Justice Committee on Nov. 7th, 2023

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

Coalition.

[Some hon. members]

Oh, oh!

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

In any event, this does have to change. This is unacceptable. I echo my colleagues' comments.

Mr. McLellan, am I correct in saying that the purview of the evidence you're prepared to give really only relates to compensation? Is that right?

[Dr. Myles Frederick McLellan]

That's correct.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

To be candid, a lot of my questions relate to the technical aspects of the bill, so I want to, perhaps, clarify one or two things with you.

When we're talking about miscarriage of justice and whether there's a remedy ordered, miscarriage of justice can take multiple different forms. What you view as a miscarriage and what someone else may view as a miscarriage are completely different. I'm thinking about.... For instance, DNA exonerates somebody. Clearly, that person was factually and, therefore, legally innocent. Then there might be another case where, perhaps, there was something else at play, but the case is not as clear-cut. Do you get where I'm going with this?

[Dr. Myles Frederick McLellan]

Absolutely, and the issue of factual innocence or actual innocence is a real problem in this area of the law. Article 14 of the International Covenant on Civil and Political Rights does not require factual innocence for compensation to be pursued. The FPT guidelines that Canada adopted in 1988 do, in fact, require factual innocence, so there's a dichotomy between what Canada has put in place and what the United Nations has asked it to put in place.

The recommendation you'll see in Justice LaForme and Justice Westmoreland-Traoré's report is that a statute be put in place with respect to compensation and that it not require factual innocence. In a liberal democratic society, that's probably the appropriate way to go. Factual innocence is not something that a trial court determines. There is no finding of innocence in court. You're guilty or not guilty, so there's no finding of innocence. To impose upon somebody, in order to qualify for the compensation, that they have to somehow prove something that has never been proven before in their case is a burden that is troublesome.

Steven Truscott could never have proven factual innocence and, as a function of that, never received the compensation that the public inquiry awarded him.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I see.

In your mind's eye, would your position be that anybody who has a remedy ordered under this prospective legislation would be entitled to compensation?

[Dr. Myles Frederick McLellan]

Yes, that would be the trigger.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Okay. Thank you.

I'll see if my colleague, Mr. Van Popta, has anything he wishes to add, because that's all I was going to ask you about.

[Dr. Myles Frederick McLellan]

Thank you very much.

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

Thank you for that.

In the absence of legislation around this, what would be the test or the determinative to calculate a quantum of a financial award? Is this civil law? What is it?

[Dr. Myles Frederick McLellan]

As I said before, all we really have are the federal, provincial and territorial guidelines of 1988. They have a cap of $100,000 in any award, and the guidelines also indicate that nobody other than the wrongly convicted person is entitled to recover that. For the most part, those guidelines are just that: guidelines. Courts and public inquiries have ignored them. They've awarded much larger awards than $100,000. In the case of David Milgaard, they awarded Joyce Milgaard compensation. It was the same thing with Steven Truscott: His wife was awarded money because, during the time he was on bail, she had to change her name and move away from her home and what have you.

The current system is unworkable. The only thing we have, apart from the FPT guidelines, is litigation. It's malicious prosecution, against the Crown, and proving malice is a very high threshold to get over. We have negligent investigation. Canada is the only common-law jurisdiction in the world where you can sue the police for negligence. This has been in place since 2007 and the Supreme Court of Canada decision in Hill v. Hamilton-Wentworth. What happens there, of course, is that you have to be able to bring the action to begin with, have the funds to hire and retain counsel to do so, and sue the police. That's a relatively promising way to pursue it because, in the 200 cases that have been heard and adjudicated since 2007, 28% of them have been successful for the plaintiffs. In fact, there has been a great deal of liability placed at the feet of the police, which is often where the errors leading to a wrongful conviction start.

You also have the opportunity for charter damages if, in fact, there's been a charter breach leading to a wrongful conviction. There are very few systemic causes of wrongful convictions that don't have a charter breach at the base of them. Again, it requires retaining counsel and issuing action. You're now suing the state. The state has unlimited resources to defend its position, while plaintiffs, particularly those who were wrongfully convicted and recently released from prison, have next to nil in resources, so it's not a very appropriate remedy.

