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

V. OTHER COMMENTS ON THE CONDUCT OF MEGA-TRIALS

5.1 Involving the prosecutor at the investigation stage

Like the F/P/T Heads of Prosecutions5 and the Barreau du Québec6, the Steering Committee believes that, in the current situation, the prosecutor should play a significant role as advisor to investigators in large cases likely to become mega-trials.

There are many advantages to this contribution, including:

  • Prosecutors may provide advice on the admissibility of evidence and legality of investigative measures;
  • The prosecution would keep up to date on the file and be very familiar with it right from the beginning of legal proceedings;
  • The prosecution could ensure that the evidence is ready to be disclosed in a comprehensible and relatively complete manner when charges are laid.

However, the Steering Committee is mindful of the need to preserve the fundamental and essential distinction between the role of the police officers and that of the prosecutors who advise them at the investigation stage. Certain considerations should be kept in mind:

  • Certain jurisdictions are less familiar than Quebec or British Columbia are with the concept of involving the prosecutor at the investigation stage; the Supreme Court decision in Regan7 describes different approaches;
  • Prosecutors must make sure they preserve their professional independence, which may be compromised by too close ties with the police.

5.2 Number of accused and charges

Like the Barreau du Québec,8 the Steering Committee believes that it is not necessary to enact a strict limit on the number of accused or charges per trial.9 It notes that the impact of a large number of accused or charges varies depending on the scope and complexity of the evidence involved. Each case is unique and should be assessed by the management judge.

5.3 Alternate jurors and minimal number of jurors 

The Steering Committee realizes that, because of the length of mega-trials, there is a higher risk that the number of jurors will drop below the limit of 10 allowed by the Criminal Code.10 The Steering Committee notes that the F/P/T Heads of Prosecutions recommend that a panel of 16 jurors be sworn in at the beginning of the trial and that provisions should be enacted to reduce to 8 the minimum number of jurors that are required to render a valid unanimous verdict.11 The Barreau du Québec proposes legislation to allow for 14 jurors to be selected while maintaining the minimum of 10 jurors. In this situation, all the jurors would attend the presentation of evidence and, in the event that 13 or 14 jurors were still sitting at the end of the trial, lots would be drawn to select the 12 individuals who would render the verdict.12

The Steering Committee believes that the removal of certain jurors just before deliberations poses significant problems. Consider the situation where a panel of 14 jurors is sworn in at the beginning of the trial and these 14 jurors are still sitting at the end of the instructions of the judge to the jury. Two persons would then have to be removed so that a panel of 12 jurors would deliberate. The Steering Committee seriously considered the situation of these two jurors. Would they be released from duty and if so how would they be kept from commenting on the jury and its deliberations? Furthermore, how would we ensure the safety of the released jurors with respect to, for example, members of organized crime who would want to extract information from them such as the composition of the jury or the dynamics of the group? The Steering Committee refuses to suggest that the released jurors be sequestered separately. Thus, it considered a solution other than having alternate jurors: reducing the minimum number of jurors to 9 or 8 to render a valid unanimous verdict

As mentioned above, this suggestion was proposed by the F/P/T Heads of Prosecutions. That proposal also meets some of the objectives sought by the Barreau du Québec in that it provides the “flexibility” of four jurors, two more than the current limit. The Steering Committee also notes that in R. v. Genest,13 the Quebec Court of Appeal confirmed that the Charter does not guarantee the right to be judged by a jury of 12 persons.

The proposal to reduce the number of jurors to 8 or 9 to obtain a valid unanimous verdict was a matter of significant concern for some members of the Steering Committee. This committee believes that there should be a specific in-depth examination of that suggestion in particular as regards potential constitutional implications.

Recommendation #8

The Steering Committee recommends that alternate jurors not be appointed for the duration of the trial and recommends that there be a specific and in-depth examination of the issue of reducing the minimum number of jurors to 9 or 8 to obtain a valid unanimous verdict, in particular, as regards potential constitutional implications.

5.4 Alternate judge

The Steering Committee notes that the Barreau du Québec14 and the F/P/T Heads of Prosecutions15 recommend the appointment of an alternate judge who would keep himself - or herself informed of the evidence and the course of the proceedings. This would enable the alternate judge to step in under subsection 669.2(4) Cr.C., if the trial judge was incapable of continuing. This recommendation is not retained, in particular because the Steering Committee is proposing the creation of the management judge role.

5.5 Bail issues

The Steering Committee is of the opinion that consideration of this recommendation goes beyond its mandate and that it would be more appropriate as part of a specific review of bail issues.

5.6 Disclosure

The Steering Committee notes that, although not unique to mega-trials, difficulties associated with the complete and quick disclosure of evidence are particularly experienced after long investigations. The Canadian experience has highlighted the challenges involved in, among other things, (a) the management and classification of the evidence obtained, (b) the choice and use of electronic tools to facilitate the organization, disclosure and review of the evidence obtained, and (c) the need to adapt courtrooms to permit the use of these electronic tools by the parties.

The Steering Committee notes that electronic disclosure can prove beneficial, although some members wonder about the costs associated with this undertaking. The Steering Committee insists however that, when electronic disclosure is used, the use of a standardized, high-performance and user-friendly search engine is essential. Evidence disclosed electronically, as well as the search engine, must be linked to the trial brief.

The Steering Committee notes that the federal Minister of Justice has announced his intention to introduce legislation on disclosure.

Recommendation #9

The Steering Committee recommends the use of electronic disclosure, if the circumstances allow it and if a standardized, high-performance and user-friendly search engine is available; evidence disclosed electronically, as well as the search engine, must be linked to the trial brief.

Without necessarily adopting all the comments of the F/P/T Heads of Prosecutions on this issue, the Steering Committee notes that their Recommendation 16 reflects in part recommendation 9 above.

5.7 Involvement of Law Societies

The Steering Committee believes that it would be a good idea to conduct a more detailed examination of the limits that could be imposed on lawyers when they address the media with regard to cases pending before the courts. The Steering Committee is pleased to note that the Barreau du Québec made similar statements in its Final Report.16

The Steering Committee believes that the bar associations may have a role to play in improving the management of mega-trials. For example, the Steering Committee welcomes the Barreau du Québec's suggestion of using its professional training school to better equip future lawyers to face that type of case.17

With respect to incidents of derogatory conduct by lawyers in a mega-trial, the Law Societies must be aware that the parties involved are not necessarily in a position to immediately file a complaint, for fear that it would jeopardize the proceedings. Furthermore, the trial judge will often hesitate to intervene fearing that his or her impartiality would be questioned.

When a complaint is filed, however, the Law Society must deal with it quickly.

Recommendation #10

Given the unique nature of mega-trials and the complex and difficult issues that may arise in their management for the lawyers involved, the Steering Committee recommends that the Law Societies consider their role in assisting with guidance, education and rules of professional conduct that may have particular relevance to these types of cases.

Without necessarily adopting all the comments of the F/P/T Heads of Prosecutions on this issue, the Steering Committee notes that their Recommendation 10 reflects in part recommendation 10 above.



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