Evidence of meeting #92 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commission.
A recording is available from Parliament.
9:10 a.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Thank you, Madam Chair.
I respectfully disagree with Mr. Garrison on this point. Reasonable grounds to believe and an actual belief, in my view, are two different concepts. One is an actual belief. One is you have a reason and basis to believe.
In fact, I'll put that question to our experts. They would probably have to look at the bill as a whole, but based on this clause, are we narrower than the U.K. standard or are we broader than the U.K. standard? I would like to hear their positions on that, please.
9:15 a.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Yes, and I may have an intervention after that with more to say.
9:15 a.m.
Senior Counsel, Public Law and Legislative Services Sector, Department of Justice
Yes, I did.
Indeed, the language in the investigative threshold here really relies on what we find elsewhere in the Criminal Code. We're talking about when the commission can invoke its investigative powers. We do see this elsewhere in the Criminal Code. It was definitely an intentional choice.
With respect to the U.K., the “real possibility” standard figures in their referral powers back to the courts. That's just how their criminal code is structured, with a real possibility that the court of appeal will not uphold the appeal. Our statute here in Canada is different. Definitely, we incorporated the concepts that are familiar in the Criminal Code.
I want to elaborate on another aspect of this provision. There's an “or” here. It's that there are “reasonable grounds to believe that a miscarriage of justice may have occurred” or that “it is in the interests of justice” to conduct an investigation. There's an alternative there that's being introduced, because a lot has been heard in the past about the idea that the minister's powers to conduct an investigation in this context already require that there are reasonable grounds to believe a miscarriage of justice occurred, yet there's no evidence to substantiate that.
Some case law has pointed out the catch-22, if you will. How can that even be determined unless there's some ability to seek out some relevant information to look into the matter to see if there are real merits in continuing with a review? That's why the language is changing a bit here to provide that alternative. I'll also point out that when it comes to the final referral back to the courts for a new trial or a new appeal, it's a bit higher: It's “reasonable grounds to conclude”, not believe, “that a miscarriage of justice may have occurred” and “in the interests of justice to do so”. That, too, will get at not sending back to the courts frivolous matters or ones that don't have merit.
9:15 a.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Okay, thank you.
I think Ms. Besner answered my question in her last thought there about reasonable grounds to believe versus actual belief. It seems as though it is a more narrow concept.
I don't disagree with Mr. Garrison. The whole reason we're here is that people have told us the current legislation is unduly restrictive. The debate we're having right now is about to what degree we open it up. It's fairly plain. I don't know that we can simply say, “Well, they've said it's too restrictive; therefore, let's open it up.” As parliamentarians, our role is to question how far we open it up. What threshold are we looking at?
I take Mr. Moore's comments as apposite here. The threshold has been too high, but does that mean we make the threshold what could be unduly low? Then we could be looking at a flood of applications that are not themselves meritorious and were not the intent of the legislation, which is to say that too many people who were wrongfully convicted have not been able to avail themselves of the process. That is a problem. We want to remedy that. That doesn't mean we want to let people who are simply dissatisfied unduly avail themselves of the process. I worry that we are going too far.
I know this amendment is likely to be defeated, but I wanted to place my concerns on the record.
Thank you.
9:15 a.m.
Liberal
9:15 a.m.
Liberal
Anthony Housefather Liberal Mount Royal, QC
I want to come back to and echo what Mr. Garrison said. When we change words that have an established concept in our Criminal Code and in Canadian law to words that have a foreign context and don't exist here, there are unintended consequences. I would point out exactly the flaw in amending proposed subsection 696.5(1), as is being proposed in this amendment by Mr. Moore. Further down, in proposed subsection 696.6(2) under “Remedies”, we're coming back to “If the Commission has reasonable grounds to conclude that a miscarriage of justice may have occurred and considers that it is in the interests of justice to do so, it must”, and there's no amendment proposed to change that.
Essentially, we're not going through the whole bill. We're sporadically changing things in one place that are mentioned in other ways in other places, and in the end, we have a bill with sections that don't work together. If, in the end, you're changing the concept once, you have to change it throughout the entire bill, and there are multiple places in the bill where it would have to be changed again.
I want us to consider here that I think the drafters used an established concept in Canadian law, and I'm not entirely sure whether it's less or more restrictive because I have absolutely no idea what a “real possibility” means in Canadian law.
Thanks.
February 1st, 2024 / 9:20 a.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
I have to admit that Ms. Besner's answer has convinced me. I wouldn't have raised my hand if I had heard her earlier.
I understand the argument that a real possibility may be interpreted as being less restrictive than reasonable grounds. However—and I say this respectfully—I don't agree with Mr. Housefather or Mr. Garrison on this point. I think the requirement of having reasonable grounds to believe that a miscarriage of justice may have occurred could result in more investigations than what amendment CPC‑1 proposes.
What Ms. Besner's telling us is really interesting. At the stage where you decide whether to conduct an investigation, you ask yourself whether there are reasonable grounds to believe that a miscarriage may have occurred or whether it's in the interests of justice to conduct an investigation. Those are the two conditions that must be considered before looking into the case.
However, that doesn't mean you order a new trial. Proposed paragraph 696.6(2) provides that both conditions must be met for the commission to remedy the situation following an investigation. It's not “or in the interests of justice”, but rather “in the interests of justice”. Furthermore, the first condition is then that there must be reasonable grounds to conclude, not to believe, that there has been a miscarriage, which is also more restrictive. Consequently, it seems to me that the objective of our Conservative colleagues' amendment CPC‑1 is already met by proposed paragraph 696.6(2), which would help prevent abuses.
If we retain the present wording of Bill C‑40, we will hear more cases in which miscarriages of justice may have occurred, which I think is wise. Consequently, I'm going to vote against CPC‑1.
