Thank you, Madam Chair.
I'm going to go through NDP-1 here a bit now. What I see here is that at the outset, it speaks about replacing line 35 on page 2 with the following.... I do this because I sometimes have difficulty placing it unless I read the whole thing together.
It would read:
For the purposes of subsection 696.4(3), the application must include information indicating whether the person’s rights to appeal the finding or verdict have been exhausted and, if they have not been exhausted, information relevant to any factors that the applicant believes should be taken into account for the purposes of subsection—
As it currently reads, it's:
....relevant to the factors referred to in subsection 696.4(4).
Those subsections are under proposed subsection 696.4(4), and I'm looking at page 3 right now. It reads:
the amount of time that has passed since the final judgment of the court of appeal;
If I understand the NDP amendment, it would remove the requirement to consider these things, but the amount of time that has passed since the judgment until the time of appeal is quite relevant.
Next, it reads:
the reasons why the finding or verdict was not appealed to the Supreme Court of Canada;
Now, we have heard a fair amount of evidence. We've also heard a number of submissions from members of this committee as to why or why not something may have been appealed to the Supreme Court of Canada, and why or why not something may have been appealed to a provincial court of appeal. Again, I think that it's probably a relevant factor as to why we should be considering whether or not the commission should review the application.
Next, it reads:
whether it would serve a useful purpose for an application to be made for an extension of the period within which a notice of appeal or a notice of application for leave to appeal, as the case may be, to the Supreme Court of Canada may be served and filed;
This is an interesting point here in proposed paragraph 4(c). The reason I say that is we have talked about legal aid and its lack of funding. Ultimately, the final say on whether a decision is appealed rests with the accused, who is obviously going to be the client. A lawyer can't put forward an appeal if their client does not wish to put forward the appeal.
It's obviously quite relevant. This is interesting to me, because what this is asking is whether it would serve a useful purpose for an application to be made for an extension of a period of time for an appeal when this person is claiming that a miscarriage of justice has occurred. I wonder whether provincial legal aid bodies would look at this provision, take heed of it and say that when they're dealing with something that is a potential miscarriage of justice or an allegation of a miscarriage of justice, they will appoint counsel in order to seek an extension of time to appeal. The mischief that NDP-1 and LIB-1 are addressing, as I understand it, is that some people wouldn't have appealed because they didn't have the means. If I understand it correctly, that's one of the issues.
What if proposed paragraph 4(c) is really an exhortation to say to legal aid in the provinces, “Look, you should be funding these appeals. In that case, seek leave to extend the time to appeal and then seek to appeal”? In that case, we are actually looking at a court of appeal maybe saying that on the basis of the appeal, there is no need to go before the commission.
We have to remember that the court of appeal is the mainstream process. Everybody who's in the room knows that when somebody is unhappy with their decision, they have the right of appeal. That is the main way that things are done.
This is actually quite a revolutionary piece of legislation, when we think about it, because we're establishing a commission. We'll have commissioners appointed by government who don't necessarily, as I recall, need to have a legal background. This is a parallel set of proceedings.
The question of whether a person should have to have exhausted their appeals and whether that should be material, I think, is quite a live issue, especially if the provinces—reflecting on what we've had to say and listening to what Mr. Housefather and Mr. Garrison have had to say about people maybe not having had the ability—ask if the recourse shouldn't first be to the court of appeal. That is the whole point of our system. When you have been aggrieved, when the court below gets it wrong, you go upstairs. That's what we would say, right? You would say that it's time to go upstairs to the court of appeal.
I find that interesting and I wonder whether we should be circumventing the necessity for an appeal. I wonder—I'm just thinking out loud here—whether an amendment could actually be made, and whether there might be.... I'm just trying to think about the cases that relate to the funding of appeals, especially if there's a bona fide potential for a miscarriage. If somebody shows that they have a bona fide case that there “may” have been a miscarriage of justice—not even at a high threshold, because we're not talking about overturning the appeal but only about the appointment of counsel to simply help somebody to appeal—then in that case, I don't think anybody around this table would say, “You suffered what could have been a miscarriage of justice 30 years ago. You did not have the means to appeal it. Therefore, this legislation will not only establish the commission to do it, but it will also establish a mechanism by which you could pursue that in a more streamlined manner.”
I'm not sure. I'm not going to ask the experts to comment on it because I know that's not an easy thing to do, given that my thoughts on this are still coming together, but—