Justice Committee on Nov. 28th, 2023

[Lindsey Guice Smith, Executive Director, North Carolina Innocence Inquiry Commission]

Thank you, Madam Chair.

The North Carolina Innocence Inquiry Commission is the United States' first and only independent state agency charged with the neutral investigation of post-conviction claims of factual innocence.

The preamble to the legislation that created the Innocence Inquiry Commission in 2006 states:

Whereas, postconviction review of credible claims of factual innocence supported by verifiable evidence not previously presented at trial or at a hearing granted through postconviction relief should be addressed expeditiously to ensure the innocent as well as the guilty receive justice; and

Whereas, public confidence in the justice system is strengthened by thorough and timely inquiry into claims of factual innocence; and

Whereas, factual claims of innocence, which are determined to be credible, can most effectively and efficiently be evaluated through complete and independent investigation and review of the same…

This preamble encompasses the commission's mission.

Although wrongful convictions erode public confidence in the criminal justice system, addressing them enables criminal justice stakeholders to learn how to better ensure that justice is served. For every wrongful conviction, there's a true perpetrator at large, a victim under the false impression of having received justice and an innocent person who may spend years in prison for a crime they did not commit.

Accordingly, the commission is designed to uncover the truth from a neutral perspective outside of the adversarial criminal justice system. By design, the North Carolina General Assembly limited the scope of the commission's work, while also granting the commission very broad statutory authority to achieve its mission.

There are three hallmarks of the commission process that make it successful.

The first is this broad statutory authority. The commission was given all of the authority of both the rules of criminal procedure and the rules of civil procedure in North Carolina to ensure that we can achieve our goal of uncovering the truth in claims of factual innocence. This has resulted in the commission being able to review, interview and depose individuals who had not previously participated in a case; having access to files and evidence that others may not have been able to access; and the commission locating physical evidence that agencies had claimed did not exist or could not be located, among other things. In fact, the commission has located physical evidence in 28 cases, where others said it no longer existed, including in 12 of our 15 cases where individuals were ultimately exonerated.

The second is our neutrality. Because we do not enter into any kind of attorney-client relationship with the claimants and are not working on the claimant's behalf, or even on the behalf of the prosecution, we can be curious in our endeavour to find the truth. This allows commission staff to ask necessary but difficult questions as part of our investigations.

Because claimants have to waive all of their constitutional rights to participate in the commission process, and can do so because our process is narrowly limited to claims of factual innocence, many of the concerns that attorneys face in an adversarial system are simply not factors in investigations of these claims.

Our neutrality also shapes how we measure success. A good day at the commission isn't based on whether a claim results in an exoneration, but rather in whether we are able to fully investigate a claim and provide answers that the criminal justice system didn't previously have.

The third hallmark is confidentiality. By statute, the claims we investigate and the investigations themselves are confidential during the investigation, and only in certain circumstances is information released to the public about cases. This allows the commission to develop a rapport with witnesses and to have full and frank conversations with witnesses, law enforcement agencies and others involved in cases, and it often leads to positive change within the criminal justice system. We have especially seen this with respect to changes in evidence storage and handling at law enforcement agencies throughout North Carolina.

Since its creation in 2006, the commission has received 3,571 claims. We have received 194 claims thus far in 2023, putting us on track to receive 233 claims in 2023, which is up from our average of 211 claims per year. We have held 19 hearings since our creation, and will hold our 20th hearing next week.

Fifteen individuals have been exonerated by a post-commission three-judge panel or had their convictions vacated through a motion for appropriate relief and been granted a pardon of innocence by the governor of North Carolina based on the commission’s investigation of their claim. Additionally, we have definitively confirmed guilt through DNA testing in 13 cases—

[The Chair, Liberal, Lena Metlege Diab]

Ms. Smith, why don't I have you continue with the questioning? You'll have lots of time when you're asked questions. We only have two witnesses for the second hour, so there should be plenty of time.

We have Ms. Campbell for five minutes, please.

[Kathryn M. Campbell, Professor, Criminology, Faculty of Social Sciences, University of Ottawa, As an Individual]

Thank you.

First of all, I want to thank you very much for the invitation to be here today. It's a real honour.

As an academic, I've published extensively in the area of miscarriages of justice in Canada and other common law countries for the last 20 years. My research has focused on a number of areas, including examining the factors that contribute to miscarriages of justice and prison and post-release experiences of the wrongly convicted, amongst many other things.

I also took part in the consultations held by Justices LaForme and Westmoreland-Traoré around the proposed reform in 2021. I've met, spoken to and interviewed many wrongly convicted people over the years, and I'm well aware of the devastation that a wrongful conviction can wreak on individuals and their families.

In 2012, I started Innocence Ottawa, which is, through the Department of Criminology, an innocence project that's run by criminology and law students. Our aim is to help the wrongly convicted who are seeking exoneration.

We've come a long way. When we started in 2012, we had bake sales and sold T-shirts to fund our work, whereas in 2023 we've just received an access to justice grant from the Ontario law foundation for an outreach to indigenous prisoners program, so we've really moved quite far.

