Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 31 - Evidence
OTTAWA, Thursday, October 24, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-3 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 are continuing today with our consideration of Bill S-3, an Act to amend the Criminal Code (plea bargaining).
I am pleased to welcome Mr. Yvan Roy and Mr. Fred Bobiasz of the criminal law policy section of the Department of Justice to this meeting. Both witnesses have appeared before this committee before and we look forward to hearing their comments on Bill S-3.
The Standing Senate Committee on Legal and Constitutional Affairs recognizes, of course, that this is a private member's bill, not a government bill, and that you operate as public servants and legal counsel to the government. Therefore, there are some constraints on your ability to comment on a private member's bill. With that in mind, we welcome the information you can provide to us with respecting this bill.
Mr. Yvan Roy, General Counsel, Criminal Law Policy Section, Criminal and Social Policy Sector, Department of Justice: It is a pleasure for both Mr. Bobiasz and I to be here this morning. We have been asked to enlighten the committee on Bill S-3. We thought it would be inappropriate to make an opening statement. Rather, we will receive your questions and Mr. Bobiasz and I will do our best to answer those questions so that you will have a better understanding of the aims of Bill S-3 and the problems and pitfalls associated with this bill.
The Chair: The majority of the bills I have dealt with have been provincial rather than federal bills.
Manitoba legislation is always drafted in a particular way with respect to retroactivity. The question of whether this bill had any retroactive provisions was raised on our first day of discussion. I did not believe Bill S-3 to be retroactive, but Senator Cools disagreed.
In Manitoba, if proposed legislation contains a retroactive clause, that fact is always clearly stated. Is that indicated clearly in federal bills? Can you enlighten me on that?
Mr. Roy: Madam Chair, you know as well as I do, that 10 lawyers will have 10 different opinions on a matter. On this particular matter, I am sure they would agree that if a bill contains retroactive provisions, the common law is quite clear that the bill must contain a clause so indicating.
The question is whether the bill is meant to be retroactive or not. I think in this case there may be some debate as to whether this proposed legislation is meant to be retroactive. I shall try to explain the distinctions that can be drawn here.
Generally speaking, when lawyers talk about retroactivity, they mean the legislation will have an effect on situations which have occurred in the past. There may be an argument in this particular case to say that this is what this bill attempts to do.
This bill appears to be aimed at giving the state the power to act with respect to a conviction that has already been entered and is still in place. To that extent, it may be argued that this is not retroactive but, rather, this has an impact on vested rights. There is a distinction to be made between the two.
I understand there may have been discussion in this committee regarding the Karla Homolka case. Her conviction was entered a couple of years ago, but she is still, "convicted," and to the extent that this bill, if it were to become law today, would have an impact on this conviction, that impact would occur as of the moment the bill becomes law. It is not, in the normal sense of the word, retroactive in that it is not necessarily bringing this back to the original conviction, but it definitely has an impact on the vested rights of that particular individual with regard to the conviction that has been entered in her case.
From my perspective, the real question is whether this piece of legislation is constitutional on the basis of section 11(h) of the Charter of Rights and Freedoms. Section 11 states as follows:
Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
In other words, in the case involving Karla Homolka, or other people who have already been convicted, we are talking about reopening the conviction, and on the basis of section 11(h) I would submit that there may be a significant Charter problem. Indeed, that problem deals with what can be done retrospectively but also probably what can be done prospectively. I mean by that new cases that can get into the system after this piece of legislation becomes law, if it ever does.
The situation is not as clear-cut as I would like it to be. On the basis of section 11(h) there is a significant problem to be overcome. I do not know whether it would be possible to overcome that problem within the strictures of section 11(h). What would have to be argued later on, I am afraid, is that there is a limitation to be put on the right under section 11(h) on the basis of section 1 of the Charter of Rights and Freedoms, and that may prove to be a very daunting task.
[Translation]
Senator Nolin: Thank you, Madam Chair. Mr. Roy, I hope you can enlighten the committee. When the different attorneys get down to discussing a plea, and when it is discovered subsequently that some facts were not disclosed, either by one attorney or by the other, does our system of law provide for any kind of recourse to change the terms of the plea?
Mr. Roy: To answer your question properly, allow me to go back a little in time. I do not wish to make a lengthy preamble, but I do think it would be useful to situate the problem in its proper context.
When we talk about a possible plea, what we are dealing with initially is the state that has decided to lay a charge against someone. When it prefers a charge, the state is confident that it can prove beyond a reasonable doubt the accused's guilt.
The accused is not obliged to disclose any facts whatsoever to the state; he does not have to participate in the investigation; he does not have to incriminate himself one way or another at any time. The accused -- the person suspected of committing a crime -- could very well sit down and say: I have nothing to say, sir or madam. Prove your case.
The state may at times need the help of other persons in order to prosecute certain individuals. The state may also at times want to plea bargain with the accused party, because this will be to the latter's benefit. The accused may possibly receive a lighter sentence in the process. The state also stands to gain from a plea bargain because in some cases, the evidence may not necessarily be iron-clad. For example, some victims may be reluctant to testify or a trial may not necessarily be in the public interest. This is usually the point at which the Crown and the defence attorney start talking about a possible plea bargain.
This brings me to your question. The basis of these discussions is generally the lack of any kind of admission by either party. The Crown and the defence attorney generally end up agreeing on what the Crown thinks it is in a position to prove. The defence in under no obligation to make any kind of disclosure. Let us be very clear on this; the defence is under no obligation to disclose facts to the Crown.
