Justice Committee on April 15th, 2010

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to move to Mr. Comartin for five minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Welcome, Justice LeSage.

I know Mr. Woodworth and Mr. Murphy both raised this matter with our earlier witnesses. The idea is that we, as parliamentarians, could be looking at codifying the definition of relevance or trying to work more specifics into the code or into the Canada Evidence Act around Stinchcombe, and I think the direction would be to try to limit its scope somewhat.

I have two questions. First, do you think that's possible? Second, if it is possible, is it appropriate that as legislators we should look to do that?

[Patrick LeSage]

I think relevance is very hard to codify. It seems simple, and if one took a very simple codification and looked at some of the evidence text, they will have, maybe in a short sentence, their definition of relevance. Maybe that would be fine, but....

I grew up and I was a prosecutor in the days before we had the rape shield laws. There's only one thing in my life that I've ever vowed to try to see changed, and that was the way rape victims used to be treated in the 1960s and 1970s. That did get changed with the rape shield laws, but they're very complex and complicated, I think. All that was required was something to tell the judges and make the judges rule on relevance, because all the rape shield laws are trying to do is say that irrelevant evidence is not admissible, yet when you look at that, you see how complex those sections are. I think it's difficult to legislate something like that; it'd be like legislating what is good and what is bad. You can take specific instances as to what is bad and make it a crime, but to legislate relevance is difficult.

I think that there could perhaps be some prompts that it doesn't mean a semblance of relevance, for instance, or a hint of relevance, but clear relevance. Beyond that, my experience tells me that it would be difficult to draft such legislation.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you for that.

With regard to the proposed amendment--I think it's to section 645--to allow any judge in the pre-trial stage to rule, could you give us some perspective from the defence side? Would they be objecting to that? Having done criminal trials, I'm thinking in terms of being maybe three-quarters of the way through the trial, and then there's a dispute over whether evidence is going to come in. The trial judge has an advantage at that point, because he or she has heard all the rest of the evidence, evidence that a pre-trial judge probably would not have heard.

[Patrick LeSage]

That's a very good question.

Generally speaking, the defence bar have generally accepted the broad recommendations that Professor Code and I made, some of them with considerable reservation. But, yes, I think there's general acceptance.

What we say in our report is that the person actually presiding at the trial may revisit the ruling if there is evidence, clear evidence, that is now available and/or before the court that wasn't before the motions judge who heard it. So that's one thing we say.

We also say that there are some things like, for instance, in my view, similar fact evidence.... I always found that difficult to rule on until you had a sense of the trial. I never liked similar fact evidence, I almost never let it in, but that's quite aside. But you have to have a bit of a flavour, maybe even the confession, if there's a confession that there's a wish to introduce. But for things like wiretaps, searches and seizures, there should be nothing that arises in the trial that isn't available pretrial. That can help speed up resolution of cases so much. If the wiretaps go in, you end up often getting a lot of pleas of guilty; if the wiretaps go out, you often end up with the crown withdrawing charges.

So we see not much, if any, downside, and we would have the flexibility that the trial judge would have the discretion to revisit it, but only if it was clearly on different and new evidence available.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Dechert, for five minutes.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Good afternoon, Mr. LeSage.

Maybe I can call you Pat, since we were previously colleagues at Gowlings. It's good to see you again.

[Patrick LeSage]

That's right. I was going to say it's the first time I've been cross-examined by a partner.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

We won't talk about the financing.

[Patrick LeSage]

Okay.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I hope everyone is well at Gowlings and I hope you'll give them my regards.

[Patrick LeSage]

They are, thank you.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Very good.

Welcome, and thanks for being here with us today.

A lot of us have asked you questions arising from the Stinchcombe decision, and I'm going to go down a similar path, because it's something we've had a lot of discussion about as we've travelled across the country.

A number of police organizations have represented to us that the disclosure requirements of Stinchcombe have actually in many cases resulted in their investigative techniques being compromised and that they feel some criminal organizations are actually using the disclosure to learn more about police investigative techniques so that they can then change their practices to avoid detection in the future.

Earlier this morning we heard from the federal prosecutors that there are some exceptions to Stinchcombe for privileged information, one of which is information about investigative techniques. I didn't have a chance to ask them the question about how far that privilege can go in terms of protecting investigative techniques used by the police, but I was wondering if you had ever run across that issue, and what your thoughts on that issue might be in terms of how far does the privilege go as it currently exists with Stinchcombe, and what, if anything, might we do as legislators to better protect the privilege that police have in terms of their investigative techniques? And it's not just the personnel they employ, but also the types of technology they employ these days, because, as you pointed out, it's a very sophisticated world these days.

I wonder if you have a view on that.

