Canadian Criminal Law in Ten Cases

[Music] Welcome to this installment of Witnesses to Yesterday, the podcast of the Champlain Society. My name is Nicole Lohburn and I'm a legal historian at the Faculty of Law University of New Brunswick, which is located on the unseated and unsurrendered land of the Willasta Quik. Today it's my great pleasure to be interviewing Martin Friedland about his forthcoming book, Canadian Criminal Law in 10 Cases. Martin Friedland is the James M. Torrey Professor of Law Emeritus at the University of Toronto, where he served as Dean in the 1970s. His the author of a number of historical works, including Searching for WPM Kennedy, the biography of an enigma, and I encourage our listeners to check out the Witnesses to Yesterday interview about the fascinating Kennedy book. It was released in April 2021. Dr. Friedland has received numerous awards for his research and teaching. Most notably the Royal Society of Canada's Sir John William Dawson Medal in recognition of his scholarly contributions to multiple domains and the Canada Calt Council's Mulsing Prize in the Humanities and Social Sciences for quote-unquote outstanding achievements and exceptional contribution to the enrichment of the cultural life of Canada. He is a fellow of Massey College and a companion of the Order of Canada. He has played a leading role in the formation of Canada's constitutional and criminal law and was one of the original members of the Law Reform Commission of Canada. His latest book is The culmination of a lifetime spent studying, thinking and writing about law and history. Marty, I'm thrilled to welcome you to Witnesses Yesterday. Thanks for your generous introduction and please to be here with you. In the introduction to the book you write and I'll quote here, I have found that by researching and telling stories, one can often provide a better understanding of the legal system than by a traditional legal analysis. Tell us more about this approach to legal studies and how it's drawn you into writing about Canadian history and how you've used this method in the past. Well, it's a long story. Storytelling in fact came fairly late in my career. In the 1960s and 70s, I'd been trying to write a book on the development of the criminal law in Canada, but I kept getting bogged down on specific topics in a sabbatical in the early 1980s. I was working on a chapter on the codification of the criminal law. I was looking at two draft criminal codes that had been written in England in the 19th century, one written by the well-known jurors James Fitzsame Stephen and a much better code written by a British judge, R.S. Wright. My article published in the then new Oxford Journal of Legal Studies told the story of the two codes and the interesting relationship between Stephen and Wright. My writing style had changed. I didn't disclose to the reader at the outset what happened to the codes. This kept the reader interested in continuing to read the article. I liked the storytelling technique, so I gathered to readers. I then wrote a book to trials of Israelipski, a true story of a Victorian murder in the east end of London, about one of just the Stephen's murder cases, but didn't tell the reader at the outset whether the truth was hanged or even whether he was convicted. Again, there was a measure of driving suspense. John Mortimer of the Bailey fame gave it a great review in the Sunday Times, so I became hooked on storytelling. Two other true crime books followed using a similar technique. I then used the storytelling methods for my history of the University of Toronto and recently in the WPM Kennedy Bolography that you mentioned. After my book on Kennedy was completed in 2019, I was looking for a new project. When a friend mentioned over lunch that he was thinking of doing the book on ten civil rights cases, it immediately struck me that I should consider writing a similar book on criminal law cases. This is that book. After six decades and many grants, I finally have my book on the development of criminal law in Canada. Well, I've been teaching criminal law at UNB for almost 15 years. I can't imagine having to select just 10 cases. So on what basis did you select the 10 cases that ended up in your book? Well, I wanted the cases to be significant turning points in the development of the criminal law covering the wide range of issues since Confederation. I also wanted them to be factually compelling and as possible there will be a flow from one case to another with interesting legal characters appearing and sometimes reappearing. I started with 10 cases but the number of cases kept growing. At one point I had a list of 25 potential cases. I began drafting the first few chapters. The draft of the first case turned out to be over 10,000 words. In the second case on Louis Riel over 15,000 words. This would have made the book too long. So I decided to keep the number of principal cases to 10 and bring in other cases where appropriate. You start the book with the first criminal law case argued at the Supreme Court of Canada in 1877 Regina versus La Liberté. The defense lawyer in that case was Wilfred