson: Definitions are, in general, helpful. However, the LeSage-Code report was very specific with respect to mega-trials, and their recommendation was not to codify the definition. It is my understanding that you will be hearing evidence from Justice LeSage. I believe he will confirm my comments and my analysis of the report. They said specifically to leave that to the discretion of the judiciary.

Senator Fraser: I hope we have another round.

The Chair: We will see how the time goes. Thank you, Senator Fraser.


Senator Boisvenu: Good day, Mr. Minister. I would like to congratulate you for pushing this bill through quickly, because it is urgent. This bill should have been adopted 10 years ago. The first legal failures, at least in Quebec, go back to the years 2000, 2001 and 2002.

I recall a case where five jury members wanted to quit the trial at the same time, which would have scuttled the Hells Angels or Rock Machine trial in 2002-03. I would like to congratulate you on your role as an advocate for victims' rights.

These organized crime activities are the most complex and difficult cases to try. Such activities, including white-collar crime, which has created thousands of victims, cause some of the worst harm in our society. We have only to think of Lacroix's victims. Think of the Hells Angels network, which controls drug trafficking in schools and even the prostitution of minors, where young girls 12, 13, and 14 years of age are exploited. Such havoc has a very high cost for our society.

Our Criminal Code must contain effective and rapid procedures to ensure that the trials of these criminals are not dragged out in court year after year, costing taxpayers a fortune.

In Quebec, 254 criminals arrested for organized-crime-related activities are waiting to go to court. Thirty-one of them were recently released because of the slowness of the proceedings. If the Senate were to adopt this legislation quickly, would these 254 criminals be covered by the law?


Mr. Nicholson: I do not think there is any question. I do not comment on any specific cases that are or were before the courts. However, yes, when this is in place, this is the procedure that will be in effect when the chief judge or the chief justice designates a case to come within the parameters of this bill.

It makes very interesting points with respect to our criminal justice system. We must be looking at it continuously to ensure that it is up to date and is responding to the challenges that the criminal justice system faces. This is why I can say with confidence that attorneys general across this country continue to support this. In my discussions with them, and indeed with other individuals involved with our criminal justice system, the whole question of the conduct of complex trials is raised with me on a regular basis. This is why this bill has been so well received, in my opinion. These are steps in the right direction, and I appreciate the fact that this has your support.


Senator Boisvenu: It is urgent that this bill be adopted quickly so that it cover those individuals, currently in prison, whose trial will start in a few weeks' time.

I have another question on one of the key aspects of the bill that you are presenting, namely, the appointment of a trial judge, which should facilitate proceedings. This judge will be able to make decisions regarding the admissibility of evidence on Charter of Rights and Freedoms appeals or any other type of case. The prosecutors will therefore be able to take a position. I am also thinking about the technical errors that may follow. Will the rulings made by these judges be appealable or non-appealable?


Mr. Nicholson: They will be appealable once there is a verdict, senator. The appointment of the case management judge is designed to expedite the proceedings and get some decisions on some of the issues that many times are dealt with when the trial begins, which has the effect of delaying the process.

It is in everyone's interests to have the case management judge make decisions and assist with complex trials like this at an early stage to ensure that there is a fair, efficient, and timely trial. Again, the decisions made by the case management judge or by the trial judge are ultimately appealable.

Senator Lang: I want to make an observation for the record on the fact that the legislation is being deliberated so quickly and is looking for expeditious passage. It seems to me that a procedural piece of legislation like this can be dealt with in this manner. If we do not deal with it now, it will be next fall, if not later, before it does go through the process. We know how cumbersome it is to get a piece of legislation through the two houses. Unless we find something that is really out of order, we should proceed.

In your opening remarks, Mr. Nicholson, you mentioned the jurors and the increase from 12 to 14. I was wondering if you would comment on how efficient the actual process of the legal system proceeding will be when this bill comes into force and is utilized. The reason I ask this has to do with the question of jurors and the fact that some of them are sequestered for up to a year. It would be my hope that if we can make the court system more efficient with a bill like this, perhaps those jurors would be sequestered for only eight instead of twelve months. For the record, that is important to delve into because every Canadian may be called upon to serve at some time.

Mr. Nicholson: You have made a number of interesting comments, Senator Lang. As recently as yesterday, I was asked how much appointing the case management judge would cost. I have been told by my provincial counterparts, who are in the business of administering the Criminal Code, that this will help them manage their resources. This does not increase costs; this helps them streamline the process and helps them to reduce costs over the long term. This is exactly the point they have made.

You make a very good point with respect to jurors. All of us in this country owe a great debt of thanks to those who serve as jurors, those who have served and those who are prepared to serve in the future. They are an integral part of our criminal justice system. All Canadians must give them their thanks and appreciation. They are part of the fabric of this country and help make this country work. Nothing could be more frustrating, for those who sit on a jury, than to have to start all over again, if, for good reasons, two or three of the jurors cannot continue and the process is declared a mistrial. It is very disconcerting to those individuals who have given up their time to be there to help reach a decision.

The provisions we are proposing to increase the number of jurors to 14 are designed specifically to target the possibility that the whole matter could come to a waste if people, for good reasons, are not able to continue as jurors. However, you make a second good point that, hopefully, that sequestration and that time commitment of theirs could be reduced. I believe this is why we have received such good feedback on this particular legislation.

Senator Joyal: Minister, I was reviewing the recommendations of the LeSage-Code report. You might have a copy, or your officers will probably have a copy of the report with them. I refer specifically to Recommendations 9, 10 and 11 of the report. Recommendation 10 recommends that the Criminal Code be amended in particular in section 645. It says:

In particular, s. 645 must be amended to provide that a judge, other than the judge who eventually hears the evidence at trial, has the authority to rule on pre-trial motions.

Could you identify where this recommendation that deals specifically with section 645 might be covered in the bill? I understand the copy of the bill I have does not refer specifically to section 645 — unless you have come to the conclusion that Recommendation 10 of the LeSage-Code report is not useful or should not be acted upon.

Mr. Nicholson: I have found the report very useful and helpful to us. I would refer you to proposed new section 551.3(1)(g), as a matter of fact, which says:

(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to

(i) the disclosure of evidence,

(ii) the admissibility of evidence,

(iii) the Canadian Charter of Rights and Freedoms,

(iv) expert witnesses . . .

That recommendation is captured in that particular section.

Senator Joyal: Where is Recommendation 11 found in the bill?

The end of Recommendation 11 says the following:

The Criminal Code should also be amended to make it clear that any rulings at a first trial, that ends in severance or in a mistrial, remain binding at a subsequent trial absent some material change.

Mr. Nicholson: We have captured that as well, senator. Although I regularly spend all day and night reviewing all these sections, I cannot point to exactly which section.

Ms. Desaulniers has referred me to clause 14 of the bill, and specifically proposed section 653.1, which addresses the question of a mistrial, et cetera. That recommendation is captured there.

Senator Joyal: The report recommended, in Recommendation 20, that section 38 of the Canada Evidence Act be amended. I understand that the bill amends the Criminal Code but not the Canada Evidence Act per se.

Could you explain why it was decided that it was not proper to amend the Canada Evidence Act to give effect to that recommendation?

Mr. Nicholson: It is not that it is not proper, senator. As it deals with the matter of national security, we did not include it in this legislation, which, as you can see and as Senator Lang pointed out, is procedural in nature. In our efforts to confine the bill to procedural improvements, we did not include that. It is still possible to revisit that issue in the future.

Senator Joyal: Do you believe that if there were a mega-trial involving terrorist activities, the Canada Evidence Act as it currently stands is sufficient to deal with that?

Mr. Nicholson: I do believe that it is sufficient. To be clear, this bill is designed to handle terrorist or organized crime activity. It is procedural in nature, and it deals with those types of activities.

Senator Joyal: Section 673, definitions of trial court, does not mention the management judge that is created by clause 4 of the bill. Why did you not consider it useful to mention management judges in the definition of "trial court"? A management judge will render decisions that could be appealable and so forth. He or she is a real judge. This is not an administrative task. The judge will make decisions that will be binding; it is a trial court. Why did you not include the definition of "management judge" in the definition of "trial court"?


Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: When it was time to draft the bill, we felt that it would be clearer to group all of the powers and the role of the case management judge in a new Criminal Code section. This is what Bill C-2 proposes to do. It would create the new 18.1 section in the Criminal Code. During the consultation process for the drafting of the bill, we were told that it was easier to group all of the powers in one section, in the Criminal Code, rather than spread them throughout the code, to talk about authorities at the appeal stage, at the preliminary stage.

It was made very clear to us that it would be preferable to create a specific section, and that is what we did.


Senator Joyal: The definition of "trial court" includes all the judges or the magistrates. Unless I am mistaken, and I am relying on your comments for this, it includes the management judge.


Ms. Desaulniers: Definitely, and to clarify even further, the case management judge is a trial judge. You will see in the Criminal Code, when we discuss the powers of the case management judge and the powers of the judge who will be sitting at the consolidated hearing, that we have gone to the trouble of mentioning that the judge that acts in this capacity is a trial judge and that he is participating in this stage of the trial.

Senator Joyal: Absolutely, since the case management judge can become the trial judge.

Ms. Desaulniers: Indeed.

Senator Joyal: There can be two different judges, but this can be the same individual. Moreover, with respect to this point, it is extremely important to establish under what circumstances a case management judge ruling can potentially be appealable.

I have noted that in this bill, the circumstances that are defined are primarily linked to new facts.

Ms. Desaulniers: When we talk about new facts or decisions that should be reconsidered in the interest of justice, we are not referring to an appeal at this stage, because a reexamination of the issue will be done during the trial before the trial judge. At this stage, we are not talking about an appeal. However, this bill does not amend the right of appeal. In other words, as you know, the decision made by the trial judge on a preliminary issue can be appealed, as well as any other preliminary decisions in the course of an appeal which may occur once the case has been dealt with.

It was not our intent, with this bill, to change existing rights of appeal and this is moreover one of the reasons why we clarified that all of the case management judge's decisions are made during the course of the trial, and we also wanted to clarify the fact that, since these decisions are made during the course of the trial, they will be appealable, like the other decisions made during the trial at the conclusion of the case.

Senator Joyal: Do you think that your definition for reopening the decision, primarily because of the introduction of new facts, is sufficient to guarantee the ability to provide a full and complete defence?

Ms. Desaulniers: With all due respect, no, we tried to say that the decision could be reopened when the interest of justice requires it. And new facts are an example of a situation where this could be required in the interest of justice. This was to be viewed as an example and not as a limiting criterion.

Senator Joyal: It is not limiting for cases where a party may want to reopen a decision that could have been made by the case management judge?

Ms. Desaulniers: Indeed.

Senator Joyal: So if required in the interest of justice, several grounds could be alleged, and not just the appearance of new facts?

Ms. Desaulniers: Yes.

Senator Joyal: Very well. Thank you.


Senator Angus: I want to revert to the issue of jurors, which I think is one of the more sensitive areas in the bill. The case in Montreal has been in my face, and my light has been on late at night like yours, minister, because the citizens of Montreal are horrified by the decision there.

In such a case it would seem to be in the interests of members of crime groups to try to extract information from jurors who have been discharged, information such as the composition of the jury or the dynamics of the group. Do you have any concerns about this? Is a possible solution to these problems to sequester the discharged jurors separately?

Mr. Nicholson: The actual administration of these sections, and indeed the Criminal Code, is left to our provincial counterparts. We have responded on the question of jurors, making a substantive change to give the discretion to the courts to increase their number. The number of jurors in the usual circumstance will continue to be 12.

We were faced with a Criminal Code section that said if the number of jurors drops below 10 there will be a mistrial. In responding to the possibility of a long and complex trial, we decided to make this modification to the Criminal Code to allow up to 14 jurors.

To be clear, the decisions will be made, as they have always been in our system of law, by 12 jurors. At the end of the trial there would be a random selection of 12 of the 14. That would encourage all 14 jurors to continue to focus on the issues right up to the end, because they would not know until the completion of the trial whether they would be one of the 12 to make the decision.

I appreciate that can be a difficult circumstance, but it is more difficult if we risk a mistrial. The actual sequestering and composition of the jurors, for the most part, are left to the administrators, the Crown attorneys, the defence lawyers and the judges. All the decisions with respect to the choosing of them are made at trial, and it seems to me that makes a lot of sense. We do not get into too many details at the federal level. We make the amendments that we hear would help assist in the conduct of long and complex trials, but, ultimately, once the bill is passed, it is administered by the provincial attorneys general and the Crown attorneys and the defence and the judges who work within the system.

Senator Angus: I understand that, and the role of the federal government is basically the code itself and the substantive law, whereas the administration, as you suggest, is within the purview of the provincial attorneys general. These amendments that you and your officials put into effect from time to time are based on advice from those provincial attorneys general, and, in this case, the idea for 14 jurors came from all or some of those attorneys general.

Mr. Nicholson: Yes.

Senator Angus: In your answer to the first part of my question, you talked about the upper side, and you correctly pointed out that, if the number of jurors fell below 10, there would be a mistrial. Has any consideration been given to making it nine or eight, especially in special cases?

Mr. Nicholson: I cannot say there has been. In some jurisdictions, there is a modification of the usual or the traditional number of 12, or perhaps on civil cases a reduced number, but we have been consistent over the decades, and I suppose centuries, in relying on 12 jurors. I cannot say I have had any push back that I can remember from my provincial counterparts to reduce the number of jurors within the Criminal Code. I believe you will find there is a consensus or certainly a favourable response among my provincial counterparts regarding increasing the number of available jurors. The number 12 has been with us a long time, and it seems to have worked. I do not remember any push back or even a suggestion to reduce it.

The Chair: We have, on the first round, three senators who wish to ask questions of the minister. I will remind everybody that the minister will be with us until 4:30, so we have about 17 minutes.

Senator Meredith: Thank you, Mr. Minister, for appearing before us this afternoon. First, let me say that this piece of legislation is timely. It has been long overdue with respect to all the cases that have taken place throughout the country. We look at various individuals who have been charged. Specifically, I know in the last few years in the Toronto there has been a lot of organized crime activity. Individual neighbourhoods have been terrorized, and individuals have been rounded up. Given my connection working with the various chiefs of police in Toronto, I feel that this legislation is very effective, and I must commend your office and the government for leading the charge on this.

Having said that, minister, given the fact that we are acting at warp speed here in moving forward with this legislation, have you given thought to the rights of individuals who will be charged under this bill, should it become law, as it relates to the Constitution? Can you elaborate on that a bit before I go to my next question?

Mr. Nicholson: Thank you for those comments, senator.

In my discussions with other individuals and organizations and governments involved with the criminal justice system, I get, on a regular basis, suggestions or encouragement to make either technical amendments or procedural amendments, and that is not always easy to do. You will remember a bill that came before you, Bill C-13, which was a whole collection of technical amendments. They are, by definition, difficult to explain to people. It is easy to misinterpret what we are trying to do. I was informed by my officials that that was the fourth attempt in 10 years to get that particular bill passed. I made it clear to my department and to those I spoke with that I was determined that we would make those kinds of changes. They do not get much publicity, and they are often difficult to understand, but they are very important. The witnesses you will hear, and certainly Justice LeSage, who is following me, I believe, will make the point that we have to continuously upgrade our criminal justice system procedures and these technical matters to ensure that they respond to the challenges we face.

This particular bill, which is procedural in nature, is in everyone's interest. Individuals are entitled to an expeditious hearing of the matters with which they have been charged. They deserve to have those matters heard so that this is not hanging over their head. I think everyone agrees that individuals who have been charged deserve to have the matter heard in an expeditious manner. The public is entitled to have these matters heard. Again, this is why I believe there is a consensus on this right across the board.

I have made it clear to my provincial counterparts and others in the system that if there are technical or procedural changes they think we could make, hopefully they are not too controversial, but we have to continue to do this, and I am prepared to do this. This is an example of that, and it is in everyone's interest to get a bill like this passed.

Senator Meredith: With regard to support for this legislation, you talked about the attorneys general fully supporting it, and I would imagine that the chiefs of police across the country are also supportive, given that all the men and women in uniform who work so hard to protect Canadians right across the country sometimes feel frustrated that individuals are able to plea bargain or play one against the other in order to get out of charges, at the taxpayers' expense. I would imagine they are supportive of this.

My question is then is what is the opposition. Have any groups come forward to say this legislation is just not the way the government should be proceeding? Have you had any push back from that?

Mr. Nicholson: I have had very little. With all the different pieces of legislation I have been associated with, this would be very much at the very low end. The Canadian Bar Association has raised a number of questions — for instance, why "mega-trial" is not defined. On the other hand, the LeSage-Code report says there are very good reasons not to put a definition in. Others ask about giving discretion to the judges. In looking at these things, it seems like this is a perfect avenue for judicial discretion.

When we introduced this last fall, we watched these things carefully, and I was pleased that either I got silence, which usually means people are content or organizations are pleased with it, or people said yes, this is exactly what we have been asking for and this is what we need. Even though the composition of provincial attorneys general can change on a fairly regular basis, I have heard from none of them. I know that the attorney general of Quebec is very interested in having this bill move forward. He was not the attorney general when I introduced the bill, and I am sure I have that right. Even though there is a changing composition there, I continue to get good feedback. Among the bills I have had, this has to be one of the least controversial because everyone has a stake in making sure the criminal justice system works better.

Senator Banks: Thank you, Mr. Minister. I am keeping a regular member's chair warm, and I am not a lawyer, as you are about to see. I do not even watch CSI.

Mr. Nicholson: Perry Mason?

Senator Banks: No. I am old enough, though.

I assume that in a criminal trial, after hearing some of the physical evidence presented on one side or the other, a defence attorney or a prosecutor can, subsequent to that and in light of that, call a witness who has not been on a list somewhere before. Is that correct?

Mr. Nicholson: As a procedural matter, it would be up to the judge. Generally, the case would be made to the judge to call a witness. That decision would be made by the judge.

Senator Banks: My question therefore is in relation to the amendments being made to the Criminal Code with proposed new section 551.3. Proposed section 551.3(1) says:

In performing his or her duties before the stage of the presentation of the evidence on the merits, the case management judge . . . may exercise the powers that a trial judge has before that stage, including

(a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses' needs and circumstance . . .

Does that in any way preclude the right of either side to call witnesses after the fact? Does this draw a line and say that there will not be any more after this list?

Mr. Nicholson: You said you were not a solicitor, senator, but that is an excellent question. In fact, it does not preclude the trial judge from making those kinds of modifications. The case management judge would work with the lawyers who are involved with the case to try to streamline and set out just who would be called and how many would be called. However, that is not a final decision, and just as takes place now, the lawyer can make the application and make the case to the trial judge. Therefore, it does not preclude it in any way.

