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House of Commons Hansard #10 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was air.

Topics

Fair and Efficient Criminal Trials ActGovernment Orders

12:40 p.m.

NDP

Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, that was an excellent speech on the part of the member, but there has actually been another case where the official opposition has promoted solutions. Far from the government getting agreement from the NDP and the member for Windsor—Tecumseh, it is actually the opposite.

This is a case where the official opposition brought forward solutions to a problem that many Canadians know about and the government has chosen to agree, for which we thank it, but that was the intent of my question. Could the member actually talk about the fact that this is an NDP-originated idea and solution that is being brought forward? Some credit should go to the government because it is accepting the practical solutions that the NDP, as the official opposition, brought forward in the House.

Fair and Efficient Criminal Trials ActGovernment Orders

12:40 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, our government first introduced this bill on November 2, 2010. At that time, we had six bills on the order paper and it was difficult to get any legislation passed in a minority Parliament. By the time the election was called, the Minister of Justice had 14 bills on the order paper.

We welcome this new co-operation by the opposition members with respect to our legislative agenda and we look forward to working with all members of the opposition with respect to these initiatives.

Fair and Efficient Criminal Trials ActGovernment Orders

12:40 p.m.

Liberal

Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL

Mr. Speaker, I welcome the hon. member to the House.

One of the bills she just described and the obstructionist ways of the opposition is stretching it a bit. It is a revision of history. One of the reasons a lot of these bills were put back to the starting point, we will say, was the proroguing of the House. The proroguing of the House did cancel these bills and we began from that very starting point once again. Perhaps she would like to comment on what effect the proroguing of the House did have on a lot of these justice bills.

Fair and Efficient Criminal Trials ActGovernment Orders

12:40 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, we are very pleased with the strong mandate that the Canadian voters have given this government and with respect to their endorsement of our tough on crime approach and agenda.

With respect to the unnecessary election that was called, which led to many of the proposed legislative initiatives not proceeding, we are now doing our best to bring them forward. With respect to any co-operation from the opposition, we welcome it.

Fair and Efficient Criminal Trials ActGovernment Orders

12:40 p.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I congratulate the hon. member for Delta—Richmond East, not only for her election to this House but also to her position as parliamentary secretary.

I am very pleased to have the chance to speak to this bill on second reading. I have studied it extensively. I believe the approach to accelerating megatrials is sound, particularly with the appointment of a case management judge. This should help. I think all members of the House should also be cognizant that we need to do more. We will need more resources for judges. We need to appoint more judges at the federal level. Our provincial colleagues may also need more resources to ensure these trials go quickly.

I have one specific concern about one piece of legislation that I do not think is entirely necessary, and I would be grateful for the member's comments. My concern is about taking away the right of an accused person on preferred indictment to seek bail. It is not really a necessary piece of the legislation to accelerate trials. I wonder if she could speak to that.

Fair and Efficient Criminal Trials ActGovernment Orders

12:45 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, all the measures in this bill are meant to increase efficiencies within the system. They are meant to deal with the preliminary aspects of these long and complex trials. There are changes with respect to the regular and preferred indictment provisions. However, if the member opposite would look at them more carefully, she would see that they do not lead to the conclusion she has drawn.

Fair and Efficient Criminal Trials ActGovernment Orders

12:45 p.m.

Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, a number of years back, in Manitoba, there was a need to try to prosecute large numbers of members of gangs. They ended up having to create a separate court facility in order to accommodate the different type of trial that was expected.

Does the parliamentary secretary anticipate that there would be some additional costs incurred in terms of courtroom modifications or anything of that nature? Does this bill have anything to do with that sort of a potential expenditure going forward?

Fair and Efficient Criminal Trials ActGovernment Orders

12:45 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, the actual workings of the courthouse environment are not within the purview of this ministry. However, I will say that the whole idea of this, what is being called, megatrials bill is to increase efficiencies and avoid duplication of processes. So, to the extent that it will work the way we envision that it will, and I see no reason why it would not, it will actually make it less necessary for larger accommodations.

In other words, these trials will be shortened and the procedures will be shortened. We will not have the same duplication of processes. With respect to where there are multiple accused, there is a provision that severance can be delayed. So, if there is evidence arising that can be brought forward with respect to several accused, they do not each have to be treated separately in the process.

Fair and Efficient Criminal Trials ActGovernment Orders

12:45 p.m.

Cambridge Ontario

Conservative

Gary Goodyear ConservativeMinister of State (Science and Technology) (Federal Economic Development Agency for Southern Ontario)

Mr. Speaker, I have a basic question for my colleague. Why is the government introducing this legislation? Obviously we have a strong crime agenda. We are looking forward to helping Canadians to be safe in their communities.

It is really a simple question. Why exactly is the government introducing this type of legislation?

