Evidence of meeting #83 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commission.
A recording is available from Parliament.
November 7th, 2023 / 4:40 p.m.
Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec
I will begin, and then I'll let Mr. St‑Jacques add to my response if he so wishes.
The idea is that the commission has to have reasonable grounds to believe that a miscarriage of justice may have occurred, so there need to be reasonable grounds to determine if it has indeed occurred.
Our proposal to replace the word “may” with the word “must” is more related to the discretionary power to investigate.
Would you like to add anything, Mr. St‑Jacques?
4:40 p.m.
Representative of Barreau du Québec, Barreau du Québec
In Bill C‑40's current form, proposed subsection 696.5(1) states, “If the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so, it may conduct an investigation in relation to an application.” We're not yet at the stage here where it has to be determined if remedies are appropriate or not. The point is rather to determine if, from the way it was processed, the file needs to get to the investigation stage and if the commission should look into it further.
What the Barreau du Québec is proposing is to make the investigation mandatory if the commission has already concluded that it “has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so”. At this stage, the commission already has to do some kind of assessment and it still has the discretionary power to determine if an investigation is warranted. In our opinion, the commission shouldn't also have the discretionary power to determine if an investigation should be conducted or not.
Furthermore, having read several of the Criminal Conviction Review Group's investigation reports, I can tell you that some investigations are more detailed than others. So in our opinion, making investigations mandatory shouldn't be a significant burden on the commission. Some investigations will be more straightforward, and others will be more involved, but when there are reasonable grounds to believe that a miscarriage of justice may have occurred, we need to go forward.
4:40 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
I'm going to pause for one moment here. I do have a follow-up question.
Do we have bells?
4:40 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
I have no idea, but I'm seeing the lights too.
Why don't we continue? I'm sure we will find out.
If there's consensus, we can continue until it's time. If there isn't, then we will suspend. Let me know. I'm the chair, and I'm here to listen to the members.
4:40 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Okay.
I take your point about the compulsory nature of the investigation on reasonable grounds. My question is about the threshold. If there are reasonable grounds to believe that a miscarriage of justice likely occurred versus reasonable grounds to believe that a miscarriage of justice may have occurred, that's the distinction I'm trying to really ask for your opinion on and draw out from you. To me, “likely occurred” means 50% plus one, a balance of probability. Does that sound right? It's something like that. However, “may have occurred” can be quite remote in the eyes of some, or it could be a little bit more substantial. Do you get where I'm going with this question?
What I'm trying to get from you is your expertise on that very question.
4:45 p.m.
Representative of Barreau du Québec, Barreau du Québec
That's an important distinction indeed. That's actually one of the important aspects of Bill C‑40 compared to what we had before.
Currently, in order for a miscarriage of justice to be recognized and for a remedy to be ordered by the Minister of Justice, there must be a certain likelihood of miscarriage of justice. Earlier, we were talking about a threshold of 50% plus one, that is, a balance of probabilities.
In its current form, the bill actually seeks to lower the test to the level of a possibility. In the French version, proposed section 696.6 talks about cases where “une erreur judiciaire a pu être commise”, whereas in the English version, the word “may” is used. In a way, the French version talks of a reasonable possibility, which is a much lower test.
The reason the test was lowered is that it's not always easy to establish a miscarriage of justice occurred with a sufficient degree of probability. We often talk about cases that are so old that certain documents are difficult to trace, where witnesses can be hard to track down or have an imperfect recollection of events after all that time.
That explains the change somewhat.
4:45 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you very much.
We have Mr. Maloney, please, for six minutes.
4:45 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thank you, Chair.
First of all, for all the witnesses, let me just add my thanks, not only for being here today but for taking the time to prepare materials for us to review. In the case of Justice LaForme and Mr. Lockyer, I know you've done a lot of work on this leading up to the introduction of this legislation, and I thank you for that as well.
Justice LaForme, I'm going to start with you. I had some questions about what I think was going to be your last series of points. Since you didn't get a chance to make them, I will give you that opportunity first and then ask you some questions.
4:45 p.m.
As an Individual
Thank you.
I mentioned that the commissioners should not have these renewable terms. I think that's important.
The commission's budget, including compensation, should be tied to the judiciary. I mentioned that. That should be independent. I'm not saying that they should be the same as the judiciary or anything, but they should have the same independent process whereby they determine the budgets for commissioners and salaries and whatnot
I think the five-year parliamentary review should be independent of the commission's work. The commission should have a separate employer status. One of the problems with the status quo is the role of the civil service in advising the Minister of Justice. We advised against “interests of justice”. I don't think that should be a requirement, because as a judge I can tell you that “interests of justice” can mean many things or it can mean nothing. It's a term that I don't think assists us.
We recommend a proactive commission that could engage with systemic and disciplinary matters, as James Lockyer pointed out. We agree with that.
On Bill C-40, we recommend that, as in England, the commission should be able to have access to documents—and this is very important—even if the police, prosecutors and others claim privilege. We've been advised and our experience was that the police, etc. would claim privilege as often as they can. We say that the commission should be able to be the guardian of that privilege, and they should be the determining factor of what they get and what they don't get.
There are some features in the bill that we do like, as we said. We agree with that.
However, the most obvious is the status of the commissioners themselves and of the chief commissioner particularly. He's going to be a civil servant, first and foremost, and the independence of the commission is in doubt, I think, with that alone.
Those are my submissions.
4:50 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thank you, Justice LaForme.
I take it that when you bring into question the renewable seven-year term, you're not suggesting a longer term or a permanent position. You're suggesting a one-term appointment.
4:50 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay.
Is your concern that there would be political interference and people would be making decisions based on the potential...something that people making the appointment would take into account because of their conduct?
4:50 p.m.
As an Individual
Yes. I think people would be looking to their tenure and looking to renew their appointments, and I think that would be problematic.
4:50 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay.
On the five-year parliamentary review, you said to include an independent audit. Is that a qualitative review of the performance of the commissioners or is that the process itself?
4:50 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
Excuse me, Justice LaForme. Would you mind putting the mike between your nose and mouth?
4:50 p.m.
As an Individual
I personally think it could be both. I don't see any reason why they wouldn't or couldn't do both, but mostly I think it's qualitative.
Kent, do you have anything to add to that?
4:50 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Well, I don't share your concern about political interference with respect to the renewable term. I think there's benefit to having experience on this, as there is in somebody sitting on the bench, but—
4:50 p.m.
As an Individual
I should say that with that interference I don't mean that it's going to be some kind of personal incentive or anything because of that. I just think that people who have this position would work and decide on the basis of wanting to get their renewals, and I don't think that's necessarily a good thing.
4:50 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
I'm just struggling to find a connection between finding that there's a miscarriage of justice and getting your term renewed, but perhaps we can agree to disagree.
The other point you made was on the requirement for an adverse decision by the court of appeal. I take it that what you mean is that they should not have to exhaust the appeal process before they apply.
4:50 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay. Does this not put the commissioners somewhat in the position of a court, because you're then reviewing a trial judge's or a lower court's decision?
4:50 p.m.
As an Individual
Well, it's only to the extent that you would examine the situation and then turn it back over to the court for a decision.
4:50 p.m.
Liberal