Bill C-2 (Historical)

Fair and Efficient Criminal Trials Act

An Act to amend the Criminal Code (mega-trials)

This enactment amends the Criminal Code to
(a) allow for the appointment of a judge as a case management judge;
(b) define the role and the powers of a case management judge;
(c) streamline the use of direct indictments preferred under section 577;
(d) allow for delayed severance orders;
(e) improve the protection of the identity of jurors;
(f) increase the maximum number of jurors who can hear the evidence on the merits; and
(g) provide that, in the case of a mistrial, certain decisions made during the trial are binding on the parties in any new trial.

(Bill C-2. On the Order: Government Orders:)

June 22, 2011--Report stage of Bill C-2, An Act to amend the Criminal Code (mega-trials)--the Minister of Justice.

Justice and Human Rights

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Committee on Justice and Human Rights in relation to Bill C-2, An Act to amend the Criminal Code (mega-trials).

The committee has studied the bill and has decided to report the bill back to the House without amendment.

[The Chair, Conservative, Dave MacKenzie]

We'll carry on.

Pursuant to the order of reference of Thursday, June 16, 2011, we are dealing with Bill C-2, 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)

Shall clauses 6 to 17 carry?

[Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Department of Justice]

As the minister mentioned earlier, Bill C-2 would allow the joint hearing of related motions presented in separate trials. When some of these separate trials are held in different jurisdictions, the chief judge appointing a case management judge to this joint hearing would also need to identify in which jurisdiction the joint hearing would take place. It's in that context and that context only that, for the single purpose of holding a joint hearing, a trial may be held in part in another jurisdiction.

The House resumed consideration of the motion that Bill C-2, An Act to amend the Criminal Code (mega-trials) be read the second time and referred to a committee.

Fair and Efficient Criminal Trials Act

[Maria Mourani, Bloc, Ahuntsic, QC]

Mr. Speaker, since this is my first speech in the House, I would like to begin by thanking the people of Ahuntsic for placing their trust in me and re-electing me for a third term. I would like to assure them that I will do what I have always done: I will prove worthy of that trust. I am very proud to represent them here. I would also like to thank my family members who have always supported me during my election campaigns and my many terms in office. As we all know, to be a woman in politics who has children, you need a good husband and a good mother. Finally, I would like to thank my entire team, the election committee and the volunteers, as well as the members of the Bloc Québécois, who worked so hard during the election campaign.

Before speaking about Bill C-2, I would like to tell the people of my riding and all Quebeckers, the 24% of men and women who voted for the Bloc Québécois, that my colleagues and I will make every effort to make their voices heard in this House and to protect their interests. I will also do my best to establish the ties of solidarity needed to allow our people to become what it should be, a nation that is the master of its own destiny, with all the authority necessary to take charge of its economic, social and cultural development.

Bill C-2 is essentially the former Bill C-53 from the previous Parliament. Members of the Bloc Québécois were in favour of this bill and, clearly, we still are, even more so because we understand the importance of mega-trials. Quebec is unique in that it has a large number of mega-trials. Recently, there have been more arrests on aboriginal reserves.

I would like to first like to make a clarification. The bill in question respects the Government of Quebec's jurisdiction in the area of justice. In our opinion, there is no encroachment on jurisdictions. This bill seeks to implement a number of measures to simplify mega-trials. These include streamlining the use of direct indictments; improving the protection of jurors’ identity, which is very important, since criminals involved in this type of trial very often tend to use intimidation; increasing the maximum number of jurors; and, in the case of a mistrial, providing that certain decisions made during the trial are binding on the parties in any new trial. One of the bill's key measures is the appointment of a judge who is specifically responsible for managing the mega-trial in question.

However, this bill does not address one of Justice Brunton's criticisms. On May 31, he freed 31 criminal bikers because they could not be tried in a timely manner. This is questionable. The message we are sending to criminals is to come to Quebec because there is not enough money or resources to put them on trial, so they will be freed. For example, Operation SharQC, which cost millions of dollars in police operations, resulted in 31 bikers being let go. That is absurd.

One of Justice Brunton's main criticisms is the obvious need for judges in the Superior Court. But Superior Court appointments are made by the federal government. We feel it is time to free the Quebec government and the governments of the other provinces from this quasi-colonial dependence concerning Superior Court appointments. Quebec is not master of its domain in this area and neither are the other provinces. This applies to everyone. Consequently, the federal government is directly responsible for the disastrous release of 31 bikers on May 31.