Laurier who of course went on to be one of our more notable prime ministers. Why is this case historically important and why are the legal issues raised in the case still relevant today? La Liberté is notable because as you say it was the Supreme Court of Canada's first criminal case and it set the pattern for future cases. All the principal cases in the book except for Riel are Supreme Court cases. La Liberté isn't a well-known case and the I didn't know about the case until I started the project and to discover that Wilfred Laurier who was about to become my cabinet minister argued the case at all levels of fact that many biographers seem not to have been aware of was an added bonus. The main issue in the case to what extent can a complaint of the in a sexual assault case be questioned above her previous sexual conduct is one that still plates the criminal justice system. In the past few years there have been over a dozen Supreme Court decisions on this very issue. The trial judge hadn't allowed any questions about prior conduct. The Supreme Court in La La Liberté however followed the English law at the time and allowed questions about prior conduct but didn't compel the complainant to answer the questions. Laurier is therefore one the case and La Liberté was set free. The pattern I used for this 1877 case was used for all the later cases. I described how the relevant legislation came about set out the background to the participants in the case and introduced the political or social and economic conditions of the times. In the La Liberté chapter I was able to discuss for example who has the constitutional authority over various aspects of the criminal law. Why the Supreme Court of Canada was established and examined the early law dealing with the law of rape as it was then called. I was also able to introduce other topics such as whether the appeal courts could order a new trial. At that time they couldn't on double jeopardy grounds. So the La Liberté went free. That allowed me to discuss double jeopardy which happened to be the subject of my PhD thesis. For each chapter I also traced future changes in the relevant legislation and the applicable case law. As Laurier's know the law both asking the complainant about their sexual activity has been through a long and difficult journey. Further At the end of each chapter, I comment on how the process for developing the law can be improved. In this chapter, for example, I question whether the Supreme Court should still be developing the law of evidence on a case-by-case basis. Why shouldn't we have a code of evidence as the former Law Reform Commission of Canada and other bodies had proposed? Perhaps what we could do is done in the United States and give the Supreme Court the responsibility of using its rule-making power to propose changes in a federal code of evidence. In the United States, the proposed changes are developed by an expert committee that reports to the Supreme Court which then passes them on to Congress and the changes automatically become law unless Congress rejects them. I also make the point in this as several other chapters. The Canada needs a law commission devoted solely to the many important issues involved in criminal law, criminal procedure, and the administration of criminal justice, including sentencing and one personment. Such a body with these safe society a lot of money. That's one of the great values of this book is how many issues you use to show the broader themes of law reform that emerge out of these individual cases. Now, let's move on to one of the more controversial cases in Canadian history. Of course, Louis Riel is one of the most enigmatic figures in Canadian history. You state that Louis Riel versus the Queen is probably the most important criminal case in Canadian history. Why was the case important historically and why is it still significant? Well, it's important for many reasons that the 1885 Rio case is probably the best known and most written about criminal case in Canadian history. And it has a profound effect on the future of Canada. We're wondering what relations between indigenous persons in Canada would be like today if Rio had been acquitted by the jury and had not been hanged. The appeal in the case was to the Manitoba Court of the P.O. and then to the Prairie Council in England. There was no appeal to the Supreme Court of Canada because the Supreme Court only had jurisdiction to hear appeals if there had been a dissent in the Court of the P.O. which there was not. One consequence of the Rio case was that appeals to the Prairie Council in criminal cases were soon abolished. Another major change was that Canada enacted a criminal code in 1892 in part because of the uncertainty in many areas of criminal law. Rio was tried under a non-repealed, pretty statute of 1351, but even Prime Minister McDonald questioned whether the UK prison legislation was applicable in Canada. A criminal code that was thought could clarify such questions. I mean, we could of course spend all our time in this podcast on the Rio case. It's a complicated case. In brief, let me say that I believe that the trial