The Crown is aware of the evidence in its possession to prove the accused's guilt. The accused, on the other hand, is under no obligation to deal or to disclose information. Therefore, you have a situation where on the one hand, the Crown is in possession of evidence and on the other hand, the defence is under no obligation to help it. The objective is to work out a plea bargain that will satisfy everyone.
In my opinion, this bill is based on a false premise, namely that the defence would be under the obligation to disclose information to the Crown. The Crown proceeds on the basis of the evidence in its possession. If it is prepared to plea bargain with the accused, it usually has good reasons for doing so.
Senator Nolin: And furthermore, nothing is written down.
Mr. Roy: That is correct. When a plea bargain is ultimately reached, it is based on the evidence that the Crown believes it can present. As I said, in the absence of a plea bargain, the onus would be on the Crown to prove its case in court, whereas the accused can sit fast, say nothing and refuse to cooperate in any way.
The end result is a plea bargain that satisfies everyone, because the court has nothing more to present at this time. Let us come back to the Homolka case, since it seems to be generating the most discussion insofar as this bill is concerned. In that particular case, the Crown did not necessarily have enough evidence to convict the other individual involved, Paul Bernardo. Under the circumstances, the Crown worked out a plea with the defence precisely to secure the evidence needed to get a conviction in the other case.
Ms. Homolka was under no obligation to discuss this matter with the Crown -- or any other subject for that matter -- and the Crown could have decided to proceed with a charge of murder, involuntary homicide, or some other offence. The person charged could have then said: now, prove your case. It is not clear that the Crown could have obtained a conviction. Moreover, it should be remembered that when the Crown prefers a charge, it must contend with time constraints. The Crown cannot wait indefinitely to proceed on a charge.
Rest assured that I am getting to your question. If in this, or in other cases, the Crown had moved forward and secured a conviction against Ms. Homolka for involuntary manslaughter, which was entirely within the realm of possibility, it is also highly possible that the outcome would not have been any different than what we saw in this case.
Under these circumstances, should we be able to set aside a conviction secured following a lengthy trial in order to present other evidence because more is known about the degree of guilt? Everyone's answer would obviously be no. Why? Because a conviction is a conviction is a conviction.
What I am saying here is that after a guilty plea has been entered and a plea bargain arranged, what we have is a conviction. This conviction cannot be set aside because the individual has been found guilty following a trial by jury and the principles of law are such that a case cannot be reopened simply because there is now new evidence to present.
I can give you another example of a case that was tried in another country. If new evidence were to come to light in the O.J. Simpson case in the United States, new charges could not be preferred against him on the grounds that new evidence has come to light to suggest that he is guilty of the crime of which he was accused and acquitted.
The same applies here. What can be done to set aside a sentence received on conviction? The sentence can be appealed to the Court of Appeal on the grounds that it was not consistent with the objective and subjective gravity of the crime of which the accused was found guilty.
One of the witnesses who appeared before your committee suggested that an appeal was possible in this particular case. I am referring to Professor Young of Osgoode Hall. I believe that Professor Young is correct.
The law is written in such a way that it is possible to appeal a sentence handed down. However, the appeal must relate to the crime for which the person was convicted. I would not file an appeal from a sentence arguing that the person must be convicted of first degree murder. The person was convicted of involuntary manslaughter and that is all there is to it.
However, to answer your question, there is a limited period of time during which an appeal can be filed and in order to go beyond this 30-day period, the permission of the Court of Appeal must be obtained.
Furthermore, there is no guarantee that in this particular case, or in other cases for that matter, the Court of Appeal will give its permission because our system of law also subscribes to the principle whereby at some point in time, the books must be closed on a case. It is possible that the Court of Appeal may grant its permission in a particular case and not in another. It proceeds on a case-by-case basis. However, the law currently does allow for an appeal.
Senator Nolin: If one of the parties acts in bad faith and if it so happens that it is the Crown attorney who is not acting in the public interest or who is acting outside of his mandate, what happens then? What recourse does the Criminal Code provide to offset the actions on the part of the Crown attorney?
Mr. Roy: The Criminal Code will be of no assistance to you in this case. You are talking about a Crown attorney who is acting outside his mandate?
Senator Nolin: In other words, he agrees to a reduced sentence, knowing full well that he could have sought a lengthier one, but for all kinds of reasons which I am unaware of and which could be validly proven, the conclusion drawn is that the attorney has not done his job.
Mr. Roy: I believe all Crown attorneys, whether they are salaried employees or whether they are occasionally acting on a mandate, have received written instructions from the country's attorneys general as to what they can and cannot do in a plea bargaining situation.
The framework within which they can act is relatively narrow. Directives have been issued at the federal level. If the committee is interested, I could obtain a copy for the members. However, within this relatively rigid framework, attorneys are allowed a certain amount of latitude, so that the system can function.
An attorney who acts outside this framework will be sanctioned by the Attorney General for failing to follow the orders issued. In extreme cases, the person could even be relieved of his duties. However, no recourse is provided for in the Criminal Code because theoretically, when a Crown attorney is acting in a court of law, he is acting on behalf of the Attorney General.
Our justice system works because we believe that the word of the Crown prosecutor is his or her bond. If we were to go back over an agreement already signed, I do not think the courts would hesitate to order a stay of proceedings on the grounds of abuse of process.
When the Crown attorney goes before the court, he is committing the Attorney General. If the Crown attorney acts inappropriately, he will be sanctioned by the Attorney General. However, the law is satisfied that whatever happens in court takes place in a formal setting and the honour -- that was the word I was looking for -- the honour of the Crown and the honour of the Attorney General are at issue. Most people will tell you that under the circumstances, the negotiated plea bargain reached must be respected. I would say that in any event, at this stage of the process, the conviction has been registered. You therefore end up having to contend with section 11(h) if ever you want this conviction to be set aside.
