This past week, I attended a moving play on the Truscott affair entitled “Innocence Lost,” a production of which is currently in Ottawa, at the National Arts Centre until March 16. It graphically captures not only Truscott’s loss of innocence — but that of our legal system, and prompted a flashback for me on the Truscott case.
I had reviewed the Truscott file as minister of justice and determined there was “a reasonable basis to conclude that a miscarriage of justice likely occurred.” This allowed me to refer the matter to the Court of Appeal for a fresh hearing on the merits, which I did in 2004. Upon review of the evidence, the Court of Appeal determined in August 2007 that “Mr. Truscott’s conviction was a miscarriage of justice and must be quashed.”
Miscarriages of justice are not isolated incidents. In 2004, the Federal-Provincial-Territorial (FPT) Heads of Prosecutions Committee Working Group completed its Report on the Prevention of Miscarriages of Justice, making recommendations organized around seven main areas of concern, including tunnel vision, eyewitness identification and testimony, false confessions, in-custody informers, and DNA evidence.
Further, the report included overall recommendations, such as the creation of a permanent committee on the prevention of wrongful convictions. The report added that “The recommendations in this report should be continually reviewed by the committee … At a minimum, a full review should take place in five years building on the ongoing work of this committee.”
It is most unfortunate that now, nine years since this report and nearly six years after the Ontario Court of Appeals quashed the conviction of Steven Truscott, combating miscarriages of justice seems to have fallen off the radar screen completely. There has been no committee struck, no five-year review undertaken, no indication that the current government has made wrongful conviction a priority on the justice agenda, and no announcement that new trials have been ordered in any suspected wrongful conviction cases.
Why should combating miscarriages of justice be prioritized? Simply put, steps taken to prevent miscarriages of justice serve to improve the justice system as a whole. For example, the issue of DNA evidence comes up often in wrongful conviction cases as DNA tests can exonerate the innocent. The FPT report called for study of post-conviction access to DNA testing and suggested provisions be made for independent access to forensic evidence. While it is clear how this may help reduce wrongful convictions, it is important to recall that addressing DNA evidence — such as its collection into the National DNA Data Bank — also helps to solve crimes. In this regard, while the government strengthened the DNA Data Bank legislation in 2007, there remains room for improvement.
In another area, the report makes many recommendations with respect to false confessions. For example, one recommendation is the videotaping of all statements made to police in respect of certain offences. Not only does this work to make presentation of evidence simpler by eliminating questions of what exactly was said and in what context, videotaping serves also to protect the police by providing them documentary evidence of events if accused of misconduct.
The FPT report also noted that: “Many of our recommendations require nothing more than a change in attitude on the part of players in the criminal justice system. Others require changes in policy and practice by police and prosecutors.” Indeed, some of the recommendations are simple and inexpensive to implement.
The report acknowledges that some recommendations “will require additional resources. But, the Working Group strongly believes this is money well worth spending.” Indeed, even from a financial perspective, taking steps to prevent miscarriages makes sense. Getting it right the first time saves millions of dollars spent on commissions of inquiry and potential compensation to victims of miscarriages of justice, not to mention freeing courts and judges from the time and resource strains of addressing these matters again.
Certainly, there are other issues on the justice agenda, such as the ongoing struggle to make sure our laws keep pace with technology and the changing nature of crime. That said, one must take a comprehensive approach to justice rather than focusing on the enactment of new offences and penalties; this includes addressing miscarriages of justice in a robust way.
In sum, if one looks at what has been done since the quashing of Steven Truscott’s conviction and the release of the FPT report, it seems we have not yet learned the required lessons; the building of a just society demands that we do.
Irwin Cotler is the Member of Parliament for Mount Royal, the Liberal Critic for Justice and Human Rights, and the former Minister of Justice and Attorney General of Canada. He is a Professor of Law (Emeritus) at McGill University.
© Copyright (c) The Ottawa Citizen
No comments:
Post a Comment