Justice Committee on Dec. 14th, 2023

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

Madam Chair, that's why I said at the beginning that what I'm speaking to is relevant. I'm talking about why we need to deal with this amendment and deal with this clause in order to get this bill through Parliament, so I believe it is directly relevant.

Let me just skip to the last sentence here of the Innocence Project letter. It says:

To all those on the Committee, please deal with the Bill's provisions and vote on them tomorrow and thereby fulfil your important duties as members of Parliament and members of the Justice Committee.

I'll read an excerpt from a second letter. This is from the Innocence Project at the Peter Allard School of Law at the University of British Columbia, again dated yesterday:

After listening to the House of Commons Standing Committee on Justice and Human Rights...hearings on Bill C-40, I write to express my deep concern that members of the Committee are about to unravel the hard work of so many people over the past few years. Politicians, advocates, lawyers, law students, and more importantly, the wrongly convicted and their families, have all participated in consultations, attended meetings, and drafted detailed submissions in an effort to see miscarriages of justice remedied in a more efficient, more informed, and impartial manner. In the interests of justice, I urge the Committee members to pass at least Bill C-40 before the House rises for the winter.

I won't read the entire letter.

My third letter is from a group that appeared as witnesses before the committee, and that's the Canadian Association of Elizabeth Fry Societies. They wrote:

We write today to urge you to pass Bill C-40 before the House rises. Through this letter we want to share the real and saddening consequences of witnessing intentional delays to the clause by clause reading of this committee's study of Bill C-40, and to thank members of the committee who are voicing support for the meaningful and immediate consideration of this legislation.

I'll skip a bit of this letter.

For everyone who has been watching every minute of these hearings, from organizations such as ours who support wrongfully convicted people, to impacted people themselves and their families, and to the many others who care about Canada's approach to this issue, it has been deeply troubling to watch three full committee meetings proceed without movement. With the start of each meeting, we have watched, hopeful that members will act in good faith and put forward genuine consideration of the Bill.

The last letter comes from someone who was a witness at one of our recent meetings. Professor Kathryn Campbell is from the Department of Criminology at the University of Ottawa and is also associated with the Innocence Project Ottawa. She says, and again I'll read just a portion of it:

I wanted to express my opinion to you as I was deeply disturbed to hear that the Leader of the Conservative Party plans to shut down Parliament and not let legislation pass before you rise for winter break. I understand this could ultimately derail the passing of Bill C-40, which would establish an independent commission to address wrongful convictions in this country. I object strongly to this tactic, as it could in due course, have an impact on whether this very important bill passes to law.

I'm going to just skip to the last part:

Given the enormous amount of time and effort that has gone into developing this Bill, the many consultations both before and after it was introduced in Parliament and the fact that the Conservative Party has supported the Bill in second reading, delaying at this point represents a very significant lost opportunity.

Madam Chair, I believe we've had a full and extensive discussion of the amendment before us. I would urge members of this committee to take advantage of the extra time you've granted to raise their concerns as we move through this bill this evening. Really, as these four letters are just a sample of the reaction from those in the legal community and particularly from the miscarriage of justice community about what they've seen in this committee, I think we risk bringing our committee and our Parliament into disrespect if we do not deal with this expeditiously.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Van Popta, you're on the list.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

I have a question for Mr. Housefather about his LIB-1. I know we're talking about NDP-1, but the two are so interrelated that I think they need to be discussed together. I'm asking for some leeway there.

I don't know if Mr. Housefather.... Oh, he's still on the screen.

When I saw LIB-1, I was not surprised, because this is what we heard Mr. Housefather say. I think it was at the November 23 meeting, when Mr. John Curtis was with us.

This is the question Mr. Housefather put to him:

The thing that I'm the most worried about in the legislation is the fact that you need to exhaust the appeals process. I'm very concerned that the defendants we're looking at—indigenous, Black, and marginalized people—are the least likely to have the financial resources and the least likely to have the ability to pay high-value lawyers to give them advice to continue appealing.

Can I get an understanding of what, in the U.K., is allowed in terms of the commission's discretion to circumvent the exhaustion of appeals?

I thought that was a fair question, and Mr. Curtis gave the answer. I won't bother reading it into the record. Do you remember when we heard Mr. Housefather put that question? I thought to myself, “Isn't the problem that there isn't enough legal aid at the trial level? Is Mr. Housefather advocating an alternative system, one in which the person who has been convicted doesn't have to pay because there are financial resources being made available?”

In my reading and in preparing for this study, I came across a U.K. case. I think it's the one that Mr. Curtis was referring to, although he did not give the citation. I want to read a paragraph from that case. The case is called.... It's a criminal conviction review regarding the Pearson case. It was a judicial review application of an unfavourable decision by the commission. I'm reading from paragraph 8, about halfway through.

