Justice Committee on Dec. 14th, 2023

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting 90 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation regarding miscarriage of justice reviews.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. I have two members attending remotely using the Zoom application. They are familiar with the processes of committees.

I would like to let members know that the tests were completed successfully.

Here with us today once again on our clause-by-clause study of Bill C-40, we have officials from the Department of Justice.

Joining us are Julie Besner, senior counsel, and Anna Dekker, senior counsel and deputy director, public law and legislative services sector.

Welcome.

Colleagues, pursuant to the order of reference of Wednesday, June 21, we are resuming debate on Bill C-40.

(On clause 3)

We are on amendment NDP-1. This has already been moved.

If NDP-1 is adopted, LIB-1 cannot be moved due to a line conflict.

House of Commons Procedure and Practice, third edition, states on page 769:

Amendments must be proposed following the order of the text to be amended. Once a line of a clause has been amended by the committee, it cannot be further amended by a subsequent amendment as a given line may be amended only once.

We will resume debate.

Mr. Housefather—

[Rob Moore, Conservative, Fundy Royal, NB]

I have a point of order.

[The Chair, Liberal, Lena Metlege Diab]

—the floor is yours.

[Rob Moore, Conservative, Fundy Royal, NB]

On a point of order—

[The Chair, Liberal, Lena Metlege Diab]

Yes, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Chair, Mr. Fortin is not here. At the end of your opening statements, he always asks if the people who are remote have had their sound checked and if it was successful.

[The Chair, Liberal, Lena Metlege Diab]

I said it was, but I said it in French. My apologies if you didn't understand it.

[Rob Moore, Conservative, Fundy Royal, NB]

I know, but he always asks. Whether you say it or not, he tends to ask, so on his behalf I'll ask.

[The Chair, Liberal, Lena Metlege Diab]

Sometimes I forget, so—

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I have a point of order, Madam Chair.

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

I'm glad the Conservatives have decided to take this seriously today.

[The Chair, Liberal, Lena Metlege Diab]

Please go ahead, Ms. Michaud.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I'd like to thank the Conservative member for his point of order, but since you mentioned it at the beginning of the meeting, Madam Chair, I didn't feel the need to ask.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Before I go to Mr. Housefather, I simply want to say, because this is public for people and for the members, thank you very much for being here today. We have extended hours—very, very long extended hours—and I know that everybody realizes the urgency of having this bill proceed to third reading. Again, it's a matter of justice for our country. We are here to deal with it this afternoon.

Mr. Housefather, the floor is yours.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you so much, Madam Chair.

As I mentioned at the last meeting, I want to thank my colleague Mr. Garrison, whom I very much admire for his views on justice issues. I think they're very similar to mine.

I think my amendment, LIB-1, is preferable to NDP-1 in terms of way amendment LIB-1 is structured. They both try to achieve the same thing, which is that somebody who hasn't appealed to the court of appeal may also benefit from the commission looking into their file should the commission choose to do so. What my amendment basically makes clear is that someone who has not appealed to the court of appeal is treated in exactly the same way as if they had not appealed from the court of appeal to the Supreme Court. The commission would look at exactly the same factors to determine whether or not there was a reason that they should look at that case.

The streamlined way that I have done it in LIB-1 basically treats a non-appeal to the court of appeal the same way a non-appeal from the court of appeal to the Supreme Court is treated. I actually think it's a more flexible way and would give more people the option to be heard by the commission than they would in the way NDP-1 is structured.

While I agree completely with the premise of NDP-1 and with the idea that people who have not had the ability to appeal to the court of appeal, especially the poorest and most vulnerable defendants, should have the right to have the commission consider whether there are factors that should allow the commission to look into their case, I think the way that mine accomplishes it is better. Because there's a conflict of lines and we can't pass both, I'll be voting against NDP-1 and for LIB-1. I just wanted to explain that.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Housefather.

Go ahead, Mr. Garrison.

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

Thank you, Madam Chair.

I guess I remain stupidly optimistic that we can finish consideration of these amendments and finish consideration of this bill today. As I have said many times, many people among those who are marginalized in our country are currently serving time for crimes they did not commit. They are waiting for this commission to get up and running so that they can seek justice. I'm hoping that today, in the next two hours, we can dispatch this bill and make it ready for the House to consider in the next sitting.

What I want to say is that I do agree with Mr. Housefather that we are trying to accomplish the same thing, but in defence of my amendment, I've tried to focus the commission's attention on those who did not appeal and on the reasons they did not appeal, and to focus on the reasons—through legal representation, through knowledge, through opportunity—that people were constrained. They didn't have the ability.

