Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 28 - Evidence
OTTAWA, Thursday, September 26, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-3, An Act to amend the Criminal Code (plea bargaining), met this day at 10:30 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, we have before us this morning consideration of Bill S-3, an Act to amend the Criminal Code. We welcome Senator Cools before us this morning.
It has been our custom, Senator Cools, to ask our presenters to present their remarks in about 20 minutes so that we have enough time left in order to engage in a dialogue with them. We find that dialogue almost more useful than the presentation itself because it often engenders a great deal of valuable discussion and information.
The subject of the bill is plea bargaining. It is not the Karla Homolka case. We will not be retrying that case, nor will we be examining her particular plea bargain. We will be examining only whether we should be changing the law with respect to plea bargaining. Any change in that law would not be retroactive but forward looking. Therefore, this would not in any way affect the Karla Homolka situation.
Senator Anne C. Cools: This bill would affect the Karla Homolka situation.
The Chair: Senator Cools, you are entitled to that opinion, but the legal opinion I have been given is that this bill would not be retroactive and would not affect the Homolka case. Perhaps you can address that in your remarks, as I think it is an interesting point.
We welcome you to begin your presentation.
Senator Cools: Honourable senators, I would begin by saying that this is somewhat of an unusual position for me. I am usually a senator on the other side and not a witness. However, I shall press on and do the very best I can.
I should like to share with you that Bill S-3 is the result of long and arduous work. This initiative was driven by my own perception and observation that there was something in the judicial process that was needing correction.
The case that sparked this bill was the Homolka and Bernardo case, the terrible ordeal of the Mahaffy and French families, the notoriously public crimes of Homolka, and her very notorious public plea bargain. I am here as a senator from Ontario, the province where these events transpired.
I will take a moment and draw the committee's attention to the presence in our committee room of a person named Gwen Hunter. Gwen Hunter is a resident of southern Ontario and was one of the driving forces behind the citizens' movement to have a public inquiry into the Homolka plea bargain.
Gwen Hunter and a small group of individuals were able to mobilize 320,000 signatures on petitions which they presented to Queen's Park. Finding no favour at Queen's Park, they turned to the Senate and to myself in particular when they learned of my own abiding interest in the subject matter and when they learned that my initiatives even pre-dated their initiatives.
Having found no favour with Queen's Park, they turned to the Senate and started a very public campaign right across this country asking the public of Canada to petition the Senate of Canada , and it shall be my intention to present these petitions in the chamber. However, I would add that these individuals, having had the kind of public response that they did and having garnered some 12,000 signatures, upon hearing that the Senate of Canada was proceeding with this bill, stopped collecting further petitions in the sincere belief that the Senate of Canada had heeded the prayer contained within their petition.
Perhaps I could just put that prayer on the record:
We the undersigned petitioners, residents of Canada, do humbly pray and call upon the Senate of Canada, to use its full powers to effect an inquiry into the negotiation of the Karla Homolka plea bargain agreement, including the activities of all Crown and law enforcement officials; and to pass the laws necessary to lengthen Homolka's sentence to fit her crimes; and to take such measures and pass such legislation as may be required to respond to these notorious events and restore public confidence in the administration of justice in Canada.
I do not know who would have given Senator Carstairs her legal opinions. Bill S-3 was drafted by the Senate's finest draftsmen. If they have given you that legal advice, I would say that I received different advice from the same individuals. This is a superbly drafted bill. It was produced in close collaboration with the Senate law clerks, and it was drafted with them and their staff.
This subject-matter is difficult, complex, and frequently fraught with secrecy. The interest and paranoia that has now accumulated on this issue at various levels of government are quite profound.
The subject-matter of Karla Homolka's plea bargain is additionally complicated by the fact that the gentleman in charge of the issue at Queen's Park in Ontario is now the Deputy Minister of Justice here in Ottawa. At the time of the negotiation of Karla Homolka's first plea bargain, he was the Deputy Attorney General of Ontario. He is now the Deputy Minister of Justice. That is a fact which I have noted.
I should like to move to the subject of plea bargaining in general. I cite Peter Russell, who is a proficient scholar on the subject of the judiciary in Canada. In his book The Judiciary in Canada: The Third Branch of Government, he made the following point concerning plea bargaining:
It is also of concern if the opportunity to settle informally is available primarily to hardened criminals who have a lot to "sell," or to those represented by lawyers who are friendly with local prosecutors, or is systematically withheld from a racial group such as native Canadians.
I should like to share with committee members some of the academic research that has been done on the issue of plea bargaining. There has been a great deal written about the subject. However, there is still a scarcity and a paucity of information on the number of plea bargains and their impact on the administration of justice, the judiciary, and the system itself. There is a vast need for exploration and study in this area.
I am mindful that many of us are often timid and faint-hearted in exploring these matters because judicial processes have a way of pulling down a mantle of secrecy or protection around themselves. It is my sincere belief that society can no longer afford that sort of mantle and that Parliament should be bold and brave and press on.
The next academic study at which I should like to look is one done by two gentlemen named Simon N. Verdun-Jones and F. Douglas Cousineau. They wrote a paper entitled "Cleansing the Augean Stables: a Critical Analysis of Recent Trends in the Plea Bargaining Debate in Canada."
They quote the notes of the American Advisory Committee on rules, stating:
We have previously recognized plea bargaining as an ineradicable fact. Failure to recognize it tends not to destroy it but to drive it underground. We reiterate what we have said before: that when plea bargaining occurs, it ought to be spread on the record $ and publicly disclosed.