It's clear—as I've heard through these hearings these past few weeks and as I think we all accept—that indigenous and Black prisoners are overrepresented in federal and provincial and territorial institutions, but they're strangely absent in the numbers of exonerees or even amongst those seeking conviction review.

Thus far, Innocence Ottawa has filed one application for conviction review through the CCRG on behalf of one of our applicants, so I'm well aware of the difficulties in the current system. In fact, we submitted his application in 2019. Four years later, it's still at the preliminary investigation stage. Just as an aside, he also happens to be a person of colour.

My frustration over the last 20 years of the difficulties and challenges of innocence work is that it just shouldn't be this hard to overturn a conviction, to correct an error, because the stakes are just too high. Thus, I greatly anticipated the new legislation, and I feel it's a very important first step.

In the next half of my short talk, I'll briefly comment first on what I see as the strengths of the bill and then on the areas that I believe are in need of improvement.

The independence of the conviction review process now I think is an excellent step forward, but I feel there are some constraints on this as well. The commissioners should not be considered as government employees. The commission itself I believe should be viewed more as a court rather than a small government agency, and it should be located outside of Ottawa, with possible regional offices. Otherwise, that may detract from the perception of it as being independent.

On accessibility, the bill proposes to enhance access to previously marginalized groups, those who are overrepresented in the criminal justice system—particularly indigenous and Black prisoners—and I think that being an altogether new entity may help address this matter with a new conviction.

On the change in the threshold test, as was discussed in the previous hour, I think this change from a “miscarriage of justice likely occurred” to a “miscarriage of justice may have occurred”, or to if the commission “considers that it is in the interests of justice to do so” they can conduct an investigation, I think is an important step. It sounds far more expansive, but at the same time, I wonder to what extent this is going to change things, because it is also somewhat vague. My experience thus far with the CCRG itself, the criminal conviction review group, is that it's unclear as to what it actually takes to recommend reviewing a conviction.

Three other important additions are the examination of the personal circumstances of an application, enhancement of investigative powers and greater victim involvement.

On areas that need improvement, I believe the number of commissioners is far too low. The LaForme and Westmoreland-Traoré report advocated for nine to 11 commissioners. That seems reasonable and necessary, in my view. The number suggested by Bill C-40 is clearly not adequate, because if the commission isn't properly staffed with both commissioners and investigators, it's going to incur huge delays, and that's an ongoing issue with the CCRG.

I have a couple of other things. I believe the mandate should include sentences, as a sentence can also represent a miscarriage of justice, and also those whose cases have not yet been before a court of appeal. Otherwise, it may severely limit the number of applicants.

Finally, I think as an academic that we have a really great opportunity here with this new commission to get it right, to have a proactive and systemic approach to miscarriages of justice, to collect data from cases, derive policy lessons and discern patterns. I think it would be a shame to miss that opportunity with this new commission.

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much to both of you.

We will now commence with the first round of six minutes each, and we will start with Mr. Van Popta.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Madam Chair.

Thank you to the witnesses.

Thank you, Ms. Smith, for coming here all the way from North Carolina and sharing your experience over many years. We're just starting this process.

My first question is about the intake process. In your opening remarks you quoted some sections of the legislation: “Whereas, postconviction review of credible claims of factual innocence”—that would be number one—“supported by verifiable evidence”—number two, and—“not previously available at trial”—number three.

How does a person get over that first hurdle of having their application heard by your commission?

[Lindsey Guice Smith]

I want to make clear that it's not previously presented at trial, so it could have been available, but it can't have been presented at trial. That is one factor.

When they apply to the commission, they can tell us what is new, but it is not necessary for them to always know what is new. We don't put that burden on the convicted person—the claimant—to necessarily know, for instance, that there is definitively evidence that hasn't been DNA tested in their case. We will do the work to figure that out.

We ask them to fill out a 22-page questionnaire and to give us as much information as they can about their case. What is the innocence claim?

We then begin the process of figuring out if there is something here that can be done and if is there something new. We may go back and look at the trial transcript to figure out what was presented at trial. We'll assess whether there is forensic testing that hasn't been done or that could be done, or they may come to us and say, “Hey, there's a new witness who has come forward who is saying something that was never presented at trial,” or “There's a witness who has come forward and changed their story".

It's then a question for us to assess the credibility of that witness. Are there other factors that make that person credible? Is there other evidence out there that would make that person credible?

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

Your commission has broad investigative powers. What do you do with that evidence that you gather? Is it then presented to court if you deem this to be a successful review?

[Lindsey Guice Smith]

We have a three-step process.

We are a state agency. Our staff are state employees. They do the day-to-day operations.

Once there is some credible, verifiable evidence of innocence, it's the director's discretion as to whether that case moves forward to a hearing.

If it is moved forward to a hearing, that is heard by our commissioners.

The commissioners are appointed by our Supreme Court chief justice and our court of appeals chief judge, and there are members from different areas of the criminal justice system: a judge, prosecutor, criminal defence attorney, sheriff, victim advocate and some others. They hear the cases and, if they determine that there is sufficient evidence of factual innocence to merit judicial review, then they'll move the case forward to a three-judge panel.