This brings me back to the point I was trying to make earlier. If there appears to be some inconsistencies, the Crown could always appeal the matter within the 30-day time limit on the grounds that something is not right. I think the higher courts would be receptive to this.
Moreover, the 1990 report by Judge Martin specifically refers to the appeal process. For the benefit of your colleagues seated at this table who are not familiar with Judge Martin, he is probably the most well-known and the most knowledgeable criminal lawyer in Canada. His opinions carry considerable weight.
[English]
Senator Lewis: Madam Chair, the bill refers to a plea bargain and a joint submission. I think it is well recognized that the prosecutor and defence counsel may make a joint submission to a court. Under the Criminal Code, is there any procedure known as a "plea bargain"?
Mr. Roy: Senator Lewis, there is no such thing in the Criminal Code as such. The code provides for someone who may want to enter a guilty plea. At that stage, it is for both parties to make their submissions. They may be joint submissions, as you pointed out, but then it is up to the judge to accept them. There have been cases in the past where a judge has not accepted a joint submission and imposed a sentence which may be higher or lower. In most cases, it has been higher.
Senator Lewis: I presume that the submission might be not for a specific term, say, but cover a range.
Mr. Roy: That is true.
Senator Lewis: They may submit that a sentence of two years to four years might be acceptable.
I see that clause 1, which amends section 606.1(1)(a) refers to, "the accused or defendant, as part of the plea bargain. At the end there is a definition of "plea bargain." It means an agreement. That is not something which is recognized under our criminal law system.
You just said a moment ago that the judge or the court has a discretion in what sentence will be imposed. If this were in place, it would take away that discretion. If there is a plea bargain, then the judge, apparently, would be bound by that. I cannot see how that could be. The discretion of the court should be maintained.
It states that when there is a joint submission and the court accepts the guilty plea then the court will make a disposition in accordance with the joint submission. That seems to be almost tying the hands of the court. I believe that the discretion of the court should be maintained at all times.
Mr. Roy: It may be that the way this is drafted leaves the impression that the judge is bound by the joint submission made by counsel. However, I did not read that clause, as it is drafted, as making this mandatory. I think that it should be understood. I read the clause to say that it is still part of the general criminal justice system. It is understood that the sentencing process is the province of the trial judge.
Senator Lewis: And nobody else?
Mr. Roy: Nobody else. He or she can disagree, and there would be absolutely no problem whatsoever with that.
This provision seems to assume that the judges will follow the joint submission. However, I do not think that is said expressly in any way, shape or form. If it is an assumption that is fair, then perhaps it should be remedied, if this piece of legislation is to go any further. However, I did not read the section in that fashion.
I understood the drafter to mean that it is understood it is for the trial judge to make that decision. However, it seems to be saying that, when the trial judge agrees with the joint submission, then it should be possible to reconsider at some point in time the condition that has been entered.
Senator Lewis: It implies that the court would have to say, "In accordance with the submission, I impose a sentence." If the court does not do that, then it is not necessarily in accordance with the joint submission, and then these provisions would not apply.
If this were in effect, then a prosecutor making an application after the sentence would have to demonstrate to the court that he or she imposed the sentence in accordance with the joint submission. They would have to prove that that is how the judge exercised his or her discretion.
Mr. Roy: At the top of the second page of the bill, it states:
-- and makes a disposition in accordance with the joint submission --
That seems to be a prerequisite that the judge agrees with the joint submission in order for this new mechanism to apply.
Let us suppose in a certain case the judge were to say, "Although your joint submission is for 10 years, I think the sentence should be five." As I read this, it seems that the mechanism we are discussing cannot be used in order to reconsider that conviction later on. That may be a little bit anomalous. If that is the point you are making, then I share that concern.
Senator Lewis: In the proposed section 606.1(1)(a), it states "as part of the plea bargain". That seems to presume there would be an agreement -- I do not know whether it would be in writing or not -- and it would be presented to the judge. My concerns is that I cannot see how that plea bargain could be binding on the court. The general rule is that it is still in the discretion of the judge. The judge may feel that the submission, as you say, is reasonable, but there is still a discretion. This seems to imply that, if there has been such a thing as a so-called "plea bargain" -- and I say "so-called" because it is not recognized at all -- then it means an agreement which would seem to bind.
Mr. Roy: I did not read this part as making the agreement reached between the parties binding on the judge. However, you may be right. I know that my colleague, Mr. Bobiasz, would like to add something at this stage.
Mr. Fred Bobiasz, Counsel, Criminal Law Policy Section, Criminal and Social Policy Sector, Department of Justice: Madam Chair, in looking at it from one perspective, as I understood it, the plea bargain is between the accused and the prosecutor. It is not something which involves the judge. Indeed, there is extensive literature and case law about plea bargaining as part of our system. Although there is not a consensus as to what should be the case on all aspects of it, one thing that is clear and maintained over and over again in any discussion of plea bargaining is that the judge should not be involved in the plea bargain, for the very reason you mention. It is a fundamental principle of our system that it is the duty of the judge to impose the appropriate sentence. The agreement has to be construed as being something that is between, on the one hand, the accused and, on the other hand, the prosecutor.
I agree with you that, as drafted, there will be ambiguity, not so much in the statute but in reality when a judge makes a disposition which is consistent with a joint submission, the joint submission being made in conformity with the plea bargain. The judge may not even know that it is as a result of a plea bargain. In many instances, there are guilty pleas. In many instances, there are submissions that have nothing to do with a plea bargain. A guilty plea is part of the way in which most of our cases are dealt with. Although a significant number of them are as a result of negotiations between the parties, many are not. Submissions are made based on the perceived facts of the case.
