COMMISSIONS OF INQUIRY, THEN WHAT: A COMPARATIVE ANALYSIS OF THE REACTIONS TO AND THE IMPACT OF THE GUY PAUL MORIN INQUIRY AND COMMISSION ON SYSTEMIC RACISM IN THE ONTARIO'S CRIMINAL JUSTICE SYSTEM,

AN INTRODUCTION.

SHORT PROPOSAL PAPER FOR PROFESSOR DIANNE MARTIN

BY MUNYONZWE HAMALENGWA

LLM PROGRAMME IN CRIMINAL LAW

FEBRUARY, 2000

Introduction

A spectre has been haunting the criminal justice system of Canada since the 1980s, the spectre of miscarriages and maladministration of justice. Miscarriage of justice deals with wrongful convictions while maladministration of justice deals with deliberate official distortions in the administration of justice due to racial or other motive leading to inequalities in the application of law in the criminal justice system. Maladministration of justice is part of miscarriage of justice, can be broader or less than the latter depending on the facts of the case. A miscarriage of justice is addressable through the appeal process pursuant to section 686 of the Criminal Code, while maladminstration of justice is systemic and portends for the overhaul of the criminal justice system. It requires addressing the historical, political, economic, cultural and legal underpinnings of the causes of the maladministration of justice.

To address the exposed miscarriages and maladministration of justice in Canada, various governments established commissions of inquiry. (These will be mentioned in the major research paper.) These commissions of inquiry after exhaustive public hearings published comprehensive reports and made numerous recommendations. These were then tabled or presented to the governments that established them.

There is budding literature in Canada about the role of commissions of inquiry - which will be discussed in detail in the major research paper. Are they established to window-dress or contain the damage that had been exposed that led to their establishment? Are they diversionary? Do governments implement the recommendations or do they let the recommendations gather dust? Are commissions of inquiry useful educational objects in and of themselves regardless of whether the recommendations are implemented? Do they serve other public policy objectives?

Can commissions of inquiry get to the root causes of miscarriages and maladministration of justice?

Apart from the budding studies on the role and purposes of commissions of inquiry, some commentators have critically evaluated the outcomes of specific commissions of inquiry. Some have attempted to evaluate the legal reforms in specific areas of law e.g. law of evidence, witnesses and so on, engendered by the specific commission of inquiry. Others have decried the lack of specific outcomes which should have resulted given the findings of the specific commissions of inquiry, for example, that no one was prosecuted for misconduct that contributed to a wrongful conviction. (I will discuss this literature in the major research paper.)

So far, there are no commentaries published comparing the outcomes of a select number of commissions of inquiry and drawing lessons for the betterment of the administration of criminal justice.

The aim of this paper is to set out a proposal for a critical comparative analysis of the impact of the Guy Paul Morin Inquiry and the Commission Into Systemic Racism in the Ontario Criminal Justice system on the administration of criminal justice in Ontario. This proposal is for this current course. The backgrounds of these commissions of inquiry will be discussed in the major research project, required for completion of the LLM Programme in Criminal Law.

These two Commissions of inquiry offer fertile grounds for comparison with broader implications for the reform of the criminal justice system for the better. The two Commissions were established to examine a miscarriage of justice (Guy Paul Morin) and maladministration of justice due to systemic racism. The Commissions of inquiry would therefore address an individual miscarriage of justice pertaining to Guy Paul Morin and draw broader implications arising therefrom as contrasted from the maladministration of justice involving systemic racism against a racialized group and then drawing lessons therefrom for the better administration of justice. Which of these fared better?

Both Commissions and their mandates were the first of their kind in Ontario. They both produced unprecedented reports and made unprecedented recommendations. One of the values of commissions of inquiry is educational. These commissions produced reports of immense educational value.

The Commissions of inquiry presented their reports to the same governing party during the same term of government. What were the reactions? The legal culture across the board was the same during the relevant period: the same judiciary, defence and crown counsel, same police forces, same media outlets, same cultural values, same locale and so on. These Commissions therefore, offer a unique opportunity for comparative analysis on the reception and impact of commissions of inquiry on the administration of justice in Ontario.

Methodology

This is a long-term project that will be carried into future courses, as it has already been the subject of two previous courses. In one previous course, I dealt with the systemic maladministration in the criminal justice system as it affects racialized minorities, specifically the black minority. Discrimination against blacks in the criminal justice system is systemic. I examined how blacks are discriminated against in the system. That essay will be polished for the major research project in the LLM program.

