Justice Committee on Dec. 12th, 2023

[Rob Moore, Conservative, Fundy Royal, NB]

Luckily, that's not the process we live in. In the world we live in, the rules we have are that a member has a tremendous amount of latitude and cannot be limited in their ability to speak to legislation. Mr. Kurek is not at this point even using any of that latitude.

I will note that Mr. Bittle is a first-time visitor to this committee and so far he's used every opportunity to interrupt and delay someone who is on topic, someone who's working his way to a point. The longer he is delayed and the more interruptions there are, the longer it's going to take Mr. Kurek, I would presume, to make his point.

I'm curious to know Mr. Bittle's opinion on this legislation, but to needlessly interrupt someone who is in the middle of doing their job, I think that takes away from the proceedings unnecessarily and wastes our time.

[Chris Bittle, Liberal, St. Catharines, ON]

On the same point, saying “miscarriage of justice” every paragraph or so doesn't mean you're relevant to the topic, relevant to the clause and relevant to the legislation. Mr. Kurek is obviously filibustering, and if he's going to do it, he could at least pretend to be on topic, which he's not doing.

As a new member to the committee, I wouldn't presume to filibuster here without any knowledge, any review of witnesses or any review of transcripts. Mr. Kurek is just saying words that happen to include perhaps topics of the subject here, but he should be speaking to the point, which is clause 2, which is on subsection 679(7) of the Criminal Code, and I'd love to hear Mr. Kurek talk about subsection 679(7) of the Criminal Code and how it relates to this bill. If he wants to filibuster, he can filibuster it that way. Otherwise, the chair has the authority—because Mr. Kurek is abusing this matter of relevancy—to move on on the speaking list.

[The Chair, Liberal, Lena Metlege Diab]

By Mr. Kurek's own admission, he was not a member of the committee when we actually heard testimony on the bill.

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

That was Mr. Bittle.

[The Chair, Liberal, Lena Metlege Diab]

No, no, a fair point, not to strike, but I do appreciate the point that he's raising, because I believe it's a valid one. We will now move on to the speakers list.

I believe we've exhausted the different words that you've used many times, over and over again, and there is no amendment on clause 2 either.

You could put in an amendment if you wish, but there are no amendments on clause 2.

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

Madam Chair, I rise on a point of order. I appreciate the discussion that has been undertaken here. However, as a duly elected member and as somebody who subbed in at this committee to participate in an important discussion, I would suggest that removing my ability to intervene on the speaking list comes awfully close to a violation of a member's privilege.

I'll leave that for the moment.

On the point of order, I am a little bit concerned on this issue that is larger than that, because what I've been talking about has a direct connection to the historical precedent that has led us to the point we're at in the discussion surrounding Bill C-40.

With all due respect, Madam Chair, if you are making a ruling that would violate my privilege as a member to be able to intervene meaningfully on this subject, I would urge you to be very cautious in that, because I certainly wouldn't want you to inadvertently violate a member's privilege when there is a very close connection, and had it not been for the many interruptions....

Mr. Bittle talks about filibuster. Well, his word count in this committee is certainly not small, just in the course of him taking the time to delay the proceedings on the discussion that we are having. I urge careful consideration because I think it bears both a very clear relevance to the discussion at hand, and I wouldn't want a member's privileges to be violated.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I have a point of order, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Let me just rule on what he said.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

That's coming awfully close to a threat to the chair—

[The Chair, Liberal, Lena Metlege Diab]

—and I don't take threats lightly.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

The chair is very capable of making a decision. Threatening her with that is inappropriate.

[The Chair, Liberal, Lena Metlege Diab]

I usually am very cautious in whatever I do, particularly when I'm chairing committees, whether it's in the House of Commons or anything else I've done over the last number of decades in my career.

I said you can go back later, so I'm certainly not removing your right to speak whatsoever. I intend to enforce the rules, and I believe you are being irrelevant and repetitive. I am saying and I am warning that you are risking one more time, and if I direct you to discontinue with this speech, then I will move on to another member, and you can get back again on the order of speakers if you wish.

