THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 23, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to consider Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews).
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good afternoon, honourable senators.
[English]
My name is Brent Cotter. I’m a senator from Saskatchewan and the chair of our committee. I invite my colleagues to introduce themselves, beginning on my left with the deputy chair.
Senator Batters: Senator Denise Batters, from Saskatchewan.
[Translation]
Senator Carignan: Good afternoon. Claude Carignan from Quebec.
Senator Dalphond: Pierre J. Dalphond, De Lorimier Division in Quebec.
[English]
Senator Senior: Senator Paulette Senior, Ontario.
Senator Arnot: Senator David Arnot, Saskatchewan.
Senator Prosper: Senator Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Simons: Senator Paula Simons, Alberta, and I come from Treaty 6 territory.
[Translation]
Senator Aucoin: Réjean Aucoin from Chéticamp, Nova Scotia.
[English]
Senator Pate: Welcome and nice to see you. Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
The Chair: Let me begin by welcoming new senators to the committee, even if they are members only temporarily. For your information, Senator Arnot is the sponsor of this bill in the Senate, and Senator Batters is the critic.
Honourable senators, we are meeting to begin our study of Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews).
For our first panel, we are pleased to welcome the Honourable Arif Virani, Minister of Justice and Attorney General. He is joined by officials from the Department of Justice Canada: Julie Besner, Senior Counsel, Public Law and Legislative Services Sector; and Nathalie Cyr, Deputy Chief Legislative Counsel and Director, Public Law and Legislative Services Sector.
Welcome, minister, and your officials. Thank you for joining us. Just before I invite you to deliver your opening remarks of approximately 10 minutes, I would like to make 2 minutes of opening remarks of my own. It’s a little bit unusual for me to do, but I’m going to take the liberty of the chair and do so.
For years, before coming to this place, I taught a law school course in legal ethics. Each day I tried to share with students the story about a lawyer. My favourite occasion was to talk about lawyers who had toiled, and often in anonymity, on behalf of clients seeking to overturn wrongful convictions. They are, in my opinion, heroes. I’m thinking of lawyers such as Clayton Ruby, Archie Kaiser, Felix Cacchione, Steven Aronson, Anne Derrick and others who worked on behalf of Donald Marshall Jr. on his case.
Closer to home, in Saskatchewan with respect to David Milgaard, I’m reminded of Hersh Wolch — no longer with us — and David Asper, who wrote his experience representing Mr. Milgaard in a book entitled In Search of the Ethical Lawyer, which offers essays on the practice of law and ethics.
More significantly and more relevant to our discussion today, a number of those people wrongly convicted by our justice system, but particularly Mr. Milgaard and Mr. Marshall, despite having sacrificed so much of their life to wrongful convictions, set aside bitterness, I am sure, and committed their lives to making the justice system better for others.
Mr. Milgaard spoke once at our law school at the University of Saskatchewan some years ago to a jam-packed audience of law students and lawyers, describing his experience and his commitment. He received the largest, loudest and longest standing ovation I have ever heard or seen at a Canadian law school — a small token of gratitude for his immense contribution. In that one hour, I believe Mr. Milgaard inspired more students to pursue justice with integrity than I did in 30 years of teaching. His legacy, along with the work of those remarkable lawyers, reminds us of the deep responsibility we carry as we examine this bill and its impact on our justice system.
At that point, over to you, minister.
Hon. Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chair. You are right. I have not heard a chair provide opening remarks like that, but those were very poignant and very necessary given the gravity of the bill that is before you right now.
Thank you for inviting me. It is nice to see some familiar faces and also some new faces.
I am accompanied by Julie Besner on my right and Nathalie Cyr on my left. After my remarks, we will look forward to taking your questions.
I want to start by saying that this legislation will change lives. An independent commission for reviewing potential miscarriages of justice will rescue innocent, wrongfully convicted people who are unfairly stuck in prison. It will bring those innocent people back to their loved ones. Victims of crime will also be better served under a justice system that not only acknowledges but actually corrects errors, bringing them one step closer to actual justice.
