Justice Committee on Feb. 1st, 2024

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

If I understand you correctly, Ms. Besner, the commission would then take into consideration the amount of time that has passed since the time within which to file an appeal has expired. However, would the expiration of the time within which to file an appeal be made a condition for allowing the application? Unless I'm mistaken, that's actually what the committee is concerned about.

[Julie Besner]

If it were included in this paragraph, it would become a factor that the commission would have to consider in deciding whether an application is admissible.

With your permission, I would add that the factors set forth in the exemptions are based on the relevant case law in this matter. Ontario's Superior Court of Justice rendered a decision in the McArthur affair that was appealed to the Court of Appeal for Ontario; the Supreme Court declined to hear the appeal. The Superior Court had explained that certain cases at times required an investigation:

“when considering whether or not an [accused] has exhausted his or her rights of judicial review or appeal, a flexible approach must be taken, albeit one that is consistent with the intention of Parliament”.

Essentially, the purpose of the courts isn't to conduct investigations but rather to decide issues of law. Consequently, if an issue of law has to be decided in the case, the appropriate path is definitely to file an appeal.

However, according to the Superior Court, when relevant fresh evidence is required to establish that a wrongful conviction occurred as a result of a miscarriage of justice, it is the responsibility of the Minister of Justice, and potentially the new commission, to conduct investigations in order to gather that fresh evidence so it can be considered in the context of the entire case.

If an individual hasn't already exhausted an initial appeal, this is a relevant factor to be taken into consideration.

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

Thank you, Ms. Besner.

I'm pleased to see I'm not the only one who has to remove my glasses in order to read.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Fortin and Ms. Besner.

I have a list now of many, so bear with me.

I have Mr. Moore now.

[Rob Moore, Conservative, Fundy Royal, NB]

I'm certainly sympathetic to the objective that Mr. Housefather has. Perhaps my decision would be different if we were dealing with our amendment first and his amendment second, but we have to look to the remedy section of this legislation. This, in many cases, will involve a new trial or the court of appeal hearing an appeal that it hadn't otherwise.

The commission doesn't decide whether someone is guilty or innocent. It restarts the process or continues the judicial process. I have to go back to the evidence we've heard around victims and victims' families being revictimized by the process. That's why I feel that with the passage of this legislation, we are going to end up with a flood of applications. It makes abundant sense to me not to require someone to avail themselves of an appeal to the Supreme Court of Canada before availing themselves of the wrongful conviction process. My concern is that Mr. Housefather's amendment is going to further open up what will be a floodgate and a very painful time for victims of crime and their families.

I'll just quickly make the point that before the decision from the Supreme Court found unconstitutional the consecutive sentencing requirement for those convicted of first-degree murder, if they had convicted multiple murders, they would have had consecutive periods of parole ineligibility. We heard testimony at this committee from victims' families, who said they thought the process was over, that this was horrifying for them, that they had begun to heal and now a scab had been ripped off. We heard from Tim Bosma's widow. She said the one good thing that came out of this was knowing that her daughter would never have to face the convicted at a parole hearing. Now with this decision, her daughter will have to face her father's killer at a parole hearing.

I hope you can understand my concern about flooding our already overstressed justice system with potentially frivolous cases. Who among the convicted wouldn't want a second shot? Everyone would want it. Then we turn to the legislation and ask how we can prevent frivolous applications. What are we as parliamentarians telling the commission to look at? If we look at the current law, the Minister of Justice has to feel that a miscarriage likely occurred. If we look at the U.K., they have to feel there's a real possibility of a miscarriage of justice. If we look at North Carolina, they have an even higher threshold of factual innocence, so it's not fair to compare their non-requirement to appeal to ours, because our thresholds for someone to avail themselves of this process are so dramatically different.

I think Mr. Fortin's suggestion is a good one and I would support it. It would make what could be a bad situation a little better. However, overall, as to Mr. Housefather's amendment, I still can't support it because of how flawed I feel the system as a whole will still be unless we amend our threshold.

[The Chair, Liberal, Lena Metlege Diab]

Madam Gladu, go ahead.

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

Thank you, Chair.