In many instances, the judge will likely impose the sentence that would have been imposed had there not been a joint or common submission. In that case I think the ambiguity which will arise and which will cause a certain amount of difficulty to the administration of justice is whether or not this particular provision would be applicable because, as a condition, it would have to deal with the disposition made in accordance with the joint submission. The judge may very well feel that the disposition is made applying appropriate sentencing principles. That is just a potential problem area with regard to the administration of justice, should this provision be enacted.
Senator Cools: I have many questions, but I am not in a position to place them all before you today. I had hoped you would have responded to some of the concerns I raised in my various presentations and speeches. I would have been happy if the department would have responded to them item by item.
Having said that, I wish to put three brief questions. You said that the prosecutor has or must have a certain amount of discretion. That reminds me of the phrase: "a substantial amount of unanimity" in the 1981 Repatriation Reference. How much discretion is that? Could you tell us the legal and constitutional limits to that discretion?
We are told that resolution agreements, plea bargains, or whatever we call them, are commonplace in today's administration of criminal justice. If that is so, why has the law and the Criminal Code not taken cognizance of plea bargaining? This builds on Senator Lewis' question.
My last questions builds on the fact that currently there is no requirement -- and Peter Russell has written on this in his 1987 book, The Judiciary in Canada: The Third Branch of Government -- that judges ferret out the circumstances of plea bargains just in case, as in the Homolka situation, one party has more to sell than the other. Where, in law, is the requirement that judges look at these resolution agreements with a critical and judicial eye? If judges have full discretion to explore everything before them and I believe they do are not doing so, I would like you to tell me how they can do that. If I could be assured that judges would look with a critical, judicial eye at many of these resolution agreementssituations, I would be happy to pull the bill back.
Mr. Roy: Perhaps I will start with the third question first.
I have practised in the criminal courts for a number of years. I was involved in discussions of the very nature we are discussing here with defence counsel because I was practising as a Crown prosecutor. It happened more than once that judges would ask me and defence counsel very pointed questions as to how we reached a particular agreement. In some cases, they decided not to follow the joint submissions that had been made.
Why is that? It is recognized in our law that it is not the business of the prosecutor and the defence counsel to decide on the sentence to be imposed on someone; it is the duty of the judge to make that determination. Judges are very much aware of this, and I would say that they are even very jealous of that role.
When the government produced its sentencing reform which became Bill C-41, you will remember that we were before this committee to discuss it. It is now Chapter 22 of the laws of 1995. Judges, when they were consulted, said, "You should not do anything about the discretion the judge has in imposing the appropriate sentence in the cases brought before us." Therefore, judges ask questions, and they consider it to be part of their duty to do the very thing you are asking them to do, which is impose the appropriate sentence in the appropriate circumstances.
Going back to your first question about discretion and whether that is a good thing or not, it has been recognized by our courts and it is part of our common law. The answer is a resounding yes, in my humble view. I find support for that resounding yes in what the Supreme Court of Canada had to say in the case of Power where the nine judges of the court wrote the best judgment I have seen on the need to have discretion left in the hands of practitioners who are skilled, have experience, and know what they are doing. The exercise of that discretion must be supervised by the courts. The court was quite adamant that the courts have the last say, which takes me back to the last question you asked and which I answered first. Courts will still exercise discretion in sentencing matters because there is that need for the supervision of what has been agreed to by skilled practitioners in the field.
Finally, you asked why plea bargaining has not been codified.
Senator Cools: You are missing some of my questions. I was asking you about the limits. I was not questioning whether there should be discretion; I was asking about the limits, constitutionally and legally. I realize that you perhaps cannot answer my questions directly. My question is not so much why it has not been codified, it is why the law has not taken cognizance of something which I am told is so terribly rampant.
Mr. Roy: There are many sources to the law. The Criminal Code is but one of those sources. There is, generally speaking, what we call in our jargon the common law, which is what academics have been writing, what learned authors have been writing and saying, and, more importantly, what the courts have been saying.
With respect to the business of plea bargaining, to use that phrase, an enormous amount of literature has been produced. The Law Reform Commission produced a major working paper in 1975 and another one 14 years later. You have referred to some of those sources. The Martin report deals with that and Mr. Justice Galligan, in his review of the Homolka situation, referred to it. He also referred to a host of other authorities that were produced.
To say that there is no law on this is probably not completely accurate. It is accurate to say that the code does not use the phrase "plea bargaining," and the code does not codify the practice. Courts of appeal have written extensively on the practice. Among other things, they say that it is still the judge who makes the decision as to what is the appropriate sentence, and that has been repeated many times in Ontario and elsewhere.
Senator Cools: I do not think anyone here is disputing that a judge decides on the sentence. Most senators here would support and encourage that and wish judges would do it a more often. The reality is, to the extent that plea bargaining seems to be overtaking the process, trials are being abridged and become short experiential encounters. I am concerned that judges execute full trial authority and full trial attitudes and techniques within that abridged situation. That does not seem to be happening. I have discussed this with many prosecutors, and I am most interested in what you have to say.
Mr. Roy: Our own guidelines at the federal level for our prosecutors make it very clear that the prosecutors must go before the judge and be completely open, telling him or her what the facts are, what it is that the Crown is able to prove, so that the judge can make that determination. At the end of the day, it is only a submission being made to the judge, and the judge must be in a position to make the decision on the basis of facts disclosed to him.
