Thank you for the invitation to present the CBA's views on Bill C-40. I'm the past chair of the national criminal section. I've worked with the UBC innocence project for the past 10 years, and I teach, at the University of British Columbia Law School, a course on preventing wrongful convictions.
As you know, the CBA is a national association of over 37,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. That is what brings us here today. Our submission was prepared by the national criminal justice section, which comprises both Crown and defence lawyers.
The CBA supports Bill C-40 and offers some suggestions for improvement, two of which I'll highlight in my remarks. Before doing so, however, I wish to express our clear support for some aspects of Bill C-40.
For decades, lawyers and others have laboured under a slow, difficult-to-navigate system for post-conviction review. Bill C-40 represents a sea change in how post-conviction review work will be done in this country. It is a welcome change, one that we hope means that miscarriages of justice will be rectified and, more importantly, rectified more quickly.
The creation of an independent commission we hope will improve the transparency and efficiency of post-conviction review. In particular, we support the new standard of review contained in Bill C-40. The existing standard that a reasonable basis to conclude a miscarriage of justice likely occurred is cumbersome, difficult to apply and leaves many potential wrongful convictions outside the ambit of review. The new “reasonable grounds to conclude” standard solves these issues and is a welcome development.
In addition, we applaud the federal government's explicit inclusion of posthumous cases in the commission's mandate. Wrongful convictions affect not only the accused but their family, friends and the wider community. Allowing for posthumous review provides an avenue for those affected by wrongful convictions to seek redress.
In terms of improvements, our brief lays out some of those areas. We support some suggestions made by other witnesses who have already testified, and I'll highlight two points, as I mentioned. First, as set out in our brief, we support the inclusion of a new unsafe ground of appeal in the Criminal Code. The most important and immediate step of rectifying a wrongful conviction exists in the Court of Appeal. Indeed, for the vast majority of accused persons, it is the forum of last resort; however, the Court of Appeal is a statutory court, meaning that it is specifically constrained by the Criminal Code. Where the court is faced with a case that does not meet the exceptionally high threshold of unreasonable verdict, it cannot intervene even if a lurking doubt exists as to the accused's guilt.
Unsurprisingly, given this landscape, many of Canada's most infamous wrongful convictions were unsuccessfully appealed, sometimes more than once. Indeed, there is a strange history of some of Canada's appellate cases being connected to wrongful convictions. The leading case on unreasonable verdict, in fact, was the Yebes case, a recent B.C. miscarriage of justice, a murder conviction that was overturned nearly 40 years after the fact.
One of the leading decisions on confronting hostile witnesses, Milgaard bears the name of the namesake of this legislation. In dismissing Mr. Milgaard's appeal in 1971, the Saskatchewan Court of Appeal said that the evidence could properly be found to support the verdict, that is, it “could have” as opposed to it “must have”. As you see, the “could” standard is a low one on appellate review, and there is a duty to prevent wrongful convictions at every stage of the process, including specifically on appeal, and changing the Criminal Code to add an unsafe verdict would address this issue.
Our second area of improvement relates to the eligibility criteria for the commission. We echo the concerns raised by others that the mandatory requirement of appellate final decision will potentially create a significant barrier to wrongful convictions becoming uncovered. Those who enter a false guilty plea, for example, will have to go through the complicated and awkward process of trying to overturn a guilty plea. Having falsely plead guilty, there is a strong likelihood that these individuals are unsophisticated, intimidated by court process and are otherwise at a disadvantage in navigating the appellate regime. Make no mistake, bringing an appeal is complex and requires expertise.
Ivan Henry's wrongful conviction is a poignant example of what this barrier might do. He was convicted in 1982 and designated a dangerous offender. Unrepresented, he filed numerous applications and failed at various courts and ministers reviewing his conviction. In 1984 his appeal was dismissed for want of prosecution, because he had not filed transcripts. He never had an appeal and never had a final judgment. He would therefore be ineligible for the current regime.
This, I say, is a problem and should be rectified by a simple amendment treating an accused who has not had an appeal the same as one who has had an appeal but has not appealed to the Supreme Court of Canada, that is, a factored analysis where it is just one factor to determine the eligibility, the fact that they have not filed an appeal.
The legislation currently contemplates that very process with someone who has not filed leave to the Supreme Court of Canada, and there is no reason this cannot be extended to accused persons who have not had an appeal.
Those are my comments.
Thank you.