[Translation]
I am thankful to my predecessor, David Lametti, for his leadership on this legislation. The promise that he made to David Milgaard and his mother Joyce to pass this legislation now lies in my hands, and yours. I have every intention of fulfilling that promise. I thank you for studying this bill and bringing us closer to that goal.
[English]
I think it is clear, senators, that the current system is failing to adequately address wrongful convictions. In addition, it has failed to provide remedies for women, Indigenous persons and Black Canadians in the same proportion as they are represented in Canada’s prisons.
For those of you who have looked at the Gender-based Analysis Plus, or GBA Plus, you’ll note some of the statistics that I will provide to you now. If you are an Indigenous adult, you represent 5% of the Canadian population, but you represent 33% of admissions to federal custody. That’s a 6.5-fold increase.
If you are an Indigenous woman, you represent 4% of all women in Canada, yet you represent 50% of all women in federal prisons. That’s a twelvefold increase.
If you are an Indigenous youth, you represent 8% of Canadian youth, but you represent 50% of the youth admitted into federal custody. That’s a sixfold increase.
If you are a Black adult, you represent 4% of the Canadian population, but you represent 10% of the admissions to federal custody in four provinces in this country.
If you are a Black youth, you represent 4% of the population but 18% of the admissions to federal custody in three different provinces.
The wrongful conviction regime that we currently have was updated last in 2002. Since then, there have been just over 200 applications for review that have been brought to the Criminal Conviction Review Group, or CCRG, at the Department of Justice. From this pool, there have been 25 successful referrals back to the courts. That’s since 2002. Out of that group of 25, 5 have been racialized persons, zero have been women, so 20 have been White men.
This number pales in comparison to the number of miscarriages of justice corrected in countries that have independent commissions.
By creating a wrongful conviction commission that is accessible, proactive, efficient and diverse, we will create a more just system and find more of these cases.
I would like to highlight a few features of the commission, which I believe will make it effective in accomplishing the goals of this legislation.
An independent commission dedicated exclusively to miscarriage of justice reviews will both increase confidence in the review process and help improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed. With five to nine full- or part-time commissioners and more staff, the new commission will have the capacity to review miscarriage of justice claims more quickly than the current system.
[Translation]
The new commission will be accessible to applicants from anywhere in Canada. It will provide services in both French and English and will also provide translation and interpretation services to applicants when needed, given the diversity of languages spoken in Canada. This bill is fundamentally about better access to justice. I want to assure you that access to both official languages will not be a barrier to any applicant under the new system.
[English]
The commission will be able to proactively reach out and assist potentially wrongfully convicted people in the language they understand, which extends beyond just English and French.
If applicants are without means, the commission will have the power to fund legal assistance.
Reintegration supports such as housing or food could also be provided to applicants in need during the review process. These measures will help to broaden the pool of potential applicants, ensuring that the new commission reaches individuals who may not know about the process or face barriers in accessing the system.
Let me return to those numbers I gave you previously. Between 2002 and 2024, a 22-year span, we have had 200 applications in this country. Between 1997 and 2024, so a slightly larger period, England, Wales and Northern Ireland have received 32,000 applications. I don’t think that’s because they render justice woefully badly in the U.K. I think it’s simply because they have a different model of finding cases, and that has clearly been shown to be the case.
Miscarriages of justice are devastating, not just for the convicted person, but for victims of crime as well. The commission will have a dedicated victim services coordinator position to provide support. This coordinator will assist with the development of appropriate procedures, especially as it relates to victim notification and participation in a manner consistent with the Canadian Victims Bill of Rights.
In consultations, it became clear that Canadians expect to see diverse commissioners. This means diversity in terms of personal identity, lived experience and professional qualifications. We made the decision to mandate that at least one third, but not more than one half, of commissioners are lawyers.
Why did we do this?
It is to ensure that there are commissioners who have knowledge not just of the law, but also of important areas like systemic racism, mental health and social determinants of criminality. While wrongful convictions are legal errors, they often stem from unfairness and systemic failures in our society beyond the bounds of the justice system. It’s important that the commission have the experience needed to properly consider these realities.
