Justice Committee on Nov. 7th, 2023

[The Chair, Liberal, Lena Metlege Diab]

Good afternoon everyone.

Welcome. Apologies to everyone, but this is kind of what happens in the House of Commons and Parliament. We are commencing late.

All the witnesses who will be speaking have been tested. They all know who they are.

Let me begin by calling the meeting to order. Welcome to meeting number 83 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation on miscarriage of justice reviews.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely using the Zoom application.

I want to make a few comments for the benefit of witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike. Please mute yourself when you are not speaking.

For interpretation, for those on Zoom, you have the choice at the bottom of your screen of floor, English or French. Please make sure that you have it now. For those in the room, you can use the earpiece and select the desired channel.

Just as a reminder, all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as well as we can. We appreciate your patience and understanding in this regard.

I'd now like to welcome the witnesses who will be with us for the first hour of the meeting. Actually, two one-hour periods were planned, but I think that all the witnesses from both groups are here right now.

We have a suggestion that perhaps we combine the witnesses. If it works, we can. If not, let me just proceed with the way it is.

We have, in person, two representatives from the Barreau du Québec, Mr. Nicolas Le Grand Alary, a lawyer for the Secretariat of the Order and Legal Affairs, and Mr. Nicholas St‑Jacques.

We also have, in person, Mr. James Lockyer, counsel and board member at Innocence Canada.

On Zoom, we have the Honourable Harry S. LaForme and Professor Kent Roach, who is from the faculty of law at the University of Toronto. They are both appearing by video conference. Both of them will share the comments together, as will the groups that are in front of us.

Maybe we'll start with the witnesses we have, because not everyone is here.

It looks like we have a few hands up.

Mr. Fortin, the floor is yours.

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

Hello, Madam Chair. Thank you for introducing the witnesses.

Would it be possible for you to confirm that successful tests were done for those who are joining us through Zoom?

[The Chair, Liberal, Lena Metlege Diab]

We've had an hour to run these tests, so my answer is yes.

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

Okay, but were they successful? I only need confirmation from you. Otherwise, I'll ask for a suspension. If you tell me they were successful, however, then it's fine.

[The Chair, Liberal, Lena Metlege Diab]

Yes, they were successful.

We're going to try Mr. Roach again.

If it works, it works. If not, there's obviously nothing I can do about it as the chair. The rest were tested and were okay.

We have up to five minutes for the opening remarks. After that, we will begin with questions from the members.

Yes, Mr. Caputo.

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

Thank you, Madam Chair.

I know that we spoke earlier about this, but I think we should address at the outset what our timelines are. My sense is that this is an issue.

Obviously, we were delayed by an hour due to votes. I understand that the committee normally ends at 5:30 p.m. Given that we're on record now, I would like to hear the chair's position on when our end time will be.

[The Chair, Liberal, Lena Metlege Diab]

We have resources for two hours. We started at 4:19 p.m., which puts us at 6:19 p.m.

However, if it is the wish of the committee and there's a motion otherwise, I have to entertain that motion.

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

Okay.

Just to be clear, from your position as chair, what time would we break for the next panel?

[The Chair, Liberal, Lena Metlege Diab]

I will do my best to do the timing.

How about we start and ensure that we give full time to the witnesses who are here? They're really anxious to start. Then we'll see how it goes.

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

Okay, I'm mindful of that. I want to get going as well.

[The Chair, Liberal, Lena Metlege Diab]

I know you do.

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

I don't want to jump in and then ask what we are doing about the rest of the witnesses or whatever. I'm not trying to be obstreperous. I just want to know what the plan is for the next 40 minutes and what's happening.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Caputo, trust me for a little bit, and we'll see what we can do. How's that?

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

Okay.

[The Chair, Liberal, Lena Metlege Diab]

We'll begin the first five minutes with the Honourable Harry LaForme.

Mr. LaForme, you have up to five minutes, please.

