First of all, thank you for inviting me to appear before the committee. It's a welcome opportunity.
Overall, I think this bill is a fine initiative, which draws inspiration from other countries. I had the opportunity to listen to the first two meetings of this study. So there are some things I won't revisit, but I will call your attention to three areas that bear scrutiny.
The first concerns trial by jury. In my opinion, trial by jury is one cause of miscarriage of justice. Several legal scholars, including Mr. Kent Roach, share this view. Indeed, in the case of racialized people, especially indigenous people, it is difficult to find a representative jury.
Moreover, these are very often emotionally charged cases. So when a murder is committed in a small community, it's harder to get a jury trial. It's also quite difficult to appeal a verdict, since the jury isn't required to present its reasons. Why did the jury decide this or that? We don't know. The test for appeal is the unreasonable verdict test. However, there are no written reasons for assessing the reasonableness of the verdict. As a result, there is a potential for miscarriages of justice.
What can we do to address this? I propose amending section 649 of the Criminal Code. According to this section, a jury cannot disclose what transpired during deliberations, except in the case of an investigation for obstruction of justice, a case provided for in subsection 139(2). Bill C‑40 could allow the new Miscarriage of Justice Review Commission to question jury members about their deliberations if one of the reasons given for the miscarriage of justice was a problem identified in the jury's deliberations.
The second area for scrutiny concerns the investigative powers of the proposed commission. According to your bill, the commission has the powers of the Inquiries Act. It therefore has no power to visit premises. Although this may rarely be applicable, it could prove useful to grant this power to the commission. However, it also has the power to compel witnesses to testify, which may include the applicant, i.e., the convicted person. The person filing the application could therefore be compelled to testify before the commission if it so required. They would not have the right to remain silent in this context.
I'm not saying this is a good or bad thing. I'm just pointing out that it's a possibility right now, under the current wording of the bill. Obviously, the applicant's testimony could not necessarily be used against them in a subsequent trial, because there are constitutional protections. However, the person could be compelled to testify, as could co‑defendants, for example. In a trial, co‑defendants have the right to silence, whereas before the commission you are proposing, a co‑defendant could be compelled to testify about what happened.
The final area for scrutiny concerns questionable guilty pleas or defence strategies. There was the case of former judge Jacques Delisle, of which you are no doubt aware, and the Sarson case, a decision handed down by the Supreme Court in 1996. In both cases, the defence made strategic decisions. Mr. Sarson decided not to challenge the constitutionality of the law; Mr. Delisle decided not to testify. Both later came back and said they had been unfairly treated. In Mr. Sarson's case, the Supreme Court said there was res judicata and nothing more could be done. In Mr. Delisle's case, as you know, the minister of the day granted his request.
I think we have to differentiate this from cases of innocence. Someone who has committed an act, but is accused of another act, might decide to attempt avoiding conviction of the main act. Take the case of Mr. Sarson. He was charged with murder and pleaded guilty to manslaughter. It's a strategic choice for the defence. If he's found guilty of murder, that is indeed a miscarriage of justice, but not against an innocent person. So perhaps the same test shouldn't apply. That brings me to the power to reconsider sentencing, which should perhaps be included in your bill.
I'll close by mentioning an issue that was raised at the previous meeting about dubious guilty pleas leading to miscarriages of justice. It can happen. One example is the Simon Marshall case, which was tried in Quebec. Mr. Marshall, who had an intellectual disability, entered a guilty plea, and it was later discovered that he had not committed the crime.
He was cleared by DNA tests.
This is particularly important in the case of racialized or marginalized people, especially indigenous women who are victims of domestic violence. These women could be wrongfully convicted, because they don't think they have a defence.
Thank you.