Justice Committee on Dec. 14th, 2023

[Rob Moore, Conservative, Fundy Royal, NB]

I know you're listening, but it's not fair to you when your colleagues are talking. I know you want to hear everything I'm saying.

[An hon. member]

Put on your earphones.

[An hon. member]

Sorry, but I didn't hear that.

[An hon. member]

If you just [Inaudible—Editor]

[The Chair, Liberal, Lena Metlege Diab]

Excuse me, everybody. I think Mr. Moore has the floor.

As much as we can, we'll....

I have the earphones, because for whatever reason I am finding it difficult to hear anybody. Maybe it's because there's so much repetitiveness.

Although I'm doing my utmost best, I do have the earphones and I have them on pretty high.

Mr. Moore, please continue.

[Stéphane Lauzon, Liberal, Argenteuil—La Petite-Nation, QC]

I have a point of order, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Lauzon.

[Stéphane Lauzon, Liberal, Argenteuil—La Petite-Nation, QC]

Madam Chair, I was speaking with a fellow member, and we were wondering whether we needed to keep the witnesses here while this filibuster was going on. We know full well it's going to go on and on and on. I don't think this is an appropriate way to treat the witnesses who are with us today. This is appalling.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

I want to add that the witnesses may want to stretch their legs or go to the washroom. They are signalling that they do.

The members should think about them as well. This is the third time this has happened.

[The Chair, Liberal, Lena Metlege Diab]

All right. Thank you.

We will suspend for a few minutes to allow people to use the washrooms and grab something to eat.

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

All right. Thank you very much, Mr. Moore.

We'll continue with your questions. Do you have questions still, or do you have more to say?

[The Clerk of the Committee, Mr. Jean-François Lafleur]

Do the witnesses want time, Madam Chair, to finish their meal?

[The Chair, Liberal, Lena Metlege Diab]

I'm not sure if Mr. Moore has any....

[Rob Moore, Conservative, Fundy Royal, NB]

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?

[An hon. member]

Was it Mr. Wiberg?

[Rob Moore, Conservative, Fundy Royal, NB]

Yes. He had some very interesting testimony.

He was reminding committee members that the landscape around our system of justice has changed remarkably since some of the more high-profile cases around wrongful convictions in this country. There's been the coming into effect of the charter, of legal aid and of DNA evidence. DNA evidence didn't exist at the time of some of these wrongful convictions. DNA evidence can be used to convict and DNA evidence can be used to exonerate.

I need to speak about the North Carolina experience. I wouldn't want anyone to be under any illusion that what's being proposed here is in any way in sync with what North Carolina has done once we've heard that testimony.

North Carolina requires evidence of factual innocence. I asked the witness from North Carolina why they came up with that standard. She said it was the standard that they found would be acceptable to the people in North Carolina. From talking with my constituents about the justice system, which I do, and hearing from other members of Parliament from all parties on what they hear from their constituents, I have to believe that Canadians' expectations around wrongful conviction more closely mirror what North Carolina has proposed versus what is being proposed in Bill C-40, should it be broadened—that is, if there is new evidence to suggest that it is likely that someone who was convicted of an offence was innocent, every single one of us should want that person to be completely exonerated if that person is found, through DNA evidence or other evidence, to have been wrongfully convicted of a crime they didn't commit.

You will remember the case of O.J. Simpson. He immediately said that he would go out and look for the person who actually committed the crime. Well, most people thought they had the person who had committed the crime the first time. That's the kind of response there should be when there is a wrongful conviction found within our system. It should be that strong; Canadians should say, “We need to find the person who really did this.” That is not the standard in Bill C-40.

