Justice Committee on June 21st, 2011

[The Chair, Conservative, Dave MacKenzie]

I call the second meeting of the justice committee of the 41st Parliament to order and welcome the Minister of Justice, Minister Nicholson, appearing before us today.

For the committee, this is a bit different, in that the bill got referred to us before the committee was constituted, as happened a few minutes ago, but we're pleased to be able to work with all sides of the House to move this along.

Minister Nicholson, if you would like to make an opening address to us, we would be more than happy.

My understanding is the minister is only here until 9:40.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

As far as I know—that's what I've been told, Mr. Chairman.

Thank you very much, Mr. Chairman. I am pleased to be here with Anouk Desaulniers, senior counsel with the Department of Justice. Those of you who have been on the committee know Catherine Kane, who is senior counsel, criminal law policy section of the Department of Justice.

This is your second committee meeting already. Yours is going to be a busy committee, Mr. Chair. Congratulations on your election to this role.

And my best wishes and congratulations to everyone who is serving on this committee.

I am pleased to appear before this committee on the Fair and Efficient Criminal Trials Act, also known as the mega-trials bill. Mega-trials are those that involve serious major crimes, such as those that involve organized crime, gang-related activity, white-collar crime, and of course terrorism.

Due to the magnitude and complexity of the evidence, the numerous charges against multiple accused, and the need to call sometimes many witnesses, mega-trials can take up a lot of court time and generate excessive delays, increasing the risk of mistrials. Mega-trials may be hard to avoid, but the way they function can and must be improved for the benefit of all Canadians.

The amendments included in this legislation pack are aimed at ensuring the criminal justice system handles these cases more efficiently by providing tools to strengthen case management, reduce the duplication of processes, and improve criminal procedure.

First, to strengthen case management, we are proposing the appointment of a case management judge who would be specifically empowered to impose deadlines on parties as well as to encourage them to narrow the issues and make admissions and reach agreements.

Stakeholders, as well as the Air India commission, agree that stronger judicial control of the proceedings, particularly with respect to the preliminary stages of a trial, is extremely important to ensure that long, complex cases are concluded in a timely manner. The case management judge would also be empowered to decide preliminary issues such as admissibility of evidence, charter, and disclosure motions. Currently, as you know, only the trial judge may rule on these issues.

Second, the bill would make processes more efficient by allowing preliminary motions in related but separate cases that involve similar evidence to be heard jointly. As well, if a case ends in a mistrial and a new trial is ordered, decisions on certain preliminary issues would continue to bind the parties unless the court were satisfied that this would not be in the interests of justice.

Finally, over the last decade the time required to hear criminal trials has steadily increased, especially in those cases we refer to as mega-trials. This can affect the jury's ability to render a verdict, since it is not uncommon for jurors to be discharged in the course of a long trial. In order to improve this process, the bill would increase the number of jurors hearing the evidence from 12 to a maximum of 14, where circumstances warrant. This proposal would ensure that if jurors were discharged throughout the course of the proceedings, the jury would not be reduced below the Criminal Code minimum requirement of 10 jurors, and therefore a mistrial would not be ordered.

If, at the time of deliberations, more than 12 jurors remain, this number would be pared down to 12 by a random selection process.

The bill includes provisions that would have jurors called by their number in open court and make calling them by their name the exception. This would ensure the jurors participate in the criminal trial process without fear of intimidation, which may be of particular concern in organized crime or terrorist cases.

Also, where circumstances warrant, access to jurors cards or lists could be limited by the court.

Finally, I would like to reiterate that the measures outlined in this legislation would also help to streamline the prosecution of terrorism offences, which was one of the recommendations of the Air India commission.

The amendments outlined in our bill would help streamline the procedure so that justice would be delivered swiftly and our streets and communities would be safer. I encourage you to support the bill, which would make a significant improvement in the efficiency and the effectiveness of our criminal justice system.

Thank you, Mr. Chairman. Those are my comments.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister.

Now, as we just passed a few minutes ago, we do have a rotation.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Minister, for being here--although I was surprised with your opening comments about the fact that you seem to be suggesting you only do what you're told. That has not been my experience with you, sir. You tend to be a bit more independent than that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

No, no, that's right; and I departed from that for once.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

One issue that has been raised--I hope I'm not stealing the thunder from the Liberals here--has been the issue of the overuse of the case management judge in the sense of not having any criteria or clear definition of what a mega-trial is.