That is it, and I can give you the page number for that if you wish, and the chapter and the book.

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

Thank you very much, Madam Chair.

When it comes to the ability for Canadians to be engaged on the subject, I think that's part of the reason why we have this before us. It's because we have examples like the wrongful conviction of Donald Marshall Jr. and the role of racial bias that was such a significant part of what led to a 17-year-old indigenous boy being wrongfully accused of murder and subsequently convicted and incarcerated for more than a decade.

I think that in the case of Mr. Marshall—as I've done some research, contrary to what Mr. Bittle is suggesting—there is a passion of Canadians to engage on this subject and, in that democratization of information, specifically with things like podcasts and Internet sites, there is the ability for people to coalesce, build communities and find support. That, I think, speaks directly to the issue at hand.

Madam Chair, because I do want to ensure that my colleagues have a chance to engage on this subject as well, in the case of the wrongful conviction of Mr. Marshall, we have an example here. I know that in representing, as was referenced earlier, my constituency, Battle River—Crowfoot, the Battle River was known to be the location of a series of battles that took place between different indigenous tribes throughout history, and in Crowfoot, named after Chief Crowfoot, who was a legendary indigenous leader on the plains. Certainly, I have a lot to say about him and the legacy he left in the creation of the modern Canada that we have today, and especially in the role he played in some of the negotiations of treaties and what that looks like for the creation of the country we have here today.

I would just note that in the wrongful conviction of Mr. Marshall and the role that racial bias played in that, it was found that there were systemic failures that contributed to Mr. Marshall's wrongful conviction and that, as we see today, were not seen at the time. These led to this wrongful conviction and a miscarriage of justice and speak to a breakdown in that needed tension that I referenced earlier.

In the example of Mr. Marshall—I could get into a few more—the Government of Nova Scotia appointed a royal commission to investigate the errors that occurred. The Marshall inquiry asked for recommendations to ensure that similar mistakes could be avoided.

The Marshall inquiry identified errors at virtually every stage of the process.

The responding police officers failed to search the area and question witnesses. The investigating officer held a known racial bias against Mr. Marshall; I won't read into the record one of the quotes there, because it certainly has some very strong language and I wouldn't want to bring disorder here. The Crown prosecutor failed to interview witnesses who gave contradictory statements and to disclose these inconsistencies to the defence. Mr. Marshall's defence counsel did not interview Crown witnesses and failed to ask for disclosure of the Crown's case. Also, the officers who investigated the case in 1982 improperly pressured Mr. Marshall to falsely admit that he had attempted a robbery, and the Court of Appeal used this statement to suggest that Mr. Marshall was partly to blame for his wrongful conviction.

To summarize this as an example that relates clearly to the overall conversation, I would suggest, Madam Chair, that we take this very seriously, that we look at some of these issues and we make sure that in the process of the discussions we have before this committee we ensure that we find the right tension, because we cannot allow the system to be bogged down with nefarious complaints of people who were convicted for breaking the law, whether that be serious crime or simple and nominal things.

However, at the same time, we need to ensure that when there are miscarriages of justice, because to err is to be human, we find that tension.

With that, I would cede my time to the next speaker, but I would ask, Madam Chair, to be put on the list. I know that I look forward—and I hope that Mr. Bittle will pay very close attention to—the further meaningful interventions that we will have, whether they be on such important examples as I've just referenced or on the many other pieces of this that speak to the importance of our getting this right to maintain that tension that needs to exist within the administration of justice within our country.

Thank you, Madam Chair.

I would ask to be put back on the speaking list. Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Mr. Garrison, go ahead.

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

Thank you very much, Madam Chair.

I actually want to speak about clause 2 of the bill for a moment. There's nothing mysterious or controversial in clause 2. Clause 2 simply says that those with an application before the new commission are subject to the same rules about release or detention as those who have an appeal pending.

It's very straightforward, not difficult to understand and not controversial in any way, so why are we spending so much time on clause 2? I want to talk about it just for a moment, because I think it's important that we proceed.

