Department of Justice Canada
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Steering Committee on Justice Efficiencies and Access to the Justice System

III - Options, Discussions and Recommendations

3.1 The right to jury trial

Many respondents to the consultation expressed concerns about the inefficiencies in the jury system, particularly in lengthy and complex cases. Some believe that the efficiency of jury trials is primarily the result of good case management by judges and counsel: anticipation of issues that have to be argued in the absence of the jury for disposition before jury selection, the length of jury instructions, counsel's focus on deciding issues, etc. Some respondents question the institution itself. Others think that the resources involved in jury trials and the investment required of jurors argue for restricting jury trials to the most serious offences.

Bearing in mind the constitutional right to a jury trial for offences punishable by imprisonment for 5 years or more, and the jury's deep roots in our justice system and its role as an expression of democracy, the Working Group did not submit proposals for the outright abolition of jury trials for examination within the Steering Committee. Nor did the Working Group retain proposals to replace the jury with a panel of judges or a mixed panel of judges and assessors. Section 11(f) of the Charter as construed would restrict any change affecting the fundamental characteristics of the institution as it existed in Canada before the enactment of the Charter, [1] one of those characteristics being representativeness.

England's recent experience, which gave rise to uncertainties about the jury system, should be considered. In 1986, the Roskill Report [2] seriously questioned the ability of jurors to follow and understand complex serious fraud cases. The report recommended replacing the jury with a court composed of a judge to decide questions of law and expert assessors to decide questions of fact. The recommendation remained a dead letter until 2001 when it was reaffirmed, with some variation, by the Honourable Lord Justice Auld in his report Review of the Criminal Courts of England and Wales[3] (the Auld Report).

In the wake of the Auld Report, the Criminal Justice Act 2003 [4] was enacted to limit the right to jury trial where there is a substantial risk of jury intimidation or tampering and to long and complex fraud cases:

5. The Act is designed to ensure that criminal trials are run more efficiently and to reduce the scope for abuse of the system. It [...] will allow for judge-alone trial in cases involving threats and intimidation of juries, and paves the way for judge-alone trial in exceptionally long, complex serious fraud cases.

[...]

30. This Part makes provision for the prosecution to apply for a trial of a serious or complex fraud case to proceed in the absence of a jury. The judge may order the case to be conducted without a jury if he is satisfied that the length or complexity of the case (having regard to steps which might reasonably be taken to reduce it) is likely to make the trial so burdensome upon the jury that the interests of justice require serious consideration to be given to conducting the trial without a jury.

31. This Part provides for a trial to be conducted without a jury where there is a real and present danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering. The court must be satisfied that the risk of jury tampering would be so substantial (notwithstanding any steps, including police protection, that could reasonably be taken to prevent it) as to make it necessary in the interests of justice for the trial to be conducted without a jury. [5]

[Emphasis added]

The restriction placed on fraud trials unleashed fierce controversy. The Bill could not be passed without an amendment making its coming into force dependent on a resolution of both Houses of Parliament. After an epic parliamentary battle, the government remained unable to obtain passage of the resolution by the House of Lords. [6] In November 2006, the Government introduced a bill in the House of Commons intended to remove the requirement of the resolution.[7] In March 2007, the debate on its second reading in the House of Lords was postponed by an unusual motion. The Bill does not appear to have progressed since then.

The grounds for that legislative initiative were severely undermined by the findings of a review by the Crown Prosecution Service Inspectorate (CPSI) into the collapse of the trial in the Jubilee Line case. [8] The case concerned fraud charges against five individuals in connection with the granting of government contracts for the extension of the London Underground's Jubilee Line. Twenty-one months into the trial, defence counsel made a motion for a mistrial[9] on the ground that the evidence was so complex that it had become unintelligible to the jury; the Crown did not oppose the application. The judge then declared a mistrial.

