Justice Committee on Oct. 31st, 2023

[Leah Gazan, NDP, Winnipeg Centre, MB]

That all sounds well, but the measures proposed in this bill that you've shared do not allow for group reviews, which are particularly crucial to identifying systemic factors that have led, for example, to indigenous women being overrepresented among these people. They have been criminalized for actions taken to protect themselves or others from violence and for which they often should have had valid legal defences—and we know this.

If you look at—and I know, Minister, you know this—the statistics in Saskatchewan of the number of women currently incarcerated, the majority are indigenous women, and it's a growing population. This is becoming a matter of great injustice.

Why was the possibility for group reviews not included in this legislation, particularly in light of the glaring systemic factors and systemic racism that still persist?

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

What I would say to that, Ms. Gazan, is that demographic data is also meant to be tracked in the parliamentary reviews. I think that demographic data can help demonstrate whether patterns are emerging in who's applying and who's not applying, so that there can hopefully be curative aspects taken at the time of the parliamentary review to target exactly what you're speaking of.

[The Vice-Chair, Conservative, Rob Moore]

Thank you.

Minister, welcome. You're already here, so it's a belated welcome. Thank you for joining the committee today on Bill C-40.

I'll turn it over to you for your opening comments.

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

Thank you.

It's good to see you in the chair, Mr. Moore.

Hello, colleagues. I hope you're all well. At the outset, I want to say thank you for the quick work on Bill S-12 and making sure that we met a court deadline and maintain the sex offender registry going forward.

Thank you very much for inviting me to speak to you about Bill C‑40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard's Law).

Bill C-40 proposes necessary and long overdue change to our criminal justice system, and it will indeed change lives. I'm grateful for the important work of my predecessor David Lametti in developing Bill C-40. I have every intention of fulfilling the promise that David Lametti made to David Milgaard and his mother Joyce to pass this important legislation.

I think we all, as parliamentarians, owe it to those people who have been wrongfully convicted, like David Milgaard and others. These errors cost them their freedom, their livelihood, their reputation and their time with loved ones. The errors are devastating to victims of crime and to their families.

This bill responds to long-standing calls from wrongfully convicted Canadians and their advocates. This issue has been studied extensively. Over decades, numerous commissions of inquiry have delivered one consistent recommendation to government: the creation of an independent commission dedicated to the review and investigation of cases when a miscarriage of justice that may have occurred is warranted.

Other countries have done this already, so we're not charting new territory here. Independent criminal case review commissions have been established in the jurisdictions of England, Wales and Northern Ireland; in the jurisdiction of Scotland; and in the jurisdiction of New Zealand.

Bill C-40 is shaped by a broad public consultation process that took place during summer 2021, involving more than 200 individuals and groups with experience and expertise in the area of criminal justice. That process was followed by further consultations with the provinces and territories, judicial organizations, national indigenous organizations, organizations from Black and other equity-seeking communities, and various bar associations.

One of the key findings of the consultations is that commissions in other countries are able to process applications far faster than in Canada's current system. This means that countries with an independent commission have fewer people spending time behind bars for crimes they didn't commit. That in and of itself is incredibly significant.

In Canada, our wrongful conviction regime was last amended in 2002.

I'll just note parenthetically that this power has existed in one shape or form in the hands of people, who were my predecessors going back to 1892. We're talking about a change to the executive prerogative in this area that dates back to the time when the first Stanley Cup was awarded over 100 years ago.

Since 2002—I was just referencing the last time this was amended—just over 200 applications for review have been submitted. You've heard Ms. Gazan mention that there have only been 26 successful referrals back to the courts through the ministerial review process.

Let's compare that for a moment with a country that has an independent commission. The United Kingdom is a great comparator. They have referred 822 cases in the same time period, with 559 appeals successfully overturned. With a population that is just about half of the U.K.'s, I think that contrast is very powerful. Further, I would note that in all but five of the 26 successful Canadian applications that Ms. Gazan mentioned, the individuals were white and not racialized. In every single one of the 26 successful applications the individuals were male.

That bears no resemblance whatsoever to our prison populations. Black and indigenous persons, who we all know are overrepresented in our criminal justice system, need equal access to this process, as do women.

An independent commission devoted exclusively to reviewing potential miscarriages of justice will both increase trust in the review process and improve access to justice by facilitating and accelerating the review of applications from persons who may have been wrongfully convicted.

A commission with five to nine full-time or part-time commissioners, in addition to staff, will be able to review applications more quickly. Recommendations for the appointment of commissioners will have to reflect the diversity of Canadian society and also consider gender equality and the overrepresentation of certain groups in the criminal justice system, specifically indigenous and Black individuals.

