Justice Committee on Nov. 7th, 2023

[Harry S. LaForme]

Yes, but we know the court of appeal makes mistakes.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Exactly, but I think that you, having sat as a trial judge and a member of the court of appeal, would have faith in the system, recognizing that there are potential problems, which is why this bill is being discussed in the first place. I would think you would agree that it would be necessary to exhaust the appeal.

[Harry S. LaForme]

If I can, because this is important—

[The Chair, Liberal, Lena Metlege Diab]

The time is up, so perhaps another questioner can get to you.

If I don't do this, I won't be able to get to every party to ask a question.

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

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

Thank you, Madam Chair.

I thank all the witnesses for being with us today.

I'd like the representatives from the Barreau du Québec to elaborate on certain questions.

First, I understand that you agree on expanding the cases where there can be a request for a miscarriage of justice review. Instead of only cases where there probably was a miscarriage of justice, the bill expands the possibility of requesting a review to those cases where a miscarriage of justice may have occurred.

You would also like the wording to say that the commission “must”, rather than “may”, conduct an investigation at that point.

Essentially, I agree with that, but I do wonder: Would that not weigh down the process? It seems to me that there would be a lot more files than there currently are.

I'd like to hear your opinion on that.

[Nicolas Le Grand Alary]

Indeed, there very well may be an increase in the number of files. I'll let Mr. St‑Jacques add to my answer.

The underlying message in our remarks and in our brief is that this commission needs to have the necessary resources to do its job. It will definitely need to have an adequate budget and the necessary resources to see its investigations through. As Mr. St‑Jacques has said, some investigations can be more straightforward than others, depending on the case.

I'll let Mr. St‑Jacques give a supplemental response.

[Nicholas St-Jacques]

As I mentioned earlier, the goal is not for investigations to be mandatory in all cases. Still, the commission must have reasonable grounds to believe that a miscarriage of justice may have occurred, so it must have received a minimum amount of information to enable it to conduct an investigation.

As soon as there are reasonable grounds to believe that a miscarriage of justice may have occurred, I think the logic of the current reform should lead to a mandatory investigation. We want to prevent certain cases of miscarriage of justice from going unreported and uncorrected. As long as there are reasonable grounds, I think compulsory investigation goes without saying.

As far as making the process more cumbersome by using this commission, I don't think it will be very significant. As I mentioned earlier, there are cases where investigations are very straightforward. Having read investigation reports published under the current process, I can say that there are cases where investigations are more complex.

I think this answers your question.

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

Mr. Le Grand Alary, you mentioned that the necessary resources and budgets need to be in place. Currently, the bill provides for the appointment of between five and nine commissioners. Does this seem sufficient to you?

Shouldn't provision be made for appointing more commissioners and having two chief commissioners who can study files simultaneously?

[Nicolas Le Grand Alary]

As you saw in our brief, we haven't taken a direct position on the number of commissioners. I know we repeat this a lot, but, what we want is for the proposed commission to be effective and efficient.

There could certainly be more commissioners. We've also raised the idea of having regional offices, for example, so that there's proximity to applicants. So various measures could be put in place, including the appointment of more commissioners, indeed.

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

With regard to time frames, we're told that the current review process can take anywhere from 20 months to six years, which seems enormous to me. Yet the bill does not set a time limit for rendering a decision.

Do you think it would be appropriate to make amendments to the bill so that it provides for certain deadlines that will necessarily have to be met?

[Nicolas Le Grand Alary]

Yes. In fact, we highlight this issue in our brief, particularly in our comments on the notices indicating that no investigation will be carried out. Several provisions that the bill proposes to add to the Criminal Code, notably clause 696.5, indicate that the commission must provide a response within a reasonable time or that the parties must be given a reasonable time to respond. These kinds of time limits should indeed be quantified or more clearly defined.

That said, we don't have any specific deadlines to suggest. Mr. St-Jacques will certainly be able to add details about the possible length of these deadlines.

In fact, it's a good line of thought.

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

I'll turn instead to Mr. Lockyer, to whom I'd like to ask similar questions.

Since we would be moving from a threshold of probability to a threshold of possibility of a miscarriage of justice, more cases could be submitted to the eventual commission. In addition, the Barreau du Québec is asking that the commission be obliged to investigate. All this could, in my opinion, create a backlog of requests.

Do you think this will actually be the case or not? If so, how can we guard against such a situation?