Fair and Efficient Criminal Trials ActGovernment Orders

12:45 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, essentially, there has been a lot of attention paid to these megatrials, multiple trials, particularly as they relate to organized crime and terrorism.

With our tough on crime agenda and our desire on this side of the House to ensure that justice is swift in Canada but fair, it is time to bring criminal trials like this to an earlier disposition. We also seek to avoid mistrials, which often arise because of the complexity of cases like these.

We are enthusiastic about the efficiencies that will be created in terms of resources, time, energy and for the general public's confidence in the justice system.

Fair and Efficient Criminal Trials ActGovernment Orders

12:45 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, I rise today to speak to Bill C-2, which has become known as the megatrials bill.

The House and the Canadian public should be aware that this legislation has been a long time coming. The pressure for this has existed in the system for well over five years now. We began using megatrials in the criminal justice system maybe 12 to 13 years ago, and they have been far from successful. Several have literally collapsed completely, where 10 and 20 accused walked away without the trial ever being completed and with no subsequent charges.

I think, in particular, of the one case in Manitoba where a great deal of money was spent on building a whole new facility. A huge amount of hours of police time, prosecutor time, judicial time and the defence bar was involved. At the end of the day, the entire thing collapsed with no convictions. That probably is the most notorious failure of the megatrials, but they are necessary.

What has become obvious to a lot of people, and only recently to the government, is that there are some practical solutions to the problems we have confronted.

The bill was originally introduced by the government in November 2010. The reason the NDP has pressed the government to bring it back in now is because of a decision out of Quebec just two weeks ago in a megatrial involving organized crime in the form of the biker gangs. Something like 100-plus people were charged. Judge Brunton, who dealt with preliminary matters in the megatrial, concluded that 31 accused would have their charges dismissed because there was no way they would get to trial in less than 10 years. Therefore, we are faced with that reality. That is a clear finding of fact on his part.

Society is somewhat fortunate in that the charges that were dismissed were not the more serious ones. A murder charge, attempted murder, other violent assault type of crimes plus organized crime charges were involved in that megatrial, all against bikers in Quebec. The balance of the charges are still outstanding. Based on Judge Brunton's ruling, there are still some of those that may be at risk six months or a year from now. It is absolutely crucial that we get this legislation through as quickly as possible.

I am sure a number of people have heard that the leader of the Green Party in the House has some objection to the speedy passing of the bill. The Quebec minister of justice came here to discuss this with her, to encourage her to withdraw her objections to the speedy passage of the bill because the administration of justice in Quebec know how serious it would be if we did not get the bill into place as quickly as possible.

My party and I encourage the government to get this through. We were happy when it finally brought the motion forward today to speed it through. If we follow the motion, it will be done by Wednesday of next week. That will give the Senate time to look at it and get it through in the following few days. Even if our House is complete, the other House will still have time to finish it off before it breaks for the summer. Then the government will have the ability to get royal assent and we will see this in Canadian law by the end of this month. That is the plan.

I want to acknowledge that Minister of Justice and Attorney General of Canada was very quick to respond when I first spoke to him about this. I am critical of him because there were a whole bunch of other laws in the last Parliament that took precedence over this one.

I also want to acknowledge the co-operation from the Liberal Party critic. He was very quick to respond favourably to the quick passage of the bill.

The reason I am significantly critical of the government on this one is that if we go back and look at the history of the types of proposals in this bill, which will become the law of the country by the end of the month, almost all of them have been outstanding for several years.

We saw some of them come out of the Air India report by Justice Major. More extensively, we have had a number of these recommendations coming from the meetings of the attorneys general and solicitors general at the provincial and territorial level when they meet with the federal government, usually about every six months.

A number of them have been filtering through that. The government sat on them for this lengthy period of time. Those proposals go back for a number of years.

However, most important, I do not have any understanding or appreciation of why the government did not move immediately after the LeSage-Code report. Justice LeSage is the retired judge from Ontario. At the time Mr. Code was a professor and is now a justice in Ontario, as well.

In the period of 2007, and finally reporting in 2008, they were commissioned by the provincial Government of Ontario to conduct an analysis of how we could better handle, within the criminal justice system, megatrials, ensuring that they were fair, that due process was respected, those rights that we all have as Canadians under the Charter, but also that we had an efficient, speedy trial process, where due process was respected, but so were the rights of the accused and society as a whole.

Their report came out in 2008. It was very clear on almost everything that is in this bill. There were more recommendations than what is in the bill because other issues were dealt with in that report. We did not see a response, in the form of a bill, from the government until more than two years later. I do not have any understanding as to why that is, other than it had other bills it thought were more attractive politically for them to push than this one.

It is not the only time we have faced this. My proposal to speed a bill up occurred once before in 2010. It was known as the Shoker bill, which is the name of the case that went to the Supreme Court of Canada. It was a practical solution that we needed and it was strongly recommended by our police forces because it gave them an additional tool to deal with people who had breached their probation and parole.

