Evidence of meeting #89 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 point.
A recording is available from Parliament.
Conservative
Rob Moore Conservative Fundy Royal, NB
The ruling on relevancy would be up to you. I don't know that putting them on the spot is....
I know that Mr. Van Popta anchored clause 2 with what I thought were very interesting comments. He spoke directly from clause 2 and then brought in some relevant case law that had come from our previous meeting.
It's probably fair to ask departmental officials to comment on the question, but isn't it up to Mr. Van Popta to put the question to them based on what he's been saying?
Liberal
The Chair Liberal Lena Metlege Diab
That's a fair point, Mr. Moore.
I would have hoped that Mr. Van Popta did put some questions to the officials, but I guess that's not going to happen.
Mr. Garrison, I'm going to listen again to your point of order, so that I am fully able to make a ruling on this and move on.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I am not disputing whether Mr. Van Popta's comments are about Bill C-40—they are.
However, clause 2 is about whether someone should be detained or released while their application is being considered by the commission.
Mr. Van Popta's arguments are about, and quite rightfully, what's in clause 3 of the bill. That is about the standard by which we decide that a miscarriage of justice either may have occurred or may not have occurred.
I'm simply pointing out that the cases he's citing and the things he's talking about have nothing to do with detention or release while awaiting a decision of the commission. They have to do with something further on in the bill.
I'm not arguing that they're irrelevant to the bill. I'm just saying that since what we're facing here is a filibuster, we could at least filibuster under the right clauses.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Madam Chair, I will concede the point, but I reserve the right to talk about the Walchuk case when we do get to clause 3.
However, I do have another question for Julie Besner or Shannon Davis-Ermuth.
In preparing for this study, I read up quite a bit about the David and Joyce Milgaard case. I'm not going to belabour it, because I'm assuming that everybody is at least somewhat familiar with this case.
Mr. Milgaard served 23 years for a crime that he didn't commit. This is one of the reasons that we've introduced Bill C-40. It's because the process for seeking justice when one feels that they've been wrongfully convicted is very awkward under the criminal conviction review group process currently in the Criminal Code. Rightly, we are trying to amend that.
This is the way that it finally got to the attention of the minister of justice, who by the way was Kim Campbell at that time.
Credit goes to Joyce Milgaard's persistence, Joyce was the mother. One day in September 1991, she held a vigil in front of the hotel in Manitoba where Prime Minister Mulroney was scheduled to speak. She did not actually expect to speak to the Prime Minister, but he walked over to her to hear what she had to say. Years later, in an interview with the Winnipeg Free Press, the Prime Minister had this to say. I think it is a great quote:
There was something so forlorn...about a woman standing alone on a very cold evening on behalf of her son. But in that brief meeting I got a sense of Mrs. Milgaard and her genuineness and her courage. We all have mothers, but even the most devoted and loving mothers could not continue to crusade for 22 years if there was any doubt in her mind. So I went back to Ottawa I had a much closer look at it.
Liberal
Chris Bittle Liberal St. Catharines, ON
Madam Chair, I rise on a point of order. I don't know if there's a question coming, but it's the height of irony to be quoting members of the Milgaard family while filibustering this bill that is going to prevent people who are wrongfully detained from seeking access to justice.
I'm sure there's a question coming, but I hope the honourable member knows how ridiculous and hypocritical it is to be invoking that name, invoking that comment and using it to filibuster this committee. It's appalling.
Conservative
Rob Moore Conservative Fundy Royal, NB
Madam Chair, on that point, to be 100% clear—and I don't want Mr. Van Popta to lose his train of thought or his spot; he might even want to back up a few steps—my understanding is that Mr. Van Popta was quoting a former prime minister, the Right Honourable Brian Mulroney. In my mind, this ties back directly to clause 2, which 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) — pending the completion of the review, pending a new trial”.
We're talking about the wrongfully convicted or a situation where there's a miscarriage of justice. Mr. Van Popta is speaking very clearly and solely on those issues. The issues that he's raising relate directly to clause 2 of Bill C-40, which involves the custody of an individual who has made an application under these provisions.
Bill C-40 has not come into effect. We don't know the outcome of these deliberations that we're having. There are several amendments that we're going to get to on Bill C-40, some by the NDP, some by the government and one by us. The Conservatives have moved one amendment.
However, this goes to the core of what we're talking about here. I want to be very—
Liberal
Conservative
Liberal
Conservative
Rob Moore Conservative Fundy Royal, NB
The point was made in error. There are two errors.
One is that what Mr. Van Popta was saying wasn't relevant when it is 100% relevant.
The second is that he was quoting the Milgaard family, when, in fact, he was quoting, if we had listened carefully, which I was endeavouring to do.... I believe he was quoting former prime minister Mulroney. I stand to be corrected—and I would ask Mr. Van Popta to clarify—but I understand that he was quoting Mr. Mulroney, the impression that he had upon meeting the mother of someone who was wrongfully convicted, a mother who had been advocating for her son for 22 years.
It's on that point of order, Madam Chair.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
A number of times today we've heard from opposition members that this is a good piece of legislation. It's ironic and hypocritical at the same time.
