Evidence of meeting #108 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 victims.
A video is available from Parliament.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you. I do want to address Mr. Sewell.
You spoke a little bit about racism and inclusion within the justice system. That's not something, in my opinion, that we can legislate. How far do you think we need to go in terms of providing training to police officers, judges and court personnel in order to really address issues like carding, for example, as you've noted?
Member, Toronto Police Accountability Coalition
The way carding has been dealt with in Ontario is that the government has passed a regulation basically very much restricting what can happen. I think trying to deal with racism in the police force is a very complicated matter. I'm not sure it could be legislated. I think it has a lot to do with how officers are recruited, how they are trained and how police forces are managed. All those things have to change.
I think we could have a very interesting discussion about the changes that should happen, such as the fact that we should stop hiring officers at the very bottom and slowly progress them up through the system. We should have job descriptions for what they're going to do and what positions they're going to hold, just like every other organization in Canada. I think that would start to deal very considerably with racism. Similarly, hiring people from outside to be senior managers in police forces would seriously cut down on racism. As an example, if police forces hired some senior bank managers in their senior positions, there would be a major change in what was permitted on the force and what was not. Having an interior culture that never changes because everybody comes from the bottom and works their way up reinforces things like racism. That should change.
I agree that it cannot be accomplished by legislation, but it certainly can be accomplished by practice and by government leaders like you arguing that this is what should be happening. Police forces should be changing in that way.
NDP
Murray Rankin NDP Victoria, BC
Thanks to all the witnesses.
If I may, I'd like to start with you, Mr. Hechter. Thank you for reminding us about the reality of wrongful convictions. In your very helpful brief you made four recommendations, one of which relates to the disclosure issue, and particularly the wrongful conviction of James Driskell. I want to go there, but I want to start with what I think is the first recommendation we've had on this issue. You made four, as I said, but first, you recommend that we enact a criminal offence with respect to non-disclosure. You argue that there should be, in the Criminal Code, a penalty for non-disclosure.
I'd like you to speak a little bit longer about that suggestion. Is it your opinion that the Crown and the police are ignoring their obligations to such an extent that such a provision would be necessary?
Barrister and Solicitor, As an Individual
We have a treason provision in the Criminal Code. This is not because treason happens all the time but because when it does it's incredibly serious. Non-disclosure has been identified, in many cases, as the primary reason for wrongful convictions in pretty much every wrongful conviction study in this country and elsewhere. Just this summer in the U.K., a committee very similar to this one did a study. The House of Commons justice committee in the U.K. did a major inquiry into a bunch of disclosure problems that led to hundreds of cases being stayed or withdrawn. Alison Saunders, their director of public prosecutions, testified before the committee that people had been imprisoned because of failures in disclosure.
This has tremendously tragic impacts on people's lives, and it continues to happen. I cite in my brief a case that I just finished up. I got a verdict in January on a triple homicide. Justice Dawson of the Ontario Superior Court in Brampton found non-disclosure, cover-ups, and perjury. This is unusual—don't get me wrong—but when it does happen, the officers involved shouldn't be promoted, and guess what. They were. This was at Peel Regional Police. I won't name the officers. They're all named in the decision, and the decision is cited in my brief. The major officers were all promoted within that service. That can't continue.
NDP
Murray Rankin NDP Victoria, BC
Thank you.
In the interests of time, I want to get to the other recommendations. You specifically referenced Justice LeSage, saying that he talked about the importance of preliminary inquiries in his report on the wrongful conviction of James Driskell, in part because there were serious problems with disclosure in that case.
I want to ask Mr. Sewell to comment as well on whether or not such a penal provision for non-disclosure of important information would be helpful.
We had Mr. Daniel Brown yesterday also quote Justice LeSage in the Driskell case. Maybe you can tell us more about why you think eliminating preliminary inquiries will cause more wrongful convictions. Some contend that the same evidence will come out at the trial, just at a later date. Could you elaborate?
Barrister and Solicitor, As an Individual
There is a real misconception that has to be dispelled here. Prelims and trials are two very different animals. We do different things in them, and prelims and disclosure have two very different functions. Prelims are a discovery process for the defence as much as they are a charge-screening process for the court and the Crown.
Take, for example, sexual assault cases. We know that police—and I talk about this in my brief as well—have been trained and are encouraged to assure complainants that they are safe in making their report, that this is a very good thing, and that they are going to be believed. In fact, the website of the Toronto Police Service on its sexual assault information page says that even if they don't lay a charge, that doesn't mean you weren't believed. Even if the accused is acquitted, that doesn't mean you weren't believed, and of course that is true.