All I can tell you, Senator Cools, is that at the federal level and, I would venture to say, at every level -- because every province I know of has guidelines to that effect -- the openness of the process is required for the general public to have confidence that plea bargaining is a good thing at the end of the day.
It is important for us and for the members of this committee to go to the public and tell them that this is how things are done in the courts. We need to publicize how this is done so that people will have the confidence which is needed in order for the system to work. Hearings such as these are important for that very purpose. You should be thanked for having produced this bill which gives Mr. Bobiasz and me an opportunity to come and tell you that the system works. The reason it works is because it is open. When you go before the courts, you will see that prosecutors and defence counsel alike are giving the score to the judge and, at the end of the day, it is the judge who makes the decision and not the parties.
Senator Cools: You and I have ended on the same point. My intention in the bill is to bring more light into the process. I do not have time today, but there is a difference between how the federal and the provincial authorities fellows are operating. You know it and I know it.
Senator Beaudoin: The more I listen to you, witnesses, the more I agree with you. Plea bargaining is a good institution. In my mind, there is no problem at all.
You referred to Martin. You are right in saying that he is the great authority.
Mr. Roy: His opinion is foremost.
Senator Beaudoin: What opinion were you referring to when you quoted Mr. Martin?
Mr. Roy: Former Mr. Justice Martin was asked by the Province of Ontario to look into how justice could be better administered in the province, given the crisis of overburden being faced at that time. A committee was convened to be chaired by Mr. Justice Martin. That committee produced a rather voluminous report. It is about an inch thick.
One large chapter, over 100 pages, is dedicated to the issue of plea bargaining and how it should be done. It explains why it is a good thing that there should be plea bargaining in Ontario. It is good not only because it will unclog the courts. It is intrinsically a good institution because both the state and the accused get something out of this "deal."
Senator Beaudoin: I agree entirely.
[Translation]
If we approve this bill, we run the risk of violating the Charter of Rights as well, because if the accused has already been sentenced and if I understand clearly the objective of the bill, the sentence could be called into question and a second charge preferred. Is that correct?
Mr. Roy: I am treading on dangerous ground, in that my client is first and foremost the Minister of Justice. I am not supposed to give legal opinions, but I indicated at the start of my presentation that I had serious concerns about the scope of subsection 11(h) of the Charter when it came to this bill.
I will not go so far as to stick my neck out and say that it would be unconstitutional, but I do think it does present some substantial risks insofar as it would contravene this subsection or even section 7 and the state would then have to prove, pursuant to section 1, that it is a necessary and balanced piece of legislation. As I stated at the outset, this would be difficult to prove based on what we know about the plea bargain, and on the parameters of the law. You have put your finger on the risk element and on the reason why I am concerned about the validity of this bill.
Senator Beaudoin: In other words, you share my opinion. If the bill ever passes, it could present a problem in terms of the application of the Canadian Charter of Rights and Freedoms. Is that correct?
Mr. Roy: Let me put it another way. If I were a defence attorney in private practice, you can be certain that I would raise this objection at the first opportunity.
Senator Beaudoin: That answers my question. I too believe that this provision is not clear and that we should leave well enough alone. In my opinion, the bill does nothing to improve criminal law.
Mr. Roy: As you know, this bill came about as a result of an extremely trying series of events in southern Ontario which resulted in one of the most spectacular trials ever seen in Canada. However, the situation that this bill purports to denounce was the focus of an exhaustive study by another renowned jurist with considerable knowledge of criminal law, namely former Justice Patrick Galligan of the Ontario Court of Appeal who practised in this field for over 40 years. After conducting this thorough study, Justice Galligan concluded in an extremely well-structured report that the system worked well in this particular case. Where then is the problem?
Senator Beaudoin: When a system works well, we should not tinker with it. Thank you.
Senator Gigantès: Mr. Roy, if I understand correctly, the origins of our current system go back many years. We want to avoid the mistakes of past systems, questioning under torturous conditions and so forth.
Mr. Roy: Yes.
Senator Gigantès: And in order to do so, the accused must be considered innocent until proven otherwise. Furthermore, the accused does not have to incriminate himself. If these two pillars of our system disappear or are challenged, then we will be reverting to the dark ages, to a time when our system of law as we know it did not exist.
In my view, this bill violates the principle whereby the accused does not have to incriminate himself. That is one problem that I see. I agree with you on this and I do not want to force upon you my interpretation of your comments which I listened to closely. However, on looking at the bill, we could now argue that a decision of the court could possibly be reversed because the accused failed to disclose facts that could have been self- incriminating. Is this not a danger inherent in this bill?
Mr. Roy: I fully agree with you that our system is founded on a long-standing tradition of these two broad pillars. In fact, barely one year ago, Judge Iacobucci praised our country's system of law for rejecting the notion of self-incrimination. The case in question was R.J.S. The importance of this principle in our system of law should not be underestimated.
We must not lose sight either of another principle which is also viewed as fundamental: once a person has been found guilty and convicted, the case is closed.
This principle is clearly recognized in our Constitution, that is in section 11(h) of the Charter adopted in 1982. This provision states unequivocally that once a conviction has been handed down, the case is closed. The bill before you would violate the principle set out in section 11(h).
You have pointed to another possible problem, the fact that a person might be put in the position of having to incriminate himself. Paragraph 1a) reads as follows:
...as part of the plea bargain, did not disclose to the prosecutor all the facts known to the accused or defendant concerning the transaction...
No such obligation exist in Canadian law for the historically valid reasons that you identified and also by virtue of the Canadian Constitution which states that a person does not have to incriminate himself.
