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—