was a miscarriage of justice. In particular, Rio's defense counsel did not put forward the defense that Rio wanted. That is, the disactions were justified. The lady had serious grievances that had never been remedied. In his address to the jury, Rio's lead counsel Charles Fitzpatrick, later the Chief Justice of Canada, dismissed the defense of justification stating no one of any rationality of any creed can justify the rebellion. That was the defense that Rio had wanted. Instead, the defense argued that Rio was legally insane but produced weak evidence of legal insanity. The defense counsel Fitzpatrick had a clear conflict of interest. He was in the same law for him as the Minister of Rulition Defense, and indeed was the Minister's brother-in-law. Further, the trial judge, Manchester St. Richardson, was the legal adviser of the Northwest territories while he was a judge and was actively involved in earlier steps in bringing in the military. Unlike the superior court judges at the time, and of course today, he did not have security of tenure. The main argument before the British Council, before the defense team, was that the federal legislation that permitted the trial for treason by a magistrate with a six-person jury was not constitutional under the British North American Act. But that argument couldn't succeed, and the defense counsel knew it because earlier that year, after Rio had been charged and just before his trial, the provincial counsel had turned down that very argument in a murder appeal for the Northwest territories. Finally, the government rejected the jury's recommendations from Ersy and did not accept the conclusion given by one of the doctors who examined Rio at the government's request before his execution that Rio was "not an accountable being." In 1986, the government report deliberately omitted those words from the published medical report. Of course, criminal law covers topics such as sexual assault, treason, homicide and whatnot, but criminal law is also quite broad in its scope. So tragedies such as the West Drey Mine explosion in Nova Scotia in 1992 and the lack of a gigantic rail crash in Quebec in 2013 show us that corporate liability is still as important as when Union Colory versus the Queen was argued in the early days of the 20th century. What lessons does this relatively unknown case teach us about modern corporate criminal responsibility? Well, the case involved a training crashing into a deep gorge in 1898 after the collapse of a rotting wooden railway bridge on the Vancouver Island with significant loss of life. Railway was owned by a mining company, Union Colory, some of the passengers and their families successfully sued for damages in civil cases. In addition, the problems brought a criminal prosecution against the coal company. One of the defense counsels in the case was Lyman Duff, later the Chief Justice of Canada. He reappears in the laser chapter as a Supreme Court justice. One of the reasons for including the case in the book is to allow me to explore in some detail the issue of codification of the criminal law in Canada through the enactment of the 1892 criminal code. Canada may add, adopted Stevens code and knocked the far better code drafted by R.S. Right. Union Colory was one of the first Supreme Court of Canada cases to interpret the new code. There were in fact very few Supreme Court cases in those years. Not only did an appeal require a dissent in the Court of Appeal, but a case could not get the Court of Appeal unless the trial judge is willing to reserve a case to an appeal court and trial judges are not always anxious to have their decisions appealed. The 1892 code was overhauled in the 1950s. A further overhaul of the code was prepared by the Law Reform Commission of Canada in the 1970s and 80s. But as I note throughout the book, the Law Reform Commission was unfortunately shut down in 1993 and a revised criminal code was abandoned. The key question in the Union Colory case was whether a company could be criminally liable for a criminal offense such as manslaughter, which requires a mental element of what lawyers call "Minsreia". The trial judge permitted this charge to jury convicted the company in the judge's postifying. This Supreme Court of Canada held that the company could be convicted of knocked through the criminal code but rather through what are referred to as common law crimes. The 1892 code had not eliminated common law crimes. They were finally abolished in the 1953 revision of the code. Over the years, as law students learned, Canadian courts unliked those in the United States gave a very narrow scope to the corporate criminal responsibility. The person responsible for the harm had to be "the direct in mind and will of the company." As a result, there were very few prosecutions brought over the years relating to worker safety. No criminal prosecutions, for example, followed the West-Straight Mind Disaster in 1992. Later amendments to the criminal code have, however, significantly expanded corporate responsibility. The penalties now available in the conditions that can now be imposed on corporations have expanded. I