"Mega-Trials" Legislation Comes Into Force

OTTAWA, ONTARIO--(Marketwire - Aug. 15, 2011) - The Honourable Rob Nicholson, P.C., Q.C., M.P. f or Niagara Falls, Minister of Justice and Attorney General of Canada announced today that most provisions of Bill C- 2 the Fair and Efficient Criminal Trials Act have come into force. This new legislation will help ensure that so-called "mega-trials," large and comp lex cases involving illegal activities such as drug trafficking, white-collar crime, terrorism, organized crime or gang–related activity, can be heard more swiftly and effectively.

"Criminals involved in drug trafficking, white-coll ar crime, terrorism or organized crime must be dealt with swiftly and effectively so that our streets and communities can be safe places to live, work and raise our families," stated Minister Nicho lson. "This legislation provides the tools needed to streamline the process and make it easier for police and prosecutors to protect Canadians and stand-up for victims of crime."

The Fair and Efficient Criminal Trials Act will help improve Canada's justice system through:

• stronger case management;
• reduced duplication of processes; and,
• improved criminal procedure.

The Fair and Efficient Criminal Trials Act contributes to implementing the December 7, 2010, Air India Inquiry Action Plan, the Government's response to the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182. This Act will help ensure that large and complex cases can be heard more swiftly and effectively.

The amendments related to increasing the number of jurors from a maximum of twelve to fourteen will come into force October 24, 2011. This will allow the Provinces and Territories, who are responsible for the administration of justice, to implement the infrastructure and other changes related to these provisions.

An online version of the legislation is available at www.parl.gc.ca.

Backgrounder:

FAIR AND EFFICIENT CRIMINAL TRIALS ACT

Improving criminal procedure to cut the number of long, drawn-out trials is an important part of the Government's comprehensive legislation to combat crime and terrorism. Bill C-2, the Fair and Efficient Criminal Trials Act, is aimed at ensuring swift and effective justice for those involved in crimes such as terrorism, organized crime and white-collar crime. It also fulfills an integral part of the Government's Air India Action Plan that commits to streamlining the prosecution of terrorist offences.

The Bill is the result of a great deal of discussion and consultation with various criminal justice stakeholders, including experts with operational experience in the conduct of mega-trials, the Working Group on Criminal Procedure of the Coordinating Committee of Senior Officials, as well as the Steering Committee on Justice Efficiencies and Access to Justice, which includes representatives from the judiciary and the private bar. This work has also been informed by the November 2008 report by former Chief Justice Patrick LeSage and then-Professor Michael Code on their review of systemic issues related to long, complex criminal cases in Ontario.

BILL C-2 AMENDMENTS

Improving Case Management

Appointing a Case Management Judge

Improved case management, particularly in relation to the preliminary phase of the trial, assists in increasing the efficiency and effectiveness of large and complex trials. Appointing a Case Management Judge is an essential step toward achieving this goal. Bill C-2 empowers a Case Management Judge to rule upon preliminary issues. This allows earlier resolution of the preliminary issues upon which the remainder of the trial often rests. It also permits the presentation of evidence to the jury to proceed without interruption, to the extent possible.

When appointed, the Case Management Judge is empowered to, among other things:

• promote a fair and expeditious trial;
• ensure, to the extent possible, that the evidence on the merits is presented without interruption;
• impose deadlines on the parties;
• assist the parties to narrow and focus the issues;
• assist the parties to identify the witnesses to be heard at trial;
• encourage the parties to make admissions and reach agreements;
• make decisions upon preliminary issues, including motions on preliminary issues;
• assist the parties to identify the outstanding issues; and,
• hear guilty pleas and hand down sentences.

The early adjudication of preliminary issues facilitates many other aspects of the case, such as case preparation, discussions in relation to case resolution, and providing insight into the duration of the trial.

The Case Management Judge can decide on issues such as:

• admissibility of evidence;
• disclosure;
• expert witnesses;
• change of venue;
• Canadian Charter of Rights and Freedoms; and
• Separate trials for certain accused persons or separate trials for certain counts of an indictment.

The Case Management Judge can also go on to rule upon any issue referred by the judge presiding over the presentation of the evidence on the merits. Furthermore, he or she may preside over the remainder of the trial with a jury, during the presentation of evidence on the merits.

Reduce Duplication of Processes

Joint Hearings

Often, in large complex cases, many of the preliminary issues involving similar evidence are common to a number of cases. One of the amendments allows a joint hearing of preliminary motions involving similar evidence that arise in related but separate trials.

Delayed Enforcement of Severance Order

Formerly, where a judge ordered the severance of counts or separate trials for certain co-accused prior to the adjudication of the preliminary issues, the evidence would be presented in each of the resulting trials in support of these preliminary issues. This duplicated efforts and increased the risk of inconsistent rulings. This bill allows a court to delay the enforcement of a severance order allowing a preliminary issue pertaining to more than one accused or count to be decided by one judge only, prior to the severance, thus preventing unnecessary duplication.

Rulings Binding in New Trial Resulting from a Mistrial

The Criminal Code has also been amended so that when a mistrial is declared and a new trial ordered, decisions on certain preliminary issues continue to bind the parties unless the court is satisfied that this would not be in the interests of justice.

Amending Direct Indictments

Under the old regime, if a direct indictment contained a technical error, a new direct indictment had to be preferred, which involved the personal written consent of the Attorney General or Deputy Attorney General. This bill empowers the court to amend technical defects in direct indictments, as is the current practice in the case of regular indictments.

Maintaining Bail/Detention Orders where Direct Indictment is Preferred

The bill also ensures that a new bail hearing will no longer be held when an accused is subject to a bail or detention order for an offence and a direct indictment is preferred charging the same offence or an included offence.

Improving Criminal Procedure

Swearing of up to 14 Jurors

The time required to hear criminal trials has steadily increased over the last decade, especially in the case of 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 the trial. This can result in the size of the jury being reduced to below the Criminal Code minimum requirement of 10 jurors to render a valid verdict. To address this concern, amendments in this bill allow for the swearing of up to 14 jurors subject to a random selection process that will determine, after the judge's charge to the jury, which jurors will deliberate. These amendments will come into force October 24, 2011, to allow the Provinces and Territories, who are responsible for the administration of justice, to implement the infrastructure and other changes related to these provisions.

Measures to Improve the Protection of the Identity of Jurors

These amendments ensure that jurors are systematically called in court by their number and that the use of their names is the exception. Furthermore, the court is now able to limit access to juror cards or lists when deemed necessary for the proper administration of justice. This reform initiative improves the protection of jurors' identity and further enables them to perform their duties without fear of intimidation or physical injury, particularly where alleged offences involve organized crime or terrorism.

Preliminary Inquiries - Statement of Issues and List of Witnesses

This provision addresses a discrepancy between the English and the French versions of Section 536.3 of the Criminal Code that relates to the statement of issues and list of witnesses that the party requesting a preliminary inquiry must provide the court and the other party.