Open Letter

November 28, 2008

The Honourable Robert Nicholson, P.C., M.P.
Minister of Justice and Attorney General of Canada
East Memorial Building, 4th Floor
284 Wellington Street
Ottawa, ON
K1A 0H8

Dear Minister Nicholson:

As you will recall, last February, 2008 I asked two very eminent, experienced and knowledgeable members of our legal community, The Honourable Patrick LeSage, former Chief Justice of the Superior Court and Professor Michael Code of the Faculty of Law, University of Toronto to conduct a review of large and complex criminal case procedures.

At last fall's Federal-Provincial-Territorial meeting, I appreciated your enthusiasm in wishing to work with the provinces and territories in ensuring an effective justice system. We had a unanimous resolution. The LeSage-Code report suggests several ways in which we can work together to achieve this common goal. Mr. LeSage and Mr. Code made a number of recommendations relating to amendments to federal legislation. These include:

1. Pre-trial case management - In large and complex cases, it is especially critical that a judge is available and empowered to take charge of a case at an early stage. As you know, it is not always practical to wait until a trial judge is appointed in order to start managing a complex case (which the Criminal Code currently requires). What is needed is a legislative power to appoint a pre-trial judge at the inception of a case who will have the authority to manage the case at an early stage, through binding decisions.

   I would therefore ask that you consider, as early as possible, the recommendation that the Criminal Code be amended to provide for this kind of effective pre-trial management.

2. Binding nature of rulings - Inherently, large and complex cases often face unique complications that arise as the case proceeds. We are interested in doing everything we can to ensure that when these complications arise, and it is necessary to redo certain of the proceedings, it is not necessary to start at ground zero and re-litigate all issues.

   I would therefore ask that you consider, as early as possible, the recommendation that the Criminal Code be amended to provide that rulings made, both pre-trial and trial at a proceeding that ends in severance or a mistrial remain binding at a subsequent trial.

3. Canada Evidence Act, s.38 - As you have experienced, terrorism cases epitomize large and complex cases. While the nature of the charges give rise to necessary complexity, it would be beneficial, of course, to remove any unnecessary complications. I would therefore ask you to consider the recommended amendment that would eliminate the need for a trial court to wait for the rulings of a federal court on certain evidence issues.

I look forward to meeting at your earliest convenience to discuss these recommendations and to continuing our collaboration on making our criminal justice system even more effective.

Yours truly,
Hon. Chris Bentley
Attorney General