That three-judge panel then hears the case and makes a final determination as to whether the convicted person has proven by clear and convincing evidence that they are, in fact, innocent.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Is all the evidence that you gather presented to this three-person tribunal, including perhaps self-incriminatory evidence?

[Lindsey Guice Smith]

When we are presenting the case to the commissioners, all relevant evidence is presented—all parts of it, the good, the bad and the ugly. It's non-adversarial.

When it goes to the three-judge panel, it becomes adversarial, and the parties get to present what works for them. They may present it in the light most favourable to their client, and it will look a little bit different from what it does before our commissioners.

The state, of course, is represented by the prosecution, who may present things that are unfavourable to the convicted person—and, of course, the convicted person can present all of the things that are favourable to them.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

You or somebody from your commission gave evidence at our LaForme and Westmoreland commission looking on miscarriages of justice. I'm quoting here from page 14, I think. This is what they concluded about some of your evidence:

We considered a test that would allow the commission to refer cases back to the courts on “factual innocence” grounds as used in North Carolina. We ultimately rejected such a test on the basis that it was too restrictive.

Here in Canada, we're taking a different direction with this draft legislation. What are your comments about it? Why was this important to North Carolina?

[Lindsey Guice Smith]

I think in North Carolina it was a balance of a policy decision that they wanted to limit the scope to factual innocence claims, and in order for this process to work in North Carolina, it needed to be limited in that manner. I can't really provide an opinion as to what Canada should do or what standard you all should put into place. I can really only speak to what we've chosen here in North Carolina and how we've seen success in the model we have chosen here.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Housefather, please.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, and thank you very much to both witnesses.

I want to start with a question of something that's preoccupying me with respect to the legislation, which is the prerequisite that people need to have exhausted their appeals process before they can make use of this legislation.

I'd like to ask both witnesses. I understand, first in the North Carolina context, that this is not a requirement. People need not have exhausted their appeals processes if they can provide a preponderance of evidence, show you that they are actually innocent and provide factual evidence of innocence. Is that correct?

[Lindsey Guice Smith]

That's correct.

[Anthony Housefather, Liberal, Mount Royal, QC]

Perfect.

Can I ask your opinion, Professor, about that and whether or not that should be changed in the draft bill.

[Kathryn M. Campbell]

We get about 30 to 50 applications a year, and we have our criteria that they have to meet. One of those is that they have to have exhausted all of their appeals. That eliminates probably half of them right there.

I think the process is so lengthy anyway. I understand that's still there in the bill, whereas there may be special consideration for certain cases. Perhaps what the witness, Paisana, said earlier may be a way to go about it, having it as an exceptional case that would be allowed to go ahead, despite not having done that yet.

[Anthony Housefather, Liberal, Mount Royal, QC]

My concern is essentially that the poorest defendants, the defendants who are the most likely to wind up in the system, are the least likely to have the means to exhaust their appeals. Therefore, if this is really meant to deal with the disproportionate number of indigenous, Black or poorer incarcerated people in our systems, we're in a situation where they would be the least likely to have exhausted their appeals.

[Kathryn M. Campbell]

Absolutely.

If I can just make a comment on this point as well, which is related to it, I don't think a lot of people know about the conviction review process at all. I met with an elder this week on our indigenous outreach program, and that is what he said to me. He said they don't even know about it. They know what an appeal is. They get that, because they have a conviction, but that's it. I think we really need to be better at reaching people, and one way would be what you've suggested, and also just providing information.

[Anthony Housefather, Liberal, Mount Royal, QC]

Professor, the U.K. legislation, for example, has that exceptional circumstance where they can decide to not require all the appeals to be exhausted. Have you looked at what it says in the U.K. legislation? Would you recommend something like that?

[Kathryn M. Campbell]

I would. I've written a couple of things with Professor Clive Walker about the CCRC as a model for us here. However, I think one of the biggest issues was not that, but the whole idea of funding and having it to be adequately funded, because there are huge problems there now with their commission, given that they just don't have enough money.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

Coming back to North Carolina again, I'm very interested in this model as well. The eight commissioners who are named by the two different judges of the court represent different criteria. One of them represents sheriffs, and one of them represents the public at large. There have been requests that the commission here include members of minority communities, that they be represented on the panel of people. Is that a requirement in North Carolina at all?

[Lindsey Guice Smith]

As part of the statute, it requires that the chief justice and chief judge consider diversity in gender, racial makeup and the geographic diversity of the state. Therefore, when we send the appointment information to the chief justice and the chief judge, something I always let them know is what the current makeup of the commissioners is and who's leaving, so that they have an idea of where they might need to go.

[Anthony Housefather, Liberal, Mount Royal, QC]

It's three justices who will hear, because.... As I understand it, the commission will refer cases when it has determined, by a preponderance of evidence, that the person is innocent to a three-judge panel.

Is that a special three-judge panel? Is it of the North Carolina supreme court? Who are the judges on it?