conclude the chapter by stating the Canada needs to devote more resources to the study of how to gain greater compliance with the law. This could be added to the scope of the work that could be done by a new federal law commission devoted to studying all aspects of the criminal law. If any of my current or former students are listening, they'll know that one of my favorite criminal law cases is Beaver versus the Queen. Why does this case make your top ten list? Well, it's also one of my favorite cases. I like the fact that one can picture the Beaver brothers selling a drug heroin to an underfeiver agent on the hill behind Casaloma. But in fact, it wasn't a drug they were selling. It was simply a harmless white powder. They were trying to punish the buyer who they believed had double-crossed them in an earlier drug deal. The brothers were convicted in the sentence to seven years of imprisonment and also declared to be habitual criminals with an indeterminate term of imprisonment. The case went to the Supreme Court of Canada. I learned about the case in my first week of law school in 1955 when the defense counsel in the case Charles Dubin, with whom a later article, gave a special lecture about the case. The Supreme Court of Canada agreed with the defense counsel that the section should be interpreted to require a man's rea that is guilty mind. The Beaver's court held had to believe that the substance was in their conduct, which of course they didn't. So the case established an important principle of criminal law and is often cited in other judgments. Unfortunately for the Beavers, however, they had also been charged with another offense in the criminal code, making it a crime to sell, quote, any substance represented or held out by such person to be a drug. So their convictions were upheld and they remained habitual criminals. I happened to meet Louis Beaver in Kingston, Penis, in the early 1960s on a visit there with students. The Beaver case is a particularly good case for my purposes because it allowed me to outline the origins of various acts relating to narcotics, offenses and habitual criminals and to discuss the defense of entrapment. I was also able to discuss the 1955 revision of the criminal code. Further, the case allowed me to discuss the so-called halfway house, the absolute vulnerability and men's rea that was introduced by the Supreme Court of Canada in the Susanne Marie case in 1978, which shifted the burden of proof for regulatory offenses to be accused to show that all reasonable care was taken. That's a good example of tucking a leading case into an earlier case. I conclude the chapter by arguing that the criminal code should sell out what the mental element should be for each element of an offense, just as it's done in the American Law Institute's model penal code, which has been widely adopted in the United States. So the Beaver case allowed me to discuss a wide range of interesting issues. Which leads us into your next chapter. Canada has a long history of wrongful convictions. Our listeners may be interested in a recent interview I did with your colleague Kent Roach about his book, "Rongfully Convicted." Guilty, please imagine crimes and what Canada must do to safeguard justice. One of your top 10 cases is the infamous Stephen Trustcott case. Can you tell us more about this case and what lessons we can learn about our criminal law system? Well, the Trustcott case would, I believe, make it on almost everyone's list of the top 10 cases. It clearly demonstrates the frailty of the criminal process. In 1959, 14-year-old Stephen Trustcott was taken into custody for the murder of his 12-year-old classmate, Lynn Harper, whose body had been found the previous day in and nearby woods. She had been sexually assaulted and strangled with her own blouse. Trustcott's case has started in the juvenile courts, but it'd been transferred to the superior court. In September 1959, a jury in Goddard's Ontario found Trustcott guilty of murder with a recommendation from her see. He was sentenced to be hanged, the only possible sentence that could be imposed by the trial judge at the time. An appeal to the Ontario Court of Appeal was dismissed and the Supreme Court of Canada refused to leave to appeal. Cabinet then commuted the sentence to life imprisonment. Those about his guilt started to appear spurred on by a book on the case. As a result of federal cabinet requested that the Supreme Court of Canada hear an appeal, the great criminal lawyer, G. Arthur Martin, presented the appeal. I prepared some memos for Mr. Martin and some points of evidence, but did not appear in court. In 1967, the Supreme Court of Canada turned down the appeal with its strong dissent by just the same at all. Trustcott was eventually released on parole in 1969. In the 1980s and '90s, there was a growing acknowledgement by the judiciary and others have been parliathed here to the criminal process. In Canada, the miscarriages of justice in the well-known trio of cases, Marshall, Neil Gardner, and Moran, along with a number of other cases, had made the public and the judiciary more receptive to recognizing