I call the second meeting of the justice committee of the 41st Parliament to order and welcome the Minister of Justice, Minister Nicholson, appearing before us today.
For the committee, this is a bit different, in that the bill got referred to us before the committee was constituted, as happened a few minutes ago, but we're pleased to be able to work with all sides of the House to move this along.
Minister Nicholson, if you would like to make an opening address to us, we would be more than happy.
My understanding is the minister is only here until 9:40.
As far as I know—that's what I've been told, Mr. Chairman.
Thank you very much, Mr. Chairman. I am pleased to be here with Anouk Desaulniers, senior counsel with the Department of Justice. Those of you who have been on the committee know Catherine Kane, who is senior counsel, criminal law policy section of the Department of Justice.
This is your second committee meeting already. Yours is going to be a busy committee, Mr. Chair. Congratulations on your election to this role.
And my best wishes and congratulations to everyone who is serving on this committee.
I am pleased to appear before this committee on the Fair and Efficient Criminal Trials Act, also known as the mega-trials bill. Mega-trials are those that involve serious major crimes, such as those that involve organized crime, gang-related activity, white-collar crime, and of course terrorism.
Due to the magnitude and complexity of the evidence, the numerous charges against multiple accused, and the need to call sometimes many witnesses, mega-trials can take up a lot of court time and generate excessive delays, increasing the risk of mistrials. Mega-trials may be hard to avoid, but the way they function can and must be improved for the benefit of all Canadians.
The amendments included in this legislation pack are aimed at ensuring the criminal justice system handles these cases more efficiently by providing tools to strengthen case management, reduce the duplication of processes, and improve criminal procedure.
First, to strengthen case management, we are proposing the appointment of a case management judge who would be specifically empowered to impose deadlines on parties as well as to encourage them to narrow the issues and make admissions and reach agreements.
Stakeholders, as well as the Air India commission, agree that stronger judicial control of the proceedings, particularly with respect to the preliminary stages of a trial, is extremely important to ensure that long, complex cases are concluded in a timely manner. The case management judge would also be empowered to decide preliminary issues such as admissibility of evidence, charter, and disclosure motions. Currently, as you know, only the trial judge may rule on these issues.
Second, the bill would make processes more efficient by allowing preliminary motions in related but separate cases that involve similar evidence to be heard jointly. As well, 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 were satisfied that this would not be in the interests of justice.
Finally, over the last decade the time required to hear criminal trials has steadily increased, especially in those cases we refer to as mega-trials. This can affect the jury's ability to render a verdict, since it is not uncommon for jurors to be discharged in the course of a long trial. In order to improve this process, the bill would increase the number of jurors hearing the evidence from 12 to a maximum of 14, where circumstances warrant. This proposal would ensure that if jurors were discharged throughout the course of the proceedings, the jury would not be reduced below the Criminal Code minimum requirement of 10 jurors, and therefore a mistrial would not be ordered.
If, at the time of deliberations, more than 12 jurors remain, this number would be pared down to 12 by a random selection process.
The bill includes provisions that would have jurors called by their number in open court and make calling them by their name the exception. This would ensure the jurors participate in the criminal trial process without fear of intimidation, which may be of particular concern in organized crime or terrorist cases.
Also, where circumstances warrant, access to jurors cards or lists could be limited by the court.
Finally, I would like to reiterate that the measures outlined in this legislation would also help to streamline the prosecution of terrorism offences, which was one of the recommendations of the Air India commission.
The amendments outlined in our bill would help streamline the procedure so that justice would be delivered swiftly and our streets and communities would be safer. I encourage you to support the bill, which would make a significant improvement in the efficiency and the effectiveness of our criminal justice system.
Thank you, Mr. Chairman. Those are my comments.
It certainly goes beyond what was the specific focus of the Air India commission. The Air India commission report was focused on terrorism and terrorist activities. As you can see, this bill deals not just with the challenges in a terrorist trial but goes beyond that to all aspects of organized crime, whether we label that terrorism or not.
The provisions of this bill are consistent with the challenges that have been identified in that report--that is, dealing with cases of this magnitude and this complexity. Even the provisions with respect to increasing the number of jurors; you get a long, complex case, and many times it's very difficult for an individual juror to continue for any number of reasons. Even the provisions with respect to protecting the identity of the witnesses; this is something I am very supportive of, of course. You get these cases where the individuals might be threatened, so we take this extra step to try to protect their identity and to support them.
Ms. Kerry-Lynne D. Findlay: Thank you.
An hon. member: How much time do we have left, Mr. Chair? We're sharing the time.
Minister, I am substituting today for Mr. Cotler, who is away on a trip, as you know.
You might also know that he has some concerns about this legislation. One of them is what Mr. Comartin brought up: the lack of a definition of “mega-trial”.
Not being a lawyer myself, I'm looking at the Canadian Bar Association's document and their suggested amendments, which suggest some language. They suggest amending clause 4 by adding a little phrase:
||...a case management judge will be assigned if the judge hearing the application believes it necessary for the proper administration of justice, having regard to the length of the trial, the complexity of the issues and any other factor the judge deems relevant to have a case management judge assigned.