I have to say at the outset that my own inclination is to accept that the senior judges in the regions would be the best to determine this, but I know that the Canadian Bar Association is concerned about an overreach on the use of this.

I wonder if you have any comments about that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think this will generally be welcomed. You're quite correct that it will be the chief judge or the chief justice who will make the decision on whether many of these provisions would kick in with respect to mega-trials, but the application could be made by the defence counsel. It could be made by the crown. Or the judge himself or herself could make this application in a decision.

One of the points that I think everyone agrees on is that it's in everyone's interest to help expedite these matters. We want people to have a trial within a reasonable period of time. Everyone has an interest in making the criminal justice system work. Again, having that decision made on an application I think is a good one.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Does the department know how many mega-trials are going on in Canada at any given time?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I suppose it goes back to your definition. Is it a mega-trial when you have three people, or is it thirty people? I guess we all know it when we see it.

This is one of the issues raised with me when I get together with my provincial and territorial counterparts with regard to the challenges they've had in the last couple of years with these, so I'm pleased that they are supportive of moving forward. Of course, you saw the recommendations in the Air India commission as well as the Code-LeSage report, which specifically dealt with these issues.

So it will be well received.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I've not identified any opposition to this bill overall. Has the department?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't know of any. I mean, sometimes questions are raised, and I'm prepared and we're prepared to answer those questions.

I think you have the brief by the CBA, and I think they're generally supportive of doing these.

Sometimes we may get a question such as “Why not just have the trial judge do everything?” There are some logistical challenges with having one individual see this through from beginning to end, and we're trying to address these. But I've received basically nothing but good feedback on this.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Those are all the questions I have.

[The Chair, Conservative, Dave MacKenzie]

Okay.

From the Conservative side, Mr. Goguen, please.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Minister, the CBA's position is basically quite favourable. They've identified I guess a few gaps in definitions. Is it your sense that the evolving case law will be sufficient to fill those gaps and that the procedures that will flow from that will effectively take care of any of those gaps?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm not sure if I'd call them gaps. My understanding of the brief is that they're looking for clarification, or they're just wondering how in effect this will work.

I can say that this has been carefully and well thought out. As I say, I would point to a couple of commission reports in which this is specifically raised. It will be well received by those in the business of prosecuting individuals and those in the business of defending them or those in the business of adjudicating on them. It will be well received.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

You used a minute.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Minister, you mentioned the Air India commission. I was wondering if you could just elaborate on how this responds to some of the recommendations in the Air India commission.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It certainly goes beyond what was the specific focus of the Air India commission. The Air India commission report was focused on terrorism and terrorist activities. As you can see, this bill deals not just with the challenges in a terrorist trial but goes beyond that to all aspects of organized crime, whether we label that terrorism or not.

The provisions of this bill are consistent with the challenges that have been identified in that report--that is, dealing with cases of this magnitude and this complexity. Even the provisions with respect to increasing the number of jurors; you get a long, complex case, and many times it's very difficult for an individual juror to continue for any number of reasons. Even the provisions with respect to protecting the identity of the witnesses; this is something I am very supportive of, of course. You get these cases where the individuals might be threatened, so we take this extra step to try to protect their identity and to support them.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you.

[An hon. member]

How much time do we have left, Mr. Chair? We're sharing the time.

[The Chair, Conservative, Dave MacKenzie]

You still have two minutes.

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

Thank you.

Thank you, Mr. Minister. I have to tell you what a thrill it is to be on this committee and to work under your tutelage on this particular file, especially because, I understand, it's very well received.

I have a couple of things. You mentioned that there will be 14 jurors. Is there any opportunity for the case management judge in particular circumstances to have more than 14 jurors?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's limited to 14. The way it would work is that at the conclusion of the trial they would draw lots or have some sort of random selection among them to decide who would be the 12. The challenge we have, of course, is that the Criminal Code says that if you slip below 10, you're looking at a mistrial. So what we're doing is having these extra ones there. We hope to preclude the possibility of a mistrial, which of course is in no one's interest, and certainly not in the interest of the administration of justice.

Again, ultimately we maintain the long-standing tradition in the common law of having 12 jurors decide criminal trials. We maintain that, but we have put this extra cushion, if you will, in there to make sure that we have sufficient jurors to make the decision.

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

You also mentioned, Minister, that the jurors are going to be identified by numbers instead of names.