New Conservative Legislation Not Likely to Make Trials More Fair and Efficient

Justice Minister Rob Nicholson introduced the first crime bill since the Tories won a majority government. The Fair and Efficient Criminal Trials Act, as its title indicates sets out to make criminal trials more efficient and fair. Measures introduced at reaching this goal include appointing a case management judge for improving case management. Under the current common law, only a judge can rule on preliminary issues at trial. However, with the new Act, a Case Management Judge would be able to rule on preliminary matters. The Conservative government believes that having this position would allow the presentation of evidence to the trier of fact to proceed without interruption, to the extent possible, thereby reducing the overall duration of proceedings. The Case Management Judge would be able to amongst other things promote a fair and expeditious trial, ensure that the evidence is presented without interruption, impose deadlines on parties, assist the parties to narrow their focus on the relevant issues and relevant witnesses, encourage the parties to make admissions and reach agreements, adjudicate upon any issues that can be adjudicated at that stage, and they would be able to hear guilty pleas and hand down sentences. The Case Management Judge would be able to adjudicate on issues such as admissibility of evidence, disclosure, expert witness, change of venue, Canadian Charter of Rights and Freedoms and severance of accused or counts on the indictment. The individual would also adjudicate on issues that the trial judge may refer to them, such as presentation of evidence of merits.

Other changes that attempt to reduce duplication include allowing for joint hearings of preliminary motions involving similar evidence that arises from related but separate trials. The new crime bill also calls for allowing a court to delay the enforcement of a severance order by allowing a preliminary issue pertaining to more than one accused or count to be adjudicated by one judge only, prior to severance, thus preventing unnecessary duplication. Currently, once a severance order has been made, the issues are heard separately. 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 it is not in the interests of justice. Furthermore, the new bill will also allow for direct indictments to be amended for technical errors where as currently a new direct indictment must be preferred, along with the written consent of the Attorney General or Deputy Attorney General. Another proposal of the bill is 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.

Proposed changes for improving criminal procedure include swearing fourteen jurors, so jurors do not drop below ten, which is the Criminal Code minimum for valid verdicts. The fourteen jurors would be subject to a random selection process that will determine, after the judge’s charge to the jury, which jurors will deliberate. Other proposed amendments include that jurors be systematically be called into court by their number instead of their name; this would allow for their identity to be protected and allow them to do their job without fear. Lastly, a proposed amendment to s.536.3 of the Criminal Code, would resolve the discrepancy between the English and French version of the section, which calls for the party requesting a preliminary inquiry to provide the other party and the court with a detailed list of witnesses.

While, there is no doubt in my mind that the criminal justice system needs to work more efficiently, I do not believe that all the changes the Conservative governments are introducing will lead to the efficiency of the criminal justice system. For example, I don’t believe that it is a wise thing for judges to be hearing evidential matters of two unrelated trials in one hearing as there is a potential for a judge to be affected in his or her decision making. It is important to keep in mind that under the Charter of Rights and Freedoms everyone has the right to be tried by an independent and impartial tribunal. As for the improvement in procedures, involving indictments, jurors, and the case management judge, I believe that they have the potential to increase the efficiency of the criminal justice system. What these reforms are essentially based on is the government saving money instead of actually fixing the criminal justice system and its delays. What is needed, is more funding so the courts can have more resources to deal with matters and make sure that they are dealt in a swift and efficient manner.