Justice Committee on Dec. 12th, 2023

[The Chair, Liberal, Lena Metlege Diab]

Mr. Moore, you're next.

[Rob Moore, Conservative, Fundy Royal, NB]

The question that I have can wait. It covers a couple of clauses, so I'm good.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Kurek, you were on the list.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thanks, Chair.

I do have a number of questions, but just in light of some of the ongoing conversations here, I will have some statements about the case of Wilson Nepoose that I think bear relevance to a number of sections, including clause 2. Those questions can also be raised in some of the subsections in clause 3, so I will cede my time.

[The Chair, Liberal, Lena Metlege Diab]

I have no one else on the list.

(Clause 2 agreed to)

(On clause 3)

Does a member wish to put forth an amendment to the clause?

Go ahead, Mr. Garrison.

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

Thank you, Madam Chair.

I believe that NDP-1 is the first amendment to be considered in this clause.

[The Chair, Liberal, Lena Metlege Diab]

That's correct.

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

As Bill C-40 stands, it requires applicants to the commission to have exhausted all of their appeals before their applications can be accepted. As we've heard almost universally from witnesses before this committee, this potentially excludes applicants who are the least likely to have been able to have either the resources or the ability to mount such an appeal.

What this amendment proposes to do is what was suggested by the Canadian Bar Association, which is to create an exception. It's not to say that anyone can appeal to the commission, whether or not they've appealed. What it says is that, if the commission takes into account factors that have constrained the ability or the opportunity of the applicant to file an appeal, they may accept the application.

This has not opened the doors wide, but it allows people to make an application when they may not have had adequate legal advice, may not have known the process or may not have known the deadlines for filing appeals and therefore missed their chance to appeal. There are all kinds of factors, and someone who is marginalized, racialized, indigenous or poor is very unlikely to have the skills and abilities to understand how to make that appeal, and legal aid is quite often not available to people in that situation in many provinces.

This says that the purpose of establishing the new commission is to make sure that we catch all of those people who may have suffered a miscarriage of justice, and among those are people who may not have been able to file an appeal. This creates a narrow exception under the authority of the commission to accept an application when they believe that those people who are most marginalized in general may not have had the opportunity to file an appeal.

I know that there have been some references to concerns about opening the door to everyone applying to the commission. This amendment does not do that. It creates a limited exception, and it gives the commission the authority to decide if it feels that the case meets the criteria that they set for this exception.

I believe, as we heard from almost all the witnesses on this bill, that this is an important improvement that we could make to the bill without affecting the ability of the new commission to consider cases and without throwing the doors wide open to those who may not have had a good case at all, those sometimes referred to as the “faint hope people”. It focuses on what we're trying to do here, which is make sure we correct systemic miscarriages of justice where people lacked resources and the ability to defend themselves against the miscarriage of justice.

Thank you, Madam Chair.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Chair, I would like to ask a question regarding procedure.

As I understand it, if the NDP-1 amendment passes, the LIB-1 amendment cannot.

Is this the case?

[The Chair, Liberal, Lena Metlege Diab]

That's right. I was just about to mention that.

Go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

Let me just say first of all how glad I am that we're getting to talking about amendments.

I want to thank my colleague Randall for this amendment, because I agree with him. LIB-1 is drafted to essentially do a similar type of thing, but I prefer the way LIB-1 is drafted. LIB-1 makes it clear that the same criteria will apply to cases that weren't appealed to the court of appeal in the same way as if they weren't appealed originally to the Supreme Court.

[The Chair, Liberal, Lena Metlege Diab]

Can I get a clarification? Are you talking on the clause?

[Anthony Housefather, Liberal, Mount Royal, QC]

I'm explaining why I don't support NDP-1. I support LIB-1. There is a conflict of lines, and it is a similar type of amendment.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a point of order.

[The Chair, Liberal, Lena Metlege Diab]

Okay, I was going to read that, “Once moved”—so you've moved it—“if NDP-1 is adopted, LIB-1 cannot be moved due to a line conflict.”

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Chair, I'm speaking to NDP-1 and explaining why I believe LIB-1 is preferable to NDP-1, which is why I would not be voting for NDP-1. It's perfectly in order.

[Rob Moore, Conservative, Fundy Royal, NB]

No one is suggesting it isn't, but I think there's a speakers list.

[Anthony Housefather, Liberal, Mount Royal, QC]

Right, but I thought I was on the speakers list and that's why I was recognized.

[Rob Moore, Conservative, Fundy Royal, NB]

You're on it, but you're not at the top of it.

[Anthony Housefather, Liberal, Mount Royal, QC]

Oh, well, it's a totally different question if I'm not on the speakers list now.

[The Chair, Liberal, Lena Metlege Diab]

I think you've already made your point. Have you?

[Anthony Housefather, Liberal, Mount Royal, QC]

No. I would like to speak to it eventually. Of course, if I'm not the first one on the speakers list and was erroneously recognized, no problem.

I'm sorry, Madam Chair. If I'm not the first one on the speakers list, please come back to me.

[The Chair, Liberal, Lena Metlege Diab]

You were making your point on the amendment, I guess.

[Anthony Housefather, Liberal, Mount Royal, QC]

There's no amendment. I was speaking to Randall's amendment. If I'm not the first one on the speakers list for Randall's amendment, then I....

Am I or am I not?

[The Chair, Liberal, Lena Metlege Diab]

I wasn't sure if you were making an amendment. That's what I was asking you.