Senator Banks: Is that on the part of either the prosecution or the defence?

Mr. Nicholson: Exactly.

Senator Banks: Clause 2 talks about language that I have not heard before. Does the word "preferred," when it comes to indictment, mean served, issued, given out, or charged?

Mr. Nicholson: Yes, it does.

Senator Banks: It does not define a different kind of indictment. However, there is a special indictment, to which you referred.

Mr. Nicholson: It is a direct indictment. This is a procedure by which the Crown can move directly to trial and bypass the preliminary hearings.

Senator Banks: However, "preferred" simply means "submit" or "proceed with?"

Mr. Nicholson: That is correct.

Senator Banks: Would the direct indictment go around the necessity of a preliminary hearing?

Mr. Nicholson: Exactly.

Senator Banks: Suppose the direct indictment is for a crime for which a prior charge were laid, in respect of which bail, or judicial interim release, has been granted. Does this section say that the provisions of that bail, having been granted, apply in the case of the direct indictment?

Mr. Nicholson: It does. That is exactly what it does. Therefore, you do not have to start the process all over again. An individual has been charged and has, for instance, made bail, and the Crown then prefers the indictment. One does not start the proceedings all over again and require another bail hearing.

Senator Banks: Is the charged person is still out on bail?

Mr. Nicholson: The charged person is either out or detained. It goes either way, as you know.


Senator Chaput: These mega-trials involve numerous charges and numerous witnesses for crimes that are no doubt serious, and they are very time-consuming. Is this type of trial on the rise in Canada?


Mr. Nicholson: They tell me that it is rising. They are getting more trials involving multiple accused. Often these are related to organized crime, or they could be terrorist cases. The feedback I have received is that this is increasing and that the trials themselves are becoming more complex. This is quite apart from the fact that there may be more accused. Therefore, this is an attempt to deal with both of those issues.

Senator Chaput: How long can it take from beginning to end?

Mr. Nicholson: It can take a long time, senator. It could take many months or years. That also goes to a couple of questions that were asked about jurors. It makes it all the more necessary to have a system in place to make sure that we do not have a mistrial at the end of months or years because, for very valid reasons, three of the jurors cannot continue.


Senator Chaput: If these trials pertain primarily to serious crimes, would it not be appropriate to provide more security for the jury members? Is that an aspect that should be given consideration?


Mr. Nicholson: It is always a consideration. One provision I particularly like is identifying the jurors by number. That is to give them a little more anonymity. You will find there are a couple of provisions that will enable the court to take steps to help protect the identity of the jurors. It can be an intimidating process to serve on a jury in a case where many accused are members of terrorist organizations or of organized crime. We have to do what we can to assist them. These provisions are quite apart from other assistance that may be given to jurors that is within the discretion of the courts.

The Chair: Thank you, Senator Chaput. Mr. Minister, I have a question. I wonder about the Air India inquiry and the legal process issues that arose from the bombing of Flight 182. To what extent, if at all, did these events influence you and your department in preparing and proceeding with this bill? Did they have any influence?

Mr. Nicholson: There is no question about that. The Air India commission report specifically talks about the difficulties and the challenges in prosecuting a terrorist case.

The bill before you is not confined to terrorist cases, which was the subject of that report. It goes beyond that to organized crime and large numbers of individuals charged with similar offences. That report was helpful, as was the LeSage-Code report, as I indicated, in being the stimulus in helping to draft this and in focusing on the challenges. How difficult it was and how difficult it would continue to be is a recurring team within that report. These changes respond to that.

The Chair: It clearly reflects real life experiences, which the bill seems to try to address.

Mr. Nicholson: As I indicated to you on the technical amendments when I was here a couple of years ago, this is a continuous process. I make no bones about it. When I sit down with my counterparts and organizations, I say, "If you have amendments that are technical in nature that will make the process more efficient and fair, I am very interested in hearing those, as are the people who are good enough to work with me in the department."

The Chair: Thank you. Mr. Minister, do you have time for one more question? I know that 4:30 may be a deadline for you.

Mr. Nicholson: I am always in the hands of the chair.

Senator Fraser: This bill deals basically with procedure. However, it has been widely acknowledged that another element of the difficulties faced by the judicial system in these increasingly complex and difficult cases is the shortage of judges, large courtrooms and Crown prosecutors. I would assume that the creation of large courtrooms would be a provincial responsibility. Even in an era of budgetary stringency, is any consideration being given to increasing the number of judges and Crown prosecutors?

Mr. Nicholson: We have made changes to the Judges Act for the first time in perhaps the last couple of decades to increase the number of Superior Court judges. You may have seen in the latest Speech from the Throne our proposal to add two new judges to Nunavut. This is in direct response to a request we received. You quite correctly identified that many, if not most, of the resources for the administration of the justice system are at the provincial level, such as the appointments of Crown attorneys and the provision of courthouses. This is the second time that the government and I have responded to a request regarding an increased number of judges, most recently in the Speech from the Throne from about a week ago. I hope that is of some help.

Senator Fraser: There are no more on the horizon at the moment.

Mr. Nicholson: I am taking one step at a time — if I can get this bill through. I have a busy agenda, and I never get too far ahead of myself or our agenda.

The Chair: As usual, Mr. Minister, you are popular around this table. When I see the list of second-round requests, I realize that we could continue much longer. Thank you so much; we appreciate the information you have given us. I remind committee members that we have Ms. Desaulniers and Ms. Kane for another 45 minutes.

We will hear from Ms. Kane and Ms. Desaulniers, from the Department of Justice Canada. They are available to take our questions, but I wonder if they first have further statements to make.

Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: No, senator. Thank you.

Senator Fraser: As is often the case, this question is based on my boundless ignorance. At page 9 of the bill, we see proposed new subsection 631(6). I realize that the main purpose of this is to limit access to or use of information about the identity of jurors. However, it contains an element that exists in the Criminal Code, and that puzzles me. The prosecutor or the judge may make orders to protect information about the identity of jurors, but not the defence. Why is that?

Ms. Kane: Senator, the judge makes the order. Are you asking whether the defence may make the application?

Senator Fraser: Yes.


Ms. Kane: I must confess that this part of the section remains the same in the code. When we thought it would be a good idea to make some minor amendments to this section, we did not get any requests from participants, either from the defence or from other forums, that we modify the beginning of paragraph 6. So we did not feel that it would be appropriate to amend it.

However, your question as to whether a defence lawyer, or the defence, could express some concerns about the security of the jury, yes, that is not being excluded. That is possible. As for the specific reason why the section has been drafted the way it is, it is because it was already written like that. And no one asked us to change it. It seems to work well as it is currently drafted for the time being, so we will not be touching it.

Senator Fraser: So there is no technical reason for that, it is just given the nature of things, we tend to think that it is the Crown that fears jury intimidation. Is that it, in a nutshell?

Ms. Desaulniers: In a nutshell, yes, to my personal knowledge.

Senator Boisvenu: My question is for Ms. Desaulniers or Ms. Catherine Kane.

Will the bill before us apply to the Pickton case, Pickton who assassinated 49 women? Could it apply to cases where there are multiple victims involving only one criminal, but for which there may be 200 witnesses, 40 murders, in order to facilitate proceedings rather than holding a trial for each victim?

Ms. Desaulniers: That was one of the difficulties we faced when we dealt with whether or not we should provide a strict definition of a mega-trial. It is very difficult to define what a mega-trial would be. You are right, Pickton was an example where we had an accused facing numerous very serious murder charges.

However, the Quebec experience with mega-trials is different. Here we are talking about organized crime. We are not talking about indictments for one accused party. Quebec has a tendency to charge several individuals under the same indictment. A mega-trial is defined as a trial where numerous co-accused are facing numerous charges.

In another example, the Norbourg cases, there were a few co-accused facing a multitude of charges. So it is difficult to define what a mega-trial is exactly, thereby explaining why we thought it would be advantageous to give some flexibility to the chief judge in defining whether or not it would be appropriate to appoint a case management judge.

Senator Boisvenu: In the Pickton or other cases, we could have a trial judge, thereby avoiding delays for the victims and enabling this legislation to be applied.

Ms. Desaulniers: The chief judge, rather than wonder whether or not he is dealing with a mega-trial and then try to define what this is, would be well-advised to ask himself whether or not the trial involves challenges that would make it advisable to appoint a chief judge. Would it be in the interest of the good administration of justice for such and such reason to appoint a case management judge?

Senator Boisvenu: Thank you.

Senator Chaput: What would the common element be in these various mega-trials?

Ms. Desaulniers: The common element would be the difficulty in conducting a trial properly. Indeed, these difficulties can result from a series of factors: the number of accused, the number of charges, and it can also result from the complexity of the evidence. In the Air India case, we were dealing with a limited number of co-accused, but the evidence was so technical and complex that it resulted in an extremely lengthy and complicated trial that was described later on as a mega-trial.

Senator Fraser: And the duration as well?

Ms. Desaulniers: The duration, yes.


Senator Lang: I would like to go back to what Senator Fraser referred to about jurors. You talked about limiting access. I am not a lawyer, so I would like some clarification. In clause 9 we have the ability to add a thirteenth or fourteenth juror, and then the bill goes further and refers to alternate jurors being sworn in.

Please explain to me why that is in the bill in view of the fact that the minimum number of jurors is 12.


Ms. Desaulniers: Alternate jurors are selected at the time of jury selection and we ask them to come back when the jury has started to sit. Because, sometimes, it happened — though in fact, it is increasingly rare — in the past, that the jury was picked and these jurors were not asked to return to court until a month later to begin hearing the trial. This meant that, to deal with the possibility that some of the 12 jurors would not show up the date the trial started, we asked two alternate jurors to show up the first day of the trial just in case all 12 did not show up on that day. However, from the moment the trial begins, all the jurors, be they 12, 13 or 14, are considered equal. No one is identified as an alternate juror.


Senator Lang: If the legislation is passed before the summer break, when would it come into force? I know it is discretionary.


Ms. Desaulniers: The coming into force is set out in clause 17, which dictates that the bill will come into force on a day to be fixed by order.


Senator Lang: I did not understand that.

Ms. Desaulniers: As provided in clause 17, it will come into force by order-in-council.

Senator Lang: I understand that. Will it be in a month?

Ms. Kane: We have been discussing appropriate coming-into-force dates with our provincial and territorial counterparts because they have to prepare for it. We know that there is a desire for it to come into force as soon as possible, and the minister is committed to that, but it will require an order-in-council. The order will be drafted once the bill receives Royal Assent, and the dates will be selected at that time. We expect it to be fairly soon.

Senator Angus: Monday?

Ms. Kane: Not Monday, but very shortly afterwards.


Senator Boisvenu: When we talk about a time frame, are we talking about 30 days or six months? It is important to know. There are trials waiting in a queue in Quebec. It would not be good if the legislation was passed, and then there were to be a trial where the legislation would not apply. Do you have any idea of the time frame?


Ms. Kane: The minister is taking those points into consideration. He has received submissions from his colleagues in Quebec and is aware of the need to bring it into force very quickly.

I do not think the minister is contemplating six months but rather at some point over the summer as soon as the order-in-council can be put before cabinet and approved.


Senator Boisvenu: Could it come into force in each jurisdiction individually? Since there are trials scheduled to take place in Quebec, perhaps it could first apply in Quebec?


Ms. Kane: We anticipate that there is no reason for it not to come into force at the same time all across Canada.


Senator Boisvenu: It could come into force in Quebec before other provinces where the situation is not as urgent, could it not?


Ms. Kane: That is not typically done, but we do not see any reason that the coming-into-force date that will be applied will be a problem for Quebec or any other province. The same date should apply across the country and be sufficient.

The Chair: Are you satisfied with that?


Senator Boisvenu: Because we need to be logical. If there is a need to urgently pass this bill, and I think there is, it is also urgent for it to come into force.


The Chair: I understand your point.

Senator Fraser: I assume this is due to the philosophy that the criminal law is the same across the country. These are amendments to the Criminal Code. However, this bill would permit provincial systems to move to case management, et cetera. It would not oblige any province to do so before it was ready.

If it came into force after a mega-trial had begun, I assume that that trial would continue to be conducted under the old rules.


Ms. Desaulniers: No, the rule is that when a procedural or evidentiary amendment is made, it applies to the trial at the time it comes into force. Unlike substantive changes to legislation, where the amendment applies to the offence at the time of its commission, the procedural or evidentiary amendments are applicable to all trials at the time they come into force.

Senator Joyal: Ms. Desaulniers, I want to come back to the Lesage report. Are there other recommendations in the report specifically for the federal Department of Justice, that you felt did not need to be retained, other than the ones that are identified in my previous questions, meaning Recommendations 9, 10, 11, 12 and the one on the Evidence Act, Recommendation 20?

Ms. Desaulniers: I must admit that I was familiar with the recommendation concerning section 38 and the specific considerations concerning protecting intelligence to ensure national security. As a procedural expert, I focused on the recommendations in the report relating to procedure.

However, if I may, I can, later — today or tomorrow — review the recommendations and see if there are any other legislative ones that were not in my area and would not be targeted by this bill; however, I would be uncomfortable giving you an answer on the spot, since I am not totally familiar with all the sections of the report.


Senator Joyal: I will point out another one. Recommendation 41 states that:

The Federal, Provincial and Territorial Ministers of Justice should consider amendments to the Criminal Code . . .

— which is federal —

. . . to provide a power to appoint counsel for a self-represented accused where the accused's conduct is impeding or disrupting the trial or when the trial judge is satisfied that the accused's conduct of the case is causing an unfair trial.


It was clearly a recommendation to amend the Criminal Code, which obviously falls under federal jurisdiction, but it is not found within the current bill. For what reasons — I don't know whether you will be able to respond — did you not feel it was necessary to retain that recommendation?

Ms. Desaulniers: Unfortunately, I cannot elaborate on that decision.

Senator Joyal: I understand that, regarding the recommendations in general, there were a number, and I can mention them — Rules of the Court, Legal Aid, which fall under provincial jurisdiction, the Police Services Act, which also falls under provincial jurisdiction, The Crown Policy Manual, which can be subject at times to one or the other.

How can we satisfy at this stage what Justice LeSage recommended be the aim of the overall response, which will enable us to achieve the efficiency we would like to see for mega-trials?

Ms. Desaulniers: You are right to note this. Many recommendations were specific either to Ontario and the system in Ontario or were operational in nature, and therefore dependent on the province for their coming into force.

You pointed out, and rightly so, the legislative amendments for which the federal government has responsibility, but I would say to you that the majority of the recommendations in the Code and LeSage report — and Mr. LeSage will be able to elaborate on that shortly — the majority of the recommendations were more specifically directed at the Government of Ontario, be it the legal aid system in Ontario or the court rules applicable to Ontario courts, et cetera.

Senator Joyal: I find Recommendation 39 particularly interesting.


I will read it, because it seems quite opportune based on past experience with mega-trials and the problems that mega-trials raised in the past:

The Attorney General should possess the power to order a post-mortem or audit of a long complex trial, by a neutral expert, where there is a reasonable perception that the case has been conducted ineffectively or inefficiently. The Crown Prosecution Inspectorate Act 2000 (U.K.) is a useful model, with some modifications.


It is a useful recommendation, and as it is generally acknowledged, we learn of the errors or unexpected difficulties that have occurred. It does not seem that this recommendation causes concern for the federal Department of Justice.


Ms. Kane, am I wrong that this recommendation will not be active in the short term?

Ms. Kane: The bill before you deals with some aspects of the LeSage-Code report and other work done with the provinces and territories with issues of long and complex cases. That is not to say that any of the other recommendations have been abandoned. We collaborate on various committees with provinces and territories to look at how to make trials more efficient and how to improve the administration of justice.

You have before you the elements of those recommendations, elements of the Air India report recommendations and other work focusing on Criminal Code amendments with respect to long and complex cases only.

Senator Joyal: It is difficult to pinpoint within the federal Department of Justice who will be responsible for following up to ensure that someone monitors the various recommendations to come at a point whereby we could satisfy ourselves that mega-trials will be run or conducted in the most efficient manner in "the interests of justice," to quote the bill, or in a way that those other recommendations will not stay on the shelves and gather dust over years.

How can we be satisfied that the LeSage-Code report will be implemented within the responsibility of an authority somewhere?

Ms. Kane: As my colleague has indicated, the LeSage-Code report primarily made recommendations to the Province of Ontario, which of course are of wider application and interest across the country. Those recommendations have also been of keen interest to federal, provincial and territorial ministers of justice when they meet and federal, provincial and territorial deputies when they meet.

Our provincial colleagues routinely raise issues regarding improvement of the administration of justice. Therefore, we expect that they will be calling on the monitoring of these mega-trial provisions, and they will be telling our own minister how those provisions are working in the province, as will the officials we deal with on a more regular basis across the country.

We will be aware of how these provisions are working, and we will also be receiving further recommendations from our provincial colleagues on further improvements, as we do on many issues. I do not think there is any risk that things will sit on the shelf and be forgotten. If there is a need to move forward on things, we will be reminded of that.

Senator Joyal: As I understand the philosophy of the report, the administration of mega-trials is a very complex issue, and it deals with many aspects of the justice system, such as legal aid, rules of the court, the Crown Policy Manual, and the Police Services Act. All the agents that intervene in the administration of justice are called upon in the report to modify or adjust their practice to the objective of the report, which is to conduct mega-trials better and more efficiently.

It seems to me it is a very important element of the result that everyone wants to achieve, which is a way to improve all aspects of the system. It is very important that the federal Department of Justice has as a top priority in its regular meetings with the provinces the improvement of its own system and how it has acted in relation to the various elements where it has responsibility in the administration of justice.

In other words, some leadership is needed somewhere to push on the system to come to the improvement that the LeSage-Code report calls for. That is why I am trying to get from you how you feel and how you see your leadership role in that regard in the context of the regular exchanges you have with your counterparts at the provincial and territorial level.

Ms. Kane: I can only reiterate that it is an interest of all attorneys general to bring about improvements to the administration of justice. As the Minister of Justice indicated, he has been very receptive to those calls to do more and to improve the administration of justice in areas that he can act on. Those areas are on are Criminal Code amendments.

It is a joint responsibility, though, and provinces will do what they need to do to address some of the other elements, including the recommendations with respect to legal aid, their own Crown policy manuals and other things.

I know our colleagues from the Public Prosecution Service of Canada will appear later this evening. They may well be speaking to their own Crown policy manual, because they do have one as well for large and complex cases, and to whether or not they have developed those provisions.