Thank you to the committee. I'm very happy to be here.

Obviously I don't have the same depth of legal experience that many of you have, but what I have seen at my office is numerous inquiries from people who do not like a judge's decision and who are militant about wanting to pursue every avenue they can to possibly get it overturned. I share the concern of Mr. Moore that this may open up a flood of applicants. How do we make sure there are enough criteria in place so you're not getting these frivolous complaints? I think the amendment Mr. Fortin has recommended is better, but it might be an idea to park this clause and talk about the CPC amendment and see whether or not we can come back to this one and agree.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Ms. Brière.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

Actually I would like to hear the witnesses' opinions on the amendment generally.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Mendicino.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

First I'd like to say that I liked Mr. Fortin's remarks. However, I entirely agree with Ms. Besner's interpretation of the bill.

I would note that amendment LIB‑1 would insert the following words: “or verdict was not appealed to the court of appeal or the Supreme Court of”.

In addition, another provision concerning the independent commission reads as follows:

696.4(3) The Commission must dismiss the application as inadmissible if (a) the court of appeal has not rendered a final judgment on appeal of the finding or verdict; or (b) an appeal of the finding or verdict lies to the Supreme Court of Canada on a question of law.

I believe that provides some clarification of what Mr. Fortin raised.

In response to the comments that have been made by my colleagues Mr. Moore, Ms. Gladu and others from the Conservative benches, I would simply say that I think we all share the concerns of families and victims who have been traumatized by a trial and who may be indeed traumatized by an accused who exhausts their rights of appeal. They need to be at the forefront of our concerns. No one diminishes that, especially those of us who have grieved with families in various tragic cases. Certainly I keep that top of mind as I think about this law.

On the other hand, I would hope that my Conservative colleagues recall that for many years, the individuals who were the inspiration for this bill were themselves victims of miscarriages of justice. I think that is precisely the point Mr. Garrison was making. In our effort to ensure that those miscarriages are corrected, we have put forward a piece of legislation that sets a standard that does not aim to open the floodgates, as has been characterized, but rather sets the bar in a way that allows those who have exhausted their appeals or who choose not to appeal to come before this commission to ensure that wrongs are righted. For that reason, I do support my colleague Mr. Housefather on LIB-1, and I would urge all colleagues to vote in support of it.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

I'm going to turn back to Madam Brière.

I apologize, but I think you had a question for Madam Besner and I neglected to let her respond to it. Perhaps you could ask it again.

Thank you very much.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

I'd like to know the witnesses' general opinion of the amendment.

[The Chair, Liberal, Lena Metlege Diab]

That's for Madam Besner or Madam Dekker, whoever would like to start.

[Julie Besner]

I believe I mentioned at a previous meeting that Mr. Housefather had described the amendment very accurately. Consequently, I have nothing to correct on that score. What he describes is an exception to the general obligation for applicants to have exhausted their appeal rights. That will still be a requirement, but the amendment provides that exceptions may be contemplated if the commission takes into consideration the factors enumerated in subsection 696.4(4) of the bill. They are the relevant factors that, according to the case law, are to be considered on this specific issue.

I would add two more factors in response to the comments made and questions asked by other members of the committee.

As regards frivolous applications filed with the commission, the bill contains two provisions that include the concept of the interests of justice. This measure must be applied in order to enable the commission to refrain from using its resources to conduct an investigation or to refer cases for new appeals if it isn't really in the interests of justice to do so. Scotland has included this idea in its act and uses it for that purpose. It should be considered.

Similarly, one of the factors that the commission must take into consideration in reaching its final decision and that appear further on in the bill, on page 6, already exists in the present statute. It has been carried over to Bill C‑40: the application must not be intended to serve as a further appeal and the remedies set forth must be extraordinary remedies. That's already in the present act, and will remain so, to reflect the fact that the concept of miscarriage of justice review must be limited to cases in which new evidence calls into question the reliability of a verdict rendered by a court. It's a safety valve, an extraordinary remedy. The idea is not to question all the evidence considered or issues decided by the courts.

I hope that will assist you in your discussions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Ms. Besner.

