Chapter 1 - Report Of The Review Of Large And Complex Criminal Case Procedures
On February 25, 2008, Attorney General Chris Bentley appointed us to conduct "a review of large and complex criminal case procedures." He asked us to "identify issues and recommend solutions to move large, complex cases through the justice system faster and more effectively." We agreed to prepare a written report, after conducting "focused discussions with defence and Crown counsel, the judiciary, Legal Aid Ontario, police agencies and others involved in large, complex criminal cases." We also agreed to deliver our Report to the Attorney General within six months and the Attorney General advised that it would be made public. 1
Lynn Mahoney was appointed as our counsel and we are greatly indebted to her. She worked tirelessly and effectively, both at our many consultations and in our research and writing. We were also ably assisted by five University of Toronto law students who prepared excellent research memos on a wide variety of topics. These students, Brian Duong, Matthew Gourlay, Nicole Henderson, Andrew Midwood and Fred Schumann, were especially helpful with the "case studies" that we conducted, which will be described below. Laura Metrick, counsel in the Policy Division of the Ministry of the Attorney General, was our liaison with the Ministry and with other government agencies. She also provided invaluable assistance in reviewing and analysing the existing body of policy work and publications relating to the topic of our Review. Finally, we are indebted to Iris Wordsworth who worked diligently preparing drafts and redrafts of each Chapter that we produced.
Our work during the six month period of the Review can be divided into four distinct phases. First, we conducted a series of interviews with leading justice system participants, to help us identify the key issues and focus our broad mandate. At the same time, we conducted a preliminary review of the available literature on the subject of long complex trial procedure. We completed this preliminary work during March and April 2008 and on April 30, 2008 we issued an eleven page document titled "Preliminary List of Issues for Consultation". The document identified four main issues, and was later expanded to five issues, on which we requested submissions from justice system participants. We made it clear that we would welcome discussion of any important additional issues that the parties might identify.
The second phase of our work, during May and June, 2008, consisted primarily of a long series of consultations with defence counsel, federal and provincial Crown counsel, police officers, judges, justices of the peace, Legal Aid officials, Crown managers, senior judges with administrative responsibilities, Law Society officials, police managers, federal and provincial justice policy advisors and various justice system organizations. There were approximately 25 of these consultations which generally followed the outline in our "Preliminary List of Issues". In addition, we received written submissions from many of these parties and from other interested individuals and organizations.
During this second phase we also began an analysis of the relevant case law, publications and policy work, relating to the so-called "mega-trial phenomenon". Given that the six month time frame for our Report did not permit any kind of comprehensive empirical study of this phenomenon, it was suggested to us that we should examine the Court of Appeal records of a number of recent "mega-trials". The persons with whom we consulted suggested some examples of very long complex trials that had already proceeded through the Court of Appeal. Accordingly, their trial records would be available to us without delay. We reviewed these suggestions with four members of the Ontario Court of Appeal and they generously agreed to facilitate speedy access to the Court's records. In the result, we obtained the transcripts, facta and Appeal Books for four major cases and began an in-depth study of each one. 2
By the end of this second phase, we were struck by the relatively high degree of consensus that appeared to exist amongst most participants as to potential solutions to many of the key problems associated with the "mega-trial phenomenon". The parties attending our consultations exhibited high standards of professionalism. They appeared to pragmatically accept that there is joint responsibility, amongst all justice system participants, to try to make these long complex cases more efficient. It was suggested to us, and we agreed, that it would be useful to circulate a second consultation document, setting out the possible solutions that had emerged to the key problems, in order to determine whether there was, in fact, a reasonable degree of consensus.
The third phase of our work, therefore, was to prepare a 24 page document titled "Some Tentative Proposals" which was circulated to the participants on July 21, 2008. It attempted to identify a set of recommendations for reform that would be broadly supported by all justice system participants. We then held a series of "roundtable discussions", in the last week of July, to debate these proposals. During the earlier consultation phase, we had met with the various groups separately, in order to encourage candour. During this further "roundtable" phase, in July, we brought the participants together in the hopes of encouraging pragmatic compromise and consensus.
We believe this third phase of our work achieved its purpose. Many of our proposals were widely accepted by the participants. In other cases, detailed revisions were suggested but the broad principles were accepted. Finally, in some cases we were persuaded to make changes to our proposals.
As a result of the above process, we were able to move to the fourth and final phase of our work, in August, namely, the drafting of this Report.
We wish to thank all of the participants who made submissions to us, either in writing or in person at our consultations and roundtables. They are all listed in Appendix A to this Report. We hope that our work reflects their many insights and invaluable contributions. As stated above, we were impressed throughout by the highly professional and responsible way in which these justice system participants have responded to the challenges of long complex trials.
We conclude this introductory chapter by acknowledging a possible weakness in our process. Some participants urged us to engage in thorough empirical research, by analysing a statistically significant representative sample of long complex cases. For example, it was suggested that we ought to select a sample of 50 to 100 of these cases, extending over a five year period, and study the transcripts of those cases in order to determine the incidence and magnitude of the "mega-trial phenomenon".
We agree that this kind of research and report would be ideal. It was simply not feasible in the six month time period available for our Review. As will be seen, some of our recommendations include the need for after-the-fact case reviews, audits or post-mortems of long complex trials, where the public perceives that the case should have been conducted more speedily and efficiently. If these recommendations are accepted, the justice system will begin to develop a body of in-depth research on cases that have proceeded through the courts in a less than satisfactory manner. Of course, we would endorse the call for more thorough empirical research on this topic and encourage justice system participants to commission this kind of work. For a start, it would be very helpful if better statistical data were kept on the length of pre-trial motions and trials so that comparative analysis could be undertaken in future years.
Not only did we lack the time to do this kind of thorough empirical research but, in any event, we believe that many improvements can be made to the justice system without waiting until further research is completed. We were satisfied, based on our extensive consultations, our review of the case law and the literature published in this field, and our four case studies that certain recurring problems are identifiable. It does not matter how many times these problems occurred in the past or continue to occur in future cases. The fact that they have already been exhibited in a number of major cases has caused significant harm to the effectiveness of the criminal justice system and to confidence in that system. When broad consensus exists as to the solutions to these problems, and we believe such consensus does exist, the justice system should take steps to prevent their recurrence. It is on that basis that we have proceeded.
It must be remembered that the long complex cases are, generally speaking, the most high profile cases. They attract intense media scrutiny and are, therefore, communicated widely to the public. They come to be seen as exemplars for the broader justice system. Every time one of these cases is seen to be inordinately delayed or dysfunctional it has a significant impact on public confidence in the efficiency and effectiveness of the justice system. Accordingly, we must address the problems associated with these cases, regardless of whether there are five or 10 or 100 of them each year.
- "Attorney General Launches Complex Criminal Case Procedure Review," News Release, February 25, 2008 Online: http://www.ontario.ca/attorneygeneral
- The four cases were: R. v. Kporwodu and Veno (2003), 176 C.C.C. (3d) 97 (Ont. S.C.J.), aff'd (2005), 195 C.C.C. (3d) 501 (Ont. C.A.); R. v. Khan and Fatima 2007 ONCA 779, 230 O.A.C. 174; R. v. Sauve and Trudel (2004), 182 C.C.C. (3d) 321 (Ont. C.A.); R. v. Trudel,  O.J. No. 113 (Ont. S.C.J.), staying the re-trial; R. v. Mallory and Stewart (2007), 217 C.C.C. (3d) 266 (Ont. C.A.).