Evidence of meeting #84 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commission.
A recording is available from Parliament.
4:05 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
I'd like to thank all the witnesses who have joined us, either in person or remotely.
Thank you, Mr. Roy, for being here in person. I'll begin by congratulating you. You are an affiliated with the university that, in my opinion, is the best in Canada.
That said, I'd like to hear your opinion of an aspect that was raised by my colleague Mr. Moore earlier. When it comes to the threshold, we used to say that a miscarriage of justice probably had occurred. Now, we would say that a miscarriage of justice may have occurred. The expression “may have occurred” seems a bit broad to me too. I feel like anyone could claim that, yes, there may have been a miscarriage of justice in a case, whereas the probability threshold seemed much more reasonable to me.
What do you think of this threshold issue regarding miscarriages of justice?
4:05 p.m.
Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, As an Individual
That's a good question.
It's important to understand that it's not the commission that ultimately decides. It has the power to send the case back to the courts. If the threshold is too low, it will probably send more cases back. Before the courts, however, the applicable standard remains reasonable doubt. The Crown must prove guilt beyond a reasonable doubt.
Would there be more acquittals or fewer acquittals? That remains to be seen. The final decision rests with the courts.
4:10 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Let me clarify my question, because it wasn't about the culpability aspect. If the commission receives a large number of applications, this could potentially, if not likely, overload its hearing dockets somewhat.
If we want to create a commission whose mandate will be to review miscarriages of justice, will we ask it to review all or almost all decisions that were rendered because someone says an error may have been made? It's so broad that it could encompass virtually any decision.
On the other hand, should we limit ourselves by telling the commission that the cases it will consider are those for which it can be established that there was a probable miscarriage of justice?
I'm not saying that either situation is best, but I do wonder about this.
What do you think?
4:10 p.m.
Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, As an Individual
Volume is certainly an issue when it comes to the number of cases to be processed. If the criterion is low, there will be high volume. Right now, it's also a question of confidence in our institutions.
Do the courts, as they were created, miss a large number or a small number of miscarriages of justice?
I would be inclined to say that our courts still work quite well. If a commission is set up, it should focus on cases that may be more significant. If the criterion is based on the possibility of a miscarriage of justice, this calls into question the efficiency of our courts, as cases that have a lower chance of success may attract more attention.
4:10 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Along the same lines, a miscarriage of justice review can take 20 months to six years right now. If a commission is created and made available to more applicants, as I said, whether or not a miscarriage of justice occurred, the caseload will probably increase. If it takes between two and six years now, the wait times could really balloon.
Do you think it's appropriate for the bill to set out a time limit within which the commission would have to make a decision? If so, what is a reasonable period of time?
4:10 p.m.
Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, As an Individual
No one should be expected to do the impossible. If the commission is swamped with applications, it won't be able to respect the time limit, even if the legislation prescribes one. If you want to prescribe a time limit, you could look to the criteria established by the court in Jordan, so a maximum of 30 months to decide a murder case, for instance. I know it doesn't apply to cases under appeal, but it gives you an idea.
What I hope to see is more resources being allocated. There will certainly be more cases, but if more people are handling those cases, the wait times could be shortened.
I want to draw your attention to another important consideration that isn't in the bill. It should address situations where someone submits two, three or four applications for review. Say a person applies once, and their application is dismissed, but two years later, they identify other grounds. Would that person be allowed to apply a second time? Could they apply a third time, three years later, say? The bill doesn't cover situations like that.
Perhaps it would be easy to cut out multiple applications because they would be deemed inadmissible. Currently, the bill is silent on the maximum number of applications a person can submit.
4:10 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
The commission would therefore have to decide whether or not it was reasonable.
What do you think should be the time limit for making a decision regarding a review application?
4:10 p.m.
Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, As an Individual
It depends on the case and the degree of difficulty involved vis-à-vis the evidence. If the case is simply about a witness who lied and we now know that person lied, the decision could take as little as a few days.
4:10 p.m.
Bloc
4:10 p.m.
Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, As an Individual
It could certainly provide a guideline.
4:10 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair. Thank you to all the witnesses for appearing today.
I'd like to start with an issue raised by Ms. Greenwood, and that's the issue of independence.