Senator Joyal: I heard the minister respond to Senator Lang that the bill had zero budget impact. I read the recommendation in the legal aid section of the report, and it does not seem to me that it will be zero impact. To believe that you can improve the conduct of mega-trials on the basis of the LeSage-Code report and invest zero cents because there will be savings on one hand that will transfer to the other hand seems to me to be wishful thinking. There is money to invest in improving the conduct of mega-trials if we want to ensure that the interests of justice are served.

I understand that those aspects of the report do not fall directly under your responsibility, but there is no question about that in the discussion between the federal and the provincial government around the legal aid system. You will remember, Mr. Chair, that this has been raised around this table on various occasions. That seems to be a priority for discussion between the federal government and the provincial governments.

Ms. Kane: Senator, the issue of legal aid is routinely on the agenda of the federal, provincial and territorial ministers of justice and deputy ministers of justice as well. Meeting the demands on legal aid and the resource allocation are difficult issues, so ministers discuss them at every meeting they have.

Senator Joyal: Another aspect has been raised by Senator Angus, which is the fact that we have now a different system with two additional jurors who might need protection. You cannot release two persons who have been part of a mega-trial involving organized crime and just let them go and think they will not need protection. I am not familiar with those crime programs, and I do not want to watch them in principle, but I understand there is no doubt that two persons who were part of a mega-trial and who were released just before the release of the jury would be prime targets for anyone. We know that organized crime targets judges, prison guards and policemen. To think that you will not have to extend the programs of protection for jurors in that context, in my opinion, fails to recognize the reality. Did you discuss that with your provincial counterparts in the context of those changes to the Criminal Code?


Ms. Desaulniers: As was mentioned earlier, the issue of juror protection is in fact an issue that falls under the administration of justice, and therefore the provinces. However, some considerations became clear during the debates, when, among other things, these recommendations were presented to the minister and to the other ministers responsible for Justice, to the effect that when someone wants to get to someone, a former juror, it will likely be to try to influence the verdict. That was the experience we had in the past. However, the two jurors would be released immediately after the deliberations begin, and at the time of deliberations, the 12 jurors are sequestered, which means that they no longer have access to anyone on the outside. At that point, it is too late to try to influence the jury because it has been sequestered.

Theoretically, in that scenario, even if one had access to jurors who had been released, no one could, through those jurors, try to influence the result and the verdict, because the 12 jurors who are deliberating would be sequestered at that point.

This does not mean, and I do not want to criticize the comments that you have just made with regard to security, that there is no need to protect jurors, particularly with regard to organized crime, but it is nevertheless a consideration to keep in mind: those two jurors, to the extent that they will never take part in the deliberations, will never be able to influence the final verdict, and thus become by that very fact less interesting.


The Chair: Senator Joyal, I will ask you to hold any further question for a second round. We have less than 10 minutes, and I have two senators who would like to ask questions.

Senator Meredith: Supplementary to Senator Joyal's question, it seems as if we are putting this legislation forward, but we have not considered the lives of those Canadians who are putting themselves forward in these situations. As the senator indicated, we are talking about organized crime, those who are again looking for individuals to take out their families and so forth. I think it is incumbent upon us to give serious thought to this. The minister mentioned a numbering system for these jurors. We have to say clearly that we are acting responsibly on their behalf as they come to serve the general public in their duty.

What provisions have been made? From your answers, it seems we still have to work on this in terms of provisions that have been made and the protection of those jurors who potentially could be released prior to the deliberations. It is critical that we give thought to that. Canadians across the country want to serve and want to see public safety as a priority within the cities of this country. We clearly have to demonstrate as a government that we are acting prudently and responsibly in their protection, should they come forward.

Could you elaborate more on what the provincial counterparts have indicated regarding the protection they will be providing to those jurors? It is critical that the committee get a solid feeling that we can support this legislation going forward and that we have looked at all aspects of it and have not left out those individuals who put their lives on the line.


Ms. Desaulniers: We were recently asked to examine the jury reform report by the Steering Committee on Justice Efficiencies and Access to the Justice System. Among other things this report included two recommendations to better protect jurors. These two recommendations can be found in the bills before you. The first was mentioned earlier; juror candidates would no longer be identified by their first and last names but rather by their number, which means that in the courtroom, the people selected in public and called forward as part of the selection process will no longer be identified as sir or madam but rather as juror 423, et cetera.

The second measure means that the explicit power of the trial judge to control access to the juror's cards will be codified. Normally, during jury selection, the parties have access to the jury cards on which more personal information about the candidates can be found: their occupation, their age, et cetera. Common law currently recognizes a judge's power, when required by circumstances, to control the information on the jury cards. For example, in trials involving organized crime, there have been cases where the judge has asked lawyers not to take notes on that information or even comment in extreme cases, not to share it with the accused. The bill deliberately codifies those powers to ensure that the judges will feel at ease, when circumstances necessitate, putting in place measures to protect the jurors' personal information.


The Chair: Would you file a copy of that report with our committee?

Ms. Desaulniers: I can, and it is also available publicly on the Internet.

The Chair: Thank you. Our final question on the first round is from Senator Boisvenu.


Senator Boisvenu: I would like to come back to the costs of Bill C-2, because that was one of the criticisms used by those opposing these measures that we have adopted over the past few years to better serve justice and to better protect the public.

We have always heard that it costs too much money. The trial that was just aborted in Montreal cost the Government of Quebec six million dollars in legal aid fees, including $240,000 to defend a criminal.

This kind of thing happens frequently. We have seen it occur in Quebec for several years now. In your opinion, is it not here that we will achieve real savings so that ultimately, since the provinces are the ones paying for the administration of justice, the costs will be almost nil?

Ms. Desaulniers: We do not have specific data on the additional resources needed as the result of the bill or, on the contrary, on the savings to the system.

However, the bill includes a series of measures to prevent unnecessary duplication, including repeated hearings that can be avoided. Let me give you an example: holding joint trial hearings. Under the bill, separate trials would each proceed independently, but where there is a common issue, for example when a wiretap order applies in three separate trials, at that time, the order is pleaded before three different judges and there could be three different decisions. So, lawyers will plead the case three different times, the judge will deliberate three different things and the decision is handed down three different times. This is a duplication of resources and this also means that there could be different rulings. Under the bill, for the purposes of determining a common issue raised in separate trials, the chief justice could order that a joint hearing be held. This is the kind of measure that could lead to savings within the system.


The Chair: Senator Joyal, we have two minutes, and witnesses will have to connect with a video conference. Therefore, please be succinct.

Senator Joyal: My question relates to the Canadian Charter of Rights and Freedoms. Are you satisfied that the sections in this bill would be in full compliance with section 11 of the Charter?

Ms. Kane: We are confident that no provision of this bill infringes any Charter provision at all. This is all procedural, and all Charter rights are preserved in their entirety in this approach.

Senator Joyal: I raise that question because section 11 deals with proceedings and procedural protection. There are various procedural protections provided and defined in section 11 and especially at subparagraph (h) of the Charter. Considering that one individual will now be merged with another in a trial, whereas until now each individual was entitled to his or her own trial, are you satisfied that you are not opening a new kind of argument to the defence counsel by merging a certain number of decisions, as you propose in the bill?

Ms. Kane: Senator, are you referring to the provisions with respect to the preliminary rulings that would then apply after the trial?

Senator Joyal: Yes, I am.

Ms. Kane: We are quite satisfied that the bill complies fully with the Charter. However, with every piece of law reform, we expect that there will be applications under the Charter. If you are asking whether we think that the defence will bring Charter applications, we expect that they will do so if it is in the interest of the defence of the client. That does not come as a surprise or concern us because all those would be defensible.

Senator Joyal: I agree with you that anyone can raise a Charter objection. The question is what is the substance of the argument in relation to the new provision. In a prima facie case, would that argument succeed? That is the $1,000 question. On the second level of my question, are you satisfied that what you propose would survive the substantive test of section 11 and how it has been interpreted in the past by the courts?


Ms. Desaulniers: There is nothing in the bill that seeks to limit the right of the accused to a full and complete defense and to put forward all arguments that he or she feels appropriate with regard to the issue that will be heard at the joint hearing. We anticipate that all the parties will come together at one hearing. When we talk about all the parties, we can also think of two trials with two defense lawyers. We do not necessarily need to think that this will bring together some 30 lawyers in one room on the same issue. There is nothing in the bill that would shorten the debate or prevent an accused from presenting all the points of law that he intends to present to support his position on a preliminary matter.

Senator Joyal: And the decisions made at the preliminary inquiry, in your opinion, and which will be binding with regard to a case where the trial is aborted, these decisions remain acceptable in the eyes of the court?

Ms. Desaulniers: It is anticipated that, under that particular provision, the issue could be reopened if it was ever in the interest of justice. We have ensured there is flexibility to say that if an unexpected event occurs and sheds doubt on the preliminary ruling, the judge will always have the possibility of reopening the issue. If new facts come to light or there is any other issue that is in the interest of justice, the judge will have full discretion in reopening the issue if he or she believes it is appropriate particularly to ensure the rights of the accused to a full and fair defense.

Senator Joyal: You believe that this is the provision —


The Chair: I have to stop you at that point. We do have our next witness, and we will be connecting by video conference. I apologize for having to cut you off.

Ms. Kane and Ms. Desaulniers, thank you very much for your valuable contribution to our work. I am sure that we will be hearing from you again.

I am pleased to introduce our next witness, the Honourable Patrick J. LeSage, former Chief Justice of the Supreme Court of Ontario. During his 29 years on the bench, Mr. LeSage presided over some of Canada's most publicized and complex cases. In 2008 he was appointed by the Attorney General to conduct a review of large and complex criminal case procedures. As we heard earlier today in the presentation by Minister Nicholson, the work of Mr. LeSage and his colleague Michael Code in 2008 as reported in their extensive report was instrumental to the work that led up to and resulted in Bill C-2.

Mr. LeSage has joined us today by video conference from Toronto. Mr. LeSage, we are delighted to hear from you about your work, which will be of great help to this committee in its work. We are grateful that you are able to be with us today.

Hon. Patrick J. LeSage, CM, OOnt, QC, as an individual: Thank you very much for accommodating me by video conference.

The Chair: Mr. LeSage, do you have an opening statement?

Mr. LeSage: I do not have an opening statement other than to say that I am pleased that the essence of the recommendations made by then Professor now Justice Code and me in our report are reflected, to the extent they can be, in proposed federal legislation. I am grateful for that. That is my only opening comment.

The Chair: That certainly will allow considerable time for questions; we thank you for that. We will begin with the deputy chair of the Committee, Senator Fraser.

Senator Fraser: Mr. LeSage, welcome to the committee. In a sense your brief opening statement answered my general opening question, so I will move to a more specific question. There has been quite a lot of discussion, as I am sure you know, about the fact that this bill provides no definition of the mega-trials to which it should apply. Rather, it could apply to anything that crossed someone's mind if the provincial authorities so decided or if the courts so decided.

Would it be helpful to provide even general indications about the sort of trial in which these procedures should be used? Should there be any kind of framework?

Mr. LeSage: My preference is that there be no definition or description because the moment you start to describe it, of necessity you are limiting the descriptors. It is not always easy in advance to identify a complex trial or what could become a complex trial.

Although recommendations had been made by a federal-provincial-territorial committee to define a complex trial, our view was that it is preferable not to define it. As a former chief Justice, I can assure you that a Chief Justice will not go through the process of appointing a case management judge for a case that is not complex. I do not believe it is necessary to define "mega-trial," although I recognize that there are views to the contrary.

Senator Fraser: Being a former Chief Justice, you understand better than the vast majority of Canadians how the system works. There was some discussion earlier today about costs and resources. Do you expect that the implementation of this bill as it stands would have much impact on costs or uses of resources in the court system? For example, available slots would have to be handed over to a case management judge. Would the benefit at the other end compensate for that, or would it simply make for cleaner trials?

Mr. LeSage: Professor Code and I believe very strongly that there is the potential for and the probability of significant cost savings. Currently, many of what we would see as at the outset as mega-trials will end up in a number of separate trials with the number of charges. For instance, in Pickton the trial judge decided that he would separate the charges and not hear all of them at once. I believe he had the Crown select six.

If it were to resume, so that the balance of the trial of the charges be heard, which I understand is not happening, they would have to hear the same motions all over again.

Similarly, in mega-trials where you start off with 40 or 50 accused — and in my view it will be impractical to have a trial with 40 or 50 because it is just not manageable — you can have the rulings, which will apply at the outset to all of those trials. All of the accused will be there to make their submissions on the motions, but then the trial will be broken up into separate pieces, and you do not have to make the same rulings about the same issues time and time again.

We believe that there would be very considerable savings.


Senator Boisvenu: Justice LeSage, it is an honour for me to be able to ask you questions, particularly since I am not in a habit of asking former judges questions.

I was happily surprised to learn earlier that if this bill passes, it could apply in the Pickton case.

You know that in the Pickton case, the Crown only recognized 6 murders, but 43 other murders were set aside. And the families felt that justice had not been done.

If Bill C-2 is passed, a sentence could be applied with regard to those 43 murders and people will feel that justice has been rendered.

I am extremely pleased then to learn that, with regard to multiple murders, this bill could apply.

Your Honour, you say that the recommendations of your committee are found in large part in Bill C-2. I would like you to tell me if there are any major recommendations that are not found in Bill C-2 and if so, which ones. I would also like to know if you are very comfortable with Bill C-2 in relation to the recommendations that you made. I do not know if my question is clear.


The Chair: Did you hear the question, Mr. LeSage?

Mr. LeSage: I heard the first part. I did not hear the second part. I will try to answer the first part.

Yes, I am satisfied that the majority of the recommendations that Professor Code and I made that could be translated into an amendment to the Criminal Code have been made. Only one is not here. It is not practical to put it in because of the very challenging issues it would present. That is the reference to section 38 of the Canada Evidence Act. It is not in this bill, and I think it is preferable that it not be in this bill. If it were to go in a later bill, it would be the subject of considerable discussion.

All of the recommendations we have made that are germane to the Criminal Code have been made.

The Chair: Is that satisfactory?

Senator Boisvenu: Yes. That is okay by me.

Senator Runciman: Welcome, Justice LeSage. It is an honour to have you before the committee.

I have a couple of questions. There has been very little criticism of this legislation. However, a couple of concerns have been raised. I would like to give you an opportunity to address them. There may be more that come down the pike this evening.

Regarding a rigid definition of "mega-trial" in the legislation, I think you are aware that there have been calls for that by at least one organization. What is your view with respect to the need for a rigid definition in this legislation?

Senator Angus: He has already answered that.

The Chair: I think Senator Runciman was delayed coming in. Mr. LeSage did address that question.

Senator Runciman: I apologize. I will move on to something else. You also talked about saving money. You think this will save funds. Concerns have been expressed that this will be a drain on judicial resources. How do you see that? Could you elaborate on that?

Mr. LeSage: Thank you, senator. It is nice to see you again and to see someone from Leeds and Grenville. The short answer is yes. We believe it will save money not only from the judicial point of view, with reference to court hearings, but also from policing. It will save money from counsel fees, both for prosecution and for defence. It has the potential to do that. I cannot see that it has the potential to increase the cost. To me, there is nothing in these recommendations that could require additional expenses. There is a potential for very significant savings in prosecution, defence, police, and the whole system.

Senator Runciman: A question was raised just a short while ago in the Senate chamber with the second reading with respect to this creating the possibility of more delay in the system. Do you see any potential for that occurring as a result of this legislation?

Mr. LeSage: I do not, unless there is something that I do not see and that Professor Code did not see. He is far smarter than I. I do not see how it can cause a delay. Among other things, these rulings will be appealable only at the end of the trial as they would in any other trial. It is not as if they will be interlocutory or interim appeals that would delay the trial. Maybe I am simplistic; however, I cannot see how it can delay a trial.

Senator Runciman: What would happen if the trial judge has difficulty interpreting or agreeing with a preliminary ruling by the case management judge? How would that process work?

Mr. LeSage: That is a very good question, senator. Having been a judge for 29 years and in the criminal justice system for 12, I can tell you that some judges will not be enamoured with the fact that they have to accept a ruling made by another judge. However, as far as I am concerned, you just do it. That is all. It will be a minority of judges who feel that way. However, there are many things in life over which we do not have complete control. It is not the judge's trial; it is the public's trial. The system is now structured so that another judge may make a ruling by which everyone else is bound. Therefore, I see no problem with the judge who is actually conducting the trial being bound by it. In some cases it will be the same person, but in many cases it will not.

Senator Runciman: I hope I am not taking Senator Baker's comments in the chamber a short while ago out of context.

Senator Baker: We will see.

Senator Runciman: He asked why the provinces' own rules of court could not permit exactly what this case management judge would do. Do not some courts already have such rules in place today?

Mr. LeSage: There are two aspects to the case management judge's role. The one is administrative and managing. All of that they can do today. They do it today. Part of our report is simply to recommend and encourage judges to do that and encourage chief justices to encourage their judges in their domain to also do it. The Criminal Code now does not permit anyone but the trial judge to make binding rulings.

I know it seems more complex than this, but it really is, in many ways, a minor amendment to section 645 simply to allow another judge, and in this case one assigned by the chief justice, to make rulings beforehand on matters that may be common to a number of trials, and then they are carried through at the trial.

The legislation does not now permit another judge to rule on issues of admissibility, production of documents and matters that are currently reserved exclusively for the trial judge.

Senator Angus: Good evening, Your Lordship, and welcome to this committee. I believe that the question I wanted to ask has been answered, but I want to be certain.

First, my colleague Senator Boisvenu asked you whether the recommendations that you and Professor Code made in your report that have been incorporated in Bill C-2 are the necessary ones. I believe you answered that as far as you are concerned the germane recommendations are in the bill. Is that correct?

Mr. LeSage: Correct.

Senator Angus: Although this bill has been around here in various forms for some time, the treatment that we are giving it this week was triggered largely by the decision rendered in Quebec in the Auclair case on May 31. I will not ask you to in any way comment on a brother judge's findings in a case that may still be pendente lite. The judge in that case liberated 31 accused because they were waiting an inordinately long time for their day in court. He said that it was wrong to proceed knowing that the system could not handle this kind of a case efficiently, and he warned that the same thing might happen with other mega-trials in the future.

In your view, having read and studied Bill C-2, do you believe that it responds to that warning?

Mr. LeSage: As you indicated, the matter is pendente lite or sub judice, and I would not want to transgress and comment on the case. However, although our report was prepared for the Province of Ontario, we have consulted with judges and lawyers across the country, and we believe that there are recommendations that will help to make trials more effective and, more important, more efficient. This bill does not cover many issues. It is small, but it would result in a very significant change to the law that would, in my view, assist in any mega-trial.