It sat lingering on the order paper for almost two years, while we went through one of the prorogations and an election. Just before we broke for the end of the year, I made a similar proposal. It took me about two weeks to convince the government to do it. There was no explanation. It was a very simple bill. The proposal for the resolution of it had been outstanding for several years, but it needed to be pushed. It did not attract attention. It was not one of those photo op opportunities for the government.

Having that experience, and finally convincing the government to do it in that case, we felt we should do the same thing for this. Of course it was triggered in particular by that decision in Quebec of a couple of weeks ago.

I also want to be clear about the importance of getting this through. The Quebec case is not the only megatrial case going on in the country right now. There are at least several others and there are some others coming. We just had a major raid in Ontario, either yesterday or the day before, that is likely to end up in a megatrial.

Based on the ruling from Judge Brunton in the Quebec case, with absolute certainty, I am sure defence lawyers on behalf of the accused are looking at that decision and wondering whether they can apply it in some of these other megatrials, having additional accused persons discharged before we have the opportunity to actually prosecute them, presuming sufficient evidence to convict them.

There is a risk here, beyond the consequences of the Quebec case, as there are others outstanding where we may be faced with the same thing.

I have one more point and I want to be careful about this because the case is still before the court. However, I urge both the Government of Canada and the province of Quebec to consider an appeal in that case. The reason I feel comfortable in saying this is that Judge Brunton, in his decision, made reference to the fact that Bill C-53, which was the bill that preceded this in the last Parliament, was outstanding. Had we had that, his decision might have been different.

Based on the general rule against substantive laws being retroactive, the immediate reaction is that it would not make any difference if we appeal it. However, that is not correct. In law, if the issue of retroactivity is applicable, it is applicable when it is not substantive law. This bill is all procedural. It is process law rather than substantive law.

Therefore, I urge the government to take into account that principle of law and appeal the decision. I urge the province of Quebec to do the same thing and introduce before the court of appeal the fact that this bill is now law and could be applied to the megatrial that is going on in Quebec retroactively.

It is urgent that we get the bill through so we may be able to salvage those 31 charges in Quebec and forestall those types of dismissals in any number of other megatrials, either ones that are already started or ones that may be coming in the near future.

If we leave it to the normal process, the bill will not become law. It would go through committee and all the hearings that would take at least several more months, and we are going to have the summer break soon. If we do not get this through next week and have it in law by the end of the summer, it will probably be the end of the year, or more likely into 2012 before the bill becomes law. For the sake of the protection of our society right across the country, we cannot afford the luxury of waiting that long.

There has been criticism of pushing a bill like this through, as it is a fairly extensive bill, and whether we are going through the democratic process. I certainly have been critical of the government at times when it tried to force bills of a substantive nature through. Again, that is not what this bill is.

We have had a lot of time to analyze the bill. When I say “we”, I am speaking of the justice critics of the various parties in the House. Over the last five or six years, we have looked at the issue. The response we needed to make as a legislature was very clear, and we have understood that. There is nothing in this bill that I can see that calls for an extensive review of it.

I want to particularly emphasize the process of the LeSage-Code report. The end result of that report was one that was supported because prosecutors, other judicial members and the defence bar were all involved in the work that was done in preparing the report. When it came out, I did not hear anybody from the bar, prosecutors, the defence or the judiciary who were critical of the recommendations of LeSage-Code report. I did not hear any objections to it at all. Everybody has looked at this and thinks this is the way to keep the megatrial, but do it efficiently and in fairness to the accused.

I know we have allowed for very short hearings before the justice committee next week, but if we were to have extensive hearings, we would hear from the defence bar, the prosecution and judges that this would be the way to go.

I want to make one more point in this regard. When I first began looking at this, I had a sense of déjà vu. I went through this in my practice back in the mid-1980s to mid-1990s in Ontario in the civil court cases. We implemented the case management process, and not just for large trials, although that was where it was most effective, but for all civil cases.

It had a positive impact in Ontario and has been adopted, though I am not sure about Quebec, in all the other common law jurisdictions.

The idea behind it is simply to let the judiciary in this country take control of files, so that if one side or the other in the case wants to delay the matter unreasonably, the case management judge is there to control the process. It has been reasonably effective. It is not perfect on the civil side and it will not be perfect on the criminal law side, but it is a methodology that makes our system more efficient and, quite frankly, more fair.

One can imagine, in the Quebec case, a witness waiting 10 years to testify, an innocent bystander and witness from the general community having to come back after 10 years and testify against an accused. How well do members think a person's memory is going to last?

Witnesses also know they have this hanging over their heads, that they are witnesses and there is a need for them to be prepared on a repeated basis. There are any number of reasons why we should move on this with regard to protecting, not just the accused and the rights of the accused but the other parties involved, such as police, prosecutors, and society as a whole in terms of the witnesses who get called in these kinds of cases.

