Evidence of meeting #2 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was trial.
A recording is available from Parliament.
9:45 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
Thank you, Minister, for your presentation.
I'm assuming the judges have been part of the consultative process and they're in favour of these types of administrative changes.
June 21st, 2011 / 9:45 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Many of these recommendations stem from a report prepared by the Steering Committee on Justice Efficiencies and Access to the Justice System. Six representatives from the bench sit on this committee. As well, I can say that the former version of this bill, Bill C-53, was presented in January of this year to the National Criminal Justice Symposium, where 80 executive members from different portions of the criminal justice system were invited, including representatives from the bench, and the symposium publicly endorsed Bill C-53.
9:50 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I just have a couple of mechanical, technical questions.
Who makes the decision whether or not a specific trial will qualify as a “mega-trial” and therefore be subject to this case management system? Is it the case management justice or the—
9:50 a.m.
Conservative
9:50 a.m.
Conservative
9:50 a.m.
Conservative
9:50 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I'm assuming that the case management judge is thereafter disqualified from being the trier of fact in that specific case.
9:50 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
That's not specifically provided. I can tell you, however, from experience that chief justices or chief judges usually don't conduct large and complex cases because they're otherwise called by their administrative duties and other duties. That's usually left for their colleagues.
9:50 a.m.
Conservative
9:50 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Minister.
I wonder if some officials would stay as we go through the clause-by-clause.
9:50 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Minister.
Marco Mendicino, president of the Association of Justice Counsel, appeared this morning. He'd like to have five minutes of the committee's time, but for him to appear it would have to be with the consent of the committee.
9:50 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Can we possibly hold anyone to five minutes? I would like to ensure that we get through clause-by-clause this morning. If the individual really thinks five minutes will do the trick, then I have no objection to it.
9:50 a.m.
Conservative
The Chair Conservative Dave MacKenzie
We have consent. You're held to five minutes. The clock has started.
9:50 a.m.
Marco Mendicino President, Association of Justice Counsel
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.
10 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
I've given you about 50% over that five minutes. I do apologize to Mr. Woodworth, but it was important to hear Mr. Mendicino's comments.
That ends this portion. We will now go to clause-by-clause consideration.
10 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
On a point of order.... I am not sure this is a point of order, but I'm wondering if the department, unless anybody has an objection to it, would comment on the proposed suggestion by the witness we just heard in relation to the definition section of this section of the Criminal Code.
10 a.m.
Conservative
The Chair Conservative Dave MacKenzie
We are in the hands of the committee. We have to get through the clause-by-clause—
10 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
The initial problem is that section 673 is not dealt with in the bill—
10 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
That's why I am suggesting that the department, if they do have a question in relation to that, comment.
10 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
If I may, I can....
10 a.m.
Liberal
Ted Hsu Liberal Kingston and the Islands, ON
Are we finished with the previous...? I wanted to speak later, when we were finished with that.
