Evidence of meeting #12 for Justice and Human Rights in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
Assistant Director, Financial Analysis and Disclosures, Financial Transactions and Reports Analysis Centre of Canada
They are not required to supply any to us.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
They carry out billions of dollars worth of transactions throughout Canada, but you have no analysis nor document coming from them?
Assistant Director, Financial Analysis and Disclosures, Financial Transactions and Reports Analysis Centre of Canada
They are not covered by the Act.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Very well.
That is all. I have no further questions.
Conservative
The Chair Conservative Ed Fast
That was great. That was exceptional, actually.
Thank you to all of our witnesses. Your testimony will form part of the record. As well, we will be taking that testimony and preparing a report, which will likely be quite long. We spent longer than a year on this study, so we thank you again for the work that you've done this morning.
We're going to suspend for two minutes and then we're going to move over to Justice LeSage by video conference.
Conservative
The Chair Conservative Ed Fast
I will reconvene the meeting.
Members, we have the honour of having with us as a witness the honourable Justice Patrick LeSage, former chief justice of the Ontario Superior Court.
Justice LeSage, welcome to our meeting. I think you know the process, which is that you have ten minutes to present, and then we'll open the floor to questions from our members. You're welcome to proceed.
Patrick LeSage Former Chief Justice of the Ontario Superior Court, As an Individual
Thank you.
Thank you for inviting me. I have to say at the outset, though, I'm not sure exactly why you did. I am not an expert in organized crime. I really don't have anything to speak of in an opening statement. I have no particular agenda, other than perhaps to make some references to a report by Professor Michael Code, who's now a Superior Court judge in Ontario. And by the way, I should have mentioned at the outset, I'm no longer Justice LeSage. I retired from the court about six and a half years ago, and so it's just Pat LeSage or Mr. LeSage, as you should choose, but we do not carry that honorific with us.
In any event, Professor Code and I, a couple of years ago, prepared a report on complex criminal cases for the Attorney General of Ontario, the purpose of which was to see if we could come up with some recommendations that would make them more efficient and effective.
We did our report and we came up with a number of recommendations. Some of them are topics that I overheard--I was online or able to hear your discussion for about the last 15 minutes--and some of the topics that we covered have already been made reference to, both by questions and by comments from the earlier presenters, who I believe were from the Public Prosecution Service of Canada, although I'm not sure. In any event, I'm not sure I really have much new or original thought to bring you.
I heard some questions and some responses about amendments to the Criminal Code. Professor Code and I--better not get my codes mixed up here--came up with a lot of recommendations in our report about process and administration, but very few recommendations about amendments to the Criminal Code. One of them has already been referred to, and it's an amendment to section 645 of the Criminal Code.
Just to give you a little background, the issue has often been a disputed one as to when a trial begins, but basically, it used to be that a jury trial, in which I was frequently involved, only began after the jury was empanelled. Then in about 1985 an amendment was made to the Criminal Code to permit the trial to commence before the jury was empanelled, and the reason for that was so that pre-trial rulings could be made in advance before you empanelled a jury and then sent them off for some considerable time.
That was a very, very helpful amendment. In those days I was on the court. We believe that a further amendment to simply allow any judge of the court to make pre-trial rulings apply to the actual trial would enhance the efficiency of the trial process. In other words, very early on rulings could be made about a disability, and I heard some reference earlier made to this in matters such as wiretaps or search and seizure, in matters such as disclosure. There are a lot of issues that could be determined in advance.
It would be logical, in many ways, to ask, why couldn't the trial judge do that in advance? Well, the problem is--and it probably seems hard to understand--it presents very significant logistical problems, because sometimes we would like to make the rulings very early in advance. That particular judge would probably go on and be engaged in another trial, and then when the trial is ready to begin, he or she may well be in another trial.
We see no disadvantage in having any judge being permitted to make the rulings, and many advantages. Not only that, it may as well allow the courts to utilize better some of the expertise that exists on the courts. There are judges who are very expert, for instance, in matters of wiretap.
So that is an amendment. It could be a very simple amendment. It could simply say that “judge” includes any judge of that court.
There is another amendment we thought would be useful. There are provisions in the Criminal Code now where affidavit evidence can be used for matters that are not highly contentious or particularly controversial: ownership of property, for instance, in a theft case; also a certificate that money is counterfeit; a certificate that the breathalyzer gave a certain reading; or bank records or business records, which can go in under the Canada Evidence Act. We suggest there should be a review and an exploration of other areas where the evidence could be used by affidavit, always with the caveat, of course, that if the opposing side—that would be the defence—wished to cross-examine the affiant, the person who produced the affidavit, they could, with leave of the court, cross-examine them.