And we feel that the federalist politicians in the House are silent on this topic. Are they not somewhat uncomfortable maintaining provincial dependence in this area, given that federal appointment of judges dates from a quasi-colonial era?

If the Brunton decision is upheld on appeal, the Government of Quebec, and Quebec's justice minister in particular, should be held responsible for the judicial disaster of May 31. It is their responsibility to ensure that there are enough lawyers and resources to have trials happen within a reasonable time frame.

However, the facts clearly show that the Quebec government does not yet have all the tools needed to completely control justice within its borders. For example, Quebec's justice minister was recently in a position where he had to practically beg for the support of every single parliamentarian to have Bill C-2 passed quickly.

This demonstrates how dependent the Quebec government is in administering justice within its borders when, we feel, it should have complete responsibility in this area. I will say it again: this dependence is irrefutably demonstrated by the fact that the federal government appoints judges. Do these types of relationships need to be maintained in order for Canada to continue to exist? Will it someday be possible to free ourselves from these counterproductive relationships that belong to another era?

The majority of my colleagues in the House would like Quebec to stay in Canada. But could they imagine for a few seconds or a few minutes a Canada where there would be more respect for nations, namely the people of Quebec whom they claim to recognize as a nation within a united Canada? In fact, I would like to see that respect in all the provinces.

I invite my colleagues to think about that. Are we to continue accepting as normal the fact that the federal government appoints judges in cases where the provinces should be responsible for the management and administration of justice? This obviously includes the nation of Quebec, as we were recognized here as a nation. The provinces could appoint their own judges and make decisions about their judicial resources without having to beg Ottawa for the authority to administer their own justice system in a normal way.

Not only were the people of Quebec astounded by the release of these 31 bikers, but in the policing community, people were not very happy about having worked for nothing and having paid millions of dollars for the police operations. As a private citizen and the member for Ahuntsic, I found this to be mind-boggling. Having worked in criminology and with the police on a regular basis and knowing this type of individual, I can say that they laughed their heads off. The justice system came across as rather pathetic.

I invite my colleagues to think about that. We will support this bill, which is a step in the right direction, but the heart of the problem is that the provinces and the nation of Quebec should be able to make decisions with respect to their judges. I am not just talking about their appointment, but also about how many should be appointed. The problem in Quebec was that there were not enough judges, not enough lawyers, not enough courtrooms and not enough cases. That is a serious problem that runs quite deep. We have to take this further than just one simple bill, no matter how good it is. We are not against the bill and we plan to vote in favour of it.

In closing, public safety is not just about putting people behind bars or passing a few bills; it is also about providing the necessary resources to enforce the law. Creating laws is one thing, but enforcing them is another.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am pleased to participate in this debate on the fair and efficient criminal trials act, otherwise known as Bill C-2, which is intended to address, not only the issue of megatrials but what has come to be known as the megatrial phenomenon. This phenomenon usually involves a large amount of complex evidence, numerous charges against multiple accused, the need to call many witnesses, multiple motions on matters of law, evidence, remedy--usually the constitutionalization of criminal law finds expression in this regard--and the related roles of the police, the crown, the defence attorney, the jury--and we should remember that not all of these trials involve a jury--the trial judge and case management judge. These trials have become all-consuming, resulting in a backlog in the current system, excessive delays and often an increased risk of mistrial.

It has long been argued by stakeholders in the justice system that the government and Parliament need to engage themselves in the reform and refinement of this process, along with other actors in the system, so that we can properly address and redress a situation whereby what is at stake at this point is not only the fair and efficient administration of justice but the integrity of justice itself.

Statements made by the courts themselves and leading judicial officials have expressed concern about this problem for some time. For example, in a speech to the Empire Club on March 8, 2007, titled, “The Challenges We Face”, Chief Justice McLachlin stated that murder trials used to take five to seven days in the recent past but now they last five to seven months. She described these changes as giving rise to “urgent problems and incalculable costs”.

In a similar but much earlier speech on April 13, 1995. also to the Empire Club. entitled, “The Role of Judges”, former Chief Justice Antonio Lamer described the complexity and prolixity in legal proceedings as being “our greatest challenge and one that could render the justice system simply irrelevant unless it is solved”. One needs to take note of those words.