this fact. The 1989 report by the Royal Commission on the Donald Marshall Junior Prosecution was the first Canadian commission to carefully dissect how a person could be wrongfully convicted of a crime, and it was the first time that a wrongful conviction was ever formally acknowledged by a public institution. The commission recommended that in the independent review process be established by the federal government. The review system was then set up within the Department of Justice in 1993. A new independent group now named Innocence Canada was established that year, which advocated that trust God and a number of other suspect places be reexamined. A report by Justice Fred Kaufman in 2002 examined the trust God case and as a result of his findings, the federal government ordered that the Ontario Court for Appeal examine the evidence. In 2007, a strong and unanimous court of appeal ordered that trust God be acquitted. One of the main evidentiary issues at the original trial was the time of Lynn Harper's death. A potential and pathore which is identified at the original trial. about the time of death, which made it likely that Truscott was the killer. However, sometime before the appeal to the Supreme Court of Canada, the pathologist had what he described as an agonizing reappraisal of his evidence, but he jaded not give evidence on the appeal, and Arthur Martin was not told of the pathologist's change of view. There have been other examples of miscarriages of justice in Canada, followed in the recent 2021 report recommending the establishment of an independent miscarriage of justice review commission. My colleague Ken Roltz was his research director, the federal government introduced legislation, which is now going through parliament. The new body will be a welcome addition to the Canadian criminal justice system. I'm sure you and our listeners agree. Well, I absolutely agree with that. In fact, your book makes a convincing case that we need law reform in every area of criminal law, including the areas that you talk about in the next chapter, which are homosexuality and abortion. How do you approach these controversial issues in your book? I deal with the two cases together in a chapter entitled Clippert and Morgan's Law, Morality in the Criminal Law. An omnibus bill passed by parliament in 1969, liberalized conduct and both areas as well as in some aspects of gambling. Yet, it was a significant turning point in Canadian criminal law. Most listeners know about the many more entitled cases, few know about the Clippert case. In 1965, 39-year-old Edward Clippert and mechanics helper signed a confession and one pleaded guilty before a magistrate in the Northwest Territories to four counts of gross indecency for committing homosexual acts with consenting partners. Several years earlier, he had been sentenced to four years in the penitentiary on a similar charge. Following his guilty plea in the later case, he was sentenced to three years in prison and in the penitentiary. Several months later, the Crown brought a successful application to have Clippert declared a dangerous sexual offender, which, if successful, meant that he would be confined in the penitentiary for an indefinite period. The Supreme Court of Canada, by a majority of three or two, dismissed Clippert's appeal. This was the catalyst for adding provisions to the pending 1969 omnibus bill. The United Kingdom had recently enacted legislation, liberalizing homosexual conduct, and the globe and other major papers strongly supported such legislation. Cabinet Minutes referred to a "senses public outrage" the omnibus bill was enacted by parliament. The offenses of anal hinge, of course, and gross indecency, however, remained in the code, but would not apply to acts done in private by husbands and wives or persons aged 21 or older. Additional changes were made in later years, including lower in the age of consent and recognizing gay marriages. The 1969 act also partially legalized abortions. Abortions were still prohibited, but the law would not apply when it was performed in a hospital by a medical practitioner after a therapeutic occult submitting a three doctors approved the abortion on the ground that the constitution of the pregnancy of such female person would it would not be likely to enjanger her life or health. Dr. Henry Morgan Taylor had been performing abortions in his Montreal office before the act was passed and continued to do so in his office after its passage. There were three Supreme Court of Canada cases dealing with Henry Morgan Taylor. The first was in 1975, which dealt with a number of issues, including the defense of necessity and will weather abortion was contrary to the Canadian bill of rights. Morgan Taylor, as we know lost that case. A second case in 1988 relating to abortions performed by Morgan Taylor at a clinic in Toronto, struck down the 1969 abortion legislation under the Canadian Charter of Rights and Freedoms. A third case in 1993 related to whether a province can regulate abortions. Of course, it can't. Prime Marlourone's government introduced legislation, expanding the grounds for an abortion