Another essay dealt with the issue of why miscarriages of justice will continue to pervade the system. This is because there are no individual costs imposed for police and prosecutorial misconduct. Any meaningful reform will have to incorporate the imposition of individual criminal costs against those who perpetrate misconducts in order to regulate their conduct in the interests of the better functioning of the criminal justice system. That paper will be polished and incorporated in the final major project of the LLM program.

In this paper, I seek to introduce the methodology I will use to research and write the major research project - a comparative analysis of the impact, if any, on the criminal justice process of the two Commissions of inquiry mentioned above.

It is already known that there have been different impacts on the government, judiciary, defence, crown counsel, public, and media and so on of the two Commission of inquiry. The government has initiated reforms pertaining to several recommendations of the Guy Paul Morin Inquiry. The judiciary have specifically cited the Guy Paul Morin Inquiry in their judgments. Defence Counsel as represented by the Criminal Lawyers’ Association have organized conferences and panels specifically geared to addressing issues raised by the Guy Paul Morin Inquiry. The Crown has been conducting an inventory of how to do things differently as a result of the Guy Paul Morin recommendations. The public and the media have reacted positively to the Guy Paul Morin Inquiry.

The reverse is the case for the Commission on Systemic Racism. The government has entirely ignored the report and recommendations of the Commission. The judiciary has not commented or cited the report and recommendations to any great extent. Defence counsel have not organized conferences on the report or urged judges to take into account the findings of the Commission. Crown counsel have not conducted their business any differently. The public and the media have on the whole been hostile to the report and recommendations.

There are significant reforms in the criminal law engendered by the Guy Paul Morin e.g. in the law of evidence. There is nothing that has happened in respect of the Report on Systemic Racism.

The major study will address the question of why the impacts of the two Commissions have been different. In order to answer the question, I will adopt different methodologies of investigation. I will interview or attempt to interview personally or by a researcher or through letters or questionnaires, government officials, judges, defence counsel, crown counsel, members of the public and the media personalities and their reactions and perceived impact of the two Commissions and why.

I will examine published media commentaries on the reactions of the government, judges, defence, the crown and the public after the reports of the Commissions were tabled.

I will peruse judicial decisions to find out where they have cited the two reports if any and what changes in the law have been engendered by the two reports if any.

The interviews with defence and crown counsel should yield answers as to when, why and how, if any, they have used the two reports.

I will survey the published literature in books, in law journals and reports to ferret out what judges, lawyers, law professors and others have said about the reports and if they were influenced by the reports in their advocacy of various positions.

My research project has never been conducted by anyone before.

Analysis

The aim ultimately is to pinpoint the reasons for the difference in the reactions to and impact of, the two reports. Is the explanation based on the nature of the two Commissions - one based on an individual case while the other dealt with an amorphous group? Is the explanation based on the fact that one dealt with strictly criminal law as understood in a liberal democracy and one dealt with racial underpinnings to criminal law and therefore a subject difficult to handle by the majority society?

Is the explanation that the stakeholders in the system were affected by the miscarriage of justice against Guy Paul Morin and they could relate to it, while they are not directly affected by the maladministration of justice because they are not black?

Is it because of the nature and issues of the different commissions?

Is it because of political reasons? Is responding to Morin politically safer than to respond and admit to the existence of racism in the criminal justice system?

Is it easier to implement the recommendations in Morin than to implement the recommendations on racism?

Is it because blacks are marginal to the political process in Ontario?

Is it because racism is historically endemic in Ontario and no one really wants to address it? Are the government and the other stakeholders racially insensitive?

Is it because a respected jurist conducted the Guy Paul Morin Inquiry with established lawyers as commission counsel and the Commission on Systemic Racism was not?

Is it because of the imbalance in power, strength and numbers of blacks as government officials, judges, lawyers, crown counsel and media personalities that explains why the Commission on Systemic Racism was not ventilated?

Is it the style of advocacy that got one and not the other commission to be taken seriously?

Is it a combination of the above factors and others?

What are the implications for the administration of criminal justice resulting from the analysis of the explanations for the differences in the impact of the two Commissions?