The parliamentary secretary has done an excellent job of summarizing the legislation. I am not going to go through it in any particular detail. I wanted to mention case management because that is sort of the key to this working.

The idea, for instance, is for two extra jurors to be empanelled. There have been several trials where they went all the way and in the last week or two ran below 10 jurors. In our system, 12 are empanelled but there have to be 10 to make the final decision.

We never want the accused, witnesses or the system as a whole being put through the process of a long criminal trial and then in the last week or two having to start over again because three jurors became ill in the process and could not continue. Having 14 jurors empanelled will probably eliminate that from ever happening again. I use that as one example.

The other big example is avoiding duplication in the process by having one judge responsible for all of the preliminary matters. That has been a major problem for megatrials in terms of stringing them out. It has also opened up the door many times for appeals because preliminary matters are dealt with by more than one judge and sometimes there will be conflicting decisions. Once there is a conflicting decision, it is almost an automatic appeal and the Court of Appeal must decide, of the conflicting decisions, which one is the right one.

It is a good bill. I do not want to take that away at all from the government. As I said, it flows out of both the major report in the Air India case and more particularly from the Lesage-Code report. Those recommendations were followed and it is time for Parliament to do its job.

As I said, when I asked my question of the minister, the police have done their job, the prosecutors have done theirs, and it is time for Parliament to do its job by getting this bill through.

Air CanadaPoints of OrderGovernment Orders

June 16th, 2011 / 1:05 p.m.

Halton Ontario

Conservative

Lisa Raitt ConservativeMinister of Labour

Mr. Speaker, I rise on a point of order. Our government remains focused on Canada's economic recovery and the financial security of all Canadians. As the House knows our government received a strong mandate for Canadians to complete our recovery.

Today, I am very pleased to report to all Canadians and the House that minutes ago Air Canada and the Canadian Auto Workers signed an agreement in principle to bring an end to the work stoppage and return full service for passengers within 24 hours.

I want to applaud the efforts of the parties in focusing their attention to the matter and, of course, on our federal mediation services. The government's position on Air Canada has been clear. The best agreement is always the one the parties reach themselves.

The objective of the legislation that we put forward today has been achieved and we are so very pleased that there will be a resumption of service for Air Canada passengers. We remain committed to protecting Canadians and keeping our economy growing, strong and on track.

Air CanadaPoints of OrderGovernment Orders

1:10 p.m.

Conservative

The Acting Speaker Conservative Bruce Stanton

I am not so sure that was a point of order but nonetheless I am sure it will be welcomed by all members.

Air CanadaPoints of OrderGovernment Orders

1:10 p.m.

NDP

Yvon Godin NDP Acadie—Bathurst, NB

Mr. Speaker, I rise on what could be a question of privilege or a point of information, or just a good point.

Having heard that we have a resolution in this matter, I would like to thank the Minister of Labour, the government, and all parties that participated in this. I know that negotiations went late last night. I know negotiations took place today. In an economic recovery, we have to remember the workers too, and respect the workers and the rights they have under the law regarding free bargaining and the right to strike.

Now, I encourage the minister and her government to work just as hard to get an agreement signed at Canada Post to ensure that it is a collective agreement that sends employees back to work instead of legislation. There is work to be done. The government will not have to work on the Air Canada issue over the weekend, but it must now work hard to ensure that Canada Post workers receive the same respect and are able to sign a collective agreement, which will also be good for the economic recovery.

Air CanadaPoints of OrderGovernment Orders

1:10 p.m.

Liberal

Marc Garneau Liberal Westmount—Ville-Marie, QC

Mr. Speaker, first, I would like to congratulate those who worked very hard to come to this very satisfactory resolution. I think everyone is relieved and we are very glad this state of affairs has occurred. At the same time, I would also like to make the point that we must respect the bargaining process. Let us always bear that in mind when there is this kind of situation. I think that is very important for the future.

I would also like to take note, once again, of the main reason this conflict occurred and why there is a conflict at Canada Post, and there will be conflicts at other places. This touches upon the very important issue of pensions and people's retirement security. This is something we as a House of Commons must address in the future because this is a problem that will not go away.

Air CanadaPoints of OrderGovernment Orders

1:10 p.m.

Bloc

André Bellavance Bloc Richmond—Arthabaska, QC

Mr. Speaker, on the same point of order, I would like to join the minister and my colleagues in saying that I am glad that the situation at Air Canada has been resolved. I congratulate the negotiators who were able to come to an agreement in principle. This is good news not only for the employees, but also for the passengers and all the people who are no doubt preparing for vacations at this time of year.

The Bloc Québécois is obviously happy about this news, but, like my colleagues, I want to say that announcing or enacting legislation is not the way to bring about a quick resolution at Canada Post. The government must focus on a negotiated agreement, as was done with Air Canada. Unionized workers should not have a sword of Damocles hanging over their heads, forcing them to accept what the employer wants to give them, because this would upset the balance of power.