This is a suggested criterion.
If this committee decided to amend the legislation and just added that little clause, is there a danger in doing that? It's just to provide some guidance and maybe reduce the chance that we have to come back and put that in if--
It's a fair comment. I look very carefully at any suggestion that comes from Mr. Cotler.
The reason why it's phrased as it is there is that it's in direct response to the Code-LeSage report, which recommended against putting in a statutory or, as they termed it, “monolithic definition” of what may constitute a mega-trial. They said that for the proper administration of justice it's necessary to designate this; they would have confidence in the chief judge or the chief justice.
Again, when we were putting these together, we could have gone against what they were saying, but it seemed to me to make sense to not narrow it down. As you pointed out, in my response to Mr. Comartin I said that sometimes it's very difficult. Just because you have more than one accused, it doesn't mean it's going to be overly complex or that it could come into what we refer to as a mega-trial.
But again, I'd rather have this decided on a case-by-case basis. It's open, of course, to defence counsel, the crown, or the judge himself or herself to make that application, so we thought we'd go with what the Code-LeSage report says and--
Thank you very much, Mr. Chair.
Thank you, Minister, for your attendance here today.
I just want to say how happy I am that the House has directed this bill to committee to be dealt with expeditiously. I think that Canadians across the country were very dismayed by events at a recent mega-trial. This bill responds to that, and I think Canadians want to see it passed.
I notice that in the Canadian Bar Association submission there's an interesting comment about rulings after mistrial. The bill before us gives the judge who hears the second trial discretion to allow the evidentiary rulings that were made previously to continue.
I find it ironic at the very least--having sat on this committee for two years, and having heard the Canadian Bar Association tell me over and over again that they are in favour of judicial discretion--that this is a case where they seem to not be in favour of giving a judge that discretion. Instead they are suggesting that if there were a mistrial--even if evidentiary issues were fully litigated with the same crown and the same defence, and decided--they would not want to give the judge hearing the second or ultimate trial the discretion to accept those evidentiary rulings. Instead they would want to give everybody the chance to go back and have a second bite at the apple, and allow them to try to argue that the initial ruling was wrongly decided.
I don't know what the implications of that would be in slowing down these mega-trials, but I'd be grateful for your comments on why the bill includes that discretion for a judge.
It's a great honour to serve on this committee.
I thank the minister for taking his time and giving a little extra time.
Because I'm new to this, I did call the B.C. Attorney General's Office yesterday just to see what their perspective was, and they were indeed in favour of this.
I do have a few questions. The way this has been framed, it deals with organized crime or domestic terror cases, but I'm wondering about how this would apply to more domestic cases, such as the riots we've seen in Toronto or in Vancouver. As we know from the news this morning, in Toronto there were 1,100 people initially charged, and now there are only 24, so most of those charges have been dropped. In Vancouver we've had 117 people charged and there are many more charges possibly coming.
I'm just wondering how this mega-trial bill would apply to something like that, which is not a domestic terrorism or organized crime case.
First of all, thank you very much to the members of the committee for indulging me on short notice.
I am the president of the Association of Justice Counsel, which represents the working interests of some 2,700 federal lawyers and prosecutors who work at the Department of Justice and the Public Prosecution Service of Canada, as well as other federal agencies and tribunals across the country.
I'm very pleased to come to this body today to speak to you about Bill C-2. I would commend the committee for turning its quick attention to this bill before Parliament adjourns for the summer. There have been some references to recent cases in Quebec and other jurisdicitions that have raised some concerns about the state of the criminal justice system, and in particular, whether or not the criminal justice system is properly resourced. I think as a general proposition this bill represents a very strong, constructive step in the right direction to address those concerns. With that, I think we would be happy to join in the chorus of offering support for this legislation.
The current state of the criminal justice system is at the same time stressed, and I think that needs to be said. Within the last five years a number of judges, including Mr. Justice Michael Moldaver of the Ontario Court of Appeal, have put it at no less than a state of crisis. Again, I think this bill is a step in the right direction to address that state of crisis.
The causes of that crisis have been attributed to three broad factors. One is what we call a deluge of pre-trial charter applications. There have been significant changes in the rules of evidence and law, and there have been many changes to the Criminal Code, which have seen new offences created, in particular involving criminal conspiracies as well as terrorism. As we have brought in the prohibited zone of conduct, investigations have become more sophisticated, complex, and time-consuming, and we have seen more charges laid. We've seen more contested trials laid as we test the outer boundaries of these new laws.
It should come as no surprise to the members of this committee that when you study the reports for plans and priorities from the most relevant departments to your work—the PPSC, the Department of Justice—you see those caseloads and those files going right off the chart. The PPSC published just last week that it had over 75,000 files in the hopper. Just to put this into the context of the bill you're considering today, in real terms only about 1% or so of all those files were related to mega-trials. But on the flip side, we spent over one-fifth of our dedicated resources on those mega-trials.
