Justice Committee on Dec. 14th, 2023

[Julie Besner]

—so it would depend on the evidence. I really can't get into big hypotheticals and put that kind of information on the parliamentary record as to if that particular scenario you describe would fit the bill, you know—not this bill, but fit the description. I'm sorry if I—

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

No, that's fine.

[Julie Besner]

I can't engage too deeply into....

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

No, that's fine. I've actually wondered about this for quite some time.

This wouldn't be a fresh evidence application. It's “the record says” that this person had no intention to kill. They were convicted of murder based on the law in 1981, say, and the law in 2023 would never have convicted them of murder. They potentially would have been convicted for manslaughter.

If that's the case, is there a mechanism by which the person who would have been convicted for manslaughter now, but was convicted for murder then, can go to the court of appeal, or would they need to avail themselves of this type of—

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

On a point of order, Madam Chair—

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Maloney.

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

—I respect Mr. Caputo's experience in criminal law and I'm grateful for the fact that he's probably the first Conservative since we started reviewing this bill who's remotely close to the subject matter—

[Some hon. members]

Oh, oh!

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

—but he has strayed far afield and he's now talking about things that don't have even a tenuous connection to this draft piece of legislation. I would ask that you request that he move on or get back to focusing on the actual language of the bill itself.

Thank you.

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

Can I reply, please, Chair?

[The Chair, Liberal, Lena Metlege Diab]

No. Mr. Maloney is quite correct.

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

With all due respect—

[The Chair, Liberal, Lena Metlege Diab]

Maybe there's other legislation or there are other committees on public safety to talk about parole boards and so on that you probably, you know.... But please—

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

With all due respect, is it not relevant if somebody who committed a crime in 1980 should have that crime revisited today by a commission for a wrongful conviction, based on the fact that they wouldn't have been convicted today? Do I have that correct?

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

That's not what you asked.

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

That's exactly where I was going. That's exactly what I asked, with all due respect. That's what I was saying.

Is that it? Is that not relevant?

[The Chair, Liberal, Lena Metlege Diab]

I think I'm going to allow a bit of leniency, but I'm also going to be cognizant of Ms. Besner's time and also her expertise and what she is actually here to give.

Ms. Besner, if you're receiving a question that you feel is not within the confines of this legislation, please feel free to let us know that, because there are questions being raised that I believe are not in the confines of the legislation. We certainly don't expect all our witnesses to be experts in everything to do with the law, because I don't think that's fair or reasonable or appropriate.

[Julie Besner]

The term that is used in this bill—“new matter of significance”—can include new information, new evidence, new law. New law can be a new matter of significance that could call into question the reliability of a verdict.

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

Okay. Thank you. That's exactly where I was going.

If we want to expand on the relevance here right now, I'll actually bring it full circle, and that's to say this. Somebody was convicted of an offence in 1980 that would no longer be an offence today or would be a different offence that attracts substantially less liability. Perhaps, on the advice of counsel, that person didn't appeal in 1980 because they were told, “You know what? Look, the judge got it right and you have no hope”, or the person said, “Yup, I did it and I'm not going to appeal.” I think that that's highly relevant and highly germane to what we are dealing with here today.

I've seen conviction situations like this. I think we could probably go through the court of appeal decisions from the 1970s and see people who went into a gas station with the intent to rob, and somebody died. There were a number of cases that were decided on this, and I don't think it's actually wrong for us as parliamentarians to explore whether or not that person appealed, or whether that person, period, will have recourse through this commission, and whether the legislation as it is currently written would apply to give that person recourse.

I see that I've been going for a little while here. I'm not sure if Mr. Van Popta was up next or who was up next.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Caputo.

Mr. Garrison, you're up next.

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

Thank you, Madam Chair.

I would like to start by thanking Ms. Besner for her comments on my amendment.

All I would say is that it was drafted as a parallel exemption, as was advised by the Canadian Bar Association when they were here. There is no intention for that exception to affect the existing exemption in the bill.

What I'm going to say now has to do with something I believe is in order. I'm anticipating objections. I'm going to talk about why we should deal with this amendment before us today, and the other amendments, expeditiously.

The chair has provided us with an additional amount of time, which should be sufficient for us to deal with this small number of amendments. I'd like to remind people that we're dealing with a bill that all parties supported in principle at second reading and a bill that all parties had the opportunity to introduce amendments to if they had concerns about those sections.

I want to address two things here. One is that Mr. Moore continually says there is a robust process.

I'm at risk of being a little repetitious, but the process we have in place now is not robust. Since 2002, the minister has recommended only 20 cases for reconsideration by the courts as a result of the existing process. None of those were cases affecting women. Only one of those cases was an indigenous person, and one was a Black person.

I laid out those three categories because those are precisely the groups that are most overrepresented in our corrections system. They are also the groups, because of their marginalization, that have been the most likely to suffer miscarriages of justice. The existing system is not in fact robust, and it appears to be excluding from consideration applications from those who are most likely to need that consideration.

My second point is that we're in a minority Parliament. The Conservative Party tonight has said clearly that it's their intention to force this bill's consideration into the spring. What that means is that we'll be back in this committee in February dealing with this same bill, with the same limited number of amendments. It means that this is unlikely to get back into the House before March at the very earliest.

We're in a minority Parliament, which could end at any time. We have had years of work done on this bill. Certainly I have personally been working on it, as a member of Parliament, for the last five years. I know that the former minister of justice, Mr. Lametti, worked very closely on this issue. We've had a broad consideration of these issues by very respected experts.

What I want to do right now is read into the record four letters I have from people who have been observing this clause-by-clause consideration process. I won't read them all in their entirety, but I think they're very important. They have a common theme, and that is the concern that the years of work that has been done on the creation of a new commission will be lost in this minority Parliament if this filibuster continues.

The first is from Innocence Canada's co-president, Ron Dalton, and James Lockyer, a member of the board of directors of Innocence Canada. This letter has gone to the committee, but I'm reading it into the record tonight with their permission. The way that the House of Commons grinds, it would be another day before this would be officially distributed to members and there's obviously some urgency here.

The first letter is from Innocence Canada. It reads::

All of us at Innocence Canada are extremely troubled by the events at the meetings of the House of Commons Standing Committee on Justice and Human Rights last week and this week at which certain members of the committee have been filibustering clause by clause...consideration of Bill C-40.

It is essential that Bill C-40 be allowed to go to third reading in this Session. Tomorrow's meeting of the Justice Committee—

This was dated yesterday.

—is the last chance for this to happen.

Bill C-40, creating an independent Miscarriage of Justice Review Commission to review wrongful convictions, constitutes an immense improvement to our justice system which is why we at Innocence Canada have been urging its passage for 31 years. There are women and men in our prisons for crimes they did not commit,—

[Rachael Thomas, Conservative, Lethbridge, AB]

I have a point of order.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Chair.

Chair, as the honourable member previously pointed out with regard to my colleague, his comments are currently not pertinent to the amendment that's being discussed.

I would ask, through you, Chair, that you insist that comments be restricted to the amendment that is currently a part of our conversation.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mrs. Thomas.

Of course, we do need to go back to the clause.

I'm going to allow a bit of leniency with Mr. Garrison. He hasn't had a lot of chances to speak in the last x number of hours that we've been sitting, and I think it's fair to speak to his amendment that he has put forth.