I repeat my request to the minister to ensure that a negotiated agreement is signed at Canada Post as quickly as possible. That is what everyone wants.

Air CanadaPoints of OrderGovernment Orders

1:10 p.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I acknowledge that this is not a proper point of order at all, but I would like to congratulate the Minister of Labour for her efforts. I would like to congratulate members on all sides of this House for collaborative efforts and particularly to hope that the collective bargaining rights of unions in this country will continue to be respected.

The House resumed consideration of the motion that Bill C-2, An Act to amend the Criminal Code (mega-trials), be read the second time and referred to a committee.

Fair and Efficient Criminal Trials ActGovernment Orders

1:10 p.m.

Moncton—Riverview—Dieppe New Brunswick

Conservative

Robert Goguen ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, it is apparent that this bill introduces a practical solution and balances the interests and necessity of the efficient administration of justice in a fair way while respecting the rights of the accused.

From the hon. member's comments, I ponder if he is simply attempting to play politics with this issue. The government introduced this bill in November 2010. Not once during the last Parliament did the hon. member ask that this bill be expedited. Suddenly, there is a sense of urgency in his comments.

Believe me, the government would certainly have welcomed any co-operation from the opposition on our justice agenda. Now that the member's party, largely founded in Quebec, and the issue have come to the forefront and into the headlines, the member has discovered a new-found interest in this justice issue.

I would like to ask the member, will his new sense of co-operation extend to the rest of our justice legislation, or will his party only be supporting legislation that plays well for it politically, specifically in Quebec?

Fair and Efficient Criminal Trials ActGovernment Orders

1:15 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, I thank my colleague, the parliamentary secretary for justice, for the question and congratulate him on his appointment.

Of course, he is new to the position, so the question I think ignores the reality of what has happened and the role that I personally have played and, more importantly, that my party has played on getting justice bills through the House in an efficient fashion as opposed to the politics that his party has historically played.

It is really quite offensive the number of times that party has trotted out victims of crime in this country to use them as photo ops, as props. It did not do it just once in a number of these bills. I can think of several bills where it was done three times. The reason it was done three times, or there was the opportunity to do it three times, was because the government would prorogue Parliament or call an election in contravention of legislation that the Prime Minister himself shoved through this House. Therefore, there were three times that victims were trotted out and used as props for the government.

I did not come to this late. I have already told the story about the Shoker. It took me two and a half months of recommendations to the government to get it to agree. We only got it because we were coming near the end of the year last year and we got that through. However, I had suggested that over a two and a half month period before we got that one through. That one took precedence. This one was the next one. If we would have had enough time without the election intervening, I would have pushed this one through earlier as well.

Fair and Efficient Criminal Trials ActGovernment Orders

1:15 p.m.

NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, I thank my colleague from Windsor for making reference in his comments to the terrible time that we have had in the province of Manitoba, which I suppose leads toward the argument for the need of this bill. Until now and until the time we get this bill passed, it does concern me that organized crime is laughing at us. It really is.

In my industry of construction, we have now learned that to a huge extent the bikers, especially, have infiltrated it as a perfect way to launder drug money. These guys have warehouses of $20 bills that they cannot use because they are hot dollars. They are called “labour pimps” because they become labour brokers. They contract out 20 or 30 illegal immigrants to legitimate contractors as cheap labour. They pay them $20 an hour with drug money, half the going rate, and then get reimbursed by the contractor with real dollars. It is ubiquitous across British Columbia. It is undermining the integrity of the entire tendering and contracting process in British Columbia because if contractors do not use the biker “labour pimps”, they will not win a contract because their labour costs will be legitimate while their labour costs are paid with drug money.

The biker trial, the “show trial”, in Manitoba collapsed under its own weight. Could the hon. member assure us that this bill that we have agreed to fast track and support will ameliorate this embarrassment where these bikers are thumbing their noses at Canadians knowing full well that we do not have the capacity to bring justice through our court system as it currently stands?

Fair and Efficient Criminal Trials ActGovernment Orders

1:15 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, obviously I cannot give absolute assurance, but I will just use this one example that the parliamentary secretary herself raised.

In a great deal of the megatrials, time is spent on preliminary objections such as, has full disclosure been given by the prosecution, should this electronic surveillance material be allowed or excluded, and have there been infringements of the accused's Charter of Rights and Freedoms.

As it stands now, those motions generally are handled this way. Every single accused, or his or her counsel on his or her behalf, gets to argue. Oftentimes they are all arguing about the same evidence, has disclosure been given to accused A, B, C, D, E, F, G. They all get to make the argument and most of the time before different judges.

What this will do is consolidate all of them before the same judge, so there will not be the problem of conflicts in terms of decisions. As soon as there is a conflict wherein one judge says that there has been full disclosure and then judge D says that there has not been, it then becomes wide open for appeal and the Court of Appeal must resolve it. Therefore, by consolidating that it will certainly make the process more efficient and quite frankly, it will make it fair.