In a unanimous judgment of the Supreme Court in 2005 dealing with a particularly complex species of wiretap motion, the Supreme Court adopted a much earlier pronouncement of Justice Finlayson made in the Ontario Court of Appeal in 1992 to the effect that:

...“our criminal trial process” has become “bogged down” in an “almost Dickensian procedural morass” and that the public would soon “lose patience with our traditional adversarial system of justice.”

He might well have added, and has been added since, that the public loses confidence in the administration if not integrity of justice as a whole.

When I was the minister of justice, I worked with my provincial and territorial counterparts who not only expressed similar concerns but also sought to initiate what is before the House today in the form of a fair and efficient trials bill. I and my colleague, Jacques Dupuis, the minister of justice and public security in Quebec at the time, worked on this initiative along with our counterparts.

These concerns also found expression, for example, in the 2007 meeting of federal, provincial and territorial ministers responsible for justice and public safety in Winnipeg on November 15, 2007, when the following communiqué was issued:

Ministers also agreed with the recommendations from officials to improve the way large and complex trials are conducted. The officials recommended legislative amendments to reduce the risk of mistrials and address some of the difficulties associated with the management of mega-trials, among others.

It is important for us to appreciate, as we address this prospective legislation before us, the context and the causes that have brought us to this point. An understanding of those causes and the context will not only give us a better appreciation of the raison d'être for this bill, but also for the manner in which we need to approach this bill in Parliament and in our committee considerations.

Simply put, there are four major events that have played a rather transformative role in the development of the modern criminal trial process from what used to be a short and somewhat efficient examination of guilt or innocence that existed in the 1970s to the now much longer and more complex process that has been discussed and indeed critiqued in the statements to which I alluded above.

These four causal events and the related context are as follows. First, the adoption of the Charter of Rights and Freedoms had a transformative impact on our laws, if not our lives, and of which Chief Justice Lamer spoke of as ushering in a constitutional revolution in this country.

Second, the reform of the evidence law by the Supreme Court of Canada.

Third, the addition of many new complex statutory provisions to the Criminal Code and other related statutes.

Fourth, certain compelling social phenomenon, as evidenced in the development of organized crimes and their prosecutions in the 1990s and the immediate aftermath of 9/11 and the adoption of anti-terror legislation and related amendments to a number of pieces of legislation for that purpose.

I will now say a few words about each of these causes which will put what we have before us in context.

The first transformative event was the constitutionalization of criminal law and procedure resulting from the passage of the Charter of Rights and Freedoms. The charter articulated long-standing rights, added some new rights and, most important, introduced a set of remedies, which rights and remedies can be found in sections 7 to 14 of the charter.

In effect, this institutes a constitutional code of criminal procedure. These developments inevitably led to a broad range of procedural motions that had not previously existed in order to enforce the rights and remedies now embodied in the charter.

These motions were complex, both factually and legally. They took additional time to hear and resolve. So the criminal trial process began to become both more complex and prolonged.

I can give a number of different cases as examples, but I will take one right out of the LeSage-Code report. One of the case studies that they examined, the case of Fatima Khan, was a murder case involving allegations that the two accused had killed and dismembered their young child. The trial itself was relatively speedy, lasting about 35 court days. The preliminary inquiry had taken seven days.

The important point that needs to be appreciated here is the fact that the pretrial motions, resulting from the constitutionalization of criminal law and procedure, extended over a two and a half year period where many of the pretrial motions involved charter issues.

The second causal event that contributed to the long and complex process in the modern era was the decision of the Supreme Court of Canada to fundamentally reform the law of evidence. These reforms had the general effect, as the LeSage-Code report shows, of broadening, one might say, the scope of admissibility of evidence by replacing the old rules-based approach of common law with a much more flexible principles-based approach.

I can give a number of examples but for reasons of time I will limit myself to one. The hearsay rule is significantly changed, so that certain out of court statements that would never have been admissible under the pre-existing law, now became admissible. Also, the voluntariness test for confessions was also changed.

These significant changes to evidence law, like the changes in a constitutionalization of criminal law and procedure, led to their own set of motions, in addition to the new charter motion. These motions concerning the admissibility of evidence of common law were now characterized by much greater flexibility than the old rules-based approach.

I will now go to a third causal event, and that was the continuous stream of statutory amendments that took place at the same time as the above development with respect to the charter and with respect to evidentiary developments. Simply put, over the past 20 years, Parliament has constantly altered and added to the existing body of statute law found in the Criminal Code, the Canada Evidence Act and the previous Young Offenders Act and Youth Criminal Justice Act.

