Justice Committee on Feb. 1st, 2024

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

Well, if this isn't meant to replace the current appeal system, I think we should say that, because I think on a reading of it, one could certainly make the argument that it is doing so. As I said earlier, somebody who is convicted on May 1 can avail themselves of this stream in the legislation on May 2. To me, that is unpalatable. Frankly, that is not the point of this legislation. I was thinking about this as I grabbed a coffee, but if Mr. Housefather wants to rebut, go ahead.

[Anthony Housefather, Liberal, Mount Royal, QC]

No, I was just going to ask, Madam Chair, if—

[The Chair, Liberal, Lena Metlege Diab]

Just hold on. Hold your thoughts. I will get back to you.

Go ahead, Monsieur Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

I think amendment LIB‑1 is a good one, and, like Mr. Garrison, I think we need to ensure that no one is deprived of legitimate remedy solely because he or she can't afford to challenge a ruling in an appellate court or the Supreme Court. Having said that, I also think Mr. Caputo and Mr. Moore's argument is valid. I admit I hadn't seen that.

Unless Mr. Housefather can explain to me how this isn't the case, I think we would be surreptitiously inserting wording that would enable people to decide, following an unfavourable judgment at the trial level, whether they wish to appeal from the court's decision or file a miscarriage of justice application. We all agree that's not what we want, and we have to find a way to make sure people don't have that option. It's the appellate courts' job to review trial-level judgments. I don't think the Miscarriage of Justice Review Commission should have to do that work.

Consequently, I wonder if Mr. Housefather would have anything to propose to prevent that, without necessarily requiring that people have first challenged a ruling in an appellate court or the Supreme Court before filing a miscarriage of justice application.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

I entirely agree with Mr. Fortin, but I believe that what he's proposing is already in Bill C‑40. As I told Mr. Caputo, I agree with him too, but no one can file an application with the Miscarriage of Justice Review Commission the day after a superior court renders a decision.

I encourage you to consider the exception provided for in the new paragraph 696.4(4) proposed in clause 3 of the bill.

If you don't mind, Madam Chair, I'll read it out so everybody has it. Right now it says:

Despite paragraph (3)(b), the Commission may decide that the application is admissible even if the finding or verdict was not appealed to the Supreme Court of Canada.

Then it would say:

...was not appealed to the court of appeal or the Supreme Court of Canada. In making the decision, the Commission must take into account

(a) the amount of time that has passed since the final judgment of the trial court..."

Basically, the day after would not.... Nobody's going to say that it just happened yesterday, so now they should take it. It should be that you should appeal.

Then it says:

(b) the reasons why the finding or verdict was not appealed...

(c) 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...may be served and filed...

To me, it already says the intention is that you should have exhausted your appeals if you still could have done so. It would only be a matter of the appeal no longer being permissible. That's when they would even look at this. They would generally say to go back and appeal. I think it's taken care of.

The issue Mr. Moore raised is different. It's what the threshold should be overall. However, on the question of whether or not you should be allowed to hear a case that, let's say, happened 15 years ago and there are no appeal rights, I don't think it should matter whether you appeal to the court of appeal or the Supreme Court if you believe that whatever standard the law has has been met. That's my feeling.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I didn't have my hand up.

[The Chair, Liberal, Lena Metlege Diab]

I'm sorry.

Go ahead, Mr. Maloney.

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

I'm okay. The point has been made.

Thanks.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Go ahead, Mr. Caputo.

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

Briefly in response to Mr. Housefather's statement, I understand his line of reasoning. It says it right there, but it still permits the application to be admitted. That's my point. It says, “the Commission must take into account”. It doesn't mean the commission must dismiss it.

Let's face it. We've all been here long enough. We are generally all called to the bar here, as far as I know. Mr. Garrison, I believe, is very learned.

I'm sorry. She was called to a different—

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

It's a higher calling.

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

Yes, it's a different professional credential, equally as noble.

My point is that we've all seen laws—Mr. Mendicino was a minister—where we've said one thing and we've seen it interpreted. That's why sometimes we have to work, in my view, with the utmost clarity, because it still says that the application can be accepted.

Do we even want to flood the commission with applications that they have to dismiss? That's a very important point, in my view. Someone could say, “Hey, I can still apply.” They still have to go through the process. I think we should make very clear what our intent is here. If it is historical, we can put a five-year threshold on it. We're catching a lot of convictions there. Let's put something in there saying that if they didn't exhaust their appeal, they're not applying unless a certain amount of time has gone by.

I'm prepared to move that subamendment. I want to hear the rest of the interventions, because I think it's an eminently reasonable subamendment in the circumstances.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

In paragraph 696.4(4)(a) as proposed by amendment LIB‑1, we could add that the deadlines for appeal must have expired. The provision would read as follows:

(a) the amount of time that has passed since the final judgment of the trial court, provided that the deadlines for appeal have expired;

If the deadlines for appeal have expired, no further right of appeal is possible, and the commission could then consider an application for review. If the deadlines for appeal have not expired, the commission would not consider the application.

What do you think of that?

[The Chair, Liberal, Lena Metlege Diab]

I think your question is intended for the committee.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

It's actually a suggestion.

Mr. Caputo said that a subamendment would be necessary and perhaps that my proposal is along those lines. Based on our discussion, I think we could agree to avoid the trap of filing an application for review the day after an unfavourable verdict on the ground that the deadline for appeal must first have expired. It would be automatic: a person whose review application is taken up by the commission would not be able to appeal. The idea is that a person who has been convicted must first exhaust his or her appeal rights. A person who decides to apply to the commission would not then be able to challenge a decision in appellate court. What I'm proposing could be viewed as a compromise.

It's also a question that we could put to Ms. Dekker or a suggestion for the committee.

[The Chair, Liberal, Lena Metlege Diab]

You may respond if you wish, Ms. Dekker. Is this a question for her?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

It's a suggestion, Madam Chair, but, yes, I'd like to hear from Ms. Dekker.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Ms. Dekker.

[Anna Dekker, Senior Counsel and Deputy Director, Public Law and Legislative Services Sector, Department of Justice]

Thank you, Madam Chair.

With your permission, I'm going to turn the floor over to my colleague, Ms. Besner.

[The Chair, Liberal, Lena Metlege Diab]

All right.

Before I give you the floor, Ms. Besner, we have to complete some sound tests.

Since everything seems to be working, the floor is yours.

[Julie Besner, Senior Counsel, Public Law and Legislative Services Sector, Department of Justice]

Thank you.

If my understanding of the question is correct, the member wants to know whether it's possible to provide in Bill C‑40 for the commission to take into consideration the amount of time that has elapsed since the deadline prescribed by the court for filing an appeal has expired. That could definitely be taken into consideration, and if the committee wished to adopt such a provision, paragraph 696.4(4)(a) would be the best place to insert it.

I'm going to switch to English because that's the language I use to frame this in my mind.

It could say, “the amount of time that has passed since the time within which to file an appeal has expired.” A different formulation to get at that point might be possible.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Ms. Besner.

Does that answer your question, Mr. Fortin?