Justice Committee on Nov. 28th, 2023

[Nyki Kish]

That didn't strike me as a salient aspect of the legislation, no.

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

What you're telling us is that with the clients you work with quite often, it's not guilt or innocence, but the application and conviction of the proper statute and the assignment of a proper sentence. The failure to do that constitutes a miscarriage of justice.

[Nyki Kish]

I think we really see three dominant experiences. One is factual, wrong convictions at the serious-offence level. That's especially for life-sentenced women and gender-diverse people. Then for individuals it's especially related to “party to” convictions, in which we would consider the grounds for conviction to be very shaky. Then there are a host of individuals who plead guilty to lesser offences and who have very low legal literacy. They simply accept charges or convictions to get out as quickly as possible.

In the case of the first two that I just shared, I think we would constitute these as people being over- convicted. They are people receiving life sentences for being present, whereas if they had adequate counsel, they would have been exonerated or perhaps had an involuntary manslaughter conviction.

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

Do you think the creation of this new commission will address the problems that those who are serving sentences have in getting reviews of their convictions?

[Nyki Kish]

I'm sorry for the timing—that it just came through today—but we put forward a bill that really speaks to what happens post-conviction. We encourage consequential amendments to the CCRA, because the agencies regulated by it, the Correctional Service of Canada and the Parole Board of Canada, are right now so heavily reliant on considerations of level of responsibility that we see individuals having very strong, legitimate reasons for abandoning innocence claims and navigating the system to access parole and the reintegrative services in prisons. We think this is an amendment that could greatly strengthen the bill and help.

I'm sorry to go on, but institutionalization and community re-entry supports are a priority of this bill, and we worry that those priorities won't be meaningful if they're not in consideration of the system of incarceration.

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

How do you see in that recommendation the relationship between the commission and other statutory boards like the Parole Board or under the Corrections Act? Do you see the commission as having power to direct or giving advice? What do you see that relationship as?

[Nyki Kish]

Thank you for the question.

We recommended an amendment that would give powers to employees and commission members to provide general direction and guidance to agencies regulated by the CCRA. As there is a mandate for employers to reach out to applicants and potential applicants and to provide education and awareness, we want to ensure that people in prison aren't afraid to do so, and that prison employees and administrators are educated and up to speed on the risks of wrongful convictions. We do dream of a consequential amendment to the CCRA that expressly prohibits punishment of people for seeking redress. Then we would say at a minimum that the powers to provide direction and education would be wonderful.

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

I know you apologized for going on, but I think you're raising a very important point here.

How often do you see this affecting the clients you work with in the system—their being denied access to programs because they maintain their innocence?

[Nyki Kish]

It's in most instances.

We work very hard. We work closely with Correctional Service Canada and the Parole Board to raise awareness. Certainly, at the senior level, there is knowledge of legislative and constitutional requirements. However, when you get to the decision-makers—the people writing the A4Ds and granting or denying incarcerated people access to programs—public education and direction are needed.

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

Do you feel those who are denying these feel as if they are following the letter of the legislation when they do so?

[Nyki Kish]

If you look at CSC policies and the Parole Board decision-making framework.... The PBC framework is less reliant on it. Just about all Correctional Service Canada decisions are very reliant on level accountability. That would be the agency we would prioritize.

Yes, I believe they are just following their policy direction.

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

Thank you.

Madam Chair, do I have any time remaining?

I think I heard all of you support removing or modifying the requirement that appeals be exhausted.

I'll go to Mr. Paisana here.

Would it be sufficient to create an exception so the commission could examine cases that haven't been appealed, rather than removing the requirement altogether?

[The Chair, Liberal, Lena Metlege Diab]

You have 30 seconds.

[Tony Paisana]

Our answer to that question already lies in the legislation.

Subclause 696.4(4) shows there's an exception built in for those who haven't appealed to the Supreme Court of Canada. All we're suggesting is that you just expand this to include those who haven't appealed to a court of appeal.

