Evidence of meeting #105 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was crown.
A recording is available from Parliament.
Liberal
Colin Fraser Liberal West Nova, NS
Can I just ask you to expand on your proposed amendment five?
Repeal Section 606(1.2) in order to bolster the protection by adding the new requirements that a failure to determine whether the facts support the charge before accepting a guilty plea could affect the validity of the plea.
Could you explain that in a little more detail so I can understand it?
Prof. Kent Roach
Sure.
Guilty pleas are obviously important to the efficient running of the criminal justice system. I think it's out of an abundance of caution that Parliament has put in these requirements, but a judge not paying attention to the requirements does not affect the validity of the plea.
We've seen a number of cases, the Charles Smith wrongful conviction cases and others, for which courts have had to undo guilty pleas. It just seems to me a little inconsistent to say, on the one hand, that we should make sure there is a factual basis for a guilty plea, but on the other hand, that if you forget to do it, it doesn't affect the validity of the plea.
In reality, this is going to come up only in cases where the accused challenge the plea. In those cases, I think we need to be cognizant of wrongful convictions.
There was recently a case in Manitoba, Catcheway 2018, in which an indigenous accused with fetal alcohol spectrum disorder pled guilty to a break and enter, and then a couple of months later it was discovered that he was already in jail in a different part of Manitoba. That's an embarrassment. It's an embarrassment to the justice system. I think we want judges to take the time to ensure that there is a factual basis before someone pleads guilty.
Liberal
Colin Fraser Liberal West Nova, NS
Do you mean plea comprehension hearings, then, to ensure they understand exactly what's happening? That happens all the time, now. This would go beyond that, I assume.
Prof. Kent Roach
Yes.
Bill C-75, as it is, is going to add one more step to it. As I said, I'm very supportive of that, but you like to tinker and make things even better. I think that this one repeal would emphasize that we have to be very careful with plea comprehension to make sure it's voluntary and knowing, and also that there's a factual basis.
NDP
Murray Rankin NDP Victoria, BC
Thanks very much to both of you gentlemen for appearing.
I'd like to drill down a bit into the brief that Professor Roach provided.
In connection with your proposed amendment number two, you talk about something I'm not, frankly, familiar with—the concept of volunteer jurors from indigenous communities. It says it's been used in Ontario and in New York and was recommended by Justice Iacobucci.
I wonder if you could explain a bit more how that would work.
Prof. Kent Roach
Sure. Just to be clear, Mr. Rankin, they have been used only in coroners' juries. They were used in the inquest into the deaths of students in Thunder Bay.
As Justice Iacobucci documented in his 2013 report, many indigenous people he spoke to were reluctant to be jurors. This was for a variety of reasons, including bad experiences in the criminal justice system, being excluded on the basis of peremptory challenges, and not feeling comfortable in an adversarial system. He said we should allow people who want to be on the jury and who are otherwise qualified. This is a form of affirmative action that departs from random selection. I think that could work in the criminal law, as long as that person could be screened on issues of impartiality if there was a realistic possibility that they were partial.
It really is a recognition that indigenous communities face a lot of challenges. There may be some people from the community who are willing to do this civic duty. That should be encouraged.
I think about the five visibly indigenous persons who came to Battleford. As you may know, Mr. Rankin, they summoned 750 jurors, and only 179 showed up. I think of those five people who were basically told to go home because of the way they looked. These were people who were otherwise qualified and were prepared to do their civic duty. I have to say that makes me ashamed.
NDP
Murray Rankin NDP Victoria, BC
Right.
I'd like to talk about another thing I don't know much about, which is the notion of stand-asides, which accompanies your proposed amendment number four. You have recommended that we add a section allowing judges to use stand-asides to maintain confidence in the administration of justice. They already have the ability to do that. You're simply suggesting that if we added the phrase, making sure we have fair representation of aboriginal people, that would give a further clue to the courts that this is what that section could already be used to address. So it's an abundance of caution, a clarification, an elaboration that you're talking about.
