Justice Committee on Oct. 31st, 2023

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Minister.

Next, for the second round of five-minute questions, we have Mr. Van Popta.

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

Thank you, Mr. Chair.

Thank you, Minister, for being here, and to the other witnesses.

Today we're talking about Bill C-40, the proposed miscarriage of justice review commission act, also called the David and Joyce Milgaard law. I want to talk a little about the facts in the Milgaard case. You referred to them already, Minister.

He served 23 years in prison for a crime he did not commit. That was definitely a miscarriage of justice. It was a tragic story, but he and his mother Joyce stuck to their guns. It wasn't until new evidence became available that there was a review. Without that new evidence, there likely never would have been a review.

Under this new regime of having a commission instead of applications managed through your ministry, Minister, how would the Milgaard case have been treated differently? Today, is there still a requirement that there be new evidence presented that wasn't available at trial?

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

It's a very good question, Mr. Van Popta. Thank you.

There are a couple of things I would say.

Is new evidence the threshold or gateway consideration that allows you to get into this regime? No, it is not.

Does it happen frequently, particularly in the case of DNA evidence? Yes, of course it does.

However, it's not simply about new evidence. It can be about other errors that might have been committed, and I outlined some of those in my response to Monsieur Fortin.

What I would say to you is that I have confidence in the system in the way it's articulated in this bill insofar as when I look at the statistical reality of the vast number of cases—in the hundreds—that we see going through the system and being overturned as wrongful convictions in places like New Zealand, Scotland, England and Wales, it's such that we have nowhere to go but up in improving our numbers. The thing that distinguishes Canada from those other three jurisdictions is the lack of an independent commission that is separated out.

Those commissions sometimes work on the basis of months, to go back to Ms. Gazan's point, whereas in our case, because of the complexities of the case, these processes sometimes take years.

If we can work more quickly and make it more accessible, I think that at least makes options available to a future David Milgaard such that in a prison in a given part of the country, they know there's something available to them that can assist them through the process, including things like legal assistance.

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

Fair enough.

I'm reading from the 2022 annual report of the review of miscarriages of justice, which says:

The Minister must take into account all relevant matters in assessing an application, including whether the application is supported by “new matters of significance”—usually important new information...that was not previously considered by the courts.

Is this new regime going to be a substantial change to that? Is a review by the commission and the remedy of a new trial still going to be an extraordinary remedy, or will it be seen as just another appeal process?

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

It's not another appeal process. It doesn't usurp the role of the courts. That's important. That's critical to understand.

Is it a fundamental change? It's a change in the test. As opposed to the test that I currently operate under, which is whether a miscarriage of justice “likely occurred”, we have a test that is “may have occurred”. We have factors that I outlined in my opening comments whereby you're supposed to look directly at the personal circumstances of the individuals, including their life characteristics and lived experiences, with particular attention to Black and indigenous individuals and their overrepresentation in the justice system.

I think with that kind of focus, what you're going to have is an attentive body that is well-staffed, well-resourced and out there, doing the outreach that has the ability to engage different demographics, including those two demographics that we know are sorely overrepresented in our justice system.

It's going to make a very substantive difference.

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

Are you at all concerned that this new process may open up a floodgate of new applications, many of which would be completely unwarranted?

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

I think there are built-in factors to avoid them getting all the way through the floodgates. You still need to meet the threshold criteria. You need to have exhausted your appeals, at least to a court of appeal or, in some instances, all the way to the Supreme Court of Canada. You need to have been convicted of a particular offence.

There is threshold vetting that the commission must do, and I'm confident that the commission will have the resources and will have the buy-in from provincial and territorial partners. When we were consulting on this, it wasn't as if a random provincial attorney general put up their hand and said, “Actually, we're okay with wrongfully convicted persons festering in prison.”

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

Nobody's okay with wrongful convictions.

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

No one is, and that's why they've committed to working with us hand in hand and to working with this new commission once it's been created.

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

Of course. I recognize full well....

I'm sorry. Am I out of time?

[The Vice-Chair, Conservative, Rob Moore]

You have 15 seconds.

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

I have a very quick question then.

On DNA evidence, will wrongful convictions be less likely to happen now that we have DNA evidence? Keep in mind that David Milgaard never would have been convicted if he had had DNA testing available in the 1980s, or whenever it was that he was convicted.

