Mr. Speaker, I am proud to be in this House today to join in the second reading debate on Bill C-2, Fair and Efficient Criminal Trials Act. This is an important bill to improve criminal procedure to cut the number of long, drawn-out trials sometimes referred to as megatrials.
The time to bring criminal trials to disposition has steadily increased over the last decade, a fact particularly true in the case of megatrials.
In their November 2008 report reviewing large and complex criminal cases and their procedures in Ontario, former Chief Justice Patrick LeSage and the present Justice Michael Code noted three major events that played a significant role in increasing the duration and complexity of modern criminal trials. These three causal events were the passage of the Canadian Charter of Rights and Freedoms, the reform of evidence law by the Supreme Court of Canada, and the addition of many new, complex statutory provisions to the Criminal Code and other related statutes.
Megatrials conducted in Canada are a clear indication of the impact that these causal events have had on the criminal justice system.
Our justice system must have the tools to respond to the demands raised by these long and complex cases to ensure that they do not collapse under their own weight. It had become necessary to find better, innovative ways to respond to the challenges raised by megatrials and to make better use of resources available in the criminal justice system. The amendments to the Criminal Code proposed in Bill C-2 are a significant step in providing these tools.
This legislation also responds to many of the recommendations made by the Air India Commission in relation to terrorism prosecutions.
The reforms proposed in this bill are the product of a great deal of consultation and collaboration with our provincial and territorial partners, as well as various other criminal justice stakeholders. These include the federal-provincial-territorial committee of heads of prosecutions, the Barreau du Québec and the Steering Committee on Justice Efficiencies and Access to Justice.
This work has helped us identify processes and measures that would allow the criminal justice system to function more effectively and expeditiously while respecting the Canadian Charter of Rights and Freedoms.
I would now like to take this opportunity to highlight some of the amendments proposed by this bill.
These amendments generally relate to at least one of three main objectives: strengthening case management; reducing duplication of processes; and otherwise improving criminal procedure.
In regard to strengthening case management, a great deal of work has been done in the area of megatrial reform in the last decade. The body of policy work on this issue, including the Air India Commission report, consistently emphasizes that case management, particularly with respect to the preliminary phase of the trial, is one of the key measures to improve the efficient and effective conduct of large and complex cases. Enhanced case management in this context refers to stronger judicial control of the proceedings.
It is with this goal in mind that this bill would allow for the appointment of a case management judge in any case where it appears that his or her involvement would be beneficial to the overall management of the case and in the best interests of the justice system.
As it is not always feasible to assign a case to a trial judge early in the process, the appointment of a case management judge would allow for the ground rules to be set for the parties from the very beginning and the effective management of the proceedings.
The case management judge would be explicitly empowered to, among other things, impose deadlines on the parties and assist them in narrowing the issues, making admissions, as well as reaching agreements. He or she may also hear guilty pleas and hand down sentences.
The case management judge, who would be from the court before which the trial is to be held, would also be empowered to rule upon preliminary issues, such as charter motions. Not only would this allow for earlier resolution of these issues upon which the remainder of the trial often rests, but to the extent possible it would also enable the evidence to be presented without interruption to the jury or the trial judge sitting without a jury.
Another benefit of appointing a case management judge is that he or she could continue to play a role even after the preliminary issues have been dealt with and the presentation of the evidence on the merits has begun. Clearly, this role would be auxiliary to that of the trial judge but would include adjudicating issues referred to him or her by the trial judge. This would potentially avoid interruptions during the presentation of the evidence to the trier of fact and allow the trial judge and the case management judge to share the overwhelming responsibilities associated with conducting a megatrial.
With respect to reducing duplication of processes, improving effectiveness and reducing delays while ensuring trial fairness is consistent with this government's commitment to ensure that justice is delivered swiftly. A number of amendments proposed in Bill C-2 aim at reducing duplication of processes and speak directly to this worthwhile goal.
Absent exceptional circumstances, such as where fresh evidence is discovered, there is no justification for the constant re-litigation of issues that have been fairly adjudicated. Such duplication of processes is not sustainable by the overburdened resources of our criminal justice system.
As the Air India Commission so aptly said: “Finality is an important value in the criminal justice system”.
As such, Bill C-2 includes provisions that would, in the spirit of recommendation 27 of the Air India Commission report, maintain the case management judge's ruling related to the disclosure or admissibility of evidence or the charter at any new trial ordered as a result of the declaration of a mistrial or in the event that a prosecution is severed into separate trials.