Why do I mention that? Bill C-40 is tenuous enough, with the.... I would say we need to have a robust system, obviously, for individuals who have been wrongfully convicted. We have a system now. The Minister of Justice is ultimately responsible for that system. We have a threshold now that says, “a miscarriage of justice likely occurred”. We could debate around this table whether that is too high a threshold, but I can tell members that if we were to poll our constituents and ask what the standard should be, they would be much more likely to say the bar should be “when there's a real possibility there was a miscarriage of justice” rather than a convicted individual who doesn't appeal their sentence being able to avail themselves of the commission. What standard does the commission apply? Well, there “may” have been a miscarriage of justice. Is it based on new evidence? Not necessarily; it's based on the whims of the commission at that time. This is where we're heading should Bill C-40 be amended and broadened in its scope.

I'm not going to put anyone on the spot. I'll answer my own question. When the minister and the cabinet considered Bill C-40 before it was tabled, and on the advice they would have received from departmental officials.... There is a reason an individual, except under exceptional circumstances, has to appeal the decision. There's a reason inherent in that. There's a reason that this standard is meshed with that requirement. The ultralow standard that a miscarriage of justice “may” have occurred requires the step of having to appeal. To introduce the possibility of not appealing at all calls the low threshold into question even further,.

It's for those reasons I have concerns about NDP-1.

We did a study recently, as a committee, on the federal government's obligations to victims of crime. I think of that study often when I look at other pieces of legislation. That's a lens—I hope we all agree—we should somewhat look through. That's a lens that should always be on our mind when we look at any piece of legislation. Right now, I'm looking at Bill C-40, and specifically NDP-1. I want to look at Bill C-40 and amendment NDP-1 through the lens, at least, of victims of crime. When someone feels they were wrongfully convicted—even though, under this provision, they may have committed the offence—what does a victim of crime say about a process that's going to involve dredging up their concerns and revictimizing them? I don't throw that out lightly. The process revictimizes victims. That's why we need to get this right.

We heard that testimony at this committee. We heard that from victims who have lost loved ones. They have said that having to go to parole hearings, having to know that their daughter has to go to a parole hearing, that when they pass on, their daughter will go to a parole hearing of the individual who murdered their husband.... We heard the testimony that it revictimizes victims. Victims have been through enough, so when we create a system that could amount to a reopening of these very hurtful cases for victims, we'd better be sure that we're dealing with cases that we ought to be dealing with.

That is why.... We have a system of justice. I think it was Mr. Van Popta who rightly mentioned that some of the fixes that people are trying to incorporate into this catch-all may be better placed in other areas—for example, access to justice, legal aid. The question was put to Minister Virani about making sure that vacancies in the system of judges are filled, making sure that people can get a hearing, making sure that there's timely access to justice—there's the old expression of “justice delayed is justice denied”—and all those things.

This commission cannot be a fix-all for everything that's wrong in the justice system; this commission should be about the wrongfully convicted. With NDP-1, I fear that we are steering away from that principle and into an area that I don't think Canadians would be supportive of: the possibility of opening up a parallel justice system, another avenue to avail yourself of when you've been convicted of a crime. You may choose, “Well, I'm not going to appeal my sentence as I'm supposed to do. I'm convicted. I'm not going to appeal. I'm going to try out this new commission.” What's the standard for that commission? I know that within the criminal system, the standard is “beyond a reasonable doubt”. Within this system, the standard is that “a miscarriage...may have occurred”.

I was speaking a bit about victims. I look at the U.K. treatment of victims, and what “The Wrongful Convictions in Canada” paper says—and I think this is instructive for us—is that:

the CCRC has been criticized for not having objective standards to determine the scope of investigations, with neither a minimum amount of investigation required, nor a logical end point to the open-ended task or proving the absence of error.

The U.K. has its challenges, too, even with its higher standard, but it was clear from the testimony that the U.K. takes that investigative responsibility serious. When it comes to victims, the CCRC says:

The CCRC will not contact a victim just because we are a looking at a case.

Now listen to what they say next:

This is because most of the cases we look at are not sent for an appeal.