We're spending so much time on clause 2 because one party has said that nothing will pass this Parliament until the carbon tax is removed. This has nothing to do with justice issues. It's the first time since I've been sitting on this committee or previously when I sat on the public safety committee that other political agendas have stopped the work of the committee.

It's quite legitimate, I think, for people to spend hours and hours talking about justice issues, but when they're doing it for a different political purpose, it makes it very difficult for this committee to remain collegial and for people in the public to accept that there's goodwill here to attack what is a very important issue.

Why do I think it's important that we move on quickly? Mr. Moore said that we have a process for miscarriages of justice. We do, and all parties agree that it's faulty. When you look at who has succeeded in getting a successful review of their case under the existing system, there have been something like 20 cases over the past 10 years. One of those people was indigenous. One of those people was Black. None of those were women. When you look at the overrepresentation of those groups in our justice system, there's clearly a need for us to make this reform that Bill C-40 proposes.

The way that's related to clause 2 is that there are people in prison right now who have been unjustly convicted, who are waiting for a release, which this bill and this clause would provide if their application were accepted.

Another political agenda, another statement by the leader of the Conservative Party that nothing will happen here is actually keeping, in particular, indigenous women in jail longer. The sooner we can pass this bill, the sooner we can start to address those systemic injustices in our system.

There's nothing controversial and nothing difficult to understand in clause 2. If people in the clause-by-clause process want to raise general questions, there will be a time for that. At the end, we will say, “Should the bill pass?” You can debate that—I'm from a rural area—until the cows come home. There's breadth in that, but under clause 2, there isn't that breadth.

I'd urge members to stick to the topic at hand, which is the clauses we're going through. When we get to “Should the bill pass?” fill your boots filibustering if that's what you think you need to do, but what you're actually doing is keeping people who have suffered miscarriages of justice in jail longer.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Garrison.

Go ahead, Mr. Van Popta.

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

Thank you.

I will talk about clause 2 and subsection 679(7) of the Criminal Code.

At our meeting last week, Ms. Besner, you were very helpful in pointing us to the Vavilov case. I wasn't aware of it. I looked it up and read some summaries of it. It's a recent Supreme Court of Canada case. It's a judicial review case.

In the Vavilov case, the Supreme Court of Canada held that decisions about judicial review—when we're talking about reviewing a decision of either the Minister of Justice, under the current legislation, or the commission that will be established by this legislation—should be presumptively reviewed on a reasonableness basis except in five separate and discrete exceptions. This is the important part of the Vavilov case: one, cases “where the correctness standard is required by law”, the correctness standard being the higher standard; two, cases “where statutory appeal mechanisms are in place”, so, in other words, you can still appeal to the Court of Appeal; three, “Constitutional questions”; four, “General legal questions of central importance to the entire legal system”; and five, “Questions regarding the jurisdictional boundaries between administrative bodies”. For one of those categories, the reasonableness standard applies.

I did a little further digging and found a couple of really interesting cases: one called Walchuk and the other called Bouchard, both predating Vavilov. One was a Federal Court trial decision, and the other was a Federal Court of Appeal decision. They both upheld the reasonableness standard for the criminal conviction review group as it is currently existing under present legislation under the relevant sections of the Criminal Code.

I thought I would take a look at those cases, because clearly they're going to be very important to the way the new commission is going to operate. In each of these cases, the applicant is asking the commission to review their case, their fact situation. They're arguing that there's been a wrongful conviction and a miscarriage of justice, and the remedy that they would be seeking from the commission is that this would be ordered back to a trial or back to the Court of Appeal, whichever is the relevant one.

My question from the other day and that I'm looking at here today is, what happens when the commission makes a decision that the applicant is unhappy with and is turned down?

I looked up a couple of cases. The first one is a Federal Court trial decision of 2018. Jean-Claude Bouchard applied for a review by the Minister of Justice, who at the time was Jody Wilson-Raybould, so it's fairly recent. One of the beautiful things about studying common law is that we get to read stories about people's lives, and that's the way we learn the law.

