Evidence of meeting #88 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-40.
A recording is available from Parliament.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
If I'm going to speak....
In any event, I think you have my point.
Through the chair, can I continue, please? Are the witnesses good?
Senior Counsel, Public Law and Legislative Services Sector, Department of Justice
I'm listening.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
I'm sorry. I lost my train of thought. Imagine that.
Would it be helpful if, on a review for bail, there were questions...? Pardon me. I think where I was going with that is.... One thing I believe the court looks at is the likelihood of success on bail. To be candid, I don't know or recall what that likelihood of success is. I don't think it's a super-high threshold. Is that something we should be considering, especially in the case of a life sentence?
Perhaps, when we deal with clause 3, this informs it. How high is that “reasonable grounds”...to believe there should be bail? I'm not sure whether.... Perhaps the witnesses may say to the committee, “Look, this is actually a higher threshold than...somebody in a court of appeal, who has to satisfy the justice sitting as the bail judge.” I'm not sure if that could do it.
Through the chair, am I making any sense here?
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
My colleagues say no.
I may have one other question here.
How about this? Should the duration of the review factor into whether bail is offered? By that I mean, when something gets investigated, we don't know how long it's going to take. An appeal, generally, is quite long. It's probably truncated if somebody's in custody. Even if someone's in custody, though, it's often a few months to a year or two.
Those are just a few questions.
Thank you.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you, Mr. Caputo.
I'm now going to ask Mr. Garrison to please ask his questions.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
I don't have questions for the witnesses, but I'd like to put a few things on the record here.
One, I think it's important for everyone to understand that the same process of obstructing clause-by-clause is going on in four committees simultaneously. Therefore, I have a difficult time accepting the sincerity of members' questions, at this point.
Two, if members have questions about the wording of clauses, there's a process. That process in this committee is to submit amendments. The members chose not to submit amendments. They're asking questions about the wording and saying it should be changed to something else. That process is submitting amendments.
The Conservative members are also debating the threshold from which the commission can work. You have an amendment on that coming up. You submitted an amendment on that point, so, with respect, I say we need to do that under the section that actually amends that clause.
I have two more things that are more substantive.
One, Mr. Moore raised that the standard should be proving innocence. In Canada, we have the Charter of Rights and Freedoms, which guarantees the presumption of innocence, unless you're proven guilty beyond a reasonable doubt. Inserting a clause that requires proving innocence in this would be unconstitutional in Canada. It's different in the United States' legal regime, where presumption of innocence is not entrenched in their constitution but is a matter of case law and has limitations.
Finally, there have been many references to the amendments that I and Mr. Housefather put forward as ones that remove the requirement of exhausting appeals. Neither of these amendments does any such thing. They create an exemption whereby, if the commission felt there were reasons a person was unable to appeal, they would be allowed to take the application. No one on this committee is suggesting we do away with the requirement that people appeal before they can see the commission.
I would like people to be clear when they're talking about that. No one made that amendment. There's no such amendment on the table.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Madam Chair.
I had a question, but I feel compelled to respond quickly to what Mr. Garrison said.
Number one, he mentions moving amendments. Conservatives did move an amendment. Some of my concerns stem from amendments that were moved by the NDP and the Liberals. When we were formulating our amendments, we didn't have the benefit of having those, so that's why I raised that question.
What's happening at other committees, I don't know, but I do know that this is the level of scrutiny that a bill of this magnitude should have. The idea that we would just blast through clause-by-clause on a bill that creates an entirely new commission, a different standard around the miscarriage of justice and different recourse.... In the context of our justice system now and the delays in it, I think it is appropriate to ask those questions.
The last time departmental officials and the minister were here was when they were introducing the bill to us. We had just seen the bill, and the minister was here to present it to us.
Now, we've had the benefit of witness testimony, and we have some questions about what's actually in the bill. That's part of our job. While in the past I would say people have probably commented on some things longer than necessary, on this bill I think these are all very valid questions.
I know that I, Mr. Caputo and Mr. Brock have presented a number of questions to the departmental officials, and if we could get some answers on those, I'd appreciate it.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you.
I just got some clear direction, and this is important, so I suggest that we all listen. If anybody wishes to challenge, please do so. We'll get legal here.
No amendments have been moved yet on this clause. They are deemed confidential until they are actually moved, because a member can withdraw them. I will not entertain any further discussion on any amendments until we get to amendments. I didn't realize that, so thank you very much for pointing that out to me. I did want you to complete your sentence, but when that came to my attention, I felt obliged to ensure that we're all aware of that rule.
Conservative
Liberal
The Chair Liberal Lena Metlege Diab
I don't know what point of order needs to be made on that, but go ahead, Mr. Brock. We have a few minutes left, so....
Conservative
Larry Brock Conservative Brantford—Brant, ON
Sure. I totally respect the information you shared with us, Madam Chair, with the assistance of your legislative clerks. I think it makes abundant sense, and I understand the position that you take, that you will not entertain any further questions from any member, given the lack of amendments to clause 2.
At the very least—and I support Mr. Moore's commentary about the relevancy of all the questions that were put to the government officials—I think we would be doing a disservice to Canadians and a disservice to this committee if we did not have those answers. I'd ask that the Chair direct our government officials to respect your particular ruling, Madam Chair, but also give us responses to all relevant questions that were put to them.
