Justice Efficiencies and
Access to the Justice System

Final Report on Mega-trials of the Steering Committee on Justice Efficiencies and Access to the Criminal Justice System

IV. THE “EXCEPTIONAL TRIAL PROCEDURE”

The fundamental challenges that mega-trials present are based mainly in the difficulties associated with their management. The Steering Committee believes that this type of trial requires special rules of procedure. This report proposes the establishment of a body of procedures applicable exclusively to mega-trials, called the “exceptional trial procedure,” the characteristics of which are described below.

4.1 Declaration of the Chief Judge

When it is possible that a trial could be considered a mega-trial, it is up to the Chief Judge, or any other judge he or she designates 1, to rule on the status of the case, based inter alia on specific non-exhaustive codified criteria (see Recommendation 1 of the Steering Committee).

The declaration of the chief judge can only be made when the case is at the trial stage and is to be heard before a judge and jury. As the Steering Committee set out specifically to reduce the work and the time required of jurors for mega-trials, it limited its “exceptional trial procedure” proposal to trials before judge and jury. The Steering Committee believes, however, that this procedure offers many advantages, such as common hearing of preliminary motions (described below), that would be just as useful in mega-trials heard before judges sitting alone. The Steering Committee also believes that it may be useful to consider practical and lasting ways to improve the management of preliminary inquiries in mega-cases.

Recommendation #1

The Steering Committee recommends that specific, non-exhaustive guidelines for the chief judge, or any other judge he or she designates, to use in determining whether a file should be considered a “mega-trial” be codified.

These provisions should provide that the chief judge, or any other judge he or she designates, may, of his own motion or at the request of the prosecution or the accused, summon the parties to a hearing on the application of the exceptional procedure for mega-trials. After hearing the arguments and, if necessary, the evidence presented by the parties, the chief judge will determine whether the hearing of this case is likely to be exceptionally long based on the following factors:

  • Number of accused;
  • Number of counts;
  • Complexity and amount of evidence;
  • Investigative methods used.

In making the determination, the chief judge may also assess, in conjunction with the factors listed above, the availability of resources in the justice system.

If the chief judge considers the case to be a mega-trial, the judge issues a declaration to that effect, which sets in motion the “ exceptional trial procedure. ” The chief judge then refers the file to the “ case management judge ” (hereinafter the “management judge”) that he or she designates. The Steering Committee does not recommend that the decision of the chief judge be subject to an appeal.

4.2 Case management judge

4.2.1 Role of the management judge before the evidence is heard before the jury

The trial is considered to have started when the management judge begins his work. His role is to ensure the case proceeds efficiently and to rule on preliminary issues regarding the admissibility of evidence or otherwise involving the Canadian Charter of Rights and Freedom (the “Charter”). The management judge also deals with incidental issues such as bail or state compensation for counsel, jurors or witnesses. He makes sure that the case is quickly ready to proceed before a judge and jury and, to the extent possible, that the presentation of evidence will not be interrupted by the need to rule on latent issues.

Despite his title, the powers of the management judge go far beyond simple management of the case. This judge has the same powers as the trial judge. Thus, the management judge and the trial judge share the work. They have the same status but a different mission in pursuit of the same goal: the efficient, effective and fair conduct of a case.

4.2.2 Common hearing of related preliminary motions involving the same evidence in separate files

With a view of limiting the risk of inconsistent rulings, the Steering Committee suggests that all preliminary motions involving the same evidence in separate but related files be joined and heard at the same hearing. For example, this will be used in the case of a challenge to the validity of a search warrant that allowed evidence for several distinct files to be gathered. A single voir dire will be held and all the parties with standing will be invited to participate. Only a party who has made an admission on the given issue can decline.

The decision rendered will be considered res judicata in all trials involving the parties to the voir dire. It can't be revisited by trial judges.

Only if new facts are presented or under exceptional circumstances will the decisions of the management judge be reopened. If this were necessary, the management judge will be responsible for this. If the new facts of exceptional circumstances came to light during the jury trial itself, the trial judge will refer the issue to the management judge, who will in turn invite all the parties that might be affected by the new facts or the exceptional circumstances to participate. If the original decision of the management judge needs to be modified, the new ruling will apply to all the parties involved.

Recommendation #2

The Steering Committee recommends that provisions be enacted to codify, under the exceptional trial procedure, the common hearing before the management judge of similar preliminary motions involving the same evidence in related files.

Without necessarily adopting all the comments of the F/P/T Heads of Prosecutions on this issue, the Steering Committee notes that their Recommendation 24 reflects recommendation 2 above.