The bill requires the commission to deal with applications as expeditiously as possible—this was mentioned by Ms. Besner—to provide regular status updates, and to provide notice to the parties, as well as to provide them with a reasonable period of time in which to respond. The bill also requires the commission be accessible and transparent.

It will adopt and publish on its website procedural policies to guide its work. It will have a dedicated victim services coordinator to support victims and assist with the development of procedural policies, especially as they relate to victim notification and participation.

These are essential measures to facilitate the proper support for victims, which I know is a keen concern of yours, Mr. Chair, in terms of the work you and I did on this committee previously.

I think it's important to understand that, obviously, victims can be doubly traumatized by the notion of a miscarriage of justice having occurred and the fact that the actual perpetrator of the crime against their families remains at large.

To help address systemic issues and prevent miscarriages of justice from occurring, the bill directs the commission to carry out outreach activities, such as the ones I mentioned to Ms. Gazan; provide information about its mandate on the miscarriage of justice to the public and potential applicants; and publish its decisions. Commission staff will be empowered to provide applicants with information guidance. The commission will be able to provide reintegration supports to applicants in need. The commission will be able to provide applicants with translation and interpretation services, and to help applicants obtain legal assistance and the necessities of life, such as housing and medical care.

All of these elements are essential. A commission that conducts outreach and assists with applications recognizes the systemic barriers faced by applicants in the current system. It is in everyone's best interest that wrongful convictions be remedied. Indeed, I would posit that there isn't a single one of us, among the 338 occupying the House of Commons, who would advocate for a wrong conviction in any context. Therefore, the proactive nature of Bill C‑40's commission will ensure that no applicant is excluded from accessing this process because of a lack of resources or the inability to apply.

My officials have been briefing you on the technical changes this law reform proposes, but there are a couple that I would like to highlight in particular.

One is with respect to investigative powers. The commission will have the same powers of investigation as I do as Minister of Justice under the existing regime. These powers are found in part I of the Inquiries Act and can be used to compel the production of information or evidence relevant to an application, and to examine witnesses under oath. These authorities will ensure the commission can gather the information it needs to complete a thorough case review.

The second change I want to highlight is this: Bill C‑40 will modify the threshold to proceed with carrying out an investigation. Similar to the existing regime, the commission will be able to conduct an investigation if there are reasonable grounds to believe a miscarriage of justice may have occurred. The commission will also be able to conduct an investigation if it considers that it is in the interest of justice to do so. This is the precise approach used in Scotland and New Zealand.

With respect to the final decision—not the investigation entry point, but the final decision—Bill C‑40 introduces a new test. The commission will be able to refer matter to the relevant court of appeal, either for a new appeal or to direct a new trial or hearing when there are reasonable grounds to conclude a miscarriage of justice may have occurred, when the test is conjunctive, and when it is in the interest of justice to do so. It is a test with two criteria, not one. This test replaces the current standard, which is that a miscarriage of justice likely occurred.

If the proposed new legal test is not met, the commission must dismiss the application. The remedies in the bill are the same as those currently available in the existing process: a referral for a new appeal or a direction for a new trial or hearing. The commission will not have the power to quash a conviction or determine the issue of guilt. Those are decisions that will always remain with the courts.

Bill C‑40 sets out the factors the commission will have to consider in making its decisions. The factors currently stipulated in the Criminal Code that relate to the administration of justice are reproduced in Bill C‑40, and two new factors are added relating to the particular circumstances of applicants.

That is, it's specifically looking at the personal circumstances of the applicant and distinct challenges they may have faced, with particular attention to the circumstances of Black and indigenous accused.

I believe firmly in our justice system. Its quality is the best in the world. However, we also know that miscarriages of justice occur. Often they are only discovered long after the criminal court process has concluded. These experiences erode the public's trust in a justice system that is meant to protect them. This bill is a significant step forward in restoring that trust and confidence in the system. It is named after David Milgaard, who spent 23 years of his life serving time for a crime he did not commit, and for his mother, Joyce, who never gave up the fight for his freedom.

Bill C-40 honours David and Joyce's legacy by creating a system that will lead to more exonerations of the innocent.

Thank you.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Minister.

We will begin our six-minute rounds starting with Mr. Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Minister, for being here.

Thank you to our guests for being here.

Minister, I'm going to rewind back to October 3, because we had a correction on the record from that visit. I had asked you about sexual offences against children and whether you were prepared to add house arrest.

I have the transcript here. You were advised by an official that house arrest for people who commit sex offences against children was not a legal sentence.

Do you recall that?

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

I recall the question you asked me, yes.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I asked you two or three times in various different forms.

Now, you're aware that the record has been clarified and that in most jurisdictions—and I believe one newspaper story I have here references Bill C-5—sex offences against children can lead to a conditional sentence order, in other words, house arrest.

Do you agree with that?