Senator Angus: The Minister of Justice, the Honourable Rob Nicholson, was before us an hour or so ago, and he and his officials have assured us that there are no constitutional issues in the bill and that it adds, just as you have said, an important element for improving the efficiency of the process, if you will.

This committee seems to be dealing constantly with legislation as opposed to doing sociological studies. We are constantly being warned not to participate in making bad laws, not to let flawed bills go through. I need your assurance that there are no flaws in this, that this would be good law.

Mr. LeSage: Not being on the Supreme Court of Canada, I cannot make that declaration, but it strikes me as being good and solid law, and I think it passes the test. I was a simple trial judge and do not have all the expertise of others, but I think it is perfectly sound and legitimate and within the confines of the Charter.

Senator Angus: Thank you very much, Your Lordship.

Senator Baker: Senator Runciman, you did misunderstand what I said in the chamber. I said that section 482 of the Criminal Code allowed for rules to be made for a case management judge but that this legislation goes far beyond that, as you point out. It enables the case management judge to make determinations that would normally be made at trial.

Mr. LeSage: Exactly.

Senator Baker: My difficulty with the bill is, and you would know this very well, that no Charter argument can be advanced without an evidentiary foundation. I think of section 8 of the Charter as it relates to warrants and section 7 of the Charter as it relates to disclosure, and I do not think they would be determinative in any way in these mega-trials. However, this bill says that these determinations will be made before evidence on the merits is presented at trial.

I am wondering how that is possible to do. How do you adjudicate a violation — Senator Angus, who has appeared before the Supreme Court of Canada many times, just said "affidavits," but in a criminal trial you would have to have evidence and cross-examination of the affiants of those affidavits for the search warrants to obtain. You would have to have an evidentiary foundation; it cannot be done in a vacuum.

I am wondering how this will save any time at all, except that you will have to hire an additional judge to hear decisions that are being made pretrial. How do you answer that?

Mr. LeSage: There are two parts to that. One is that it will not be an additional judge. We believe that management of the cases is very important, whether it is done by the trial judge, which in many cases it will be, or whether it is done by another judge, which in a number of cases, particularly in larger jurisdictions because of scheduling, becomes very challenging. All of the evidence that is germane to that issue will come out on a voir dire hearing to determine whether section 7 or section 8 has been violated, and all of the accused who are affected will be there. There will be one ruling, and it may affect 40 people. You know that in these large trials on organized crime or terrorist cases there are often search warrants, wiretap warrants and video-type warrants that can result in the arrests of 50 or 60 people on a mammoth sweep.

Then you would have one hearing. The evidence you will hear at that hearing is germane and relevant to the issue of whether it was a properly obtained warrant and whether it was executed properly. The obtaining of the warrant will apply to all of those accused. That will be done. If it is not done by the trial judge, that is fine. That is not evidence that will go toward determining whether the person is guilty or innocent. The result will determine the evidence on the merits of the trial.

I have my own sense about how many may be a manageable number of accused at trial, but I certainly would never try a case with 40 accused. Then, when it is broken up to a number of separate trials — severed, not uncommon — that ruling would apply to all, so you do not have to do it over and over again.

Senator Baker: How then do you answer the criticism of the obvious problem that arises in that a Charter argument can only be made by someone whose Charter rights have been violated? A Charter argument is not directed toward the product of the search. It is not directed toward the execution of what is found. A Charter argument can only be made as a violation of a person's particular rights.

As you put it in some of your judgments, you need to have standing in order to be affected by a Charter ruling. In effect, a Charter ruling on one individual may only apply to that individual. A violation of the Charter as it relates to someone's home, someone's bank account or a violation of wiretapping is only a violation as it relates to the person whose rights have been violated. How do we apply that to all of the other persons charged in the same indictment?

Mr. LeSage: I do not want to get into too much of a technical argument here, but I do not think it would affect anyone else. If it does affect them, they have the opportunity to make their submissions.

When you start off the trial at the early stage, you know that you will never have a trial with 40 or 50 of them at one trial. However, you can hear all of the motions about the obtaining of the warrants.

The example you gave is a good one. There will be probably 35 or 36 who have no questions on that particular bank account. However, the search warrant is probably a broad search warrant for a whole lot of bank accounts or for a whole lot of wiretaps, and then it can be heard at one time.

Everyone who has a right — who will rightfully be affected — will have an opportunity to dispute it. However, it will be disputed at one time rather than in the six or eight separate trials that might occur.

Senator Baker: I have a final question because the chair is cutting me off. He is also a trial lawyer, so you can understand that.

My Lord, would you then conclude that certain Charter arguments would be adjudicated prior to trial but that the majority of Charter arguments would not be adjudicated prior to trial under this legislation?

Mr. LeSage: I would put it the exact opposite. I am sorry. I would say the majority will be done in a broad application and only the more narrow ones would be dealt with at trial. The vast majority of them will be dealt with.

So many of these cases are determined based on the search warrant and on wiretaps and video. I do not mean to be overly pragmatic, but the determination of that issue often resolves the case. If the wiretaps go in, you will probably end up with a lot of guilty pleas. If they do not, you might end up with the Crown withdrawing a lot of charges. You get that out at the beginning and you resolve those issues. It has the absolute potential of making it much more efficient.

I am sorry my answers are so long-winded.

Senator Baker: No, my questions are long-winded. That is what the chair says.

The Chair: Not at all.

Senator Baker: If there is a second round, I will take it.

Senator Lang: I would like to draw the former judge's attention to the issue of selection of jurors. I believe the bill allows it to go from 12 to 14 jurors. I would like to hear your comments on that, given your past experience.

Mr. LeSage: It is something with which we do not have any experience, although they do have a lot of experience with it in the United States. I have had the luxury of being involved in hundreds of jury trials, both as a prosecutor and as a judge. It is rare that I have had a case where we have gotten down below 10. If you do, that is the end of the case.

This puts in a comfort level, particularly in very long trials, such that you are not worried about running the risk of getting down to nine jurors, at which point the case has to be aborted.

I think it is worthwhile. It will not be done at every trial by any means, but where the case is predicted to last several months — let us say 5, 6, 8, or 10 months — then I think it is a very good safeguard. I think the system they have incorporated in the bill is a practical way of doing it.

I cannot see any downside, other than the inconvenience to perhaps two jurors for a not insignificant period of time.

Senator Joyal: Mr. Justice, I would like to come back to recommendation 41 of your report, if you remember the one. You might have the report on the table.

Mr. LeSage: I do, because I do not have much memory of it.

Senator Joyal: It is the one where you recommend that the Criminal Code be amended to provide power to appoint counsel for a self-represented accused. It seems that it is an important element. In a mega-trial, where many accused face justice, some of them will want to represent themselves. As you certainly know, it slows down the administration of justice in a substantial manner.

This recommendation seemed to me to be very practical and does not deny the individual rights of a citizen or person to defend himself or herself in court. I do not think it has any Charter implications.

Are you not left pending on the very recommendation that is not covered by Bill C-2?

Mr. LeSage: That is a very good question. Michael Code and I were somewhat uncertain about that. My view is that perhaps the judge can do it now, but I say only "perhaps." I think, you being from Quebec, you know very well the Fabrikant case. What better case to have utilized a provision like that.

It is questionable whether the judge can do it. I think the judge can do it without an amendment. However, I might feel a little more comfortable if it was provided for in the bill, but I actually think the judge can do it. Not everyone agrees with me.

Senator Joyal: Have you been able to follow up on the implementation of the majority of your recommendations that did not deal with amendments to the Criminal Code? As much as I have been able to understand your report and read it through, there are three main recommendations that call upon amendments to the Criminal Code that we find treated in some way in Bill C-2.

Most of your recommendations, which I mention ad seriatim, dealt with rules of the court, the legal aid program, the Police Services Act, Crown policy, and many changes that do not call for amendments to legislation but rather for practical changes that involve almost all the agents of what I call the administration of justice. Have you been able to follow up on or identify which authority is implementing the whole of it so that we can conclude that the wisdom of the recommendations of your report has been acted upon?

Mr. LeSage: Thank you for referring to it as "wisdom." I would like to think of it as pragmatism, but, yes, the law society has changed the way in which they deal with errant lawyers. Legal aid has increased its tariff for major trials, but maybe not as much as many would like to see. The Attorney General has made it clear that it has oversight of Crowns, and I could go on. Given this was an Ontario report, there has been very significant adoption of the recommendations in Ontario.

Senator Joyal: May I go back to recommendation 39, in which you recommended that:

The Attorney General should possess the power to order a post-mortem or audit of a long complex trial. . . .

From our experience that would seem to be common sense. Do you see this as a major element of practicality that should be implemented, not only in Ontario jurisdictions but in jurisdictions all over Canada?

Mr. LeSage: Yes.

Senator Joyal: It has not been enacted as far as you can see.

Mr. LeSage: I am not used to any of my recommendations being enacted, so if some of them are enacted, I consider it a great victory.

You need to have a particular case that goes off the rails and then you will learn a lot. You might recall a case in Alberta a few years ago. They did an autopsy of the case that proved to be very informative. We have had many cases in Ontario where we should have had autopsies and did not. It is a reminder to the attorney to think about doing this if one of these cases goes off the rails.

Senator Joyal: Does the Auclair case in Quebec come to mind? You are well aware of the decision that led to the release of 31 accused persons. Does that case reflect a major element of how we can reform the justice system?

Mr. LeSage: I am a little cautious about responding to that case. At least part of it, if not all, is still outstanding. If the case were completed, one way or the other it would be a good example of a case that would benefit from an autopsy.

The Chair: I have one question. The underlying basis for the designation of a case management case is the chief justice determining that the appointment of the case management judge is required in order to ensure the proper administration of justice. The term "proper administration of justice" is not defined and no criteria are set out in the Criminal Code to establish what that would constitute. Rather, it is left to the discretion of the chief justice or chief judge. Do you have any comment to make on that?

Mr. LeSage: In my simple world, I would say that a case management judge may do this and then just let it happen. When Michael Code and I prepared our report, we met and consulted broadly with the defence bar, the Crowns, the police and all persons involved. We received a general buy-in. Without question, the consensus was that having the case management judge more involved had merit. Even though it is not in the definition, I cannot see that it should be a problem. If I were a chief justice, I would not see it as a problem. People from the defence bar that I spoke with do not see it as a problem.

The Chair: Senator Baker, please keep it succinct because we are running over time.

Senator Baker: We thank you very much for your testimony today, which has been most helpful. I congratulate you on your report as well.

The bill states that "the application or appointment may be made only after the prosecution prefers the indictment." To prefer an indictment in Ontario has a different meaning in Ontario than it has in Alberta. You are nodding your head.

Mr. LeSage: Well —

Senator Baker: That is not my question. I listened to you speak carefully on the Charter applications and disclosure applications that will be decided pre-trial. Did the police really say to Michael Code and yourself that they will have all the disclosure given prior to trial and all of the warrants unsealed so that the Charter arguments can be made?

Through the normal progression of a trial, the police are way behind on these things because they do not have the resources to produce those materials prior to trial. Do you think that this bill may require the police to spend more money on disclosure prior to the trial beginning?

Mr. LeSage: I have a couple of responses. First, on the preferring of an indictment, it used to vary in different provinces and in different counties within a province. In a case some 15 years ago, the Supreme Court of Canada realized this and so it decided when something was preferred.

Senator Baker: I believe it was the Litchfield case.

Mr. LeSage: Second, we consulted broadly with police in Ontario, including the RCMP, the Ontario Provincial Police, and all major police forces; and they buy into this 100 per cent.

The Chair: That concludes our hearing. There has been unanimous enthusiasm around the table for having you take the time to present your information today, for your work and thought on the subject matter. Obviously your work has been relied upon heavily by the Minister of Justice in preparing this bill. Thank you for making yourself available. It was much appreciated and helpful.

Mr. LeSage: It has been both an honour and a privilege; thank you.

The Chair: Colleagues, we will continue with our consideration of Bill C-2. I am pleased to introduce our next panel. Representing the Public Prosecution Service of Canada, PPSC, is Mr. Don Beardall, General Counsel, Drug, National Security and Northern Prosecutions Branch. Mr. Beardall was called to the Ontario Bar Association in 1979. He practiced criminal defence work in Toronto before joining the Department of Justice Canada in 1986 as a prosecutor. In 2001, he assumed his present duties at Headquarters Counsel as the organized crime prosecutions coordinator.

Accompanying him is Nancy Irving, General Counsel, Drug, National Security and Northern Prosecutions Branch. She was called to the Ontario Bar Association in 1982. After two years in private practice, she joined the Department of Justice Canada as a prosecutor. Her areas of expertise include wiretap law, disclosure, and search and seizure issues.

Welcome to both of you; it is a pleasure to have you here. What you have to say will be of enormous value to us. Mr. Beardall, I understand that you have an opening statement.

Don Beardall, General Counsel, Public Prosecution Service of Canada: I do have a few brief remarks, Mr. Chair.

First, we are pleased to be here to address the committee on behalf of the Public Prosecution Service of Canada.

I would like to begin by just familiarizing you with our organization's mandate. PPSC prosecutes offences under federal legislation other than the Criminal Code in all provinces and territories of Canada. In addition, it is responsible for prosecuting all Criminal Code offences in the three northern territories, including such crimes as sexual assault and murders.

In the provinces, PPSC has jurisdiction to prosecute a limited number of particular Criminal Code offences, including those related to terrorism, criminal organizations, money laundering, proceeds of crime and certain frauds.

With that, I would like to discuss the subject before you today, Bill C-2.

Many knowledgeable observers within the legal and law enforcement communities see complexity and delay as among the greatest challenges facing the Canadian criminal justice system today, particularly but not exclusively as those factors impact on major organized crime and terrorism prosecutions.

A number of factors contribute to the increasing impact of complexity and delay on the system. I could spend hours talking about that, but I would like to mention just a few.

One factor is the changing nature of crime itself. Crime is increasingly becoming more sophisticated, complex, technology-oriented and transnational in nature. It is, therefore, more difficult and complex to investigate and prosecute.

In addition, police are increasingly concentrating on serious types of organized criminal behaviour, organized crime and terrorism, taking it as their mandate to disrupt and dismantle criminal organizations. As they focus more on these major cases, naturally, the scope and complexity of their investigations increase accordingly and, consequently, so do the scope and complexity of the prosecutions that come before the court. Rather than focusing on the commission of discrete offences committed by particular individuals, these police investigations focus on patterns of ongoing criminal activities that may span months or years; rather than focusing on individuals, they focus on groups acting in concert.

The third category of factors that I point to is the changed legal environment. Compared to two decades ago, criminal litigation is much more complex at all levels. In part, this is due to developing jurisprudence relating to the Charter, to criminal law and procedure. In particular, the Crown's disclosure obligations since the Supreme Court of Canada decision in R v. Stinchcombe in 1991 have made the management of that aspect of a prosecution much more important than it was previously.

The demands imposed in the context of investigations, which produce huge volumes of disclosable material, can be immense. Modern criminal trials tend to focus more on the conduct of investigation and on the fulfillment of the Crown's disclosure obligations than they do on the guilt or innocence of accused. Pretrial motions frequently consume far more time than the actual trial of the case.

As I indicated previously, PPSC conducts prosecutions of federal legislation other than the Criminal Code in all provinces and territories of Canada, including the prosecution of drug offences. Drug trafficking is one of the primary criminal activities of organized crime groups, and our responsibility for those prosecutions means that we are a major player in the fight against organized crime. In addition, we have jurisdiction to prosecute terrorism offences under the Criminal Code, such as the recent prosecution in the Toronto area known as the Toronto 18 by the media.

Along with our colleagues in the provincial prosecution services, we are keenly concerned about the impact of undue delay, needless prolixity and unproductive duplication of effort. If such cases are not seen to be managed effectively, fairly and in the public interest, it undermines public confidence in the administration of justice.

In part, as a result of the prosecution community's concern over such issues, the Federal-Provincial-Territorial Heads of Prosecutions Committee produced a series of 31 recommendations on the management of mega-cases a number of years ago. Several of those recommendations were for legislative reform and can be seen reflected in Bill C-2. Indeed, most of the provisions in the bill can be found in some form in those heads of prosecutions recommendations from some years ago.

It is important to emphasize in our appearance here today that prosecution services are operational entities. It is not primarily our function, or indeed our place, to provide advice on policy matters per se. My place here, and that of my colleague Ms. Irving, is to provide you with the benefit, such as we can, of our direct experience in the criminal justice system. That puts us in a position to provide you, we hope, with some information on the challenges associated with prosecuting high-complexity criminal cases and the likely practical impact of proposed amendments.

Within that framework, PPSC does believe that these proposals could produce desirable efficiencies, while not creating any practical detriment to the fair trial rights of accused persons. Much will be depend, of course, on how these provisions are adopted and applied by the various players in the justice system throughout the country.

That said, it should not be supposed that these provisions or any provisions that could be put forward are a panacea that will solve all of the challenges associated with major prosecutions. Such cases will continue to be complex, difficult, time-consuming and expensive. That is and will continue to be their nature.

With those comments, my colleague Ms. Irving and I will be happy to answer any questions that the senators may have.

The Chair: Thank you, Mr. Beardall, for those comments. I will turn to Senator Fraser for our first question.

Senator Fraser: I have two questions. You are in favour of this bill. I will ask you a question on a practical level. I am not asking you for policy advice here, but on a practical level, dealing as you do with operational realities, is there anything you would have liked to see in this bill that is not there? Is there anything else that would have made your lives easier going forward?

Mr. Beardall: Yes, one can always imagine additional provisions that would help.

Senator Fraser: That is, apart from more money and more staff, which do not go into legislation.

Mr. Beardall: Yes, certainly, and indeed ongoing work is taking place in a variety of venues addressing such issues as reform in the area of disclosure requirements.

I believe, as you have heard from a number of previous witnesses, that the provisions that have been put forward in Bill C-2 are provisions that, for the most part, are getting wide acceptance within the criminal justice community. They are relatively non-controversial and widely viewed as being productive. However, other provisions that I, as a prosecutor, might like to see might not be so non-controversial.

Senator Fraser: To oversimplify wildly here, do you think this bill has included all the low-hanging fruit?

Mr. Beardall: I am not sure I would necessarily say all of the low-hanging fruit has been included, but, yes, that is an apt analogy.

