Justice Committee on Dec. 14th, 2023

[Julie Besner]

When you look at page 3 of the bill, the proposed subsection 696.4(4), “Exception”, currently says “Despite paragraph (3)(b)”.

That means exceptions can be made when someone has not sought an appeal at the Supreme Court.

NDP-1 proposes to change that to say, “Despite paragraph (3)(a)”, which applies to when someone has not sought an appeal at the court of appeal. It doesn't speak to what would happen if there was an appeal sought at the court of appeal and then, let's say, it was unsuccessful and there's perhaps still an issue that could be raised at the Supreme Court.

I'm not sure what would happen if it just says, “Despite paragraph 3(a)” and doesn't also include paragraph 3(b), because proposed subsection 696.4(4) canvasses all the considerations the commission would have to look at in determining whether it could admit an application despite appeals not having been completely exhausted.

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

I see. This isn't easy, obviously. This is a complex area, so I appreciate your distilling this. I think that if I had moved such an amendment, I'm not sure that this subtlety would have resonated with me, and if you'll allow me for a second, I just want to try to wrap my head around it.

What would be the impact if NDP-1 were to say, “Despite paragraph 3(a) or 3(b)”? What would that then do?

[Julie Besner]

The factors enumerated there would apply in both circumstances.

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

Would that make it more encompassing, then?

[Julie Besner]

Yes.

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

One of the things that I don't believe.... I was gone for some of the testimony, and I apologize. I wasn't here for that, including testimony from my former colleague Mr. Wiberg, who I know is well respected across the country for his work in criminal law.

In the notion of miscarriage, here we're talking about appeal and whether somebody should be foreclosed from making an application to the commission. Perhaps I missed this, but I believe that there was substantial testimony about the definition of what would qualify as a miscarriage, was there not? Obviously, that would have to be subject to interpretation.

Does either of you have any comment on that?

[Julie Besner]

Certainly. It's true that there is no definition in the code for a miscarriage of justice, though it is a term that is used in several different sections, and I would say key sections, not to mention that this entire part of the Criminal Code that's being amended—part XXI.1—deals with miscarriages of justice. It's also used in the appeal provision. Conviction appeals can be presented to the court of appeal either on the basis of an unreasonable verdict, error of law or any ground on which there may be a miscarriage of justice.

It's not defined. The courts have certainly articulated what it can include. I believe I recall the minister also saying that it's not proposed to be defined because it's malleable, and that this is intentional because things can evolve and circumstances can be quite varied as to whether or not something amounts to a miscarriage of justice. I could say that in some of the key cases, it's been things like misapprehension of evidence. It can be prosecutorial or judicial misconduct. It can be tunnel vision. It can be a number of things.

The other thing I wanted to mention about that third ground of appeal is that it's a stand-alone ground. It doesn't have to be in combination with an unreasonable verdict. That comes from the Supreme Court in a case called Lohrer, in which the court said that that any ground that constitutes a miscarriage of justice is a stand-alone ground of appeal.

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

I'm sorry. When you say “stand-alone ground of appeal”, that's in respect of...?

[Julie Besner]

In a conviction appeal, an applicant would not have to both establish that the verdict is unreasonable and that it's a miscarriage of justice. A miscarriage of justice on its own can be a ground of appeal—

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

Oh, I see, so the—

[Julie Besner]

—or an error of law, for example. It's not that there has to be a combination of grounds. It can be a stand-alone basis to present....

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

Right, so if I understand your interpretation correctly, an applicant could go before the commission on the basis of a verdict that was reasonable on the evidence but nevertheless resulted in a miscarriage of justice. Is that what you're saying?

[Julie Besner]

It's possible.

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

Yes. I suppose that if evidence was fabricated, the verdict might be reasonable, based on fabricated evidence, but that itself was a miscarriage of justice. Am I making sense there?

[Julie Besner]

Yes.

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

You said something that struck me. We talk sometimes about categories. I don't want to misquote you, but my interpretation of what you said is that there are broad categories. We don't want to foreclose any category of miscarriage of justice.