This is what Lord Chief Justice Bingham said:

The main protection of the citizen accused of serious crime is, however, to be found in our system of trial by judge and jury. This system is so familiar as to require no description. But we draw attention to two characteristic features of jury trial germane to this application. First, the procedure is adversarial. There is no duty on the trial judge, as in an inquisitorial proceeding, to investigate what defences might, if pursued, be open to a defendant, nor to interrogate or call witnesses. It is the function of the judge to direct the jury on the relevant law and to summarise (perhaps very briefly) the evidence, and to define the issues raised by the prosecution and the defence, including any possible defence disclosed by the evidence even if not relied on by the defendant. The judge need not, and should not, go further. Secondly, the decision on the defendant's guilt is made following a trial, continuous from day to day, by a jury assembled only for that trial, with no responsibility for the proceedings before the trial begins or after it ends. Thus the decision-making tribunal must reach its decision on the argument and evidence deployed before it at a final, once-for-all, trial.

I read that into the record because we're all lawyers in this room. At least, I think most of us are. We recognize that the common law tradition of trial is an adversarial system. It's not an inquisitorial system. It sounds as though Mr. Housefather's concern—I understand it's genuine—is that some people are not getting a fair trial in that adversarial system, because they can't afford a good lawyer. The problem is that....

There should be more legal aid so that people can get a fair trial; it's not to have a commission fix all the mistakes that the trial judge made because the person couldn't afford a proper trial. I think the answer is to make sure the trial is a better trial.

I want to add this: The commission, according to this new legislation, is going to have investigative powers. Maybe Mr. Housefather is more comfortable with that, rather than an adversarial system—that is, having an inquisitorial system, like in continental Europe, where the judge gets involved in introducing evidence and is part of the investigation team. That sounds like where the commission is going, and I wonder if that's what Mr. Housefather is imagining the commission is going to be.

I would add one other thing. We're talking about whether or not the whole appeal process should be exhausted. We had Mr. Virani here. I don't know if it was the same day or.... Anyway, it was last month. I asked him a question about whether the floodgates would open with this new commission and the new mechanisms.

He said:

I think there are built-in factors to avoid them getting all the way through the floodgates. You still need to meet the threshold criteria. You need to have exhausted your appeals, at least to a court of appeal or, in some instances, all the way to the Supreme Court of Canada.

I have two questions for Mr. Housefather, if he wouldn't mind answering them.

Number one—

[The Chair, Liberal, Lena Metlege Diab]

I'll let you ask them, but I don't believe I'm going to let him respond until such time—if and when—we get to his amendment. We're not dealing with his amendment yet.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

The problem I have with that, Madam Chair....

[The Chair, Liberal, Lena Metlege Diab]

That's a fair point.

Yes, you can ask, because it's a line conflict and we need to make a choice between the two.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

It's one or the other, or neither. It can't be both.

My question, then, to Mr. Housefather is twofold.

Does he disagree with the Attorney General, who says that all appeals must be exhausted? It sounds like his amendment would go contrary to that. Number two, how expansive does he think this commission will be, and will it replace the adversarial system we're so accustomed to?

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Were those all of your questions?

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Those are my questions, yes.

[The Chair, Liberal, Lena Metlege Diab]

Okay.

Go ahead, Mr. Housefather. Again, this is seeking clarification. I'm told that's quite okay, but it depends on timing. It's simply to answer the questions, if you're able to.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Chair, I'm not going to join the Conservative filibuster. I'm not going to be used to add to the time they take up to avoid the question coming to a vote.

In terms of my comments, I'll repeat that I believe the exact same criteria should apply to a case that was not appealed to the court of appeal, as is already in the legislation for a case that was not appealed to the Supreme Court because the poorest and most vulnerable are the ones who wouldn't have the means or the legal help to appeal. My amendment simply creates exactly the same criteria for a non-appeal to a court of appeal as what exists in the legislation for a non-appeal to the Supreme Court.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Housefather.

Go ahead, Ms. Michaud.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Madam Chair.

I just wanted to jump into the debate briefly to say that the Bloc Québécois is in favour of Bill C‑40, as well as the important amendment proposed by the NDP.

I think our witnesses were able to answer most of the outstanding questions about the meaning of the amendment. If no one else has any questions, I propose we vote, so that we can continue clause-by-clause consideration of this very important bill.

Mr. Garrison read letters to the committee from a number of stakeholders who were eager to see Bill C‑40, an extremely important piece of legislation, passed. Out of respect for those people, we should do the work we have been entrusted to do.

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a point of order.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Ms. Michaud.

