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.