[James Lockyer]

There will undoubtedly be a substantial number of applications when this legislation comes into force. If you look at the experience of other jurisdictions, the number of applications has soared at the outset, and that's not surprising.

In terms of the new test, the lesser test, the “may” instead of the higher tests that we have to deal with now, the probability test—

[The Chair, Liberal, Lena Metlege Diab]

Mr. Lockyer, to be fair to everybody, I'm going to have to stop you.

I will ask Mr. Garrison to start his six minutes, and it's up to him whether he would like to have you respond to that question or ask a different question.

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

Thank you, Madam Chair.

Please continue.

[James Lockyer]

I don't think the lower standard will increase the number of applications. What it will do is increase the number of successful applications. That can only be a good thing, in my view. If someone may have been the victim of a wrongful conviction, they deserve a remedy.

I think it's important to remember that the remedy they're going to get is not a final remedy. It's only a remedy of a new trial ordered by the commission or a new appeal ordered by the commission to be heard in the provincial appeal court.

The “may” standard is something that we strongly endorse at Innocence Canada. In our experience—and we have considerable experience of many individual applications, more than 40—we believe that the high standard has impeded some wrongful conviction cases from getting back before the courts.

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

Thank you, Mr. Lockyer.

I would have started by thanking all the witnesses for being here today. All of you have done important work on this topic, and some have done decades of work. We appreciate the expertise.

Our processes are always a bit arcane here at the House of Commons, and today they are particularly disrupted.

I want to go back to Justice LaForme for one second. You were talking about the requirement that there be an adverse decision by the court of appeal being lifted or changed. We haven't received your brief in translation yet, so can you tell me more about what you were suggesting there?

[Harry S. LaForme]

What I'm suggesting is.... If you recall, one doesn't have to think too hard about the expert witnesses who gave rise to people pleading guilty to offences they never committed. There were a lot of them. That happens very often. A court of appeal would never touch those cases. They would simply go to prison without appeal. Those are the cases that we think about. I think there would be a lot of those cases.

In fact, I think the vast majority of cases would be that way. Consequently, if you're relying on a court of appeal to give a decision on it, you're going to miss out on the vast majority of cases that are entitled to it.

[Prof. Kent Roach, Professor, Faculty of Law, University of Toronto, As an Individual]

If I could add just briefly to that, Mr. Garrison, only 23 of the 87 cases that are on the Canadian registry of wrongful convictions have gone through the minister. As Justice LaForme said, the eight victims of Charles Smith—largely indigenous, largely young women, largely racialized—couldn't even apply to the commission.

The English commission is able to hear cases without a decision from the court of appeal in exceptional circumstances, and we see no reason why we should have a more restrictive jurisdiction for our commission.

Thank you.

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

Thank you, Professor Roach.

Mr. Lockyer, in bringing sentences within the scope of the commission, can you talk a bit more about the importance of doing so and how that would be done in the legislation?

[James Lockyer]

First of all, we would be the only commission that doesn't allow sentence applications.

If you look at the stats of the various commissions—the English and Scottish commissions in particular, because they've been around for more than 25 years now—you will see that approximately a sixth of their references are in sentence cases. For example, the English commission, in the 25 years of its existence, has referred 834 cases, of which about 85 were sentences.

As I pointed out in the Innocence Canada brief, appeal courts are very reluctant to interfere with sentences on sentence appeals. They defer again and again to the trial judge. This means that the appeal process for sentences is pretty well broken. There really is very little chance of winning an appeal when your only appeal is one from sentence.

That leaves an opening for the commission, because someone sentenced to a lengthy period of imprisonment, shall we say, may well have improved his or her life, their status in the world or their status in life during the time of their incarceration, and it's only right that they should have an opportunity to go somewhere to ask that their sentence be reconsidered. That's how the process is used in the other jurisdictions, and I think it would be a very helpful process here, particularly for those who tend to get the longer sentences: indigenous and Black people. As we know, their numbers are grossly disproportionate in our jails.

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

If we added sentences, I guess through amending the application process, would we also, then, be amending the remedies available to the commission? Would it require us to say that the commission actually can make a recommendation on sentencing? I don't believe that's in the scope of the bill.

[James Lockyer]

Well, at the moment, the commission has the ability to quash convictions or refer to an appeal court. If sentences were introduced, you could give the commission the power to vary sentences and/or refer the sentence to an appeal court. You'd still have those same options available to you.

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

It's not currently in this legislation.

[James Lockyer]

No, it's not, because sentences are not included within the jurisdiction of the commission. They can't look at sentence applications.