Justice Committee on Dec. 7th, 2023

[Rob Moore, Conservative, Fundy Royal, NB]

On Bill C-40, clause 2, the analysts are here, and the witnesses from the department were here for two hours on Tuesday.

We appreciate your being here.

There aren't that many clauses in this bill, and there aren't that many amendments. However, this bill is a massive shift, I would argue, from the status quo, with the creation of a new commission and moving away some of the discretion held in Canada in the office of the Minister of Justice.

We have a history in Canada with those who have been wrongfully convicted. We have had miscarriages of justice. We also have a justice system that others in the developing world have looked at to emulate, so we certainly have a lot of good to work with.

We have to be careful when we make changes. I know that when we were in government, we made changes to improve the Criminal Code so that victims were protected, for example.

The concern I have with Bill C-40 has come up in the course of our witness testimony. This is specific to clause 2. We heard the U.K. experience. We also heard from North Carolina. I found the testimony of the witness from North Carolina very interesting. She explained to us that factual innocence underpins their system.

The reason I want to speak quickly to that is that it is what most Canadians would understand a miscarriage of justice to be, particularly wrongful conviction. It means that someone was arrested, charged for a crime they did not commit and exonerated some time afterwards. There was indeed a miscarriage of justice. They were convicted for something they did not do. They've been wronged. The system failed them. As well, the actual perpetrator of the crime is somewhere out there and needs to be caught.

I think that when a lot of Canadians hear about wrongful conviction or miscarriage of justice, that is what they imagine.

My concern is that this bill goes significantly beyond what those Canadians would imagine. It is trying to address, with a broad stroke, some issues within the justice system that could be addressed, but it should not be in a way that undermines our system and creates a parallel justice system. There's a danger of that.

I don't want to get ahead of myself, but as we look down the road at some of the amendments being proposed on Bill C-40, there's a significant broadening of the role of this commission. Underpinning even Bill C-40 itself, as it was originally presented to this committee, was a requirement that a person had at least appealed his or her decision. With some of the amendments that are coming, we are almost creating a parallel system. If you feel that you could be eligible, by some factor, for the wrongful conviction route, then, rather than appealing your decision, you would claim that there was a miscarriage of justice and go this other route. That creates major concerns.

At this very committee, in our study on the federal government's obligations to victims of crime, we had a witness who appeared. Many of you will remember her. What she said had an impact on me. You've probably heard me say it before. She was a victim of crime. She said that we do not have a justice system in Canada; we have a legal system. In her mind, those were two different things. She had been through our legal system. She had been victimized, number one, but then, going through the system, she felt she had been revictimized.

We have to be absolutely on guard, with Bill C-40, that nothing we do would add to that sense of revictimization for victims of crime in this country. They already have it tough enough. We've already studied and we've heard from them about how going to parole hearings revictimizes them, about how the way they're treated by the system revictimizes them, and about how the fear they have from appearing in court to provide testimony against the person who committed a crime against them revictimizes them. Victims of crime and their families are incredibly brave just to go through the process.

I know there are a couple of gentlemen here who have served as Crown prosecutors and have had to work with victims as they navigate the system and seek justice.

How many individuals, at the end of the day, say, “I don't feel justice has been served”?

With Bill C-40, there is a real danger that, if we don't get it absolutely right, we're going to have more of those stories and not fewer. Individuals who have been rightfully arrested, charged and convicted are going to avail themselves of this parallel system. This parallel system will involve further trauma to victims, which is why we have a threshold whereby commissions, whereby ministers....

We've seen examples of thresholds that would say that there is a reasonable likelihood that a miscarriage of justice occurred and that there is a strong possibility that a miscarriage of justice has occurred. Neither of those even come to the civil level of balance of probabilities, let alone the criminal level of beyond a reasonable doubt.

In this legislation—this goes to the root of the whole thing, and that's why I'm mentioning it at the outset—there is a requirement that a miscarriage of justice “may have occurred”. What kind of threshold is that? That threshold is embarrassingly low.

Of course, in any given situation, something may or may not have occurred. That is not a reasonable threshold. It's not a threshold that's used in North Carolina. It's not a threshold that's used in the United Kingdom. It's not even a threshold that's used in Canada. Our Minister of Justice has a threshold whereby he considers these miscarriages of justice, and the team within the Department of Justice considers them, and “may have occurred” falls far below that level.