Mr. Moore, you're next in line, so go ahead.

Were you not able to...? Was there no translation?

[Rob Moore, Conservative, Fundy Royal, NB]

What I'm saying is different from the point of order. I'm not able to get translation. It cut out while Ms. Michaud was speaking, so I didn't catch what she said.

[The Chair, Liberal, Lena Metlege Diab]

Apparently they weren't able to listen to it. He said it's on the wrong channel. Do you mind checking that?

Mr. Garrison was able to hear it and Mr. Van Popta was able to hear it.

Oh, you were not able to hear either? Okay.

Did you have something to add, Ms. Michaud?

It doesn't look like it. All right. Thank you.

Mr. Moore, did you want to speak? You don't have to.

[Rob Moore, Conservative, Fundy Royal, NB]

No, I want to.

[The Chair, Liberal, Lena Metlege Diab]

I mean, you've spoken. That's why I'm asking.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a number of questions and comments on NDP-1 as well as LIB-1, since we're dealing with them both at the same time.

The first thing I want to point out.... There may be someone on the government side who can speak to this if they want to, but the government, in its wisdom—Mr. Virani was here not long ago on Bill C-40—elected to have a requirement that a person had to have appealed their decision. NDP-1 and LIB-1 both do away with that that requirement. It's no longer a requirement to have appealed your decision.

That's a fundamental change in the bill as it was received by this committee a short time ago and as it was presented to this committee by the Minister of Justice. It's a fundamental change because, in one instance, an individual would have been convicted at trial and then would have appealed their decision and then, presumably having had their conviction upheld, would then avail themselves of of the commission. That would be the bill as proposed. The bill as amended, should NDP-1 or LIB-1 be successful, would eliminate the requirement for an individual to have appealed the decision.

I guess my question, Ms. Besner, is if the department has done an analysis of the international situation.... We had testimony here from the U.K. and from North Carolina. It was interesting. North Carolina is the only state in the U.S. that has a commission like this. Of all the many states, there's only one that has this commission.

It was interesting to hear from an individual from that commission, who gave testimony that “factual innocence” was the bar by which somebody could avail themselves of the commission. There has to be a finding of factual innocence. There's quite a high bar of entry to the commission. One of the bars of entry in our system, as proposed by Bill C-40, is that an individual has to have appealed their decision. That's showing some degree of faith in our system.

I have to agree with what Mr. Van Popta said. We're trying to address, certainly from my perspective, issues around someone who is innocent, someone who was convicted of a crime they did not commit. That shouldn't happen in any country. It shouldn't happen in Canada that someone can be convicted of a crime they didn't commit. However, being human, we fail. Everyone can get it wrong within the system. The police could get it wrong, the prosecutor could get it wrong or the judge could get it wrong, because we're all human. Therefore, when new evidence arises that an individual did not commit the offence, that they were wrongfully convicted, as has happened in many high-profile cases in Canada, there's a process in our country whereby individuals avail themselves of relief.

My question is on the international experience. When the department drafted this legislation and provided advice to the minister, and the minister presented the legislation to us, the minister chose—the government chose—to maintain a requirement that an individual would have appealed the decision. These two amendments fundamentally alter that.

If you don't know, that's fine, but I want to ask this: Has there been a comparison with any international peers on this requirement that an individual has to have appealed?

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Moore.

Ms. Besner, do you have an answer to that?

[Julie Besner]

We're aware that in the U.K., they have a provision in their statute whereby the commission can make exceptions. It's a very short provision. I don't have it with me, so I can't read from it, but it's that exceptions can be made.

I wanted to point out that currently the Criminal Code does require that appeals be exhausted. When I was here with the minister on October 31, I think I might have explained that the way Bill C-40 sets out the exceptions and the considerations is a codification of the relevant law that explains how it's to be considered and applied. In the past, there was some confusion as to what it could include and could not include, so the approach was to just clarify. That is there in Bill C-40 as a list of considerations for whether exceptions can be made for the Supreme Court level.

I would add one more piece of information for the committee. In subsection 3(a) of the provision we're looking at here, it says:

the court of appeal has not rendered a final judgment on appeal of the finding or verdict;

Those terms are lifted from other parts of the code, and it's for drafting reasons that they were used, but I wanted to share with the committee that in the case law, in a decision called “Alvin”, the courts have clarified that if an applicant on an appeal has requested an extension to a file, has requested an appeal and been denied or has filed for leave to appeal and has been denied, that constitutes a final decision of the court of appeal.

It doesn't mean final judgment, when there was actually an appeal heard and a decision rendered on the merits of the appeal itself. It's just that the person attempted to seek an appeal and was unsuccessful.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

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.

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

I'm listening.