Fair and Efficient Criminal Trials Act
S.C. 2011, c. 16
Assented to 2011-06-26
An Act to amend the Criminal Code (mega-trials)
SUMMARY
This enactment amends the Criminal Code to
(a) allow for the appointment of a judge as a case management judge;
(b) define the role and the powers of a case management judge;
(c) streamline the use of direct indictments preferred under section 577;
(d) allow for delayed severance orders;
(e) improve the protection of the identity of jurors;
(f) increase the maximum number of jurors who can hear the evidence on the merits; and
(g) provide that, in the case of a mistrial, certain decisions made during the trial are binding on the parties in any new trial.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Fair and Efficient Criminal Trials Act.
R.S., c. C-46 CRIMINAL CODE
2. (1) Section 523 of the Criminal Code is amended by adding the following after subsection (1.1):
Marginal note:When direct indictment is preferred charging same offence
(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.
Marginal note:R.S., c. 27(1st Supp.), s. 89(4)
(2) The portion of subsection 523(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Order vacating previous order for release or detention
(2) Despite subsections (1) to (1.2),
Marginal note:2002, c. 13, s. 27
3. Paragraphs 536.3(a) and (b) of the French version of the Act are replaced by the following:
a) les points sur lesquels la partie faisant la demande veut que des témoignages soient présentés dans le cadre de l’enquête;
b) le nom des témoins que la partie faisant la demande veut entendre à l’enquête.
4. The Act is amended by adding the following after section 551:
PART XVIII.1 CASE MANAGEMENT JUDGE
Marginal note:Appointment
551.1 (1) On application by the prosecutor or the accused or on his or her own motion, the Chief Justice or the Chief Judge of the court before which a trial is to be or is being held or the judge that the Chief Justice or the Chief Judge designates may, if he or she is of the opinion that it is necessary for the proper administration of justice, appoint a judge as the case management judge for that trial at any time before the jury selection, if the trial is before a judge and jury, or before the stage at which the evidence on the merits is presented, if the trial is being heard by a judge without a jury or a provincial court judge.
Marginal note:Conference or hearing
(2) The Chief Justice or the Chief Judge or his or her designate may order that a conference between the prosecutor and the accused or counsel for the accused or a hearing be held for the purpose of deciding if it is necessary for the proper administration of justice to proceed with the appointment.
Marginal note:Timing of application or appointment
(3) In the case of a trial for an indictable offence, other than a trial before a provincial court judge, the application or appointment may only be made after the prosecution prefers the indictment.
Marginal note:Same judge
(4) The appointment of a judge as the case management judge does not prevent him or her from becoming the judge who hears the evidence on the merits.
Marginal note:Role
551.2 The case management judge shall assist in promoting a fair and efficient trial, including by ensuring that the evidence on the merits is presented, to the extent possible, without interruption.
Marginal note:Powers before evidence on merits presented
551.3 (1) In performing his or her duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, may exercise the powers that a trial judge has before that stage, including
(a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances;
(b) encouraging the parties to make admissions and reach agreements;
(c) encouraging the parties to consider any other matters that would promote a fair and efficient trial;
(d) establishing schedules and imposing deadlines on the parties;
(e) hearing guilty pleas and imposing sentences;
(f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented; and
(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to
(i) the disclosure of evidence,
(ii) the admissibility of evidence,
(iii) the Canadian Charter of Rights and Freedoms,
(iv) expert witnesses,
(v) the severance of counts, and
(vi) the separation of trials on one or more counts when there is more than one accused.
Marginal note:Hearing
(2) The case management judge shall order that a hearing be held for the purpose of exercising the power referred to in paragraph (1)(g).
Marginal note:Power exercised at trial
(3) When the case management judge exercises the power referred to in paragraph (1)(g), he or she is doing so at trial.
Marginal note:Decision binding
(4) A decision that results from the exercise of the power referred to in paragraph (1)(g) is binding on the parties for the remainder of the trial — even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.
Marginal note:Information relevant to presentation of evidence on merits to be part of court record
551.4 (1) When the case management judge is of the opinion that the measures to promote a fair and efficient trial that can be taken before the stage of the presentation of the evidence on the merits have been taken — including adjudicating the issues that can be decided — he or she shall ensure that the court record includes information that, in his or her opinion, may be relevant at the stage of the presentation of the evidence on the merits, including
(a) the names of the witnesses to be heard that have been identified by the parties;
(b) any admissions made and agreements reached by the parties;
(c) the estimated time required to conclude the trial;
(d) any orders and decisions; and
(e) any issues identified by the parties that are to be dealt with at the stage of the presentation of the evidence on the merits.
Marginal note:Exception
(2) This section does not apply to a case management judge who also hears the evidence on the merits.
Marginal note:Trial continuous
551.5 Even if the judge who hears the evidence on the merits is not the same as the case management judge, the trial of an accused shall proceed continuously, subject to adjournment by the court.
Marginal note:Issues referred to case management judge
551.6 (1) During the presentation of the evidence on the merits, the case management judge shall adjudicate any issue referred to him or her by the judge hearing the evidence on the merits.