The LaForme report on the creation of a commission on miscarriages of justice recommended that the terms for commissioners be non-renewable. You've raised the issue of independence in relation to the term of a commissioner. I would just like you to say a bit more on this question, since we seem to have a couple of competing ideas about how to make sure our commissioners are independent. One gives them the security of tenure and the other limits their tenure.
Ms. Greenwood, maybe you could give us some advice on that.
4:15 p.m.
Executive Member, Criminal Lawyers' Association
Thank you, Mr. Garrison, for that question.
I did see that recommendation in the report of Justice LaForme. I understand why you may want a diversity of perspectives and certainly will need someone who has experience in this area to lead such an important initiative.
There are pros and cons to both. If you have someone who has the experience and is leading the commission well, you might want that person to be reappointed. However, this is difficult work and probably deserves to have someone who brings fresh perspectives.
I can see the arguments to both, but obviously I defer to Justice LaForme and his recommendation. I saw that he had recommendations with respect to the commissioner and to having part-time commissioners and rotating appointments, which I think is key to having enough people to do the work, along the same lines of the questions that were being asked of Mr. Roy.
4:15 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you, Ms. Greenwood.
You also talked about the importance of having staff who are aware of the issues in the miscarriage of justice, in particular as they relate to the most marginalized Canadians. Certainly, in terms of the record of the current process, I think that we heard from one of the witnesses that since 2002 there have been 20 reversals. Of those, only one was an individual who was Black and only one was indigenous. I believe all of them were men.
When we look at the representation in our prison system, those numbers would indicate that there's something wrong. We have far different ratios of representation within those who are convicted.
Can you say a bit more in terms of the mix of people you think should to be a part of the commission so that they are sensitive to this issue?
4:15 p.m.
Executive Member, Criminal Lawyers' Association
If we look at the makeup of the prison population, we see that indigenous persons and racialized persons are over-represented, as well as people with mental health issues. Some of the stats in Ontario say that three out of four inmates in Ontario have mental health issues, so we know that those who are seeking review.... The staff who are going to be doing the review must have some kind of training, whether it is bias training or other kinds of training that allow them to see different perspectives on these issues. This is because we know there is inherent bias that infects our justice system.
While all of the initiatives that have been taken to modernize our system and become more aware of implicit bias are to be commended, we're not there yet. We know these things still impact our system, and we know that juries, especially in small communities, are not necessarily representative of the population.
In terms of how we attract those people, that will have to be something.... Staffing the commission in a way that's representative will probably require a robust appointment process that asks people to demonstrate their interest, knowledge and education in these issues so that we can have real perspective and a diversity of perspectives. Perhaps there could be a stakeholder committee that leads to this appointment process.
4:15 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
My last question for you—and I'm trying to squeeze in one for Mr. Curtis—is about legal representation during this commission process. We know that often those who are most likely to have had a miscarriage of justice have the fewest resources to mount things like challenges against that miscarriage of justice.
How do you feel about the way things are set out in the existing bill in terms of providing legal assistance to applicants?
4:15 p.m.
Executive Member, Criminal Lawyers' Association
I read some of the submissions that were made to Justice LaForme and I couldn't agree more that legal representation, especially for someone who is marginalized or has mental health issues, is absolutely critical to the success of the application. We can take Innocence Canada as an example of that. Were it not for Innocence Canada, we wouldn't have had such a well-put-together record by lawyers and staff to bring these miscarriages of justice to light.
I think it is really important that we have a robust system for the appointment of counsel.
4:20 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I have just 30 seconds.
Maybe I could ask Mr. Curtis to say a bit more about the application process and the simplification of it that took place in the U.K.
4:20 p.m.
In-house Counsel, Criminal Cases Review Commission
We changed it from a text-heavy form to a much simpler one.
In terms of representation, people often don't know why they were wrongly convicted. They know they didn't do what they were accused of, but asking them to articulate what went wrong is really only a starting point. Even good lawyers don't necessarily have that answer, so we have to look at things and bring our own skills to bear on the cases.
We don't have a huge number of legally represented people. About 15 years ago, 40% of our applicants were legally represented. That's dropped to less than 5% now. We don't think it changes your chance of getting your case referred, but it undoubtedly takes longer to work through a case when somebody isn't represented.
4:20 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you very much.
I will now begin our second round. Maybe we'll go four minutes, four minutes, two minutes and two minutes to allow time for the second panel as well.
It's over to Mr. Brock, please.
November 23rd, 2023 / 4:20 p.m.
Conservative