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

Madam Chair, how much time do I have left?

[The Chair, Liberal, Lena Metlege Diab]

You have 30 seconds.

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

I'd like to follow up on the question from my colleague Mr. Caputo. You said that if a remedy is granted under this legislation, there should be financial payment, but the remedy might be to order a new trial. I'm assuming that the trial has to be successful.

[Dr. Myles Frederick McLellan]

Absolutely. At the end of the day, somebody's going to have to be exonerated.

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

Okay. That's good.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Madame Lattanzio, it's over to you.

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

Thank you, Madam Chair.

Thank you for being with us, Dr. McLellan.

I have a few questions with regard to justice. According to you, what impacts do wrongful convictions have on the public trust in the Canadian justice system, and why is it so crucial to be able to rebuild that trust?

[Dr. Myles Frederick McLellan]

It's elementary. Everybody can appreciate that if something happens to you and you're unable, for a relatively modest period of time—three months or six months—to go to work, you perhaps can't make a mortgage payment, can't pay rent and can't make payments on your truck. In a relatively modest period of time, you're going to lose everything. If you're losing it and you're wrongly losing it because you shouldn't have been charged in the first place, then Canadian society recognizes that as something that needs to be corrected.

Angus Reid did a poll in 1995 that basically found—and Justice LaForme recited this in his report—that 90% of Canadians basically support compensation for the victims of wrongful convictions. That was a poll duly taken and recorded. That's not a surprise to me. Human beings feel for each other. We know that when people are harmed, there should be some remedy to take care of that harm.

After a wrongful conviction, the harm that needs to be taken care of first is to get immediate relief to get into housing, to get some food on the table and to get established, but over the long term those years that have been lost as a function of wrongful imprisonment should be compensated for so somebody can truly rebuild the life they have lost.

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

The bill proposes that the committee be composed of commissioners made up of both lawyers and non-lawyers. According to you, is adding this diversity of personal and professional background an enhancement for the commission? Do you see it as a positive idea or suggestion?

[Dr. Myles Frederick McLellan]

Sure. As I said earlier, we endorse every recommendation as made, including ensuring that among members of the commission there are representations from indigenous persons and Black persons, so we totally understand that. It's an excellent recommendation, and we endorse it.

The only recommendation we don't endorse is 51. Recommendation 51 is at the very end of the report. It basically says—and I was part of the consultation with Justice LaForme so we had words about this—that there shouldn't be compensation in the bill. That being said, the federal government should, in fact, put legislation in place for compensation along the model that was proposed to him during the hearings.

What we're saying, and what I'm saying, is that it takes just one more provision in the bill to create a statutory solution for those who are wrongly convicted or subject to miscarriages of justice. Add one more section. Put a statute in place that allows for it. As Professor Leonetti referenced in an article on the inspirational view that Justice LaForme's committee has regarding wrongful convictions and miscarriages of justice, aim high, but aim higher. Be the first commission of this nature in the world to include compensation as part of the relief granted. It will be applauded internationally.

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

The question, Dr. McLellan, was more about the composition of this committee including lawyers and non-lawyers. According to you, having non-lawyers would be beneficial. In what way?

[Dr. Myles Frederick McLellan]

Having lay people involved in the process brings humanity into the process. Obviously, legal minds are important, but having lay people there.... The committee also recommends that a criminal conviction not be a bar to sitting on the commission.

I think it's absolutely fine to have somebody with a conviction sitting on the commission—somebody who knows the ins and outs of what prison is all about, who knows what a sentence can do to somebody's life. It's a sentence you carry from the day it's imposed to the day you die, so people who have that kind of personal experience provide a very worthwhile contribution to the commission—in addition, of course, to that of people who are lawyers.

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

Unlike under the current process, the commission would be able to do more proactive outreach to help applicants submit their cases. How would this change the number of applications in the application pool?