Those are some of the concerns I have at the outset, as we look at clause 2.

I want to ask our witnesses if they could walk us through clause 2 in terms of how it amends the status quo, certainly where we are now, and how clause 2 frames what follows with Bill C-40.

[Julie Besner, Senior Counsel, Public Law and Legislative Services Sector, Department of Justice]

Yes, it's my pleasure.

Clause 2, as I was explaining the other day, deals with section 679 of the Criminal Code, which is the bail pending appeal provision. It was a recommendation, following the consultations, that the courts of appeal would be better placed to hear applications for release while the commission is considering an application, or after it has made a referral back to the courts, and that those applicants could make applications to the courts of appeal instead of to the superior courts of criminal jurisdictions.

They have been doing that under the common law, even though they've been applying the bail pending appeal test, which is the same test that applies if someone is seeking a conviction appeal. That's what Bill C-40 does.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

When you say the same—

[The Chair, Liberal, Lena Metlege Diab]

Can I recognize your colleague? He has his hand up.

[Rob Moore, Conservative, Fundy Royal, NB]

If I could just finish quickly, that just raised another question.

There has been much discussion around the standard around bail. Bill C-48 amends the bail provisions for certain offences. Bill C-75 brought in a presumption that involved individuals receiving bail, which many would argue shouldn't be there.

Is the test, then, identical to that for bail?

What do we make of moving this decision to the appellate court, which is removed from the facts of the case that would have been dealt with at trial? It's a level removed from that. What was the counter-argument, I guess, to just leaving it at the trial level?

[Julie Besner]

I mentioned that this recommendation came out of the consultations that occurred. The two retired judges who were responsible for conducting the consultations consulted with around 200 individuals and organizations. This is something that came out of those consultations. There was quite a bit of support and not too much opposition to it.

You asked the question about how it would apply before a court of appeal. A notice would have to be provided and an application put forward. There tends to be quite an extensive inquiry into whether someone could or should be released.

I can also specify that it's the applicant who has to establish that the miscarriage of justice application is not frivolous. They would have to satisfy the court of appeal that they would surrender into custody when required and that the detention is not necessarily in the public interest. It's an applicant's onus—

[Rob Moore, Conservative, Fundy Royal, NB]

I don't want to get ahead of myself on this, because we have other provisions.... We have amendments coming up that would take away the requirement contained in Bill C-40 that the applicant appeal a decision. This is why clause 2 is important.

Someone is convicted of an offence. They've gone before a judge and they've been found guilty and convicted. They're left with a possible decision at that point, in consultation with their lawyer, on whether to appeal their decision or apply under the provisions of Bill C-40 to the commission for a hearing on whether they meet the threshold of wrongful conviction or miscarriage of justice. The threshold that we contemplate setting is that “a miscarriage of justice may have occurred”. These decisions will have to be made by individuals.

Under the current Bill C-40, as presented, there would be no decision. You can't avail yourself of the commission unless you've appealed the decision. How do we reconcile this shift—or does it have to be reconciled?—if we make a subsequent amendment that removes the requirement to appeal?

We hear evidence all the time about delays in the justice system. We have Jordan's principle. We're taking court of appeal time, potentially, to deal with these miscarriage of justice cases. All the evidence we've seen so far is that the applications are going to go up. Some of the evidence we've seen is that our applications are going to skyrocket.

I don't know that Canadians believe there should be a skyrocketing in the number of people alleging that they were wrongfully convicted, but how do we reconcile...? It's not fair to you, really, because we haven't dealt with that clause yet, but there's an interplay between the two. The court of appeal is going to be in a position to have the hearing on release when someone has made application to the commission. Also, it could be that the decision is appealed to the court.

How does the interplay work on that? What if someone goes with a wrongful conviction application and then decides to appeal their decision? Again, I don't want to get ahead of myself, because we haven't dealt with that clause yet, but given that one of the amendments came from the Liberals, the government, and one of the amendments came from the NDP, I have a feeling this bill is going to be substantially changed, possibly removing the requirement that someone appeal their decision. How do those two interact, if that should happen?

[Julie Besner]

Bill C-40—

[The Chair, Liberal, Lena Metlege Diab]

Mr. Moore, having heard what you said, would you like us to vote on clause 2, since there are no amendments, and move to the clause you're referring to? Would that make it easier for you and the committee?

[Larry Brock, Conservative, Brantford—Brant, ON]

I have questions.

