Hon. George Baker:

Honourable senators, I will be very brief. In fact, I might inform senators that the Standing Senate Committee on Legal and Constitutional Affairs is dealing with this bill right now at this very moment. As Senator Runciman said, we will have the judge as a witness. In fact, he will start in about 20 minutes. The minister is presently giving evidence before the committee.

I might make note, before concluding on that comment, that it took the House of Commons five minutes in committee to pass this bill — five minutes. They heard no witnesses. They heard the minister, yes, and the Crown prosecutors association, but that was the extent of the examination. Then it was deemed to have been reported, and third reading was given today. The House of Commons has once again displayed that it is a very poor legislative body. That is left to the Senate to do. It does an excellent job in keeping the government accountable to the people of Canada through Question Period. When you look at the judgments of our courts, you see the Senate mentioned three times more than you see the House of Commons mentioned in arguments in judgments. If you did a count on it Westlaw Carswell, you would discover that has been the case over the past two decades.

Honourable senators, in my few remarks, first let me say, in answer to the questions that have been put, that as far as case management is concerned, section 482 of the Criminal Code, passed many years ago, allows for case management of trials. Section 482 of the Criminal Code is in the section that allows for the making of rules in our courts. We have rules in our provincial courts, in our superior courts in the provinces, and rules for the Court of Appeal and rules for the Supreme Court of Canada, and they are under that section. That section was changed some years ago to allow for the appointment of case management judges. When you have a trial in a criminal matter such as the one we have before us, you have a judge who does case management. That is for the purpose of facilitating passage of the trial. In other words, they set dates. The case management judge sets the time for the notice of applications on constitutional questions.

Currently, our courts have that provision. Every province and territory in this country has case management judges in complicated criminal matters who set the rules so that the trial will progress on time. Bill C-2 proposes to take it way beyond that measure in section 482. To understand the bill, one would have to read the judgment in Auclair c. R. from May 31, 2011. In the case, 156 persons were charged. The Hells Angels were being investigated by the Royal Canadian Mounted Police between 1992 and 2009. It was a long time. One can imagine the amount of disclosure involved in this case, given that telephones were tapped for 17 years.

In April 2009, 156 persons were charged with offences that included murder, conspiracy to murder, trafficking, and conspiracy to traffic. The case management judge had heard some pre-trial arguments and was prepared to decide how the trial would proceed. Arguments were presented by the prosecution and the defence. The defence had asked for particulars on exactly which charges pertained to their respective clients of the 156 counts. There were more counts than that as 156 persons were charged.

In his final judgment, the judge criticized the prosecution for not separating the 156-person series of counts into the proper allocations. A section of the Criminal Code says that one cannot join two trials that involve murder. The judge then chastised the federal government for not having enough judges and chastised the Government of Quebec for not having enough courtrooms. The judge identified that only two courtrooms existed in Quebec that could hear trials of more than 12 persons of the nature that were being charged in this case. They needed security, a secure facility, and available judges, but only two courtrooms in Montreal, Quebec, qualified.

The 156 people would have to be tried in two courtrooms in Montreal. The judge determined that it would take two years to try each lot; and there were approximately 12 persons in each lot. The first cases heard were for murder, and the second cases were for conspiracy to murder. Those charges were enjoined with charges that the Hells Angels was a criminal organization. As honourable senators know, the definition of "criminal organization" was put in the Criminal Code not too long ago. There has been no real case law to date on what is defined as a "criminal organization." The case law has gone back and forth on whether the Hells Angels is a criminal organization.

The judge had to assign the cases in order of importance to the only two courtrooms that qualified. He reasoned that the people of Canada would be outraged if persons charged with murder and conspiracy to murder were put at the bottom of the list and did not have their cases heard until 2020. That is the way the trials were arranged.

The judge reasoned on application that the 31 people at the bottom of the list who were charged with trafficking in Schedule 1 drugs — cocaine and large amounts of marijuana — would be set free because delaying their trial until 2021 would be a violation of section 11(d) of the Charter.

