Thank you, Madam Chair.
Ladies, thank you very much for being here.
As my colleague Mr. Moore has indicated, I'm a former Crown prosecutor. I did a fair number of appeals. I'm very familiar with the process, and I know the language. I'm a firm believer in clarity, and I know my colleague Mr. Caputo is a firm believer in clarity when it comes to language in any piece of legislation. In particular, I think the Criminal Code demands clarity.
The concern I have in clause 2 is that it is not clear at all what legal tests are being contemplated here. If I understand it correctly....
I believe the first question that was put to you, Ms. Besner, was to describe generally what this section means, and you gave us a response. Is it fair to say that this is purely a mechanism by which a convicted person—who has received consideration from the review commission that the application they have submitted is admissible—has the ability to seek release from whatever institution they may be in? Is that generally what clause 2 is suggesting here?
That's one question. I'm going against my own suggestions here. I have more. Perhaps you could just jot down my questions.
The lack of clarity is this wording in the third line in the new subsection 679(7) proposed in clause 2. It says:
this section applies to the release or detention of that person—as though that person were an appellant in an appeal described in paragraph (1)(a)
That is, in my opinion, extremely ambiguous in terms of the conferring of the rights attributable to the convicted person whose application has been ruled admissible. I need to know why the drafters of Bill C-40 did not see fit to use the exact language that currently exists under subsection 679(7).
You, Ms. Besner, referred to it in terms of establishing that it is not frivolous—I believe you used that language—and that it isn't contrary to the public interest. There was a third aspect. I'm not sure what that third aspect was. I've opened up my Criminal Code here. Just give me a moment. It reads, “he will surrender himself into custody in accordance with the terms of the order”.
The second question is: Why wasn't that language clearly spelled out in clause 2?
The third question is in relation to the adjudicator of the release. In this particular case, the adjudicator would not be a judge, but rather, I believe, someone from the commission. I don't know if that is correct or if that's what's contemplated, but I would like to get that question answered.
I'm going to throw a hypothetical out to you as well. Let's say, for instance, that the convicted person was convicted of a homicide, which generally attracts the most stringent of release conditions if someone qualifies under the circumstances. I would like to know, again, if all of the provisions currently under subsection 679(7) would be available to the adjudicator who is contemplating a release.
The next question I have is, again, about using the language under section 679 of the code, where the first test is that the “application for leave to appeal is not frivolous”. Here's my question to you. Isn't that rather moot—the whole concept of a frivolous application—in light of the fact that the commission itself has deemed the review to be admissible?
I wonder why the drafters of Bill C-40 would use duplicitous language. Clearly, if the commission has ruled the application to be admissible, inherently they have ruled that the application is with merit and is not frivolous. However, the frivolous test is maintained under subsection (7). I'd like clarity on that.
I'd also like to get clarity on that hypothetical in terms of the availability of sureties: how they would present themselves and how they would give evidence to the adjudicator who is making that decision to continue the detention of the convicted person or the release of that convicted person.
Again, I'm always very much concerned about inherent delay. I know that Jordan's principle under the Supreme Court of Canada doesn't necessarily have the same rigid impact at the appellate level that it does at the trial level—the provincial or territorial level, a superior court or the Court of King's Bench—in terms of the prescribed timelines by which matters need to be completed.
I'm concerned about the inherent delay with this low threshold test, which in my view is going to increase the number of applications presented to the commission. There's a future clause that we are going to study in terms of whether or not to approve it, and the whole concept is to move these applications as expeditiously as possible.
Again, it's not very clear language. Were the drafters of Bill C-40 contemplating something that was reviewable by the commission in terms of taking a look at the progress? I know that the commission is mandated to inform the appellant along the way as to the status. That is not necessarily the case in a true appeal setting, where someone either is on their own or has the assistance of legal counsel.
I'd like to get some clarity on that question.
Thank you, Madam Chair.