[Harry S. LaForme, As an Individual]

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—

[The Chair, Liberal, Lena Metlege Diab]

You have 30 seconds.

I neglected to say that in the beginning. I won't take this out of your time. I will raise this card for 30 seconds, and this one when the time is up, so I can be as cautious as possible with people's time.

Thank you so much. You have 30 seconds left.

[Harry S. LaForme]

Great. I'll stop here, then, and I'll deal with the rest of it in questions.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

That's perfect.

Thank you very much.

We have up to five minutes for the Barreau du Québec.

[Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Hello, my name is Nicolas Le Grand Alary, I'm a lawyer with the Barreau du Québec's Secretariat of the Order and Legal Affairs. I'm joined by Nicholas St‑Jacques, who represents the Barreau du Québec.

Thank you for inviting us to testify before the committee on Bill C‑40.

First off, the Barreau du Québec wants to emphasize that it supports the bill's objective of replacing the current miscarriage of justice review process by establishing an independent body. However, based on its experience in the area of criminal justice administration, the Barreau du Québec has certain observations to make to improve it. Primarily, we want the new processes introduced by the bill to achieve their objective of correcting miscarriages of justice in an effective and efficient manner.

The Barreau du Québec therefore welcomes the creation of the independent miscarriage of justice review commission. We have always insisted on the creation of an independent body to analyze cases and gather information in order to increase the real and perceived independence of the post-conviction review.

I'd now like to move on to the particulars.

The bill provides that the commission must provide the applicant with an update concerning the status of their application on a regular basis. The commission may notify an applicant or their representative or provide them with information.

Applicants who apply for judicial review on the basis of miscarriage of justice are often in a vulnerable situation and may be incarcerated. Timely access to notices and information from the commission is important. In addition, applicants may require further context or an explanation of these documents. We are of the opinion that the commission's communications shouldn't be transmitted solely to the applicants, in order to avoid causing them additional harm. This approach would address an inconsistency between the English and French versions of the bill.

In addition, the bill 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.” The current wording says that the commission may do so, but it doesn't require it to do so. We're proposing an amendment to the section that the bill seeks to add to the criminal code specifying that the commission “must” conduct an investigation if it has reasonable grounds to believe that a miscarriage of justice may have occurred. This would allow the bill to meet its objective of facilitating and accelerating case reviews.

The bill also provides that when the commission provides notice that no investigation will be conducted, the notice must also specify the reasonable time within which the applicant and the attorney general may provide additional information. In the interest of procedural fairness, we recommend that the notices include the reasons why the commission decided not to investigate. Applicants should be aware of the deficiencies in their application for review and have the opportunity to rectify the situation.

I'll give the floor to Mr. St‑Jacques for further comments.

[Nicholas St-Jacques, Representative of Barreau du Québec, Barreau du Québec]

On the interests of justice test, the bill provides that, at the end of the application review process, the commission grants a remedy when it “has reasonable grounds to conclude that a miscarriage of justice may have occurred and considers that it is in the interests of justice to do so”. The Barreau du Québec questions the relevance of including the interest of justice test to justify granting a remedy.

We are concerned that this test may disadvantage some applicants, including indigenous, Black, and other marginalized applicants. At the same time, applicants who have been convicted of serious crimes or who may appear dangerous to the public may not get justice even if a miscarriage of justice has occurred.

The Barreau du Québec considers that the interest of justice test should not be invoked when the commission concludes that a miscarriage of justice may have occurred. Rather, it should be an additional ground used to benefit applicants when the commission cannot conclude that a miscarriage of justice may have occurred.

You can find in our brief some of the other observations we made, such as how applications under the current regime can be forwarded to the commission and what criteria can be used for those applications. We also have recommendations concerning the knowledge of official languages that should be possessed by the commissioners who will be appointed to the commission.

Finally, the Barreau du Québec would like to reiterate the importance of implementing the new processes set out in the bill in an effective and efficient manner, so that they are successful. This will help maintain, if not enhance, public confidence in the miscarriage of justice review process and the justice system.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Mr. Lockyer, you have up to five minutes, please.