That is what we were left with, and that is why the government today wants honourable senators to pass this bill before the house rises. The trials involving the first murder accusations are to start on Monday and will last for two years. I recently received a copy of Bill C-2. When I look at a bill, I always look at what is new to the Code and underlined in the bill. A vertical line indicates a completely new section.

There are 11 pages in the bill, and 7 of them have vertical lines indicating a new section proposed for the Criminal Code. Looking at those sections, one can see the big heading, "Case Management Judge," as Senator Runciman pointed out. What is the function of the case management judge? What is the principle of the bill? What is the gravamen of the legislation? Looking at it, one notices that it says to adjudicate such matters as "(i) the disclosure of evidence, (ii) the admissibility of evidence, (iii) the Canadian Charter of Rights and Freedoms."

Honourable senators, before the Legal Committee we will hear from the Canadian Bar Association, the Canadian Defence Lawyers Association, representatives of the police forces — who will be most affected by this legislation, and the prosecutors. I imagine that the first question asked will be: What is a mega-trial? Why is there no reference in the bill to the definition of "mega-trial?" I think there is a good reason for that lack of reference.

We have megahertz, meaning one million hertz, and megapixels, meaning one million pixels. However, in Canadian law there is a definition for "mega-trial." It is a criminal trial involving multiple accused and multiple charges lasting for a lengthy period.

Every trial in which there are multiple accused and multiple charges lasting for a lengthy period qualifies as a mega-trial. That would include all our cases under the Controlled Drugs and Substances Act, for example.

There will now be a procedure put in place by which there will be a case management judge who will appoint another judge. Now we are up to two judges handling the same matter. What will that second judge determine? They will determine matters concerning the Canadian Charter of Rights and Freedoms prior to the trial.

There are words repeated throughout this legislation: "before the hearing of the evidence on the merits." Your Honour will be familiar with that phrase. That means the evidence at trial. Senator Andreychuk, given her role as a judge, would also understand very clearly what that means. It means one does not have on the record the evidence used in this pre-trial procedure of determining questions concerning the Canadian Charter of Rights and Freedoms.

How can one decide if there is a violation of the Canadian Charter of Rights and Freedoms from within a vacuum? How can one decide the normal violations? Honourable senators know the violations very well. One starts when someone is charged. That is subsection 10(a). One must be told why one has been detained. Subsection 10(b) provides rights to counsel. Section 8 covers illegal search. Section 9 is about arbitrary detention. Section 7 covers fundamental rights. That is disclosure. At the end of the process, one comes to section 11(b), which is trial within a reasonable period of time.

Therefore, how can it be determined whether a search warrant should have been issued for someone's home if one does not have the evidence that will be used at trial? This is the problem that I see on the face of it, in principle.

Today, if one goes into court trial and reads all the judgments that are put out concerning this matter, one will discover, as honourable senators know, that the defence puts forward a notice of constitutional question. Then the judge says, "If you are putting forward an argument, you have to present the evidence to back it up."

That means they have to subpoena the police and the affiants of the sworn information to obtain. All these people must be subpoenaed by a defence counsel. To help, every judge in every province today says, "Crown, you will lead the evidence. We will start the trial and when we get to that point in the trial, we will hear the Charter argument."

The overriding question is how one can have such a determination? As Senator Runciman pointed out, the Canadian Charter of Rights and Freedoms has imposed incredible responsibilities on the court ever since 1983. It is getting a bit worse because we keep passing legislation. The Criminal Code has doubled in size since section 482 came to be, which I referred to earlier.

It is a huge problem. How do we solve it? Do we solve it by having another judge?

I am simply looking at the principle of the bill, because I think everyone will support this bill. However, we have to be careful that we do not pass legislation that allows the guilty to be set free at the end of the day because the trial has not yet finished after 10 years.

Without the appointment of more judges, how can one even deal with the matter under consideration in this bill? Those are some of the questions that will be asked of the witnesses, especially of the judge who is appearing in another few minutes. Senator Runciman and I hope that we will be there in time to question him.

Thank you very much.

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