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

I would like to say yes, Mr. Van Popta, but I think the statistics I was shown for the United States still show a wrongful conviction rate hovering between 3% and 6%, notwithstanding the fact that we have DNA evidence.

While I believe in our justice system, I also believe it's not infallible. It's important to make sure that we have a commission in place to address wrongful convictions when they occur, because they will continue to occur.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Minister.

Thank you, Mr. Van Popta.

Our final questioner for five minutes will be Ms. Dhillon.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

It will be Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

I'll be taking it, Mr. Chair.

Minister, it's nice to have you here. Based on what I've seen before, I could probably ask you about the federal child support guidelines under the Divorce Act, but I will try to stick to Bill C-40.

I want to follow on from what Ms. Gazan was saying. This bill is supposedly aimed at giving the poorest, most vulnerable defendants a better chance of reaching out to a commission and having an opportunity to have their grievances heard about the verdict in court. My concern is the exhaustion of appeal provision. If I'm the poorest of defendants, how often am I going to be appealing to the court of appeal if I don't have the money to pay a good lawyer to be able to do that?

If this happened years later, after I'm time-barred from appealing to the court of appeals, wouldn't I then be locked out of this process? Wouldn't it be better to reconsider that exhaustion of remedies approach to allow the opportunity for the new commission to consider all factors as to whether or not it could consider a case?

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

I think that's a very insightful question, Mr. Housefather. What I would say to you is that we've had to put some demarcations around the structure of the commission. Also, I, as well as the drafters in the department, was very conscious of not usurping the proper role of the courts in terms of making determinations. This is not meant to replace determinations of convictions, etc. It's not meant to usurp the proper judicial role.

I hear you on the access to justice point about who's able to pursue an appeal in the first instance within the time frames that are allowed. One way I think we can work to address that is by ensuring we have robust legal aid. This was mentioned, I think, by Ms. Gazan. What I would say to you there is that there's always room for improvement, but I'm particularly content with the fact that I think this year, if my memory serves correctly, over $200 million was provided by the federal government on an annual basis to support legal aid around the country.

[Anthony Housefather, Liberal, Mount Royal, QC]

I very much appreciate that, Mr. Minister. I do understand that, but I'm looking at the question, again, of whether the Department of Justice has any figures for what percentage of convictions are appealed to the court of appeal, especially in the cases of Black and indigenous defendants.

[Julie Besner]

There is nothing that I can convey off the top of my head. We'd have to look at what the Canadian Centre for Justice Statistics has on that in terms of the percentage that are appealed.

As the minister was explaining, the commission can't usurp the rule of the courts or become like an alternative to the courts so that people can pick and choose where they want to advance their claim. What the bill does do, however, is to clarify what it means to have exhausted your rights of appeal, which wasn't there beforehand. That did create a lot of confusion, so now it's being explicitly clarified that people have to appeal to the court of appeal—that's for sure. Whether or not they subsequently appeal to the Supreme Court of Canada, there are factors that are enumerated in the bill to help explain whether exceptions to that can be made, so if an appeal is like futile or—

[Anthony Housefather, Liberal, Mount Royal, QC]

I've read the criteria; I understand and I very much appreciate the effort to clarify this.

Again, I'm sort of struggling with the concept. I do appreciate that it's not meant to usurp the role of the courts. However, if you're time-barred from appealing to the court of appeal and you didn't appeal because you had no competent legal advice to do so and years later you're well past the time that you could go and apply to the court of appeal for some type of remedy related to insufficient counsellor or whatever else, would it not be a good idea to include some provision in the bill that's irrespective of the above in the event the commission believes, based on certain criteria, that the defendant has no other option and that there are reasonable grounds on which to believe that they were wrongfully convicted—I'm using the wrong words now but I'll take the same language of the bill—and that they should have that opportunity?

[Julie Besner]

There are, actually, quite a few cases in which fresh evidence comes to light after a person has been convicted and they can apply to the court of appeal to have an extension of the time within which to file an appeal. When there is such compelling fresh evidence, the courts of appeal do grant that extension and an appeal. A lot of wrongful conviction cases do make their way through the courts without coming through the ministerial review process and, in the future, the commission process. That will remain available but it's just to clarify the avenues with respect to when someone can come to the commission or whether they still have to go to the courts.

[Anthony Housefather, Liberal, Mount Royal, QC]

I understand that.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Housefather. Your time is up.

Thank you, Minister, for being here today. Thank you to our other officials who are here. I appreciate your being here.

The meeting is adjourned.