My view is that generally when we're looking at these things, there are principles that underlie them. One principle is that somebody should not be convicted for a crime they didn't commit. That's one tenet of the rule of law. It's a very basic one: If you didn't do it, you obviously shouldn't be punished. We were all taught that. Even in high school we would talk about this in my law 12 class. We talked about whether it's appropriate for 100 people to go free to prevent one innocent person from going to jail—or 1,000. At what threshold do we reach that?

My concern is that we don't want to foreclose the categories that could result in a miscarriage of justice. Really, aren't there just a couple of principles that underlie this? The main one.... Well, I shouldn't say it's the main one, because we heard divergent testimony on this, but it's that the person didn't commit the offence. That is the most basic miscarriage of justice. We're looking at the Truscott case, the Milgaard case and others. They didn't do it. DNA says they did not commit the offence. I think we can all agree that this is a classic miscarriage of justice.

You've talked about other things, like the fabrication of evidence. If evidence was fabricated.... I'm sorry; I'm just trying to formulate my thought here. If we're looking at the fabrication of evidence as it relates to a miscarriage of justice, how would this bill look at somebody who may be factually guilty—by that, I mean they committed the offence—but should not have been convicted based on the evidence? In your view, is that a miscarriage of justice?

[Julie Besner]

I don't want to be extremely categorical in answering that question, because there could be a lot of factors at play.

In a general way, a miscarriage of justice is often seen when any new information or evidence that comes to light calls into question the reliability of the verdict or the process that led to it. Sometimes that second branch—the process that led to it—could be things like coercion, the extraction of a false confession or threats. You gave the example of fabrication of evidence. That's an example.

There are also other circumstances. In the early 1990s, for example, a broad review was conducted of self-defence after the Supreme Court came out with its decision on Lavallee, with the battered woman's syndrome and all of that. A lot of cases needed to be examined just to see whether a valid defence of self-defence could have been advanced and was overlooked. That's despite it having resulted in, for example, the death of a spouse.

There could be a variety of different circumstances. We can't be very categorical, but that is also the benefit. We try to describe it as not being defined, but the courts have not had any problems, as I've observed in my reading, with wrapping their minds around the concept of miscarriage of justice.

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

Thank you. I know these are hard questions, so I apologize. I find this very interesting, to be candid.

If I have your point correctly, it's “was justice done?” To the point I made earlier, I would call it factual innocence, if you will. Then you also have the process by which a person is found guilty. Was there obstruction of justice there? Were there any of these categories?

Those are the underlying principles. That's the point I was trying to get at before. When we look at these things and the categories, perhaps it's as simple as that. There are a couple of categories here that result in a miscarriage of justice. The defined one is that the person is factually innocent. Number two is that the process by which the person was convicted was flawed in some way.

Can we agree on that? Are those the two categories?

[Julie Besner]

Could I ask you to repeat them?

Okay, I have them now—

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

You do? Okay. I'm certainly open to whatever you have to say on this.

[Julie Besner]

I think you just kind of repeated what I had first articulated about anything that calls into question the reliability of the verdict or the process that led to it. Did you want additional examples of the process that led to it? Is that what you're asking?

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

No, what I'm asking is whether there are any other categories that you would see that would lead to a definition of miscarriage of justice. What I'm trying to drill down to here are the principles that amplify what a miscarriage of justice is.

[Julie Besner]

The description I provided is a bit of a catch-all, so underneath that, there could be a lot of things that fall into those two broad categories.

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

Okay. Suppose someone is reviewing their sentence from 40 years earlier, and sentencing has drastically changed on how an offence is viewed. Would that itself come to be something that could result in a miscarriage of justice or be construed as a miscarriage of justice? Let's say the sentence at the time was within the appropriate range, so the judge who imposed the sentence did not commit an error of law in imposing the sentence. Now, 40 years later, that sentence would be dramatically different. Would that be considered a miscarriage of justice, potentially?

[Julie Besner]

I don't want to speculate too broadly on that because I think it's something that the courts would certainly turn their mind to if it came up as an issue in a particular case. I can say that I recall having heard that in the U.K. they did re-examine some sentences for individuals when there was no longer an offence. I think it was, for example, same-sex relationships from decades ago. I think they did do some kind of review of the kind of conviction and sentence that had been imposed when afterwards the law had evolved.