which passed thousands of commons, but in a tide vote, it did not pass the Senate. In the end, the cabinet decided to leave the matter as it was, that is, there would be no legislation. No government has since attempted to pass legislation. In the United States, as we know, with PACs by the political right to the abortion law, a set out in Roe v. Wade resulted in Roe v. Wade being overturned by the United States Supreme Court in the recent odds decision. Canada is very unlikely to follow the American path. The charter is important in this chapter. It's also important in the next two chapters. Yes, let's get to the charter. You claim that the 1982 Canadian Charter of Rights and Freedoms is the most important development in criminal law since 1763 when English criminal law was adopted in Canada and that the 1984 case of Hunter versus Southern was one of the most important early charter cases. Can you explain it's significance and why it marked a radical departure in the evolution of Canadian constitutional law? The charter has had a profound effect on the subsequent development of the criminal law in Canada. As a result of the charter, the Canadian judiciary became more engaged in judicial law making than gravely as seen on the lower form commission of Canada which had been given the task of reforming the criminal law was thought to be less important and was shut down. Hunter versus Southern decided in September 1984 was the Supreme Court of Canada's first significant criminal law charter case. The case concerned the validity of a search warrant issued as part of an investigation into the alleged breach of the federal compounds investigation act. The Supreme Court held that the warrant was invalid under the search and seizure section of the charter that reads, quote, "Everyone has the right to be secure against unreasonable search and seizure." There were two main effects. The legislation did not require that the prior authorization be given in an entirely neutral and impartial manner and didn't set out standards on when a warrant could be issued. At the time, the lower form of commission of Canada had been developing new search and seizure provisions. The court likely assumed that the government would implement new comprehensive legislation. Supreme Court of Canada's Justice Antonio Limerr had previously been the chair of the lower form commission. Unfortunately, the government did not act on the lower form commission report and so the courts following Hunter and Southern were left to develop the law of search and seizure. Chief Justice Brian Dixon had, however, specifically stated for a unanimous court that parliament should not believe all the work to the courts. He noted and legislators should be reminded of his statement from time to time, quote, "Well, the courts are dirty in such a constitution and have individual works under it." It is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirement. It should not fall to the courts to fill in the details. One of the major themes in my book as I've already noted is that parliament should play a greater role in developing the criminal law. Parliament through bodies like the Department of Justice, a future criminal law commission and parliamentary committees, and conduct empirical research, these bodies can produce reports and interim reports with draft legislation, holy, hold hearings, modify the rules before implementation, fine tune them further through the regulations and later amend the legislation and regulations. Courts obviously operated that way. 107 is also important because of the elaboration of the courts approach to interpreting this charter. The court was less concerned about the original intent of the writers than the American courts are. Stating, quote, "Once enacted, its provisions cannot easily be repealed or amended. It must therefore be capable of growth and development over time to meet new social, political, and historical realities, often unimaginable by its streamers." The case is also important because it was the first Supreme Court case to talk about the purpose of approach to interpreting the charter, which is now the standard approach used by the courts. A second significant early charter case that I deal with in the chapter is Re-BC Motor Vehicle Act, decided in 1985. The case gave a generous interpretation to section 7 of the charter, the section dealing with fundamental justice, which reads, quote, "Everyone has the right to life, liberty, and security of the person, and they're right not to be deprived, they're all accepting accordance with the principles of fundamental justice." The case was a reference by the BC government to the courts asking whether the BC legislature could legally make the offense as thriving with other license and absolute viability offense, and whether the accused could be sentenced to imprisonment for our first offense. The court held that it would be a denial of fundamental justice to sentence to accused who imprisonment in such a case. Section 7 was not restricted, as some had thought it might be to procedural murderers. The court gave a very wide meaning to the words "fundamental