You are already contemplating doing this. It's just extending it to an analogous situation.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We will now move to our second round. We're going to commence with two four-minute rounds each.

We'll start with Mr. Van Popta.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you to all the witnesses.

Mr. Paisana, you heard Mr. Wiberg, in his opening remarks, highlight some substantial changes to criminal law procedure, including changes to rules of disclosure. I think he referred to the Stinchcombe case and advanced scientific tools around DNA evidence.

In your opinion, will there be fewer wrongful convictions now, with these new rules and procedures? I note David Milgaard never would have been convicted if we had the DNA technology in 1970 that we did 30 years later.

[Tony Paisana]

I'm a proud Canadian lawyer. I'm very proud of our justice system.

However, the vigilance required to prevent wrongful conviction should never subside. It's institutional resistance to the acceptance of the idea of wrongful conviction that breeds wrongful convictions. For many years, we thought microscopy was a very valid science that could give us those same kinds of assurances. It turned out that we were wrong. Today, even DNA is being questioned in some circumstances, depending on the sensitivity of the technology and the kind of match being developed. That vigilance is extremely important.

Though I am proud to be a Canadian lawyer in our system, we have to be ever-vigilant that our processes don't suffer from—I don't want to call it “arrogance”—overconfidence.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I'm going to jump in there.

I wasn't suggesting we lower our guard at all. My question was on whether, factually, there will be fewer wrongful convictions with new rules around the evidence.

[Tony Paisana]

I hope that's the case. It's impossible to tell, because there's also going to be an increase in wrongful convictions with increased use of those technologies, in the sense that we will be able to expose them more. In addition, the “false guilty plea” phenomenon is one we are very much new to. We expect there will be a great deal of wrongful convictions uncovered through that process.

Though I am optimistic that those technologies and advances will prevent more wrongful convictions, I am not in a position to say we are any better off without more vigilance.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

I'm going to pivot now.

You gave testimony in front of the LaForme-Westmoreland commission a couple years ago. You're quoted on page 103 as stating—and I'm paraphrasing—that you simply do not believe everyone in prison will claim they were wrongfully convicted.

We put a similar question to Mr. Curtis of the U.K. commission. I asked him what they do to ensure the application intake system doesn't get clogged with what I call “faint-hope” applications.

[Tony Paisana]

I think that's a valid concern—making sure the floodgates don't open and overwhelm the system, at the risk of obscuring those who truly need it.

In my experience working in the prison system, most individuals who have been there for a long time have come to terms with that reality. The people who seem to access these resources are the ones who are truly of the view that they're innocent. To that point—and this speaks to something Ms. Kish was saying earlier—we've had many people in innocence projects maintain their innocence even though they were eligible for parole years earlier. The main impediment to them getting parole is admitting their guilt. People spend 10 or 15 years longer in their sentence because of that.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Yes, I understand that.

Mr. Curtis said that only 3% are actually successful—you said 97% are disappointed—and that's when I asked him about the intake process to make sure it doesn't get clogged up.

What do you think about that? Is 3% or 97% what you would expect to be the ratio?

[Tony Paisana]

It's impossible to tell because of the outreach challenge that we have at this stage. This is a new system.

How well it will be rolled out in prisons to people who will be aware of it and how they apply will be, I think, the driving force to how difficult of a problem it will be to weed out the poor applications.

I think an intake screening process is necessary, and the one thing in Bill C-40 that is fairly robust is there are a number of criteria here that you see that should serve the tool of screening out some of those applications.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Madame Brière.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

Thank you to the witnesses for being with us this afternoon.

My question is for you, Mr. Paisana. Under the bill, after analyzing the information, the new commission makes a decision when it has reasonable grounds to believe that a miscarriage of justice may have occurred or that it is in the interests of justice to do so.

I'm wondering whether it is appropriate to add the part about being in the interests of justice. Do you think that could disadvantage marginalized populations?