They also quote the Law Reform Commission of Canada, saying:
Plea-bargaining is something for which a decent criminal justice system has no place. There has to be a trial.
I refer committee members to page 237 of that article where these gentlemen state:
In sum, the lack of a requirement under Canadian law that a judge ferret out the critical factors that may have led to the defendant's decision to plead guilty has effectively created an environment in which it is possible for Crown and defence counsel to enter into plea bargains behind the inscrutable veil of secrecy.
Honourable senators, I have spent two years reading about and studying this issue. I can share with you some of the benefits of my work.
I wish now to quote from page 238 of this article which was written in 1979. It states:
Within the last five years, three major bodies -- the Law Reform Commissions of Canada and Ontario, and the Canadian Bar Association -- have expressed strong views as to the propriety of plea bargaining. A major problem raised by analysis of these views is the inherent ambiguity that envelopes the very concept of "plea bargaining." While the Law Reform Commission of Canada calls for the abolition of "plea bargaining" --
I want senators to know that the commission subsequently amended its position. It called for abolition in 1975.
...the Canadian Bar Association Code of Professional Conduct clearly legitimizes the practice at arriving at "tentative agreements." To add to the semantic confusion, the Ontario Law Reform Commission calls for the abolition of plea bargaining, but nevertheless presents a series of ten guidelines for "plea negotiation" or "plea discussions."
The terms used on the ground or in the field are resolution discussions, resolution negotiations, and resolution agreements. They do not employ nasty words like "plea bargaining". Therefore, in the literature, one should be mindful of a term such as "joint submissions." Once counsel and prosecutor have come to an agreement, they appear before a judge and make a joint submission.
Another article I should like to draw to your attention is one that is extremely helpful because it is written by a judge. The article entitled "Prosecutorial Discretion" is the text of a speech that His Honour Chief Judge Lawrence S. Goulet gave at a conference. Judge Goulet, in his article, lays out clearly the historical development of the problems with the current organization, the issues of prosecutorial discretion, and plea bargaining itself. He cites many of his own concerns. It is a brilliant piece of work. I will cite one statement from him which appears at page 52 of this article:
The prosecutor tends then to view trial as an expensive process which produces an uncertain result, in comparison to the "certain result" obtained more cheaply through plea bargaining. Heumann suggests that the greater the incidence of individual prosecutorial plea bargaining,
... the greater the likelihood that the (individual prosecutor) will lose sight of the distinction between the roles of the judge and the prosecutor -- he gradually comes to expect that he will exercise sentencing powers.
This is a lengthy article. I should like to put on the record his final statement at page 62, where he states:
The definition of what discretionary power is necessary is not easy. More difficult yet is the development of viable instruments of control. In the past we have relied on the professionality of the prosecutor not to abuse his powers. This was sufficient in Canada until recently, partly because of the relatively non-political basis of his employment and also because the processing of the caseload has not depended on wholesale plea bargaining. However, as this phenomenon becomes more widespread, even the well intentioned prosecutor will not be able to restrict its use to legitimate ends. The day may not be far off when an accused and his counsel who insist on a trial will be viewed as obstructionists who won't play the game, and the prosecutor who won't bargain will not be tolerated.
I share those remarks with members of the committee. I do not share the same point of view as Senator Carstairs that this is not about Karla Homolka's situation. I thought that Senate committees were masters of their own proceedings.
I should like to call the attention of members of the committee to a report by a former judge, Mr. Justice Galligan. It is a lengthy report which I have read cover to cover. It is entitled "Report to the Attorney General of Ontario on certain matters relating to Karla Homolka." The former Mr. Justice Galligan was appointed by the Attorney General of Ontario, Charles Harnick, soon after Mr. Harnick took office. He was asked to look at the internal activities of the Department of the Attorney General and to give an opinion on those activities. Let us remember that the rules in this country as to how judges can be used are profound and quite restrictive. Mr. Justice Galligan only assumed the task of this review the day after he retired as a judge.
This report is very hollow and shallow. It whitewashes a terrible process on the grounds that it was driven by necessity.
Honourable senators, I do not wish to repeat all that I said in the chamber in my two speeches on this subject-matter. The important thing about this document by Mr. Justice Galligan is that it gives those honourable senators who are interested a fine collection of the materials which would be of interest and useful to your study, including Karla Homolka's plea bargain agreement.
I should also like to draw the attention of honourable senators to a very questionable article which is referred to in this report. It is supposed to have provided the fuel for the moral suasion for the prosecutors who entered into their deal with Karla Homolka. The article is found on page 334 of the report and is entitled "Compliant victims of the sexual sadist". I ask senators to note that this article was printed in the obscurity of Australia. It is written and produced by the FBI Behavioural Personnel and could only find expression in Australia.
As these prosecutors were trying to hunt down some very dangerous criminals, they found themselves at Ms Homolka's doorstep. This article was given to them. This is the article that all the respective prosecutors relied on for their theoretical moral justification for the particular plea bargain that they entered into with Ms Homolka.
Honourable senators, with all our understanding of human error, it is quite easy to understand how the prosecutors went down that road and got into the first plea bargain. It is not acceptable or morally right; however, I can understand and appreciate what happened. Terrible crimes were happening. They were not sure what to do. To be quite frank, they had spent $25 million. I have researched these figures. They were eager to close the case. They came across this blond with long hair who batted a few eyelashes. What she said sounded reasonable to them because somewhere in our hearts we do not believe that human beings can do the kinds of things that were done. Because we are so abhorrent of such repugnant action, we sometimes take comfort where we should not. Basically, that is the road they went down.