In addition, still with a view to reducing duplication of processes, Bill C-2 would allow the adjudication in a joint hearing of certain preliminary issues arising in separate trials. It is not uncommon that preliminary issues relating to the charter, disclosure or admissibility of evidence involve similar evidence and are raised in separate but related trials.
Currently, the evidence in support of these preliminary issues, which is at times very long and complex, needs to be adduced separately in each trial before different judges. Not only does this result in a duplication of effort and an inefficient use of resources, it also increases the risk of inconsistent rulings which reduces the public's confidence in the justice system.
Therefore, as proposed by the Air India Commission at recommendation 28 of its report, this bill would allow for such issues to be adjudicated at the same time at a joint hearing. These are significant gains in system effectiveness and efficiency that could result from this measure while preserving the accused's right to a fair trial.
Another issue addressed by this bill relates to the use of direct indictments. This special procedure requires the personal written consent of the Attorney General or Deputy Attorney General and allows the Crown, in special circumstances, to send a case directly to trial. Currently, where a bail hearing has been held in relation to an information, and a direct indictment is subsequently preferred for the same charges, the courts have held that the preferment is a new beginning in terms of judicial interim release. As such, a new bail hearing must be held, often requiring significant court time where multiple accused or counts are involved and the evidence is voluminous and complex.
An amendment is proposed in this bill that would eliminate this unnecessary duplication whereby bail or detention orders would be maintained where the prosecution prefers a direct indictment charging the same or an included offence.
Still on the issue of direct indictments, the Criminal Code currently allows the correction of technical defects on the face of standard indictments whereas this is not permitted in the case of direct indictments. This results in the Crown having to prefer a new direct indictment, which requires the personal written consent of the Attorney General or Deputy Attorney General. This unnecessary duplication of process is an inefficient use of resources. As such, a proposed amendment would empower the court to amend technical defects in direct indictments, as is currently allowed in the case of standard indictments.
As to otherwise improving criminal procedure, the bill contains other amendments aiming to generally improve criminal procedure. One of these would increase the number of jurors hearing the evidence from 12 to 14. The discharge of jurors throughout the course of an exceptionally long trial may reduce the jury below the Criminal Code minimum requirement of 10 jurors and result in a mistrial.
This legislative package includes amendments that would respond to this concern by allowing for the swearing of up to 14 jurors where circumstances warrant it. When the time comes to begin deliberations, if more than 12 jurors remain, a random selection process would determine the jurors to be released from duty to reduce the jury to 12.
Jury duty is a great service and requires significant time and effort by Canadian citizens. However, the alternative of declaring a mistrial and starting a trial anew not only reduces the public's confidence in the justice system but is also a considerable waste of resources from all sectors of the criminal justice system.
We are very cognizant of the onerous obligations on jurors and we believe the cumulative effect of the measures introduced here today would reduce the overall duration of proceedings, thus alleviating the burden on jurors.
This bill also proposes amendments that would provide for enhanced protection of juror identity. The amendments that respond to a recommendation from the report on jury reform by the steering committee on justice efficiencies and access to the justice system ensure that all jurors can participate without fear of intimidation.
The jury selection regime in the Criminal Code would be modified to have jurors systematically called in court by their number. The use of names would be the exception. Furthermore, access to juror cards or lists can be limited by the court when deemed necessary for the proper administration of justice. This is of particular importance in organized crime or terrorism prosecutions. These amendments strike a balance between the interests of the jurors and the public, the integrity of our justice system and the accused's right to a fair trial.
Finally, this legislation would make a corrective amendment to the French version of section 536.3 of the Criminal Code. This provision deals with the declaration containing a statement of issues and list of witnesses that the party requesting a preliminary inquiry must provide the court and the other party. The French language of this provision would be amended to render the language consistent with the intent reflected in the English.
The New Brunswick Court of Appeal, in its 2009 decision in Gallant, highlighted the current discrepancy.
The amendments proposed in this bill would serve to enhance the effectiveness and efficiency of the criminal justice system, particularly where long and complex trials are involved. Modernizing judicial tools to improve the conduct of long and complex trials would also be beneficial to the fight against organized crime and terrorism.
I trust that members will support this bill that seeks to improve our court's ability to conduct long, complex cases and make significant improvements to the overall efficiency and effectiveness of the criminal justice system.
