Justice Committee on Nov. 23rd, 2023

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

I'd like to issue two reminders.

Before I do that, let me read the standard procedure.

Welcome to meeting number 84 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.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely by using the Zoom application.

I can confirm that all tests were performed for witnesses joining us online.

I would like to make a few comments for the benefit of the witnesses and members who are online.

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.

I do want to let you know that I have two cards here. This one says “30 seconds” and this one says “time is up”. I will be as discreet as possible, but in order to follow the timing requirements, I will interrupt witnesses or members if I need to. 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 best we can. We appreciate your patience and understanding in this regard.

Last, please let the operators open and close your microphones. That's a new procedure. I think they must have had some issues for other committees, although certainly not this one. With many microphones on, the resulting return of sound could hurt our interpreters.

The tests have been successfully performed.

Before we begin the first hour, I'd like to discuss the following points.

I have just two housekeeping items.

First, I'm requesting that we adopt a motion that I will be asking somebody to move. The motion is on the deadline on amendments for Bill C-321, as follows:

That, in relation to the Clause-by-Clause study of Bill C-321, on Thursday, November 30, 2023, the deadline to submit amendments be Tuesday, November 28, 2023, at noon.

Can I please have someone move that motion?

The date is November 28th and the meeting will be held at noon, because the clause‑by‑clause study is November 30. We've already confirmed the dates and they're in the calendar.

I've also been asked to point out a couple of things on that.

I would like to insist on reminding members that all amendments and subamendments on Bill C-321 must be submitted in writing and sent to the committee clerk. Please do not send drafting instructions to the legislative clerks, as they are not the ones who drafts amendments. They must be sent to the legislative counsel.

I'm now looking for somebody to move what I'm asking to be moved.

Madame Brière, thank you.

Does anyone have any objection to that?

Okay. It is so moved.

(Motion agreed to)

The next item is one that you would have received by email earlier today from Mr. Clerk. There are two budgetary items, one on Bill C-321 and one on Bill C-40.

I am requesting that someone move that the proposed budget in the amount of $16,500 for the study of Bill C-321 and the proposed budget in the amount of $19,700 for the study of Bill C-40 be adopted.

Thank you so much, Mr. Moore.

Are there any objections?

(Motion agreed to)

Thank you.

We will now commence with our first study on Bill C-321.

Today, we are welcoming—

I'm sorry. It's Bill C-40.

So today we are welcoming Mr. Simon Roy, Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, appearing as an individual.

Welcome, Mr. Roy.

We also have, by teleconference, two witnesses: Mr. John Curtis, counsel, United Kingdom Criminal Cases Review Commission, and Jessyca Greenwood, executive member, Criminal Lawyers' Association.

Members, we will commence now with the first round of witnesses. You will each have six minutes for questions, please.

Before we do that, each of our witnesses has five minutes for opening remarks.

Mr. Roy, you have the floor.

[Simon Roy, Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, As an Individual]

First of all, thank you for inviting me to appear before the committee. It's a welcome opportunity.

Overall, I think this bill is a fine initiative, which draws inspiration from other countries. I had the opportunity to listen to the first two meetings of this study. So there are some things I won't revisit, but I will call your attention to three areas that bear scrutiny.

The first concerns trial by jury. In my opinion, trial by jury is one cause of miscarriage of justice. Several legal scholars, including Mr. Kent Roach, share this view. Indeed, in the case of racialized people, especially indigenous people, it is difficult to find a representative jury.

Moreover, these are very often emotionally charged cases. So when a murder is committed in a small community, it's harder to get a jury trial. It's also quite difficult to appeal a verdict, since the jury isn't required to present its reasons. Why did the jury decide this or that? We don't know. The test for appeal is the unreasonable verdict test. However, there are no written reasons for assessing the reasonableness of the verdict. As a result, there is a potential for miscarriages of justice.