The only other area where we would recommend a review is in section 38 of the Canada Evidence Act. That's the one that deals with national security issues. As you know, the administration of law is a provincial responsibility, and criminal trials are all held in the provincial courts or the superior courts of the province. What happens now, as you probably know, is that if an issue of national security comes up, section 38 of the Canada Evidence Act comes into play and that issue must be determined by the federal court. It results in going from one court to another. In addition to that, not only the delay that may result—and I say “may”, and sometimes does.... Those rulings are appealable, unlike ordinary trial rulings, which are not appealable until the conclusion of the case.
So in our report we also suggest that the federal, provincial, and territorial ministers of justice look at this issue to try to come up with a more efficient and effective way of conducting trials.
Those, I think, are my only comments on specific Criminal Code or Evidence Act recommendations.
Former Chief Justice of the Ontario Superior Court, As an Individual
I also want to add one more thing.
Although there was a time when I might have known a little bit about criminal law, I've been out of the court now for more than six years, and I am not up to date on current amendments to the code. So I will plead my ignorance at the outset. I also plead my ignorance and my apology that I do not speak Canada's other official language, and my paternal language.
Conservative
The Chair Conservative Ed Fast
Thank you.
The reason we did ask you to appear today is simply because of your experience in large and complex criminal cases. And there are a number of members of this committee who wanted to draw on that experience. So we're certainly looking forward to your evidence.
Former Chief Justice of the Ontario Superior Court, As an Individual
Thank you.
Conservative
The Chair Conservative Ed Fast
We will now move to questions. I'm seeking agreement of the members here that we go with five-minute rounds rather than seven-minute rounds, just so that we can get more questions in. Accepted?
Conservative
The Chair Conservative Ed Fast
Perhaps I could very quickly also identify who is at the table with me, Mr. LeSage. We have Brian Murphy and Alexandra Mendes, representing the Liberal Party. We have Serge Ménard as well as Marc Lemay, representing the Bloc Québécois. We have Joe Comartin, from the NDP. On the government side, we have Bob Dechert, Rick Norlock, Stephen Woodworth, Brent Rathgeber, and Daniel Petit.
Mr. Murphy, you have five minutes.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Thank you.
Mr. LeSage, if you insist—or Justice LeSage--as a lawyer for some 20 years and a member of the Ontario and New Brunswick bars for all those years, it's my great pleasure to welcome you here too. We've had other retired judges before committees—two in my four years here: the former chief justice in Alberta, Mr. Wachowich, and the late Antonio Lamer. It's invaluable. So I want to compliment you and thank you for taking the time to do this.
I have two rather precise questions. One deals with disclosure and the other with representation, and they relate to criminal trials, because those two aspects have an effect on large or mega-trials and organized crime trials.
First, on disclosure, is it your opinion that we need to relax the requirements? We're looking here for a way maybe not of codifying it in the Criminal Code, but at least of recommending that it be a best practice or a policy or a protocol that disclosure be made—perhaps beyond election or plea, and somewhere along the way—so that we don't arrive at the courtroom steps and have the inevitable plea for an adjournment when everything is geared up, with costs, delays, etc. That's the first question.
The second question deals with representation. Many times lawyers arrive, either by accident or deliberately, not prepared or else not capable frankly of handling the cases they've either been chosen to do or have chosen to do. This comes from the idea that perhaps in some cases some lawyers are beyond their abilities. We know this is in Parliament, being swamped by things beyond our abilities quite often, and every day it's on the news.
In such a case, do you think a judge would have the right or should intervene to say, as in an amicus curiae type of situation, thaty he thinks this litigating lawyer with two years' experience should not be handling a triple homicide case with three tons of disclosure documentation? Would that be out of place for a judge to say?
Former Chief Justice of the Ontario Superior Court, As an Individual
Let me respond in the reverse order, responding to your last question first.
Professor Code and I dealt with this issue in our report. We both believe that the judge presiding has the authority to tell a lawyer that they are not capable of conducting the trial and must get another person either with them to carry the trial or to take over the case. There are two cases we are familiar with in which that has happened, and probably many more we're not familiar with. Both cases were murder cases, and superior court judges in Ontario simply told the lawyers, after some pre-hearing motions, that they were not capable, did not have the experience to conduct the trial, and had to get a senior, experienced lawyer either with them or to take it over.
Both of those two cases went to appeal. I've forgotten specifically whether that was an issue on appeal. It was not a major issue on the appeal, if it was one. But there was no comment. They brought in senior lawyers in both cases.
Professor Code and I both believe that there is the authority to do that.
There is a little more difficult issue, and that is one in which the accused insist on representing themselves and are conducting in a way that is not only totally disruptive of the trial but oftentimes very harmful to their own case. We suggest—actually, this is another recommendation in our report—that the Criminal Code perhaps be amended to take into account that case.
On the first situation, that of an inadequate lawyer, we believe the judge has the right to direct them to get another. If they refuse, I think you can simply say, “I'm not going to continue the trial with you”.