Here again, other Charter provisions could be invoked. As you know, I do not wish to be seen as someone who invokes the Charter of Rights and Freedoms to complicate matters for those who wish to do important things. However, I do believe the Charter has merit and promotes worthwhile values, one of which you identified in your question. In our system of law, this principle guards us against reverting to the dark ages. It allows us to say to someone: you do not have to talk, you have the right to remain silent and you do not have to defend yourself. The onus is on the state to prove guilt.
These are important values in our society which probably deserve to be defended. I am absolutely certain that your colleague who tabled this bill is not looking to attack these values and rights.
Clearly, your colleague is attempting to resolve a problem which she perceives in the criminal justice system. However, in attempting to resolve this problem, other more serious ones are being created perhaps. I humbly submit to you that the problem identified may be more apparent than real. A great deal of work has gone into the plea bargaining process over the years.
Crown attorneys have been given clear instructions. I will recall once again, for the last time I promise, that the decision ultimately rests with the judges. The plea bargain is only one element of the puzzle. The judge is the one who decides.
Senator Gigantès: The dark ages were not so very long ago. Up until 1984 when legislation was enacted to divide the RCMP in two and establish CSIS, the deputy minister was judge, jury and executioner all rolled into one where security matters were concerned. He was under no obligation to disclose the charge to the accused; he was not even required to inform the accused that a charge had been preferred and the accused was convicted by the deputy minister who was accountable to no one. This happened routinely and the accused would find himself in a Kafkaesque situation. It happened to me and I was unable to defend myself. It took me 11 years to have the charge cleared. Therefore, I am especially concerned about safeguarding these freedoms.
[English]
Senator Milne: I was having some difficulty with the French translation. Perhaps I can follow on from Senator Gigantès' first question and get some clarification.
Does the decision by the defendant to agree to this plea bargain mean that he has forfeited his right not to incriminate himself?
Mr. Roy: No.
Senator Milne: This bill seems to me to suggest that the defendant in a plea bargain might have to admit to all and any crimes that he has ever done, not just the one that the Crown at that moment is prepared to charge him with. What does this do to fundamental justice or his rights under the Charter?
Mr. Roy: As I was discussing with Senator Gigantès, paragraph (a) in the proposed section 606.1(1) states:
the accused or defendant, as part of the plea bargain, did not disclose to the prosecutor all the facts known to the accused or defendant concerning the transaction or series of transactions giving rise to the offence charged.
That seems to require that everything has been disclosed to the Crown. When you read further, it appears that when the matter is brought back for reconsideration by the court, the person will be sentenced on the basis of new facts that have been revealed.
Senator Gigantès has identified this as a potential problem in that it may be a way of circumventing the guarantee against self-incrimination, which is protected by the Charter, and for very good reasons, as Senator Gigantès was saying.
Senator Milne: Following through on the plea bargaining, over and above what the judges may think of this bill, have you received any feedback at all from Crown attorneys or defence counsel on how they feel this would affect their ability to plea bargain?
Mr. Roy: I have not heard anything. I know from discussions with the clerk of this committee that some of these organizations have been invited and some may appear before you to voice their concerns or their endorsement of the bill. I would think most of them would have concerns. I have not discussed this with others, and no one has been calling me about Bill S-3. I understand Mr. Bobiasz can probably enlighten you further.
Mr. Bobiasz: On the last point, Senator Milne, I was at a federal-provincial-territorial meeting of the coordinating committee of senior officials involved in justice issues held in Toronto two weeks ago. This issue was briefly discussed.
Without going into great detail, representatives from federal, provincial and territorial jurisdictions around the table expressed concerns that the bill would be enacted as drafted. This is just my sense of the opinion expressed. They were apprehensive. They wanted to have a better idea of how this bill will be apt to proceed. They were taken by surprise by it. The general view was that the present system, although no one involved in the criminal justice system would put it forward as being perfect, is a system that works. The plea bargaining aspect of the system is integral to its proper functioning.
In regard to your first question having to do with the obligations under the agreement, I think there is a difficulty with the structure of the bill. I think it assumes that the particular factual situation that gave rise to the desire to produce the bill, that is, the Homolka case, is representative of the typical plea bargaining situation.
If you have had the opportunity to read the Galligan report, Ms Homolka gave up her rights not to incriminate herself. She made statement after statement which ordinarily she would not have had to make. What is captured in this legislation is what happened in that incident, but it is certainly not what happens in the typical interchange between counsel for the accused and the Crown prosecutor.
Senator Milne: I asked Senator Cools questions about the wording in the bill that concerns me. At the top of page 2, there is mention of "a balance of probabilities". I believe the usual term is "beyond reasonable doubt". Could you comment on the effect of these two terms? Why would they use the "balance of probabilities" as the test?
Mr. Roy: There is, in law, a big difference between the two standards. It is not only a difference in terminology; it is a difference in the threshold required in order for the Crown to prove something. A balance of probabilities is basically that there are more chances that one scenario is true rather than another. "Beyond a reasonable doubt" means exactly that: There cannot be a reasonable doubt; otherwise the benefit of the doubt goes to the accused.
Is it required in our law to have "beyond a reasonable doubt" every time the Crown is asked to do something? This is, generally speaking, the position the legislation has taken. I will give you an example by way of illustration.
In sentencing matters, the Supreme Court of Canada had said in a case called Gardiner in 1982 that, if at the sentencing stage the Crown wants to prove aggravating circumstances, it has to prove this beyond a reasonable doubt and not by a balance of probabilities. When Parliament was asked to look into the sentencing scheme and eventually passed Bill C-41, it was made clear in the legislation that, in those circumstances, it is for the Crown to prove this beyond a reasonable doubt, which is, generally speaking, the standard used for the Crown when it has to prove something.
