Justice Committee on Nov. 7th, 2023

[Nicholas St-Jacques]

Indeed, in our brief, we did not take a position on this point specifically.

That said, as Mr. Lockyer mentioned earlier, as well as other speakers, I believe, there could be an openness to the idea that the commission could conduct a review in certain cases. Should this be done automatically? Perhaps not, precisely so as not to duplicate appeal procedures. However, granting this power to the commission would indeed help avoid injustices.

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

I have barely a few seconds left.

If we eliminated this requirement, so that people who think a miscarriage of justice has occurred could request a review, and those who had to appeal instead used that remedy, would that be an interesting and appropriate solution?

[Nicholas St-Jacques]

This could be a solution, but there would need to be more discussion about how it would be worded.

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

It would take more than two minutes.

[Nicholas St-Jacques]

Yes.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

For the final round, we have Mr. Garrison.

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

Thank you very much, Madam Chair.

Mr. Lockyer, I will come back to you. I was very interested in your suggestion of changing the appeal court's jurisdiction as a preventative measure so that fewer cases end up going through this whole process and end up at the commission. I have some concerns about whether that's within the scope of the bill in front of us, but can you say a bit more about how extensive a change that would be?

[James Lockyer]

Well, in some jurisdictions, appeal courts have the power to set aside convictions when they have, as they put it, “a sense of unease” about the conviction. Our courts of appeal do not give themselves that power, and only legislative change would do that. It's something that we advocated for to Minister Lametti when he was considering this legislation. It's something that Justice LaForme recommended in his recommendations to the minister.

It may be something for another day. I want to get this commission going, and obviously you're going to have to consult appeal courts if you're going to change their jurisdiction, and that hasn't been done.

Could I just add one thing about the victims of the crimes for which someone has been wrongly convicted? There are two important things there. One is that if a person has been wrongly convicted of the crime, that means the right person hasn't, so the victim of the crime has not gotten justice.

Second, in many of our cases, the victims of the crimes have actually showed up at the proceedings. Just in July of this year, in appearing before the chief justice in the Court of King's Bench of Manitoba, we had two indigenous men, Brian Anderson and Allan Woodhouse, acquitted of a 50-year-old murder that neither of them had committed. That happened just three months ago. The family of the deceased, of the man who was murdered, was in court, and it was marvellous to see them in the same place and with the two men who, for 50 years, have been wrongly convicted of their father's crime or their uncle's crime, depending upon which relative we're talking about.

Wrongful convictions have a scope that goes beyond the individuals themselves who have been wrongly convicted. It's important as well for the victims of the original crime.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Lockyer.

With those concluding remarks, we really want to thank all witnesses for being patient with us this afternoon. Thank you for appearing by video conference or in person.

As I said, if there is anything else you think we should have, please send it in.

Let me suspend for one minute so we can organize our next panel.

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

I am going to call the meeting to order.

We have Myles Frederick McLellan in the room. Welcome.

We were unable to have Ms. Canoe tested appropriately for the sound, so apologies for that.

We do have Dunia Nur, president and chief executive officer of the African Canadian Civic Engagement Council, by video conference.

I am going to start, for up to five minutes, with Mr. McLellan from the Canadian Criminal Justice Association.

Welcome.

[Dr. Myles Frederick McLellan, Chair, Policy Review Committee, Canadian Criminal Justice Association]

Thank you, Madam Chair and members of the committee. It's truly an honour and a privilege to be here with you.

Our position deals with compensation for wrongful convictions.

Before we get into that, our first position is quite clear. We absolutely endorse the recommendations in the report by Justice LaForme and Justice Westmoreland-Traoré, with the exception of recommendation 51. We'll talk about that shortly.

Having said that, basically we're going to deal with compensation. The first thing I'm going to do is give you a quote from the late David Milgaard: “Fighting the Canadian government for compensation long after being released from prison after exoneration feels like being in prison all over again”.

Our position is clear. As important and fundamental as it is to get those who are wrongly convicted or victims of the scourges of justice out of prison, it is also incredibly important to make arrangements for compensation for those persons so that they can in fact rebuild a life.

The centrepiece of compensation in most nations around the world is a function of the United Nations international obligation in that regard. Following the Universal Declaration of Human Rights in 1948, two multilateral treaties were entered into in 1966 by all nations, including Canada and its provinces and territories in 1976, called the International Covenant on Civil and Political Rights. What article 14.6 said, for all those nations that acceded to it, including Canada, was that they had an obligation to put a compensation scheme into place for miscarriages of justice.

Most countries in the world have in fact done that. Canada really has not. We tried to do that, and we still have in place federal, provincial and territorial guidelines, the part that the jurisdictions can enter into, which is ostensibly following the tenet of article 14.6, but it really doesn't. It doesn't follow what in fact article article 14.6 asks for.

These guidelines have provided large amounts of compensation over the years: $10 million to David Milgaard and $6 million to Steven Truscott, etc. Apart from those very large awards, there has only been, on average, one award per year since 1988. It really doesn't provide access for those who, for the most part, are in that field of wrongful convictions and miscarriages of justice.

In fact, in 2006, Michel Dumont, who is widely recognized as one of Canada's wrongly convicted, went to the United Nations, using the optional protocol to get the United Nations Human Rights Committee to force Canada to abide by its international rights obligation. The committee agreed with him. The committee, in fact, did find that Canada did not subscribe and did not live up to the terms of the covenant. It issued a directive to Canada to make arrangements for compensation for Mr. Dumont. Canada quite simply ignored it and refused to do so.

