Justice Committee on Nov. 23rd, 2023

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

There was a change of plans. Thank you so much.

Thank you to the witnesses for being here.

Jessyca Greenwood, I have a question for you. You had three asks in your submission. The second one, I think, dealt with the issue of factual innocence. I'm reading here the LaForme-Westmoreland commission's report on page 36, which states:

The Criminal Lawyers Association told us that “the commission should only accept applications from persons alleging factual innocence and a miscarriage of justice.”

Is that your organization's position?

[Jessyca Greenwood]

I actually support what you have written in the legislation as proposed. I think at that time, when we made the submission, we didn't have the full background and benefit of all the submissions that have been made.

I would amend that to say the legislation as proposed is what we agree is critically important, and we're hoping that this brings a shift from what was required, which was factual innocence, because that requirement presented huge barriers. As you can imagine, if those who are wrongly convicted and are in jail could show factual innocence, they probably would have done that in the first place.

We really support this bill and hope that it brings an expanded review of potential wrongful convictions, especially when vulnerable persons are involved.

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

It's fair enough to change your mind after having done some more research and education.

I have another quote from that commission. This is on page 103, where you're quoted as saying:

...the Criminal Lawyers Association and the Federal/Provincial/Territorial Heads of Prosecution group all advised limiting the commission to the most serious cases to avoid overburdening it.

Is that still your organization's position?

[Jessyca Greenwood]

While I agree that the most serious cases have the highest penalty and those clients are in the most jeopardy, I don't think the commission should limit it only to the most serious of cases, because there can also be wrongful convictions in less serious cases, such as attempted murder or other serious offences that don't attract a life sentence.

I don't think we would limit it in that way, but I understand that overburdening a commission is a concern. There are resource constraints on any commission or agency. We do appreciate that.

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

I'm going to switch to Mr. Curtis now.

Your organization has 25 years of experience. What you're telling us today is very valuable and important.

How does your commission avoid getting overburdened with what I would call faint hope applicants clogging up your commission's human and financial resources?

[John Curtis]

About 97% of our applicants are disappointed, in the sense that they receive a turndown from us. There's no way of knowing that at the outset of the process. It's something we have to deal with.

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

Could you tell us about the early intake filtering process? There must be some process to dispense with some applications very quickly.

[John Curtis]

We wouldn't look at a case if there were live proceedings or an appeal under way. You have to exhaust that. We'll do a triage with a screening. We'll be able to size the case. Is it something we could expect to make a couple of inquiries on? Is there a much longer process? We will size cases as small, medium, or large. We would then try to match the case with somebody with the investigative skill set and experience suitable to that type of case.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Next we have Mr. Housefather, please.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much, Madam Chair, and thanks so much to the witnesses for being here.

Mr. Curtis, very quickly, this is on that last point regarding the screening. When something comes through the court, normally the clerks will look at applications and then write a bench memo.

Is there something like that in the process to allow you to go through a wider variety of cases and make quick decisions to screen them out right away?

[John Curtis]

You can make a recommendation. The commissioner makes the decision in all cases. Experienced staff will maybe make a recommendation that this does look like a hopeless case, but a commissioner will make that decision. Sometimes we'll disagree.

[Anthony Housefather, Liberal, Mount Royal, QC]

Perfect.

I want to come to another thing. The thing that I'm the most worried about in the legislation is the fact that you need to exhaust the appeals process. I'm very concerned that the defendants we're looking at—indigenous, Black, and marginalized people—are the least likely to have the financial resources and the least likely to have the ability to pay high-value lawyers to give them advice to continue appealing.

Can I get an understanding of what, in the U.K., is allowed in terms of the commission's discretion to circumvent the exhaustion of appeals?

[John Curtis]

It would be extreme vulnerability. Social standing could be an issue. Mental health could be an issue. It's the need to investigate something that you couldn't do yourself.

If you're looking at surveillance material, the average person isn't going to be able to get access to that. The need to use our special powers can also be.... One in three of our references is made on the basis of somebody who hasn't used an appeal. It is a really important discretionary element.

[Anthony Housefather, Liberal, Mount Royal, QC]

I'm assuming that power is given to the commission under the original base legislation in the 1995 act in which the commission was established. Would you recommend we look at copying or adapting that language?

[John Curtis]

Yes. I think it's an important part of our work. The miscarriages of justice that we've investigated and referred and that have been quashed by the court are with people who haven't exhausted their appeals. They're in such large numbers that it would seem sensible to take that on board in some form.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

Ms. Greenwood and Mr. Roy, could you also give me your opinion on that?

[Jessyca Greenwood]

I agree completely with Mr. Curtis. Have some mechanism for the most vulnerable to be able to be reviewed. They possibly didn't present well at their trial. They may be doing better now. They may be on medication or be receiving treatment. They may have the ability to participate in a way they weren't able to during their trial, so I do really agree.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

Do you agree with that, Mr. Roy?

[Simon Roy]

Yes, I also agree. I mean, those people have a hard enough time just going through the criminal justice system. We can't ask them to go through all the steps. It's impossible for some of them.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Chair, do I have any time left, or am I done?

[The Chair, Liberal, Lena Metlege Diab]

You have 30 seconds.

[Anthony Housefather, Liberal, Mount Royal, QC]

How much?

[The Chair, Liberal, Lena Metlege Diab]

It's 30 seconds, now 28.

[Voices]

Oh, oh!

[Anthony Housefather, Liberal, Mount Royal, QC]

To conclude, I'll just say that the discussion on section 649 was quite interesting. A few years ago, I used to chair the Standing Committee on Justice and Human Rights, and we did a lot of work on the disclosure of jury proceedings. I think that's an important element in cases where it could help people struggling with mental health issues. I took note of the discussion.

Thank you, Madam Chair.