Marginal note:Powers at stage of presentation of evidence on merits
(2) For the purposes of adjudicating an issue, the case management judge may exercise the powers of a trial judge.
Marginal note:Decision whether to hold joint hearing
551.7 (1) If an issue referred to in any of subparagraphs 551.3(1)(g)(i) to (iii) is to be adjudicated in related trials that are to be or are being held in the same province before a court of the same jurisdiction, the Chief Justice or the Chief Judge of that court or his or her designate may, on application by the prosecutor or the accused or on his or her own motion, determine if it is in the interests of justice, including ensuring consistent decisions, to adjudicate that issue at a joint hearing for some or all of those trials.
Marginal note:Considerations
(2) To make the determination, the Chief Justice or the Chief Judge or his or her designate
(a) shall take into account, among other considerations, the degree to which the evidence relating to the issue is similar in the related trials; and
(b) may order that a conference between the prosecutor and the accused or counsel for the accused or a hearing be held.
Marginal note:Order for joint hearing
(3) If the Chief Justice or the Chief Judge or his or her designate determines that it is in the interests of justice to adjudicate the issue at a joint hearing for some or all of the related trials, he or she shall issue an order
(a) declaring that a joint hearing be held to adjudicate the issue in the related trials that he or she specifies;
(b) naming the parties who are to appear at the hearing;
(c) appointing a judge to adjudicate the issue; and
(d) designating the territorial division in which the hearing is to be held, if the trials are being held in different territorial divisions.
Marginal note:Limitation — indictable offence
(4) However, the order may only be made in respect of a trial for an indictable offence, other than a trial before a provincial court judge, if the indictment has been preferred.
Marginal note:Order in court record and transmission to parties
(5) The Chief Justice or the Chief Judge or his or her designate shall cause a copy of the order to be included in the court record of each of the trials specified in the order and to be provided to each of the parties named in it.
Marginal note:Transmission of court record
(6) If one of the specified trials is being held in a territorial division other than the one in which the joint hearing will be held, the officer in that territorial division who has custody of the indictment or information and the writings relating to the trial shall, when he or she receives the order, transmit the indictment or information and the writings without delay to the clerk of the court before which the joint hearing is to be held.
Marginal note:Order to appear at joint hearing
(7) The judge appointed under the order shall require the parties who are named in it to appear at the joint hearing.
Marginal note:Removal of prisoner
(8) The order made under subsection (2) or (3) is sufficient warrant, justification and authority to all sheriffs, keepers of prisons and peace officers for an accused’s removal, disposal and reception in accordance with the terms of the order, and the sheriff may appoint and authorize any peace officer to convey the accused to a prison for the territorial division in which the hearing, as the case may be, is to be held.
Marginal note:Powers of judge
(9) The judge appointed under the order may, as a trial judge and for the purpose of adjudicating the issue at the joint hearing, exercise the powers of a trial judge.
Marginal note:Adjudication at trial
(10) When the judge adjudicates the issue, he or she is doing so at trial.
Marginal note:Decision in court records and return of documents
(11) Once the judge has adjudicated the issue, he or she shall cause his or her decision, with reasons, to be included in the court record of each of the related trials in respect of which the joint hearing was held and, in the case of a trial for which an indictment, information or writings were transmitted by an officer under subsection (6), the judge shall have the documents returned to the officer.
5. Section 591 of the Act is amended by adding the following after subsection (4):
Marginal note:Delayed enforcement
(4.1) The court may make an order under subsection (3) that takes effect either at a specified later date or on the occurrence of a specified event if, taking into account, among other considerations, the need to ensure consistent decisions, it is satisfied that it is in the interests of justice to do so.
Marginal note:Decisions binding on parties
(4.2) Unless the court is satisfied that it would not be in the interests of justice, the decisions relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that are made before any order issued under subsection (3) takes effect continue to bind the parties if the decisions are made — or could have been made — before the stage at which the evidence on the merits is presented.
Marginal note:R.S., c. 27 (1st Supp.), s. 123(1)
6. Subsection 601(1) of the Act is replaced by the following:
Marginal note:Amending defective indictment or count
601. (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.
7. (1) Section 631 of the Act is amended by adding the following after subsection (2.1):
Marginal note:Additional jurors
(2.2) If the judge considers it advisable in the interests of justice, he or she may order that 13 or 14 jurors, instead of 12, be sworn in accordance with this Part before the clerk of the court draws out the cards under subsection (3) or (3.1).
Marginal note:2001, c. 32, s. 82(4)
(2) Subsections 631(3) and (3.1) of the Act are replaced by the following:
Marginal note:Cards to be drawn by clerk of court
(3) If the array of jurors is not challenged or the array of jurors is challenged but the judge does not direct a new panel to be returned, the clerk of the court shall, in open court, draw out one after another the cards referred to in subsection (1), call out the number on each card as it is drawn and confirm with the person who responds that he or she is the person whose name appears on the card drawn, until the number of persons who have answered is, in the opinion of the judge, sufficient to provide a full jury and any alternate jurors ordered by the judge after allowing for orders to excuse, challenges and directions to stand by.
