Justice Committee on June 21st, 2011

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

In that particular process, obviously the numbers would remain confidential for the case management judge or--

[Rob Nicholson, Conservative, Niagara Falls, ON]

This will be something that will be worked out, of course, with the chief judge or chief justice in terms of the actual mechanics. But I think it's important to provide that provision so that you reduce the possibility of someone taking action against a particular juror.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Absolutely.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Mr. Hsu.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Thank you, Mr. Chair.

Minister, I am substituting today for Mr. Cotler, who is away on a trip, as you know.

You might also know that he has some concerns about this legislation. One of them is what Mr. Comartin brought up: the lack of a definition of “mega-trial”.

Not being a lawyer myself, I'm looking at the Canadian Bar Association's document and their suggested amendments, which suggest some language. They suggest amending clause 4 by adding a little phrase:

...a case management judge will be assigned if the judge hearing the application believes it necessary for the proper administration of justice, having regard to the length of the trial, the complexity of the issues and any other factor the judge deems relevant to have a case management judge assigned.

This is a suggested criterion.

If this committee decided to amend the legislation and just added that little clause, is there a danger in doing that? It's just to provide some guidance and maybe reduce the chance that we have to come back and put that in if--

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's a fair comment. I look very carefully at any suggestion that comes from Mr. Cotler.

The reason why it's phrased as it is there is that it's in direct response to the Code-LeSage report, which recommended against putting in a statutory or, as they termed it, “monolithic definition” of what may constitute a mega-trial. They said that for the proper administration of justice it's necessary to designate this; they would have confidence in the chief judge or the chief justice.

Again, when we were putting these together, we could have gone against what they were saying, but it seemed to me to make sense to not narrow it down. As you pointed out, in my response to Mr. Comartin I said that sometimes it's very difficult. Just because you have more than one accused, it doesn't mean it's going to be overly complex or that it could come into what we refer to as a mega-trial.

But again, I'd rather have this decided on a case-by-case basis. It's open, of course, to defence counsel, the crown, or the judge himself or herself to make that application, so we thought we'd go with what the Code-LeSage report says and--

[Ted Hsu, Liberal, Kingston and the Islands, ON]

So you don't think it's necessary to reference, say, simply the length, or something general like that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, you can have something that starts off with a large number of accused and that in some instances might collapse very quickly. I won't go into examples, but again, when we had a look at what the Code-LeSage report says, I said that it seemed to make sense to not put in, in their terms, “a monolithic definition” of what a mega-trial is. I have confidence in the administration of justice that they'll make that decision on a case-by-case basis--

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Do you think some defence counsels will try to slow things down by asking for the appointment of a case management judge and extra jurors?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think the vast majority of people who are involved are responsible.

Are you saying that a defence lawyer would ask for it to be designated as a mega-trial? I think that might expedite the process, but again it's a decision that would be considered.

I think it's in everyone's interest to have an expedited and fair trial--and all these measures. So I don't think somebody would use this to slow it down. It seems to me the exact opposite, and they might want to have the trial moved forward.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

So I guess the conclusion is you believe that trial judges will use their good judgment to try to reduce the length of trials and the overall cost of our criminal justice system, and they'll probably succeed.

[Rob Nicholson, Conservative, Niagara Falls, ON]

This is a step in that direction. One time I was here before the committee and was asked, “How much is it going to cost?” I said, “Well, my belief is this will save money”.

Streamlining the process and not clogging up our judicial system is a step in the right direction in protecting and saving resources. We get this identified on a fairly regular basis. Have a look at comments made by many people involved with the criminal justice system. Bills like this are steps in responding to the challenges that have been identified--specifically with respect to Code-LeSage and the Air India commission--and with what provincial and territorial attorneys general have raised with me. So this is a response to that.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

If this legislation were delayed until September or October—and this goes back to Mr. Comartin's question—how many trials do you think might be affected?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's hard to say. I'm not in a position to make a guess on that. These things are generally dealt with by provincial resources, provincial crown attorneys. But if it's a good idea—and again I can tell you I've had overwhelming support from my colleagues across Canada, and good response—I say, let's get it passed; it makes sense. This will be welcomed by all those involved with the legal process.

[The Chair, Conservative, Dave MacKenzie]

Your time is up. We'll go back to the Conservative side.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

Thank you, Minister, for your attendance here today.

I just want to say how happy I am that the House has directed this bill to committee to be dealt with expeditiously. I think that Canadians across the country were very dismayed by events at a recent mega-trial. This bill responds to that, and I think Canadians want to see it passed.

I notice that in the Canadian Bar Association submission there's an interesting comment about rulings after mistrial. The bill before us gives the judge who hears the second trial discretion to allow the evidentiary rulings that were made previously to continue.

I find it ironic at the very least--having sat on this committee for two years, and having heard the Canadian Bar Association tell me over and over again that they are in favour of judicial discretion--that this is a case where they seem to not be in favour of giving a judge that discretion. Instead they are suggesting that if there were a mistrial--even if evidentiary issues were fully litigated with the same crown and the same defence, and decided--they would not want to give the judge hearing the second or ultimate trial the discretion to accept those evidentiary rulings. Instead they would want to give everybody the chance to go back and have a second bite at the apple, and allow them to try to argue that the initial ruling was wrongly decided.

I don't know what the implications of that would be in slowing down these mega-trials, but I'd be grateful for your comments on why the bill includes that discretion for a judge.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, in putting this bill together we heard from a number of different sources that people everywhere want to have a fair but expeditious hearing of the issues. It seems to me that if that decision has been made and it's perfectly applicable to the instance, it's appropriate for that to continue. But that could be challenged. We don't close the door for individuals, but we direct the judges to make that decision as they deem appropriate. So yes, we give that discretion to the judiciary, and I think it will work well.

[The Chair, Conservative, Dave MacKenzie]

We're at 9:40. That was the time we had been allotted for the minister to be here.

[Rob Nicholson, Conservative, Niagara Falls, ON]

If there's another question from this side, I don't mind waiting another minute or so.

[The Chair, Conservative, Dave MacKenzie]

We still have two minutes left on the Conservative side. We'll finish that off, and then we'll come back.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you for that, Mr. Chair.

I have a couple of questions. The first, of course, is in relation to the public response, especially in Quebec, relating to this. Has there been a public response--and not just one from the Canadian Bar Association and other trial associations across the country--to the department or to the minister's office?

[Rob Nicholson, Conservative, Niagara Falls, ON]

My understanding is that the Attorney General of Quebec, like attorneys general across Canada, is supportive of moving forward on this. As I said, I've dealt with a number of attorneys general in a number of the provinces here, and there has been a consensus in the meetings I've had with them over the last couple of years that responding to issues like mega-trials is something they're very supportive of. So it actually makes our job at the federal level a little easier when we can bring forward legislation that is widely accepted and supported, and rightly so. We write the legislation at the federal level, but for the most part it is administered at the provincial level using provincial resources, provincial crown attorneys, and many times provincial judges. I think it's important to listen to what they have to say and do what we can to respond to their concerns.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Obviously the provinces were consulted.

The other question I have is in relation to the change-of-venue application. I notice that it was identified as something that was going to be changed. What's the difference between a normal change-of-venue application under the common law or under the Criminal Code and that for this new mega-trial? Is there any difference?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'll ask Ms. Desaulniers to answer that.