The CPSI report made a thorough review of that mega-fraud case, from the police investigation to the discharge of the jury, and identified the causes of the collapse. One aspect of the investigation involved voluntary interviews with members of the jury; 11 of the 12 jurors agreed to be interviewed. Against all expectations, the interviews revealed that the jurors had a good understanding of the evidence presented despite its length and complexity. [10]

Brief reference should also be made to the status of the Diplock Court system in Northern Ireland, which was instituted for the purpose of trying scheduled terrorism offences by judge alone. A changed political environment and the government's commitment to re-introduce jury trials resulted in the Terrorism (Northern Ireland) Act 2006, which received royal sanction on February 16, 2006. [11] Trials may now be held before a judge alone only if the Director of Public Prosecutions (DPP) is satisfied that the administration of justice could be impaired in view of the risk presented by holding a jury trial.

In the light of the British experience, it can be expected that outright abolition of the jury, or a fundamental change in its constitution, would represent an enormous challenge, even if there were no constitutional constraints. Some could suggest that the British experience is not relevant since Canadians may be less attached to the institution. Nevertheless, neither British constitutional law nor the European Convention on Human Rights appear to grant the right to jury trial the supralegislative status conferred by the Canadian Charter of Rights and Freedoms. [12]

The British experience could also present other options for discussion calling for less drastic changes. In the search for improved use of resources, the creation of hybrid offences has been greatly encouraged since the birth at the end of the 19th century of the first either-way offences, prosecutable in Crown Court with a jury or in Magistrate's Court without a jury. [13] Extending the maximum sentence from 6 months to 12 months has also favoured prosecution of hybrid offences in Magistrate's Court, which should result in a decrease in the number of jury trials in Crown Court.[14] One of the procedures they have established appeared attractive: on the application of the prosecutor, a judge may order a judge-only trial if he or she considers it is in the public's interest due to a risk of jury tampering. The Working Group considered whether Britain's experience could serve as a model for similar measures adapted to the Canadian context in view of the requirements of s. 11(f) of the Charter.

The Canadian experience itself could also provide options that merited discussion within the Steering Committee. Included in the Canadian experience are the creation of hybrid offences, election and re-election procedures, the expertise developed by provincial court judges in the exercise of their absolute jurisdiction, and the development of the jurisdiction of judges or justices of the peace who act as “summary courts”.

Discussion

Five options were submitted for discussion to the Steering Committee (see 3.1.1 to 3.1.5 below). The options that may be perceived as limiting access to a jury trial were met with much reservation, in particular from law society and defence counsel representatives who considered that the Canadian experience with jury trials did not justify an enquiry into the role and place of that lay institution in the Canadian criminal justice system.
Even though some were of the opinion that these innovative options merit further study, discussions showed that it would have been difficult to reach consensus in this regard, with the exception of Option 3.1.2. The British experience indeed confirms that building consensus in this area is quite a challenge.

The Steering Committee considers that tighter case management, based on the evolving case law on the trial judge's powers in this area, [15] encouraging in particular the final resolution of pre-trial and incidental issues before the start of the hearing of evidence before the jury, could certainly contribute to the efficiency of jury trials[16]. In that regard, the Steering Committee would refer to its recommendations for legislative amendments to that effect made in its report on mega-trials, more specifically Recommendation 5 the scope of which should be extended to all jury trials:

"The Steering Committee recommends, as regards the exceptional trial procedure, the enactment of a provision similar to the new section 536.4 of the Criminal Code." [17]

Unlike s. 625.1 Cr.C. on the role of pre-trial conferences, s. 536.4 specifically provides that the justice before whom the preliminary inquiry is to be held may “encourage the parties to consider any other matters that would promote a fair and expeditious inquiry”, including admissions of fact agreed to (as reflected in subsection 2). This provision appears to give the judge a more pro-active role.

Also meriting mention is the work that has been carried out by the Superior Court of Justice of Ontario Advisory Committee on Criminal Trials with a view to maximizing the benefits of pre-trial conferences and the court's management powers [18] to encourage resolution of incidental issues before summoning the jury, to examine in advance the evidentiary basis of applications and determine the manner in which the evidence in support of an application is to be presented (where it appears appropriate, by way of an agreed statement of facts, affidavits, “will say” statements or by filing transcripts rather than presenting viva voce evidence). The committee's recommendations led to major amendments to the Criminal Proceeding Rules in effect in the Ontario Superior Court of Justice since October 2006, regarding in particular:

  • the content of pre-trial conferences;
  • the powers of the judge presiding at the pre-trial conference;
  • the designation of a case management judge and his or her powers;
  • applications for admission or exclusion of evidence under a common law or other rule of admissibility, including s. 24(2) of the Charter;
  • preliminary assessment of the merits of an application;
  • dismissal of an application for non-compliance with the Rules.