9:20 a.m.
Liberal
9:20 a.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Briefly, I agree entirely with Mr. Garrison's intervention. I also echo Mr. Housefather's point about introducing new legal standards that are unknown to Canadian jurisprudence. I suggest, rather, that we stick with the threshold proposed by this bill.
If anything, I would add one more reflection. Rather than be preoccupied with the phrase “reasonable grounds” versus “real possibility”, as my Conservative colleagues have proposed we adopt from the United Kingdom, the real operative change being proposed in this bill is going from reasonable grounds to believe that something was “likely” to “may have”. Going from “likely” to “may have” is the material change.
That is a very conscious, deliberate intent on the part of the government to create a less stringent standard precisely because of the concerns that have been expressed by the current Minister of Justice and Attorney General, by his predecessor and by the community of victims of miscarriages of justice, who suggest that the new standard being proposed will ensure that this issue is properly addressed.
For that reason, I intend to vote against CPC-1.
9:25 a.m.
Conservative
Marilyn Gladu Conservative Sarnia—Lambton, ON
Thank you, Chair.
Obviously I'm late to the party on this one, but what I would say is that we're trying to change the system to get a better outcome. I'm not sure why we wouldn't take the learnings of 25 years of jurisprudence from the U.K., which they seem to be quite satisfied work.
That's why I support CPC-1.
9:25 a.m.
Liberal
The Chair Liberal Lena Metlege Diab
Shall CPC-1 carry? We'll have a recorded vote.
(Amendment negatived: nays 7; yeas 4 [See Minutes of Proceedings])
(Clause 3 as amended agreed to on division)
We're going to take a two-minute break.
9:30 a.m.
Liberal
The Chair Liberal Lena Metlege Diab
I'll call us back to order.
We hope to continue and finish this bill in the next 25 minutes.
(On clause 4)
We're on NDP-2.
Mr. Garrison, would you like to move it?
9:30 a.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you, Madam Chair. Yes, I would like to move NDP-2.
What we're trying to do here is not create new powers for the commission with this amendment, but take advantage of the expertise the commission will inevitably acquire by doing its work. This amendment would allow the commission to make recommendations to address any systemic issues it sees arising in the cases it looks at.
What would be better placed in our legal system than this commission to identify those systemic problems? The government has certainly made a commitment, and the NDP has made a commitment, to try to address systemic racism and the systemic discrimination against indigenous people in our legal system. It would seem to me to be foolish to pass up the opportunity to get advice from this commission.
I want to stress again that it's not creating a power. The commission is not allowed to do anything new here, other than offer the benefit of its experience to the rest of the legal system and to Parliament in the future.
That's my reason for moving this motion. I think it probably should have been there from the beginning. Maybe it was inadvertently overlooked. Certainly, the whole process we're going through here is to try to address and prevent future miscarriages of justice, not just to correct individual cases.
Thank you.
9:35 a.m.
Liberal
9:35 a.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
I understand the objective of amendment NDP‑2, and I think it's laudable to prevent miscarriages of justice from occurring, but, with all due respect to my colleague Mr. Garrison, I don't agree with him.
The Law Commission of Canada already has a mission to make recommendations to the government. We would also be adding that mission to the commission we're now constituting. Its mission would not only be to respond to miscarriage of justice applications but also to work toward improving the judicial system. Rather than make the process more efficient, we would be weighing it down by duplicating the commission's mission.
Furthermore, it would be easy to interpret the wording of the amendment as requiring the commission to make recommendations, even though it doesn't necessarily have a reason to do so in every case in which there's a hearing. If we were to adopt such a provision, it would be important to indicate that it could make recommendations should it deem that useful. The making of recommendations shouldn't be part of its mission. Furthermore, on the basis of the amendment, once again, it seems to me this is in addition to the mission that the commission would be assigned. I'm saying very respectfully that I think that would be inappropriate.
9:35 a.m.
Liberal
The Chair Liberal Lena Metlege Diab
Shall NDP-2 carry?
(Amendment agreed to on division [See Minutes of Proceedings])
We're on BQ-1.
9:35 a.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
The purpose of amendment BQ‑1 is to correct a defect in Bill C‑40, which fortunately prescribes certain requirements for the commissioners who would be appointed to the commission but unfortunately omits the requirement to ensure that those commissioners are clearly able to speak and understand both official languages.
The Barreau du Québec raised this point in the brief it submitted to the committee. I think this is an important argument that must be taken into consideration. We propose that it be included in the bill.
I believe the amendment is self-explanatory.
9:35 a.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
I certainly appreciate the dedication the Bloc always shows to protecting language rights in both official languages and I share that concern. However, I think there's an unintended consequence there when we're dealing with the miscarriage of justice commission. The draft legislation we have before us says that the appointment of commissioners should take into account diversity and take into account those who are overrepresented in the justice system. I think Mr. Fortin's amendment inadvertently excludes, for instance, unilingual francophones. In the case of Quebec, we have many indigenous nations that speak French or, for instance, Cree, and they would be excluded from serving on this commission. I think there is an unintended consequence by applying the very narrow requirement of being able to function in both official languages in this case. I would hate to see indigenous lawyers who, as in my example, are Cree- and French-speaking not being able to serve on such a commission.
The commission, elsewhere the bill, requires bilingual services and requires translation services, so this will be a commission that functions in both official languages. However, when we're appointing nine commissioners, some of them full-time and some of them part-time, I think this narrows the field too much. Certainly, if I also apply it to British Columbia, there are very few indigenous lawyers to start with and there are very few who are fluent in French, English and their indigenous language. There are many who are fluent in their indigenous language and English and, in Quebec, many who are fluent in their indigenous language and French.
With respect, I think Mr. Fortin's amendment in this particular case creates an unintended consequence and therefore I will vote against it.