[Patrick LeSage]

I'm not sure I can be very helpful on that. I believe that there have been individual rulings as to the breadth of disclosure that have gone further than I might have, if I were making the rulings. But by the same token, I would be reluctant.... I guess I just don't know enough about how this practice might be curtailed.

My own view is that I would find that rarely is it relevant, and therefore it's not disclosable. Nevertheless, there may be a case where some particular aspect of it is going to be relevant, and then it should come in. I was going to use an analogy, of DNA and how the DNA system operates. Clearly, that has to be something that can be explored—or the system of handling evidence. But investigative techniques...? Clearly there's a recognized privilege of informer; that is a long-recognized privilege, and the courts, as far as I know, never have any hesitation in applying it.

If I were a judge I would be looking at asking first of all whether it is irrelevant, and then second of all, whether it would come into.... The informer is privileged and protected not only to protect the informer but to some extent to protect the method that is used. I have presided on many cases in which there have been many undercover police officers who have done a lot of the work in the case and I haven't seen a particular problem, but I know there can be some, and I don't have an answer as to how you deal with them.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

There has been reference in some cases to techniques of electronic surveillance that they're now using, both in wiretap and perhaps using computer technology—Internet surveillance, that sort of thing—to catch international criminal organizations. But obviously the prosecutors seem to believe that the privilege exists and that in most cases the prosecuting attorneys could argue that such information was privileged and therefore not disclosable.

[Patrick LeSage]

The one thing I always remembered throughout my many years as a prosecutor and as a judge is that the first question is, is it relevant? It's amazing how many questions that answers: is it relevant? Someone would have to convince me, if I were the judge, why it is relevant to consider what the technique is. What is it that you're disputing about this? Is it the volume, or...? I don't see how the technique really matters. I probably would rule it inadmissible as being irrelevant, in that the technique cannot be helpful to the accused in forwarding his case.

I agree with the concern. I just don't have a simple answer.

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to move again over to Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Just as a follow-up to this bit about Stinchcombe, trying to allow disclosure to be made after the election and plea, the theme of all of this—and I hear Mr. Ménard on requests to admit and I hear issues around representation, so that you don't end up on the courtroom steps getting an adjournment because of an inexperienced counsel.... It's all around that theme of avoiding the cost and delay, because a delayed criminal trial is a cost to everyone. I'll add on to the question you didn't answer about reforming Stinchcombe to allow disclosure along the way, as a bit of a provocative question in light of what you said about the capability of lawyers: are there some judges who aren't quite cut out to handle mega-trials?

I know that the Federal Court deals with federal jurisdiction, but many of those judges are specialists in certain areas, and I know that the Ontario court has such a plethora of judges that they more or less specialize. Is there a need to have a specialization amongst the judiciary in Canada to handle mega-trials, or is a mega-trial just a bigger normal trial?

There are three questions wrapped up in there, Judge.

[Patrick LeSage]

Well, you've touched an old, old, softer, delicate part in my psyche.

First of all, let me tell you, I believe very strongly in the jury system, and it's because I believe in the wisdom those twelve people bring to their task. However, when you're looking at what almost become the mechanics of some of the complex trials today, maybe my old views about generalist judges and the non-specialization of judges don't hold as much weight as they used to.

I think if you went across the country and asked defence lawyers and crowns, “Do you want specialist judges?”, they would probably say yes. On the other hand, if you then said, “What about Judge X or Judge Y? They are specialist judges in criminal law. Would you like to have them?”, the answer will be no. That's the advantage of the generalist aspect of it.

Certainly in Ontario, during my 29 years on the bench, I think for the most part—90% of the time—we had experienced judges and would assign experienced judges to the complex cases, just as we assign experienced judges to our commercial list to deal with the complex commercial issues, particularly at the motions or the insolvencies.

We have the cadres of specialist judges, and I would like to think that a good chief justice would assign an expert to a complex case. Beyond that, I'd rather not have designations per se so that only certain judges can do certain things, because there are lots of non-complex cases. I, who had a criminal background, have presided in every area of the law—maybe not well, but I've presided in every area—but I wouldn't do the complex ones. I wouldn't go into the commercial list and do a $100-million restructuring.

So I say specialists if necessary, but not necessarily specialists.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you Your Honour. Allow me to address you in that way, because I did know you when you were still a judge. Even if I lived in the Abitibi region, I had the opportunity to read your decisions. As a criminal lawyer, I always preferred to have experienced judges, knowledgeable of criminal law.

[Patrick LeSage]

Could the interpreter keep her voice up, please?

[The Chair, Conservative, Ed Fast]

We'll ask the interpreter to keep up her voice.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Usually, my voice really carries, Your Honour. I do not know if you are hearing me.

[Patrick LeSage]

It's just the hearing. It's fine now.