I cite this article as well because Mr. Galligan's report relies heavily on it. I will revisit the whole concept of sexual compliance of psychopaths. My opinion, and the opinion of the learned people with whom I have spoken, is that Ms Homolka was herself a psychopath. We had two psychopaths coming together -- two monsters coming together to create in harmony a different monster, in combination. As we proceed in the process of this discussion today, I will introduce senators to the concept of hybristophilia, which is one of the paraphilias. Paraphilia is the term for sexual deviation. Hybristophilia is that body of thought that has to do with the paraphile who experiences arousal, gratification and satisfaction from observing the deviations of another person committing outrages and crimes such as rape or murder.
I have spent many years on the National Parole Board. I have read many psychiatric assessments and reports. I have read many cases. Perhaps sometimes my view of the universe may be a little forensic. However, I have seen much of that dark side of human nature. I know that human beings do some terrible things. I shall revisit this issue later.
I should like to alert senators to a letter contained in the Galligan report. This is a letter written to the Attorney General by a very distinguished lawyer in Toronto by the name of Alan Young. Alan Young may be known to some of you. He did a lot of legal commentary for CTV in particular during the Bernardo trial.
He wrote to Charles Harnick, saying:
Nevertheless, there has been, and will continue to be, a public outcry regarding the lenient sentence awarded to Ms Homolka in exchange for her testimony. It is not an overstatement to suggest that her twelve year sentence is a travesty of justice.
He continued:
However, I am of the opinion that seeking leave to appeal her sentence is legally and morally sound, and that such a course of action would be politically wise.
My point is that the prosecutors in that instance, despite all that transpired, had the power and the ability to seek leave to appeal that sentence. I shall revisit that matter soon.
There is another document, honourable senators, upon which Mr. Justice Galligan relied extensively in his report. That document known as the Martin report. I draw this to the attention of honourable senators because it was prepared by the Honourable G. Arthur Martin in 1993. It is entitled "Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions". I am making this information available to senators so that they be aware that the issue of plea bargaining is troublesome and troubling. Mr. Justice Galligan relied quite heavily on the Martin report.
There is another matter in considering Mr. Justice Galligan's report about which we should be mindful. It is an aside; however, it is information which I feel quite free to discuss here because I am in the context of my own colleagues. Mr. Justice Galligan submitted that particular report as a retired judge. We should be mindful of the fact that leading up to the events during that time, Mr. Justice Galligan himself participated in ruling on one particular issue. I refer to when Karla Homolka appeared in her five-minute trial before Mr. Justice Kovacs in July of 1993. At that time, there was, in my mind, a very unconscionable publication ban imposed on the entire trial. It is a curious thing to note that one of the supposed reasons the prosecutors asked for this publication ban was to protect the upcoming trial of Mr. Bernardo. However, at the time, Mr. Bernardo's lawyers said they did not feel the need for protection and that they did not want a publication ban. In any event, it was imposed.
The point that I wish to make is that many different parties, including the media and an individual named Gordon Domm, appealed that publication ban. As time rolled by, that appeal was decided upon by the Court of Appeal of Ontario. The panel included the very notable and prominent judge Mr. Justice Dubin, as well as Mr. Justice Galligan. I put out that information for people to do with as they wish.
Another report was commanded by the Solicitor General of Ontario, Mr. Runciman. I ask senators to remember that I am from Ontario. Mr. Runciman asked Mr. Justice Archie Campbell to look at the policing investigatory aspects of the entire case.
Finally, I should like to come to one issue that has been extremely troubling to me. Those of you who are lawyers will know why it is so very troubling to me. As I said before, Ms Homolka was involved in two plea bargain agreements. The first one was before they were able to locate the questionable videotapes which clearly showed her involvement. I accept and understand that plea bargain agreement.
On the issue of this first plea bargain, I should like to share something with honourable senators. In all the reading that I have done on this subject-matter, and I have read extensively on the subject, very few people have gone to the judgment of Mr. Justice Kovacs when Ms Homolka was sentenced. I ask senators to pay careful attention to this judgment, and I shall tell you why.
In this judgment, Mr. Justice Kovacs is approached by the defence counsel and the prosecutor with their joint submissions. The joint submission, obviously, indicates that in return for two charges of manslaughter and a 12-year sentence, Ms Homolka will give all the information she has on Mr. Bernardo.
Honourable senators, a travesty occurs in this process. There are two charges of manslaughter for the deaths of two teenage girls, Kristen French and Leslie Mahaffy. If you read the judgment carefully, you will see that the issue of Homolka's sister, the young girl called Tammy Lynn, and Homolka's culpability in the entire matter, are read into the record.
The result of that, honourable senators, is that she will never be prosecuted for the death of her sister Tammy Lynn. There is also another result of that which cannot be unintentional because these prosecutors are too skilled and too knowledgeable not to know that this circumvented the issue of a third murder charge. Were there to be a third manslaughter charge against her, she would then be in a new category, that of a serial killer. I find this disturbing.
I would ask senators to pay careful attention to this particular judgment. I can cite pages from it, if you want. You will see how the details are read into the record starting at page 14 of the trial transcript.
There is another troubling aspect to this entire matter. Even though the entire case was that of terrible sexual misdeeds, a very wide berth is steered around Homolka on the question of sexual assaults. Again, that cannot be unintended and accidental. Indeed, it must be serious and well known. Consider the stigma accorded to sexual assaults in today's community. With that in mind, we can begin to understand one of the reasons a wide berth is steered around this area.