Prof. Kent Roach
Exactly. Mr. Rankin, I spent a lot of time this summer looking at all of the jurisprudence from the courts of appeal and the Supreme Court on jury selection. Frankly, judges are somewhat conservative on these issues. My worry is that, as the amendment is now written—which, as you noted, simply adds “maintain confidence in the administration of justice”—it doesn't guide the exercise of judicial discretion. Different judges will exercise the discretion differently.
Just as we saw with the sentencing provisions, and as we see in other parts of Bill C-75 relating to bail, it behooves Parliament to give judges a signal that we are concerned about the overrepresentation of indigenous and other groups in our criminal justice system.
NDP
Murray Rankin NDP Victoria, BC
In 1991, Senator Sinclair, then Justice Murray Sinclair, and Mr. Hamilton did a report on aboriginal justice in the Province of Manitoba. One of their recommendations, interestingly, was that the Criminal Code be amended so that the only challenges that you could make to prospective jurors be challenges for cause, and that both stand-asides and peremptory challenges be eliminated. I wonder what your take on the stand-aside part of that would be.
Prof. Kent Roach
Yes. In 1991 the Manitoba aboriginal justice inquiry wasn't talking about judicial stand-asides, but rather Crown stand-asides. At that time, I think the prosecutor had 48 stand-asides.
Prof. Kent Roach
One thing the Manitoba aboriginal justice inquiry recommended, in light of the Helen Betty Osborne case, where six visibly indigenous people were excluded by the defence, much as Mr. Kettles has already mentioned, was that we should get rid of peremptory challenges.
The other thing Justice Sinclair and Justice Hamilton recommended was that the judge determine issues of impartiality of prospective jurors. That's also what Bill C-75 does. The Criminal Lawyers' Association has a problem with this; I don't.
This is belated law reform. Certainly, people argue that this was a quick reaction to the Stanley case. I think that's unfair. The government is drawing on a 1991 report, both with respect to peremptory challenges and with respect to allowing judges, as opposed to the last two jurors or two random people taken from the jury pool, to decide whether a juror is impartial if he or she is asked questions on a challenge for cause.
NDP
Murray Rankin NDP Victoria, BC
Section 633 already contemplates this, but you're proposing we add the phrase to give greater clarity to it. Could that stand-aside provision have been effectively used in the Stanley case to avoid the embarrassment that occurred?
Prof. Kent Roach
We don't know how many indigenous people were left among the pool of prospective jurors, but it might have been used.
The other thing is that the Criminal Lawyers' Association and other groups propose that instead of getting away from peremptory challenges we regulate their discriminatory use. The problem is that the Americans have tried that for over 20 years without an awful lot of success. It has also been tried in a very few cases in Canada. I mention a couple in my brief, including the Lines case.
I just don't think that regulation has been effective all these 20 years, so I think the best thing is just to get rid of peremptory challenges.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Mr. Ehsassi and Mr. Virani are going to share the next six minutes.
Mr. Ehsassi, go ahead.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Thank you, Mr. Chair. As you indicated, I will be sharing my time with Mr. Virani.
Professor Roach, thank you for your testimony and for the very detailed brief you sent us.
Do you believe that Bill C-75 is a significant step in the right direction?
Prof. Kent Roach
Yes, I think the abolition of peremptory challenges could prevent a repeat of the Stanley case, especially in a jurisdiction like Saskatchewan or Alberta.
Liberal
Ali Ehsassi Liberal Willowdale, ON
That's excellent.
You talk about abolishing categorical and unjustified restrictions. In particular, you talk about not excluding those with criminal records.
Just out of curiosity, could you tell us if any other jurisdiction has introduced such a change?
Liberal
Ali Ehsassi Liberal Willowdale, ON
The reason I ask is that when it came to voluntary jurors, you were good enough to tell us that New York and Ontario have been doing this.
Prof. Kent Roach
That's research I should have done, but, partly, it's also that we allow prisoners to vote. So I don't see why otherwise qualified jurors, just because they have been sentenced to three or four years, or whatever, shouldn't be allowed to serve on a jury, as long as they're not in prison. Certainly, a lifetime ban almost smacks of felon disenfranchisement, south of the border, which seems a bit unforgiving, in my respectful view.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Thank you. I understand.
The other proposal you had was to extend the right to sit on juries to permanent residents. Again, do we know of any jurisdiction in the world that allows that?