Commissions of Inquiry

It has been stated that despite a widespread view that commissions of inquiry are used principally to delay action while removing embarrassment from the immediate vicinity of governments, it is a fact that commissions of inquiry have repeatedly and often highly successfully served as vehicles for analyzing policy, for evaluating outworn or failed policy, for identifying a consensus about policy and for building support for new policy directions. The two Commissions under study here will be evaluated in light of the above statement. Why are commissions of inquiry established. Could other vehicles not be used?

The Guy Paul Morin Inquiry found out that Guy Paul Morin was railroaded from the time he became a suspect, through the investigation, arrest, trial, first acquittal, crown appeal to his second trial and conviction in 1992. The Commission report detailed in minute detail how the miscarriage of justice occurred and who was responsible for it.

The Commissioner made numerous recommendations on how a similar occurrence of miscarriage of justice can be prevented.

In light of the Report and Recommendations, several areas in the criminal justice process have been affected. The major project will discuss these reforms and evaluate their impact.

It should be pointed out that one of the complaints by a number of criminal defence lawyers about the outcome of the Guy Paul Morin Inquiry is that there have been no prosecutions of the perpetrators of the miscarriage of justice. These lawyers have pointed out that the lack of prosecutions is one of the weaknesses of commissions of inquiry. They cannot by law apportion criminal responsibility. The report itself has never been critically evaluated. The major research project will attempt a critical analysis and evaluation of the report itself as part of the analysis of the potentials of commissions of inquiry.

The Commission on Systemic Racism in the Ontario Criminal Justice System made several findings some of which include the following:

That blacks are overrepresented in the criminal justice system.
That blacks are overpoliced.
That blacks are denied police bail more often that white accused.
That blacks are denied judicial bail more often than whites.
That Crown attorneys proceed by indictment when they elect a mode of trial against blacks more often than when they proceed against whites.
That convicted blacks are sent to jail more than convicted whites.
That blacks are racially harassed in jails.
That blacks experience extreme alienation throughout the criminal justice system.
That racism is endemic and historically so in the Ontario criminal justice system.

The major study will examine these and other findings of the Commission and analyse why no reforms have been generated in spite of these findings using the comparative framework that has been set out above. The study will also emabark on a critical evaluation of the report itself.

Literature Consulted

§ Boyle, Christine et al, The Law of Evidence, Fact Finding, Fairness and Advocacy (Toronto: Emoud Montgomery, 1999).

§ Criminal Lawyers Association, “Justice Denied? Including Lessons to be Learned From Cases Such as Nelles, Marshall, Milgaard and Nepoose”, Annual Convention and Education Programme, November 1992.

§ Criminal Lawyers Association, “The Case for the Defence”, Annual Convention and Education Programme, November 1999.

§ Denny, K. A. et al Elusive Justice: Beyond the Marshall Inquiry (Halifax: Fernwood, 1992).

§ Gross, A. Paul et al (eds.) Commissions of Inquiry (Toronto, et al, Carswell, 1990).

§ Hamalengwa, Munyonzwe, (ed.) Police Law (Toronto: Nelson Mandela Academy of Applied Legal Studies Course Kit, 1996).

§ Henry, Frances, The Racialization of Crime in Toronto’s Print Media (Toronto, 1999).

§ Kaiser, H. Archibald, “The Aftermath of the Marshall Commission: A Preliminary Opinion”, in (1990) 13 Dalhousie Law Journal 364.

§ Martin, Dianne L. “When The Rules Are Wrong: Wrongful Convictions and the Rules of Evidence” Paper presented at the Annual Conference of The Criminal Lawyers’ Association, Toronto, November, 1999.

§ Nova Scotia. Royal Commission on the Donald Marshall Jr. Prosecution. 1989. Commissioner’s Report.

§ Ontario. Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. (Toronto: Queen’s Printer, 1995).

§ Ontario. The Commission on Proceedings Involving Guy Paul Morin (Toronto, Queen’s Printer, 1998).

§ Ratner, R. S. and John McMullan, State Control: Criminal Justice Politics in Canada (Vancouver: UBC Press, 1987).

§ Roach, Kent, “Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (Toronto: U. of T. Press, 1999).

§ Stenning, Philip, ed. Accountability for Criminal Justice: Selected Essays (Toronto: U of T Press, 1999).

§ Trotter, Gary, 2^nd ed. The Law of Bail in Canada (Toronto: Carswell, 1999)

§ Williams, Toni, “Sentencing Black Offenders in the Ontario Criminal Justice System” in Julian Roberts and David Cole, (eds.) Making Sense of Sentencing (Toronto: U. of T. Press, 1999).