Justice Committee on Nov. 7th, 2023

[Dr. Myles Frederick McLellan]

As James Lockyer said earlier, there's no doubt that once this commission is put into place—whether it's in its current form, Bill C-40, or amended as requested—there are going to be a lot of applications. There will be a lot of people who are going to go through the process of trying to see what this commission can do that a section 696.1 application to the Minister of Justice couldn't do, and I think that's great.

Again, the opportunity to have these applications is going to give this commission, going forward, the opportunity to remedy wrongs that never should have taken place at all.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Do you feel that we have enough resources to be able to deal with the increase of applications?

[Dr. Myles Frederick McLellan]

There are five other commissions that are referenced in Justice LaForme's report, and all of them are funded, and funded well, to a great degree.

If they're not funded well enough, then they need to be. You have to go back to Parliament and make sure they are properly funded.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Fortin, you have the floor for six minutes.

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

Thank you, Madam Chair.

Thank you, Mr. McLellan.

I'm going to continue in the same vein as my colleague Ms. Lattanzio and ask you about the constitution of the commission, specifically the fact that it will be made up of lawyers and non-lawyers. It could therefore happen, in certain cases, that non-lawyers would determine that there had been a miscarriage of justice. This strikes me as a little surprising.

Don't you worry that this undermines the commission's credibility?

[Dr. Myles Frederick McLellan]

It depends—and we don't have this—upon how those members of the commission make decisions. There's no indication that, for instance, the entire panel has to make the decision. Most of these commissions around the world break it into smaller panels of two or three people, and they decide. It may be a majority decision. It may require a unanimous decision of those two or three people as to whether a case goes forward.

These people are imbued with the ability to correct miscarriages of justice, and that's a very noble cause, so I'm not particularly worried that those people on the commission, whether they're lawyers or non-lawyers, wouldn't be doing absolutely everything in their power to do what's best for the people who come before them.

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

Indeed, they'd surely do their best, I'm convinced of that too. However, if it were a matter of determining whether a doctor had made a medical error or an electrician had erred in his work, I would want to hear the opinion of experts in the field in question.

I haven't made up my mind about this yet, but it does surprise me a little that non-lawyers could determine that there has been a miscarriage of justice. I'm a lawyer myself and I find this somewhat surprising. I wonder to what extent the fact that an ordinary citizen sees decisions being changed by non-lawyers can undermine the credibility of the commission.

I understand you have no concerns in this regard

[Dr. Myles Frederick McLellan]

I don't mean to be glib, but it's not brain surgery. Everybody knows.... I mean, we had seven public inquiries in Canada that determined what the causes of wrongful convictions are. We all know what they are. Everybody in the field knows what they are: mistaken identification, false confessions, jealous informants, etc. There are six or seven absolutely well-established systemic causes of wrongful conviction, so it's not an unworldly request of those who are lay people on the commission to learn about them and to understand them.

All they have to do is read the seven public inquiries into wrongful convictions—and Canada is renowned for this—and I guarantee that these lay people will be absolutely well qualified to understand why the people coming before them are there and what caused the misstep in the criminal justice system that led to the miscarriage of justice. I have no doubt that it's a task that these people can assume.

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

I'll now move on to another topic, Mr. McLellan.

In your opening remarks, you mentioned the case of Michel Dumont, who was acquitted by the Quebec Court of Appeal in 2001. In 2010, the United Nations Commission on Human Rights determined that his rights had been violated by Canada. I won't go into all the details of this case, but it seems to me that Mr. Dumont should have received compensation from the federal government, but didn't. He's still waiting for it. He and his wife, whom I've met, have gone to great lengths for years to resolve the situation.

Mr. McLellan, shouldn't the bill provide for a process of mandatory enforcement of decisions even in cases where the decisions were rendered not in Canada, but by international tribunals whose powers are recognized in Canada, such as the United Nations Commission on Human Rights, in Mr. Dumont's case?