What can we do to address this? I propose amending section 649 of the Criminal Code. According to this section, a jury cannot disclose what transpired during deliberations, except in the case of an investigation for obstruction of justice, a case provided for in subsection 139(2). Bill C‑40 could allow the new Miscarriage of Justice Review Commission to question jury members about their deliberations if one of the reasons given for the miscarriage of justice was a problem identified in the jury's deliberations.

The second area for scrutiny concerns the investigative powers of the proposed commission. According to your bill, the commission has the powers of the Inquiries Act. It therefore has no power to visit premises. Although this may rarely be applicable, it could prove useful to grant this power to the commission. However, it also has the power to compel witnesses to testify, which may include the applicant, i.e., the convicted person. The person filing the application could therefore be compelled to testify before the commission if it so required. They would not have the right to remain silent in this context.

I'm not saying this is a good or bad thing. I'm just pointing out that it's a possibility right now, under the current wording of the bill. Obviously, the applicant's testimony could not necessarily be used against them in a subsequent trial, because there are constitutional protections. However, the person could be compelled to testify, as could co‑defendants, for example. In a trial, co‑defendants have the right to silence, whereas before the commission you are proposing, a co‑defendant could be compelled to testify about what happened.

The final area for scrutiny concerns questionable guilty pleas or defence strategies. There was the case of former judge Jacques Delisle, of which you are no doubt aware, and the Sarson case, a decision handed down by the Supreme Court in 1996. In both cases, the defence made strategic decisions. Mr. Sarson decided not to challenge the constitutionality of the law; Mr. Delisle decided not to testify. Both later came back and said they had been unfairly treated. In Mr. Sarson's case, the Supreme Court said there was res judicata and nothing more could be done. In Mr. Delisle's case, as you know, the minister of the day granted his request.

I think we have to differentiate this from cases of innocence. Someone who has committed an act, but is accused of another act, might decide to attempt avoiding conviction of the main act. Take the case of Mr. Sarson. He was charged with murder and pleaded guilty to manslaughter. It's a strategic choice for the defence. If he's found guilty of murder, that is indeed a miscarriage of justice, but not against an innocent person. So perhaps the same test shouldn't apply. That brings me to the power to reconsider sentencing, which should perhaps be included in your bill.

I'll close by mentioning an issue that was raised at the previous meeting about dubious guilty pleas leading to miscarriages of justice. It can happen. One example is the Simon Marshall case, which was tried in Quebec. Mr. Marshall, who had an intellectual disability, entered a guilty plea, and it was later discovered that he had not committed the crime.

He was cleared by DNA tests.

This is particularly important in the case of racialized or marginalized people, especially indigenous women who are victims of domestic violence. These women could be wrongfully convicted, because they don't think they have a defence.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We have Counsel John Curtis with us online.

Go ahead for five minutes, please.

[John Curtis, In-house Counsel, Criminal Cases Review Commission]

Good evening, everybody. I'm very pleased to be with you this evening and to assist you with this important work.

I thought it would be helpful to set out some background to the U.K. commission's role, structure and powers, and the work we do within the British criminal justice system.

The CCRC—the Criminal Cases Review Commission—was established by Parliament in 1997, and we operate under the Criminal Appeal Act 1995. Parliament created us to be independent, in order to find and investigate possible miscarriages of justice and refer them to the appeal courts. We've been in existence for 26 years. In that time, we have looked at over 31,000 cases. In the same period, the commission has made 826 references to the appeal court, which equates to more than one case every two weeks and a historical average of around 31 cases a year. Around 70% of those references have resulted in convictions being quashed or, occasionally, sentences being reduced.

We're funded by way of an annual grant from the Ministry of Justice. Since 1997, our annual cash grant, taking account of inflation, has been £8.775 million. Last year, our grant was £7.28 million, so currently we're operating with funding that is 17% below the historical average.

Each year we get around 1,145 applications for review. We've seen a marked increase in past years following a move towards an easy-to-read online application form. The forecast for this business year is over 1,600 applications, and that's against a prison population in the U.K. of over 80,000. We don't have any queues or waiting times at the moment, but that position is very hard to sustain. We aim to conclude 85% of our reviews within a 12-month period. Recently we've been achieving that, but it's becoming more and more challenging. Obviously, more complex cases take longer, and reviews can run to one, two or even three years.