Mr. Bouchard served 26 years for the murder of Robert O'Brien, the murder having taken place in 1979 in Montreal, but Mr. Bouchard always maintained his innocence. He was convicted by a jury on June 23, 1983. On June 19, 2015, some 22 years later, now on parole, Mr. Bouchard applied for a review of his case pursuant to the existing subsection 696.1(1) of the Criminal Code, on the basis that a miscarriage of justice had occurred in his case. Bouchard submitted two affidavits in support of his application.

The first affidavit was one sworn by Gilles Bénard, who quote-unquote confessed that he was indeed the murderer and that Mr. Bouchard was not. The second affidavit in support of Mr. Bouchard's application before the then minister of justice was one sworn by Gilles' son, Alexandre, who confirmed some of the facts in his father's affidavit. It would seem like a slam dunk case. Somebody else is confessing to the murder: “He didn't do it. I did it”.

However, here's the rest of the story.

Bouchard and Bénard met in a halfway house in 2011, both having served their time, inside and out, transitioning to life on the outside. They discussed their personal lives, their fact situations and the reasons for their imprisonment.

Now—and this is a very important fact—Bénard died of cancer on May 11, 2012. Two days later, Innocence McGill—a group of volunteers working out of McGill's law school—received a package containing the affidavit he had sworn four months earlier. You can immediately see why the minister of justice starts to become a bit suspicious. “Okay, here's an affidavit from somebody who knew he was dying. Clearly, he had given instructions to somebody to 'pop this in the mail the day I die'.” Two days later, the Innocence McGill people received it.

They did their job. They interviewed Bénard Junior, the son of the deceased person. On February 4, 2014, 18 months later, he signed affidavit number two confirming a number of things in his father's affidavit. The Montreal police conducted a new investigation, but this was many years later. The trail had gone cold and not a lot of new evidence was available. The minister of justice rejected the application on the basis that the affidavits didn't meet any exceptions to the hearsay rule. Without new evidence, there was no reasonable basis to conclude that a miscarriage of justice had likely occurred.

Now, the Department of Justice considered whether new evidence was admissible, and the Federal Court trial decision on their judicial review application hearing reviewed the work the minister of justice had done.

I want to read a couple of paragraphs. This is the Federal Court trial division speaking on the judicial review application: “The representative”—that would be the representative of the criminal conviction review group within the Department of Justice—“also considered Palmer v. The Queen“, a 1980 case from the Supreme Court of Canada “which held that new evidence is admissible on appeal when”, and there are four things, “(1) even by due diligence, it could not reasonably had been adduced at trial”—well, obviously the affidavit was sworn many years later—“(2) it is relevant, (3) it is credible in the sense that is reasonably capable of belief, and (4) if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.”

Clearly, the court found that the Department of Justice had given due consideration and had found against Bouchard for review. Bouchard applied, of course, for judicial review, and that's the case we're talking about here today.

This is the way the Federal Court posed the question, or how it was posed for them. “Did the Minister err in finding that Gilles Bénard's statement”—they're not even calling it an affidavit—“constituted unreliable and inadmissible hearsay evidence that offered no reasonable basis to conclude that a miscarriage of justice likely occurred when the applicant was convicted of murdering Mr. O'Brien?” That's the question that is set to be answered.

What is the standard of review? Well, paragraph 34 states, “The standard of reasonableness applies to the issue raised in this application” citing Walchuk—which I'm going to talk about in a minute—which was a 2015 Federal Court of Appeal decision.

Thank you, Madame Besner, for putting us onto the Vavilov case. That is good law, of course. I don't think it overturns the Bouchard case. It only confirms it as being good law. The reasonableness standard is what's going to apply.

The Federal Court looked at the legislative framework within which they were to work, in order to review how they were going to answer that question.

Paragraph 35 states, “It is helpful to recall the legislative framework within which the Minister is to assess an application for review based on an alleged miscarriage of justice."

First, “any remedy available on such an application is an extraordinary remedy.” That is the law today. It may change when Bill C-40 passes, but that is the law today.

In making a decision under the relevant subsection, the minister is to take into account “the relevance and reliability of information that is presented in [connection with] the application”. When the preliminary assessment has been completed, the minister dismisses the application without an investigation if he/she “is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred”. That's how the Federal Court is analyzing the legislative framework within which they are to do their judicial review.