Fair and Efficient Criminal Trials ActGovernment Orders

1:20 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I am pleased to participate in this debate on the fair and efficient criminal trials act, otherwise known as Bill C-2, which is intended to address, not only the issue of megatrials but what has come to be known as the megatrial phenomenon. This phenomenon usually involves a large amount of complex evidence, numerous charges against multiple accused, the need to call many witnesses, multiple motions on matters of law, evidence, remedy--usually the constitutionalization of criminal law finds expression in this regard--and the related roles of the police, the crown, the defence attorney, the jury--and we should remember that not all of these trials involve a jury--the trial judge and case management judge. These trials have become all-consuming, resulting in a backlog in the current system, excessive delays and often an increased risk of mistrial.

It has long been argued by stakeholders in the justice system that the government and Parliament need to engage themselves in the reform and refinement of this process, along with other actors in the system, so that we can properly address and redress a situation whereby what is at stake at this point is not only the fair and efficient administration of justice but the integrity of justice itself.

Statements made by the courts themselves and leading judicial officials have expressed concern about this problem for some time. For example, in a speech to the Empire Club on March 8, 2007, titled, “The Challenges We Face”, Chief Justice McLachlin stated that murder trials used to take five to seven days in the recent past but now they last five to seven months. She described these changes as giving rise to “urgent problems and incalculable costs”.

In a similar but much earlier speech on April 13, 1995. also to the Empire Club. entitled, “The Role of Judges”, former Chief Justice Antonio Lamer described the complexity and prolixity in legal proceedings as being “our greatest challenge and one that could render the justice system simply irrelevant unless it is solved”. One needs to take note of those words.

In a unanimous judgment of the Supreme Court in 2005 dealing with a particularly complex species of wiretap motion, the Supreme Court adopted a much earlier pronouncement of Justice Finlayson made in the Ontario Court of Appeal in 1992 to the effect that:

...“our criminal trial process” has become “bogged down” in an “almost Dickensian procedural morass” and that the public would soon “lose patience with our traditional adversarial system of justice.”

He might well have added, and has been added since, that the public loses confidence in the administration if not integrity of justice as a whole.

When I was the minister of justice, I worked with my provincial and territorial counterparts who not only expressed similar concerns but also sought to initiate what is before the House today in the form of a fair and efficient trials bill. I and my colleague, Jacques Dupuis, the minister of justice and public security in Quebec at the time, worked on this initiative along with our counterparts.

These concerns also found expression, for example, in the 2007 meeting of federal, provincial and territorial ministers responsible for justice and public safety in Winnipeg on November 15, 2007, when the following communiqué was issued:

Ministers also agreed with the recommendations from officials to improve the way large and complex trials are conducted. The officials recommended legislative amendments to reduce the risk of mistrials and address some of the difficulties associated with the management of mega-trials, among others.

It is important for us to appreciate, as we address this prospective legislation before us, the context and the causes that have brought us to this point. An understanding of those causes and the context will not only give us a better appreciation of the raison d'être for this bill, but also for the manner in which we need to approach this bill in Parliament and in our committee considerations.

Simply put, there are four major events that have played a rather transformative role in the development of the modern criminal trial process from what used to be a short and somewhat efficient examination of guilt or innocence that existed in the 1970s to the now much longer and more complex process that has been discussed and indeed critiqued in the statements to which I alluded above.

These four causal events and the related context are as follows. First, the adoption of the Charter of Rights and Freedoms had a transformative impact on our laws, if not our lives, and of which Chief Justice Lamer spoke of as ushering in a constitutional revolution in this country.

Second, the reform of the evidence law by the Supreme Court of Canada.

Third, the addition of many new complex statutory provisions to the Criminal Code and other related statutes.

Fourth, certain compelling social phenomenon, as evidenced in the development of organized crimes and their prosecutions in the 1990s and the immediate aftermath of 9/11 and the adoption of anti-terror legislation and related amendments to a number of pieces of legislation for that purpose.

I will now say a few words about each of these causes which will put what we have before us in context.

The first transformative event was the constitutionalization of criminal law and procedure resulting from the passage of the Charter of Rights and Freedoms. The charter articulated long-standing rights, added some new rights and, most important, introduced a set of remedies, which rights and remedies can be found in sections 7 to 14 of the charter.

In effect, this institutes a constitutional code of criminal procedure. These developments inevitably led to a broad range of procedural motions that had not previously existed in order to enforce the rights and remedies now embodied in the charter.

These motions were complex, both factually and legally. They took additional time to hear and resolve. So the criminal trial process began to become both more complex and prolonged.