We submit an annual report with accounts to Parliament. Operational oversight is by a board chaired by Helen Pitcher and includes three independent, non-executive directors. We have around 120 staff, which equates to 101 full-time-equivalent employees. We have 11 commissioners to make decisions, and they constitute four full-time equivalents and are paid at day rates. Many, but not all, commissioners and casework staff are legally qualified.

We believe in a collaborative and multidisciplinary approach, so the organization includes people with legal and investigative skills, as well as specialists in forensic science and financial crime.

Parliament gave us a unique range of investigative powers. We can obtain material from any public body or private individual. We can order and direct police investigations when a case is particularly large. We have some other powers, including the ability to interview jurors under the direction of the court. We can review any criminal case, from the most minor offence to the most serious. We also cover the military courts.

We're a body of last resort, so individuals are usually required to have exhausted their appeal rights before they can apply to us. In exceptional cases, we can review a case even when there's been no appeal. That could include a case in which there's extreme vulnerability, perhaps through mental health. We can also deal with cases involving deceased persons if applications are made by their next of kin.

We can obtain files from police, courts, prosecution and defence, and we often see material from schools, social care providers, medical records and the security services. We can speak to witnesses, scientists, police officers and judges to understand what happened before, and we can order new tests on exhibits. We're the only body that can do this. We're the only body that can send a case for a second appeal. References are made on the basis of fresh evidence or new legal argument.

I'll wrap up there.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We now have Madam Greenwood for five minutes, please.

[Jessyca Greenwood, Executive Member, Criminal Lawyers' Association]

Thank you, Madam Chair, vice-chairs and members.

Thank you for inviting the Criminal Lawyers' Association to present to you today. Our organization represents roughly 2,000 defence lawyers across Ontario, with members from all over Canada. We are on the front lines daily, defending accused persons in court.

More personally, I was raised in small-town Ontario but practise in Toronto. I was called to the bar in 2009 and have had the unique opportunity to work on wrongful conviction cases.

You may be asking whether wrongful convictions really happen in Canada, since we have a world-class justice system, yet we know that they do. I volunteered, as a young lawyer, with what was then AIDWYC and is now Innocence Canada, for over a decade, working on the case of a young indigenous man convicted of murder. No single case had a greater impact on me or my career.

Creating this commission is such an important step for Canada to ensure that no Canadian receives a life sentence who doesn't deserve it. But for Innocence Canada, we wouldn't know about miscarriages of justice like the cases of Donald Marshall or David Milgaard or the now discredited evidence of Dr. Charles Smith.

Wanting to end wrongful convictions shouldn't be something that divides us along party lines; this should be a uniting goal for all of us. Wrongful convictions are not good for victims, for taxpayers or, more importantly, the public confidence in the justice system. The CLA supports Bill C-40. Meaningful reform is long overdue.

From the CLA's perspective, a robust system of review requires two essential elements: institutional independence and sufficient infrastructure and resources to do this invaluable work. This bill addresses both, but may not go far enough. The CLA respectfully asks the committee to consider three additional points.

First, with respect to the commissioner and resources, we recommend that the commissioner have security and tenure to review unpopular cases. That's not an easy job and not one that is popular, and may run the risk of political interference. We recommend that the commission be staffed with those candidates who are alive to these issues, to the challenges faced by racialized and indigenous accused persons, those with mental health issues and, most importantly, that they be people who want to do this difficult work.

Second, with respect to the test for intervention, the test has always been whether or not this person who's coming to the minister for review could prove factual innocence. That is such a high bar. We applaud that the new reforms allow the commission to consider cases in which factual innocence is not established. This should be the norm, not the exception.

The CLA wishes to stress that this is a critically important change, given the many barriers faced by the wrongfully convicted, as pointed out by Justice LaForme and Justice Westmoreland-Traoré in their report.