justice" stating, "The principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy, but in the inherent domain of the judiciary as guardian of the justice system." End of quote, "The concept of fundamental justice is subsequently been used in a wide variety of cases such as the law of abortion, assistance in dying, prostitution, sentencing, and prison conditions." Section 7 is arguably the most important section of the charter. I end the charter by stating that the Supreme Court's generous interpretation of Section 7 was a positive development. You've been personally involved in many of the significant developments in Canadian criminal law. One of the strengths of your book is that you draw upon your personal experience to explain the jurors' potential evolution and significance of the cases. I found the chapter on delay, disclosure, and bail, particularly fascinating in this regard. Can you tell us about your involvement with the evolution of bail in Canada? And I'd also like to hear your opinion about how the criminal law should be evolving in this modern era. In other words, what have we learned from history? Well, we've learned that the administration of criminal justice requires continuing research, study, and analysis. It also requires parliament to play a major role in the development of the criminal law. Something like the former Law Reform Commission devoted solely to the study of criminal law and procedure. Could study these issues and make recommendations on proposed legislation? The chapter starts out with an analysis of the issue of delay, which is a serious issue in Canada. As in other areas of law discussed in the book, the Law Reform Commission of Canada had worked on the issue in the 1970s. Legislation was introduced in 1984, but as we've seen in so many other cases, the government changed and the bill was not reintroduced. In the Ask Off case, in 1990, the Supreme Court set standards under the Charter Corp. or Ray. Many recall that this resulted in 30,000 cases being dismissed for undo delay. The Jordan case in 2016, again dealt with the question of who was the late. Federal legislation had not been introduced. There was a fight to force within the court. The majority set specific time limits. The minority, however, felt that this was a task for parliament. We'll see how this plays out in the future, whether parliament becomes more involved. Another issue tucked into this chapter is disclosure. Disclosure, however, was successfully handled by the courts. About a year after the Ask Off position on delay, the Supreme Court of Canada decided the Stinchcomb case. In a unanimous judgment delivered by my classmate, John Sampin, the court held that disclosure by the Crown was a matter of fundamental justice under the Charter. The Crown now has an obligation to disclose to the defense with certain exceptions all the information it possesses, whether or not it intends to introduce that evidence of trial. This procedure, most voices would agree, is worked out well. You mentioned my interest in bail, starting with the publication in 1965 of my book Detention Before a Trial of Study of Criminal Cases tried in the Toronto Magistrates Courts. We examined 6,000 cases, tried over a six-month period. The book led to a sensible legislative scheme requiring sureties rather than cash, as was then still is the American system. From time to time, the courts have given guidance under the Charter, right to reasonable bail. The Supreme Court's 2017 anti-case held that the legislative scheme, which provides for the lateral principle of requiring the least-oneless conditions, should be carefully followed. And in a later case, Sora, in 2020, the Supreme Court found fault with widespread use of criminal charges of violating bail conditions. I believe the process used for developing the law of bail is a good model for the law reform. There's been a recent clamor in some quarters to make it more difficult for an accused to get bail. The numbers held in custody pending trial or sentencing, however, according to recent studies, appear to be higher than they should be, considering that an accused is deemed to be innocent until proven guilty, and that being denied release certainly increases the likelihood that the accused would plead guilty, and if tried would be found guilty, even a innocent. Moreover, as we will see in the final chapter, a disproportionate number of persons in custody are from indigenous and visible minority communities. We should be careful not to make it harder for accused persons to be released. and in trial and now onto the final case. - Yes, so the final case in the top 10 is the 1999 decision of our versus Gladoo. How does this case mark a shift towards addressing systemic racism in the criminal justice system? - What kind of versus Gladoo is the key in any case on single indigenous offenders? - It was a unanimous judgment written by Justice Peter Corrie and Frank Lackabucci. The case is important because for the first time the court interpreted section 718 of the Canadian criminal code. That section was part of a major or a whole overhaul of the law of sensing