Is that constitutionally mandated? I would not go so far as to say that, although I am sure that some would make that argument. I should let my colleague, the good professor, enlighten you on this.
Mr. Bobiasz: There is not much more to say about it except that if the expression "on a balance of probability" were left in the bill, it would create an anomaly, in that, as part of the ordinary sentencing process, unless facts were agreed to, which is the easiest way of fulfilling the reasonable doubt requirement, as Mr. Roy indicated, it is the obligation of the prosecution to establish beyond a reasonable doubt all relevant facts. Therefore, you would have a situation in your basic proceeding of matters having to be established at a level of beyond a reasonable doubt, whereas, depending on how you want to characterize this proceeding -- it is not quite an appeal; it is kind of a second go at it -- effectively what would have to be established on a disputed issue would require a much lower level of proof. At the very least, it would cause the courts, the prosecutors and the defence counsel, some great difficulties in working through that. At the other level, it may be another avenue for attack based on not meeting constitutional standards.
Senator Milne: It would give you a second crack at this person at a lower level of proof.
Mr. Bobiasz: In some respects it is adding insult to injury, although I do not like that term. Our present system of applying conventional rules with regard to double jeopardy would be relaxed somewhat for this particular aspect.
The Chair: For your information, on your behalf I contacted all the provinces with respect to this bill. I received three letters. The Attorney General of Alberta has indicated his concern with the constitutionality of the bill. The Attorney General of Saskatchewan has indicated concerns the province has with the administration of justice if this law is enacted. The Attorney General of Nova Scotia indicated that they would not be appearing before us.
We also asked the Canadian Bar Association to appear. They have declined, but the Quebec Bar Association has agreed to send us a brief. We also asked CAVEAT, which is a victims' group, to appear. We have had no response to date, but we will contact them again.
We have been told by the Canadian Association of Crown Counsel that they would be interested, with enough lead time, to appear. The Criminal Lawyers' Association of Ontario has not responded as yet. We have tried to canvass quite broadly with respect to this.
Senator Doyle: We have spent a fair amount of time this morning talking about how the process of plea bargaining works. I do not think that, at the moment, we are dealing with a major doubt on the value of the plea bargaining process. In fact, we would be in some difficulty without it.
The bill, however, as I read it, deals with events after the plea bargain has been struck and after it has been put into effect. It only deals with what might happen afterward if new evidence becomes available which indicates some dereliction on the part of the accused person, some lack of knowledge on the part of the court, or perhaps some faulty advocacy somewhere. That might be useful.
Would you share your thoughts on the following: If a bill were drafted which acknowledged that it is possible that the perfect case is not always going to come to light within the purview of the judge at the time of the original deal, it is possible that that could work both ways. You mentioned that sometimes a judge does not accept the recommendation of the plea bargain. He may increase or he may decrease the recommended sentence. Surely, then, if you are going to provide for that in the case of new evidence, or new information, you should provide for that to work both ways. If you are going to allow or require in this bill another judge to have another crack at it, then that judge should have the clear opportunity to deal with people who feel that had they known what they were involved in in its totality when the plea bargain was made on their behalf, they might have presented other evidence in their defence. If we are considering the need to increase certain sentences, then surely we have to look at the need that might exist for decreasing sentences.
Mr. Roy: As is quite obvious from the reading of this clause, right now it is only at the insistence of the prosecutor that the case will be considered at again. You are suggesting that this be broadened so that the accused will also have an opportunity to do that.
Senator Doyle: If we are going to do one, we should do the other.
Mr. Roy: As you can well imagine, that would pose enormous problems. I was going to say "challenges" but I think I would go all the way to "problems" on this one.
As part of the equation, you must also keep that famous principle of finality. There must be an end to this. What you have in the system as a security valve, for the individuals who may be suffering too much from a sentence that has been passed on them and whose circumstances have changed following the sentencing proceedings, is the royal prerogative of pardon.
Let us use this as an example, and only as an example. Someone has been found guilty of murder, the most serious crime we have in our system. The person is to spend at least 25 years in prison. That person, after 10, 12 or 15 years, is suffering from terminal cancer. You may say, "It would be a good idea for that person to be re-sentenced because, under the circumstances, it is awfully harsh. The person will die in prison and he or she has changed in the 10 or 15 years they have spent in prison." In our system of justice, it is possible to go to the government -- that is, the Governor in Council or the Governor General, depending on the mechanism You use -- to ask for that pardon. In those circumstances, pardons may be granted. If you want to go beyond that and suggest that we should be able to re-sentence people forever, then you come up against the principle of finality.
The principle of finality says that there must be an end to these proceedings. There must be some certainty. That is one of the problems we encounter in Bill S-3 in that the principle of finality is not necessarily being followed. By adding the defence in an attempt to be fair -- because that is what is guiding your concern here -- you are adding to the problem of going beyond that principle of finality.
What you are hearing from Mr. Bobiasz and myself is that the plea bargaining system, as it has operated in the last few years, is working reasonably well and you do not need to deal with a bill like this to have an impact on that principle of finality. It is not necessarily the right approach to add to the problem that this is causing by saying, "Let us be fair and give that to both sides." The system would be clogged by people coming in and saying that they have something new they want to tell the judge. From a practical standpoint, this would be problematic. Also, from a theoretical standpoint, you would run into problems with the principle of finality.
Senator Doyle: I do not want you to construe my question as advocating any particular position. I was simply raising the proposition that, if we are to weigh the scales on one side, it would be wrong not to weigh them on the other. I am not as sanguine as I might be on the argument for finality. I would be, however, if I were certain that every Crown attorney and every defence lawyer were a perfect citizen. That, even on the legal and constitutional committee, is a bit much to accept.