I am not asking senators to retry anyone; I am asking senators to instruct themselves as to what happened and the course of events that followed which caused such a terrible travesty and such a terrible public outrage.
Another element within this judgment is the excessive reliance on prosecutorial discretion wherein the judge abdicates his judicial role and defers to prosecutorial discretion.
I should like to move on to psychopathy. Honourable senators, a true service could be done for humanity and for this committee if we could find it in our hearts and in our minds to begin an examination of psychopathy, deviation, and deviants.
Here in Parliament we frequently pass laws. However, we seldom study the reason why we are passing these laws. There are a few pieces of work to which I should like to draw the attention of senators. They are not particularly scholarly works and therefore are easy reading. I believe they are extremely insightful.
One article is written by a very perceptive writer named Patricia Pearson. She is not trained in psychiatry. She is an insightful and brilliant writer. Hers is not a psychiatric piece, nor is it a psychological piece. However, it is a brilliant human analysis and comprehension of deviants.
I recommend that the committee invite her to appear. I am told by a friend of mine that she is about to publish a book on the subject of feminine aggression. She has some interesting information. She employs a very insightful and penetrating analysis wherein she talks about the relationship between the narcissist and the sexual sadist. This article which in Saturday Night magazine and is entitled "Behind every successful psychopath".
Another issue I wish to raise on this very messy subject matter is the issue of hybristophilia. Psychopathy is something that eludes many of us.
I have had a dialogue with Dr. John Money. He is a professor of medical psychology at Johns Hopkins University and a scholar in the area of paraphilia, which as I said before is sexual deviation. He defines hybristaphilia as follows:
a paraphilia of the marauding/predatory type in which sexuerotic arousal and facilitation and attainment of orgasm are responsive to and contingent on being with a partner known to have committed an outrage or crime, such as rape, murder, or armed robbery --
It has its origins, like most of the vocabulary of paraphilia, from the Greek term "hybridzein", which means to commit an outrage against someone else, and obviously "philia", which is the usual terminology used in all paraphilias.
Another interesting item is a review of a book recently published, Stephen Williams' Invisible Darkness: A Strange Case of Paul Bernardo and Karla Homolka. This is a book review by a judge in Toronto by the name of Lynn King. The review is from the Toronto Star, page J-14, August 31, 1996.
The other issue with which I would liked to deal is the historical role of the Attorney General, the need for total independence in the prosecutorial role, and the whole issue of prosecutorial discretion. However, I will conclude now and take your questions.
Senator Nolin: Could you explain to this committee how Bill S-3 would be retroactive? It is not explicit in your bill.
Senator Cools: If it is not explicit, I would propose that the bill be amended to ensure that it is clear. I know that drafting is an extremely skilled and specialized process. The bill now reads:
... the disposition shall, on an application by the prosecutor, be set aside by the court before which the accused or defendant made the guilty plea, if it is established ...
It then states what must be established.
Senator Nolin: We will hear other witnesses, and you should be here when they testify, because they will argue quite the opposite. If you want this bill to be retroactive, you must indicate that specifically.
Senator Cools: I cannot move any amendments within the committee since I am not a member of the committee. However, if it is not explicit, then obviously it needs amendment. I would propose to go back to the drafters and let them give me such an amendment. I would be happy to so move on the floor of the Senate.
Senator Lewis: Senator Cools, I appreciate the substance of Bill S-3, and I think I understand your objective. However, there are some aspects with which I have difficulty. Without going into the details of it, I am wondering why you approached the matter in this way.
As I understand the nub of the question, you are attempting to get at the situation where a disposition has been made by a judge based on a joint submission and it turns out that the joint submission was based on falsehood or concealment of fact.
Senator Cools: Yes.
Senator Lewis: Many difficulties in the bill follow from that. Why was that approach taken? You are saying that if falsehood and concealment can be effectively proven, then the court would set aside the original sentence.
Senator Cools: Are you asking why I have done that?
Senator Lewis: Why did you not take the approach that it would then result in a new offence, such as falsehood and concealment?
Senator Cools: That would then create a new crime, basically.
Senator Lewis: Yes.
Senator Cools: I did consider that.
Senator Lewis: Let us assume that a person pleads guilty and is sentenced. It is over and done with. They may serve a term. You are saying that years later, after the term had been served, if there was falsehood or concealment in the negotiations, the court can set aside the sentence and sentence the accused again.
Senator Cools: Yes.
Senator Lewis: However, in clause 606.1(2)(a), the court can then impose a new sentence, but it is for the original offence, the offence for which the person pleaded guilty. This leads to all kinds of problems.
Senator Cools: Yes.
Senator Lewis: However, perhaps you should have taken the other approach and said, "Well, this person got that sentence which presumably was by way of a plea bargain." One might assume that it was probably lesser than it might have been. Since they achieved that by means of falsehood and concealment, why did you not set up a new offence?
Senator Cools: I considered that. The advice I received was that this was the better way. A person had perpetrated a mischief upon the courts. The advice I received at the time was that the courts consort so to do as my bill proposes because the parties can appeal the court sentence at any point in time.
As I said at the outset, in the instance of Karla Homolka, the prosecutors could have appealed that 12-year sentence if they had so chosen.
Senator Lewis: I might have a question on that point.
Senator Cools: I have a file of case law for you on the subject.
Senator Lewis: Doing it this way, as I see it, will lead to all kinds of problems.
Senator Cools: What are some of those problems?