Why? It's because the standard is that “there is 'a real possibility' that the conviction would not be upheld.” Their standard is not that the conviction may not be upheld; it's that “there is 'a real possibility'”.

The CCRC goes on:

We know that victims and their families have already had stressful experiences. Finding out their case is under review can make them feel they are having to relive it all again [and] are not believed. We do our best to avoid causing unnecessary distress where we can.

That's the U.K. It's saying that it's not going to put victims through a frivolous.... It's acknowledging that it's not going to hear a lot of the cases, the applications, that come to it because it has a standard. It's saying that it's not going to put victims of crime through this just because someone says, “I didn't get a fair shake. I was wrongfully convicted. I'm going to take a shot at the CCRC.” It's saying that it doesn't even notify the victim right away because it doesn't want to stress out the victim and the victim's family. It knows what this will put them through—to hear that the person who was convicted of maybe murdering a friend or a family member is now going to suggest that they were wrongfully convicted.

The CCRC says:

If the CCRC decides to send a case for an appeal, we will always try our best to tell the victim or their family.

It also says:

If a victim or their family feels we have not acted in accordance with our policy they can complain, using our complaints procedure. Our Customer Service Manager will take an independent look at the issue raised.

I haven't heard from the NDP or the Liberals on how they reconcile. If I had seen a two-part amendment, if I had seen an amendment that said we don't want to require appeals but we do agree with having a higher standard, I might want to take a closer look at the amendment, although there's a reason that the justice minister had the requirement of an appeal.

For those reasons, I would urge extreme caution around both NDP-1 and LIB-1. They do not mesh with the full context of the bill, which has an extremely low access point of “a miscarriage of justice may have occurred”.

I think I'll wrap up my remarks for now on NDP-1. I have some questions that I am going to put to our witnesses who are here. I might save that for a bit.

I just wanted to make some comments early on to everyone and to our committee members about the U.K. experience as we deliberate on NDP-1, because what I mentioned was not part of the testimony that we heard; it is through some deeper digging that I had done on the U.K. experience. I find their concern around victims, their rationale behind their higher threshold, and the fact that even with their higher threshold, they were met with an enormous volume of applicants to be incredibly compelling and instructive.

We have to be prepared for that too. We are going to have an enormous volume of applicants. Unless we want to completely ignore the entire U.K. experience—and they have years of experience on this—and unless we want to completely ignore their rationale and their lived experience in having a commission, we are not only going to face an enormous volume of applicants, but we are also going to cause enormous disruption to victims and their families if we don't get Bill C-40 right. If the threshold is too low, this is going to cause enormous hurt to families of individuals who were killed or injured by those who have been through our justice system and have been convicted, having not even appealed that conviction.

I will conclude my remarks on that note on NDP-1 for now.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Caputo.

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

Thank you, Madam Chair.

I'm going to go through NDP-1 here a bit now. What I see here is that at the outset, it speaks about replacing line 35 on page 2 with the following.... I do this because I sometimes have difficulty placing it unless I read the whole thing together.

It would read:

For the purposes of subsection 696.4(3), the application must include information indicating whether the person’s rights to appeal the finding or verdict have been exhausted and, if they have not been exhausted, information relevant to any factors that the applicant believes should be taken into account for the purposes of subsection—

As it currently reads, it's:

....relevant to the factors referred to in subsection 696.4(4).

Those subsections are under proposed subsection 696.4(4), and I'm looking at page 3 right now. It reads:

the amount of time that has passed since the final judgment of the court of appeal;

If I understand the NDP amendment, it would remove the requirement to consider these things, but the amount of time that has passed since the judgment until the time of appeal is quite relevant.

Next, it reads:

the reasons why the finding or verdict was not appealed to the Supreme Court of Canada;

Now, we have heard a fair amount of evidence. We've also heard a number of submissions from members of this committee as to why or why not something may have been appealed to the Supreme Court of Canada, and why or why not something may have been appealed to a provincial court of appeal. Again, I think that it's probably a relevant factor as to why we should be considering whether or not the commission should review the application.