The Criminal Code, it is not always appreciated, is now about double the size that it was only 30 years ago. The new legislation is increasingly complex, unfamiliar, untested, and this too has resulted in more lengthy and complex proceedings.

Finally, some of the new legislation was passed in relation to and expanded upon in a legislative and judicial manner, a social phenomenon of the last 20 years. I am speaking in particular of the gang related violence which began to increase in the nineties, especially in Quebec, which now has provided a trigger for the more immediate addressing of this issue today, to which my colleague has just spoken to, and the new criminal organizations provisions of the Criminal Code which were added at that time.

Similarly, there is a large number of new offences and new procedures relating to both law, evidence and constitutional considerations, as well as remedies resulting from the adoption of the anti-terrorist acts.

It can be seen that the criminal trial courts have had to absorb, in a word, a continuing almost explosion of new charter law and remedies, new common law evidence principles, new legislative procedures and new offences, and addressing new social phenomena over the past 20 to 30 years. It is hardly surprising then in these circumstances that what used to be referred to as the short, simple and somewhat efficient criminal trials of the seventies has been replaced by the long, complex and often inefficient criminal trials of the 21st century.

I would not wish to have it adversely inferred from my remarks that I am not in favour of these developments. I supported the advent of the Canadian Charter of Rights and Freedoms and the constitutionalization within it of criminal law and procedure and remedy. I supported the initiatives that arose from Supreme Court considerations of our law of evidence. Developments in the Criminal Code, to which I referred, were themselves warranted and the social phenomenon to which I was speaking also had to bring about those necessary changes and reforms in law procedure, evidence and remedy.

What we have to realize, however, is that the convergence of these four major transformative developments, of which I have been speaking, during a rather specific time in our recent history, has placed an enormous burden, particularly on the legal system and within it, specifically on the trial courts.

At this point I will speak to some of the considerations that have emerged from these four transformated events which, in effect, have identified or exacerbated certain weaknesses in our justice system. I will relate to simply three rather systemic or cultural tendencies, as the LeSage-Code report spoke of, that have themselves worsened and are not unrelated to these four transformated causal events, and which have to be borne in mind as well as we move with respect to creating a more fair and efficient criminal justice system to deal with this megatrial phenomenon.

The first systemic cultural observation, as set forth in the LeSage-Code report, is that the new charter remedies, the new evidence law, the motions, the statutory procedures, et cetera, all that I summarized above, share one common feature. They generally involve pretrial proceedings, in particular the development of elaborate pretrial motions practice which has had the effect of thereby delaying the trial and making it more complex.

A second broad cultural phenomenon that has emerged from this intense period of law reform, as summarized above, is that the system has become both error prone and fearful of error, in a kind of ironic dialectic. Simply, the avalanche of new and complex legal procedures, whether from the charter or from statutory amendments to the Criminal Code, or from reform of the law of evidence, has created a legal system with difficult and nuanced decision points. It is not surprising, therefore, that there are errors that occur in this new environment. At the same time, it has made judges, lawyers, et cetera, more cautionary and fearful because of this error-prone impulse. So, that too has helped to contribute to overly long trials. In fact, it suggests the need for judges with real expertise who will be effectively able to manage these cases, especially at the pretrial stage, and that underpins the importance of the case management judge, the reform of which is in the legislation itself.

The third and last of these broad systemic and cultural changes that I wish to refer to, though I cannot enlarge upon it but I think it will have a popular resonance, is the significant increase in animosity and acrimony between counsel in these proceedings, again something that the LeSage-Code report has commented and elaborated upon. Simply put, this development results, itself, in the prolonging of the trial process as the increased adversarial action on a personal level tends to result in the trial process becoming more acrimonious and fewer matters being resolved within the legal process or settled outside of it. So, here too all the stakeholders have a role to play to encourage the judiciary to insist on higher standards of civility in their courts, for the various law societies to take a strong disciplinary role in this area and for legal aid societies to exercise their statutory mandate to grant certificates to those counsels who can deliver high, effective and efficient legal services.

In closing, let me now turn to some of the specific provisions in the legislation itself. Let me begin first with the definition of megatrials. Although the whole purpose and rationale of this legislation is to address complex megatrials, the legislation itself lacks a definition of what constitutes a megatrial. The proposed section 551.1, as the Canadian Bar Association recently pointed out in its comments on this legislation, would permit an application by either party or the court to have a case management judge appointed on any trial, no matter how simple. This lack of a more specific definition has the potential to result in an overuse of such applications and appointments. It could then drain judicial resources and result in cases that do not need the detailed case management that the bill envisages in having case management judges assigned.

