Evidence of meeting #85 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.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I think, in the way it's currently listed, it is left to the discretion of the commission. I understand your point that could lead to different prioritizations than if it were listed.
Professor, Criminology, Faculty of Social Sciences, University of Ottawa, As an Individual
That's right.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I was very interested in—and I think it's very apt—your comment about the strange absence of those who are most likely to need a review from the current process.
In terms of the new commission, do you feel there are adequate measures there to improve that record of review?
Professor, Criminology, Faculty of Social Sciences, University of Ottawa, As an Individual
There are statements to that effect, but I don't think there is legislative pressure behind it. I've been listening to all of these hearings, and I know that Justice LaForme was very disappointed in terms of wanting to have mandated positions for an Indigenous person and a Black person on the commission. I don't really know how that would work legislatively. However, I think it's one thing to say it, and it's another thing to do it. That could help in terms of access. It is hard because people who are wrongly convicted don't have a lot of faith in the system as being legitimate. It made a big mistake in their case, they believe, and then to have to go back to that same system, which they do now, for a review.... I can understand why somebody would be reticent to do that.
I believe that there is going to have to be a lot of hard outreach work done. There have been briefs that I've read for these hearings that are asking for just that. It's going to be.... It will take some time, but there are steps. The fact that it is independent from government is really important. That will help.
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
It's a frustration that we often have on the justice committee in that we deal with the black-letter law and not the budgets, so if the commission is not adequately funded, then it won't be able to do that kind of outreach you are talking about.
In terms of legal representation for applicants, when we had the British commission appear before us, they were saying that most of their applicants do not have assistance in filing applications. How do you feel about that in terms of the new commission and creating a process that wouldn't necessarily require legal representation to access the process?
Professor, Criminology, Faculty of Social Sciences, University of Ottawa, As an Individual
A process that wouldn't necessarily.... I don't think that somebody sitting in a jail cell is going to know what to do in terms of their application. They won't. I know that the CCRG, in my dealings with it over the years, has told me its most fulsome applications come from innocence projects and people who have representation, which is very rare. I mean, there is a three-year wait list at Innocence Canada for it to even look at your case, so it's tough.
Within the bill, I understand there is.... It will allow for legal representation in some instances, I believe. However, I still think there will be a role for innocence projects when this commission becomes a reality, as well, because people will need support. It won't be easy.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Have you looked at the bill in terms of leaving the space for advocacy groups to continue to work with applicants?
Professor, Criminology, Faculty of Social Sciences, University of Ottawa, As an Individual
I certainly saw that in LaForme and Westmoreland-Traoré's recommendations. It was right in there. I don't know if it's so explicit in the bill, though. I didn't really see that.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I know you were able to hear the last session. I was asking about the systemic factors, and I guess I'll ask you two questions there.
First, in terms of your own experience, what have you seen as the main systemic factors resulting in the miscarriage of justice?
Professor, Criminology, Faculty of Social Sciences, University of Ottawa, As an Individual
Poverty is a big one, for sure. Others are racism, lack of opportunity, lack of education, and not really understanding how the criminal justice system works. I don't think people really understand the notion of what their rights are—the right to silence, the right to counsel, all of those things that we understand as being something every Canadian is entitled to. People don't necessarily understand that. They think, when the police question them, let's say, that they have to answer their questions. They don't, and people don't understand that.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you very much.
We will now move to our second round with Mr. Moore for five minutes.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Madam Chair.
Thank you to both of our witnesses for informing our discussion on this bill.
Ms. Smith, you're in a very interesting or unique position, your organization in North Carolina being the only such body in the U.S., as I think you were saying. I found your testimony to be very helpful.
One thing that I think we need to do when we're looking at this legislation is to sort what Canadians' expectations are when we talk about wrongful conviction and justice.
Under your system, I think wrongful conviction is what most Canadians would expect when we talk about wrongful conviction, and that is a verifiable evidence of innocence. It means that, as stated in your submission to us, there is a perpetrator at large and that the accused didn't commit the crime. There's a perpetrator at large, there's a victim with a false sense of justice, and then, of course, you have someone who is innocent and wrongfully convicted.
That is not the case, however, with this legislation, in that it introduces brand new factors, such as the personal circumstances of the applicant and the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for miscarriage of justice. I think that we need to live up to Canadians' expectations when we discuss this legislation.
You mentioned that you had to work within the parameters of what North Carolina would accept. In light of the fact that you're the only body like this in the U.S., why was it important that factual innocence be a part of your program?
Executive Director, North Carolina Innocence Inquiry Commission
That predates my being at the commission, but looking back at the notes from the study commission, that was really where the compromise was.
Chief Justice Lake was one of the former chief justices of the North Carolina Supreme Court. He brought together a group of folks from all across the different areas of the criminal justice system to talk about the causes of wrongful convictions and how we should address wrongful convictions in North Carolina.