4.2.3 Issues under the authority of the management judge

The management judge may, among other things (see Recommendation 3):

  • Consider all the issues relating to disclosure and make orders, particularly on the content and format of the disclosure and on its scheduling;
  • Rule on bail applications and review of bail conditions;
  • Rule on issues relating to funding for defence counsel, witnesses or jury members (see Recommendations 6 and 7);
  • Permit, where necessary, access to proceeds of crime;
  • Rule on applications for severance (see Recommendation 4);
  • Rule on preliminary issues involving the presentation of evidence, including:
    • Admissibility of evidence;
    • Charter questions;
    • Requests of the R. v. Corbett2 type (regarding the exclusion of past convictions from the evidence);
    • Expert status;
  • Fix deadlines and ask the parties to report on the progress of the file;
  • Invite the parties to identify the issues keeping in mind that the accused cannot be forced to make admissions (see Recommendation 5)
  • Put admissions made by the parties in the file.

The parties must submit the questions of law at issue to the management judge and argue them before the management judge. Parties who fails to raise a question of law before the management judge and then wish to raise it before the trial judge(s) must justify their failure to raise it before the management judge.

Recommendation #3

The Steering Committee recommends that the powers of the management judge and the issues this judge has authority over be codified.

Recommendation #4

The Steering Committee recommends that, as regards the exceptional trial procedure, specific guidelines be codified to direct the decision whether to grant severance of accused or counts. However, the Steering Committee believes that it is not necessary to enact a strict limit on the number of accused or charges per trial.

Without necessarily adopting all the comments of the F/P/T Heads of Prosecutions on this issue, the Steering Committee notes that their Recommendation 27 reflects in part recommendation 4 above.

Recommendation #5

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.

Without necessarily adopting all the comments of the F/P/T Heads of Prosecutions on this issue, the Steering Committee notes that their Recommendation 11 reflects in part recommendation 5 above.

4.2.4 Report of the management judge to the trial judge

When the case is in order and ready to go to trial before the jury, the management judge gives the trial judge(s) a report containing the following:

  • rulings on preliminary motions;
  • orders about the disclosure of evidence;
  • admissions made by the parties;
  • issues identified by the parties.
4.2.5 Effect of the exceptional trial procedure on compensation provided by the state

The Steering Committee believes that the declaration of the chief judge that a case is a mega-trial should lead to the consideration of special compensation for jurors, witnesses and state-funded counsel. The Steering Committee refrains from commenting on the nature of this special compensation, which comes under the provinces' jurisdiction.

The Steering Committee notes that mega-trials, given their exceptional length, require an unprecedented amount of time and effort from participants in the judicial process. Members of the jury, for example, are required to abandon their regular occupations for very long periods of time. This can cause numerous significant problems: considerable loss of income, loss of job opportunities, negative impact on family responsibilities, lack of advancement in careers or education, etc. Defence counsel, for their part, may be forced to devote all their time and energy to a single case, to the detriment of their regular practice and their clients.

Witnesses may also suffer in particular ways because of their testimony in a mega-trial: repeated summons, exceptionally long examination and cross-examination (given the amount of evidence and the large number of counsel on the case), pressure from the intense media exposure, etc.

Thus, it is reasonable to conclude that the being assigned to this type of case may merit different compensation from being assigned to a shorter trial.

Recommendation #6

The Steering Committee recognizes that jurors and witnesses in mega-trials have exceptional obligations and specific needs. The Steering Committee recommends that they receive enhanced compensation to reflect this reality.

Without necessarily sharing all the views of the Barreau du Québec on this issue, the Steering Committee notes that, in its Final Report, the Barreau indicates “(TRANSLATION) it is certainly necessary to review the pay and allowances given to those who contribute to the administration of justice as jurors or as witnesses.”3

The Steering Committee has not examined allowances offered in each province and recognizes that compensation, which comes under the provinces' jurisdiction, may vary from one jurisdiction to the other.

Recommendation #7

The Steering Committee notes that state-funded defence counsels have to deal with an exceptional workload and unprecedented mobilization of their time and efforts. The Steering Committee recommends that their compensation be adapted to this situation.

4.2.6 Role of the management judge during the hearing of evidence before a jury

The role of the management judge should continue during the presentation of evidence before the judge and jury. The management judge will act as facilitator for any negotiations between the prosecution and the defence, as the trial judge must refrain from participating in any such discussions. In certain circumstances, the management judge may hear guilty pleas and pass sentences. This would apply when the trial judge continues to hear evidence concerning co-accused, for example.

In addition, motions on matters filed during the trial can be referred to the management judge when they deal with matters completely separate from the evidence, or where a ruling from the management judge may need to be reopened in light of new facts or exceptional circumstances.

Last, under certain circumstances, the management judge could be called upon to replace the trial judge under section 669.2(1) Cr.C. if the trial judge is unable to continue. The management judge's thorough knowledge of the file would enable him or her to quickly take over the proceedings, thus avoiding some of the problems faced by a new judge in a similar situation, given the size of the case.4



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