Senator Lewis: If a sentence is set aside -- if it reaches that stage -- the court can only sentence the accused on the offence for which the accused made the guilty plea. In the Homolka case, I think you told us that there were two manslaughter charges. That is where the court would be restricted.
Senator Cools: The bill is intended to speak to the process of plea bargaining; it is not intended to speak to anything else. The advice I received in the first instance was to proceed by way of a special exemption from the general law for the particular offence. However, I have been advised to stay on the ground of plea bargaining as that is where the wrongdoing took place.
I was told that it would not be prudent or wise to go outside of the plea bargaining and look at other offences which fall under other segments of the Criminal Code. I was advised to stay within the very specific and definite area of plea bargaining because that is where the evil and the mischief that must be remedied has taken place.
The real issue, Senator Lewis, is that something very wrong has happened.
Senator Lewis: Yes.
Senator Cools: It could have been corrected by political will, but there is a reluctance to do so. Therefore, I was advised to go to the general administration of the law, which is the Criminal Code, and to stay within the specific field where the wrong has taken place. I was told not to go outside of that -- in other words, not to go into perjury and other areas such as obstructing justice.
I spent quite a bit of time on this issue.I consulted many people. I could have gone down the road of obstructing justice; I could have gone down the road of perjury. However, this is where the so-called "experts" have told me to go. You are asking me to go outside of that.
Senator Lewis: I asked the question because I see many difficulties here.
Senator Cools:Many difficulties are being encountered right now, and there will be many more difficulties unless some sort of action is taken. I will give an example.
I brought with me today the case of the Queen v. MacDonald where a similar plea bargain misfired. That is the term used. The plea bargain misfired or miscarried. In that instance, no one hesitated to move in and make a correction. As I said before, the committee has to do its own work.
There are other cases, for example, where a judge refused to go ahead and comply with the plea bargain. The prosecutor and defence counsel came before the judge with a joint submission, and the judge refused to go ahead. Then you have a plethora of appeals because one side or the other is not conforming to the particular plea bargain. There is something to be looked at here.
I do not pretend that this will remedy every single problem. I do not pretend that it will not create a few new problems. I am simply saying that there are so many problems right now that I felt the need to do something.
I must be quite clear that I was advised by the people who do this daily to stay within the narrow confines of the problem.
Senator Lewis: You say the provisions of this bill would, on an application, allow the court to set aside disposition. There is no time limit.
Senator Cools: That is not unusual. In cases such as murder and manslaughter, there is no statute of limitations. I will give you an example.
There are ongoing cases in the Federal Court of Canada with respect to taking away the citizenship of certain Nazi war criminals. It could be argued that those crimes were committed 40 years ago. We are dealing with cases where there are issues to which other laws speak. Statutes run eternally on issues of crimes against the person, especially first degree murder, manslaughter, and crimes involving death.
Senator Lewis: There is no provision for time.
Senator Cools: I encourage you to make such an amendment.
Senator Nolin: It is your bill, Senator Cools.
Senator Cools: The committee is the master of its own proceedings. It is free to amend the bill.
Senator Nolin: We are here to achieve the great goal of justice, but you will have to help us.
Senator Cools: I have watched justice in operation. I watch it daily.
Senator Nolin: Colleagues, I wish to take a moment to recognize the presence in our committee room of representatives of the Parliament of Ghana, Mr. Emmanuel Anyimadu and Mr. James Sydney De Graft-Johnson.
Welcome, gentlemen.
Senator Milne: Senator Cools, perhaps I should make a statement so you do not get annoyed with me. I agree with you entirely about what happened in the Homolka case. I think it was an appalling case of the misuse of plea bargaining. I think the whole case was absolutely horrifying.
However, on the other hand, I am not really sure that your concerns are addressed by your bill. Much of your argument today is concerned with the administration of justice, which is a provincial matter. I should like a little more information from you to find out if you are sure that this bill will do what you want it to do.
Senator Cools: In passing bills, I do not know of any legislators who are sure that the bill will do what they intend. I cannot give you such an assurance. However, I am sure that this bill will help people, on both sides of the negotiations, understand that truth is invaluable to the public interest. I am sure it will do that.
Deviants are infinite. The evil they can do is beyond our understanding, and I do know that this bill will fix certain problems.
Currently, prosecutors virtually have unlimited license. I know as well that every piece of literature I have read and every single person with whom I have spoken would indicate that serious investigation and work is needed in the field. Everyone agrees on that.
Senator Milne: I agree on that as well, but I am not sure this bill will do that, unfortunately.
I have concerns about the specific wording of the bill. On the last page of the bill, the last sentence of clause 1, you talk about "a balance of probabilities" rather than "beyond a reasonable doubt". I should like to know how you define that and why you used that phrase rather than "beyond a reasonable doubt".
Senator Cools: As I said, the drafting of a bill is an extremely specialized business. I am not sure that I made the point clearly. Perhaps I ought to repeat it.
This bill is not something that I wrote myself. The drafting was done by a man whom I am told by the Senate staff is the most able drafter in the country. When he set out to do his work, he employed the terminology and the framework that is employed in all of the related statutes, legislation, and practices. This is the terminology that he used to draft the bill.
Senator Milne: It is a pretty wishy-washy term.
Senator Cools: "Balance of probabilities" is the phraseology regarding civil burden of proof, and "beyond a reasonable doubt" is the phraseology regarding criminal burden of proof. These terms have their origin in common law. These are the terms employed by the master draftsmen.