In the more difficult one, and we saw a bit of this in that case in Montreal a few years back—the professor from Concordia who represented himself and was so disruptive throughout the trial—we believe there should be a provision in the code to permit the judge to say that you cannot continue representing yourself, and to even go beyond an amicus curiae. We believe the judge has the right to appoint an amicus curiae, but we're thinking of a situation wherein you become more than an amicus curiae: you become the counsel.
Former Chief Justice of the Ontario Superior Court, As an Individual
I'm sorry for the long answer.
Conservative
The Chair Conservative Ed Fast
No, that's fine. Thank you.
We'll move on to Monsieur Ménard for five minutes.
Former Chief Justice of the Ontario Superior Court, As an Individual
Oh, I'm sorry; I didn't respond to disclosure.
Let me say simply that I heard comments earlier from the Public Prosecution Service with which I agree. We believe, and I think the time is coming, that it will be electronic disclosure, which makes it much easier. Once you have electronic recording of information—and you usually have that on the major organized crime cases—then you have electronic disclosure by simply handing over a hard drive.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Welcome, Your Honour.
We would have liked to chat with you for much longer. Unfortunately, we will have to hold off on many of the questions that we would have wanted to ask you.
I practiced criminal law for 25 years before getting into politics, in 1993. I practiced in Montreal and I knew Judge Lamer very well. I had for him, first when he was a lawyer, and then when he became a judge, immense respect.
As a young lawyer, I was already scandalized by the number of witnesses that we pointlessly subpoenaed before the court. In drug cases, for example, to establish that drugs were found in the accused's residence, we had the caretaker appear as a witness, etc. At the time, I made a suggestion, but it is so long ago that I no longer remember in what journal it was published. The idea was to create a process consisting in issuing a notice to the other party in order for it to recognize those facts which are never contested, for example the fact the accused lives at the address where the drugs were found. There was also continuity in the possession of an article that the police officer eventually handed over to a laboratory and that was then returned. As a matter of fact, in English, we had called that a notice to admit. As far as I know, this is in place nowhere. We nevertheless continue to call witnesses to provide evidence that is purely technical in nature. However, in their minds, that completely discredits the administration of justice.
Former Chief Justice of the Ontario Superior Court, As an Individual
I agree that it does not help the image of justice, and yes, I think it hurts it. Whether it's to the extent of disrepute.... I'm not sure I'd go that far, but it certainly is harmful to it.
I think yours is a very interesting suggestion, and it's one that I think should be considered and explored. I have to tell you, I'm a traditionalist. As is apparent to you, I'm old, and it's hard for someone my age to change views and look at new ways of doing things, but I think your suggestion is an excellent one that should be considered.
You're absolutely right: we spend too much time on basic, fundamental matters that at the end of the day are not in dispute. We try to overcome this with very aggressive case management prior to trial. An experienced, persuasive judge can often accomplish it in pre-hearings, but I think it's an area that's well worth examining for legislative change.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
That certainly was the case of Judge Lamer. I handled a trial with jury before him that lasted less than half a day, including deliberations. However, it was a very clear case. It is surprising that this idea, put forward more than 20 years ago — when I was a young lawyer —, has never been put into practice. Is it because if one writes in French, one is less read than if one writes in English? In any event, you are not aware of cases that proceeded in this way.
Often, when I think of the evolution of criminal law since the Stinchcombe case and since the Charter, I seriously ask myself what would happen if we were charged with helping an emerging country build a criminal law system. I wonder if there would be many countries with the means to afford this type of complex process that we have developed over the last 20 years. We talked earlier of the fact that Haiti wanted to set up a system. Would we be successful in selling these disclosure of evidence procedures, these processes and these motions that precede them to countries that are not as rich as ours?
Former Chief Justice of the Ontario Superior Court, As an Individual
That is a very good question. I suspect that some of it, if not maybe much of it, would not or could not be available to them.
Our system developed over a long period. I became a crown attorney about 47 years ago, and when I first became a crown attorney, we disclosed nothing--nothing. The indictment or the information was there, and that was it. Gradually that changed, and it was a change for the better. There's no question about it.
Sure, we're having what I suppose are hard to call growing pains, because Stinchcombe was 1990, I believe, but I don't think there'd be as many problems with Stinchcombe today as there were maybe even five or ten years ago. There has to be some control in determining relevance, and the public prosecution people earlier mentioned that, but if you think it's relevant, then produce it.
The big problem is that it's not just the production, but the fact that investigations today are so much more sophisticated than they were in my day. I prosecuted dozens of murder trials, none of which ever went more than a week, but the evidence was simple and straightforward. There'd be little, if any, forensic evidence, other than what came from the pathologist. There just wasn't all the investigative material produced then that is produced today.