I can give a number of different cases as examples, but I will take one right out of the LeSage-Code report. One of the case studies that they examined, the case of Fatima Khan, was a murder case involving allegations that the two accused had killed and dismembered their young child. The trial itself was relatively speedy, lasting about 35 court days. The preliminary inquiry had taken seven days.

The important point that needs to be appreciated here is the fact that the pretrial motions, resulting from the constitutionalization of criminal law and procedure, extended over a two and a half year period where many of the pretrial motions involved charter issues.

The second causal event that contributed to the long and complex process in the modern era was the decision of the Supreme Court of Canada to fundamentally reform the law of evidence. These reforms had the general effect, as the LeSage-Code report shows, of broadening, one might say, the scope of admissibility of evidence by replacing the old rules-based approach of common law with a much more flexible principles-based approach.

I can give a number of examples but for reasons of time I will limit myself to one. The hearsay rule is significantly changed, so that certain out of court statements that would never have been admissible under the pre-existing law, now became admissible. Also, the voluntariness test for confessions was also changed.

These significant changes to evidence law, like the changes in a constitutionalization of criminal law and procedure, led to their own set of motions, in addition to the new charter motion. These motions concerning the admissibility of evidence of common law were now characterized by much greater flexibility than the old rules-based approach.

I will now go to a third causal event, and that was the continuous stream of statutory amendments that took place at the same time as the above development with respect to the charter and with respect to evidentiary developments. Simply put, over the past 20 years, Parliament has constantly altered and added to the existing body of statute law found in the Criminal Code, the Canada Evidence Act and the previous Young Offenders Act and Youth Criminal Justice Act.

The Criminal Code, it is not always appreciated, is now about double the size that it was only 30 years ago. The new legislation is increasingly complex, unfamiliar, untested, and this too has resulted in more lengthy and complex proceedings.

Finally, some of the new legislation was passed in relation to and expanded upon in a legislative and judicial manner, a social phenomenon of the last 20 years. I am speaking in particular of the gang related violence which began to increase in the nineties, especially in Quebec, which now has provided a trigger for the more immediate addressing of this issue today, to which my colleague has just spoken to, and the new criminal organizations provisions of the Criminal Code which were added at that time.

Similarly, there is a large number of new offences and new procedures relating to both law, evidence and constitutional considerations, as well as remedies resulting from the adoption of the anti-terrorist acts.

It can be seen that the criminal trial courts have had to absorb, in a word, a continuing almost explosion of new charter law and remedies, new common law evidence principles, new legislative procedures and new offences, and addressing new social phenomena over the past 20 to 30 years. It is hardly surprising then in these circumstances that what used to be referred to as the short, simple and somewhat efficient criminal trials of the seventies has been replaced by the long, complex and often inefficient criminal trials of the 21st century.

I would not wish to have it adversely inferred from my remarks that I am not in favour of these developments. I supported the advent of the Canadian Charter of Rights and Freedoms and the constitutionalization within it of criminal law and procedure and remedy. I supported the initiatives that arose from Supreme Court considerations of our law of evidence. Developments in the Criminal Code, to which I referred, were themselves warranted and the social phenomenon to which I was speaking also had to bring about those necessary changes and reforms in law procedure, evidence and remedy.

What we have to realize, however, is that the convergence of these four major transformative developments, of which I have been speaking, during a rather specific time in our recent history, has placed an enormous burden, particularly on the legal system and within it, specifically on the trial courts.

At this point I will speak to some of the considerations that have emerged from these four transformated events which, in effect, have identified or exacerbated certain weaknesses in our justice system. I will relate to simply three rather systemic or cultural tendencies, as the LeSage-Code report spoke of, that have themselves worsened and are not unrelated to these four transformated causal events, and which have to be borne in mind as well as we move with respect to creating a more fair and efficient criminal justice system to deal with this megatrial phenomenon.

The first systemic cultural observation, as set forth in the LeSage-Code report, is that the new charter remedies, the new evidence law, the motions, the statutory procedures, et cetera, all that I summarized above, share one common feature. They generally involve pretrial proceedings, in particular the development of elaborate pretrial motions practice which has had the effect of thereby delaying the trial and making it more complex.

A second broad cultural phenomenon that has emerged from this intense period of law reform, as summarized above, is that the system has become both error prone and fearful of error, in a kind of ironic dialectic. Simply, the avalanche of new and complex legal procedures, whether from the charter or from statutory amendments to the Criminal Code, or from reform of the law of evidence, has created a legal system with difficult and nuanced decision points. It is not surprising, therefore, that there are errors that occur in this new environment. At the same time, it has made judges, lawyers, et cetera, more cautionary and fearful because of this error-prone impulse. So, that too has helped to contribute to overly long trials. In fact, it suggests the need for judges with real expertise who will be effectively able to manage these cases, especially at the pretrial stage, and that underpins the importance of the case management judge, the reform of which is in the legislation itself.