[Dr. Myles Frederick McLellan]

I wouldn't necessarily go there. I actually haven't thought about this, but I wouldn't go there. The UN has this optional protocol system, which is what Monsieur Dumont used in order to get to where he was. Unfortunately, the Government of Canada ignored what the United Nations Human Rights Committee directed it to do. The thing to remember about Monsieur Dumont is that he had his judgment in Canada that he could rely upon to seek compensation. The fact of the matter is that there was no effective remedy in Canada he could use, which prompted his unique and extraordinary application to the United Nations.

I would hope that in all of those cases where people think the United Nations is a remedy.... They already have something that would trigger compensation in this bill. They would have already been exonerated to the point that, in fact, they would be entitled to compensation domestically. They don't have to worry about going to the United Nations. That's an extraordinary remedy.

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

In this case, an international tribunal, the Commission on Human Rights, declared that this person's rights had been violated and that Canada should compensate him. Yet, as I understand it, this is not sufficient reason, in your opinion, to include provisions in our miscarriages of justice bill that would make compensation for victims of miscarriages of justice mandatory.

[Dr. Myles Frederick McLellan]

I have absolutely no qualms including anything in the bill that will trigger somebody's entitlement to compensation for whatever miscarriage of justice has taken place, wherever it's taken place. I just think that working domestically, at this stage in the game, is probably the most appropriate approach.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We'll now move to our final questioner for the afternoon, for six minutes.

Go ahead, Mr. Garrison.

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

Thank you very much, Madam Chair.

Thank you very much for being here today.

I think your emphasis on compensation is quite important. Locally, we've had miscarriages of justice that resulted in things like the loss of custody of children for a long period of time. It really disrupted families for a long period of time. Some of those things you can't repair with money, but money is the currency we use, if I can put it that way.

I'm interested in places where there is compensation. Is that determined by the commission, or is it a separate body that ends up determining the compensation?

[Dr. Myles Frederick McLellan]

On a worldwide basis, the European Union and a great many nations—including China, for that matter, and African nations—include compensation as a function of their international rights legislation. As I mentioned earlier, the U.K. does it, although in 2014 it imposed a factual innocence component, which destroyed its effectiveness.

I would turn to the United States because, obviously, it's our closest neighbour and it's been doing this for a very long time. It started compensation statutes before the enactment of the international covenant. Edwin Borchard, who was a Yale professor, wrote an article in 1913 basically pleading for governments to pay attention to this. It's important.

There are 38 states and the District of Columbia that have compensation. They vary tremendously. There's one state that gives only $5,000 a year and caps it at $25,000. Texas, on the other hand, is quite generous. It gives you $80,000 a year for every year of wrongful imprisonment, and $100,000 if you're on death row, but it's also a capital punishment state—it puts people to death—so if Texas doesn't kill you, it'll pay you.

We have lots of examples we can look at to frame our legislation, and we have model statutes that have been created for that purpose, for enactment in this bill. It's not something that's beyond the reach of being enacted and really aiming high to become as inspirational as I think this committee can be.

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

If I understand how it works in the United States, then, it's like a schedule of “if this happens, this is the compensation”. Is that correct?

[Dr. Myles Frederick McLellan]

It varies from state to state. There are different qualifying thresholds to get over. There are things that disentitle you to compensation. For instance, in some states, if you have a felony that's totally unrelated to the wrongful conviction, that disentitles you to any compensation at all.

There are statutes of limitations that are in place, which are incredibly difficult, so once you're exonerated, you have a period of time to bring your action for compensation. Again, for most people who are released from imprisonment, their first priority is to get food on the table and get a roof over their head, so the passage of time often takes place and they lose the right to seek compensation. That's important to keep in mind.

Of course, the amounts are all different. Again, as I said, there are some that are very miserly, and some that aren't so bad.

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

I think I'm probably out of time, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

That's great. Thank you very much.

Thank you very much for appearing and being our witness this afternoon. I think you probably got your fair share of questions this afternoon.

[Dr. Myles Frederick McLellan]

It's been a privilege. Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Committee, thank you. I'm going to adjourn for today. If there's anything to communicate, we can figure things out for next time.

I wish everyone a lovely evening.

Thank you very much.