[Translation]
Now, I want to turn to the reforms in Bill C-40, in terms of admissibility criteria, investigative powers, the legal test and factors for referrals. Bill C-40 amends the admissibility criteria to make it clearer that guilty pleas, absolute and conditional discharges, and findings of guilt under the Youth Criminal Justice Act are reviewable. Also, verdicts of Not Criminally Responsible on Account of Mental Disorder are being added to the list of findings that would be admissible for a miscarriage of justice review.
[English]
We made the decision based on advice from peer countries not to include sentence reviews in the admissibility criteria at this early stage of the commission’s development. Someday, it is my hope that a robust, experienced commission may develop the capacity to include those seeking a remedy for an unfair sentence. For now, my goal is to create an efficient commission that can adequately manage its caseload.
As a general rule, applicants will have to first exhaust their rights of appeal before their application could be admitted for a review. However, I would note that Bill C-40 was amended by the House Justice Committee to provide the commission with the ability to admit an application where no appeal was sought in exceptional circumstances. The House committee heard from witnesses that in some very rare cases, mandatory exhaustion of the appeal process may pose high economic or evidentiary-related barriers that would unfairly exclude people from accessing the commission. The allowance for exceptions follows the model of the commission in England, Wales and Northern Ireland, which I referred you to earlier.
In assessing whether there are “exceptional circumstances,” the commission must take into account the time that has passed since the final judgment of the trial court; reasons why the finding was not appealed; and whether the application is supported by a new matter of significance that was not considered by the courts, among other factors.
Bill C-40 revises the legal test for making referrals back to the courts to be whether the commission has reasonable grounds to conclude that a miscarriage of justice may have occurred, and that it is in the interest of justice to do so. This new revised test borrows from Scotland, which requires that a miscarriage of justice may have occurred and “that it is in the interest of justice that a reference should be made.” New Zealand similarly uses an “interest of justice” test, but they use it as the sole criteria for referral.
We believe that a two-pronged test will encourage more legitimate applications to come forward in Canada.
The “interest of justice” encompasses both administration of justice considerations as well as individual circumstances. There may be cases in which a potential wrongful conviction has minimal impact on an individual, and the commission may decide it does not have the resources to address that case. In contrast, sometimes there are minor convictions that have life-altering impacts, which may result in prioritization from the future commission. Using “the interest of justice” criteria builds in flexibility for the commission to consider the cases of people who need it most, as efficiently as possible.
The current threshold, which is that “a miscarriage of justice likely occurred” — so that’s in the current statute — has been criticized for being too high and only referring back cases in which a miscarriage of justice is a certainty. The statistics that we have seen support that perception.
In Canada, I mentioned to you that there are 30 cases in the pipeline, 25 of which have landed on ministers of justice’s desk. In all of those cases, there has been the result of an acquittal, stay or conviction on a lesser offence. Whereas in the United Kingdom, all cases are not successfully overturned after referral. Approximately one third have not been. Our extremely high current threshold raises a very real concern that some miscarriages of justice are being overlooked.
I put it to you, senators, that with Bill C-40, we are one step closer to providing freedom for innocent people whose lives were irreparably changed because of a miscarriage of justice. I am committed to prioritizing the establishment of this commission as soon as possible. Funding for the commission was committed in Budget 2023, so we are ready to hit the ground running as soon as Bill C-40 receives Royal Assent. It is my hope that this commission can begin helping people within 12 months of receiving Royal Assent.
I would end with a reminder that comes from none other than Gord Downie in the Tragically Hip’s ode to David Milgaard himself, the same David Milgaard that Senator Cotter referred to. The lines in that song state, “. . . you can’t be fond of living in the past . . . .”
I believe it’s time we pass this legislation and usher in a new era for our justice system. That is the momentous task before us as parliamentarians.
Thank you very much for your time. I will now be happy take your questions.
The Chair: Thank you, minister. We are going to begin with questions from the sponsor, Senator Arnot, followed by questions from Senator Batters, both the critic of the bill and deputy chair of our committee.