Senator Fraser: My second question has to do with the question of definitions that keeps coming up, and not only because I raise it. There is no definition in this bill of mega-trials and not even any set of guidelines or parameters to indicate the sort of circumstance in which this bill's provisions would or should normally be provided. What do you think about including, or not including, a definition or guidelines or parameters within the bill?

Mr. Beardall: I am not sure how much I can add to the comments made by the minister and by Mr. LeSage, with which I agree. As a matter of historical interest, I can tell you that that issue was discussed, to my recollection, when the heads of prosecutions were developing their recommendations and in the various consultations and conferences, and then in the discussions around the heads of prosecutions table itself. Every time it was discussed, the consensus that was arrived at was that it would be difficult if not impossible to come up with a definition of a category of cases to which these provisions would apply. Any definition that might be produced would inevitably leave out certain cases that would come up eventually that would not fit within the arbitrary parameters created by the definition but could have benefited from those provisions. The conclusion reached in that context was, as Mr. LeSage pointed out, that the issue is better left to be determined by whether or not these provisions would be helpful in a given case rather than whether a given case meets certain definitional parameters, thereby leaving it to the experience and good judgment of judges to decide when the provisions should be activated.


Senator Boisvenu: Thank you, Mr. Beardall, for being here and for your extremely interesting brief in support of Bill C-2. In Quebec, mega-trials are currently subject to abuse of procedure and often even form the basis of the defense strategy, which uses for their duration and complexity to derail the trial.

I am pleased to read in your brief, on page 4 of the French that:

. . . the execution of the Crown's obligation to communicate instead of on the guilt or innocence of the accused.

What we see today is that what is most important during a trial is respect for procedure and not finding the truth. That is the greatest source of frustration for victims, to see the process derail because of a minor omission that was more important than finding a criminal responsible for a dozen or even 100 crimes.

In your opinion, will Bill C-2 create a balance between legal procedure and the search for truth?


Mr. Beardall: In fairness, senator, I do not think that that is the intention or will be the effect of this legislation. Charter applications will still be made. Disclosure complaints will still happen. Procedural and evidentiary arguments will continue. All of these will be required to ensure the fair trial rights of the accused.

I do not know that it will shift the focus of the criminal justice system overall. However, these provisions can and are intended to simply make the process function more efficiently.


Senator Boisvenu: If I go back to what happened in Montreal, where 31 allegedly guilty individuals were freed before the end of the trial, out of respect for procedure, where approximately 100 victims will never learn the truth about the crimes that were committed, nor society, had Bill C-2 been in force at that time, would there have been a better chance of ensuring that these allegedly guilty parties would have got to trial?


Mr. Beardall: I certainly understand the frustration that is felt by victims, the public and the members of this committee with respect to the case to which you are referring. I find it impossible to comment specifically on the case. It was not a PPSC prosecution. I am not sufficiently familiar with the details to be able to say whether or not the provisions of Bill C-2, had they been available, would have made any difference.

Senator Baker: The violation of section 11(b) of the Charter was mainly an institutional matter, as I understand the adjudication, in that only two courtrooms in Quebec could be used for these multiple trials to be continued for about 10 years. Is that your understanding, Ms. Irving?

Nancy Irving, General Counsel, Public Prosecution Service of Canada: I have read the decision well. I should paraphrase that. I have read an English translation of the decision. Yes, that is my general understanding of it.

Senator Baker: That was just to clear up the previous question asked by the previous questioner.

You heard the judge address us a few moments ago. You heard him make a very clear statement, which is true, that sometimes one search warrant applies to all of these other cases that can be applied. I asked him the following question: Is it not true that a Charter violation can only be applied to the person whose rights have been violated and not to the actual substance or what was done in the execution of the warrant?

As I understand this bill, if a search warrant that formed the basis of the sworn information to obtain a wiretap, which is the big warrant that the judge was talking about, is struck down, that decision will now apply to everyone else under that mega-trial, even though they had no standing to bring such a Charter argument. Could you verify this for me please?

Ms. Irving: That is a very good question. The answer might take us a little into the technical area of the law. If a wiretap order is underneath, and let us say that the police have obtained authorization to wiretap 50 people, and what the police rely on in order to obtain the judge's permission to engage in wiretapping is the result of an unlawful, unconstitutional search, then it can certainly affect the constitutional rights of those individuals who are intercepted subsequently pursuant to that authorization.

It is something that is germane to this whole area, and this is one of the reasons that our section 8 jurisprudence has grown over the years to be very complex and intertwined. It is not uncommon for the police to rely on a lot of information coming from a number of searches and information from reliable informers when they make an application for a wiretap authorization.

Therefore, a slip-up in an area can have an impact later on in cases involving other individuals whose personal Charter rights were not affected by that initial slip-up, if I can put it in those terms.

Senator Baker: Therefore, if someone's house was raided, the decision on that search warrant of what was found in the information so obtained that was used perhaps down the line to prosecute all these other cases, if that search warrant is thrown out, then that will apply to everyone else down the line.

Ms. Irving: It is very much dependent on the circumstances of the case. However, it could have that impact.

Mr. Beardall: It is important to clarify that the issue of standing does not change as a result of these provisions. In a wiretap context, anyone who was intercepted has, today, the right to challenge the validity of the wiretap order. Only those people with that standing would participate in the joint hearings provided for by Bill C-2. It does not affect who has the right to complain.

Senator Baker: Therefore, it would not to apply to others whose personal rights were not violated. It is just a point of clarification.

Mr. Beardall: Who has standing and how the striking down of a search warrant might affect various individuals could be a complex area of law. However, the provisions in Bill C-2 do not provide for a substantive change to any of those questions. They merely provide for a more effective procedure to resolve those questions.

Senator Baker: It is not clear cut; it will not apply down the line.

Mr. Beardall: These provisions would not cause the effect of the Charter decisions to be greater.

Senator Baker: That is, to apply to other persons.

Mr. Beardall: That is right.

Senator Baker: Ms. Irving, you are an expert on wiretaps, sealed warrants, unsealing of warrants, and so on. When the charges are laid, that is the beginning of the police work. They have to sit down for months, do up their final continuation report and compare their officers' notes. Then applications are made to unseal warrants. You have to then respond to that. Then, you have to blacken out and redact things to protect sources and to not disclose methods used by the police.

Do you think that all of that will now be done prior to any trial beginning so that Charter arguments can be presented? Do you think that that will become a reality after this bill?

Ms. Irving: You raise a very good point. Changes in the law do not necessarily result in changes in reality. Some of the issues surrounding difficulties in the area of litigating cases involving wiretaps, sealed warrants and huge amounts of disclosure result from inefficiencies in the manner in which material is gathered during the investigation, not after. The police do not begin their work on disclosure and unsealing at the point where charges are laid. In these mega-cases, these large, complex cases, they must start from day one to manage their disclosure responsibilities. That is done by assigning a disclosure officer who is completely dedicated to the task of gathering the police notes as the investigation goes along. That is ideal. It does not always happen. It is in the cases where that has been left to the eleventh hour, which is often too late, that we run into difficulty.

Many other things are happening in the criminal justice system in addition to amendments to the Criminal Code to give judges more discretion to apply these new procedures, which we support. That involves the training of police officers and informing them of their disclosure responsibilities. In these cases, it also involves the dedication of resources by large police forces to the task of disclosure, unsealing warrants, vetting, and so on.

Senator Baker: You are the prosecutor. You have to unseal; you have to redact.

The Chair: We are increasingly running over schedule. It is important that we get to the substance of it, but I would ask senators to be concise in their questions. We have four senators who still have questions for these witnesses.

Senator Meredith: Thank you, Mr. Beardall and Ms. Irving. In your presentations, you mentioned that pretrial motions frequently consume far more time than the trial of the case. In your opinion, why is this, and will this legislation eliminate some of these pretrial scenarios that are created and that cause many of the resource issues? The judge talked about severe cost savings will be a result of this legislation. In your opinion, will this eliminate some of that process?

Mr. Beardall: I do not like to use the word "eliminate," but you have qualified that by saying "some." Yes, it is hoped that it will reduce some of these delays. This phenomenon occurs because of the changed nature of criminal litigation over the past couple of decades, which has far more to do with Charter issues, disclosure issues, evidentiary issues, and so forth.

Senator Meredith: Ms. Irving, we are all keenly interested in seeing drug dealers across this country face justice. I have been closely affected. I have seen the devastation, countless young men and women being killed on our streets, especially in Toronto in various neighbourhoods. I know some of these individuals and family members; I have personally presided over their funerals.

It is incumbent upon us to look at this legislation as a means to help eradicate the drug dealers across this nation as well as those who are selling drugs and pushing drugs especially to our youth and then arming them with weapons. In the raids that have taken place, particularly in Toronto, we have seen at times 20, 30 or 40 individuals rounded up. That is why I thanked Minister Nicholson previously for bringing forward this legislation.

In your opinion, does this provide us with the necessary tools to really make a dent in what was and still continues to be a major issue? Serious shootings have taken place in the past several months in British Columbia and Toronto, and those individuals go through this revolving door because they are able through their defence counsel to pick off the inadequate submissions of information from police officers and so forth. They are able to get back out on our streets, in other words.

In your opinion, do you believe this legislation will put a huge dent in the groups that are rounded up from time to time?

Ms. Irving: Many factors might impinge on that. However, this bill is a very good step and will have a positive influence on the outcome of trials where the very individuals you are describing are involved in the drug crimes.

These procedural mechanisms should result in the early resolution of some of the disclosure motions and other pretrial motions that Mr. Beardall spoke about taking much longer to work their way through the trial process rather than hearing the evidence relevant to guilt or innocence.

It would be beneficial to give the judges the power to require the parties before the court — the defence and the Crown — to get together to try to resolve as many of these issues as possible so that these cases can proceed without a finding that results in an issue where a member of the public might say that someone got off on a technicality, resulting in 89 people walking.

These measures should result in those 89 people actually getting to trial, with their guilt or innocence being determined in accordance with the rule of law.

Mr. Beardall: I share the comments made by Ms. Irving.

Senator Runciman: I think what you just referenced with respect to the impact could also clearly mean the withdrawal of charges or the guilty plea, which will do away with the need for a trial. The potential there is significant, whether it is realized or not, as you suggested at the outset.

When Justice LeSage was before us, when we referenced the potential for appeals, he said that this would not be possible until the trial itself is completed. Was it the Khawaja case where the case-management process was appealed? That is different; I do not know if you are familiar with that particular case or not.

Mr. Beardall: Senator, you might be referencing one of the very few interlocutory issues that can be appealed in criminal law, which is the section 38 Canada Evidence Act issue relating to national security.

Senator Runciman: That is the distinction there, is it?

Mr. Beardall: I believe so.

Senator Runciman: I am fascinated with your response to Senator Fraser about the low-hanging fruit and you sharing that view. I could sense your frustration with what you have to cope with. If you could reach up to a higher branch and just deal with one issue that is achievable and realistic, what would it be?

Mr. Beardall: It is not even November, and I am being asked for a Christmas list. I would hate to commit to something off the top of my head.

Senator Runciman: If you change your mind, please send me a note.

I am curious about the jurors sitting in if we go from 12 to 14 jurors. These jurors will be sitting in and hearing the evidence and participating in the jury discussions. Then through some sort of a lottery process, they will be excluded.

Is there any potential for there being a challenge with respect to that in terms of influence on jury deliberations? Do you see any potential for that sort of issue arising?

Mr. Beardall: Do you mean a legal challenge to the process?

Senator Runciman: Yes.

Mr. Beardall: No, I do not see that. In particular cases where it could be demonstrated that there had been some improper influence on a jury, that would be an issue that could be resolved by a particular judge. However, that would be true with or without the alternate juror system.

Senator Runciman: We are talking about concealing the identities of jurors. Has there ever been a situation in Canada where jurors were not seen by the accused or individuals in the gallery in court so that they could not be recognized on the street, for example? Are you aware of us ever having gone to an extreme measure such as that in Canada?

Mr. Beardall: Not that I am aware of. I am aware that in Quebec, as a result of concerns about jury intimidation by people in the gallery, some courtrooms were constructed in such a way that the jury would not be visible to the public gallery. As far as I am aware, that did not exclude visibility by the accused.

Senator Runciman: This question is not related to the legislation but was raised in the discussion in the Senate this afternoon. How serious a problem, if it is a problem, is overcharging to incent plea bargaining? Also, how big a problem is the proliferation of adjournments in some courts?

Mr. Beardall: On the first issue, I am not in a position to comment on the decisions of other prosecutors about what should be charged. However, it is my view, and I think the view of PPSC generally, that overcharging should be avoided and is one of the tools that we try to utilize to ensure that cases do not spiral out of control. I would not consider overcharging for the sake of inspiring plea bargaining to be appropriate.

With respect to proliferation of adjournments, that might be an issue, but I am not aware that it is a problem per se. It is true that the time it takes to resolve cases is increasing; the number of court appearances that are required is increasing. However, I see that as flowing from other issues relating to complexity, the number of issues that have to be resolved, legal aid issues and so forth, rather than being an inappropriate exercise of the judge's discretion to grant it.

Senator Runciman: I have heard a different perspective from one or two judges, but I appreciate that. Thank you.

Senator Fraser: My question is supplementary to an earlier point and also to references that have come up in general in these discussions about people getting off on a technicality. In your experience, how many times do people actually get off on what anyone in their right mind would consider a technicality, for example, failure to file the prescribed number of photocopies of something for the court files? How many people are getting off because a judge has actually found that Charter rights were infringed by the failure to do something or by the doing of something?

Ms. Irving: Since I used that phrase —

Senator Fraser: You were not the only one. I was not trying to pin-point you.

Ms. Irving: I was trying to explain how rulings made by judges are sometimes interpreted by the public as a result of media reports as bad people having escaped the measures of the law because of some technicality. In some of those cases, what is considered to be a technicality is not a technicality at all; it is in fact an infringement of Charter rights.

Senator Fraser: How often does that occur, very roughly?

Ms. Irving: I have no idea. I do not know if even Statistics Canada keeps records on that. I would not hazard a guess. I would like to think that the majority of cases do find their way to a resolution on the actual merits of the case.

Mr. Beardall: I do not have hard numbers, but as your question implies, it is very much a question of what someone considers to be a technicality. What Ms. Irving and I would consider to be a technicality would probably be a much smaller class of things than what many members of the public would consider to be a technicality.

That said, I would think that fewer cases are being dismissed because of what I would consider to be true technicalities than was the case three decades ago. The courts have increasingly tried to move away from dismissing cases on technical issues, such as the wording of a count being defective.

Senator Joyal: Mr. Beardall, on page 5 of your presentation, you said that in your public papers there are 31 recommendations some of which, especially the ones with legal impact, are in Bill C-2.

The LeSage report made many recommendations that relate to the Crown, and prosecution especially. Recommendation 7, for instance, is very simple:

Standard administrative goals for timely initial disclosure should be set by directive under the Police Services Act and in the Crown Policy Manual.

Recommendations 2 and 3 deal with Crown counsel and management of cases.

Could you identify what changes were made to the Crown manual following the LeSage report that would satisfy us that those recommendations were taken seriously and changes were made in the way that the Crown manages mega-trials?

Mr. Beardall: As you heard, the LeSage-Code report was directed largely to the Ontario government, and the reference to the Crown Policy Manual is to the Ontario Crown Policy Manual.

Within the federal prosecution book, well before LeSage-Code, we instituted a mega-case policy in which all cases that could be fairly described as mega-cases must be the subject of a prosecution plan prepared by the prosecutors. This would be generally in consultation with the police and submitted to a major case advisory committee composed of senior prosecutors from across the country who review the prosecution plan and exercise a challenge function to try to ensure that the case is being well managed. We have been doing that for some years now.

I do not know if Ms. Irving can comment on disclosure issues.

Ms. Irving: We have not imposed a strict timeline on the police. We encourage them to provide disclosure to us in a timely fashion, and, of course, they have to provide initial disclosure to the defence. We do, as the Crown and police together, before they are called upon to make an election or plea, but we have not established a 60-day or 30-day rule.

In the large, complex cases, we generally do get initial disclosure. We sometimes do not get full disclosure from them until many months after the charges have been laid, simply because it takes an inordinate amount of time to process all the documentation and provide it to us. It must also be vetted. Someone spoke about vetting and blocking out information. That increases the time needed, but we do collaborate closely with the police on ensuring that we are fulfilling our disclosure obligation, which we take very seriously.

Senator Joyal: Do you do post-mortems on mega-cases where the public believe there have been some delays that made the trial too lengthy or inefficient to satisfy the objective of justice?

Mr. Beardall: Yes. In fact, that suggestion is actually contained in our mega-case policy. In the case that Judge LeSage referred to in Alberta where that was done, it was found to be a very useful exercise. That was, in fact, a federal case.

Senator Joyal: Are there any other changes that you think should be implemented that would satisfy the objective of this bill, which is essentially to make the justice system more effective in regard to mega-trials, and that we should consider as being part of that initiative?

Mr. Beardall: Moving forward, PPSC will continue to champion various procedural amendments to try to make the system work more smoothly. As I indicated earlier in response to Senator Fraser, there is ongoing work on various procedural reforms in various fora, including reform to disclosure law. These things are complex and take time. I have every confidence that the criminal law policy section will continue to be engaged on these systems and will continue to produce improvements to the system.

For the purpose of this bill, though, as I indicated earlier to Senator Fraser — and actually she used the term "low-hanging fruit" — I am very happy to see this package of low-hanging fruit delivered promptly to the grocery store.

The Chair: Thank you, Mr. Beardall and Ms. Irving. The evidence you gave is useful and much appreciated.

Colleagues, continuing our consideration of Bill C-2 with our next panel, I am pleased to introduce, from the Canadian Bar Association, CBA, Ms. Kerri Froc, Staff Lawyer, Equality and Law Reform. With her is Mr. Suhail Akhtar, Executive Member, National Criminal Justice Section. We also have with us Mr. Thomas Jacques, Vice-President, Association des procureurs aux poursuites criminelles et pénales. We will begin with a statement from Ms. Froc.

Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association: Thank you, and good evening. I am a lawyer with the Legislation and Law Reform Directorate of the Canadian Bar Association. Thank you very much for the invitation to present the views of CBA on Bill C-2 today.

CBA is a national association of over 37,000 lawyers, law students, notaries and academics from across the country. An important aspect of CBA's mandate is seeking improvements in the law and the administration of justice. It is from that perspective that we appear before you today.

With me is Suhail Akhtar, Executive Member, National Criminal Justice Section. The section represents a balance of Crown and defence lawyers from every part of the country, and Mr. Akhtar is a Crown lawyer from Toronto. I will turn it over to him to present the highlights of our submission to you.

