"Mega-Trials" Legislation Receives Royal Assent

OTTAWA, ONTARIO--(Marketwire - June 27, 2011) - The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada and the Honorable Pierre-Hugues Boisvenu, Senator, are pleased to announce that the Fair and Efficient Criminal Trials Act received Royal Assent yesterday, June 26. This new legislation will help ensure that so-called "mega-trials," large and complex 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.

"Our Government received a strong mandate from Canadians to make our streets and communities safer. We are very pleased that our mega-trials legislation has received Royal Assent," stated Minister Nicholson. "This legislation will provide the tools needed to help streamline large, complicated cases, so there will be fewer delays, reduced risk of mistrials and decreased costs to taxpayers."

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.

"Canadians want justice to be carried out in a timely way even when a trial is complex and wide-ranging" said Senator Boisvenu. "With this bill, our Government is delivering on what Canadians want and we will continue to tackle crime, stand up for victims and protect Canadians."

The bill will come into force on dates yet to be determined. An online version of the legislation is available at www.parl.gc.ca.

(Version française disponible)

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 law and order legislation to combat crime and terrorism. The Fair and Efficient Criminal Trials Act is aimed at ensuring swift and effective justice for those involved in 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 proposed legislation 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.

PROPOSED AMENDMENTS

Improving Case Management

Appointing a Case Management Judge

Improved case management, particularly in relation to the preliminary phase of the trial, is one of the significant measures being proposed to improve the efficiency and effectiveness of large and complex trials. Appointing a Case Management Judge is an essential step toward achieving this goal. Currently, under the common law, only the trial judge may rule upon preliminary issues.

This measure would empower a Case Management Judge to rule upon preliminary issues. This would allow earlier resolution of the preliminary issues upon which the remainder of the trial often rests. It would also permit the presentation of evidence to the trier of fact to proceed without interruption, to the extent possible, thereby reducing the overall duration of proceedings.

When appointed, the Case Management Judge would be 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 could 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 could 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 could preside over the remainder of the trial with or without 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 proposed amendments would allow a joint hearing of preliminary motions involving similar evidence that arise in related but separate trials.

Delayed Enforcement of Severance Order

Currently, where a judge orders the severance of counts or separate trials for certain co-accused prior to the adjudication of the preliminary issues, the evidence must be presented in each of the resulting trials in support of these preliminary issues. This duplicates efforts and increases the risk of inconsistent rulings. This bill proposes to allow 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 would also be 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

Currently, if a direct indictment contains a technical error, a new direct indictment must be preferred, which involves the personal written consent of the Attorney General or Deputy Attorney General. This bill proposes to empower 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

Another proposal provides 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 ten jurors to render a valid verdict. To address this concern, amendments in this bill would allow for the swearing of up to fourteen jurors subject to a random selection process that will determine, after the judge's charge to the jury, which jurors will deliberate.

Measures to Improve the Protection of the Identity of Jurors

These amendments propose that jurors be systematically called in court by their number and that the use of names be the exception. Furthermore, the court would be able to limit access to juror cards or lists when deemed necessary for the proper administration of justice. This reform initiative would improve the protection of jurors' identity and further enable 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 would address 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.