A cultural change that emphasizes collaboration between all players of Quebec’s criminal justice system is the only way to ensure that costly and unwieldly megatrials do not end up in fiascos, according to a well-received comprehensive report on multi-defendant trials.
The long-awaited 180-page report also urges the Quebec government to provide more resources to the province’s Director of Penal and Criminal Prosecutions (DPCP), recommends that Quebec crown prosecutors limit the number of accused and concentrate their efforts on criminals most involved in serious crimes, advises the creation of a permanent forum for stakeholders to share best practices, proposes that police and prosecutors take management training, and calls on judges to use the powers they have more effectively. All told, the report makes 51 wide-ranging recommendations.
“The outcomes of some highly-publicized court cases have undermined the confidence our society has in the capacity of our institutions to enforce the rule of law, preserve public order and curb the expansion of organized crime,” said retired deputy justice minister Michel Bouchard who headed a panel of four experts who met with 92 judges, lawyers, police and other stakeholders of the Quebec criminal justice system over the course of the year.
The report was commissioned a year ago by Quebec Justice Minister Stéphanie Vallée after a stunning decision by Quebec Superior Court Justice James Brunton who ended the murder trial of men alleged to have been members of the Hells Angels because the Crown had withheld relevant evidence from the defence for years and only divulged it four weeks after the trial had begun.
“Following a first reading of the recommendations, we believe that they can be put in place and that it will have a beneficial impact on the administration of justice,” said Vallée in a press release. “Since the report was tabled, we have launched a thorough analysis of its 51 recommendations and the government will follow through.”
Megatrials often become long and complex because police investigations are themselves long and accumulate “voluminous” evidence that is always difficult for judges, jurors and lawyers to absorb and process, notes the Bouchard report. Making matters even more complicated is that often times evidence is introduced that has no pertinence to the crimes that were committed, or the analysis of the evidence by police and crown prosecutors is flawed. “Inadequate preparation” is another reason why megatrials are challenging as is the absence of communication and cooperation between stakeholders in Quebec’s criminal justice system. It is no longer feasible for stakeholders to work in silos under the pretext of maintaining and preserving their autonomy and independence, emphasized the report. That’s why it recommends creating a permanent forum for stakeholders to discuss the challenges they face and the best practices to overcome them.
In that vein in order to ensure that a “trial emanating from a long and complex investigation be manageable throughout the judicial process,” the Bouchard report also recommends that the Crown prosecutor’s office follow in the footsteps of the federal government and the United Kingdom and adopt a “genuinely integrated policy” and structure to tackle megatrials. A megatrial should be viewed as huge logistical project, and the DCPC should appoint the chief prosecutor or the assistant chief prosecutor as the operational or project manager, who should be trained in administrative management, according to the Bouchard report. Such project managers should be involved in the case from the very beginning of a police investigation, and have the onus of taking into consideration the capacity of the judicial system to “successfully complete” the operation. They must therefore assign tasks to people early on in the process, set a calendar and develop a strategy for disclosing evidence. It also entails limiting the number of accused to those who are “most responsible and most involved” in criminal operations, added the report.
There are other means of getting at those who have committed less serious crimes, noted the report. Civil confiscation, unlike confiscation of criminal proceeds, has a lower threshold to satisfy. The Crown does not have to prove beyond a reasonable doubt of the existence of illegal activities nor a link to the proceeds or with the defendant as is the case in criminal matters. Under the civil standard, only the balance of probabilities is taken into account. That is a strategy therefore that the Crown should pursue systematically, said the report.
But that does not sit well with criminal defence lawyers. “That recommendation disturbs me,” said Daniele Roy, the president of Montreal’s defence lawyers association. “It’s not really necessary to reduce the burden because then we are beginning to erode on the presumption of innocence.”
The Bouchard report also says it’s time for judges overseeing megatrials to use the powers that they were handed by the federal government to more efficiently manage multi-defendant trials, said the report. “Even though these measures were introduced five years ago, it is clear that judges have up to now been slow to use these measures,” said the report. “The time has come for judges to use management practices that allow trial judges to take charge and to demonstrate leadership.”
But judges, who should be selected to preside over a megatrial based not only based on their availability or schedule, should also have a team of experienced lawyers and paralegals to help with the “colossal task” of managing a megatrial. “There is no sacrosanct principle attached to our rules of law or procedure that prohibit judges from receiving assistance,” noted the report.
Besides encouraging the provincial government to examine whether pay for jurors in megatrials should be increased, the Bouchard report also recommends that the lawyer’s code of ethics be modified to deal with the unhealthy relationship between prosecutors and defence lawyers that has surfaced over the past couple of years. An “atmosphere of mistrust” has permeated to such an extent in megatrials that in one trial at least 14 complaints dealing with ethical misconduct were lodged before the Barreau du Québec. The report recommends that in such cases that the Barreau’s syndic, or investigating officer, deal with such cases immediately as opposed to the end of the trial as is now the case.
“The report does not provide solutions to all the problems that have surfaced in megatrials but attacks a good number of them,” said Roy. “This report addresses all the steps in a megatrial from the beginning of an investigation until the verdict is rendered. I’m optimistic that this report will not be shelved. I hope not.”
The DPCP, which views the recommendations made by the Bouchard report favourably, is already at work implementing some of them, according to spokesperson René Verret. “I don’t know how long it will take to implement the recommendations but we are already doing some of the things recommended by the report,” said Verret, a lawyer.
According to Montreal criminal lawyer Jean-Claude Hébert, the Bouchard report provides an excellent portrait and “fair diagnostic” of the challenges created by megatrials. “It remains to be seen however whether the recommendations will be efficient – only time will tell,” said Hébert.
This story was originally published in The Lawyers Weekly.