Suhail Akhtar, Executive Member, National Criminal Justice Section, Canadian Bar Association: Mr. Chair and committee members, I would like to take the opportunity to thank you for inviting us to make submissions.

The Canadian Bar Association welcomes the objectives of this bill and welcomes the attempt to streamline the trial process and make it more efficient. We also acknowledge the importance of having a form of case management structure with respect to trials with multiple accused and multiple counts on the indictments. In jurisdictions such as Toronto, the larger cases are, to some extent, already case-managed by a judge who supervises the pretrial aspects of a case without making rulings but ensuring the trial remains on track.

I will focus on two areas of concern that CBA has identified with respect to Bill C-2. However, I reiterate that we embrace warmly the objectives of this bill and the intentions behind it.

The first concern is a topic that has come up previously. CBA says that there is a difficulty in this bill in that it does not identify what a mega-trial is. The result is that the provisions of the bill could be used for any trial, no matter how simple, and may result in an overuse of the provisions and, in effect, a self-defeating drain on resources as opposed to appropriate use.

The view of the Canadian Bar Association is that there should be some criteria for defining the use of the provisions. That criteria does not need to be detailed, rigid or set in stone, but it could be something that assists the judge who is deciding whether the provisions are appropriate in coming to the correct conclusion. We offer factors such as the length of trial, number of accused, complexity of the case and any other factor that the judge might find relevant in deciding whether these provisions should be used. We say that such a flexible test will allow courts to recognize conditions and prioritize cases on a localized basis.

The second area of concern we wish to identify, and the one that we would press certainly in this statement, is the splitting up of the case management and trial judge duties. Broadly speaking, as I have said, CBA is in agreement with the principle of appointing a case management judge to oversee the case to encourage the parties to come to admissions, to make sure the case remains on track. That would assist in resolving issues such as disclosure, and CBA agrees with much of what is in the bill when the effect is a supervisory role taken on by the judge to guide and encourage the parties to ensure the pretrial matters are dealt with expeditiously. The concern of the Canadian Bar Association arises over the proposals to make the rulings of a case management judge binding on the trial judge.

Some motions may be suited to this role, and when we say "some motions," we offer examples such as third-party record motions. Those are motions brought by the defence to obtain documents that are not in the possession of the Crown or the police that the defence cannot obtain without a court order. That could be dealt with, certainly, before the trial date and by a different judge. In Toronto, that is done as a matter of routine when the Crown and defence both consent, and they have every reason to. Other motions such as the ordering of the disclosure could also be suited to having a case management judge rule on a particular issue.

In addition, we suggest something along the lines of a global wiretap motion, which may assist in resolving a large search warrant issue if the circumstances are correct.

However, we suggest that motions that rely upon the evidence of a trial are not suited to having two judges decide the issue. We say that because the trial judge is in the best position to deal with the issue, having seen the trial unfold. We also note that many of the trial judge's rulings in the course of a trial are subject to revisitation when circumstances change. As all Crown and defence lawyers know, trials have a habit of taking twists and turns not foreseen when the original motion was made.

Having been a lead counsel, I can offer my own experience. I was lead counsel of what was termed the most expensive street gang prosecution in Canadian history. It was a project called Project Pathfinder, and it dealt with the Galloway Boys, a street gang in Scarborough. We had a number of issues that had to be revisited during the course of the trial, and I can assure the committee that had there been two separate judgments, lengthy parts of the revisitation would have been the litigation of what the first judge actually meant when he or she laid down the ruling. That is what CBA says causes some concern with respect to removing the absolute authority of the trial judge to make evidentiary rulings.

We also offer in our written submissions a quotation from the Supreme Court of Canada case R. v. Litchfield, which makes the same observation. The trial judge is in the best position to make those rulings, he or she having overseen how the trial unfolds.

We also suggest that the provisions in the bill that split those duties could also lead to potential problems where the trial judge disagrees with the rulings of the case management judge. That invariably will lead to revisitation of rulings and lead to a substantial amount of litigation, not on the merits of the ruling but on the interpretation of what the case management judge said. The view of CBA is that this bill may be self-defeating in that it lengthens the time to conduct a trial and causes duplicity when motions are argued twice. It would make a trial not only twice as long but also substantially longer because of the additional component of the judge having to guess what the original judge was trying to say.

We suggest that the motions dependent upon the evidence that unfolds at trial are best suited for the trial judge. Without saying that all of the bill on this subject is incorrect, we suggest that there should be a criteria of motions that are reserved solely for the case management judge. We have offered up third-party records, disclosure and things that do not depend on the evidence at trial. The view of the Canadian Bar Association is that it will lead to more problems than it will solve.

I will highlight what we have written in our submissions about changing the number of jurors. We suggest that although it sounds good in principle, there are many practical difficulties with that. The first is that this extension of jury selection will take place on trials that take many months. The real question is how, at the end of the trial, do you tell two jurors who have given up their work and time and have spent nine months on it, "By the way, thank you very much. Go home. You are not needed." That seems to make no sense to the Canadian Bar Association. We also suggest it will lead to other practical difficulties. Part of the criminal trial is the jury selection process at the beginning, when the jury panel is brought in. The vast majority do their best to try to get out of sitting on a trial when it is two weeks long. When a jury is told, "By the way, even when you are selected, two of you, after having given all the time and hearing all the evidence, may not be part of that decision," we suggest it will give more of an incentive to prospective jurors not to want to sit on a criminal trial. They will do their best to make an excuse to get off the trial.

Our suggested alternative is that at the moment a trial falls below 10, it ends, as Justice LeSage said. We suggest that a Criminal Code provision could be inserted that a trial could continue as a judge-alone trial on consent of both parties. That would solve many of the problems.

The other alternative is that if 14 jurors are selected — we suggest that that is not the way to go — but if they are selected, then all 14 should remain on the trial, but you continue to keep the minimum as 10 jurors. That may have the effect of solving many of the problems.

Mr. Chair and members of the committee, that is the opening statement from the Canadian Bar Association.

The Chair: Thank you, Mr. Akhtar. Mr. Jacques, do you have a statement?


Thomas Jacques, Vice-President, Association des procureurs aux poursuites criminelles et pénales: Good evening, honourable senators. First, we want to thank the members of the Standing Senate Committee for the invitation to comment on Bill C-2. We are pleased to appear before you today.

The Association des procureurs aux poursuites criminelles et pénales is a professional association representing the professional, economic and moral interests of some 470 crown prosecutors in Quebec. Typically, our association declines invitations to appear before your committee, leaving other organizations or associations the task of advising you of the impacts of legislative amendments proposed on the already quite significant workload of Canadian Crown prosecutors.

However, since the Crown in Quebec is currently experiencing an unprecedented crisis, we felt it was our responsibility to advise you of the anticipated impact of Bill C-2 on the Quebec criminal justice system.

Furthermore, under constitutional rules on the sharing of powers, criminal law falls under the exclusive jurisdiction of the federal Parliament, and therefore we feel it is essential for committee members to have the opportunity to hear about the specific situation of Quebec with regard to criminal justice. This is all the more relevant given that organized crime is everywhere and knows no provincial borders. Consequently, the failings of the Quebec criminal justice system represent a national problem.

Bill C-2 seeks to facilitate, simplify and accelerate the holding of mega-trials. Quebec, since the beginning of the 2000s, has gone through these kinds of mega-trials, which use up a lot of resources in our criminal justice system. Some Quebec prosecutors have developed very specific expertise in these kinds of cases.

First, we want to make it clear that our association agrees with the amendments set out in Bill C-2. We recognize that the desire of the legislator to ensure "fair and efficient criminal trials" will be permitted through the proposed amendments, namely by appointing a judge as a case management judge who will have broad powers.

Generally speaking, the proposed measures will facilitate the management and proceedings of these exceptional trials for which some provisions of the Criminal Code will have to be adapted.

Nevertheless, although the objective of the legislator is commendable and the proposed changes necessary, we fear that the desired effect will not be achieved due to the clearly insufficient resources allocated to the criminal justice system. Furthermore, we fear the repercussions that these amendments will have in Quebec on a criminal justice system that has been increasingly weakened over the past decade, due to the lack of human and financial resources.

In fact, more efficient processes could more rapidly expose the significant shortfalls of our legal system. In short, what is the point of facilitating the management of such complex cases if the legal system does not have either enough judges, experienced and competent Crown prosecutors, or the infrastructure needed to administer such types of cases?

For many years now, the Quebec government has allocated significant financial resources to the police to fight against organized crime. We salute this political decision and we recognize that it is important for our society to do so. However, the work of the police forces does not indicate the end of these efforts to eradicate organized crime.

In a law-abiding society, where we hope that criminals involved in very sophisticated schemes will answer for their actions before the courts, we must make sure that the legal system has the ability to see these operations right through to the end. In order to ensure that Quebec has this ability, we must conduct an in-depth review of the funding allocated to the criminal justice system, which is unable, in particular, to recruit experienced prosecutors and retain specialized prosecutors at present.

The Quebec Bar Association has, for the past several years, spoken out against the underfunding of the Quebec justice system. Although we are in favour of the amendments set out in Bill C-2, the current state of the criminal justice system in Quebec leads us to fear that any acceleration of the legal process will result in failure that will be just as terrible as what we recently saw with regard to operation SharQC. Since it is currently extremely difficult to see how the Quebec Crown will assume its role of prosecutor in mega-trials that are already under way, any acceleration of the legal process or multiplication of courts will inevitably result in the inability of the Quebec Crown to assume its central role.

For example, the Anti-Gang Office Team Responsible for SharQC was allocated 16 prosecutor positions. However, already last winter, 6 of those 16 positions had not been filled due to a lack of interested candidates.

Recently, this team saw the departure of three additional prosecutors. Last February, in his letter of resignation to the director of criminal prosecutions, Mr. Claude Chartrand, then head prosecutor at the Anti-Gang Office, said the following about the ability of Quebec prosecutors to meet their professional obligations:

Already, for the past few years, due to a lack of resources, I must work with the police to delay the next steps, because our limited staff does not allow us to assess the evidence to lay charges within the time allowed.

. . . Given the state of our resources, I must recommend allowing the federal prosecution services the task of fighting organized crime and limiting our mandate to efforts that we have the ability to undertake. After 32 years of loyal service within the provincial Crown, I never would have believed that one day I would be writing these lines.

You know as do I that the Anti-Gang Office is not in jeopardy, rather it is the entire institution of the directeur des poursuites criminelles et pénales.

In closing, it is our firm belief that you must be advised that the critical underfunding of the Quebec criminal justice system will eradicate any benefits from Bill C-2, although so wisely proposed by the federal legislator.


The Chair: Thank you. We will move to questions beginning with Senator Fraser.

Senator Fraser: Your presentations help us a great deal. I am sure you had to do it on very short notice.


First, I want to state that I too am from Quebec, and we are all aware of the immense pressures that exist.

Mr. Jacques, I am not sure I understood the entire thread of your argument. I would have thought that anything that would simplify the administrative burden on prosecutors would have helped, would have enabled the few remaining prosecutors to do more, and the work undertaken would have been done more effectively. Do you see what I mean?

You seem to think not. I am no doubt too stupid to understand, but could you tell me why this would not help?

Mr. Jacques: If I might, I will explain our position. We are convinced that, in a proper system, the measures would facilitate the processing of extremely complex cases.

Unfortunately, given the state of the Quebec Crown, this acceleration of procedures will illustrate or simply demonstrate much faster the inability to proceed.

Senator Fraser: Because you will not have the time to do all the preparatory work?

Mr. Jacques: We do not have the people. There are no Crown prosecutors available to work on these cases. So imagine if the cases move forward more quickly, which would be desirable but, already, as things stand, we do not have enough qualified Crown prosecutors to handle these files.

Imagine, if these cases have to proceed more rapidly, that we are quite simply unable to recruit experienced candidates. The only lawyers we are able to recruit come from law schools or the Bar Association School. They may have a lot of potential, but you will agree that, with regard to this kind of case, these people lack experience or a certain amount of baggage.

We are seeing the opposite phenomenon, people coming to the Quebec Crown like a sort of farm school. Once they are trained, they leave for the federal public service, to work as defenders or for the private sector. We are not able to keep our resources.

Senator Fraser: Thank you, that answered my questions very nicely.


Senator Fraser: I am trying to wrap my mind around the question of the powers of the case management judge. As I understand you, you are proposing that there should be far fewer powers given to the case management judge. You make an eloquent case for that in terms of law and rights. However, do you have any instinctive sense, based on your experience, of the degree to which matters would be streamlined if the bill went through as now proposed and the extent to which that streamlining would be diminished if the changes you propose are suggested? Could you also quickly explain your position on severance? I would have thought that that would be something that could easily be handled early on.

Mr. Akhtar: Do I have an instinctive sense of how much will be streamlined if my proposal was suggested?

Senator Fraser: It could be either proposal.

Mr. Akhtar: My view and CBA's view is as follows: Anything you gain by giving the case management judge this power will be lost when the trial starts and everything begins to be revisited, and with the extra litigation that occurs. The idea has come up in discussions that you have 40 people sitting on a pretrial motion, 35 of whom do not have standing or whom it does not affect. Those 35 have lawyers. I have never heard any discussion of how one would accommodate the schedules of 40 different lawyers to do this, 35 of whom have nothing to do with the particular pretrial motion. Anything you gain from this, which looks superficially appealing, is lost up front because you will delay matters to accommodate this huge amount of lawyers, 35 of whom will not even have an interest in that particular motion.

However, any streamlining that is gained will be lost in what happens at the trial. As we all know, trials have a habit of taking twists and turns that cannot be foreseen at front end. That leaves the trial judge to have to interpret. I do not believe anything is gained by having the case management judge do something that was traditionally reserved for the trial judge. The Supreme Court of Canada in Litchfield did it in another way; the phrase they used was "procedure begins to govern substance." That is CBA's view.

Senator Fraser: What about severance?

Mr. Akhtar: That point was actually made in a severance case; Litchfield was a severance case, and the point is that severance never goes away. It is always available through the trial. If the judge says no severance up front, the defence can wait, and when the trial begins to unfold in a manner where they then fall within the Criminal Code, they can make the application again. Once again, you have that issue where the big litigation will be what that case management judge means. Any time gained is lost in the revisitation.

Senator Fraser: You are in favour of the goals but not in favour of what is being done here.

Mr. Akhtar: I am in favour of the case management structure and the fact that the case management judge takes a supervisory role, encourages parties in a supervisory manner. I am in favour of enshrining into the Criminal Code certain motions that would not be impacted by the unfolding of the trial. At the moment, they have to be done on consent. However, CBA is against the removal of evidentiary rulings from the trial judge.

Senator Lang: This is a simplistic situation that you presented to us here. If a motion is brought forward and the trial judge deems it necessary to be dealt with, can he not send it over to the case management judge and ask that the trial continue on on other items? Therefore, subsequently, you do not have the court coming to a halt; it continues on, and those motions can be dealt with at the same time. Is that not correct?

Mr. Akhtar: There is some provision where the case management judge can be involved again on a different motion. The difficulty that arises is that if a motion is being brought, one would think that that has an impact on the trial. Therefore, it will be a rare day when the trial does not stop, because the parties will all have to go over to that case management judge to make that the argument for the motion. Therefore, the trial will stop at some point; it can go on a subsidiary point and then the trial will stop. It can go to the case management point, but if a motion is brought that affects the evidence that is about to be called, I do not see how the trial would not stop. That is assuming that the case management judge is instantly available. That case management judge may be doing another trial, and he may have to stop that trial to do this particular motion.

Senator Lang: If this is the case and the way it operates, it is no wonder the public is losing confidence.

The Chair: We will turn to the witnesses for evidence. Thank you, senator.


Senator Boisvenu: Mr. Jacques, as a Quebecker, I am well aware of the political aspect of your report, I myself having represented, before becoming a senator, nearly 500 families whose loved ones had been murdered.

There is an urgent need for resources in Quebec, and Bill C-2 will not resolve this problem. We know that cases take twice as long to go to court than in Ontario because of a shortage of Crown prosecutors. I can only wish you good luck in your negotiations with the Quebec government, because the criminals are not the ones paying the price, it is the victims.

I have a general question for Mr. Akhtar. The witnesses who appeared before us to present their opinion on Bill C-2 were, for the most part, unanimous with regard to the objective of the bill, and I would say fairly unanimous with regard to the substance, be they judges, Crown prosecutors or people from the Bar Association. I find it surprising that you are one of the only stakeholders to say that we need a definition of mega-trial.

A judge will say that, if we have a definition, we will restrict the application of Bill C-2 to criminals. We will not be able to use it for others, for example, criminals who commit multiple crimes. You are saying that we are giving the judge too much power.

I am trying to understand. Is your reality the same as that of those who appeared before us and who support this bill? I am trying to understand your reality. I am not making a judgment, you are entitled to your opinion. You are a lawyer and you deal with criminal cases. Do you see the mega-trials the same way as those who spoke before you?


Mr. Akhtar: I prosecuted a mega-trial, which was deemed by the media to be the most expensive street gang prosecution in Canadian history. Certainly, I have a sense of what a mega-trial is. In this case, we totally support the objectives of the bill and the involvement of a case management judge. We have tried to identify the concern that when you give a power to a judge who is not doing the trial, these issues will arise. We see that as a big issue in this case. The point of the bill is to shorten the time a trial can take. We simply point out that it may have the reverse effect, although I could be wrong. When the section of the Canadian Bar Association wrote these submissions, it was a strongly held view on both sides of the criminal bar. Both Crown and defence came to the conclusion that it was not a good idea to take this power away and give to a judge not doing the trial.

Senator Baker: Every Charter argument has to be based on an evidentiary foundation. It is up to the person bringing the Charter application to provide the evidence to back up the Charter application. Is that not correct?

Mr. Akhtar: That is correct.

Senator Baker: Under normal circumstances today without this bill, you would have a case management judge, who might set a deadline for notices of Constitutional question. The judge might say that they are to be submitted 15 days prior to the trial date. That is normal case management. On the fifteenth day before the trial date, another meeting takes place where the days are set aside for the hearing of the applications. The Crown counsel might say to the defence counsel who made the application that he or she must provide the evidence; but the judge might suggest that the Crown lead the evidence, and when the Charter argument comes up, it will be heard at that point. Is that not correct?

Mr. Akhtar: Yes.

Senator Baker: This bill would be a huge change. Under the present system, the evidence is heard once. Basically you are saying that under the proposed system, it would be heard twice in order to adjudicate complicated Charter issues, which this legislation intends to address.