Marginal note:Exception
(3.1) The court, or a judge of the court, before which the jury trial is to be held may, if the court or judge is satisfied that it is necessary for the proper administration of justice, order the clerk of the court to call out the name and the number on each card.
Marginal note:2001, c. 32, s. 82(4)
(3) Subsection 631(5) of the Act is replaced by the following:
Marginal note:Drawing additional cards if necessary
(5) If the number of persons who answer under subsection (3) or (3.1) is not sufficient to provide a full jury and the number of alternate jurors ordered by the judge, the clerk of the court shall proceed in accordance with subsections (3), (3.1) and (4) until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection (2.2) — and any alternate jurors are sworn.
Marginal note:2005, c. 32, s. 20
(4) Subsection 631(6) of the Act is replaced by the following:
Marginal note:Ban on publication, limitation to access or use of information
(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if the court or judge is satisfied that such an order is necessary for the proper administration of justice, make an order
(a) directing that the identity of a juror or any information that could disclose their identity shall not be published in any document or broadcast or transmitted in any way; or
(b) limiting access to or the use of that information.
8. Section 634 of the Act is amended by adding the following after subsection (2):
Marginal note:If 13 or 14 jurors
(2.01) If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.
Marginal note:2008, c. 18, s. 26
9. Subsection 640(2.2) of the Act is replaced by the following:
Marginal note:Exclusion order
(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) — and any alternate jurors are sworn.
Marginal note:2001, c. 32, s. 41; 2002, c. 13, s. 55
10. Section 641 of the Act is replaced by the following:
Marginal note:Calling persons who have stood by
641. (1) If a full jury and any alternate jurors have not been sworn and no cards remain to be drawn, the persons who have been directed to stand by shall be called again in the order in which their cards were drawn and shall be sworn, unless excused by the judge or challenged by the accused or the prosecutor.
Marginal note:Other persons becoming available
(2) If, before a person is sworn as a juror under subsection (1), other persons in the panel become available, the prosecutor may require the cards of those persons to be put into and drawn from the box in accordance with section 631, and those persons shall be challenged, directed to stand by, excused or sworn, as the case may be, before the persons who were originally directed to stand by are called again.
Marginal note:2002, c. 13, s. 57
11. Subsection 642.1(1) of the Act is replaced by the following:
Marginal note:Substitution of alternate jurors
642.1 (1) Alternate jurors shall attend at the commencement of the presentation of the evidence on the merits and, if there is not a full jury present, shall replace any absent juror, in the order in which their cards were drawn under subsection 631(3).
Marginal note:2002, c. 13, s. 58
12. Subsection 643(1) of the Act is replaced by the following:
Marginal note:Who shall be the jury
643. (1) The 12, 13 or 14 jurors who are sworn in accordance with this Part and present at the commencement of the presentation of the evidence on the merits shall be the jury to hear the evidence on the merits.
13. The Act is amended by adding the following after section 652:
Marginal note:Trying of issues of indictment by jury
652.1 (1) After the charge to the jury, the jury shall retire to try the issues of the indictment.
Marginal note:Reduction of number of jurors to 12
(2) However, if there are more than 12 jurors remaining, the judge shall identify the 12 jurors who are to retire to consider the verdict by having the number of each juror written on a card that is of equal size, by causing the cards to be placed together in a box that is to be thoroughly shaken together and by drawing one card if 13 jurors remain or two cards if 14 jurors remain. The judge shall then discharge any juror whose number is drawn.
14. The Act is amended by adding the following after section 653:
Marginal note:Mistrial — rulings binding at new trial
653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.
Marginal note:1994, c. 44, s. 65
15. Subsections 669.2(3) and (4) of the Act are replaced by the following:
Marginal note:If no adjudication made
(3) Subject to subsections (4) and (5), if the trial was commenced but no adjudication was made or verdict rendered, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, commence the trial again as if no evidence on the merits had been taken.
Marginal note:If no adjudication made — jury trials
(4) If a trial that is before a court composed of a judge and a jury was commenced but no adjudication was made or verdict rendered, the judge before whom the proceedings are continued may, without further election by an accused, continue the trial or commence the trial again as if no evidence on the merits had been taken.
Marginal note:1991, c. 43, s. 7
16. Section 795 of the Act is replaced by the following:
Marginal note:Application of Parts XVI, XVIII, XVIII.1, XX and XX.1
795. The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice, and the provisions of Parts XVIII.1, XX and XX.1, in so far as they are not inconsistent with this Part, apply, with any necessary modifications, to proceedings under this Part.
COMING INTO FORCE
Marginal note:Order in council
17. (1) Sections 1 to 6, subsections 7(2) and (4) and sections 10, 11 and 14 to 16 come into force on a day to be fixed by order of the Governor in Council.
Marginal note:Order in council
(2) Subsections 7(1) and (3) and sections 8, 9, 12 and 13 come into force on a day to be fixed by order of the Governor in Council.