Having said that, the other things that are available for compensation are items that deal with litigation, for the most part, such as malicious prosecution, negligent investigation, charter damages and what have you. The prospect for those who are released from prison of having the funds available to pursue litigation is negligible and, for the most part, most of those remedies are highly ineffectual.

The relatively broad accepted method of approaching this issue is by way of statute. What we're asking the committee to do with respect to Bill C-40 is to add a provision in this statute allowing for compensation based upon model statutes that have been prepared in that regard.

We have two commonwealth jurisdictions that have statutes. We have the United Kingdom. In 1988, it enacted the Criminal Justice Act, which very much aligned with article 14.6 of the international covenant. In fact, it was a very strong proponent of compensation until it was amended in 2014. The other jurisdiction is the United States. There are 38 jurisdictions that have statutory provisions for compensation. They vary widely from state to state, but in fact they do provide those seeking compensation with an accessible and transparent opportunity to rebuild a life.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Ms. Dunia Nur, you have five minutes.

Please proceed.

[Dunia Nur, President and Chief Executive Officer, African Canadian Civic Engagement Council]

Thank you so much for having me here. My name is Dunia Nur, and I serve as the president of the African Canadian Civic Engagement Council, ACCEC.

I would like to begin by acknowledging that I am joining you virtually from Treaty 6 territory. I recognize and hold deep respect for the histories, languages, ceremonies and cultures of the first nations, Métis and Inuit people who have called this territory home since time immemorial.

As a person of African descent, I think treaty acknowledgement is of utmost importance, as it serves as a reminder of the shared painful histories of oppression that have left both of our communities with enduring scars. It is important to acknowledge that the system of apartheid established through the process of colonization on the continent of Africa drew its model from the oppression and colonization of the indigenous people of Turtle Island. This was tragically replicated in the enslavement and colonization of African indigenous populations in Africa.

Our mandate is to protect and promote the dignity and human rights of people of African descent, and we fulfill this mandate through five primary areas—youth development, gender-centred access to justice—

[The Chair, Liberal, Lena Metlege Diab]

Ms. Nur, hold on a minute, please.

Do you have something to say to me, Mr. Fortin?

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

Madam Chair, the interpretation can't be done because the sound quality isn't good enough. That's what we just heard on the French interpretation channel.

Moreover, I notice that the witness speaks so quickly that, even if the sound quality were good, I imagine this would be a problem.

Be that as it may, the sound quality is not good enough for adequate interpretation. I think you should consult the interpreters about this, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

I'm going to wait a second.

If the interpreters are saying they are unable to interpret, there's really not much I can do as the chair.

I'm going to ask the clerk to find out.

[Dunia Nur]

I apologize. Is it because I'm speaking too fast? I'm just trying to keep up the time.

[The Chair, Liberal, Lena Metlege Diab]

We are told the audio quality is not good for the interpreters. There's very little I can do. My apologies for that.

If you wouldn't mind sending us what you have written down, we would love to have it at the committee.

There's not much I can do about it. What I can do is start with questioning.

Yes, Mr. Garrison.

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

Thank you, Madam Chair.

I do think we need to make it clear to the witness today that we have had this problem repeatedly. It is not a problem with the witness. They quite often feel responsible when, clearly, the problem is with the technical provisions on the House of Commons end. I hope she was there long enough to hear this, and also Ms. Big Canoe.

We try to make arrangements so that they can appear again when we solve this problem, rather than just dismissing them by saying they should submit things in writing. I think it's very important that the witnesses be able to appear.

My last point in the point of order is that this has been going on for a year and a half, and it is becoming increasingly frequent. It is not acceptable. The technical problem must be solved. It not only affects the privileges of members, but it affects the ability of witnesses to give us much-needed testimony. We can't just keep ignoring this and keep suggesting that witnesses or members are doing something wrong, when it happens to a wide variety of people in many different circumstances.

As I've said to you, Madam Chair, it happened when I was using Wi-Fi, and it happened when I was using a connected House of Commons computer. It is not something the witnesses or members are doing. It is a fault either in the software or in the connectivity between the Zoom software and the interpretation booth, and it must be solved. We can't just keep proceeding like this.

I really appeal to the chair that perhaps we schedule no more meetings until this problem is solved.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Moore, I see you have your hand up.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I won't belabour the point, because Mr. Garrison just said it so well, but it's extremely embarrassing to have.... I think there have been more witnesses unable to take part, and we've invited them to take part in this meeting. We've provided them with the equipment to do so, and then, when it comes time for the meeting, they're unable to take part. There has to be a better way than doing this in real time, potentially embarrassing the witnesses and, in my opinion, embarrassing ourselves.

I don't want to miss the opportunity to say that I agree100% with what Mr. Garrison has said. Rather than waiting until the next meeting, I think we need to put our heads together in a subcommittee meeting and find out why this is happening and how we make it better. Do we have to have an appeal to the House leadership? Is it a resource issue? We can't continue on like this.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

I agree with you all, and I think every member here agrees.

Why don't we go to questioning? We still have Mr. McLellan with us.

I'm going to start with Mr. Caputo for six minutes.

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

Thank you, Madam Chair.

I don't intend to grill Mr. McLellan for six minutes.

[The Chair, Liberal, Lena Metlege Diab]

Take however long you need.

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

I echo those comments.

When the NDP and the Conservative Party are ad idem, you know that there's—