Mr. Akhtar: That could be the result of the change. Under the current system, it is called a blended trial. For instance, there might be a Charter issue under section 10(b), the right to counsel. A judge might want to hear all of the evidence because he will hear it again if he finds it admissible. He will combine it into one, and if a Charter ruling is to be made, he will make it at the end of the trial. Potentially that could happen; that could be one of the consequences if you split the two things.

Senator Baker: Do you think that Crown counsel and the police will have all of the sworn information to be obtained unsealed, all of the warrants released and all of the CDs on CD-ROM searchable ready for all of these pretrial arguments concerning the Canadian Charter of Rights and Freedoms? Do you think this bill will impose upon you, as a Crown attorney, and upon the police a new responsibility and that without the resources for you to carry it through, there could be a problem with section 11(b)? You could let many people off who should be convicted.

Mr. Akhtar: Without a doubt, there is a resource issue. Anyone in the criminal justice system will tell you that there is a resource issue, but does this bill change that? I am not sure it does. The resource issue will remain regardless of whether this bill were in force today because of the way in which the criminal justice system works in terms of disclosure obligations, which are the responsibility of the Crown and the police. I do not think the bill will have an impact on the existing resource issue.

Senator Frum: We heard from witnesses an explanation as to why there is no definition of "mega-trial" in the bill. The argument to give the discretion to the judge made sense. We know about the 31 Hells Angels and the Toronto 18 as examples. Is there a number below which this discretion becomes questionable and a potential source of appeal either because a smallish group was qualified as a mega-trial or a larger group was not?

Mr. Akhtar: I have heard some of the discussion about the criteria and why there should not be a definition. That is why CBA has not said there should be strict definitions that would define numbers or charges. The trial judge must have a form of discretion to look at each case on the basis of its facts. I will not say that there should be a minimum number or a number that falls below. Rather, a judge should be able to look at cases and make a determination based on the facts of the individual cases. For example, one case might only have two accused but 300 charges, and another might have five accused but points of law that will take months to sort out. Regardless of the number accused, those issues would still fall within a mega-trial, so to speak. These factors should be put into the statute rather than allowing wide-open discretion for any case to be deemed under these provisions.

Senator Frum: Once you enter into that area of subjectivity and individual discretion, does it not open up another avenue for appeal by defendants?

Mr. Akhtar: I do not see how this would cause an appeal. I do not see how the exercise of discretion could ever be said to be unfair to either side. It is simply a management issue when you decide a case is a mega-trial and pour all the resources into that area. We are trying to avert shunting one case that is not a true mega-trial down this avenue with all of the resources that could have been utilised on five or six other trials. This is why we are asking for some sort of criteria, but not rigid criteria.

Senator Meredith: I have one comment and one question with respect to the mega-trials you led. I was quite familiar with the case in Malvern, Toronto. That community is now much safer because of the efforts of law enforcement officials and community organizations to rid the streets of certain individuals to ensure that communities were given back their streets. Your work on that was much appreciated by the community.

My question is about the cost of mega-trials. We heard from Justice LeSage and Minister Nicholson this afternoon that there will be considerable cost savings. Your report indicates that mega-trials can be a drain on the justice system for all concerned. The costs involved in prosecution, individual defence, whether legal aid or other, and the court system can be great. There seems to be contradictory evidence on the costs. Two witnesses said that there will be a great cost savings, and your report indicates otherwise. Can you elaborate for us?

Mr. Akhtar: I do not think the report actually says that this bill will increase costs. The resource issue is a query that has been brought up in previous discussions. I did not mean to be obtuse in answering the question from Senator Baker when I was talking about the bill not having much impact. That paragraph says that there is not enough money in the systems. With the rise of the mega-trial, more resources are needed. That is what that paragraph is trying to say. It is not that the bill will impose or save costs. We have tried to analyze it from the length view as opposed to the financial view. That paragraph means that, if we want to take mega-trials seriously, more resources must be put into the system as a whole.

Senator Meredith: In terms of government and costing, you indicated some numbers. It will come back to the government to say, "This is what we believe you need to put into the system to make it efficient." We have legislation, but there is not the money that will actually propel this legislation forward.

Mr. Akhtar: I apologize. I misunderstood the question.

Senator Meredith: Has your association come up with numbers with respect to transfers to make this work?

Mr. Akhtar: They could pay me more, of course.

The answer is no. This is repeated by my Quebec colleague. There are not enough resources in the criminal justice system at the moment. You can make the legislative changes you want, but you have to back them up with more resources.


Senator Boisvenu: I have a supplementary question. Mr. Akhtar, you say that the justice system lacks resources. However, there is a situation in Quebec where the state paid $240,000 in legal aid fees to defend a member of the Hells Angels, and paid $140,000 to defend another such individual. Is the generosity of our system with regard to criminals not generating these costs on its own?


Mr. Akhtar: I cannot answer for what happens in Quebec and I cannot answer for —


Senator Boisvenu: Let me ask my question differently. In Ontario, does legal aid pay for lawyers in cases involving members of organized crime?


Mr. Akhtar: Yes.


Senator Boisvenu: Tell me about Ontario. When two or three times the standard amount of legal aid is paid defending such criminals, which costs a fortune — I think in Quebec, it was $3 million — does the system itself not generate costs that could be limited by granting those lawyers the minimum rate?


Mr. Akhtar: There seems to be a whole new arena in terms of what we pay defence counsel and Crown prosecutors. There is a huge 11(b) problem across the country, and in Ontario there is a huge 11(b) issue. I do not think it is any type of closet secret that we need more judges, Crown prosecutors and defence counsel. There must be more money put into legal aid to ensure that the best defence counsel come forward.

The irony is that if you pay the best defence counsel, they will be the ones that streamline cases because they will focus the case. One will have a shorter trial if one pays the best defence counsel to do the trial. If you pay someone who is new or not as good, they are the ones who tend to drag out the cases. There is every reason to argue to pay the defence counsel more. You will end up saving money in the long run.

Senator Fraser: I have an observation, rather than a question. I preface it by saying that I am no more enthusiastic about the Hells Angels than anyone else around this table. However, I believe that all those persons were liberated before being found guilty. I think it is incumbent upon members of this committee to be very careful about who we call criminals. For us to, in effect, pre-suppose what the verdict of the trial would have been is very risky territory indeed.


Pardon me, Senator Boisvenu, but you have touched a nerve.

Senator Boisvenu: I was referring to alleged criminals.

You made a comment, I want to do the same. When we tell the average honest citizen, that he or she is entitled to the minimum, while we pay the lawyers of alleged criminals — who supposedly laundered money, sold drugs — three times the rate, is the system not generating these costs?

Senator Fraser: I am not talking about legal aid, I was referring merely to your language.


The Chair: We are here to hear the witnesses. These discussions can take place afterwards if you have issues between yourselves.

Senator Angus: I will address my first comment to you, Mr. Akhtar. You have made a good point. Is it a point that is made to us every day on all these Criminal Code bills. There is not enough money in the system and it is a very serious problem. The evidence we have had on every piece of legislation is overwhelming. It exists. We know we are in a federal system. The federal jurisdiction has certain obligations, as do the provinces.

When you started your testimony, I thought that, for once, the bar will be positive and will tell us that this is a good piece of law and it will help things. You went on for at least 21 and a half seconds. Then, you said, "nevertheless." You know that there is no dough and it is not going to work.

I want to ensure that I understand, grosso modo, the Canadian Bar Association. The legislative initiative that this government is trying to take is okay. There is the issue of how much more money needs to be put into the system, either at the federal level or the provincial level. You do not say that this is a badly flawed bill. You have pointed out a couple of anomalies that could be better.

I think I saw you here earlier. Judge LeSage said that the bill is basically accomplishing what it intends to do. These are credible people. Do you agree with that?

Mr. Akhtar: One always remembers the bad parts rather than the good parts; that is human nature. As I said at the beginning, we support the objectives of the bill. I did not want to make an issue of the cost.

Senator Angus: You have and that is fine. We know that, though.

Mr. Akhtar: We have just tried to identify a couple of the areas of concern. However, we wholly support the objectives of the bill. We support the formalization of the case management structure. We support that entirely. We also support the enshrinement of some of the trial judge's powers into the case management judge. All we have tried to do is to point out the severe difficulties, in some case, that might occur.

Senator Angus: That is especially because of the restrictions on resources.

Mr. Akhtar: That plays a part of it.

Senator Angus: They are all interrelated.

Mr. Akhtar: They are.


Senator Angus: Mr. Jacques, like some of my colleagues here, I am a Quebecker. You belong to the Association des procureurs aux poursuites criminelles et pénales, correct? Am I right in thinking that you were recently on strike?

Mr. Jacques: In fact, the Crown prosecutors legally exercised their right to strike although they did not want to, in opposition to something the government had imposed on us in 2003. After having being deprived the right to exercise this right to strike in 2005, because our working conditions were set out through the adoption of special legislation, we ultimately, given a failure to resolve chronic problems within the Quebec Crown, exercised this right to strike, as the sole means available to us to try to change the situation. And it is clear that the political will does not exist because the Quebec government did not hesitate to adopt a second special legislation right away. Our working conditions are the same as those from 2004 and have been renewed to 2015.

Senator Angus: In that regard, this situation at the provincial level is the same as at the federal. Parliament is seized with special legislation to legislate Canada postal workers. In fact, in your case, the strike is over.

Mr. Jacques: The strike ended because the special legislation forced us back to work.

Senator Angus: Yes, that is true, but the grievance remains unchanged.

Mr. Jacques: The problems are known and recognized by the government. The decision was made to adopt special legislation to simply force people back to work with the minimum working conditions. The government had the opportunity, through the special legislation, to impose its final offer by telling us, "We believe as a government that the offer is sufficiently generous and we are imposing it on you." They forced us back to work with conditions clearly below what they had offered us. This says a lot about the government's attitude to us, and the end result is that the problems remain, the Crown is falling apart and we are almost at the point of no return, because each month we are losing people who are going elsewhere.

As we keep saying, there comes a point when even if we decide to turn things around, it will take two generations to rebuild the Crown.

Senator Angus: I understand. However, Mr. Jacques, you decided, despite your standard procedure, to come here to speak for the members of your association. I must congratulate you on this. However, in all honesty, we are here today simply to look at the bill and, as senators, give a second opinion. There was not one word in your brief about the merits of the bill. I must tell you that every day I read La Presse and Le Devoir newspapers, the grievances are there, the sad history of Mr. Charest, of Claude Chartrand is clearly set out.

Today, if I have correctly understood your testimony, Bill C-2 is fine if there are enough general prosecutors, Crown prosecutors and resources that are, we all recognize, insufficient in Quebec and at the federal level. We are not the ones who are deciding to invest another couple of billion dollars in the system. However, because we receive such testimony on a daily basis, we recognize that things at that level are not working properly.

In light of your testimony, can I take it for granted that, given sufficient resources, you find the provisions in Bill C-2 to be acceptable?

Mr. Jacques: Quite. With all due respect for everything you just mentioned, I must say that we took the time to state that, typically, we decline this kind of invitation because we are aware that you are not the ones, as representatives of the Senate, who decide to invest resources in the Quebec criminal justice system.

Furthermore, we work in a fairly special context. We did not ask to appear. You invited us to testify. So, we accepted that invitation. Since criminal law is a federal responsibility under shared constitutional powers, I think that, as representatives of the Canadian public, we represent the Quebec Crown prosecutors. As members of the Senate, you represent Canadians and in a federal system where organized crime is constantly evolving, the criminal justice system is as strong as its weakest link. And the weakest link is currently Quebec. I think that people such as yourselves, who represent Canadians, should start to feel some concern. That said, I understand that you do not have the power to do so.

Senator Angus: We are doing our best and we take note of the grievances.


The Chair: Senator, I think we have gone further than we should have.

You are quite right; we did ask you to appear.

Senator Angus: He said they do not come as a rule.

The Chair: We are very pleased that you did. You are most definitely entitled to give the answers you think are appropriate, and we thank you for doing so.


Senator Joyal: Mr. Jacques, I clearly understood from your brief that your association, and I quote:

. . . is in agreement with the amendments set out in Bill C-2.

And you also conclude that you recognize the positive repercussions of Bill C-2. I understand that you agree with the bill.

Mr. Jacques: We agree with the bill. Quebec was a leader in this type of trial against organized crime. We have prosecutors who are specialized in this type of case. We took the time to consult them. We agree with the objective of the measures set out in Bill C-2.

Senator Joyal: I also understand, based on references made to this previously by other witnesses and other stakeholders that the decision in the Auclair v. R. case is a clear illustration of the difficulties that mega-trials represent in terms of general resources and facilities available to the Quebec justice system.

What you are saying is not only the opinion expressed by members of your association, but also reflects the general opinion regarding mega-trials in Quebec that, clearly, as you indicated with regard to operation SharQC, is part of the legal reality in Quebec at present. I subscribe to your conclusions that the legal system in Quebec requires significant changes in order to achieve the objectives we seek regarding protection of the public and the victims, as Senator Boisvenu said, and generally protecting Quebec and Canadian societies from the tentacles of organized crime. I can assure you that what you have told us is part of our concerns given that we must try to measure the impact that this legislation may have, meaning the text of the legislation as opposed to its enforcement.


That is why I think that the testimony of Mr. Akhtar is very important. What you state cuts across what former Justice LeSage said to us this afternoon. He did not deny the difficulties that you raise at page 4 of your brief; that is, what happens if the trial judge disagrees, what happens if the parties seek to revisit, and what happens if the case management judge cannot rule?

In his testimony he said that having a different judge for management decisions other than the trial judge will not be the regular way of conducting trials. He said that it will be more common that the trial judge will be managing the trial as well.

I believe that the chief justice who has to administer mega-trials will be aware of the points that you raise. I am not a judge, but if I were the chief justice and had to manage the conduct of a mega-trial, I would try as much as possible to keep the trial judge at the preliminary level so that all the issues that you raise do not occur and the same person presides over the entire trial.

In my opinion, a certain number of cases are addressed by the fact that this bill makes it possible to split the two. However, on the whole, the preferred option is to keep the trial under one single judge, the same person.

I am concerned about what you raise, but as I understood the previous testimony of Justice LeSage, it will not be as prevailing as what one might be led to believe based on experience you have had yourself in that regard.

Am I seeing the situation in too much of a rosy colour, or will an element of realism prevail?

Mr. Akhtar: I wish everyone in the criminal justice system could see things as rosy as you do. We need more of that.

If that is the case, this bill does not change anything because the trial judge has the same powers as he always has. As I understand it, what is sought is to speed things up by splitting the two aspects. My understanding in reading the bill is that will be the routine to make things more efficient. If it is not, where is the efficiency coming from?

Senator Joyal: By splitting the two, you that that we will multiply the obstacles in the conduct of trial because there will be more opportunities to re-open. In that context, how would you define the limit that the bill contains that re-opening a case at the management level would have to be in the interests of justice? How would you define it in the interests of justice?

Mr. Akhtar: The problem is that it is not my definition because there is no definition of interests.

Senator Joyal: Based on your experience, how do you understand those terms?

Mr. Akhtar: One of the difficulties I was having when talking to one of my colleagues who will be speaking next is that that phrase is used in several different areas. Sometimes it is used in sentencing where it takes on a particular meaning; sometimes it is used in other areas where it has no meaning to evidence. It has meaning to circumstances surrounding a particular offender or a particular offence. That phrase is very broad and it is not defined.

If there was a change of circumstances such that we had the same judge and I had to revisit a ruling, I would say, "That ruling you gave no longer applies because this witness has said something different." That is always open; it is open in the current circumstances.

The problem I have is you will now have a huge argument on whether or not it is a change of circumstances and whether or not that change would have convinced judge number one to have made a different ruling. That will be a huge part of the litigation, which does not exist if the trial judge is the same person. In the instance I gave you in the mega-trial I did, we had the same instance. There was a ruling that prevented the Crown from asking certain questions, so I lost the ruling. The witness gave testimony, and he changed the evidence he was supposed to give, which was proffered by the defence. It was a change of two words. I stood up in front of the judge and said, "Now you can change that ruling and I think you are obliged to do change that ruling." It was a very significant point. He dealt with that in 15 minutes because he said to the defence counsel, "I know exactly what I said. That witness went well beyond my ruling, even though it was two words."

I can assure you in the case of that magnitude, of that nature, in the case of a mega-trial, where the stakes are so high, there would be a huge amount of litigation as to whether or not that constituted a change and what the first judge meant. Those are the concerns we are trying to put before this committee.

As I said to Senator Angus, we support the objectives of the bill. I am a Crown counsel, so why would I not support something that would speed up a trial? However, we say the particular splitting of the responsibilities will cause more problems than it solves, and it has never been addressed in any bill or discussions. There are no definitions of what constitutes "in the interests of justice." Nothing in that bill deals with the problems we have outlined, namely, the revisitation problems. All we are trying to do is point this out to the committee and say these are areas of concern. We are trying to improve legislation that we think is good. We are not trying to say this bill is bad, so ignore it. We are saying that it is a good bill, but you need to improve it to avoid problems that may end up be self-defeating for this bill.

The Chair: We will have to move on. You have touched upon some interesting evidence.

Senator Runciman: Mr. Chair, given that we are well beyond our schedule and a witness is waiting, I will withdraw.

The Chair: Thank you, witnesses, for the thoughtful evidence you have given us. It certainly brings another side and another view to what we have heard earlier. Given your experience, it will be very useful to us and we will give it serious consideration.

We are now at our last session of the day in our consideration of Bill C-2. I am pleased to welcome Mr. Ferhan Javed, Defence Counsel, Canadian Council of Criminal Defence Lawyers. With him is Michael Spratt from the Criminal Lawyers' Association, whom we have had before us on many occasions.

We appreciate your patience and interest in being here. I suspect each of you have statements. I will ask you to make those, and we look forward to hearing what you have to say.

Ferhan Javed, Defence Counsel, Canadian Council of Criminal Defence Lawyers: Good evening, senators. I am delighted to be here on behalf of the Canadian Council of Criminal Defence Lawyers. The organization was founded in 1992 to offer a national perspective on criminal justice issues with a view to ensuring the preservation of constitutional principles, which protect us all, and to seeing that the criminal law develops in a practical and principled manner.

I understand we have a limited amount of time, but allow me to start by saying that in general our organization supports the objectives of the proposed legislation. We see it as a significant step in streamlining the criminal justice system to make it more efficient and, as a result, more fair and effective for all who are caught in it. We know that the administration of justice in Canada has become more complex, and we welcome the efforts of Justice Michael Code and Chief Justice LeSage in their report. We heard from Justice LeSage earlier today.

