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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
Senator Boisvenu: Thank you.
Senator Chaput: What would the common element be in these various
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
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
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
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
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
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
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
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
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
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
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
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
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
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
The Chair: Thank you. Our final question on the first round is from
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
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
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: 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
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
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
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
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
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
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
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
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
I am sorry my answers are so long-winded.
Senator Baker: No, my questions are long-winded. That is what the
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
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
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
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
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
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
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
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
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
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
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
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
Mr. Beardall: Yes, one can always imagine additional provisions that
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Senator Fraser: Because you will not have the time to do all the
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
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
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 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
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
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
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
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
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
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
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
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
Senator Angus: We are doing our best and we take note of the
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.