Justice Committee on Oct. 31st, 2023

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Caputo, and Minister.

Next, for six minutes, is Mr. Mendicino.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Chair.

Welcome, Minister. Thank you to your officials.

I am going to try to focus my questions on Bill C-40.

I will begin by asking you, Minister, to expand a little on the interplay between your statutory responsibilities when it comes to potential miscarriages of justice and what this bill would do—if and when it is passed—in the creation of a new commission that would take on that responsibility. You mentioned in your remarks that you would retain some of the existing statutory responsibilities in this regard, but you also alluded to the commission.

In cases where, for example, in the territories where there are no provincial attorneys general and you still are the presiding attorney general with responsibilities can you clarify what the role of the commission is in initiating a process or a preliminary review step by step, and what your responsibilities are? Help us understand the sequence of how that process will play out between your office and the new commission when it's set up?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Mendicino.

I'll take a stab at that. Julie will correct me if I get any aspects of the steps wrong.

Effectively, the role of the commission is to replace many, if not most, of the functions that I currently perform as Minister of Justice. What I would say to that is where I, the Attorney General of Canada, am the prosecuting attorney in a given piece of litigation, what happens is pursuant to the statute if a John Doe is making an application and a determination about admissibility is being made, I'm alerted to that fact.

It comes across my desk that John Doe has made an application. If they clear the admissibility criteria and get to an investigation stage, as the AG of jurisdiction I'm able to provide submissions about how the prosecution was handled to inform the commission's investigative function. After that point, I believe I have no further role, because the commission makes a determination based on that investigation on whether the test has been met...if there may have been a miscarriage of justice, and it's in the public interest to pursue either a new appeal or trial de novo. They make that decision independently of me entirely.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

The new commission will do the initial screening. It's not your office, which is where the current entity resides, or within the Department of Justice. That function will then reside with the commission. You will provide submissions in your capacity as the Attorney General on the appropriateness and merits of the conviction. Then the commission will come to a determination about whether or not there should be any remedy for a potential miscarriage of justice. Have I summarized it accurately?

I'm looking at your officials. They are nodding affirmatively. That's encouraging.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I would just add one qualification, though, Mr. Mendicino. This is only in a subset of cases. In the vast universe of cases when you have provinces.... You're in my province of Ontario, and it's the AG of Ontario who plays that role. It would only be in small cases where the AG of Canada has the jurisdiction.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Yes, that's with the initial qualification that I provided.

I see Ms. Besner may want to add something.

[Julie Besner]

When it's the Attorney General of Canada who would have prosecuted the offence for which someone is applying for a review, it would be the Public Prosecution Service of Canada that would be interacting with the commission, not the minister personally. The function of reviewing applications that the Minister of Justice is currently empowered to do is completely being replaced with the commission. The minister will make recommendations for appointments that the Governor in Council will make to the commission.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Right. That part I get.

Does the bill, in your view, Minister—or to any of your officials—expressly stipulate the distinction between what we have just been discussing around what your residual functions are in a case where you are the Attorney General of Canada and one of your delegated authorities had carriage of the prosecution that led to conviction, and all of the other provinces, where the respective provincial attorney general is responsible for making that submission to the commission? Is that spelled out expressly?

[Julie Besner]

Well, the way it's written in Bill C-40 is that it's the attorney general who was responsible for the prosecution or the jurisdiction in which the prosecution occurred. Something along those lines is how it's spelled out in Bill C-40 for the amendments to the code.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Is there language that expressly extinguishes your current role in the delegation to your department for the purposes of making out the preliminary screening? What I'm getting at is just to be sure that our intent around the function of the commission to effectively substitute your current statutory responsibility is deconflicted and that there is no ambiguity about what the current mandate of the commission is and about any residual responsibility that may still be in the statute. I'm trying to be ironclad clear about this.

[The Vice-Chair, Conservative, Rob Moore]

I'm sorry. You have just 10 seconds for a response.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I'm pretty confident that there is, but there's a slight grey zone in terms of applications that are currently pending. In that case, that John Doe would have a choice to keep it in the ministerial track or to go to the new track. The choice would be made available.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you.

[The Vice-Chair, Conservative, Rob Moore]

Monsieur Fortin, you have six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Hello, Minister.

Before you arrived, we had a few questions for your employees, so to speak. I think it was Ms. Besner who answered my question by saying that there isn't really a strict definition of the miscarriage of justice. I would like to hear your thoughts on that.

Should the bill not have included a definition of the miscarriage of justice? If there is one, could you please tell me where it is and what it says?

[Arif Virani, Liberal, Parkdale—High Park, ON]

I heard part of Ms. Besner's answer. The concept of miscarriage of justice is indeed recognized in jurisprudence. It is something seen in cases of wrongful conviction in the past. For example, a person may have given false testimony, or it is determined that the person the police relied upon was not credible. A miscarriage of justice can also involve a witness or a change in scientific knowledge.

So the term “miscarriage of justice” is not unknown to the justice system. It is a familiar concept that is present in case law. That is where we find clues or answers to determine whether there was a miscarriage of justice in a specific case.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Do you not think it would have been helpful to include a definition in the bill?

[Arif Virani, Liberal, Parkdale—High Park, ON]

We always face the same issue, Mr. Fortin: if we try to come up with a definition, it might not be inclusive enough or might be limited in scope.

In the 1980s, for instance, I don't think anyone thought about evidence involving DNA or each person's unique genome. Thanks to advances in science, we can now rely upon genetic evidence.

If we rely on a definition based on case law, that allows greater flexibility.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

In broader terms, could that include an error made by the accused when he pleaded guilty, as we were discussing earlier, or a whole range or other errors that are not necessarily committed by the judge?

[Arif Virani, Liberal, Parkdale—High Park, ON]

That's right, exactly.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Could that also include an error by police in the course of their investigation?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Definitely, that can happen.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I believe you said earlier, Minister, in response to my colleague's question, that there are a lot of racialized individuals in our prisons, particularly indigenous and Black individuals. It was as though there might have been some miscarriage of justice. I would like to hear your thoughts on that.

In your opinion, are the racialized individuals in our prisons there in many cases because of a miscarriage of justice?

[Arif Virani, Liberal, Parkdale—High Park, ON]

That is hard to say. I cannot speculate, Mr. Fortin. From a purely mathematical point of view, it is a bit strange to see that, among the 26 individuals whose review request was granted, just five were racialized persons. Those figures are surprising considering that indigenous persons account for 32% of the prison population and Black inmates account for 9% of the prison population. That means that roughly 40% of prisoners are either indigenous or Black, and are therefore racialized, and yet they account for just five of the 26 cases I mentioned. My last math class might have been in high school, but I would say that these figures do not accurately reflect reality, statistically speaking.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I see.

Has your department conducted an inquiry to determine why there is such a high proportion of racialized persons in our prisons?