Justice Committee on Nov. 28th, 2023

[Tony Paisana]

I agree, if the viewpoint is looking at that requirement in a way that is restrictive, which I think is one possible interpretation of that.

The other way of looking at it—and this is somewhat hinted at in the bill—is the idea that you may have a case that's on the fence, but the interests of justice pushes it over the fence in consideration of things like the distinct challenges of the applicant, the personal circumstances of the applicant. I actually think it can work both ways.

To the extent that you have a case that might be a wrongful conviction, but for some reason the public interest suggests it shouldn't be reviewed, I agree with you. That seems inconsistent with the spirit of the bill. That may be something that's left to the interpretation of the bill down the road, but it seems to me that interests of justice in no way could override the fact that there may be reasonable grounds to conclude that a miscarriage of justice occurred.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Under what circumstances might it not be in the interests of justice?

[Tony Paisana]

That's the part I'm struggling with, namely this idea that it could ever be contrary to the interests of justice to review a conviction that there was reasonable grounds to conclude there may be a miscarriage of justice. That's why I think, when we look at statutes and statutory interpretation, it's within the scheme of the whole bill.

I think the more likely interpretation that would be brought to bear to this requirement, if it remained in, is the one that I said earlier, which is that it actually should be a positive attribute to an application, as opposed to a negative attribute, if that makes sense.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

Proposed subsection 696.5(1) lists the same two conditions but presents them as alternatives using the conjunction “or”. It says that the new commission may investigate “if the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so”.

Should the commission be required to conduct an investigation? Should the provision say instead that the new commission “shall” or “must” investigate?

Also, why are the two conditions presented as alternatives?

[Tony Paisana]

I'll break down your question into two.

I agree with you. It should be “must investigate”, not “may”. I'm not sure why there is a discretionary feature to this. The whole point of the standard is to reach a standard such that a power is triggered.

With respect to the disjunctive routes, I think it makes sense that there be a disjunctive route at this stage of the process because there can be cases where it's in the interests of justice to review it, where on the face of it, it may not appear to be a miscarriage of justice.

This comes back to what we call the catch-22 in post-conviction review. Post-conviction review often relies on new matters of significance, but persons in custody don't have the ability to investigate those matters of significance.

There may be an aspect of the case that cries out for a response, but you can't reach the threshold of reasonable grounds to believe because you don't have access to the investigative powers, but through the process of the interests of justice avenue to get to the investigation, you can access those resources such that you might eventually get to the point with new matters of significance that achieves the ultimate result.

It's a separate avenue that I perceive to be valuable for those who are in the catch-22, as we've called it, in post-conviction review.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

Now it's over to Mr. Fortin for two minutes.

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

Thank you, Madam Chair.

I'd like to discuss the matter of having to exhaust appeal rights, Mr. Paisana. The bill says that the applicant must have exhausted their appeal rights before applying for a ministerial review, except as regards an appeal before the Supreme Court.

I'd like to hear your thoughts on that. You can have the rest of my time to answer.

[Tony Paisana]

We are very much of the view that this, as a mandatory requirement, should be removed. The reason for that is that the appellate process is very cumbersome, and it requires a great deal of sophistication and expertise.

To give you a sense of how it works, when a person appeals they have to file a notice of appeal, they have to order transcripts for the hearing that are relevant, and then they have to file a factum. The Crown needs to respond, and then there's a hearing before three judges of the court of appeal. That process, in the best-case scenario, usually happens within a year. That process often requires legal aid support if a person is unsophisticated and in custody. Legal aid has its own criteria for merit, and there may be many cases where legal aid is not prepared to fund something if there is no merit on the face of what the accused person can muster in terms of grounds of appeal.

Therefore, you're setting up a situation where people, particularly those who have falsely pled guilty, will see significant barriers to interceding at the appellate level, such that they will be completely discouraged from doing that, or not know how to do that; and you won't be able to access the commission after the fact, because you haven't done that step.