I am not intending to make a wide opening to the commission for people who didn't appeal who aren't in that situation. For that reason, I wrote it specifically into the amendment to make it clear that it was for the purpose of those who simply didn't have the opportunities or the abilities, and it was not simply anybody who failed to appeal.

I agree with Mr. Housefather that mine is in fact probably a bit narrower, but it's a bit more focused on providing the right to be heard to those who had limited opportunities and resources.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Garrison.

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Chair, I thought Mr. Caputo was next.

[The Chair, Liberal, Lena Metlege Diab]

[Inaudible—Editor] unless you don't want to.

[Rob Moore, Conservative, Fundy Royal, NB]

No, I do, actually.

[The Chair, Liberal, Lena Metlege Diab]

Okay. Please proceed.

[Rob Moore, Conservative, Fundy Royal, NB]

It's on a point that was just raised by one of our colleagues here, Mr. Garrison. He said that there are individuals who suffered a miscarriage of justice or a wrongful conviction who are waiting for this legislation to pass, when in fact it was the testimony of the....

I just want to point out, so that Canadians are not under a wrongful illusion of what the situation is, that there's a robust process that currently exists and has existed over the last eight years of the current Liberal government, and existed prior to that as well under a Conservative government, that someone who has been wrongfully convicted or suffered a miscarriage of justice can avail themselves of. Ultimately the arbiter of the outcome is the Minister of Justice. Minister Virani appeared here and explained the current system.

Bill C-40 seeks to amend that system. It seeks to change it so that it is not the Minister of Justice. We've had a number of ministers of justice who have spoken to us about this. We've had a number who have dealt with cases of wrongful conviction. Minister Virani—possibly, not yet—said that there are some in the hopper, so to speak, with the department. There's a team of individuals at the Department of Justice who are experienced and specifically tasked with dealing with, under our current Criminal Code and laws, miscarriages of justice. They provide advice to the minister. That's the way it has been done.

There are those who feel that this process is inadequate. There's no doubt that laws can always be improved upon, but I wouldn't want anyone to think that unless this bill passes, the wrongfully convicted do not have a process to avail themselves of, because they absolutely do. That should be acknowledged. That's the testimony of the Minister of Justice, who appeared here on this legislation.

I wanted to make that point quickly at the outset, Madam Chair. If individuals are somehow waiting for this legislation to pass, individuals who are wrongfully convicted.... If, for example, DNA evidence subsequently shows that they in fact were not the individual at the scene of the crime, or new evidence comes forward that somehow exonerates this individual who was arrested, prosecuted and convicted with the full benefits of the Charter of Rights and a robust defence.... This individual was convicted of a crime, but subsequently we find out that the system got it wrong and that his individual is not guilty; this individual is innocent. Well, then, there is a process, so nobody in that situation should be waiting for Bill C-40 to pass.

To say that we're waiting for C-40 to pass would be to say that we're somehow opening up our system of justice in this country and opening the doors up to allow individuals who are not innocent to avail themselves of this process. If someone is factually innocent of a crime, there's a process whereby ultimately Minister Virani makes the call under the advice of an entire team within the Department of Justice. There is a process for that.

I wanted at the outset, before we get into this, to state that. I just thought, with the comments from Mr. Garrison, that someone could be led to believe that Canada doesn't have a process, when in fact we have a very robust process.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Caputo, you have the floor.

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

Thank you very much, Madam Chair.

I want to thank our witnesses, Ms. Dekker and Ms. Besner. I know that you've been very patient with us.

Welcome, Ms. Michaud.

I think she's our only visitor—oh, we have Mrs. Thomas as well. Thank you very much for joining us.

I think that the dichotomy between the two amendments is an interesting one. A lot of what we deal with really does come back to the clause generally that we're dealing with, clause 3, as it relates to the issue of a miscarriage of justice.

To our witnesses, we've heard what both Mr. Garrison and Mr. Housefather have said. I don't doubt they obviously come at this from a very sympathetic and compassionate point of view. They come at it probably from the same angle as everybody here, which is that none of us wants to see a wrongful conviction.

I have expressed this many times before. I won't get into significant details, but most people here know I was a defence lawyer for a time, and a prosecutor for a much longer time. One case haunts me to this day, an administrative case that would not have been considered a serious case by the public, but one in which I really think the person was not dealt with appropriately by the courts. I would classify it as a miscarriage of justice. There are all sorts of law society obligations now on my part, even with respect to that file. I think about it, because these things absolutely, positively never go away.

Again, I won't mention names due to privacy and confidentiality, but I've also dealt with somebody who, in the past, was subject to a wrongful conviction, and was—