First of all, thank you very much to the members of the committee for indulging me on short notice.
I am the president of the Association of Justice Counsel, which represents the working interests of some 2,700 federal lawyers and prosecutors who work at the Department of Justice and the Public Prosecution Service of Canada, as well as other federal agencies and tribunals across the country.
I'm very pleased to come to this body today to speak to you about Bill C-2. I would commend the committee for turning its quick attention to this bill before Parliament adjourns for the summer. There have been some references to recent cases in Quebec and other jurisdicitions that have raised some concerns about the state of the criminal justice system, and in particular, whether or not the criminal justice system is properly resourced. I think as a general proposition this bill represents a very strong, constructive step in the right direction to address those concerns. With that, I think we would be happy to join in the chorus of offering support for this legislation.
The current state of the criminal justice system is at the same time stressed, and I think that needs to be said. Within the last five years a number of judges, including Mr. Justice Michael Moldaver of the Ontario Court of Appeal, have put it at no less than a state of crisis. Again, I think this bill is a step in the right direction to address that state of crisis.
The causes of that crisis have been attributed to three broad factors. One is what we call a deluge of pre-trial charter applications. There have been significant changes in the rules of evidence and law, and there have been many changes to the Criminal Code, which have seen new offences created, in particular involving criminal conspiracies as well as terrorism. As we have brought in the prohibited zone of conduct, investigations have become more sophisticated, complex, and time-consuming, and we have seen more charges laid. We've seen more contested trials laid as we test the outer boundaries of these new laws.
It should come as no surprise to the members of this committee that when you study the reports for plans and priorities from the most relevant departments to your work—the PPSC, the Department of Justice—you see those caseloads and those files going right off the chart. The PPSC published just last week that it had over 75,000 files in the hopper. Just to put this into the context of the bill you're considering today, in real terms only about 1% or so of all those files were related to mega-trials. But on the flip side, we spent over one-fifth of our dedicated resources on those mega-trials.
It goes to show you that mega-trials absorb a disproportionate amount of our time and energy. Again, this bill attempts to address that. It attempts to address that by setting up a framework for very proactive case management. It has been documented by numerous reports from committees, which have included very venerable members of the judiciary and the bars, that active case management is a very effective way to address backlog and to address the chronic delays that plague our system. This bill addresses that as well.
We have three very narrow observations we would like to offer this committee for its consideration. The first has to do with the presumptively binding provisions. There are three sections in the bill effectively requiring that certain rulings, either from a case management trial judge or a trial judge proper, be binding, except where the interests of justice require reconsideration. On a very plain reading, that section is obviously intended to discourage parties in a mega-trial from bringing frivolous motions.
The reality is, save and except for the one enumerated ground of the coming to light of fresh evidence—the introduction of evidence that wasn't previously available—there are no other enumerated grounds in the text of the bill that would give guidance to the case management judge as to when the interests of justice actually call for a reconsideration of a prior ruling. So in the end you may have a set of binding rulings that are a push in terms of workload and whittling down the actual number of motions that are brought because this residual, traditional discretion, which is proper, confers a very broad category of factors that can justify reconsidering prior rulings.
The second observation we would offer relates to a point that was raised earlier when the Minister of Justice was offering his testimony, and that is, when it is appropriate to convene a case management joint hearing. That could result in the bifurcation of some proceedings. I believe the CBA has made some comments about how we can address the situation where we have a large trial involving adults and youths, and the Supreme Court of Canada has spoken very definitively and very recently on that. There is no way around it. You could have a single case management judge convene a case management hearing or conference, have all the parties there, and then close the hearing and reconstitute it as a youth court justice hearing.
I'm getting the signal from the chair. I'm going to wrap this up very quickly.
In effect, you could actually realize some efficiency there, but there are other areas where bifurcation is inevitable--for example, when we are talking about managing disclosure involving the assertion of national security privilege and the Canada Evidence Act, which presumptively takes it to a different court. That's another area where in mega-trials, particularly those involving terrorism or criminal organizations, we will run into a fork in the road.
The third and final comment, Mr. Chair, I will make very quickly. This is a tactical amendment that we would suggest, and I haven't had the benefit of seeing the CBA's submissions. It seems to us, on our reading of the text of the bill, that the rights of appeal have not been clarified. What we would suggest is that, in order to tie up some interpretive loose ends, section 673 of the Criminal Code, which is the definitions portion under “Appeals—Indictable Offences”, be amended to read as follows:
“trial court” means the court by which an accused was tried and includes a judge or a provincial court judge acting under Part XIX
--and here is the operative part—
or a case management judge who exercises his or her powers as a trial judge under subsection 551.3(1) under Part XVIII.1.
I stand to be corrected on the Roman numerals.
Those are my submissions.