Third, we ask that the reporting function of the new commission be enhanced and that we rely on that critical data to continue to improve our justice system. Bill C-40 presently requires that the commission report to the minister on an annual basis about the work it has carried out. We ask that the committee consider expanding that reporting to include systemic trends on wrongful convictions and a mechanism to make wide-ranging recommendations to police, prosecutors and the courts so that we can diligently make use of the data collected to improve the justice system.

Bill C-40 may seem like another piece of legislation, but I can say from my experience that it has the potential to be life-changing for those who are awaiting and deserve review.

Our question is this: Given that our system is one that is internationally regarded as the gold standard, should the test remain unchanged, or is there more we could do to ensure that we protect the most vulnerable in our society and ensure that fairness and justice are delivered to all?

I am available to answer any questions you may have. Given the time constraints today, I am also available to conduct a private briefing with anyone who wishes to expand on these points.

Thank you, again, Madam Chair, for the time.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We will now begin our first round of questioning. Each member will have six minutes.

I will begin with Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Thank you to all the witnesses for appearing today on this important study.

My question is for Mr. Curtis.

Thank you for appearing and talking about your experience as we consider this next chapter in Canada.

I think a couple of things distinguish us from your experience. I'd like your comment on this.

Currently, as the previous witness just mentioned, there's a test that a miscarriage of justice “likely” occurred. That's something that the minister currently would have to consider with the support of specialized individuals within the Department of Justice.

This bill, in addition to creating this new commission, also introduces what could be a much lower threshold: that a miscarriage of justice “may” have occurred, and when I look at that by definition—“a miscarriage of justice may have occurred”—it could probably apply to almost any case.

In my understanding of your system, if you could expand on it, it's that in order for there to be a miscarriage of justice review.... In our case, there's no requirement for new evidence and there's no requirement of a new legal argument, but that is the case in your system. Could you expand on that a bit? What is the threshold that would trigger your looking into one of these cases?

[John Curtis]

Thank you.

Our test is if there is a real possibility that the appeal courts would quash the conviction and if our case law tells us the real possibility is below the balance of probabilities—that it's less than a 50% chance in that respect. It has to be real, so it's reasonable rather than fanciful. We've got some helpful case law and decisions that guide us on that. Our court of appeal will quash a conviction if it believes that the conviction “may” be unsafe, but within the “may”, again, I think “reasonably” is implied: It's a reasonable rather than a fanciful one.

New evidence and new arguments are far and away the most common basis. Theoretically, it would be possible to quash a conviction without new evidence or argument, but it's a theoretical rather than a practical occurrence.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, sir.

In relation to different thresholds and what would be applicable, obviously we already have one of our own. You can look at the Criminal Code threshold of “beyond a reasonable doubt” and the civil code threshold of “a balance of probabilities” in civil law and the real possibility that your threshold is lower than the balance of probability, but I would suggest it's higher than what's proposed in this legislation, which is that “a miscarriage of justice may have occurred”.

Could you speak to some cases in general terms of the requirement that's generally applied, in your case, of new evidence? What would that typically look like? I know you're dealing with thousands of cases, but can you give our committee an example of what that could look like?

[John Curtis]

It could be new DNA that's discovered by more sensitive testing than was available years ago. It can be examples of police misconduct, such as an officer being discredited in a subsequent investigation. We've had pathology cases in which pathologists have overstated the accuracy of time of death. Medical advancements in pediatrics have been some other examples, as well as developments in the law.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

I have one minute. I'll ask if you can quickly comment on your second avenue of a new legal argument. Could you give some examples of what that could look like in a modern context?

[John Curtis]

Recently we had clarification from our Supreme Court on the law relating to joint enterprise. When multiple people have been involved in, let's say, a murder, but it's not possible to say who did what, the Supreme Court clarified that. We had to look at around 20 years' worth of cases to decide whether a new legal argument applied there.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, sir.

Thank you to all the witnesses.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Moore.

Mrs. Brière, you have six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

I'd like to thank all the witnesses for being here today.