Maximizing case management powers may offer a less radical alternative to initiatives aimed at limiting the right to a jury trial. The Steering Committee considers that codification of the powers recognized by the case law on case management in rules of court must be encouraged. It would be useful to examine the results of the Ontario experience.

3.1.1 Encourage the creation of hybrid offences and review the time limitation for prosecuting summary conviction offences

The advisability of imposing on jurors the burden of a trial that might lead to a sentence comparable to a summary conviction sentence may be questioned. It is difficult to imagine prosecuting before a jury the offence of participating in a riot (an indictable offence), which is punishable by a maximum sentence of 2 years.

Hybrid (or dual procedure) offences allow the prosecutor to choose the mode of prosecution better adapted to the subjective seriousness of the offence, the characteristics of the offender (age, previous convictions, etc.), the needs of the complainant and witnesses (inconvenience of having to testify at the preliminary inquiry and again at the trial), as well as the rational use of judicial resources.

However, the 6-month time limitation for prosecution often forces a prosecutor to proceed by indictment, with the chance that a jury will hear the trial when the offence should clearly be prosecuted by summary conviction, a situation which could also lead to allegations of abuse of process. [19]

A wide consultation carried out by Justice Canada shows that there existed no consensus on the reclassification of offences. Among concerns expressed, defence counsel representatives see it as further limiting the availability of a preliminary inquiry and diminishing appeal rights. They also believe that extending the time limitation would be detrimental to the interest of the accused and contrary to the public interest in having less serious offences dealt with as quickly as possible. The possible increase in the workload of provincial court judges could be a problem for some jurisdictions, while other jurisdictions are concerned that the initiative may appear to diminish the seriousness of offences that may be reclassified. However, since examination of the advisability and impact of the initiative by the Working Group on Criminal Procedure is still in progress, the Steering Committee considered that it would be premature to recommend this option on which, in any event, consensus would have been difficult to achieve.

3.1.2 At the initial election, allow trial by superior court judge alone for s. 469 Cr.C. offences and provide for the three choices at the initial election on direct indictments

Section 469 Cr.C. offences within the exclusive jurisdiction of the superior courts: As the law now stands, the trial will be automatically held before a judge and jury unless the accused and the Attorney General subsequently agree to a trial by judge alone (s. 473 Cr.C.). The Steering Committee considered whether the election to be tried by judge alone should be allowed at the outset, with the Crown given the option of requiring a jury trial by means of a provision similar to s. 568 Cr.C. [20]

Prosecution by direct indictment. As the law now stands, an accused prosecuted by direct indictment is deemed to have elected to be tried by a judge and jury and must appear before a superior court judge. The accused may subsequently ask to be tried by judge alone (s. 565(2) Cr.C.). [21] Yet an indictment will often include offences for which the accused would otherwise have all options and have elected at the outset to be tried by a provincial court judge or judge alone. The Steering Committee considered whether the accused should be allowed to appear before a justice of the peace to make an initial election other than the deemed election for trial by judge and jury, to the extent that the offences to be tried give rise to the election.

This option did not elicit any opposition. The Steering Committee noted that the accused and the prosecution often consider prosecution before a superior court judge alone for an offence under s. 469 Cr.C., particularly where the outcome of the trial rests essentially on expert evidence, more advisable. It will sometimes be the case, for example, in a defence of not responsible on account of mental disorder in response to an accusation of murder or attempted murder. The Steering Committee decided to make a recommendation.

However, in view of a recent amendment to the procedure for re-election after an indictment has been preferred, [22] only the first part of the option merited to be the subject of a recommendation.

