Justice Committee on April 15th, 2010

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

Let me begin again.

Your Honour, we criminal lawyers much appreciate experienced judges who know how to guide and direct debate towards the central issue, especially in criminal law. My colleague, Mr. Ménard, talked about what I wanted to underscore. We could perhaps eliminate certain things.

I would like to hear your thoughts with regard to affidavits relating to non-contentious issues. Generally, we deal with them by admission. Your recommendations go a little further. For example, with regard to precise issues, the ownership of the house in a criminal case, for example, could be established via affidavit. Is that correct?

[Patrick LeSage]

Yes. That's the owner of property, yes.

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

There are other similar issues. For example, a document from the Société de l'assurance automobile du Québec regarding the ownership of a vehicle could, in your view, be dealt with via affidavit.

[Patrick LeSage]

Yes, if it went in under the business records section of the Evidence Act.

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

There is one thing I did not fully understand. In one of your recommendations, you talk about judges from the same jurisdiction. In your view, what is the problem? Indeed, you talked of judges from the same court. Did I misunderstand? Could you come back to this point relating to the judges of the jurisdiction where the trial is taking place?

[Patrick LeSage]

We made a couple of recommendations about judges, and one of them refers somewhat to the earlier question by Mr. Murphy, that the administrative judge should assign very experienced judges to do the pre-hearing conferences. That's one of the things we say about judges.

When it comes to section 645 of the Criminal Code, the section requires that the judge who is going to be conducting the trial must be the one who hears and determines all of the motions, which we refer to today as pre-trial motions. We are recommending that it can be any judge of that court. If the trial is going to be in the la Cour du Québec or the provincial court of Ontario, then it could be any judge in that court who hears the pre-trial motions and makes rulings on them. If it's in the superior court, then any superior court judge could make those pre-trial rulings.

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

Instead of it being the trial judge or the judge who will be hearing the case, it could be any other judge of that jurisdiction.

[Patrick LeSage]

Yes.

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

That could be accomplished very quickly through an amendment to the Criminal Code.

[Patrick LeSage]

Yes, it's a very simple amendment—

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

Therefore, if...

[Patrick LeSage]

—to section 645.

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

If I understand correctly, Judge LeSage, if, for example, during the course of a trial, there is a motion to exclude a piece of evidence, one could call upon a judge from the same court without necessarily having to wait for the judge conducting the trial.

[Patrick LeSage]

Exactly. C'est correct.

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

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll have one last question by Mr. Rathgeber, and then a very brief in camera discussion to determine who our witnesses are going to be on Tuesday. I think we've had confirmation from one and we need approval of another.

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you, Mr. Justice LeSage, for your attendance here today.

I want to pick up on a line of questioning commenced by my friend Mr. Murphy regarding the competency of judges and experience in certain matters.

I understand that since your retirement from the bench you've been with Gowlings, a major Canadian law firm. Certainly the major law firms are very specialized in terms of their litigation departments, their corporate commercial departments, etc. Do you see it as a natural evolution on the bench that judges will become more and more specialized? Certainly in my province of Alberta and other provinces, we've created drug treatment courts. Of course we have family and youth divisions in the provincial courts. Is this the natural evolution of the bench, in your view?

[Patrick LeSage]

I believe it is. As I say, I still have some slight reservations, because I'm old and set in my ways, but I think that really is the evolution.

Let me just say this one thing about that. I probably sat 25% of my time doing family law when I was a judge, and if there were any area of adjudication that I found most wearing, it was family law. We have a unified family court, and I therefore think that judges who are there should have an opportunity occasionally to go out and do other work. It's like a refresher or a sabbatical to do something else. I think judges in any specialized area should, on occasion, do other things.

But the reality is that in a big city like Toronto, we have specialized judges, to a very considerable extent, including in the areas you mentioned. We are very similar to Alberta.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Getting back to solicitor disclosure, I was a civil litigator for a couple of years, as was my friend Mr. Murphy, and we believe there are some lessons to be learned from civil procedure with respect to pre-trial applications and interlocutory applications, sworn affidavits on production, to limit the disputes at trial. It seems to work very well in the civil process. I am curious, in the 60 seconds we have left, if you think there are lessons to be learned from the civil process and what one or two of those might be.

[Patrick LeSage]

I think you've touched on them. I hadn't thought before about something like the request to admit, but it does make sense, and it is something that should be explored and some work should be done on it. Maybe there has been, but, yes, we need to update our process. We need to change a number of things to update it.

There's Lepp, from Alberta; I'm not sure, I've forgotten if he's a judge or a deputy attorney general, but I was at a conference recently where he had some really interesting ideas about fundamental changes. There is no harm in looking at fundamental change.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. LeSage, for appearing by teleconference.

Before you go, I have one last question. Concerning the report you and Mr. Code prepared in 2008, was there ever a response from the provincial government, more specifically from the attorney general's office?

[Patrick LeSage]

Yes, they have implemented most of the things, if not all the things. Certainly they have implemented most of the things we recommended. I am pleased to say that the legal aid system has also, to some extent, implemented. The Law Society has implemented recommendations, but concerning the attorney general specifically, yes, they have.

[The Chair, Conservative, Ed Fast]

All right, thank you for that information.

[Patrick LeSage]

Thank you very much.

[The Chair, Conservative, Ed Fast]

Yes, Monsieur Ménard.