If time had permitted, I would have referred to the other considerations, which are as follows. First is the need for the appointment of a case management judge. The definition of his powers has been referred to by the parliamentary secretary and my colleagues, so I need not go into this, other than to say there needs to be close collaboration between that judge and the trial judge.

Second is that the bill streamlines the use of direct indictments and allows for delayed severance orders related to recommendations in that regard. Third is the proposal to increase the protection of jurors and to increase the maximum number of jurors. That, too, may require certain consideration at committee stage. Finally, there are the matters of mistrial.

The House resumed consideration of the motion that Bill C-2, An Act to amend the Criminal Code (mega-trials), be read the second time and referred to a committee.

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

Mr. Speaker, I rise today to speak to Bill C-2, which has become known as the megatrials bill.

The House and the Canadian public should be aware that this legislation has been a long time coming. The pressure for this has existed in the system for well over five years now. We began using megatrials in the criminal justice system maybe 12 to 13 years ago, and they have been far from successful. Several have literally collapsed completely, where 10 and 20 accused walked away without the trial ever being completed and with no subsequent charges.

I think, in particular, of the one case in Manitoba where a great deal of money was spent on building a whole new facility. A huge amount of hours of police time, prosecutor time, judicial time and the defence bar was involved. At the end of the day, the entire thing collapsed with no convictions. That probably is the most notorious failure of the megatrials, but they are necessary.

What has become obvious to a lot of people, and only recently to the government, is that there are some practical solutions to the problems we have confronted.

The bill was originally introduced by the government in November 2010. The reason the NDP has pressed the government to bring it back in now is because of a decision out of Quebec just two weeks ago in a megatrial involving organized crime in the form of the biker gangs. Something like 100-plus people were charged. Judge Brunton, who dealt with preliminary matters in the megatrial, concluded that 31 accused would have their charges dismissed because there was no way they would get to trial in less than 10 years. Therefore, we are faced with that reality. That is a clear finding of fact on his part.

Society is somewhat fortunate in that the charges that were dismissed were not the more serious ones. A murder charge, attempted murder, other violent assault type of crimes plus organized crime charges were involved in that megatrial, all against bikers in Quebec. The balance of the charges are still outstanding. Based on Judge Brunton's ruling, there are still some of those that may be at risk six months or a year from now. It is absolutely crucial that we get this legislation through as quickly as possible.

I am sure a number of people have heard that the leader of the Green Party in the House has some objection to the speedy passing of the bill. The Quebec minister of justice came here to discuss this with her, to encourage her to withdraw her objections to the speedy passage of the bill because the administration of justice in Quebec know how serious it would be if we did not get the bill into place as quickly as possible.

My party and I encourage the government to get this through. We were happy when it finally brought the motion forward today to speed it through. If we follow the motion, it will be done by Wednesday of next week. That will give the Senate time to look at it and get it through in the following few days. Even if our House is complete, the other House will still have time to finish it off before it breaks for the summer. Then the government will have the ability to get royal assent and we will see this in Canadian law by the end of this month. That is the plan.

I want to acknowledge that Minister of Justice and Attorney General of Canada was very quick to respond when I first spoke to him about this. I am critical of him because there were a whole bunch of other laws in the last Parliament that took precedence over this one.

I also want to acknowledge the co-operation from the Liberal Party critic. He was very quick to respond favourably to the quick passage of the bill.

The reason I am significantly critical of the government on this one is that if we go back and look at the history of the types of proposals in this bill, which will become the law of the country by the end of the month, almost all of them have been outstanding for several years.

We saw some of them come out of the Air India report by Justice Major. More extensively, we have had a number of these recommendations coming from the meetings of the attorneys general and solicitors general at the provincial and territorial level when they meet with the federal government, usually about every six months.

A number of them have been filtering through that. The government sat on them for this lengthy period of time. Those proposals go back for a number of years.

However, most important, I do not have any understanding or appreciation of why the government did not move immediately after the LeSage-Code report. Justice LeSage is the retired judge from Ontario. At the time Mr. Code was a professor and is now a justice in Ontario, as well.