Senator Arnot: Thank you very much, minister, for coming today, and thank you for bringing this bill forward. I think it is one of the most important amendments to the Criminal Code in the last 70 years, and it addresses a gap that needs to be addressed. I’m very appreciative of the construction of this bill.
I talked to some senators about this bill. I would like you to comment on this question that has been given to me. Given the expansive nature of what might qualify as a miscarriage of justice or a new matter of significance, how does Bill C-40 safeguard against potential overuse or misuse of those provisions?
Mr. Virani: Senator Arnot, thank you, and thank you for your role as sponsor of the bill. What I would say is that by establishing a new commission, we are targeting a problem that we have identified, which is the lack of access to this recourse, because it has only been resorted to by 200 applicants in over 20 years. As a result of implementing what we hope will be a new commission process that is going to result in greater access to justice for people right around the country, that is necessarily going to result in an influx of applicants. I think the safeguards that are in place are the tests that need to be used, the factors that need to be considered that are mandated in the legislation for what would constitute a potential miscarriage of justice and what would guide the “interests of justice” consideration.
I think another important safeguard, as I mentioned in my opening remarks, is we are looking at only convictions that have occurred and not things like sentences, so that helps to circumscribe the role the commission will play and how much work they will be taking on in those initial stages.
I think also providing over $80 million of funding in Budget 2023 ensures that the commission will be adequately staffed and resourced so that it can handle the influx of cases that may be coming its way.
Senator Arnot: Just a quick follow-up. Given that Bill C-40 introduces the idea of a new matter of significance, which could encompass new law evidence or information, could you or your colleagues provide examples of how evolving legal precedent or scientific advancements could qualify under that provision?
Mr. Virani: I’ll take a stab at it and perhaps turn it over to Ms. Besner. Obviously, we have seen a lot of change in the law over the past several decades but also changes in science and technology. There was a time in this country when DNA evidence would not have been understood or not contemplated. Now we have even more advances in electronic technology, electronic evidence, technical evidence and digital evidence that may be matters of significance that the commission could take note of.
Julie Besner, Senior Counsel, Public Law and Legislative Services Sector, Department of Justice Canada: Three little points I could add to that. That factor is currently in the Criminal Code. It is being retained. If you look very carefully at the language, it effectively says whether an application is supported by new matters of significance, new evidence or new information. So it is not something that is being added. It has been interpreted by several courts and, indeed, it can cover things like evolution in science and even new law, like you said.
I can point to two cases in particular: The Hart decision by the Supreme Court of Canada that pointed out that some undercover operations could amount to coercion that could amount to a miscarriage of justice, so that is something that can be considered as a new matter of significance that is not necessarily just a matter of evidence but law. Lavallee is another one, the self-defence review, that occurred following that decision of the Supreme Court as the law evolved.
The Chair: Thank you, both.
Senator Batters: Minister, why does your government’s Gender-based Analysis Plus for this bill say so little about women who are victims of violent crime? It does contain some small amount of information for other specific groups.
Mr. Virani: I’m sorry, what was the last part of your question? Could you repeat the last part?
Senator Batters: The Gender-based Analysis Plus contains very little information about women who were victims of violent crime. It does contain some small amount of information for other specific groups.
Mr. Virani: I’m looking at the Gender-based Analysis Plus because I have come to expect certain questions from you, Senator Batters, and I appreciate your consistency on this point. It’s great to see. There are considerations in the Gender-based Analysis Plus about, first of all, the simple fact that we have not overturned in 22 years a single women’s wrongful conviction. That’s the first point. There is a consideration also in the statistics that I outlined for you about the pernicious impact of the over-representation particularly of Indigenous women in our prisons. There is also consideration — I believe it is on page 2 of the Gender-based Analysis Plus, which talks about the fact that women — particularly women who are involved as victims of abuse, so that would include gender-based violence — have often been found to plead guilty when self-defence arguments may have been available to them.
There is also an acknowledgement of the fact that systemic inequality, including discrimination and violence experienced by women, has often encouraged them to enter guilty pleas sometimes unnecessarily. So there is some consideration of that component on page 2 of the Gender-based Analysis Plus.
