Justice Committee on Nov. 28th, 2023

[Nyki Kish]

It's more so that we see individuals who, perhaps in the example that was used earlier, would more factually be convicted of a lesser crime, but because of low legal literacy or not enough access to adequate counsel because of systemic discrimination, they're receiving convictions that aren't proportionate to the experiences they were engaged in.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Mendicino, go ahead, please.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I want to thank all three of our panellists for their presentations and their advocacy within the justice system.

I think one of the themes that have emerged from your remarks is that there is a profound need to ensure that we reduce, if we cannot entirely eradicate, miscarriages of justice and wrongful convictions. That is an ongoing responsibility that any officer of the court has and retains, especially members of the Crown prosecution service.

As well, I think the presenters identified the rationale that supports this bill, which is to really zero-in on those cases where, for a variety of reasons, there may be circumstances that require a harder look into detail.

I was very alive to the concerns that were laid out by the panellists with regard to court delay, especially in the appellate system; to some of the developments around how we can unearth evidence that may have been previously available; to developments around technology, which help us better understand what is factual, provable evidence that can either support a conviction or an acquittal, for that matter. The conditions of incarceration, into which my colleague, Mr. Moore, probed a little bit, I do think are relevant in the sense that if a person has been wrongfully convicted, it demonstrates the life-altering and very negative consequences that can be visited upon someone unjustly.

Finally, the challenges that we've heard from our panellists today, as well as others, around systemic overrepresentation of racialized Canadians and indigenous peoples are all very good reasons why it's important to have this bill.

I do want to ask in my remaining moments whether, if we accept your amendments, there is a risk that we could be creating a parallel process that could be competing or at odds with the established routes of appeal. I'll ask any one of the three of you to chime in on this

In particular, I think it was either Mr. Paisana or Mr. Wiberg who talked about the different thresholds that merit an appellate review. It sounds to me that the gist of the amendment that you are proposing is meant to mitigate what you think is too high a bar in the appellate courts, by lowering the bar for consideration through this bill.

If I have misunderstood that, please feel free to clarify.

[Tony Paisana]

I'd be happy to address that.

Our proposal with respect to the unsafe verdict is to introduce a new ground of appeal—not to lower any thresholds. This ground of appeal exists in the United Kingdom already. It fills a gap in our current appellate process. There is no ground of appeal that one can advance to determine whether a conviction is unsafe, except apart from legal errors that might exist.

The only mechanism that exists is the “unreasonable verdict” ground of appeal, which is an exceptionally high threshold. So long as the verdict is one that could reasonably arise on the evidence, it is withstood on appeal. That means that there is a swath of cases where a judge at the court of appeal might feel the conviction is unsafe, that they would have acquitted, but they can't intervene, because a conviction is one of the reasonable—

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Can I probe more about that? I think we're getting to the nub of it.

Ultimately, if we introduce this amendment, we are expanding the grounds of statutory appeal. By doing so, in your own words, and having listened carefully to you, we are, in effect, creating a more flexible standard. It would encompass potentially a greater subset of cases that are not currently captured by the law. Is that a fair summary?

[Tony Paisana]

I don't want to “wordsmith” with you, Member, but I see it more as being more flexible.

We must recognize that for 99.9% of cases, the court of appeal is the forum of last resort. That's the forum that should be equipped with the most tools to rectify wrongful convictions. We say a more flexible approach with an unsafe verdict ground affords those tools.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I think we're in agreement on that because that was the word I used: "flexible". However, if we were to introduce that, is it your opinion that, by doing that under the existing statutory rights of appeal, we would potentially be shrinking the subset of cases that may go to the special review process, which might lead to—

[Tony Paisana]

Yes.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

—a review of wrongful convictions? I'm just trying to understand the gist of it. Do I have it right?

[Tony Paisana]

Yes, you do.

In effect, you're front-loading catching the wrongful convictions, which would mean that it's a faster process, a more fair process and one that doesn't utilize this special process that is after the fact. What you're, in fact, doing is empowering the court of appeal to catch wrongful convictions before they languish for years in that post-conviction review state.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Okay, I may pick it up on the second round if I have time. Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

We now go to Mr. Fortin for six minutes.

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

Thank you, Madam Chair.

Thank you to the witnesses for being here. Their contribution to our study is important and will help us make better decisions.

