Justice Committee on Oct. 31st, 2023

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Madame Brière.

We still had a couple of questions due from Mr. Fortin, and our NDP member. Members, is it your will that we start now with the minister—I know the minister has to leave at 5:30—or would you like maybe two minutes each for the current witnesses? I know they're staying on.

Does it work to do two minutes each?

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

Mr. Chair, according to the routine motions we adopted, we each had six minutes. I don't see why that wouldn't be the case. We can continue with the minister afterwards. We have an hour until 5:30 p.m.

[The Vice-Chair, Conservative, Rob Moore]

You want to keep with the six-minute round.

Okay. We'll continue with six and six, and then we'll start at the top.

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

Thank you, Mr. Chair.

Good morning, witnesses.

Ms. Besner, I believe it was you who said that, under the new rules, we would be talking about someone who has been found guilty rather than someone who has been convicted. You told us that this would make it possible to include, for example, people who pleaded guilty.

Do you have any examples of situations where someone who pleaded guilty to a charge could then claim a miscarriage of justice?

[Julie Besner]

There are certainly people who, unfortunately, despite all the good legal advice they may have received, plead guilty when they are innocent. Sometimes there are quite exceptional circumstances, without mentioning specific cases. You may hear witnesses talk to you about specific cases in which a person pleaded guilty when no offence had been committed. For example, in circumstances where a parent is criminally charged as a result of the death of their child and there are other children in the family, sometimes the parent feels trapped and agrees to plead guilty in the hope of having a lighter sentence to serve.

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

I understand, but what would be the judicial error that would be invoked at that time?

[Julie Besner]

This is a conviction that is still not warranted, if no offence has been committed.

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

It is justified because there has been a guilty plea.

I may be a little naive, but my understanding of a judicial error is that there was a major, fatal error in the case. Here, I understand that the mistake would come from the individual who pleaded guilty and should not have pleaded guilty. Did I understand correctly?

[Julie Besner]

That's right.

It is true that the Criminal Code contains no definition of what constitutes a miscarriage of justice, although that term is used a few times.

In the practice of criminal law, yes, miscarriages of justice include not only mistakes made by participants, such as lawyers, judges or police officers, but also mistakes made by the accused themselves, or choices made by them or a defence lawyer. So that includes a host of errors that can occur.

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

I must admit that I am astonished. A miscarriage of justice, in my view, is an error made by the court. Having said that, I don't want us to spend five minutes on this. We can come back to it if necessary. Thank you for enlightening me on that.

Earlier, in response to a question from Ms. Brière, you said that the time frames would be improved. Do you have an idea of what those time frames will be? Suppose a judicial error is invoked following a decision. In your opinion, does the process provide for a decision to be rendered within a month, six months or a year, for example?

[Julie Besner]

The bill does not mention fixed and specific time frames. However, there is a broader obligation to process applications quickly. I believe that, in English, we use the term expeditiously. This will still require the commission to take the time frames into account.

Given that the level of complexity of the cases varies enormously, a number of cases could be resolved more quickly, whereas it could take more than a year, for example, to resolve some others.

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

In terms of efficiency, you said that you expected there would be more applications for review on the grounds of miscarriage of justice. I understand that this is expected, since the system will probably be more efficient. My question is more about the execution of the decision.

Suppose someone files an application for review on the basis of a miscarriage of justice and the commission comes to the conclusion that there was indeed a miscarriage of justice. What is the process under Bill C‑40 to implement that decision? I know of cases where it was not acted on. A miscarriage of justice was acknowledged, but nothing came of it.

So what about the execution of the decision if a miscarriage of justice is recognized?

[Julie Besner]

First of all, I must say that the commission's mandate is not necessarily to determine whether there was a miscarriage of justice. However, if it does have reasonable grounds to believe that there may have been a miscarriage of justice and that it is in the interest of justice that the matter be referred to the courts, that is what will be done.

