Justice Committee on Dec. 14th, 2023

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

Right. I can't recall under what prerogative the government can look at that. There must be a mechanism by which the Minister of Justice can say, “This was historically an offence. It is no longer an offence. It should never have been an offence, and for those people who were convicted of this offence, that is of no force and effect.” Is there a mechanism in the law to do so?

[Julie Besner]

I believe it falls under the Minister of Public Safety's portfolio for pardons.

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

Okay. For pardons, I thought it was something a little bit different from that. It's my understanding that the pardon is issued at the individual level. In the example I was describing, everybody who falls into this category is no longer considered to have committed an offence, whereas a pardon—or a record suspension, as I believe they call them now, just to confuse us a little bit more—is provided by the Parole Board of Canada, which is at arm's length from the minister and in—

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Garrison, on a point of order.

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

We had this concern raised before. We're dealing with clause-by-clause consideration of the bill, and much of what Mr. Caputo is talking about has absolutely nothing to do with either the clause under consideration today or the specific amendment we are dealing with.

I would ask the chair to remind Mr. Caputo that while there are other opportunities in the clause-by-clause consideration to talk about the bill as a whole, this is not that opportunity. This is to talk about the amendment before us and the clause that is under consideration.

[The Chair, Liberal, Lena Metlege Diab]

Obviously, that is absolutely correct. We are dealing with clause number 3.

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

We are dealing with clause number 3 and amendment NDP-1, which also, in my view, incorporates amendment LIB-1, but when we're talking about whether a person has exhausted their appeals and when we're talking about what a miscarriage of justice actually is, to me, that is germane to every single section in this bill. I'm not sure that we can say that what constitutes a miscarriage of justice is not relevant, when every single section in the bill deals with that.

With respect to my honourable colleague, I have to part company on that point. I think it is completely relevant.

[The Chair, Liberal, Lena Metlege Diab]

Do you want to continue with our clause 3, please, on NDP-1?

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

Yes.

[The Chair, Liberal, Lena Metlege Diab]

We can read it into the record if that helps everyone.

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

I'm in the chair's hands.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Garrison, do you want to read your...?

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

No, Madam Chair. I believe it's the responsibility of the members, when it's already been presented to the committee, to do their homework and be here prepared and know what section we're on.

As I said earlier, and with all due respect to Mr. Caputo, there is a section during clause-by-clause consideration when we will be asked, “Should the bill pass,” which allows for general discussion of the bill as a whole. That is not the purpose of our discussion and debate of this clause or this specific amendment.

I will have some more to say later about this, obviously.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

That is absolutely correct.

When we're talking about generalities, you do have a chance at the end when we are talking about the bill. Right now, we are dealing with clause number 3, so please go ahead.

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

I agree.

My point is that the generality about what a wrongful conviction is isn't just an issue with the bill as a whole; it is an issue that strikes at the heart of every single clause. Again, I have to part company with my colleague on that point.

On the issue of pardons, I found that interesting, because I believe that somebody gave testimony about that. I can't recall who it was, but they gave evidence about somebody whose life had dramatically changed subsequent to their conviction. If we want to really tie it up with the amendment, in that case the person may or may not have appealed.

Let's say they didn't appeal, because in their view they were factually guilty and morally guilty, but 30 or 40 years later, they have changed their life, and they've not had a single offence since then. My understanding is that ordinarily a person in that case would seek a pardon. As to the legal effect of the pardon, the precise wording escapes me, but it essentially says that although you were convicted, you will no longer have a criminal record.

Did I say that properly, in your view?

[Julie Besner]

I'm not an expert on the record suspension statute, so I can't quote or lift from the language of it. I'm sorry.

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

Okay. I'll assume I'm kind of correct on that for now.