They ask questions to support their investigation and to help validate the feelings of the complainant. We ask questions at a prelim for a very different reason, because we're going to be doing further investigation to prepare for trial. That's one of the things I was talking about with third party records. There are other ways that we investigate to ensure that we're prepared for trial so that the trier of fact, be it a judge or a jury, is in a position to get the best possible information to arrive at a verdict. The police and defence counsel have very different roles, which is why disclosure and the discovery function of the prelim are two very different things.
Depriving us of that discovery function can make it impossible to get all the appropriate and relevant facts before the court and can lead to wrongful convictions, such as Justice LeSage found in the Driskell case.
NDP
Murray Rankin NDP Victoria, BC
I'd like to ask you, Mr. Sewell, to comment. In light of what you've put in your very helpful submission, do you think there ought to be a penalty on police and the Crown who fail to meet their elementary disclosure obligations? Would that help?
Member, Toronto Police Accountability Coalition
The function of the police should not be to get a conviction but to, in fact, ensure that justice is done. Too often, I think police think their job is to get a conviction, and to that extent, I think sometimes some officers actually don't reveal all of the evidence that's there. I think a penalty for non-disclosure is a good idea.
NDP
Murray Rankin NDP Victoria, BC
Okay, just to complete this, Mr. Hechter, your recommendation number three is that we should provide evidence in support of abolishing preliminary inquiries. Is that simply making the point that evidence-based decision-making requires us to demonstrate?
NDP
Murray Rankin NDP Victoria, BC
Also, for the record, your fourth recommendation, joined in by so many other people, is that we should delete the provisions related to routine police evidence—not amend them but simply delete them. Do I have that right?
Liberal
The Chair Liberal Anthony Housefather
Mr. Fraser was going to do this round, but he's not here, so he asked me to do it for him.
Folks, I am going to ask you questions. I'm going to try to get in a lot of questions, and if you could just give me succinct answers, I'd really appreciate it.
Mr. Sewell, with respect to routine police evidence, I have already been convinced that there's an inherent problem with routine police evidence. I'm probably not going to be asking you questions because I'm already satisfied on that issue.
With respect to your testimony, Mr. Hechter, I was very struck by the comment you made with respect to the example in the superior court where you'd be seeking third party evidence and you would need to question the alleged victim in that situation and perhaps delay the trial, and that person would then have to come back, potentially multiple times, as you continued to investigate.
You mentioned in your testimony, Mr. Woodburn, that one of the potential advantages was to prevent the victim from having to testify both at the preliminary inquiry and at the actual trial. Can you see the concern that was raised by Mr. Hechter and by other witnesses that this could actually compound the problem by causing excessive delays at trial and also requiring the victim to come back multiple times as you were essentially conducting discovery through your cross-examination of the complainant?
President, Canadian Association of Crown Counsel
Each one of these goes case by case, and what my friend is talking about is a rarity, in my experience. It's not something that happens a lot. Sexual assault trials, for the most part, are one-witness trials with maybe some collateral witnesses, and then they move forward. As for third party records, in my experience, when there's been an issue and there hasn't been a preliminary inquiry, it's simply as we have put it before, that it becomes part of the pretrial process whereby we ferret through what we need at that point, and if the complainant needs to testify, and almost never does, with regard to third party records, then we can put her or him on the stand, but I don't routinely see that being an issue.
Liberal
The Chair Liberal Anthony Housefather
Perfect.
On the preliminary inquiries side, back again to Mr. Hechter, I don't think the disclosure penalties could actually be added to this law. I don't think it would be receivable as an amendment, because it wasn't contemplated in the original draft.
Were we to allow for a broader set of preliminary inquiries, for example, for any offence where the penalty was over five years in prison, and allow for preliminary inquiries to incur where the parties both agreed, or for example, that you can file an application where in the interest of justice you should have a preliminary inquiry, would that generally resolve your concerns with respect to limiting the amount of preliminary inquires that were permitted under the Criminal Code?
Barrister and Solicitor, As an Individual
I'm going to be as succinct as I can, because that was a sort of tripartite question.
First, I don't think using sentence length as a proxy for the need for a prelim is appropriate. They're two different questions. You're saying, “Here is an apple; what does that tell us about oranges?” It will not help, so I don't think that's helpful.
I can't remember what the second one was, but the third one—
Liberal
Barrister and Solicitor, As an Individual
When the parties agree, then yes, I think that should be the case.
A leave provision might be better than nothing, but in my respectful submission, I just don't think limiting prelims, because we already have the opportunity if you have a prelim to agree, for example, to concede committal.
One of your colleagues in the House, whose name escapes me at the moment, suggested that discoveries are a way around this. But discoveries in Ontario at least, the practice we have is that if there's going to be a discovery, we schedule a prelim but I concede committals, so we don't need a judge in the room. There's no jurisdiction in the Criminal Code right now to have a discovery without the prelim being the kind of procedural framework for it.
There are all sorts of things we can do to encourage discoveries. I don't think we should be tinkering with limiting prelims when there are other things we can do.