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

Thank you, Mr. Paisana.

I have just a few seconds left. If the requirement is removed, don't you worry that the new commission would be swamped by applications, with people applying for ministerial review instead of appealing their case?

[Tony Paisana]

What I'll direct you to is that this seems to be contemplated in the legislation. If you look at one of the factors that's relevant to acceptance and the ultimate decision, you see under proposed paragraph 696.6(5)(c) that the “application is not intended to serve as a further appeal”. I would suggest that this would include an appeal in first instance. It should be a relevant factor that the person has not appealed. It should be weighed in the analysis. All we're saying is it shouldn't be determinative. There will be cases where it will be appropriate to not force the person to go through the appellate process.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

For our final round of questions, we have Mr. Garrison, please.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Given that I only have two minutes, I'm going to focus on a couple of things that I think are not in the bill.

We've talked about a miscarriage of justice sometimes being a result of systemic factors, and there doesn't seem to be anything in the bill that would allow the commission to recommend to the Law Reform Commission, to Parliament, or anyone a way of addressing those factors.

The second one is that if in the process of investigating a miscarriage of justice, the commission finds dereliction of duty, malice, or other professional misconduct, they don't have the power to refer that to anyone.

I'm going to ask the Canadian Bar Association's Mr. Paisana to quickly answer those two points.

[Tony Paisana]

With respect to law reform, we do support the idea that the commission should refer and participate in law reform projects. They are uniquely positioned to see the wide spectrum of wrongful conviction issues that come before them, and they're uniquely positioned to study and provide data and input with respect to those issues.

With respect to the referral of misconduct, this is something that came up in the consultation phase. We are of the view that there are plenty of ways in which misconduct can be reported. The commission doesn't need to be the avenue through which that occurs. It can be something that they raise within their decision-making process—that this is something that a particular group, or body, or regulator should consider. However, they don't have to be the actual source of the referral. There are plenty of other "watchdogs", if I could put it that way.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.

In the 30 seconds remaining, Ms. Kish, maybe you can comment on these two points.

[Nyki Kish]

Yes. We think that with all of the amazing evidence and insights from impacted stakeholders and wrongfully convicted people that went into the beautiful report from the commission, there should be every opportunity to address systemic cultures of miscarriages of justice, because certainly they exist. You see it in the outcomes. That half of the people in prisons for women are indigenous doesn't demonstrate that indigenous people are more deviant; it demonstrates that there are flaws in our justice system. We want our system to be as responsive as it can be, as Tony indicated, to provide just and fair outcomes for everyone. With every opportunity we can clearly legislate, we should do so.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Thank you very much to all of our witnesses for appearing this afternoon, and thank you to colleagues.

Let's suspend for two minutes to allow our next panellists to be tested if they're virtual. I think we have one who is in person.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting back to order, please.

For the second hour, we're going to continue our study of Bill C-40.

With us today we have two witnesses, one in person.

Good afternoon to Madam Kathryn Campbell, who is appearing as an individual. She is a professor in criminology, Faculty of Social Sciences, University of Ottawa.

As well, on the screen we have Madam Lindsey Guice Smith, executive director, The North Carolina Innocence Inquiry Commission.

I have Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Did you want me to move my motion?

[The Chair, Liberal, Lena Metlege Diab]

Go for it.

[Rob Moore, Conservative, Fundy Royal, NB]

I don't want to take any time from the witnesses.

Quickly, a notice of motion has been circulated that the minister appear before the committee to discuss the supplementary estimates at some time, as soon as possible, up to and including but no later than December 7.

There seems to be consent for this. That's great.

(Motion agreed to [See Minutes of Proceedings])

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

That's how I like things to be done: very efficiently. Thank you very much. That's fabulous.

The witness on the screen has been tested, and the equipment is working well.

I will ask each of you to commence with your remarks for up to five minutes each.

We will start with Madam Smith.

The floor is yours for five minutes.