Thank you.
Meegwetch for inviting me here to speak to you today and to each of you for your interest in this very important topic.
I am speaking to you virtually from my home in Ancaster, Ontario, located on the treaty territory of the Anishinabe, the Mississaugas of the Credit First Nation, my home.
As an indigenous man who happens to have been a judge for more than two decades, I am painfully familiar with the flaws in the justice system that can lead to miscarriages of justice. Yet the consultations we conducted, as requested by former minister of justice Lametti, revealed a different perspective.
I had the honour to speak with the late David Milgaard four times during this process, where we spoke to 16 other exonerees and 215 people in total. With the assistance of Justice Westmoreland-Traoré and Professor Kent Roach—who, as you indicated, is appearing with me today—we were guided by Mr. Milgaard's experience and wisdom when he told us, “The wrongfully convicted have been failed by the justice system once already. Failing a second time is not negotiable.” He was talking about this.
It was in that spirit that we prepared a detailed 200-page report, which Professor Leonetti of the University of Auckland has praised as a transformative blueprint, that, if implemented, learning from the lessons of other commissions in other countries, could produce the best commission that could proactively investigate miscarriages of justice, play a vital role in their correction and contribute to their prevention.
To say that I am disappointed with Bill C-40 is an understatement. I will summarize my concerns about Bill C-40 into three main themes, which are reflected in our brief.
First, it is critically important that the commission be as independent and as qualified as possible. Bill C-40 as presently written would allow a five-person commission with only a full-time chair, who also has chief executive responsibilities, and without statutorily required indigenous or Black representation. In my view, this is manifestly inadequate to the task. Indigenous and Black people are the population most at risk for wrongful convictions and they have little reason to trust the system. I am also concerned about the slow and non-transparent process of cabinet appointments to the new commission. We have proposed three amendments to expand and strengthen the commission.
Second, Bill C-40 severely restricts the jurisdiction of the commission. That is, the requirement of an adverse decision by a court of appeal would prevent most victims of a miscarriage of justice from even applying to the commission for help. I recommend the submission of UBC's innocence project in this regard. David Milgaard told us not to exclude sentencing from the commission's jurisdiction. We recommended that someone who is still serving a sentence based on wrong and inadequate facts should be able to apply to the commission. I commend the Native Women's Association of Canada brief in this regard. Our proposed amendments four and five also address these concerns.
Finally, I am concerned that Bill C-40 will not produce the type of proactive, systemic and independent commission that the exonerees and many others told us we needed. Commissioners should not have renewable seven-year terms, because the hope of renewal and the spectre of non-renewal may interfere with their independence or reasonable perceptions of it. An independent advisory board should vet candidates for commissioners and assist the commission. The commission's budget, including compensation, should be tied to the judiciary's in order—