That was something that was a bit confusing to me. We had one witness—and, again, I apologize because I can't recall who it was—who said, on the one hand, yes, somebody has changed their life, even perhaps somebody who was doing a life sentence. I can remember meeting somebody well into their 70s, and you would have no idea that they had committed the offence of murder in their 20s. You would have no idea. It was a completely different person. They've been out of jail for 35 or 40 years. They could be your next-door neighbour.

Now, in this instance, when it comes to the bill, could it be that such a person who has changed their life and would ordinarily be under the record suspension or pardon stream, was subjected to a miscarriage of justice in the sense that this person has that offence on their criminal record or is still doing time for that offence by virtue of the fact that they're under the jurisdiction of the Corrections and Conditional Release Act?

[Julie Besner]

I think that all I can add to that is that currently, and I would imagine in the future, as part of the screening process, it would have to be determined whether what's being sought here in an application for a miscarriage of justice review is the proper avenue for the individual to pursue, whereas under the public safety umbrella, as I described, the Corrections and Conditional Release Act, I think, includes the record suspension regime.

Currently, sometimes people are diverted to the other stream if that's really the avenue they should be pursuing, depending on the circumstances, and that's at the initial screening at intake. I think that will continue to happen with the commission.

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

Perhaps I'll try to be more direct.

We heard evidence at committee from a witness who said that somebody in that situation should be able to apply to the commission for a review of their conviction or their sentence based on subsequent behaviour.

Could that be encompassed by the wording we have here?

[Julie Besner]

I don't believe it could be, on that short description you provided. There are admissibility criteria. They are actually in the provision being discussed right now. They have to do with the type of finding or verdict the court entered and then whether the individual exhausted their rights of appeal. There would be other information that the commission would request in the application form in order to do an initial screening of the application.

I think it's a separate stream when it appears obvious on its face that the conviction is reliable, that it's just a rehabilitative situation and that they're looking for some kind of reprieve from the effects of their sentence and conviction. I don't think that would be this stream, if I understood your question clearly.

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

Thank you. I think you've answered it.

An error of law is obviously a miscarriage of justice. If an error of law is committed and there is an appeal, presumably it would have been found by the appellate court. Is that correct? Is there a situation in which an error of law occurred, an appeal occurred, the appeal court got it wrong, and then 30 years later they had a chance to revisit it?

[Julie Besner]

It depends. In the statute we have, in the considerations, is there a new matter of significance that was not previously considered by the court? A new matter of significance can be new information or new evidence. That is sometimes one of the first indicators. If there's something new and it wasn't previously considered, it may call into question the reliability of the verdict.

To distinguish between evidence and an error of law, which you launched your question by saying, there are circumstances in which the law evolves and the legal society becomes more informed of how the law should be applied in the present day. Evolution in the law is something that could be looked at.

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

I'm glad you said that, because—this is going to sound totally nerdy—I remember my first-year criminology class in, I believe, 1997 or 1998 at Douglas College. Mr. Garrison may have taught criminology, actually, so it's a shout-out to Douglas.

I still remember my first-year instructor. [Inaudible], Paquette, Logan, Vaillancourt and Rodney are the five cases that talk about intent to kill and whether you need subjective foresight, objective foresight and all that other stuff. It used to be, pre-charter, that a person did not, I believe, need to have any foresight to kill in order to be convicted of murder. The big case that changed that was Vaillancourt. I'm going back, so please nobody quote me on this, but there had to be some sort of objective foresight.

I'll give a classic example. Two people have the common intention to rob a bank, and they go in there. Person A and person B both have firearms. Person A commits the offence of murder, but Person B is liable for constructive murder, which I believe is the term that was used. A person convicted of that in, say, 1980 at 21 years old is now in their sixties or seventies and out of jail or not out of jail. That person would not be convicted today on that.

Is there a mechanism by which that person could go to a court of appeal right now to have the conviction quashed based on the change in the law?

[Julie Besner]

I'm aware that there are fresh evidence applications that are made routinely to the court of appeal, even if it's beyond the time within which to normally file an appeal with leave—

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

Yes, of course.