In bringing together those various stakeholders, that was where they landed. What were we going to do about wrongful convictions in North Carolina and where should the focus be? Ultimately, they decided that the focus should be on claims of factual innocence.
They looked at what areas our post-conviction appellate processes and post-conviction motions for appropriate relief were not able to address in North Carolina. They felt that claims of factual innocence were the ones that were falling through the cracks, that those could not be handled very well in these other court processes and that those were the ones that needed this extra attention and an extraordinary process with this extra broad statutory authority, this investigative power, that we really don't see in any other process.
I don't know any other lawyer, at least in North Carolina and probably in the U.S., who has the authority of both criminal and civil procedure that can go out and get all of this information to try to get to the truth. It is very different from the adversarial system we're normally working in in criminal law. Therefore, when they were thinking about giving this much authority and power to an agency, they felt like that needed to be narrowly tailored to actual innocence.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you.
That makes perfect sense.
I don't expect you to comment on our Canadian context right now. This bill further broadens the application of our wrongful conviction regime to a test that, rather than saying a wrongful conviction “likely occurred” to saying one “may have occurred”, a miscarriage of justice, so we have to be very careful as we draft this legislation.
You mentioned victims in your remarks.
What is the role of the victim in this, and is there a concern about this process revictimizing individuals? Is that a reason to have a narrower focus?
Liberal
The Chair Liberal Lena Metlege Diab
Hold that thought. Maybe you'll get a chance with another questioner. If we've missed anything and if anybody would like to submit anything in writing to the committee, we would be happy to receive it.
I will now move to Mr. Maloney for five minutes.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thanks, Chair. Thanks to both witnesses.
I might get back to Mr. Moore's question in a moment.
Ms. Smith, I'm going to start with you. I want to get some clarification on your process. You mentioned in your opening remarks and later as well that you're given all the powers from the rules of criminal and civil procedure. I'm not entirely sure what that means in this context.
Maybe you can answer that and incorporate it into explaining to me whether, when your body goes through its process and reaches a conclusion, it then goes to a three-judge panel. Is that right?
Executive Director, North Carolina Innocence Inquiry Commission
Yes, sir.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay.
When it goes to that three-judge panel, what actually takes place there? Are they reviewing the work that you have done or are they conducting another trial?
What's the process? What standard of review do they apply?
Are the rules of evidence, for example, the same as they would be in a criminal trial of first instance or on appeal?
Executive Director, North Carolina Innocence Inquiry Commission
Okay, great. There's lots to unpack.
All right.
When I say we have all of the tools of criminal and civil procedure, I mean all of the tools. We have the ability to get search warrants, just as law enforcement does, because that falls under criminal procedure in North Carolina. We have the ability to depose witnesses under civil procedure. If someone doesn't want to comply with the deposition, we can certainly go and do a motion for contempt under civil procedure, or we could use a material witness order under criminal procedure. We are able to jump between those pieces. We can subpoena witnesses. Those are some of the tools in the tool box.
When the commission presents a case to our commissioners, that is me as director presenting that to the commissioners. It's a non-adversarial hearing. The rules of evidence do not apply. We're presenting all relevant evidence. We're not taking a side on that. It's just not adversarial. We are just really trying to give the commissioners all of the evidence.
At the three-judge panel, that is kind of a de novo hearing. It's a new hearing. The parties are presenting the evidence. They can agree to have some of the materials from the commission's hearing presented. Until this summer, it was unclear whether the rules of evidence applied, and most three-judge panels applied them loosely.
This summer a statute was passed that the rules of evidence do apply. That's a new law that just went into effect this summer. That's an adversarial proceeding. The burden is on the claimant, the convicted person, to prove by clear and convincing evidence that he or she is innocent. It's a reverse burden from a normal criminal proceeding. It's lower than the burden of proof in a criminal trial. Normally you have the beyond a reasonable doubt. This is just below that. This is the clear and convincing, which is somewhat above the civil standard, the preponderance of the evidence standard.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay.
They are put in a position of prosecuting their own innocence.
Is there somebody on the other side?
You describe the process as adversarial.
Is there a prosecutor or somebody on the other side who is defending the other position or taking the opposite position?
Executive Director, North Carolina Innocence Inquiry Commission
Yes, sir.
It is typically the prosecution from the original jurisdiction. There are some exemptions if they are recused. Then the attorney general's office or a special prosecutor can be appointed.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
It's a retrial of sorts, but from an opposite perspective, I guess I can put it that way.
Executive Director, North Carolina Innocence Inquiry Commission
It's like a retrial. The decision is binding. There is no right to appeal the decision, however it goes. The finding of innocence has to be unanimous. The three judges have to be unanimous. If it's two to one for innocence, then it's not a finding of innocence. It has to be a unanimous decision.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Normally I take it it's the governor's decision as to whether or not to overturn the conviction. Or did I get that wrong?
I thought I heard you say earlier it then goes to the governor of the state.