Unfortunately, Senator Milne, the law is full of those terms, unless you are proposing to amend all of them at the same time.
Senator Milne: That is unlikely.
Senator Nolin: I am trying to understand. If a judge is asked by the prosecutor to review a sentence because he has been lied to by the accused or his representative, his lawyer, or because the accused did not disclose all the facts that should have been known, the judge should change the sentence. Is that the process?
Senator Cools: Yes.
Senator Nolin: I am looking at clause 1 of your amendment. That is the process.
Senator Cools: Yes. I am trying to keep it within the purview of the courts and of the system as it functions at this point in time. In other words, I am proposing a bill which would simply be an additional feature in the arsenal of fighting crime and deviants and would not wander away from the rest of the arsenal of the Criminal Code and its administration.
Senator Nolin: I was listening to your comments on the plea bargaining of two manslaughter offences. Other provisions in the code prevent a prosecutor from wilfully being blind or totally deaf. All kinds of provisions exist in the code to prevent that from happening. Do you understand what I am saying? It is not complete, and I understand what you are trying to achieve.
Senator Cools: What other provision in the Criminal Code could be used, then?
Senator Nolin: I am not here to give you legal advice.
Senator Cools: From what I understand, there is more in the common law. They could have gone to appeal. They could have done other things.
Senator Nolin: If there was a sweet deal to ignore the facts on the third murder, there was no lie.
Senator Cools: The plea bargain makes it difficult for anyone to know anything since it was all done in secret.
Senator Nolin: You have told us what you found from a reading of the decision.
Senator Cools: Yes.
Senator Nolin: It is a public document.
Senator Cools: How many people have read it?
Senator Nolin: I am not trying to defend it. I merely want your comments.
Senator Cools: I understand. I am trying to say that the bill, in the texture of the entire system and the texture of the Criminal Code, attempts to make an accused person responsible when that person is in breach of the agreement.
Senator Nolin: If an accused has already pleaded guilty, it is much more than being accused. That person said, "Look, I am guilty." The accused has the privilege of saying, "I am not guilty; let us see your evidence."
Senator Cools: Let me give you another example. Suppose the judge in that instance declined to accept the joint submission. What would be the state of affairs then?
Senator Nolin: There would be a trial. "Make your case. Mr. Prosecutor, do your job."
Senator Cools: On what grounds, then?
Senator Nolin: You are touching on the exact reason as to why there is plea bargaining.
Senator Cools: I am touching the heart of the matter.
Senator Nolin: Of course, because plea bargaining is there to achieve something when there is problem. The level of evidence that the prosecution needs to achieve is much higher than ordinary Canadians think. It is a great task to find totally and without a reasonable doubt that a person has committed an offence.It is a huge job. Therefore, we have plea bargaining.
Senator Cools: You are right. I agree with you. That is why my bill attempts to stay within the framework of plea bargaining. I do not outlaw plea bargaining. The bill in no way reflects my private views on plea bargaining.
Let me share with you something from a similar 1988 case, R v. MacDonald, and I quote:
The accused clearly knew or ought to have known every aspect of the agreement between himself and Crown counsel. If he decided to mislead Crown counsel in order to get the benefit of the lesser charge, then he alone is responsible for the breakdown of the agreement once the police discovered his statement was not truthful. The accused's decision to ignore important condition of the agreement affected the ability of his counsel to act on his behalf and to properly advise him.
Therefore, I am of the opinion that the accused committed the first breach of the agreement. If I were to accept this argument and stay proceedings, I am convinced that it would be even an greater abuse of the Court's process because it would undermine the administration of justice and offend the community's sense of fair play and decency to allow the accused to benefit from his own untruthful statements.(null)
Senator Phillips quoted this case in his speech on Bill S-3 in the chamber.
I invite you, Senator Nolin, to review the fact that these so-called plea bargain agreements are already resulting in a plethora of cases where people are attempting to bind the Attorney General and to bind the Crown. The information is there for study. It is endless.
The advice I received was to stay on the ground of plea bargaining and on the ground of holding an accused responsible for his own falsehood and to empower -- in other words, to legislate by statute -- to judges the power to review the situation if necessary.
That is where this bill places the power to act -- back into the hands of the judges. I am not proposing a new tribunal or a complaints commission or anything of that nature. What we do here is give it right back to the courts and basically say to the courts, "Here, you can take a look at what was done."
Senator Pearson: I want to take this away from any particular incident and look to the generality of the principles involved in the bill.I am not a lawyer, so I am interested in what the lawyers have to say. When we get into legal issues, I learn all kinds of things that I did not know.
However, I always understood as a lay person that there is a basic principle that an accused person is not required to incriminate himself or herself.
Senator Cools:No, they are not required to incriminate themselves.
Senator Pearson: How, then, can you punish someone for refusing to do so?
Senator Nolin: You cannot punish someone who is refusing to do that.
Senator Pearson: It seems to me that in a plea bargain where it has been shown that an accused withheld information --
Senator Cools: It is a bargain based on truth, an agreement based on truth. Truth is an element in every agreement.
Senator Pearson: In a case where an accused has pled guilty and been given a sentence, I do not quite see how you can then go back and ask them to --
Senator Milne: They should have incriminated themselves on another matter. It is happening all the time.
Senator Nolin: Your concern is found in paragraph 2. An accused has pled guilty to offence "A" and is subsequently proven guilty of lying by a preponderance of probability. If the accused said, "Yes, I am guilty of `A'," then that is done.
I also have a problem with that because there was a deal. That is why in this code there is no reference to plea bargaining.
