Fair and Efficient Criminal Trials Act (S.C. 2011, c. 16)
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Assented to 2011-06-26
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-46CRIMINAL 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.1CASE 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.
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