Suspended Senator Mike Duffy faces thirty-one charges under the Criminal Code; multiple counts of fraud over $5000, fraud under $5000, breach of trust, and one count each of fraud on the government, and bribery. These charges relate to residency expense claims, expense claims unrelated to Senate business, awarding of consulting contracts, and accepting $90,000 from Prime Minister Harper’s Chief of Staff, Nigel Wright.
These charges were laid on July 17, 2014, and the trial began on April 6, 2015, with a total of 41 days set aside in April, May and June to hear the evidence. Clearly this is a complex matter, of high public interest and scheduled for trial on an expedited basis. That it has come to trial so quickly reflects the efforts of both parties and the criminal procedure context in which they are operating.
How it is that a trial considered “one of the most important in our history” is being heard in the Ontario Court of Justice? Most “high profile” trials which attract national media attention are heard in a Superior Court, the Ontario Superior Court or a Court of Queen’s Bench in other provinces. These superior courts (called s. 96 courts because that section of our 1867 constitution establishes them) have judges appointed by the federal government, and are the only courts with authority to hear jury trials. All jury trials, and many important “judge alone” trials, are heard in this court.
Mike Duffy, by contrast, is being tried in the Ontario Court of Justice, the lower court in the judicial hierarchy, where the judges are appointed by the provincial government. Mr. Justice Charles Vaillancourt is a seasoned veteran of that court. So why is Mr. Duffy before Justice Vaillancourt and not some judge of the Superior Court?
Although lower in the hierarchy than the Superior Court, the Ontario Court of Justice does the majority of the criminal court work in the province. All criminal cases start there. Depending on the nature of the charge, and on the choices (called “elections”) made by the crown and the defence, the matter may stay in the Ontario Court for trial or “go upstairs” to the Superior Court.
Most of the charges facing Mr. Duffy are straight “indictable” offences, serious charges where the maximum penalty ranges from a potential of five years custody to fourteen years. Where the charge is an indictable offence, Mr. Duffy would have been able to “elect” how he wanted to be tried. By a judge alone, in the Ontario Court of Justice? By a judge and jury, in the Superior Court? Or by a judge alone, in the Superior Court?
If he had opted for the Superior Court, he could have had a prior preliminary hearing in the Ontario Court. Preliminary hearings are held, at the request of the defence, to see if the crown has a prima facie case on each charge, and for the purposes of disclosure. When I was first appointed to the Bench, preliminary hearings were commonplace in the provincial court, and often used as a tool for delay. If a defendant chose “a prelim” (as they are called), it would be many months before it could be heard and, when it was, the defendant would frequently “waive the prelim” and consent to committal to the Superior Court without hearing any of the evidence. Then it would be many more months before a trial date could be set in the Superior Court. Since the 1990s, prelims have been streamlined. Usually the crown presents only enough evidence to satisfy the basic test for committal, and the defence presents no evidence at all. Defendants are now required to indicate what evidence they need to hear on a prelim, and the specific issues to be addressed. Disclosure is less of an issue than previously, as the Supreme Court of Canada decision in R. v. Stinchcombe (1991) compels all crown attorneys to disclose all they have about the case to the defence well before the trial.
As the Duffy case involves the relationship between Mr. Duffy and the Prime Minister’s Office, and the nature of the Canadian Senate, getting the matter to trial as soon as possible would have been a priority for both parties. The delay inherent in scheduling a preliminary hearing, and the publication ban typically imposed on evidence heard at a prelim, would have served the interests of neither party.
Another reason for the trial to go ahead in the lower court is that the seven counts of “fraud under $5000” charges against Mr. Duffy are “hybrid offences” where the crown can elect to proceed “by indictment” or “by summary conviction.” If “by indictment,” the Criminal Code mandates that fraud under charges must remain in the provincial court and the maximum penalty is two years in jail. That all the charges against Mr. Duffy should be heard together favours having the trial in the provincial court.
Just to complete the analysis, note that provincial criminal courts have exclusive jurisdiction to hear and decide all “summary conviction” offences. There are “straight” summary conviction offences defined in the Criminal Code, such as unlawful assembly, trespassing by night, indecent acts. There are also “hybrid” summary conviction offences where the crown has the choice of proceeding summarily or by indictment. Crowns generally choose to go summarily where the charges are alleged to have taken place within the past six months, are less important on their facts, and where the right maximum sentence on conviction would be six months or, in the case of certain offences like sexual assault or sexual interference, eighteen months.
Amendments to the Criminal Code in the 1990s increased the maximum sentence for conviction on more serious summary conviction offences to eighteen months. That this longer prison term was now available had a major impact on the workload of the Ontario Court of Justice. Now crown attorneys could secure an appropriate sentence without the need for a preliminary hearing or going “upstairs.” The effect has been to make the Ontario Court of Justice the principal criminal court in the province, doing more than 95% of the criminal and youth court work, attracting judges very skilled in criminal law, and also more “high profile” cases. Now, whether at the choice of the crown or the defence, the overwhelming majority of all criminal trials occur in the Ontario Court of Justice.
People concerned about having so important a matter decided by a single judge rather than a jury can be reassured that trial by judge alone is the most accountable of all proceedings. Juries do not have to give reasons for their verdicts and, in Canada unlike the United States, it is unlawful to ask about or reveal the nature of jury deliberations. A judge alone, by contrast, is required to give reasons for his or her findings. These reasons must deal with all the issues before the court and must be comprehensible to the litigants and to the public. A litigant unhappy with the result can appeal.