In the period of 2007, and finally reporting in 2008, they were commissioned by the provincial Government of Ontario to conduct an analysis of how we could better handle, within the criminal justice system, megatrials, ensuring that they were fair, that due process was respected, those rights that we all have as Canadians under the Charter, but also that we had an efficient, speedy trial process, where due process was respected, but so were the rights of the accused and society as a whole.

Their report came out in 2008. It was very clear on almost everything that is in this bill. There were more recommendations than what is in the bill because other issues were dealt with in that report. We did not see a response, in the form of a bill, from the government until more than two years later. I do not have any understanding as to why that is, other than it had other bills it thought were more attractive politically for them to push than this one.

It is not the only time we have faced this. My proposal to speed a bill up occurred once before in 2010. It was known as the Shoker bill, which is the name of the case that went to the Supreme Court of Canada. It was a practical solution that we needed and it was strongly recommended by our police forces because it gave them an additional tool to deal with people who had breached their probation and parole.

It sat lingering on the order paper for almost two years, while we went through one of the prorogations and an election. Just before we broke for the end of the year, I made a similar proposal. It took me about two weeks to convince the government to do it. There was no explanation. It was a very simple bill. The proposal for the resolution of it had been outstanding for several years, but it needed to be pushed. It did not attract attention. It was not one of those photo op opportunities for the government.

Having that experience, and finally convincing the government to do it in that case, we felt we should do the same thing for this. Of course it was triggered in particular by that decision in Quebec of a couple of weeks ago.

I also want to be clear about the importance of getting this through. The Quebec case is not the only megatrial case going on in the country right now. There are at least several others and there are some others coming. We just had a major raid in Ontario, either yesterday or the day before, that is likely to end up in a megatrial.

Based on the ruling from Judge Brunton in the Quebec case, with absolute certainty, I am sure defence lawyers on behalf of the accused are looking at that decision and wondering whether they can apply it in some of these other megatrials, having additional accused persons discharged before we have the opportunity to actually prosecute them, presuming sufficient evidence to convict them.

There is a risk here, beyond the consequences of the Quebec case, as there are others outstanding where we may be faced with the same thing.

I have one more point and I want to be careful about this because the case is still before the court. However, I urge both the Government of Canada and the province of Quebec to consider an appeal in that case. The reason I feel comfortable in saying this is that Judge Brunton, in his decision, made reference to the fact that Bill C-53, which was the bill that preceded this in the last Parliament, was outstanding. Had we had that, his decision might have been different.

Based on the general rule against substantive laws being retroactive, the immediate reaction is that it would not make any difference if we appeal it. However, that is not correct. In law, if the issue of retroactivity is applicable, it is applicable when it is not substantive law. This bill is all procedural. It is process law rather than substantive law.

Therefore, I urge the government to take into account that principle of law and appeal the decision. I urge the province of Quebec to do the same thing and introduce before the court of appeal the fact that this bill is now law and could be applied to the megatrial that is going on in Quebec retroactively.

It is urgent that we get the bill through so we may be able to salvage those 31 charges in Quebec and forestall those types of dismissals in any number of other megatrials, either ones that are already started or ones that may be coming in the near future.

If we leave it to the normal process, the bill will not become law. It would go through committee and all the hearings that would take at least several more months, and we are going to have the summer break soon. If we do not get this through next week and have it in law by the end of the summer, it will probably be the end of the year, or more likely into 2012 before the bill becomes law. For the sake of the protection of our society right across the country, we cannot afford the luxury of waiting that long.

There has been criticism of pushing a bill like this through, as it is a fairly extensive bill, and whether we are going through the democratic process. I certainly have been critical of the government at times when it tried to force bills of a substantive nature through. Again, that is not what this bill is.

We have had a lot of time to analyze the bill. When I say “we”, I am speaking of the justice critics of the various parties in the House. Over the last five or six years, we have looked at the issue. The response we needed to make as a legislature was very clear, and we have understood that. There is nothing in this bill that I can see that calls for an extensive review of it.

I want to particularly emphasize the process of the LeSage-Code report. The end result of that report was one that was supported because prosecutors, other judicial members and the defence bar were all involved in the work that was done in preparing the report. When it came out, I did not hear anybody from the bar, prosecutors, the defence or the judiciary who were critical of the recommendations of LeSage-Code report. I did not hear any objections to it at all. Everybody has looked at this and thinks this is the way to keep the megatrial, but do it efficiently and in fairness to the accused.