As criminal practitioners in the trenches day after day from coast to coast, we face a constant struggle to simplify criminal litigation to better serve our clients without compromising fairness and adherence to the fundamental rights in the Charter of Rights and Freedoms. A variety of factors sometimes impede this objective, some of which I will address that this legislation does not specifically address.

I should say as well that after hearing Mr. Akhtar's submissions to the committee, we adopt essentially the position of the Canadian Bar Association with respect to the strengths and weaknesses of limitations of the proposed legislation. For that reason, I will not repeat much of what Mr. Akhtar said but instead focus on what is germane to our council from a national point of view. I will talk a little about the form of the particular bill. For example, we have to recognize that the proposed legislation is somewhat unclear as to whether someone such as Mr. Justice Robert Kilpatrick, Senior Judge of the Nunavut Court, would qualify as a chief justice or a chief judge if the legislation is silent on that. If not, the proposed legislation should contemplate the occupant of his office to be equipped to make the appointment. Perhaps it should read "a senior territorial judge" as well.

We are also mindful of the issues in Nunavut around the appointment of a case management judge to conduct the preliminary hearing, which may make binding rulings that in some circumstances would benefit the accused where the superior court judge in Nunavut often conducts the preliminary hearing. This could also expedite the disclosure process. However, as a whole, leaving aside the uniqueness of Nunavut, we adopt and reiterate some of the concerns put forth by the Canadian Bar Association with respect to the division of powers between the case management judge and the trial judge in a trial.

We point out as well that one of the shortcomings in the proposed legislation is that we do not see the power of either the case management judge or the trial judge to deal with issues of unrepresented accused. Members of this committee could attest to this as being a serious problem in mega-trials. Currently I am counsel in a mega-project in Toronto with 80 accused, 5 of whom do not have counsel. Those individuals have not been granted legal aid, so it is a difficult proposition for them to proceed to trial where there are 80 accused with a Part 6 authorization where I have been designated with two other lawyers to take the lead on what amounts to 2,700 pages of disclosure. It is a formidable task for any person with counsel but even more difficult with someone who is unrepresented. In that respect, Recommendation 40 in the LeSage-Code report suggests that trial judges have the common law power to appoint friends of the court. We recommend that this committee recommend adding to the bill the power of either a case management judge or a trial judge to address not only the issue of appointing amicus curiae but also appointing council to address the issue of remuneration. Often that issue becomes bogged down in litigation, at least in Ontario. I point to the recent decision of our court of appeal in R. v. Russel that dealt specifically with that issue.

I will read a quote from our court of appeal in R. v. Felderhof. In the 2003 decision, Justice Rosenberg, a highly respected jurist in Canada, said the following at paragraph 57:

I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called.

We respectfully submit that the court of appeal, at least in 2003, and some of these comments, which were adopted by our Supreme Court of Canada in the decisions of R. v. Pires and R. v. Lising in 2005, specifically delineate the power of trial judges to control their process and the proceedings before them. Therefore, we caution dividing the powers between a case management judge and a trial judge in those circumstances where a case management judge may hinge upon the exclusive powers of a trial judge. We are mindful of the potential problems that may result.

Subject to any specific questions that the committee may have, I simply reiterate that we adopt the comments of the Canadian Bar Association in this respect.

Michael Spratt, Director, Criminal Lawyers' Association: Good evening. I am a representative from the Criminal Lawyers' Association, CLA. We are a not-for-profit organization founded in 1971 and comprised of over 1,000 lawyers at this time from across Canada and some in the United States.

As you know, our goal is to educate, promote and represent our membership on issues relating to criminal law and constitutional law. We are consulted routinely by parliamentary committees such as this. We have also had the great honour of appearing before many inquiries and hearings, such as Air India and the LeSage-Code report. At both, CLA supported provisions much like those seen in this bill. I am happy to say that for once I am before this committee with something positive to say. That is not to say that I will not say a few negative things, but I will try to keep it on the positive side because we support the goals advanced by this bill.

We have to recall and always remember that while the goals of Bill C-2 are laudable, and I might have some minor concerns over some parts that can probably be addressed, the proposed legislation in Bill C-2 is only as good as those who implement it. I am very happy to come before this committee and say thank you for recognizing that judges can exercise their discretion and control their courts and that they do not need to be boxed in through the type of legislation we have seen in the past. Judges in Canada are responsible, reliable and intelligent. It is pleasant to appear and speak to a piece of proposed legislation that recognizes that and gives judges some discretion.

One also has to recognize that Crown attorneys have to come to the table and engage in the process. You have heard from some Crown attorneys who are quite willing to do that. Lastly, defence counsel must be present and engaged in the process. I can assure this committee that our membership is willing to do that.

I know you have heard this before, but defence counsel must be equipped with pieces of legislation. They also must be equipped financially to deal with these issues that we have been talking about today.

It will not come as a surprise that these mega-trials are usually publicly funded. That is because of the length, scope and breadth of these prosecutions. What is often forgotten is that we want to attract the most senior defence counsel to these prosecutions, those who are senior enough to make the tough calls, the tactical choices, and the admissions that are necessary to keep things moving through the system. Although it is not contemplated in this bill, I urge this committee, when examining pieces of legislation, to keep that in mind.

Laudable goals are just that — laudable. However, there must be some incentive and remuneration for defence counsel. I know you have heard that from others in this hearing. I know that is not addressed and is not the goal of this bill, but in order to advance the goal of this bill, there must be a holistic approach. We have seen the government take holistic of approaches when it comes to other parts of the criminal justice system that we do not necessarily agree with. However, I am hoping this government will take a holistic approach to this, as well.

All of that is to say that we support the goals and the purpose of this legislation. We are in favour of the discretion. We like the provisions that deal with the jury selection process and the changes there. The reduction in duplication is sometimes an advantageous feature. There are some concerns with reference to a separate case management judge as to the trial judge. You have heard comments on that, so I will not repeat them.

There are some cases where it could be very advantageous, both to the interests of justice and to the case itself, to have a separate judge. One would hope that that discretion placed on the judiciary on when that should occur is exercised appropriately, as I am sure it would be. However, there are some ambiguities. The interest of justice test is not defined in this bill. It will be the subject of litigation. It could be counterproductive to what this bill is ultimately attempting to do. Until it is defined, it will increase the scope of litigation at these trials. Mega-trials have many defence counsel. Therefore, there will be arguments on this point.

Procedural matters must be worked out as well. For example, one is a decision made with regard to whether or not to have a CMJ judge who will be different from a trial judge. When does dense counsel learn of that? When is that decision made? Suppose that the goal is to encourage a frank discussion with your management judge that canvasses all issues. If you know that your management judge will be the same as your trial judge, those discussions might not be so frank because you would not want to prejudice the proceedings.

Having a clear policy or timeline of when those decisions would be made and more concrete language about how those decisions may be made or when that discretion can be exercised may be helpful in terms of counsel preparing their case and ultimately trying to move things forward.

On balance, this is a refreshing appearance for me in that I can say that I agree with the goals of this committee. With some discussion and minor changes to this bill, it could be something that a great number of parties can agree on.

I would be happy to answer any questions.

The Chair: Thank you, Mr. Spratt. As far as the substance, I do not see your presentation differing from the many we have heard before. You are always very thoughtful in what you say. Certainly your comments about judicial discretion were well made. As you say, it is good to see that reflected in the legislation.

Mr. Spratt: I would like to see it reflected in all legislation.

The Chair: Yes, I think I have heard that from you before.

We will move to questions. We will start with our deputy chair, Senator Fraser.

Senator Fraser: I am trying to square in my mind this question of the identity or identities of the case management judge and the trial judge. On balance, what we have heard this evening and even perhaps from you, Mr. Spratt, is that in general it would be better if they were one and the same because the trial judge would then have the benefit of all the experience that had come out during the case management proceedings. However, is there a way to allow for that in the legislation, or do we just have to leave it to the good offices of the chief justice to ensure that it will be one and the same most of the time? I take your point, Mr. Spratt, that it would not always be desirable, but we are hearing that it would be better, most of the time, if it were the same person. Would it be appropriate to specify that in a bill, or should that also be left to judicial discretion?

Mr. Spratt: I do not see a way that it could be defined or prescribed in a piece of legislation. One cannot imagine all the different possibilities, especially in very complex cases. It is good that it is left to discretion, because there are a great many instances when it is very desirable to have the same judge, both for saving time and for the issues of continuity and the decision or no disagreement in the decision. Often, we see evidence that is heard at a pre-trial application upon agreement of counsel being blended or integrated into the trial itself, so we do not need to call duplicate evidence. That would be most difficult, if not impossible, if there were two different judges hearing it. That is an area where discretion might play a large role.

It is my understanding that the intention of the legislation is that a different CMJ judge than the trial judge would be a rarity. That is the impression I get from listening to the evidence that I have heard. It would not be the norm but the exception in rare cases, where necessary.

Senator Fraser: Mr. Javed, did you want to add anything?

Mr. Javed: No, Mr. Spratt has covered it.

With respect to the matter of dividing the powers and dividing the issues, as Senator Baker noted in the previous question and answer period with Mr. Akhtar, it is our submission that it would be rare in cases where all the evidence did not have to be adduced before a trial judge could make a decision, at least with respect to a Charter issue. We often see that in cases that we defend. We, on agreement, have come to terms that all the evidence on the voir dire could apply to the Charter proper, especially in a judge-alone trial. We see that happening all the time. I believe the point was made that it would be rare where that would be able to occur without a full evidentiary record being developed.

Senator Joyal: Is it possible to envisage that the defence would prefer to have a split?

Mr. Spratt: I can think of a few examples where a split would be preferable. I am speaking not only tactically, but also when looking at fairness issues and the appearance of fairness, which is always important. We trust that judges can disabuse their mind of evidence that they have excluded, for example. However, it is often hard to explain to a client that a judge has just heard a very inculpatory statement or has just excluded some very inculpatory evidence found on your client. The next day, one is before the same judge, making submissions and pretending that it never happened. Judges are very good of disabusing their minds. However, that is difficult to explain to a client. For the appearance of fairness, I can think of cases where that would be advantageous.

I do not know if it would make a big difference in the end result because of the faith I have in our judiciary to make the right legal decision on the evidence that is before them, but from an appearance standpoint there are times when it would be of assistance.

Senator Runciman: Mr. Spratt, in terms of notice, did I correctly understand you to say that if it is determined that to have the same case management judge and trial judge, the Crown and defence counsel may be less forthcoming in the case management process?

Mr. Spratt: That is quite right. Currently almost all jurisdictions do have judges who sit with counsel in judicial pre-trials who will not be hearing the case. We can have very frank discussions about evidence that may be inadmissible at trial, the positions of parties, positions upon sentence, the background of our client, or other issues that would not be admissible at all in a trial, and that can help narrow issues. Agreements can be made that way. Sometimes trials can be avoided with those frank conversations. Those are, of course, conversations that would be completely inappropriate to have before the judge who will be hearing the trial.

Senator Runciman: That is a selling point for a separate CMJ.

Mr. Spratt: I think you would want to keep that pre-trial judge completely removed from the process. The issue of whether to have a separate CMJ can be canvassed by all parties at that point and discussed there.

Even if it is a different judge that will hear the pre-trial applications as opposed to the trial, there will be less candour than if that judge was not involved at all. This bill does not remove the ability to have a judge who is removed from the proceeding intervene, but it is a concern that if the same judge will be the CMJ, it could interfere somewhat.

Senator Baker: Seven of the 11 pages in this bill deal with the judge who will presumably hear the Charter applications, the disclosure issues and certain evidentiary matters. Further to that, in the case of a mistrial, the judgments made in the previous trial on those same matters — Charter, disclosure — shall apply.

This is the first evidence we have had from defence counsel. Everyone else who has appeared has been Crown. You have to deal with a different set of circumstances. In complex trials dealing with controlled drugs and substances, conspiracy to traffic, murder and conspiracy to murder, where you have wiretaps that might have gone on for 10 or 15 years, reasonable grounds to execute warrants, and maybe 200 warrants issued in the investigation, do you believe it is possible to dispose of Charter and disclosure arguments pre-trial and not have to deal with them in the trial proper?

Mr. Javed: I would again echo the comments of Mr. Akhtar in this regard. In those types of complex prosecutions where disclosure is ongoing, the obligation on the Crown never ceases. It is very difficult to dispose of those types of motions before the full evidentiary record is adduced. Even in those cases where a trial judge has to determine the issue of prejudice to an accused, that sometimes does not materialize until the end of a trial. We see that in the context of 11(b) motions, any remedies under 24(1) of the Charter, stays of proceedings. Those are usually done at the end of the trial so the judge can determine the impact not only on the judicial process but also on the accused person.

Our respectful submission as an organization would be that it is very difficult in those complex cases to dispose of all these motions before a full evidentiary record can be developed.

On the issue of mistrials, we note that proposed section 653.1, as it is currently drafted, also provides for rulings that may be binding on a new trial that "could have been made." That causes some concern. It is not only in the circumstances where rulings are made, but the current drafting indicates "could have been made." It is unclear what that means. "Could have been made" is somewhat imprecise, and we are concerned about that because we do not know what circumstances will bind the subsequent trial judge to the previous ruling, subject, of course, to this discretionary test being applied unless it is in the interests of justice and fresh evidence. We wanted to alert members of this committee to that passage as well.

Senator Fraser: Which section is that?

Mr. Javed: It is proposed section 653.1.

I hope that answers your question, Senator Baker.

Mr. Spratt: Perhaps I can add to that. This is why, especially in these large cases, the Crowns have to be involved and have to be held to the highest standards with respect to disclosure, applications and the like. In these long, complicated trials, disclosure through witness preparation or new evidence routinely comes out during the course of the matter. These cases are always evolving.

It is quite possible to conduct many of these pre-trial motions before the trial stage. I am involved in a case right now where we just completed five weeks of pre-trial motions based on Garofoli — wiretap, searches, voluntariness, experts, and the trial itself. For reasons outside of the criminal justice process, is not starting until January 2012. There is always the ability to revisit those reasons. It is good, and I think perhaps constitutionally required, to have that exception in the legislation. The wording that Mr. Javed has pointed out could be perhaps tighter in that section.

Having said that, the interests of justice test to satisfy us as an organization in terms of this legislation will have to be a flexible and liberal test that takes into account changing circumstances and new evidence. That is the trade-off that has to be made and that must be clear. That is why we might need a statement of principle or a stronger definition of interests of justice.

It is a trade-off between getting these motions done efficiently and early and fitting them into scheduling, because much of this will come down to scheduling. It is recognized that the trade-off is that these applications are not heard at the same time as the trial. There will be changes in circumstances and rulings may have to be revisited. That definition will have to be liberally interpreted in order not to remove any fairness in terms of the accused.

Senator Baker: Suppose that you are representing an accused and the question of the constitutionality of a search of someone's home is being determined by the pre-trial. You are summoned to appear with your client because your client has been determined by the judge to be someone who would be affected by that ruling in some mega-trial, as this legislation points out. The determination of the search of the first person accused in the instance of the Charter application is that his rights were violated in putting listening devices in his car, home, and the raiding of his home. You are summoned to the trial, yet your client does not have standing or anything to do with that Charter issue.

Mr. Spratt: That is an interesting and emerging area. We have argued some cases recently, locally, where the issue of standing has been addressed. Apart from that, the issue with joining these applications or splitting them apart must be looked at on a case-by-case basis. I do not know how many defence counsel are involved in the 80-accused project with which Mr. Javed is involved. However, there are many schedules: the court schedule, the schedule of the accused and that of counsel as well. Sometimes it might be faster to hear that together and sometimes it might be faster not to do so, depending on everyone's schedule. That flexibility is important.

With respect to the issue of standing, if I am appearing with a counsel who has standing and I do not, I do not very many arguments to make. That ruling may still very well affect me.

Senator Baker: How?

Mr. Spratt: An example would be a ruling that the evidence was obtained from that other person unconstitutionally.

Senator Baker: That would have violated his Charter right.

Mr. Spratt: If that evidence was used in the information to obtain a wiretap on my house, or to put listening devices in my car, it is very open right now. However, I do not have standing to challenge the admissibility of that evidence. Is it a section 7 violation? Is that evidence something that a judge can consider with respect to obtain information on something that is affected by my privacy interests? That evidence may very well come into play. We could not hear those two applications together because I would need to know the result of one to inform my own application.

This is the reason why defence counsel and Crowns must work together to come up with a schedule that works. This is also why we need flexibility with a liberal definition of what is in the interests of justice.

Mr. Javed: We often tend to forget that the onus is not only on the accused on a Charter application to prove the breach, but there is also a subsequent part of that test, which is the section 24(2) test. This test has been redefined by our Supreme Court of Canada in terms of the three factors they look into. Evidence also must be called on that particular part of the test as well. In Mr. Spratt's circumstance, it may be that the evidence that is illegally obtained in one case, which may not directly impact his client, could be taken into account by the court in considering the factors under section 24(2) of the Charter with respect to a discrete or another breach.

Unfortunately, the evidence on the 24(2) analysis does not materialize again until the end of the trial when a judge is in a position to assess fully whether the three-part test, as set out in R. v. Grant, has been met.


Senator Chaput: My question is for Mr. Javed. You mentioned a mega-trial that you are involved in. If Bill C-2 is passed, how will this affect the mega-trial in which you are involved?


Mr. Javed: I can point to some features that would be of assistance in the types of cases in which I have been involved. I have been appointed, with two other colleagues in this project case, to conduct the part 6 authorization attack, or, as we call it, the Dawson motion, on behalf of all parties. Our case management judge has decided that it is not cost efficient to have Legal Aid Ontario publicly fund 80 accused, but, instead, to fund 3 accused who would take on the burden of all of the clients in advancing this motion. We believe that provisions such as this would allow a case management judge to address certain discrete Charter issues such as a Dawson motion or a third-party records motion would be of assistance to us in those circumstances. That is one example. In our case, we have set aside time to address the issue at the end of all of the preliminary inquiries that have been ongoing because the evidence does not necessarily impact the question that the preliminary judge has to decide, which is to whether there is evidence or not. Speaking from experience, that is one discrete legal issue that could be taken care of by a case management judge.

That was one of the cases in which I was involved. However, this other case has not been cited yet. I was actually counsel on one of the cases.

The Chair: That concludes our questions and your presentation. I want to thank you for the quality of what you have presented. It reflects the real-life experience of what you live every day as defence counsel. It is interesting to have that perspective as compared to the Crown prosecutor's view of it. It was very helpful and thoughtful. Considering the hour, we thank you for your patience in staying with us to the bitter end.

(The committee adjourned.)