So the execution of the decision is a referral, whether it's for a new trial, a new hearing, or a new appeal. The case then goes back to the courts, and they are the ones who are responsible for determining whether there has in fact been a miscarriage of justice.

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

Is it going to be a priority?

[Julie Besner]

Are you talking about the courts?

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

Yes. Is it going to be a priority in the courts?

I would also like to know what will happen to the individual who was convicted as a result of a miscarriage of justice in the meantime. Will they be released? Will the execution of the decision be suspended? Will the individual still serve their sentence?

[Julie Besner]

As soon as an application is deemed admissible, the applicant may make an application for release pending the commission's decision or, thereafter, pending the court's final decision. In this regard, the bill will amend section 679 of the Criminal Code.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you very much, Mr. Fortin.

Madam Gazan, you have six minutes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, Chair.

Thanks to everybody for being here today.

My question is for you, Minister. As part of the report and findings of justices Harry LaForme and Juanita Westmoreland-Traoré, when tasked with reviewing the conviction review process in this country, they underscored that of the 20 individuals granted reviews and remediation by the Canadian government, all were men. Only one was indigenous, and one was Black.

Given the racist and misogynistic biases of the past conviction review processes administered by the Department of Justice, how will these issues be remedied in the proposed legislation?

[The Vice-Chair, Conservative, Rob Moore]

Madam Gazan, we were wrapping up with the other witnesses. We were going to give the minister time for his opening statement and then begin a new round. However, if the minister wants to take the question, he can.

[Arif Virani, Liberal, Minister of Justice]

Sure. We can do this in reverse order.

Thank you, Ms. Gazan. What I'd say to you is that those are very troubling statistics. I remarked on them myself. I was given a slightly different version: All of them were men, and out of 26 cases, 20 involved people who were white, with only six racialized people.

I think the importance of what you're underscoring is that we need a system that reflects better the statistical likelihood that you're going to have wrongful convictions across the prison population. When you look at the overrepresentation of indigenous and Black individuals in this country in the prison population, and you look at the number of women in the prison population, it is statistically improbable—probably impossible—that there's never been a wrongful conviction of a woman in this country, for example.

I think the way we address it is that we do some of the things that are targeted in the legislation, such as outreach activities where you're actually in prisons, explaining to people that there is this process that's available. You're looking at providing access to legal assistance. Sometimes we know that people are only as good as the lawyers they can afford to hire. By providing actual legal assistance, you're empowering those indigenous and Black people who are in prison populations. There's also providing translation and interpretation. That might beg the question of whether that would be provided in indigenous languages. I hope so, but I don't know the answer to that.

Lastly, there's even reintegration support. Sometimes it's daunting to raise the spectre of a wrongful conviction and then be given bail. As Ms. Besner just mentioned, when you have that bail provided to you, all of a sudden you're outside a prison system that you've been in for 18 years, hypothetically. You don't have the ability to house yourself, feed yourself or get employed.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Just as a matter of time, and with all due respect, I think we all know that with legal aid in this country, the hours are so limited that you really don't get fair representation, particularly in more serious cases. I say that to put it on the record. I don't think it's unknown.

In terms of that, I appreciate what you said, but what kind of—and I can ask this of Ms. Besner, too, if you like—evaluation accountability measures and performance indicators are you anticipating will be included in this legislative regulatory policy and practice process you're advocating? How are you going to measure this?

This question is for anybody.

[Julie Besner]

The legislation includes a very exhaustive list of information that has to be provided in the annual reports to Parliament. That will help to evaluate the commission's performance in terms of volumes, timelines and programs.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Can you give me some examples, please?

[Julie Besner]

There's the number of applications made, the number of investigations conducted and the number of matters referred to the courts. There's also an obligation for the commission to track the outcomes of those cases after they're referred back to the courts, the number of applications dismissed, the average length of time between the receipt of an application and the commission's final decision, the number of applicants in need who receive supports and the amounts paid to the service providers of those supports, and GBA+ type of data—