Next, it reads:

whether it would serve a useful purpose for an application to be made for an extension of the period within which a notice of appeal or a notice of application for leave to appeal, as the case may be, to the Supreme Court of Canada may be served and filed;

This is an interesting point here in proposed paragraph 4(c). The reason I say that is we have talked about legal aid and its lack of funding. Ultimately, the final say on whether a decision is appealed rests with the accused, who is obviously going to be the client. A lawyer can't put forward an appeal if their client does not wish to put forward the appeal.

It's obviously quite relevant. This is interesting to me, because what this is asking is whether it would serve a useful purpose for an application to be made for an extension of a period of time for an appeal when this person is claiming that a miscarriage of justice has occurred. I wonder whether provincial legal aid bodies would look at this provision, take heed of it and say that when they're dealing with something that is a potential miscarriage of justice or an allegation of a miscarriage of justice, they will appoint counsel in order to seek an extension of time to appeal. The mischief that NDP-1 and LIB-1 are addressing, as I understand it, is that some people wouldn't have appealed because they didn't have the means. If I understand it correctly, that's one of the issues.

What if proposed paragraph 4(c) is really an exhortation to say to legal aid in the provinces, “Look, you should be funding these appeals. In that case, seek leave to extend the time to appeal and then seek to appeal”? In that case, we are actually looking at a court of appeal maybe saying that on the basis of the appeal, there is no need to go before the commission.

We have to remember that the court of appeal is the mainstream process. Everybody who's in the room knows that when somebody is unhappy with their decision, they have the right of appeal. That is the main way that things are done.

This is actually quite a revolutionary piece of legislation, when we think about it, because we're establishing a commission. We'll have commissioners appointed by government who don't necessarily, as I recall, need to have a legal background. This is a parallel set of proceedings.

The question of whether a person should have to have exhausted their appeals and whether that should be material, I think, is quite a live issue, especially if the provinces—reflecting on what we've had to say and listening to what Mr. Housefather and Mr. Garrison have had to say about people maybe not having had the ability—ask if the recourse shouldn't first be to the court of appeal. That is the whole point of our system. When you have been aggrieved, when the court below gets it wrong, you go upstairs. That's what we would say, right? You would say that it's time to go upstairs to the court of appeal.

I find that interesting and I wonder whether we should be circumventing the necessity for an appeal. I wonder—I'm just thinking out loud here—whether an amendment could actually be made, and whether there might be.... I'm just trying to think about the cases that relate to the funding of appeals, especially if there's a bona fide potential for a miscarriage. If somebody shows that they have a bona fide case that there “may” have been a miscarriage of justice—not even at a high threshold, because we're not talking about overturning the appeal but only about the appointment of counsel to simply help somebody to appeal—then in that case, I don't think anybody around this table would say, “You suffered what could have been a miscarriage of justice 30 years ago. You did not have the means to appeal it. Therefore, this legislation will not only establish the commission to do it, but it will also establish a mechanism by which you could pursue that in a more streamlined manner.”

I'm not sure. I'm not going to ask the experts to comment on it because I know that's not an easy thing to do, given that my thoughts on this are still coming together, but—

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

I have a point of order, Madam Chair.

In light of some of the comments that Mr. Caputo has made, I believe there may be an error in drafting my amendment. I would like to withdraw my amendment in favour of LIB-1.

[The Chair, Liberal, Lena Metlege Diab]

Okay. Thank you.

[An hon. member]

That's amazing.

[The Chair, Liberal, Lena Metlege Diab]

Okay. I take it that everybody agrees to the withdrawal of the amendment. I guess that's what I'm hearing.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a point of order, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead.

[Rob Moore, Conservative, Fundy Royal, NB]

Just for clarification, if Mr. Garrison, once the amendment is moved, it becomes the committee's, I think. We would have to agree to then withdraw it.