It goes to show you that mega-trials absorb a disproportionate amount of our time and energy. Again, this bill attempts to address that. It attempts to address that by setting up a framework for very proactive case management. It has been documented by numerous reports from committees, which have included very venerable members of the judiciary and the bars, that active case management is a very effective way to address backlog and to address the chronic delays that plague our system. This bill addresses that as well.
We have three very narrow observations we would like to offer this committee for its consideration. The first has to do with the presumptively binding provisions. There are three sections in the bill effectively requiring that certain rulings, either from a case management trial judge or a trial judge proper, be binding, except where the interests of justice require reconsideration. On a very plain reading, that section is obviously intended to discourage parties in a mega-trial from bringing frivolous motions.
The reality is, save and except for the one enumerated ground of the coming to light of fresh evidence—the introduction of evidence that wasn't previously available—there are no other enumerated grounds in the text of the bill that would give guidance to the case management judge as to when the interests of justice actually call for a reconsideration of a prior ruling. So in the end you may have a set of binding rulings that are a push in terms of workload and whittling down the actual number of motions that are brought because this residual, traditional discretion, which is proper, confers a very broad category of factors that can justify reconsidering prior rulings.
The second observation we would offer relates to a point that was raised earlier when the was offering his testimony, and that is, when it is appropriate to convene a case management joint hearing. That could result in the bifurcation of some proceedings. I believe the CBA has made some comments about how we can address the situation where we have a large trial involving adults and youths, and the Supreme Court of Canada has spoken very definitively and very recently on that. There is no way around it. You could have a single case management judge convene a case management hearing or conference, have all the parties there, and then close the hearing and reconstitute it as a youth court justice hearing.
I'm getting the signal from the chair. I'm going to wrap this up very quickly.
In effect, you could actually realize some efficiency there, but there are other areas where bifurcation is inevitable--for example, when we are talking about managing disclosure involving the assertion of national security privilege and the Canada Evidence Act, which presumptively takes it to a different court. That's another area where in mega-trials, particularly those involving terrorism or criminal organizations, we will run into a fork in the road.
The third and final comment, Mr. Chair, I will make very quickly. This is a tactical amendment that we would suggest, and I haven't had the benefit of seeing the CBA's submissions. It seems to us, on our reading of the text of the bill, that the rights of appeal have not been clarified. What we would suggest is that, in order to tie up some interpretive loose ends, section 673 of the Criminal Code, which is the definitions portion under “Appeals—Indictable Offences”, be amended to read as follows:
||“trial court” means the court by which an accused was tried and includes a judge or a provincial court judge acting under Part XIX
--and here is the operative part—
||or a case management judge who exercises his or her powers as a trial judge under subsection 551.3(1) under Part XVIII.1.
I stand to be corrected on the Roman numerals.
Those are my submissions.
Pursuant to the order of reference of Thursday, June 16, 2011, we are dealing with Bill , an act to amend the Criminal Code for mega-trials.
Pursuant to Standing Order 75(1), consideration of clause 1 is postponed.
(Clause 2 agreed to on division)
(Clauses 3 to 5 inclusive agreed to)
The Chair: Shall clauses 6 to 17 carry?
Mr. Chair, point of order.
I don't think that's in order at all. I understand the 48 hours' notice in relation to substantive motions, but this is not a substantive motion. This is in relation to a bill that we're considering clause by clause, and amendments can come from the floor. I do not want to set a precedent in relation to that. I certainly would like to hear from the department in regard to that particular definition. Mr. Stewart and I are both in the same category. After hearing from the witness, we'd like to know exactly what that would be.
The other question is.... I would suggest it would be beyond the scope of the bill to add a definition section that's not within the section, as Mr. Comartin said, unless.... Of course I haven't seen the definition that Mr. Hsu put forward, or the definition section that he put forward that would be appropriate, but I would think it would be beyond the scope of the bill itself.
There are two bottom lines. As point number one, I think this whole discussion is out of order, because we have already passed clause 4 without amendment. Secondly, I didn't hear Mr. Kennedy propose a particular amendment. All he has done is ask whether an amendment might be proposed.
Oh, I'm sorry; it's Mr. Stewart. I was thinking of my old friend Mr. Kennedy. I apologize to Mr. Stewart. I'm sure that's an invidious comparison. I didn't mean to make it.
Some hon. members: Oh, oh!
Mr. Stephen Woodworth: In any event, Mr. Stewart hasn't actually proposed an amendment. He has only asked if one could be proposed. I suppose that, at least from this point forward, if he has an amendment to propose, he knows he could, provided he has the wording.
But I don't actually see an amendment on the table. And it would be out of order anyway, since we passed clause 4.
(Title agreed to: yeas 10; nays 1)
The Chair: Shall the chair report the bill to the House?
Some hon. members: Agreed.
The Chair: I think that brings our second meeting to a conclusion.
I want to thank everybody for confusing me entirely.
Ms. May, sorry.
Again, I have to ask for the consent of the committee for Ms. May to speak to the committee.
Some hon. members: Agreed.