The third and last of these broad systemic and cultural changes that I wish to refer to, though I cannot enlarge upon it but I think it will have a popular resonance, is the significant increase in animosity and acrimony between counsel in these proceedings, again something that the LeSage-Code report has commented and elaborated upon. Simply put, this development results, itself, in the prolonging of the trial process as the increased adversarial action on a personal level tends to result in the trial process becoming more acrimonious and fewer matters being resolved within the legal process or settled outside of it. So, here too all the stakeholders have a role to play to encourage the judiciary to insist on higher standards of civility in their courts, for the various law societies to take a strong disciplinary role in this area and for legal aid societies to exercise their statutory mandate to grant certificates to those counsels who can deliver high, effective and efficient legal services.

In closing, let me now turn to some of the specific provisions in the legislation itself. Let me begin first with the definition of megatrials. Although the whole purpose and rationale of this legislation is to address complex megatrials, the legislation itself lacks a definition of what constitutes a megatrial. The proposed section 551.1, as the Canadian Bar Association recently pointed out in its comments on this legislation, would permit an application by either party or the court to have a case management judge appointed on any trial, no matter how simple. This lack of a more specific definition has the potential to result in an overuse of such applications and appointments. It could then drain judicial resources and result in cases that do not need the detailed case management that the bill envisages in having case management judges assigned.

If time had permitted, I would have referred to the other considerations, which are as follows. First is the need for the appointment of a case management judge. The definition of his powers has been referred to by the parliamentary secretary and my colleagues, so I need not go into this, other than to say there needs to be close collaboration between that judge and the trial judge.

Second is that the bill streamlines the use of direct indictments and allows for delayed severance orders related to recommendations in that regard. Third is the proposal to increase the protection of jurors and to increase the maximum number of jurors. That, too, may require certain consideration at committee stage. Finally, there are the matters of mistrial.

Fair and Efficient Criminal Trials ActGovernment Orders

1:40 p.m.

NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, my colleague's opinion and views I have the utmost respect for. He speaks from vast experience and knowledge of the criminal justice system when he shares his views today on the problems we face with these megatrials collapsing under their own weight.

I am wondering if my colleague has taken note and observed the problem in the province of Manitoba of actively trying to curb the activities of the criminal element of bikers. Some of the worst biker wars the country has ever seen, second only perhaps to Montreal, were playing out on the streets of Winnipeg. We should stop calling them biker gangs as it has kind of a cachet to it. This is one gang of organized criminals fighting another gang of organized criminals over the same turf.

After years and years of detailed investigation, when we finally compiled enough evidence to lay charges, 30 and 40 charges at a time, we built a separate courthouse. We were so concerned about the safety of witnesses, et cetera, we built an independent, free-standing courthouse. I believe it cost $28 million for the courthouse alone. Because of the bogging down of proceedings, et cetera, this trial collapsed under its own weight, the courthouse was never even used and not a single person ever gave testimony because the lawyers played the system to the point where the criminals thumbed their nose at us and walked away.

I would ask my colleague to share with us whether he is satisfied that the bill we are going to give speedy passage to today would satisfy the concerns that led to the farce in Manitoba where the bikers won and the public lost.

Fair and Efficient Criminal Trials ActGovernment Orders

1:40 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I am pleased to respond to that important question.

As minister of justice, I worked with my counterpart, the provincial attorney general, in Manitoba and I made express reference in my remarks to the important decision taken at the 2007 meeting that took place in Winnipeg of federal, provincial and territorial ministers of justice on the need, as was already expressed then in Winnipeg, four years ago, to address and redress these concerns.

That is why I am pleased that such an initiative has belatedly, in my view, but finally and necessarily come before us. However, I think we also have to proceed with an appreciation that if we pass the bill simply as it is, we may not incorporate some of the more important concerns and considerations to which I was referring in my remarks and to which I will make specific reference now.

I agree, of course, that the principle of having a case management judge who can focus the issues, streamline the pretrial motions and make suggestions to the parties are necessary in the context of a megatrial. The bill's proposals, if used properly, could assist in the administration of such a megatrial.

However, the proposal, to discuss just one, to allow the case management judge to make rules binding on the parties are somewhat too far-reaching and would, I believe, have some undesirable effects. For more comments on this, I would refer everyone to the LeSage-Code report, but this should be considered at committee. It is also vital that the trial judge and no other judge makes rules regarding the admissibility of evidence and that the proper relationship exist between the trial judge and the case management judge.

I also want to say with respect to jurors, that while the reform proposal has merit, it should be limited only to those trials specifically defined as megatrials and not all trials and consideration should be given to a provision that allows a trial judge to convert a jury trial to a judge-alone trial on consent of all parties when the jury composition falls below the minimum requirement of 10. This would promote efficiency and negate the need for costly mistrials.

On the issue of mistrials, while there is an important proposal to make certain rulings in the previous mistrial binding on the new trial, it is important—