I want to truly understand clause 2, and at this point—

[The Chair, Liberal, Lena Metlege Diab]

That's fair enough. Thank you.

Madam Besner, I think you were prepared to shed a bit more light on that.

Would you like her to respond, Mr. Moore, or would you like to ask more questions first?

[Rob Moore, Conservative, Fundy Royal, NB]

I guess I would like, if there is something to add—if Ms. Besner has something to add, based on what I asked....

[The Chair, Liberal, Lena Metlege Diab]

Maybe I can ask Mr. Van Popta.

I know you have been patiently waiting. Perhaps you can also ask your questions and put on the table what clarifications you need as well.

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

I'm anxiously awaiting an answer to a very good question from my colleague. I don't know if Ms. Besner wants to do that.

[Larry Brock, Conservative, Brantford—Brant, ON]

I just have a suggestion, Madam Chair.

Maybe the two government officials can quickly jot down all the questions that I know my Conservative colleagues will have. Then maybe we can suspend for a few minutes and then get all the responses at the same time. That might be expeditious.

[The Chair, Liberal, Lena Metlege Diab]

I think that's a tremendously good idea. I agree.

Mr. Van Popta, it's over to you.

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

Thank you so much, Madam Chair.

Thank you, witnesses, for being here.

We're looking at clause 2, which would amend subsection 679(7) of the Criminal Code. I'm just going to read the first part of it, just to put it into context. Subsection 679(7) of the Criminal Code would now read, if and when this bill passes:

If the Miscarriage of Justice Review Commission established under subsection 696.71(1) notifies a person under subsection 696.4(5) that their application for review is admissible

and then certain things happen. It sets off a sequence of events. You've highlighted that. Thank you for the clarity on that.

My question is this: What happens if the review commission decides that the application is not admissible?

What avenue does the unhappy litigant—or I guess the person is a convict still, at that point—have under judicial review procedures? What's available? What's the standard for review?

It's been a lot of years since I studied administrative law in law school. I would just be curious as to what that is. I studied something about the U.K. procedures. I just want to do a comparative...of that.

Thank you so much for looking into that.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Brock.

[Larry Brock, Conservative, Brantford—Brant, ON]

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.

[The Chair, Liberal, Lena Metlege Diab]

You're welcome, Mr. Brock.

I have Mr. Caputo next, followed by Mr. Garrison.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair.

I don't sound nearly as smart as Mr. Brock. I'll probably ask questions that might be a bit repetitive, but I'll ask them in my own way.

One thing is interesting to me here, and perhaps I'm wrong on this. When we look at bail when somebody goes to the court of appeal, it's that court that issues process on bail and that fixes bail. If they're convicted in Supreme Court or the Court of King's Bench, it's not that court; it's the court of appeal.

In this instance, I'm assuming that the court of appeal would fix bail on terms and conditions that it sees fit. However, it's doing it in respect of a process that it has absolutely no control over, because this is a parallel process, as I understand it.

Could there be issues arising by virtue of the fact that we have a court addressing bail, and then it's not a court—it's a tribunal of sorts, or a commission—that's addressing the issue of wrongful conviction?

Secondly, would it be helpful if there were enumerated considerations for bail when somebody is released on bail, on the basis that their conviction is being investigated? I believe the threshold is “reasonable grounds to believe that a miscarriage of justice may have occurred”.

We haven't got to clause 3 yet. As we know—Mr. Fortin is smiling—that itself is going to be a very interesting question. What does “reasonable grounds to believe...may have occurred” mean? A possibility of occurrence is one thing. I mean, that's why we talk about reasonable doubt and whether the doubt is a reasonable one, and then the reasonable grounds factor into that.

What's the threshold, then? I think that an appellate court judge would probably want to know the likelihood of success of this appeal. If memory serves—I don't have my code on me—there are matters within the code that an appellate judge can consider. For instance, “I believe the likelihood of success on appeal....”

Now, at this point, too, we could look at the distinction between the court of appeal...because there, they've only filed the appeal, right? In this instance, they've actually surpassed an initial threshold.

In this instance.... I'll let you get your paper there.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Caputo, please address your questions through the chair.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

May I let her get her notebook in order, please, Madam Chair?

[The Chair, Liberal, Lena Metlege Diab]

That's not a question.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Well, I'm speaking to the witness, but I have to do it through you.