Senator Cools: The term "plea bargaining" does not come up in either piece of legislation.
Senator Nolin:I have a problem with plea bargaining because of the word "bargain." Is the accused guilty or not? As a prosecutor, I will pile up the evidence, and justice will decide if you are guilty or not. That is the process. However, for all kinds of other reasons, they are dealing and talking about access to evidence. The accused will give evidence in someone else's trial.I do not like that, but it is there.
Senator Cools: I did not quite follow you. What is it you do not like?
Senator Nolin: In paragraph 2(a), you are saying that the court shall sentence the accused or defendant for the offence to which the accused or defendant made the guilty plea.
In other words, the accused pled guilty to this offence, so that conviction will remain. Then some evidence arises that indicates that the accused has lied. He has already pled guilty to offence "A", which conviction will remain. Now he stands accused of offence "B", and for that a new trial or a reopened trial will occur, instead of redoing the process for "A".
Senator Pearson: That is what I do not understand. Why go for a second trial?
Senator Nolin: If there is no deal, there is no deal. Let us restart everything.
Senator Cools: In the long run, it must come down to what we think is in the public interest and whether we will open up a system which makes it very attractive for any individual involved in a crime to enter into any plea bargain agreement based on falsehood in order to obtain a reduced penalty.
I am trying to inhibit and prohibit the practice of plea bargaining. I realize that it has a place. There were tools available to the Crown in the particular case which we have discussed. They chose, for political reasons and for political expediency, not to exercise them. I am simply attempting to put into a bill a provision which would support the Crown in taking some initiatives.
[Translation]
Senator Hervieux-Payette: I have a question concerning the application of this legislation. In order to make arrests in the case of drug related offences, the administration of justice system relies most of the time on informers, otherwise no one would be convicted. Often these individuals are accomplices. Deals are also struck to reduce sentences, given that these individuals put their lives at risk.
How can we reconcile the two, namely the administration of justice and the desire to fight organized crime, while at the same time allowing authorities to find people who can help us to convict hardened criminals? Furthermore, how will this legislation apply to these individuals? If you strike a deal with them, they will not reveal the whole truth or disclose all of the crimes in which they have participated.
I agree with Senator Pearson. The accused does not have to make a general confession when he cooperates with the justice system. I am trying to reconcile this with the general spirit of the administration of justice. I have difficulty seeing how this bill, in the case of this type of crime, could apply to other sectors and how it might prevent informers from cooperating in the future. These individuals would continue their drug trafficking operations within an highly organized system.
[English]
Senator Cools: I had some difficulty following the translation, so I am not sure I have your complete question.
I assure senators that, based on my consultations, this bill will not hinder anyone in the administration of justice. The intention of the bill is to hinder injustice. Quite frankly, it is intended to prohibit dishonesty. Let us understand that whenever there is an injustice or miscarriage of justice, decisions must be made.
I am hearing from Senator Hervieux-Payette that the system must accommodate crime and criminals infinitely. I see life a little bit differently. I believe that criminals must accommodate order and peace.
The only people that Bill S-3 will hinder are those who tell lies or those prosecutors who are too faint-hearted or too timid to do their jobs as toughly as they should. It will not hinder the administration of justice.
In the case of the Homolka deal, there were two plea bargains. The first was a mistake, but the second was no mistake. It was intended largely to cover people politically for the first one. By the time the second one happened, they had all the evidence that they needed to prove the person guilty.
I believe that senators are not aware of the depth of this problem and of the mischief that is currently being created. It is my hope and my wish that we could actually begin to examine these kinds of ills. I do not belong to the group of people that can see something wrong and ignore it.
I am trying to say that Bill S-3 is well-prepared, well-studied, well-documented, and well-drafted. Certain individuals have different ideological positions, and that is a different matter, but Bill S-3 is consistent with the principles of the Criminal Code and with the principles of criminal justice in this country.
The culture and quality of plea bargaining is overtaking the criminal justice system. The studies I looked at which cited a few numbers are also showing us that many judges are simply becoming instruments of ratification.
I would ask senators to have an open mind and to look very carefully at some of these difficulties that have come upon us so swiftly in this country.
[Translation]
Senator Hervieux-Payette: In conclusion, I would simply like to say that I have some problems with this bill. I realize as you do that in the administration of justice system, mistakes are made which benefit the criminals. This was not the first time this happened and it will not be the last time either. To err is human. This has nothing to do with the law.
The areas which will pose some problems for the courts and which I would like to caution you about are the retroactivity provision and the impression that a same individual can be charged twice for the same crime. These two provisions will make life difficult for our legal experts. While your bill is commendable, I do not think that it can resolve the problem, that is bring about the appointment of competent judges or ensure a quality police force and competent attorneys.
In this particular case, there were people who did not do their job according to the rules. The Criminal Code was not deficient and it is not amendments such as these which will resolve the situation in future cases.
[English]
Senator Cools: I have listened to Senator Hervieux-Payette's concerns, and I would have welcomed them at second reading debate. That was the appropriate place for those remarks.
Senator Doyle: Senator Cools, I am surprised that you have not put more emphasis than you have on the words "plea bargaining". Plea bargaining is an exercise in which an accused takes part, but so do experts in the law, and they do so behind closed doors.
Do you really think the remedy might lie in opening the process to public examination so that, if there is a lie, it can be dealt with as perjury?