Senator Batters: I see that, but I was specifically asking about women who are victims of violent crime. It doesn’t have the percentage of women who are victims of a violent crime but it does have percentages for other specific groups listed. It doesn’t have a percentage of women who were convicted of violent crimes in Canada. Anyway, something to please get me some information about if you could. But I’ll move on. In your opening remarks, you talked about the much lower standard that Bill C-40 now has where the commission will have to determine if they have:
. . . 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.
The bill does not define the “interests of justice.” Minister, what I’m wondering, when I hear about that two-prong test, is what possible situation would require an appeal due to a possible miscarriage of justice yet would not serve the “interests of justice”?
Mr. Virani: It’s an important question, Senator Batters. I would say to you that when we add in the factor of “interests of justice,” what we are contemplating, for example, is a lot of the cases that I have seen personally as minister but also that are included in that set of 25 over the last 22 years involve significant penalties for very significant crimes, often murder and life sentences. What the “interests of justice” would allow is a bit of flexibility for a future commission whereby they might look at what is a more minor offence — potentially an assault, robbery or break-in, et cetera, that may have attracted a lower penalty but potentially has very significant consequences for the individual.
What do I mean by that? It could be consequences such as the ability of that person to have gainful employment; to maintain their housing if their housing might have been supportive housing or state-run housing; or, their ability to access their children if they are in a family dispute situation. So by adding this criterion it adds an element of additional discretion that would allow for a wider ambit of cases to be presented.
With respect to your latter point, we will definitely undertake to provide you further information. Were you speaking of victims of crime who end up as convicted women or women who are just victims of crime?
Senator Batters: Victims of violent crime.
Mr. Virani: Okay. I didn’t understand it fully in the first instance.
Senator Batters: With respect to what you were just speaking about, I will make a brief point and go on to my last question. An appeal due to a possible miscarriage of justice, to me it would seem like that would always serve the interests of justice. If you can have an example where it wouldn’t, I would be interested to hear about that.
The last question I have is: As you were explaining briefly in your opening remarks, under the current system, the Criminal Conviction Review Group within the Department of Justice that reviews these cases that are sent to the Minister of Justice are all lawyers.
That is important, I think, because of the severity of what we’re dealing with here. But under your new bill where you’re proposing this different system, no less than one third of commissioners but no more than half of the commissioners must be lawyers with at least 10 years’ experience in criminal law. As such, the bill would mandate that the other half of the commissioners must not be criminal lawyers with 10 years’ experience.
I personally find, minister, this insistence on non-lawyers surprising for a justice review commission with investigative powers that can refer cases back to the courts for an appeal or a new trial.
The quorum of your new commission consists of half the commission’s members, but Bill C-40 does not state whether that quorum would need to include the chief commissioner or even any lawyer commissioners. So, does it? Why aren’t those key details in your bill?
Mr. Virani: I would underscore that what we’re trying to get at is the evaluation that’s made by the commission needs to be a comprehensive and holistic analysis. When we’re talking about the interests of justice, we are also talking about mandated aspects of the statute about looking at overrepresented groups and system barriers, including those faced by Indigenous and Black Canadians.
By positing in the bill and setting out in the text of the bill that one third to one half of the commissioners would be lawyers, what we’re saying is the remainder would need to have expertise in some of those systemic inequality areas. It could include academics, social workers, people with expertise in systemic inequality, or mental health and addictions, for example.
With respect to the earlier part of your question, it’s an independent commission that is going to be set up in a manner that determines the nature of the quorum that is set out for a given case. I have absolute confidence in the ability of the commissioners to execute this function, ensuring that there’s legal expertise. The mandate of the commissioners is that they need to have an understanding of the law but also have an understanding of systemic barriers. I’m sure that’s what they will work to achieve.
Senator Batters: So you are not going to require that the quorum include any lawyers, not even in regulations?
Mr. Virani: I think by mandating that you have one third to one half of the commissioners be lawyers, you’d be hard pressed to find a situation where the quorum that’s created for a given review does not have legal representation.
