Justice Committee on Feb. 1st, 2024

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting number 92 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation on miscarriage of justice reviews.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. We have members on Zoom and others are in person.

I believe we have a new member with us.

Marilyn Gladu, welcome to our committee.

I believe all members are knowledgeable about the technology and how it works and about interpretation. Just as a reminder, all comments are to be addressed through the chair, please. We have members in the room. For those on Zoom, with the help of the clerk and the Table, we will watch for hands going up on the screen to ensure that we don't miss anyone.

I wish to inform you that all the sound tests were completed successfully.

With us in person today is Madam Anna Dekker.

Ms. Anna Dekker is Senior Counsel and Deputy Director of the Public Law and Legislative Services Sector.

We may be joined by someone else, but right now we will continue with our study.

We will resume consideration of Bill C-40 and resume debate on clause 3.

NDP-1 was withdrawn by unanimous consent on December 14, 2023.

I will ask Mr. Housefather if he wants to move LIB-1.

(On clause 3)

[Anthony Housefather, Liberal, Mount Royal, QC]

Yes. Thank you, Madam Chair.

We've had some extensive discussions already on this amendment. The essential purpose of LIB-1 is to allow the most vulnerable people who couldn't have appealed to the court of appeal to have the same right, as under the current version of the bill, that they would have had if they had not appealed to the Supreme Court. Essentially, it is entirely consistent with the language of the bill. It just adds a further avenue for those who didn't appeal the original judgment to appeal on the same grounds as allowed for those who didn't appeal their court of appeal judgment to the Supreme Court.

Given how much discussion we've had already about Mr. Garrison's amendment and this one, I don't think I need to prolong this. I would recommend that we support it.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Housefather.

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

On this amendment, overall, the concern I have is that the drafters, in their wisdom, had a requirement that the decision be appealed. The reason is that to avail oneself of this process, it should be fairly extraordinary. These are wrongful conviction cases. While they happen, they are rare. Eliminating the requirement as drafted to have them appealed further lowers the threshold, and we'll get to that when we deal with CPC-1.

As to the threshold in this process, we heard that North Carolina, the United Kingdom and other jurisdictions that have a commission on wrongful convictions have a much higher threshold than what's proposed here. Eliminating the requirement that one appeals their decision makes the bill's floor, which is too low, even lower.

Without speaking too much to it in advance, CPC-1 is going to change the threshold from “may have occurred”, which is in the current draft, to “a real possibility that a miscarriage of justice has occurred”. I think it would be Canadians' expectation that a miscarriage of justice or wrongful conviction.... While Canada has an enviable system, it has its challenges.

We had a debate at the last meeting around resources for judges and judicial vacancies. There's no doubt there could be changes to the law. My concern in this.... We had a study on the federal government's obligation to victims of crime, and we heard over and over that the process revictimizes. They're already victims and then they go through the process. Whether it's the judicial process or the parole hearing process, victims told us at this committee that the process revictimizes them.

With this process, there is no doubt there will be claims that result in new trials. A new trial means that victims will have to relive a very painful process that they've already been through. That is why I think, in light of the fact that this is new to our country....

There are contemporaries that have dealt with this. In the case of the United Kingdom, even with their much higher threshold—“a real possibility that a miscarriage of justice has occurred”—we heard testimony that there was a literal flood of applications when going from the pre-existing rules to the new commission. We can expect the same here. That is why I do not think it's in the interests of victims or our system as a whole to have a threshold that is so low.

This amendment would probably make a possibly bad situation worse, so I'm unable to support it.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Moore.

Mr. Garrison.

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

Thank you very much, Madam Chair.

I'm happy to support this amendment. As we all know, I was trying to accomplish the same thing, but my amendment as drafted inadvertently removed a couple of other sentences from the bill. That was a drafting error.

I want to go back to the testimony we heard, virtually universally, from witnesses, which was that those who are least likely to have the skills and resources to exhaust appeals are exactly those who need to be considered by this commission. If you're looking at people with low levels of education, low levels of economic resources and low levels of information about the justice system, saying they must have exhausted all of their appeals requires them to know more about the legal system than most of us do. I think, in fact, this is raising the standard way too high.

To respond to Mr. Moore's concern that there will be a flood of cases, this allows the commission to look at those applications. It doesn't require them to accept those applications.

I also want to go back to testimony we heard from victims, because the Conservatives often like to cite it. One thing we heard universally from victims was that they'd like the right person convicted and would not like the wrong person still at large in society. Part of the benefit to society of a miscarriage of justice commission is to make sure the right people pay the price for their crimes and that we don't let people “off the hook” because we convicted the wrong person. We've seen some very dramatic examples of that in the past.

I would say the importance of this amendment is to make sure that those who most need the benefit of this commission actually get considered by the commission.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Garrison.

Mr. Caputo, please go ahead.

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

Madam Chair, may I deviate a bit? I'd like to ask Mr. Housefather a question about the intent of his amendment. Is that permissible?