Good afternoon, Mr. Roy. We are pleased to have you with us today. And thank you for having presented your three areas of scrutiny.

I'd like to discuss the second one, which is the proposed commission's investigative powers. You mentioned that Bill C‑40 does not provide the power to visit premises, and you feel that it should do so.

[Simon Roy]

Is it absolutely necessary? Perhaps not, except that this power is currently available to judges and juries. A judge hearing a case who considers that a visit to the premises is necessary to understand the situation can order such a visit. The same holds true when it comes to a judge and jury.

So, there may be cases where, indeed, the commission would benefit from viewing the physical premises. One example is a situation that occurred in Quebec some time ago, when a car fell into a lock. The question was whether it was an accident or murder. Visiting the scene and seeing the physical configuration of the accident often makes it easier to assess the circumstances.

I also think that if judges, who have decision-making power, have the right to go there, it seems rather odd that the commission, which has investigative powers, should be denied the same opportunity.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

You also mentioned the power to compel defendants and co‑defendants to testify. Can you expand on that for us?

[Simon Roy]

Currently, the power to compel someone to testify is that of a standard commission of inquiry. Consider the Charbonneau commission or other commissions across the country. A person cannot refuse to testify at such an inquiry. Therefore, in theory, the review board could compel the accused, who has become an applicant because they've been convicted and claim they were wrongly convicted, to testify before it to discover more.

I'm not saying that this is a good thing or a bad thing. I'm just pointing out the possibility. Would you be comfortable with the idea of such a possibility arising?

In a regular criminal trial, the accused cannot be compelled to testify. They have the right to remain silent. However, under such a process, the right to remain silent would, at the very least, be called into question. I'm not telling you that it would be declared constitutional if challenged, but there is at least some concern over it.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In the midst of a revision process, do you think it would be important for commissioners to have this power, which would give full force to our bill?

[Simon Roy]

At first glance, I quite like the idea of investigation, and I think we're drawing a little inspiration from the French system. You know, in the French criminal justice system, judges have considerably more investigative power.

Would it be a good thing to compel the accused to provide their version in support of their claim? That's a political decision that isn't mine to make. In law, it would certainly give the commission more evidence to help it reach a decision.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

As it's currently drafted, Bill C‑40, which also mirrors the current legislative framework, provides that the commission may consider applications from those who have pleaded guilty in cases where all their appeal rights have been exhausted at the provincial level.

Do you think the commission should be able to consider applications in exceptional circumstances, i.e., in cases where there has been no appeal?

[Simon Roy]

I think that's an excellent idea, especially for people who have pleaded guilty. I was referring earlier to the Simon Marshall case, but I'd also like to come back to some decisions involving indigenous women. In the case involving Ms. Lavallee, the battered woman defence was upheld. Often, a person can state that they are guilty of killing their spouse, but in law, that homicide is not illegal because it was a case of self-defence. However, the person may feel guilty inwardly, and if they don't have adequate representation, they may plead guilty. They won't be tempted to appeal.

It's complicated to appeal after a guilty plea, since you have to withdraw the plea first. Especially in cases of guilty pleas, the idea of exhausting remedies is not the right solution. Even if there are fewer miscarriages of justice in guilty plea cases, that doesn't mean there aren't any at all. The Marshall case is a very good example. I'm thinking in particular of vulnerable and marginalized groups. They may be a little more inclined to plead guilty because they fear what might happen if they don't, or because they don't understand the legal standards.

Sometimes, a person may feel very guilty when, legally, they are not. We can think of cases where the person suffers from a mental disorder. They may feel guilty, but they could mount a defence based on mental disorder at the time of the act.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Precisely. We know that a fair percentage of wrongful convictions that were later reversed stem from false guilty pleas. Most of those involved marginalized people.

With a view to shortening the restorative process and ensuring that access to justice is improved, would it be appropriate to amend the commission's powers for cases in which the person has falsely pleaded guilty?

[Simon Roy]

Our time is up, but I would say yes, that is indeed the case.