We have all heard the story -- it makes a good movie script -- that the young fellow was persuaded by his lawyer that if he did not get a plea bargain, he would be sent away for 99 years. He accepts the plea bargain and finds out that he only gets 80 years. I am sure that there are some situations that are wrong and where the final sentence is wrong. I know we cannot rectify them all, but we all must keep our ears and eyes open for any change in the value, one way or the other, that does not improve the likelihood of obtaining total justice some day.
Mr. Roy: In a case such as the one that you brought forward, it would be possible for the accused to appeal. The guilty plea would be withdrawn and the case would then be sent back for a full trial. There is already that possibility in the system. That has happened more than once. I want you to be comforted that the system has those security valves here and there in order not to be too harsh on individuals who made the mistake of accepting a plea bargain in a case where there was no need for that and where they were treated too harshly.
Senator Doyle: As Mr. Milgaard and Mr. Marshall will tell you, sometimes it is a long, long haul.
Mr. Roy: There have been miscarriages of justice in the past. We hope the system is refining itself so there will none in the future, but this is an assurance I cannot give. I do not think anyone involved in a human system can give an assurance like that.
There are many safeguards in the system. If better safeguards can be proposed, by all means do so. Yes, there is the Donald Marshall case and there is the Guy Morin case, where someone was found guilty who was proven not to have committed the crime. It has happened, I am sorry to say.
Senator Doyle: Mr. Milgaard was held in prison for 27 years simply because he would not confess. He could have been out long before that had he taken that step.
I am not suggesting we need to revisit every crime, but if you are considering Bill S-3, it is not unlikely that someone at some point will say that, if we are open to this suggestion, we must open it both ways.
Senator Lewis: Dealing with the bill itself, as I understand it, the proposition is that a disposition has been made based on the joint submission. If the Crown feels that the facts agreed to by the accused were not accurate, application can be made for the court to have the sentence set aside. I should like your comments on this.
I notice that there is no provision as to how long the interval must be between sentence and the application. There is no limit on it. It would appear that it could be years afterwards. In fact, it could be that the accused has served his sentence. He might be in jail for several years. He may have served his sentence and then the Crown could make an application alleging that they were not given the true facts. They could apply to the court to have the sentence set aside and ask that a new sentence be imposed.
Should there be some sort of time limit for making an application under this bill, that is, if the bill is passed in its present form?
Mr. Roy: Mr. Bobiasz has identified a number of technical flaws. We do not want this to be overkill or to be overly negative on our part, but the point you have identified is one that my friend has noticed, and he would like to comment on this.
Mr. Bobiasz: Time is a problem with this bill, as drafted, in two directions. Initially, we dealt with the time in the past with respect to how many transactions occurred and how long ago they occurred. If the view is taken that this is meant to apply to a transaction no matter when it occurred, then there will be some obvious time problems. The limit will have to do with human memory and the existence of the parties. However, time in the future, as you indicated, senator, is definitely a problem. There will be a limit to that because of what I see as another problem.
The provision, as drafted, seems to contemplate that the exact same parties on an individual basis will be implicated in the future. There is mention of the "prosecutor". The "prosecutor" is a generic term and is defined as being the Attorney General. In the context of this bill, I think the only way you can construe this particular provision is to interpret it to mean the person who actually prosecuted the offence. It is the same with the court. Although the court is mentioned in generic terms in the bill, the only way you can construe the provision is to interpret it as the judge who imposed the sentence. Although it is openended, in the sense that there is no time limitation, given the fact that time marches on, judges may become indisposed or, even worse, unavailable, because of what happens to us all in human terms. The same applies to the prosecutor.
It is a rather radical departure from what we do now in the sense that we always provide for time limits. That has to do with the principles of fairness and finality.
As well, it violates what is commonly accepted as a basic rule that, once the trial judge imposes sentence, then that trial judge is functus officio; he is no longer entitled to do anything with regard to that matter. At that stage, the trial judge is out of the picture. To the extent to which they require revision, it is a matter to be dealt with by the Court of Appeal. The Court of Appeal can deal with such matters that may be considered to be errors of law, misrepresentations and the like.
However, we have the anomalous situation here where, on the face of it, this subsidiary right of revision would exist far longer than would any appeal right. Indeed, you could get into a situation where an appeal would be taken on the very same matter, perhaps, and lost.
On Senator Milne's point about reasonable doubt and balance of probabilities, that could create some anomalous situations. It is a technical point; but it would have to be remedied before it could be inserted into our system.
Another problem which I think is worth noting is the peculiar position of the prosecutor. The problem that would give rise to a complaint by the prosecutor on obfuscation is a misrepresentation or a failure to mention something to the prosecutor. Curiously, there is the possibility of a situation where the prosecutor who would to make the application would be the key witness in any proceeding to decide the validity of the point. How that would be worked out in reality, I do not know. This problem occurs in many instances. There is always a risk that a party to the case might end up having to get off the case because he or she has become involved in a matter on which they are required to give evidence.
Indeed, this goes back to one of the questions you raised initially, senator, a judge might even be obliged to be a witness in the proceeding, in the sense that it is a live issue as to whether a judge has acted in conformity with the agreement or whether the sentence was based on other principles.
Those are the kinds of problems that do not go to the policy of the bill but they would certainly undermine the policy objectives, should it be enacted.
The Chair: Thank you, Mr. Roy and Mr. Bobiasz, for your presentation today. I understand you will be back with us next Wednesday afternoon on Bill C-45.
The committee adjourned.