[The Chair, Liberal, Lena Metlege Diab]

Sure. You can ask him through me. I don't think I have an issue with that because I don't believe he has an issue with responding.

Go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

I haven't heard the question.

[Voices]

Oh, oh!

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

Mr. Housefather is talented, although not telepathic.

My question is this: Is the intent of this amendment to address historical wrongful convictions? If somebody was convicted 10, 15 or 20 years ago and didn't go through the court of appeal or the Supreme Court of Canada, now they have an additional leap. Is that your intent, Mr. Housefather?

[The Chair, Liberal, Lena Metlege Diab]

I will only allow you to ask it because I think he has no issue in responding to you.

[Anthony Housefather, Liberal, Mount Royal, QC]

No, I have no issue at all.

[The Chair, Liberal, Lena Metlege Diab]

Please go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

We heard Mr. Moore cite North Carolina and the U.K. In neither of those cases does the commission have an impediment where it's not allowed to consider cases because of failure to appeal. My intention, as Mr. Garrison's was, is to remove that impediment because it is the most vulnerable defendants who wouldn't have the legal resources or the legal advice to necessarily appeal a case.

If somebody was wrongfully convicted and whatever burden of proof we agree to in this bill is met, it shouldn't be that the commission can't even consider the case because the person didn't appeal to the court of appeal. We left in the bill an ability, if you appeal to the court of appeal and not to the Supreme Court, to allow the commission to consider it. All this does is remove that impediment if the person didn't appeal the case to the court of appeal. However, it's on exactly the same terms and the same grounds as was in the bill to begin with.

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

Okay. I think I understand your point.

I understand Mr. Housefather's point, and I get where he's coming from. I listened carefully to Mr. Garrison's point and to Mr. Moore's point. I think the two are actually quite reconcilable.

I know that Mr. Garrison, somewhat in contradiction to Mr. Moore's point, spoke about how we want to put the right people in jail. I believe Mr. Moore's point is that, generally, our system does get it right. It gets it right almost always, and that's the whole point: When there is a wrongful conviction, it does strike at the heart of the justice system because it is meant to be rare. Frankly, I think it is rare.

Mr. Moore's point is that in most cases where the right person was convicted, the victim is reliving it. Mr. Garrison's point is that we want to get the right people in jail. The two are there; the two are reconcilable.

My concern is this. Let's say a person is convicted by a jury on May 1, and on May 2 that person is applying for a wrongful conviction. I don't know if that's your intention, Mr. Housefather, but that is what is permitted by this amendment. That is my concern.

That's why I asked whether Mr. Housefather's intent was to look at somebody who didn't have the resources. I think that almost everybody would get funding for a meritorious appeal through legal aid. I can't say that with one hundred per cent certainty, but that's my impression anecdotally.

I am concerned that somebody who is convicted on May 1 can then turn to this legislation on May 2. If that's not your intent, then I believe we should be looking at a subamendment. I am happy to put one forward, but I don't know. Again, that's why asked you for your intention.

[Anthony Housefather, Liberal, Mount Royal, QC]

Can I...?

[The Chair, Liberal, Lena Metlege Diab]

Do you know what? I'll put you on the list. How's that?

[Anthony Housefather, Liberal, Mount Royal, QC]

Put me on the list. Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Van Popta, please go ahead.

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

Thank you, Madam Chair.

I have the same concern as my colleague Mr. Caputo. I don't think any of us want this judicial review commission to become an alternative court system.

Mr. Garrison was saying just a few minutes ago that those who are least able to hire a competent lawyer—for example, those who don't have the resources to do that—are the ones we want to help out. In response I would say those are good arguments for improving our traditional trial court system, maybe with better legal aid funding and by ensuring that every person who's charged with a serious offence has competent counsel. I think we're all very interested in our criminal trial system functioning properly and coming to the right decision.

Our system is an adversarial system. The judge's job is to hear the evidence, to give direction to the jury and to allow the jury, then, to make the decision. This is not an inquisitorial system. It's an adversarial system.

The judicial review commission will be more inquisitorial and will have the resources to do investigations. That's a good thing, but what we don't want to happen is that it becomes an alternative or parallel criminal justice system so that a person convicted can decide whether they go through the appeal process or go directly to judicial review. I think that's what we want to avoid.

Whatever amendments my colleague Mr. Caputo might come up with, I'm certainly interested in hearing them.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much.

I think we all do not want this to simply replace the appeal system. That is already in the criteria the commission would use in order to determine whether or not to receive a case. One of the criteria is related to whether or not an appeal could still be made. I'll pull out the legislation if I need to, but I think you need to look at the already established criteria for whether or not the commission should grant leave to discuss a case or not. That is already included. That would be my point.

I agree with you that it shouldn't replace the appeal system, but I believe that's already in the bill and that is one of the grounds. All this does is say that if you appealed a case to the court of appeal, it's the same as if you appealed it to the Supreme Court. You didn't exhaust your appeals. The commission can still look at it, but it's not meant to replace, as I think the bill is drafted, the current appeal system.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Caputo.