Liberal
The Chair Liberal Lena Metlege Diab
Yes, you're allowed to ask questions, but you are not allowed to debate at all amendments that have not been moved. We're going to terminate it at that.
I will leave it to the Justice officials if they feel they have received questions that they can provide clarification for.
Let me just say this. As the chair of the committee since September, but of course having been on this committee for the last two years, I cannot agree more with each and every one of you who spoke in the beginning. Mr. Brock, Mr. Moore and all of you.... This has been the most cordial and respectful committee, and it should be, because it is the justice and human rights committee. If this is not, then what do we leave for others?
For that, I really want to thank each and every one of you, because I believe you are all here for the right reasons. We are all doing our best to respect each other, recognizing that we don't agree with each other's points.
That's fair. Is that correct?
Now, let me move on to the witnesses who are in front of us. I want to thank you, on behalf of all the members who are here on this committee. You have come today. You came before today. You will likely come back tomorrow, and maybe next week as well. Thank you for your patience, for your courtesy and for your professionalism in dealing with each and every member on the committee as you clarify and do the best job that I know you're here to do for Canadians.
Thank you very much for that.
I'll now let you respond, in the time we have left, to the questions that were raised. The floor is yours.
Senior Counsel, Public Law and Legislative Services Sector, Department of Justice
Thank you.
On the first question, Bill C-40 proposes that the requirement to have exhausted rights of appeal be maintained. There are exceptions that are laid out with respect to whether an appeal was sought subsequently to the Supreme Court of Canada. As I understand it, that's all that's being considered and proposed at this time on that question.
With respect to, “What if the commission does not consider an application to be admissible?”, yes, an applicant could seek a judicial review of that decision based on.... It would be reviewable on the standard of reasonableness in the federal court, following an extensive body of case law that was recently updated in Vavilov. All of that law would apply.
It's unclear which legal test would apply for bail pending review. Section 679 of the code operates as its own...it's a section, so all the subsections within the section apply. In subsection (7), which is being amended, there's a cross-reference to paragraph (1)(a). Paragraph (1)(a) is a conviction appeal that then references what the test is, and that's set out in subsection (3).
I mentioned earlier that the applicant would have to establish that their miscarriage of justice application is not frivolous, that they would surrender into custody when required and that detention is not necessary in the public interest. With respect to the public interest, the case law has evolved quite a bit. It essentially has two components. It has a public safety component and it has a component that deals with confidence in the administration of justice. The courts of appeal apply that. They also apply that the higher the seriousness of the offence and the lower the strength of an appeal, the more the public confidence would be undermined if the applicant were released.
On the flip side of that, the lower the seriousness of an offence and the higher the strength of an appeal, the more the public confidence would be undermined if the person were detained. The courts of appeal.... That is the body of case law that they apply. This would apply in this context as well, because an applicant would be treated just as someone who is appealing their conviction.
A single judge of the court of appeal could hear the application. The notice that has to be provided varies in each different court of appeal, because they set their own procedures for notice. That has to be provided before a hearing will be scheduled. This bill doesn't change that.
You'll have to give me time. I have to go down the list.
Senior Counsel, Public Law and Legislative Services Sector, Department of Justice
With respect to a proposed release plan, consideration of sureties and other conditions, it would apply as it would in the court of appeal. That is just the standard. It would apply as if it were a conviction appeal.
I just outlined the considerations.
Senior Counsel, Public Law and Legislative Services Sector, Department of Justice
On the hypothetical...of someone who has been convicted of a homicide, if that's the nature of the review that will be undertaken.... As I outlined a moment ago, the more serious the offence is.... If the strength of the appeal is low and the seriousness of the offence is high, the court of appeal would look at how greatly the public's confidence would be undermined if that person were released.
I can also say that there have been several cases considered recently by the superior courts wherein the minister entertained an application for review. There is a body of case law that has applied. I could follow up, if you like, for example, with a list of those decisions. It's well established throughout the country.
Conservative
Larry Brock Conservative Brantford—Brant, ON
There's one question that I don't think I received a response for. Madam Chair, through you, it was in relation to proceeding “as expeditiously as possible”.
The question I put to the officials was, does this new process contemplate the Jordan guidelines? I prefaced it by saying that, generally, the appellate route does not follow the Jordan guidelines to a T. Again, I'm seeking clarity on the language “as expeditiously as possible” and whether it sets out any finite timeline.
I was concerned about that and needed some clarity on that issue.
Liberal
Senior Counsel, Public Law and Legislative Services Sector, Department of Justice
There's no incorporation of Jordan's principle, specifically. There's the overarching requirement that the commission deal with applications “as expeditiously as possible” and provide notices and regular status updates to applicants.
It's been one of the main observations that the existing regime is very lengthy. It averages, often, a minimum of a year and up to six years. Other countries are able to resolve and consider applications in around a year, as in the U.K. In Scotland, I think they're able to do it in around seven months.
It's certainly one of the main goals of the legislation: processing applications more quickly. The means to accomplish this is by having a greater number of decision-makers. I think you all know that one minister of justice has many different priorities under their portfolio and is the only decision-maker. With the commission and a minimum of five—up to nine—commissioners and quite a bit more staff.... The intention is that they will have a greater capacity to handle applications more quickly, so people can have their matter referred back to the courts if it meets the referral test.