Thank you, Madam Chair.
I was talking about the U.K. system and their standard as it relates to NDP-1 and LIB-1—that “real possibility” standard. This is seen as a lower bar than Canada's current threshold.
If I were to ask everyone around whether they know what Canada's current threshold is, I don't know if they would know. However, the current threshold requires this: “a conclusion that a miscarriage of justice 'likely occurred.'”
Within our system—and this ties into NDP-1 and LIB-1—we have “beyond a reasonable doubt”. That's the highest standard that we use. That is the standard by which someone needs to be convicted; it has to be “beyond a reasonable doubt” that they committed the offence. It can't be that the person might have done it, that there's a good possibility that the person did it, or that on the balance of probability, fifty-fifty, we think he did it. That's not the standard that we use in Canada. The standard that we use for conviction is “beyond a reasonable doubt”.
A lower standard, applied in civil cases and some other cases, is on a balance of probabilities. That means you weigh the scales and you say that it's more likely scenario A than scenario B. That is a balance of probabilities.
The Canadian standard right now under wrongful conviction—the current law—“requires a conclusion that a miscarriage of justice 'likely occurred.'”
When you consider these different standards, Madam Chair, that's a fairly high bar, to say that it “likely occurred”. The minister has to feel that there was a miscarriage of justice. It's not that there “may have been” and it's not that there's a “real possibility”; this is a somewhat higher standard. It's not as high as the Criminal Code standard of “beyond a reasonable doubt”, but it's that it “likely occurred”.
The U.K. standard is that there's a “'real possibility' that a conviction would not be upheld”. “Real possibility” is a far lower standard than our current standard of “likely occurred”. This different standard helps to explain a much higher volume of cases that are successful in the CCRC—that's the Criminal Cases Review Commission of the United Kingdom—versus those in Canada's criminal conviction review process.
We're talking about—depending on how many we're counting—a minimum of three standards here. One is our current standard that “a miscarriage of justice 'likely occurred.'” The other is the U.K. standard that there's a “real possibility” that a miscarriage of justice occurred, and then there's the new standard in Bill C-40. The new standard in Bill C-40 is “that a miscarriage of justice may have occurred”.
That's why, Madam Chair, I have real concerns about reconciling NDP-1 and LIB-1 and explaining how this wouldn't open up an absolute tsunami of applications. This is a very subjective test, and depending on how the commission chooses to operate, we could have a ridiculous volume of frivolous cases with that standard.
I'm not suggesting, necessarily, that the current standard is the appropriate one. The current standard is that it “likely occurred”, which I take to mean that the minister feels there's at least a 51% chance that there was a miscarriage of justice. To me, the U.K. standard is more reasonable. That's why later on, once we've dealt with NDP-1 and LIB-1—I'm not speaking to it now, but later on—you'll hear us move a Conservative amendment that would change that standard from “may have” occurred to the U.K. standard of “likely” occurred. I think that's completely reasonable. I think that will protect this commission and protect Canadians' perception of our justice system.
I was looking at some polling. I'd encourage all members to look at the polling on how Canadians feel about our justice system. It's pretty dismal. Canadians are really concerned about our system of justice in Canada. A top concern is that the rights of victims are protected and that the individuals who should be behind bars are in fact behind bars. We have to be very careful. In Bill C-40 we have to get it right. At the outset, when I speak to NDP-1, it ties in directly to this standard that a miscarriage of justice “may” have occurred.
Following on the idea of the CCRC, the U.K. commission, the idea of a Canadian CCRC obviously has significant support among experts and stakeholders. Some people argue that it's potentially too costly. Canada has a low number of identified wrongful convictions. You could take that to mean a couple of different things. You could say that we're not finding enough wrongful convictions; you could also say that our system of justice is effective at preventing wrongful convictions. I mentioned some of the safeguards we have in place.
I think it was the individual whom Mr. Caputo had recommended as a witness—a former associate of his who spoke very highly of Mr. Caputo—who brought to the attention of the committee some very interesting testimony.
What was his name?