In February, I will celebrate 28 years as a member of the Law Society of Ontario. When I became a lawyer in 1996, I took a number of oaths. One of them was to act in the best interests of my clients. One of them was to do everything while preserving the integrity of the justice system.
We have an opportunity, with this piece of legislation, to fix something that many people, as Mr. Garrison referred to earlier, are anxiously and desperately awaiting to fix.
To invoke the family name Milgaard while sitting here—this is now the third meeting—filibustering this piece of legislation—because their leader, Mr. Poilievre, has stated publicly that he has no intention of passing any legislation before the end of this session—is outrageous.
These people are waiting in prison. Their families are waiting patiently.
They should be ashamed of themselves. There are members on the other side who are lawyers themselves. There is no excuse for this, Madam Chair.
I'm prepared to sit here today, tomorrow and the next day, as long as it takes, to get this bill passed because it is important, and these people deserve it.
Thank you, Madam Chair.
Liberal
The Chair Liberal Lena Metlege Diab
I have celebrated over 32 years as a member of the bar of Nova Scotia. I too took oaths to uphold the law. Mr. Kurek spoke about Donald Marshall Jr. I was still a law student at that point. I recall vividly the royal commission and various things.
I take this very seriously. I'm sure all members here do. In light of what we are all hearing, I believe we all do take this very seriously. We're not here to harm people who have already been harmed enough. I would suggest that we stick to relevant points and avoid duplication. Let's just get on with it as much as we can.
Clause 2—there's not much in there. We've already gone over clause 2, over and over again. Were there any other points anybody wanted to make—
Conservative
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
I won't tell you how many years I've been a member of the Bar, as that would betray my age, but let's just say we're from about the same graduating class.
I'm concerned about that too. I don't always agree with Mr. Maloney, but this time I admit he raises an important point and I agree with him. I don't think the problem is that our Conservative colleagues on the committee don't want the bill passed; the problem is their leader. We can sit until next week, day and night, but we won't make it, because they have strict instructions not to let this bill pass.
I see two possibilities: either our Conservative colleagues talk some sense into their leader, or our Liberal colleagues ask their leader to talk to the Conservative leader. However, this is happening over our heads.
We can persist like this for days and days, but we won't get anywhere. Is it possible that the leader of the Conservative Party, Mr. Poilievre, will listen to reason, whether because the Prime Minister has spoken to him or because members of his party have spoken to him? That's the problem. It doesn't come from the members of this committee, for whom I have enormous respect. It's a top-down decision, as I understand it. We're wasting our time, and wasting the witnesses' time.
The most odious thing—I agree with Mr. Maloney and Mr. Garrison on this—is that there are families who, in the meantime, are waiting for people who are in prison, and there are prisoners who are waiting to get out. All they get is this kind of pointless obstruction from an individual who has decided to block the work of the House. It's very sad, but we are being held prisoner by this individual, as I understand it.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you, Mr. Fortin.
My concern is that we continue this meeting and continue the clause-by-clause study to arrive at a resolution and continue the study of this bill.
Does anyone else want to speak on this clause?
Mr. Van Popta, you do.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
I said that I had a question for Ms. Besner.
I will get to it shortly. I'm not trying to prolong things at all.
I indeed was quoting Prime Minister Mulroney and not the Milgaard family. He was speaking with a great deal of deference for Mrs. Milgaard, so I don't know how any of this can be offensive. This is what he said: “But in that brief meeting I got a sense of Mrs. Milgaard and her genuineness and her courage.” I don't know what's offensive about that.
Prime Minister Mulroney put the file back to the Minister of Justice, who I believe was Kim Campbell at the time. She reviewed it and found that he had a case, that Milgaard's application was valid, and ordered a new trial. But the Saskatchewan Attorney General decided to simply enter a stay of proceedings. Later on there was DNA evidence and he was exonerated. He actually got a reward of I think $10 million.
Here's my question. Under proposed subsection 697(7) of clause 2 of Bill C-40, how would Mr. Milgaard have been dealt with at that time, when he was in this sort of state of suspension, where the Saskatchewan Attorney General just decided to enter a stay of proceedings—not found guilty, not found innocent, not exonerated, or just no more proceedings against Mr. Milgaard?
Julie Besner Senior Counsel, Public Law and Legislative Services Sector, Department of Justice
In the Milgaard case, the Minister of Justice initially dismissed his application and then his mother approached the Prime Minister. After that a reference was sent to the Supreme Court of Canada. The Supreme Court looked at the evidence and heard from a lot of witnesses. In its decision, it recommended to the minister that it could be referred back to Saskatchewan for a new trial.
When it's referred back for a new trial, under the common law, I think the superior court in Saskatchewan would have had the authority to determine whether Mr. Milgaard could be released or detained pending that new trial. It didn't get to that, because a stay was entered, as you pointed out.
Section 679 deals with release pending a review, or release after the commission in the future makes a reference for a new appeal or a new trial that the court of appeal is the court that should hear that application for a release. I think I articulated the test. It's the same thing as if it were a conviction appeal.
Conservative