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

I believe that the interaction we had specifically, once the formal committee session stopped, is that you were making an inquiry as to whether that provision you identified in the code had been struck down by one of the courts.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Yes, and I believe that your official came on the record—I wasn't here—and stated that house arrest was available and that various courts had struck it down. My recollection is that probably 90% of the population has that available.

Are we good on that? Do you understand where I'm going with this?

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

I understand where you're going, yes.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Given that sexual offences against children can result in house arrest, are you prepared to plug that legislative gap?

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

What I would say to you is similar to what I said at the time of that hearing. I appreciate that it was on a different bill, so I don't have all of my notes before me, but, with respect to Bill S-12, what we're trying to do is take a strong step in the direction of maintaining a sex offender registry to keep people safe from sexual predators.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I'm not talking about keeping people safe, from the Bill S-12 point of view. I'm talking about keeping people safe generally.

This is a very clear question, with all due respect, Minister. Are you prepared to eliminate house arrest for people who commit sexual offences against children or have images of it in the form of child sexual abuse and exploitation material?

Yes or no? Will you plug that hole?

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

Mr. Caputo, what I would say to you is that conditional sentencing orders are available in certain prescribed circumstances, and we have case law, including from the Ontario court, that talks about when such a sentence would be appropriate or inappropriate.

In the case of violent sexual offences, the Ontario Court of Appeal has been pretty clear that they are not available and should not be available in this context.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

With all due respect, Minister, I have a number of newspaper articles noting that there have been conditional sentence orders, and, in fairness, some of them have been on joint submissions. I won't get into the nuances of that, but here we go.... I can go through them if you like. I don't intend to waste—I shouldn't say “waste”, but spend—my time dealing with this, but, well, here's one. Where is the date here...?

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Mr. Chair, I have a copy of the meeting notice if any members from the Conservative Party would like to see it, because so far none of them seem interested in the least bit about the issue at hand, which is miscarriage of justice, because their questions are completely unrelated.

I'm not going to ask you for a ruling, because I know that it's not something you want to do today.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Maloney.

Go ahead, Mr. Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I believe I have three minutes and 58 seconds left.

If we want to get back to this, this was something that came up at the last committee, and I was stymied in asking this very question because of the advice that you received. I'm not throwing anybody under the bus, but we could not flesh this out because of that. With all due respect, I think I should have time with the minister. This is an important issue, and some people would argue that miscarriage of justice occurs when a victim who is subject to a psychological life sentence sees their abuser have house arrest.

In any event, I have an article right here entitled “House arrest for 78-year-old Niagara Falls man convicted of child pornography offences.” I don't like using that term. It should be “child sexual abuse and exploitation” material, but that's the headline.

The Ontario Court of Appeal has said this—and I don't know which decision that is, and I will take your word for it, Minister. But it is available regardless. Sometimes there are exceptional circumstances—I get that—but it can happen. People who are victims of sexual crimes are serving a life sentence.

Will you legislate so that people who commit sexual offences against children or who have depictions of such cannot receive house arrest? Yes or no?

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

I would say a few things, Mr. Caputo.

Is the issue of sexual offences important? Yes, absolutely, it is. Is it critically important to protect children from sexual predators? Absolutely, there is one hundred per cent in agreement on that.

What I would say to you is that, in this context, we're dealing with wrongful convictions. What you're talking about is a sentencing disposition in the context of using a CSO, or conditional sentence order, for a particular case.

What I would say to you is that the criminal justice system is structured—you would know this better than I do as a former Crown—such that one has the ability to appeal a conviction but also to appeal the terms of a sentence.

So there's—

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

But we're not talking about an appeal, Minister.

With all due respect, we have limited time.

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

If I could just finish, there's a mechanism in place to address the infirmity or lack of appropriateness of a sentence.

Lastly, what I would say is that if it's coming in on a joint submission, I think you have to look at why a Crown and a defence attorney would take the position that it may be appropriate in a given context.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

But, Minister, some of these aren't coming in on joint submissions. You're talking about the inappropriateness or appropriateness of it. The fact is that the buck stops with Parliament on whether something is appropriate or inappropriate, based on the maximum sentence, the minimum sentence and on whether Parliament says that a conditional sentence order in the form of house arrest is appropriate. With all due respect, you and I part company at that point.

I'm going to ask again, based on the seriousness—and you have acknowledged it—why are we not putting forward a bill right here right now that says sex offences against children will not result in house arrest, given the foregoing?

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

Mr. Caputo, we have a bill that's before us right now. That's not the bill you're choosing to speak about. That's the first point.

Secondly, we will definitely part company if you think that people in your former profession, Crown attorneys, should have their discretion fettered such that they're not permitted to put in a joint submission on sentencing.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

We fetter discretion every time we prosecute an offence with a minimum sentence.