Justice Committee on Nov. 28th, 2023

[Lindsey Guice Smith]

It doesn't have to go to the governor. If the case doesn't go to that three-judge panel, there's another process, a motion for appropriate relief process. The prosecution and the defence could file a motion for appropriate relief, as opposed to the three-judge panel process. If they go through that process based on innocence, in order to be declared innocent in North Carolina, then you would have to get a pardon from the governor.

You can either go through this three-judge panel and be declared innocent or you can file a motion for appropriate relief. But if you go that route, then you have to have a pardon of innocence in order to be declared innocent and get compensation from the state.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

You may go ahead, Mr. Fortin, for two and a half minutes.

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

Thank you for the extra 30 seconds, Madam Chair.

Ms. Campbell, we were talking about time frames when we left off. You were saying that it could take a number of years. I know it works that way, but it still surprises me. We are talking about miscarriages of justice. To my mind, it should be simple.

My fellow member Mr. Maloney asked Ms. Smith whether, at the end of the day, the process amounted to a retrial.

Do you think that's the right way to go? Shouldn't the process be simplified? Again, the commission shouldn't be retrying the case. It should just be checking whether or not a miscarriage of justice occurred. From that standpoint, it's a bit surprising that it takes years to come to a decision about whether a miscarriage of justice occurred.

First, isn't the approach too extensive?

Second, isn't it appropriate to conduct a full-time investigation in order to arrive at a decision and ensure justice is done in a reasonable time frame, so a few months or even weeks?

[Kathryn M. Campbell]

Ah, I wish I had an exact answer to that question. I think in the work we're doing, we're looking for new and significant information that, if it had been used at trial, could have changed the outcome of the actual trial. We start with the applicant: What do you think? Could there be something there?

Contrary to what people think, DNA is rarely evident in these cases. I think 10% of cases have DNA evidence. So it's really like detective work. In an innocence project, we try to get hold of police files and Crown files. We phone and we phone and we show up and we don't get them. They delay, delay, delay, delay, delay. I think a commission will have better powers for having access to that kind of information, which would significantly reduce the delay in finding the new matters.

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

What should that time frame be? You do have some expertise, after all.

How long is a reasonable amount of time to probe the matter and refer it back to the courts if need be?

[Kathryn M. Campbell]

I think Lindsey talked about two years for her commission, or a couple of years. I think the CCRC in England has a similar timeline of I think 24 months. Once a case has been accepted to move forward, it would not be unreasonable, in my view.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

For the final two and a half minutes, I will turn to Mr. Garrison.

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

Thank you, Madam Chair. It's my usual position of having way too many questions and being the last questioner.

Mr. Moore raised the question of factual innocence versus what's in this bill.

I want to ask you, Professor Campbell, how you would square some kind of requirement for factual innocence with the charter right to a presumption of innocence.

[Kathryn M. Campbell]

Oh, my God....

[Voices]

Oh, oh!

[Kathryn M. Campbell]

That's a hard question to answer.

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

In two minutes.

[Kathryn M. Campbell]

Yeah, right. That's a doctoral dissertation.

You have to sort of draw the line somewhere, I guess. It's funny, because there's a presumption of innocence at trial and in the adversarial system, but then once you've been convicted, that's gone. I think then it begins almost sort of an inquisitorial type of practice. With the presumption of innocence, you're trying to find the factors that will indicate maybe what really went on. Hopefully, if you have a client who's claiming innocence, it is that—but I think that's a very difficult thing to ascertain.

There are many other cases as well. I was just thinking, when Mr. Moore was talking, about all of the Dr. Charles Smith cases. He was the pediatric forensic pathologist who was disgraced. A lot of those were wrongful guilty plea cases. They couldn't have been examined unless we had an open door for that type of re-examination. I think it's better to err on the side of caution with these cases, because they're so devastating. The result is so devastating.

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

I'm sure we're at the conclusion, so thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

You have a few more minutes, if you like.

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

Minutes...? You mean seconds.

[The Chair, Liberal, Lena Metlege Diab]

Sorry. Yes.

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

The last place I left off, Professor Campbell, was on the ability of the commission to make systemic recommendations, which is not in the bill. I'm presuming that you'd be in favour of our adding that to the bill.

[Kathryn M. Campbell]

Yes, 100%. It's such a great opportunity at this moment to be able to say, okay, let's collect all of this data and find out where our courts are getting it wrong, where our police are getting it wrong and where lawyers are getting it wrong, and to do research, make policy recommendations and share information with organizations. I think it's imperative, in my view.

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

Great. Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much to both of our witnesses.

Thank you for appearing from North Carolina, and thank you to our witness appearing in person from Ottawa.

Colleagues, thank you very much. Have a lovely evening.

I will remind you that our next meeting is on Thursday, November 30, which is the last day of the month. We will be doing clause-by-clause on Bill C-321.

Thank you very much. Have a nice afternoon.