I, too, am concerned by the threshold test, which has gone from a miscarriage of justice likely occurred to a miscarriage of justice may have occurred. Logically, then, we should have more recommendations around remedies, but I worry that would hinder the administration of justice. We can talk about that later.

Currently, the bill calls for between five and nine commissioners, whereas the commission's report recommended between nine and 11 commissioners.

Some witnesses raised concerns about whether five to nine commissioners was enough for the commission to run properly. I'd like to hear your thoughts.

Is it better to have a bigger commission, in other words, more commissioners? More commissioners could also mean more diversity.

The question is for all three witnesses. Ms. Kish can go first, followed by Mr. Wiberg and Mr. Paisana.

[Nyki Kish]

I was just reflecting that, while I don't have the expertise to understand how the dynamics of having a specific number of members would unfold, what we really want to get at is to see the commission's being able to reduce what is, right now, an egregious amount of time to process applications. Those people who can get to a section 696 application right now have no timeline for ministerial review. Also, it can take individuals years to get to an appeal. As I was saying in my comments, many people are discouraged, upon conviction, from appealing. They're told that they don't have the grounds, so they abandon their efforts to appeal. It might take five or 10 years until new evidence surfaces.

What we really want to see is timelines, just legislated systems of accountability, so that however that commission unfolds, it can be measured and augmented over time to be the most responsive it can be.

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

Thank you, Ms. Kish.

What do you think, Mr. Wiberg?

[Neil Wiberg]

I would agree. The important thing is that it be done as quickly as possible. The British Columbia case that was referred by the minister last year—and which I mentioned earlier—came about because of a change in science in terms of hypothermia and drowning. The individual had been ordered to serve life with no parole for 25 years. As soon as that report came out, the innocence project looked and thought that this probably was a manslaughter and not a first-degree murder.

The sooner that could be dealt with, the better, in my opinion.

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

I agree: the sooner, the better.

Should the new commission have five to nine commissioners, as Bill C‑40 proposes, or should it have more, say nine to 11? Which would be better?

[Neil Wiberg]

I'm afraid that I'm not an expert at that. I go to court and run trials now as a defence lawyer all the time, as a Crown.... I have to confess that I'm not an expert on the number of commissioners, so I won't guess.

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

Thank you, Mr. Wiberg.

What's your view, Mr. Paisana?

[Tony Paisana]

In my opinion, what's far more important is the designation in proposed section 696.74 of their being, potentially, part-time commissioners. I'm much more concerned about the fact that they are part-time commissioners than I am about the number. I would like to see full-time commissioners. I think that shows the dedication necessary for this project. I think that would much more easily withstand the caseload that would come into play, and I think that is the far more serious consideration as opposed to the difference between nine and 11. Whether they're full time or part time, I think, is the much more significant issue.

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

Thank you, Mr. Paisana.

I have a question on the same topic. We know that, currently, it takes between 20 months and six years to process an application. That's a very long time. I'm not sure that what's proposed in Bill C‑40 will shorten that. It could even take longer since all that has to be established is that a miscarriage of justice may have occurred, as opposed to likely occurred, before a recommendation is made.

What do you think of the time frames? Should there be a time limit for reviewing an application? The current wait time is 20 months to six years. Do you think that's reasonable?

[Tony Paisana]

The current status quo is not reasonable. It's the main impetus behind the push for this legislation.

In my view, a legislative timeline is something that could be considered. I think the difficulty with that is that no case fits any sort of particular criteria. Some may take longer than others. I think a much more significant push should be for resourcing and funding.

The bill has a very general structure with regard to how decision-making will take place. It does not actually set out how the process of the commission will work. That's being left for policy and funding. That's the key question that will determine the flexibility and speed with which this organization confronts the problem. If it is underfunded, you're certainly going to have worse problems. If it is properly funded, I have confidence that, whether it's nine commissioners or 11, the process will actually increase efficiency. It's just that the question of funding is not something that can be addressed at this stage. When it is addressed, it is vital that proper funding be dedicated to this process.

On November 23 you heard from a witness who talked about it.

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

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Garrison, go ahead.

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

Thank you very much, Madam Chair.

Thank you to all of the witnesses for appearing today.

I'd like to go back to you, Ms. Kish, on the question of over-conviction and over-sentencing. When you read through the text of this bill, I wonder whether or not you feel that it's clear that the question of sentencing is a question of miscarriage of justice?