enacted by parliament in 1995. After stating in section 718.1 that quote, "assettance must be proportionate to the gravity of the offense and the degree of responsibility of the offender." The section goes on to state that quote, "An offender should not be deprived of liberty. If less restrictive sanctions will be appropriated in the circumstances and all of the available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders." And then the code adds these additional important words quote, "with particular attention to the circumstances of Aboriginal offenders." Jamie Hluddou, who had been indigenous woman, pleaded guilty to the second degree murder of a common law husband. Her counsel did not, however, raise the fact that she was indigenous. She was sentenced to three years in prison. Report after report had documented the high rate of imprisonment of indigenous persons. The Supreme Court noted, "Ain't good to do." If overreliance upon incarceration is a problem with the general population, it is much greater concern in the sentencing of Aboriginal Canadians. The court continues. In the mid 1980s, Aboriginal people were about 2% of the population of Canada, yet they made up 10% of the penitentiary population. In Manitoba and Saskatchewan, Aboriginal people constituted something between 6% and 7% of the population, yet they represented 46% of the provincial admissions and in Saskatchewan, 60%. The Supreme Court went on to state, quote, "These findings cry out for recognition of the magnitude and gravity of the problems and poor responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of Aboriginal people within both the Canadian prison population and the criminal justice system were real as a sad and pressing social problem." The issue was revisited by the Supreme Court in 2012 in the case of a peely. The court found that the situation was worse than ever. It now had the 2008 report of the Truth in Reconciliation Commission. The court stated, quote, "Corts must take traditional notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to just translate into lower educational attainment, lower incomes, higher unemployment, high rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples." Since then, however, the situation has not improved. Former Justice Harry the Forum can't as his first Indigenous Appellacore judge stated in 2021, today, while Indigenous people represent about 4% of the Canadian population, they represent about 37% of the prison population, and it's important to point out that these statistics are for men. Indigenous women are about 45% while young offenders are higher still. At each step in the criminal process, Indigenous persons are disadvantaged. The chapter discusses many of the specific criminal justice issues that need to be studied to reducing incarceration from policing to parole. These include policing, bail, legal aid, guilty pleas, cross-examination on previous connections to departure from minimum senses, community sanctions, solitary confinement, parole services, halfway houses, institutions to stress rehabilitation and healing, and on and on, including establishing a separate court system for Indigenous persons. The discussion of the treatment of Indigenous persons in this chapter is equally applicable to the treatment of black offenders. To what extent should black offenders be included in future amending legislation or budgetish interpretation of the previously discussed sections to 17.2 E of the criminal code? This issue will no-no come before the Supreme Court of Canada into course. The treatment of Indigenous offenders and blacks and other minorities is, I believe, the most crucial criminal justice in Canada today and will continue to be for many years to come. There's thoughts to be done to improve to criminal justice system in Canada. Marty, thanks for joining us today. Your books are a remarkable achievement and it reflects a lifetime of work in this area. I really look forward to teaching my students about how history can inform criminal justice reform and I will do my best to get them convinced that we need to restart the Law Reform Commission of which you played such a pivotal role. (upbeat music) - My guest today has been Martin Friedland. He's the author of Canadian Criminal Law in 10 Cases, forthcoming from UTP Press. You've been listening to Witness to Yesterday. Please visit our website at www.shamplainsociety.ca where you can learn more about the Shamplain Society and please follow some Twitter, Facebook, and Instagram. This podcast is made possible by the members of the Shamplain Society who work hard to bring to life original documents in Canadian history. We would like to thank the L.R. Wilson Institute of History at McMaster University as well as a consortium of Canadian scholarly book publishers that includes University of Toronto Press, UBC Press, McGill Queen's University Press, the University of Regina Press and the University of Ottawa Press. My name is Nicole Lohburn. This interview was recorded on December 7th, 2023. It was produced by Jessica Schmidt and supported by the University of Toronto Press Journal team. (music)