3.1.3 Extend the absolute jurisdiction of provincial court judges to all offences punishable by less than 5 years' imprisonment or create a new absolute jurisdiction for superior court judges

In view of the expertise of provincial court judges, the Steering Committee considered whether their absolute discretion could be extended to all indictable offences punishable by less than 5 years' imprisonment. Provincial courts have absolute jurisdiction over some drug possession and trafficking offences punishable by imprisonment for 5 years less a day. Provincial courts also try some provincial offences, such as securities offences, that are punishable by 5 years less a day. The constitutional validity of a provincial court's jurisdiction over such offences punishable by 5 years less a day has not, to date, been impaired.

In addition to the difficulty of achieving consensus, bringing those offences within the absolute jurisdiction of provincial court judges would offer little gain in efficiency since they are not particularly frequent. [23]

Implementing this option would also require a reappraisal of the respective resources of provincial courts and superior courts, unless measures are introduced to lessen its impact on judicial resources. For instance, provinces could be allowed to transfer those offences to the jurisdiction of provincial court judges by order of the lieutenant-governor-in-council. Or a new absolute jurisdiction for superior court judges could be created. The Steering Committee considered that the advisability, feasibility and impact of these approaches should be the subject of a comprehensive study, which may not be justified by the expected efficiency gains.

3.1.4 Create a procedure that would remove the right to jury trial on the filing of a notice that the Crown will seek a sentence of less than 5 years' imprisonment

Whether an indictable offence is objectively punishable by imprisonment for 5, 10 or 14 years, or even life imprisonment, the subjective seriousness of the offence and the characteristics of the offender could be such that, at the commencement of proceedings, the prosecutor cannot reasonably anticipate a sentence of imprisonment for more than 5 years. The Steering Committee explored the possibility of creating a procedure that would remove the right to a jury trial on the filing of a notice that the prosecution intends to seek a sentence of less than 5 years' imprisonment. Various measures could be considered:

  • require that the notice be filed before the initial election and thereby limit the choice of elections to trial by judge alone (within the meaning of s. 552 Cr.C.) [24] or trial by a provincial court judge;

  • allow filing of the notice only after the accused has elected a jury trial, giving superior court judges the discretion to deny it where required in the interests of justice (statutory criteria could be established, including the burden on the jury, delays, risk of interference by intimidation or tampering, etc.).

In addition to, again, the difficulty of achieving consensus, this option raised concerns that led the Steering Committee to not retain it, namely: What if new facts arising during the trial increase the objective seriousness of the offence? Would the Crown's exercise of its discretion likely give rise to allegations of abuse of process? [25] Would a judge's removing the right to a jury trial at the request of the Crown give rise to new arguments on appeal likely to result in an order for a new jury trial?

Concerns were also expressed about the application of this measure in the context of the emergence of and increase in minimum prison sentences. Depriving an accused charged in an information that includes a number of offences carrying minimum sentences of the possibility of a jury trial appears at first glance to raise issues under both s. 11(f) and s. 7 of the Charter.

3.1.5 Create an exception to the right to trial by jury for certain offences relating to threats, violence, intimidation or corruption of a justice system participant for the purpose of influencing the course of justice

This option was directly inspired by measures to that effect adopted by England and New Zealand. The Steering Committee noted however that the gains in efficiency of that measure would be limited by the small number of offences likely to be included (the first that come to mind are obstruction of justice under s. 139(3) Cr.C. and intimidation of a justice system participant under s. 423.1 Cr.C.). Defence counsel representatives expressed reservations about the creation a list of exceptions to the right to a jury trial which, with time, it may be tempting to attempt to expand rather than restrict. It would also require a section 1 Charter justification on the ground of the pressing and substantial nature of the objective.

The Steering Committee considers that improving jury protection measures, in particular the protection of jurors' anonymity, would be more appropriate than this option in that it would strike a balance between the right of the accused to a trial by jury and the interests of justice in protecting juries against tampering.

Recommendations

Three recommendations result from the preceding discussion.

  1. Facilitate the election of trial by a superior court judge alone by an accused charged with an offence listed in s. 469 Cr.C.
  2. Optimize pre-trial conferences and encourage a proactive role for the presiding judge by the enactment of a provision similar to the new s. 536.4 Cr.C. (Extend the application of Recommendation 5 of the Steering Committee's final report mega-trials to all jury trials.)
  3. Encourage codification of the specific powers recognized by the case law on case management in rules of court under s. 482.1 Cr.C.