I know we have allowed for very short hearings before the justice committee next week, but if we were to have extensive hearings, we would hear from the defence bar, the prosecution and judges that this would be the way to go.

I want to make one more point in this regard. When I first began looking at this, I had a sense of déjà vu. I went through this in my practice back in the mid-1980s to mid-1990s in Ontario in the civil court cases. We implemented the case management process, and not just for large trials, although that was where it was most effective, but for all civil cases.

It had a positive impact in Ontario and has been adopted, though I am not sure about Quebec, in all the other common law jurisdictions.

The idea behind it is simply to let the judiciary in this country take control of files, so that if one side or the other in the case wants to delay the matter unreasonably, the case management judge is there to control the process. It has been reasonably effective. It is not perfect on the civil side and it will not be perfect on the criminal law side, but it is a methodology that makes our system more efficient and, quite frankly, more fair.

One can imagine, in the Quebec case, a witness waiting 10 years to testify, an innocent bystander and witness from the general community having to come back after 10 years and testify against an accused. How well do members think a person's memory is going to last?

Witnesses also know they have this hanging over their heads, that they are witnesses and there is a need for them to be prepared on a repeated basis. There are any number of reasons why we should move on this with regard to protecting, not just the accused and the rights of the accused but the other parties involved, such as police, prosecutors, and society as a whole in terms of the witnesses who get called in these kinds of cases.

The parliamentary secretary has done an excellent job of summarizing the legislation. I am not going to go through it in any particular detail. I wanted to mention case management because that is sort of the key to this working.

The idea, for instance, is for two extra jurors to be empanelled. There have been several trials where they went all the way and in the last week or two ran below 10 jurors. In our system, 12 are empanelled but there have to be 10 to make the final decision.

We never want the accused, witnesses or the system as a whole being put through the process of a long criminal trial and then in the last week or two having to start over again because three jurors became ill in the process and could not continue. Having 14 jurors empanelled will probably eliminate that from ever happening again. I use that as one example.

The other big example is avoiding duplication in the process by having one judge responsible for all of the preliminary matters. That has been a major problem for megatrials in terms of stringing them out. It has also opened up the door many times for appeals because preliminary matters are dealt with by more than one judge and sometimes there will be conflicting decisions. Once there is a conflicting decision, it is almost an automatic appeal and the Court of Appeal must decide, of the conflicting decisions, which one is the right one.

It is a good bill. I do not want to take that away at all from the government. As I said, it flows out of both the major report in the Air India case and more particularly from the Lesage-Code report. Those recommendations were followed and it is time for Parliament to do its job.

As I said, when I asked my question of the minister, the police have done their job, the prosecutors have done theirs, and it is time for Parliament to do its job by getting this bill through.

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

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.

[Christian Paradis, Conservative, Mégantic—L'Érable, QC]

moved that Bill C-2, An Act to amend the Criminal Code (mega-trials), be read the second time and referred to a committee.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, having dealt with that, I can provide a full answer to the question from my friend, the House leader of the official opposition.

We will call Bill C-2, following routine proceedings today. Pursuant to the order just adopted, we will complete the second reading stage of Bill C-2 before we rise.

As decided last week, the House will not sit tomorrow, as a courtesy to the New Democratic members, so they may attend their convention in Vancouver.

On Monday, we will continue debating back-to-work matters. Tuesday, June 21, and Wednesday, June 22, shall be allotted days. On Thursday, we will complete report stage and third reading of Bill C-3, An Act to implement certain provisions of the 2011 budget as updated on June 6, 2011.

Should developments arise relating to the current labour matters at Air Canada and Canada Post, it may be necessary to adjust the business of the House, and I will advise members accordingly when that arises.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I will give a complete answer by moving a motion. There have been consultations among the parties, and I believe that we will have unanimous consent on this motion.

That, notwithstanding any Standing Order or usual practices of the House, Bill C-2, An Act to amend the Criminal Code (mega-trials) be disposed of at all stages as follows:

(a) not more than 1.7 hours shall be allotted for the consideration at second reading;

(b) if the bill is not reported back by Wednesday, June 22, 2011 during routine proceedings, it shall be deemed to have been reported from the Committee without amendment;

(c) upon being reported from Committee the bill shall be deemed concurred in at report stage and deemed read a third time and passed.

Fair and Efficient Criminal Trials Act

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-2, An Act to amend the Criminal Code (mega-trials).

(Motions deemed adopted, bill read the first time and printed)