Justice Committee on Nov. 28th, 2023

[Lindsey Guice Smith]

The judges are superior court judges. In North Carolina, those are our felony trial court judges. They can come from anywhere in the state; they just can't have had anything to do with the original case. They can't have been involved in the original trial, plea or any post-conviction work on the case.

[Anthony Housefather, Liberal, Mount Royal, QC]

Are there any instances of when the case will stop at the commission's decision? For example, the North Carolina prosecutor at that point will say, “I agree with what the commission has found. I'm either going to drop it or I'm going to have them take an Alford plea and allow them to end the case at that point.”

[Lindsey Guice Smith]

We've had a couple of instances when the prosecution has agreed that the person is innocent and joined with the defence in asking the three-judge panel for the relief. That allows the convicted person to go ahead and receive the compensation from the state, if they go down that route.

We have seen an increasing trend since 2021 of prosecutors offering the Alford plea as opposed to going through the three-judge panel, and then defence counsel consulting with their clients as to whether to take the risk of going through the three-judge panel process or—

[Anthony Housefather, Liberal, Mount Royal, QC]

She's put up the card, which means my time is over.

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Go ahead, Mr. Fortin.

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

Thank you, Madam Chair.

Thank you, Ms. Campbell and Ms. Smith, for being here today to discuss this important issue. Your insights are very important.

Ms. Smith, my fellow member Mr. Housefather just took one of the questions I wanted to ask you, about the makeup of your commission in North Carolina.

How many commissioners are on your commission, and where are they from? What diversity requirements do you have?

[Lindsey Guice Smith]

I don't have it in front of me, but I could look it up. It's on our website, so I could quickly look it up and tell you. If you give me half a second, I can tell you.

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

I'll let you look that up. Meanwhile, I'll turn to Ms. Campbell.

Good afternoon, Ms. Campbell. Let's say the commission finds that the court ruled appropriately, but that the sentence was too harsh. Should the commission consider that to be a miscarriage of justice and refer the case back to the courts?

[Kathryn M. Campbell]

I actually do, and that's one thing I think the commission should consider—the sentence—because at times, a sentence can be a miscarriage of justice as well. We've had people come to us with cases of, let's say, second degree when, in their opinion, it should have been manslaughter. We're a small, student-run innocence project; we can't touch those cases.

Is that a miscarriage of justice? In that person's view and, in a broader sense of justice, it might be.

I believe there is a place for sentencing to be reviewed in the new commission.

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

Ideally, how long should it take for the commission to make a decision on an application?

Currently, it can take between 20 months and six years. That time frame could be longer or shorter as a result of these reforms.

What are your thoughts on that?

[Kathryn M. Campbell]

In an ideal world, it would be a couple of years.

The case that we have in front of the CCRG right now, we investigated for five years. They've had it now for four years. This man had a second-degree murder sentence and was released at 13 years. He's going in front of the parole board right now. There's a dilemma attached to that as well.

The thing I think will help with the new commission is that it will have access to all kinds of information that we never could get very easily, such as police records and Crown records. That would allow for a more expeditious review of a conviction...two or three years at the most.

The British commission is very quick. If we could start to meet that standard, that would be really good.

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

Thank you.

That brings me back to you, Ms. Smith. Did you find out how many commissioners there are and where they are from?

[Lindsey Guice Smith]

Yes, I have—roughly.

We have eight commissioners and eight alternate commissioners for each position. The reason is that, sometimes, a commissioner is unavailable due to illness, or they need to be recused from a case because they had some involvement in it or it's from the county where they were the judge—something like that.

Overall, we have five female commissioners and 11 male commissioners. We have 13 white commissioners and three Black commissioners. We have five commissioners from the western part of the state and about six or seven from the central part of the state. That leaves three or four from the eastern part of the state.

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

Are you satisfied with the makeup? Does it meet the community's needs?

[Lindsey Guice Smith]

I always think we can do better with diversity. I would love to see more diversity on the commission. We are always mindful of that. When I am given the opportunity to make recommendations for commissioners to the chief justice and chief judge, I always include more diversity in that. It's up to them as to whether or not they take those recommendations.

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

Are they all full-time or part-time positions?

[Lindsey Guice Smith]

Our staff are full-time employees. Our commissioners' role is to hear cases. They hear cases only when we have hearings. We've had two hearings in 2023. This involves them coming to hear those cases for three or four days at a time, and also participating in our commission meetings a couple of times a year.

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

How long does it take the commission, on average, to make a decision?

[Lindsey Guice Smith]

Our cases can vary. For an initial review, it takes a couple of weeks, from the time we receive the questionnaire, before we can review the case and decide whether there is any merit to it. After that, it can take a couple of years to fully investigate a case.

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

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Garrison, go ahead, please.

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

Thank you very much, Madam Chair.

Thank you to both witnesses for being with us today.

Professor Campbell, I want to return to the question Mr. Fortin raised about whether sentences are subject to review by this commission.

I don't see anything in the legislation that says they are not. Is it due to an abundance of caution that you're suggesting we explicitly add sentencing? If I'm not mistaken, the current conviction review group has looked at sentences.

[Kathryn M. Campbell]

They can look at dangerous offender designations and long-term offender sentencing designations. Perhaps, as you're saying, it's an overabundance of caution. I suspect that, once the commission is up and running, the floodgates will open. There will be a lot of people asking for review. I feel there may be a need to sort through more pressing cases. I don't know how that would happen. It certainly happened with the British commission when it was first introduced.

I feel that perhaps stating it explicitly would make it happen.

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

Okay.

I had that question myself while reading the legislation. I was trying to determine whether or not sentences were considered a miscarriage of justice.

[Kathryn M. Campbell]

Yes.