Senator Cools: We are dealing with bargaining as if we are bargaining with labour unions. The results of the process may not be related to the quality of justice, but they may be related to the quality of the negotiators. Hoards of Crown prosecutors are in the field, and we are not so clear about whether they must possess not only legal skills but bartering skills as well.
We are hearing that the bargaining process is so rampant that even innocent people who are accused are being encouraged to plead guilty just to deal with the matter. I have not gone into the other problems in the law profession and the inscrutable issue of cost to an individual.
Currently, two people sit down in secret, and there is no requirement to bring that process into open court. The American jurisdictions are becoming more aggressive in some of these areas than are we. We are tiptoeing around some of these issues.
I fail to understand how such important issues can be hammered out in such terrible secrecy and in the absence of any sort of public accountability or examination. In addition, whether people realize it or not, it is sealing the fate of the justice system as we know it, which is a judge in a courtroom. If this continues, some people argue that it will be so cost effective that we can close some of the courtrooms.
I spoke to a Crown prosecutor some months ago who told me that he entered into a plea bargain agreement with an individual. He agreed to give the lesser criminal a smaller sentence in return for information on the bigger criminals in the organization. It turned out that the guy who made the deal was the biggest guy in the organization, and then the Crown prosecutor's hands were tied.
I think that the issues of secrecy, unaccountability, and the other important issues that are currently plaguing the legal profession are at issue. Also, the people who will have most access to the plea bargaining process are also the defence counsel who are most friendly with the prosecutors. Karla Homolka's deal proceeded the way it did because the two negotiators knew each other quite well from previous lives.
Yes, one could argue whether this particular phrase is the right one or the best one, but the fact of the matter is that the bill before you is the synthesis of the finest opinions that I have been able to garner. It is the result of the finest minds that I have been able to consult on this matter.
If this is not the finest bill, and if it is not the best way of doing it, the Department of Justice has 1200 lawyers and an enormous budget. If this matter was of some concern to others, a bill could have been brought that would satisfy every one's concerns.
There are many options. However, I have canvassed and considered the issues that have been raised here. I have given them thought. There were many different ways that this could have been handled. This is the way that I saw fit to go about it.
I would also say to senators around the table that it was passed unanimously at second reading, which, as far as I am concerned, is the greatest piece of approval that I could have been given as to the principle of the bill at that stage.
I admire you, because this issue and this field of study is a hornets' nest, thickened by years and years of interest. It needs some uncovering. It is time for us to look behind those big secret doors and to see what really goes on behind them.I, like many members of the public, am aware that something is very wrong.
Mr. Justice Galligan looked at the question that was raised about the necessity of the ability to make deals with criminals in order to get other criminals.In discussing the plea bargaining process, he quoted a particular case which was a judgment of the Privy Council which speaks to the abomination of the process. It is the case of Chan Wai-Keung v. the Queen. I quote:
It has been recognized for centuries that the practice of allowing one co-defendant to "turn Queen's evidence" and obtain an immunity from further process by giving evidence against another was a powerful weapon for bringing criminals to justice, and although this practice "has been distasteful for at least 300 years to judges, lawyers and members of the public", and although it brings with it an obvious risk that the defendant will give false evidence under this "most powerful inducement", the same very experienced court which so stigmatized this practice was willing to accept that it was in accordance with the law.
The point that I am making is that plea bargaining can go on, but it must be in accordance with the law.
Senator Nolin: We all agree with that.
Senator Cools: It must be in accordance with the law. This bill addresses situations where plea bargain agreements are not consistent with the law.
Again, finally, the real issue is that government, prosecutors, and everyone else must have regard to the public interest. In the long run, the issue is one of public interest, and I am not sure that we pay enough regard to the concept of the public interest. I put this bill before you, to my mind, in the public interest.
Senator Nolin: If I may, I totally support ensuring that plea bargaining is done within the law. Let me refer you to one relatively large offence which is already in the code. It says that every one who wilfully attempts in any manner to obstruct, prevent or defeat the course of justice is guilty of an indictable offence and liable to imprisonment of a term of not exceeding ten years.
It is already there. Perhaps ten years not enough, but it already exists. If someone has done something within the purview of that, they should be accused of that.
Senator Cools: It is a moot point.
Senator Nolin: There is already an offence in the code that can be used.
Senator Cools: Senator, I was told that if anyone had charged Ms Homolka with obstructing justice, they would not have gotten out of the starting gate. She has not obstructed justice, so we come back to politics.
Senator, I appreciate your concern. I have heard it before. I know your concerns come from a long history of study on some of these issues. However, I was not attempting to amend the Criminal Code to bring in a new offence, because all the advice that I received told me that the old offences of obstructing justice, perjury and so on were not developed to fit the new modern problems that the phenomenon of plea bargaining and its negotiations have bequeathed to society.
In other words, if I can quote Mr. Rock, my bill is an attempt to respond to the changing social needs of the country and of the criminal justice system. I assure you, honourable senators, that this bill was brought to you with a lot of study. I had advice.I was told I could do it as an exemption from the general law. It could have been done in many different ways, but I was told that the phenomenon of plea bargaining was so pervasive and so total that it was necessary for the law to begin to speak to plea bargaining.
If I can meet Senator Doyle's point, I was attempting to bring plea bargaining out of secrecy and into the public eye. That is what this bill attempts to do: To bring it out of a little, secret closet and put it right before us. Every single judge and every single person in the system should know when they are dealing with a plea bargain, and they should know the details and the conditions as to how it was negotiated.
With that, I thank you all.
The Chair: I thank you, Senator Cools, for your presentation this morning.
The committee adjourned.