Their finding is this, and it should come as no surprise: “The Minister is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred, since the new evidence adduced by the applicant is not reliable, and does not meet the admissibility criteria for hearsay evidence set out in Khelawon.” I have to admit, I did not read the Khelawon case.

The trial court notes, “I am of the view that the Minister could reasonably reach that conclusion, and that her assessment of the record is among the possible and acceptable outcomes that could be justified on the basis of the facts and law.”

That's the way the reasonable test works. The judicial review judge looks at the work that has been done by the administrative body and asks whether it is reasonable. I might have come to a different conclusion, but I can see that it is not unreasonable that she came to that conclusion.

I have just a couple of other citations.

The minister did exactly what the applicant argues was required of her: consider whether it was more probable than improbable that Gilles Bénard told the truth in his affidavit. The minister's answer to that question was in the negative, and that is a reasonable answer if all facts of the case are taken into account.

I find it interesting. That is really the “balance of probability” test that Mr. Curtis told us about at committee. Mr. Curtis, you'll recall, was the representative from the U.K. Criminal Conviction Review Commission. We asked him what likely or reasonable probability looked like. He said that it had to be more than fanciful but that it was not proof beyond a reasonable doubt either, that it was around the balance of probability, probably a little below the civil standard.

I find it very interesting and I'm going to read it again because I think it—

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

Madam Chair, I rise on a point of order. I commend Mr. Van Popta for actually talking about the bill and things relevant to the bill; however, he is actually talking about a different section.

We're doing clause-by-clause, and he is talking about the clause that the Conservatives have sought to amend, which deals with the bar to measure whether a miscarriage of justice is found to have occurred. That occurs in clause 3 on page 4 of the bill. Unfortunately for him, we are talking about clause 2, on an earlier page of the bill.

I would ask the chair to consider that. In fact, when we come to clause 3, I wonder whether Mr. Van Popta would be in danger of not being able to make that argument under the proper clause because he's already done so under this clause.

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

I find that what I am talking about is highly relevant to what we're talking about.

I asked our witnesses the other day what would happen if an applicant were unhappy with the decision, and I was pointed to the Vavilov case. I've done my research and I just want to confirm that I think that is exactly the right answer.

I'll see what happens when we're talking about clause 3. I'll have other things to say about that as well.

I want to move on now to the Walchuk case, which is actually a Federal Court of Appeal decision, which was three years before the Bouchard case I was just referencing.

Here is a summary of the Walchuk case. Again, this predates the Vavilov case. On June 14, 2000, Walchuk was convicted of second-degree murder of his estranged wife, Corinne. It's a very sad story. Walchuk applied for ministerial review on the grounds of miscarriage of justice. The minister of justice at that time was Rob Nicholson. His application was rejected. He applied to the Federal Court, and that application was rejected, so then he appealed to the court of appeal. That's what was happening here. Here are the facts. I'll try to be brief. It's a very sad story.

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

I have a point of order, Madam Chair. Mr. Van Popta has the same problem as before. It's not about this section. It's not about clause 2; it's actually about clause 3.

I know I'm being a bit picky here. But since it's going to take us seemingly forever to get through this bill, we could at least try to have the arguments made under the clause that we're actually considering, or saved for the clause that's coming up that they are relevant to.

The question is on whether or not it should be accepted as a miscarriage of justice. That is in clause 3 on page 4 of the bill, and not in clause 2.

[The Chair, Liberal, Lena Metlege Diab]

As the chair, I want to ask staff for a little bit of guidance.

I know I have full authority as the chair to rule on relevance and duplicity and so many other items. Based on the laws and the arguments that are made and the clause, do you have any legal opinion on what he's been going on with...whether it's directly related to clause 2 or not?

[Rob Moore, Conservative, Fundy Royal, NB]

I have a point of order, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Do you have a point of order on my asking staff the question?

[Rob Moore, Conservative, Fundy Royal, NB]

I do. When you said “staff”, I thought you were talking about your table—

[The Chair, Liberal, Lena Metlege Diab]

I meant Department of Justice staff.