Go ahead, Mr. Garrison.

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

Thank you very much, Madam Chair.

While I appreciate the intent of Mr. Fortin's possible subamendment, I think we're getting into an area here where the bill as originally drafted already describes these as exceptions. I think we're also hearing a contradiction from my Conservative colleagues, who tell me that the justice system gets almost everything right—I agree with them on that—but then suddenly we'll have a flood of wrongful appeals. I just don't see how those two things operate at the same time.

My concern with Mr. Fortin's possible subamendment is that we'll get into unintended consequences by adding that wording. The bill as drafted allows the commission to say they're not looking at a case because the appeal period hasn't expired, and you have every ability to appeal. That's certainly allowed by the wording of this bill as it stands. I don't think there's any need for us to fetter the commission by saying, “Absolutely you can't do that.” It's already there. We're only dealing with exceptional circumstances, as we just heard from our expert witness.

Like Mr. Mendicino, I would urge people to always keep in mind the victims of crime, but we've also had some very dramatic outstanding cases of families who are trying to make sure their loved ones are released from jail because they've been wrongfully convicted. That's exactly what this commission is designed for. The current process that goes through the minister has been found by everyone involved, including the ministers who have dealt with it, to be too restrictive and to be too subject to political timetables, I would say. Rather than whims, it's timetables. Ministers are busy people. How many cases can they deal with? Very few people have gotten through the existing system when there's clearly a miscarriage of justice.

I would hope that as LIB-1 is now drafted, it does take into account those very few cases where the commission will be given the ability to examine the applications. It does not require them to do so. The commission will very clearly establish within the legal community what those parameters are.

I would urge us to not delay this further.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Garrison.

I will now move to Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

This is going to be very fast.

I agree entirely with what Mr. Garrison and Mr. Mendicino said. I think the combination of what's in proposed subsection 696.4(4) and proposed paragraph 696.6(5)(c) makes it very clear that the commission is not going to frivolously entertain claims that should have been appealed. I believe in the good faith of the people on this commission to make good and wise decisions.

Nobody can stop frivolous applications, but the commission is not going to entertain them. I understand the Conservatives' perspective that there should be a different threshold, but I don't think this deals with that. This deals with who can make an application, and I really think the subamendment being proposed wouldn't add anything of value and might indeed have bad consequences.

I would urge people to vote on the amendment as is. If you like it, vote for it; if you don't like it, don't vote for it and move on.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Housefather.

Shall LIB-1 carry? We'll have a recorded vote.

(Amendment agreed to: yeas 7; nays 4 [See Minutes of Proceedings])

Thank you very much.

Is there a member who would like to speak to CPC-1?

[Rob Moore, Conservative, Fundy Royal, NB]

Believe it or not, Madam Chair, I'm not going to belabour the point on this because I've had the opportunity to speak to CPC-1 in the context of some of the other bills.

I think it's important. Some mention has been made of other systems, and I would quickly like to talk about our own system. The current system deals with scenarios where the Minister of Justice evaluates applications and can move forward with remedies if he or she feels that a miscarriage of justice likely occurred.

The United Kingdom has had a commission for some time now and, as I mentioned, experienced a flood of applications once the commission opened its doors. They have the threshold of a real possibility that a wrongful conviction or miscarriage of justice occurred.

In North Carolina, from where we heard testimony, factual innocence plays a part in the application and remedy. In this legislation, Bill C-40, factual innocence is not required. What is the threshold being proposed in Bill C-40? It's that a miscarriage of justice or wrongful conviction may have occurred. In my opinion, one, that threshold is too low, and two, it's a fact that it's lower than any other threshold in any jurisdiction we looked at, including our own.

CPC-1 would change the threshold in Bill C-40 at the investigative phase from “that a miscarriage of justice may have occurred” to “a real possibility that a miscarriage of justice has occurred”. We're replicating a peer country's wording, the United Kingdom's standard phrasing of “real possibility”.

