Thank you for your answer.
This ties into these amendments, because we have to look at other countries and how they handle their commissions. That's why we had witnesses from the U.K. as well as from North Carolina.
The U.K. Criminal Cases Review Commission website, under “Our powers and practices”, says:
Our legal powers mean that we can often identify important evidence that would be impossible for others to find.
We can also interview new witnesses and re-interview the original ones. If necessary, we can arrange for new expert evidence such as psychological reports and DNA testing.
We look into all cases thoroughly, independently, and objectively but the legal rules that govern the work of the Commission means that we can only refer a case if we find that there is a “real possibility”
—and this gets to the crux of my point—
that an appeal court would quash the conviction or, in the case of an appeal against sentence, change the sentence in question.
That real possibility already puts our system.... The test that's being proposed in Bill C-40 is that a miscarriage or justice may have occurred. “May have occurred” is an incredibly low bar.
Of course a miscarriage of justice may have occurred in a case, but we have to aspire to something more than the absolute floor. To suggest that someone can avail themselves of a commission, a new commission.... I'm hoping nobody in this room would want to create a parallel justice system or clog up our courts with cases that shouldn't be before them, cases that have already been dealt with. If you've been convicted of a crime and you've appealed your sentence, or not, and you have a chance to have that sentence overturned, why wouldn't you take it?
I should mention that even with this higher threshold in the United Kingdom, when this commission was opened up, they saw a rush of individuals who sought to have their convictions overturned. They have set a standard. We brought them forward as witnesses, but our standard is far lower. The effect of amendments NDP-1 and LIB-1 would be to further lower the threshold whereby someone could avail themselves of this commission.
They say the following:
We can only refer a case if we find that there is a “real possibility” that an appeal court would quash the conviction or, in the case of an appeal against sentence, change the sentence in question.
The CCRC is a prescribed body under the legislation dealing with the making of public interest disclosures (whistleblowing). This means that, quite apart from our statutory responsibility to deal with the applications we receive, we are the body to which individuals can report concerns of actual or potential miscarriages of justice.
What it takes to refer a case for appeal is new information plus a real possibility. Neither of those things is a requirement under the existing Bill C-40, let alone if we were to adopt amendment NDP-1 or LIB-1. Neither new information nor a real possibility is a requirement that would bar someone from availing themselves of this commission, using up the commission's time and perhaps clogging up the justice system when the commission doesn't even have to believe that there is a real possibility that a miscarriage of justice has occurred or that there's a real possibility of an appeal court overturning a conviction.
It's a two-part test, as we've heard. It introduces what I think is a very reasonable test: One, is there a real possibility that a miscarriage of justice occurred? If you accept that, two, is there a real possibility that an appeal court would change the sentence? What they're trying to do there is ensure they're dealing with cases that, based on the evidence before them, number one, they believe involved a miscarriage of justice, and number two, based on the evidence they have, that there's a real possibility of an appeal court overturning a conviction or not offering a conviction when there has already been one.
They go on to say, “We must be able to show the appeal court” some “new” information—again, that's not a requirement of BillC-40—“that was not used at the time of the conviction, or first appeal, and that might have changed the outcome of the case if the jury had known about it.” They say that it will not be of any use to simply apply “to the CCRC...saying the jury” got it “wrong” when they chose “to believe the prosecution case instead of the defence, unless there is “convincing new information to support that idea.”
I want to narrow in on that: It will not be of any use to simply apply to the CCRC saying that the jury got it wrong when they chose to believe the prosecution case instead of the defence. That's how our system works. Unlike what was in place for some of the wrongful convictions that are most famous in this country, we now have the Charter of Rights. We now have an improved legal aid system. We have a justice system that affords incredible rights to those who have been charged.
We've heard testimony on other pieces of legislation, like Bill C-5 and others. The fallout on Bill C-75 said that there are individuals who are being let out who should be in jail, or there are people who are not getting convictions who should get convictions. We've heard from victims saying that we don't have a justice system—we have a legal system. The cards are often stacked against victims in this country, and that's what's lost in some of this debate.
I have to refer back to the U.K. system. Their commission is one that we've chosen to take a strong look at. Simply saying, “I didn't get a fair shake” or “I don't agree”, or “The jury got it wrong”, or “The judge got it wrong and I'm actually innocent”, is not good enough to avail yourself of the commission.
What they go on to say is that for them:
To refer a case for appeal, we must think the new information is convincing enough that it raises a ‘real possibility’ that the appeal court will overturn the conviction. If we refer a sentence for appeal [we must be convinced that there's] a ‘real possibility’ that the court will reduce the sentence.
This goes to something that Mr. Caputo raised about changes in sentencing guidelines for individuals who were convicted of an offence in the past that would not be the same level of offence now. They can, in the U.K., avail themselves of a reduction in their sentence, but the commission has to be convinced that there's a real possibility the court will reduce the sentence.
Madam Chair, they go on to say, “Most people apply to the [commission] because of convictions or sentences they have received in a Crown Court.” They go on to reiterate that standard of, first, “new information”, and, second, “a 'real possibility'”.
I go back to the bill, Bill C-40, that was presented to us by Minister Virani.
Number one, does Bill C-40 say there has to be a real possibility that a wrongful conviction occurred, or a miscarriage? No. Bill C-40 says that it “may have occurred”. Even under our current legislation, which the minister currently exercises control over, there's a higher standard than “may have occurred”. Of course, it would be impossible to have a lower standard than “may have occurred”, so one thing I took some comfort in with Bill C-40 when it was originally presented is that there was this requirement that an individual would have at least availed themselves of an appeal.
Madam Chair, there's a tremendous amount of noise on the other side there.