[James Lockyer, Board Member, Counsel, Innocence Canada]

Thank you, Madam Chair and members of the committee.

I was last here on October 3, 2001, with the late Joyce Milgaard, when the committee was considering the enactment of the current sections of the Criminal Code that govern ministerial reviews of wrongful conviction claims. I looked up what we said on that occasion. Joyce Milgaard began her presentation by saying that her heart sank when she saw what the proposals were. Her heart sank because we so badly need an independent commission, a commission independent of the minister and the ministerial process.

Finally, today, we are here to talk about legislating such a commission. The late Joyce and David Milgaard would be proud that the legislation is named after them.

Addressing wrongful convictions has always seemed to Innocence Canada to be a non-partisan issue. Peter MacKay has attended many of our functions over the years. Daniel Turp went on a delegation with Innocence Canada, including Rubin “Hurricane” Carter, to try to save the life of a Canadian on death row in Texas many years ago. Elizabeth May has always been a supporter. Irwin Cotler and David Lametti, in particular, have always been supporters of Innocence Canada, and Jack Layton was always with us as well. We believe the present minister, Minister Virani, is too.

We've engaged in 30 years of advocacy, and for us, this legislation is welcome. It presents a sea change for our criminal justice system. It provides a new fail-safe mechanism for those who have been wrongly convicted.

It's hard to prioritize proposals we have for what we think would be improvements to the legislation, but I'll just list four.

First of all, regarding the composition of the commission, there aren't enough commissioners. The present criminal convictions review group, which does the minister's work on wrongful conviction claims, consists of six staff lawyers, one assisting lawyer and three outside, on-contract lawyers. You can see immediately that the proposed number of commissioners—one, the chief, plus four to eight more—is simply not going to be enough, because the applications under the new legislation are going to increase significantly beyond the present ministerial review applications.

Second, we believe that sentences should be brought into the legislation. We think that's particularly important for indigenous people. All commissions in other jurisdictions have always included sentences within the scope of the powers of the commission.

Third, we believe the commission should have the explicit power in the legislation to suggest systemic change arising out of the individual cases they review. The commissioners will be in a fabulous position, we believe, to recommend systemic changes that can avoid wrongful convictions in the future, because we want to do both: We want to find wrongful convictions that have already occurred, and we want to prevent wrongful convictions insofar as we can in the future.

Finally, we believe that appellate courts across the country have not served the role they should to find wrongful convictions at an early date when appeals are heard. We believe that appeal courts should have their jurisdiction extended to require them to consider whether or not convictions are unsafe when they're brought before them on appeal. Presently, appeal courts do not do that. They are courts of process, not courts that properly consider issues of guilt or innocence.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

That is much appreciated. Thank you very much.

We're going to be concise, and I am going to go to questions, allowing six minutes per party.

I'm going to start with Mr. Caputo, please.

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

Thank you, Madam Chair.

Thank you all for being here. There's a lot to chew on here, so I'm not sure how much I'm going to get through because you all have interesting things to say.

I will start by saying that nobody wants to see a wrongful conviction. I have sat on both sides of the aisle, as a prosecutor and as a defence lawyer. One thing that still haunts me to this day, as I think I mentioned in the last meeting, was what I thought was a wrongful conviction, even on a relatively minor matter. I think we're all ad idem. The question is how we get the legislation right, so please take my comments as coming from a place of inquiry.

One of the main things...and perhaps, Mr. Le Grand Alary, I'm going to direct my first question to you. You made the distinction between “may do an investigation” and “must do an investigation”. When we're looking at this issue, it's about the likelihood of a miscarriage of justice. The word “may” in law, as we know, is quite permissive. Where I'm going with this is that something “may” have been a miscarriage of justice.

In your eyes, sir, where is that threshold? Sometimes we have “likely was a miscarriage of justice”, “could have been”, “may have been”. Can you explore that with the committee a little bit?