Why do I suggest this? We want to have a system where a miscarriage of justice application would be exceptional. The process we have is strenuous. The accused can avail themselves of legal aid and all the charter rights to which they're afforded. I've mentioned before that I look at everything we do at this committee through the lens of the victims who have appeared before our committee. The victims and their families who have appeared at this committee have said that the judicial process itself revictimizes them. I remember one of them very clearly saying that we do not have a justice system in Canada; we have a legal system. That's how she felt coming out of the other end of the process.

In light of what we've recently heard from former minister Lametti about judicial vacancies, in light of what the chief justice of the Supreme Court has said about judicial vacancies, in light of the Jordan principle, in light of what all of us are hearing from our constituents about delays in the system and in light of the extreme stress that's put on victims and their families going through the process, the threshold whereby we say that someone is going to get another crack at the whole thing, they're going to get a new trial or they're going to go to the court of appeal has to be higher than a miscarriage of justice. That is why CPC-1 mirrors the U.K. standard that there's a real possibility that a miscarriage of justice occurred.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Van Popta.

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

Thank you.

I do speak in support of CPC-1.

We had a person from the U.K. commission give testimony. I thought that his testimony was very helpful to this committee. Mr. Curtis was his name.

When he was asked by one of my colleagues what the U.K.'s threshold was for directing its commission to conduct a review and to refer the case back to the trial system, to the court of appeal, this is what he said. It's a short piece of his testimony:

Our test is if there is a real possibility that the appeal courts would quash the conviction and if our case law tells us the real possibility is below the balance of probabilities—that it's less than a 50% chance in that respect. It has to be real, so it's reasonable rather than fanciful.

Then he went on to say, “We've got some helpful case law and decisions that guide us on that.”

Mr. Curtis didn't cite any specific case, but I did research and came across their leading case, which is Pearson. Pearson was convicted of murdering her husband's new girlfriend. She had gone through the whole appeal procedure and then applied to the commission. It was just a new commission in the United Kingdom at that time, so this was their first case.

The judicial review court had to decide what a “real possibility” meant. I am going to quote from the Pearson case, and I think this is what their law is. This is what they said:

The “real possibility” test prescribed in...the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission’s judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant’s prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated.

When I listen to the members of this committee argue their points, I think they agree with this. I think that's exactly what we are trying to do, so I think that's a very strong argument in favour of adopting the U.K. language. We will then have the advantage of 25 years of jurisprudence coming out of the U.K. The Pearson case was only the first case. Many other cases refer to it, so it is still the leading case.

I would argue very strenuously in favour of adopting the U.K. language. It captures exactly what I think we are intending to do. If, on the other hand, this committee goes with the lower threshold, the question will be what Parliament's intent was in doing that. I would certainly argue, if I were acting for a person who felt they were wrongfully convicted, that Parliament's intent was to not adopt the U.K. standard but go to a lower standard. That's what I am concerned about.

I will just wrap up with this. With the Milgaard case, it was never the problem that the threshold was too low. The problem was that the dysfunctionality of the review group was too political, as Mr. Garrison pointed out. That's the problem. That is already being remedied without playing around with the threshold.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Garrison.

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

Thank you very much, Madam Chair.

With respect to my Conservative colleagues, I think they're missing a piece of this clause. It doesn't say that the standard is “that a miscarriage of justice may have occurred”. It says, “If the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred”. I'm not certain that's not a narrower standard than what the Conservatives are proposing here. I don't think it's obvious that the language from Britain is narrower. I think it may be broader than what's already in this bill. This requires the commission to have “reasonable grounds to believe”, which is a well-established Canadian legal concept. We know in law what that means in Canada.

Again, with all due respect, I think you may be misjudging the impact of adopting the British standard. It may in fact be broader than what's adopted in the bill. The advantage of what's in the bill is that it's very clear, and it comes from Canadian legal traditions. We know what “reasonable grounds to believe” actually means. There is a lot of Canadian jurisprudence on that point.

I would urge us to leave this wording as it is. The intent of Parliament here.... The reason we're dealing with this is that grounds have been too narrow. Yes, we are trying to open the door a bit farther to those who have suffered miscarriages of justice. I don't think there's any question about what our intent is here, but I think there's some question about whether the British standard is a much broader standard than what's in the bill.