Very politely, I would also correct you on one aspect there. This is not usurping the role of a court or functioning as a court. What this commission is doing is making an evaluation based on the test and then referring the matter to a trial court or an appellate court for ultimate determination.
[Translation]
Senator Dalphond: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs, minister. We haven’t seen you for some time.
My question is about the budget. You mentioned $80 million over five years, which works out to about $16 million a year. How does this compare with the current budget of the Criminal Conviction Review Group, which is made up of a team of lawyers, paralegals and a director? Does it double or even triple resources, or is it roughly equivalent in terms of resources?
Mr. Virani: I will ask Ms. Besner to respond with respect to the Criminal Conviction Review Group budget.
Ms. Besner: I can assist you with that. The proposed budget for the new commission was already mentioned, and it’s $18.7 million a year after the first five years. The current budget for the Criminal Conviction Review Group is $1.2 million. So, if you multiply that number, it’s 15 times more. I should mention that the current budget for the Criminal Conviction Review Group is included in the total budget request for the commission. The gross budget for the commission would be approximately $17.5 million in new resources.
Senator Dalphond: It’s $1.2 million for the Criminal Conviction Review Group?
Ms. Besner: Yes.
Senator Dalphond: Does that include external mandates?
Ms. Besner: Yes.
Senator Dalphond: Sometimes, a retired judge is given the case to investigate, or a lawyer. It can take up to two years.
Ms. Besner: That specifically includes resources for the Special Counsel on Miscarriages of Justice who was, at the time, retired justice Fish. It also includes lawyers or investigators who are sometimes hired externally when requests are more voluminous.
Senator Dalphond: There will be a transition period with both, because the Criminal Conviction Review Group will complete some cases and the commission will start handling new ones. Eventually, we’ll have a commission that operates on a budget of $17.5 million a year, as opposed to the current system, which costs $1.2 million. Can we assume that there will be at least 10 to 12 times more resources available for people who apply?
Mr. Virani: That’s absolutely necessary, senator, because the aspect and powers are much broader with respect to access to justice. There’s also the fact that we have to enter prisons and communicate with inmates in both official languages, but also in other languages, such as Indigenous languages. Resources must be set aside for legal aid, food and housing, if necessary. We will need the necessary investments to support this whole aspect, because the mandate is much broader.
Senator Dalphond: The figures you’ve given us clearly illustrate the cultural shift that is sought. It’s no longer an exception, with a small group working on it, but a commission with an enormous budget, 10 to 15 times larger, and which will likely have more employees, not just a few, but a hundred or so. This is something much bigger.
Thank you very much for the figures. They’re very helpful. I’ve been trying to obtain them for a while, even from the Standing Senate Committee on National Finance. So I’m very happy to hear them.
I have another question regarding transitional measures. Section 13 of the bill provides as follows:
For greater certainty, the fact that the Minister dismissed an application under the old scheme does not prevent the applicant from applying under the new scheme.
This means that, initially, many people who were rejected under the old regime will be knocking on the commission’s door. In addition, there will be many others who were not previously eligible, because they were declared unfit to stand trial or were minors, for example. Is it anticipated that the first few years will see a large number of applications?
Mr. Virani: It’s quite possible. Quite honestly, what I can emphasize is that currently, if you’re among the group of 30 people over the last 22 years, you’re lucky, because private lawyers identified your case. Given the fact that there are no women and only five racialized people, despite the over-representation of Indigenous and Black people…. It is statistically unlikely that we’ve discovered all the cases. We’re avoiding a situation where you have to be lucky enough to be pinpointed by a firm like James Lockyer’s, and replacing all that by a system with a commission that will have its own resources to go into prisons to talk to inmates and inform them of their right to apply.
[English]
Senator Prosper: Thank you for your earlier reference to Donald Marshall Jr., who was a friend of the family back home.
Thank you, minister, for coming to provide evidence here.
You provided in your statement the number of applications. Over 20 years in Canada, 200 applications. You had in the U.K., 32,000. This is certainly an access-to-justice issue, and you mentioned some miscarriages of justice are being overlooked by the sheer difference in numbers.
Now, back in 2021, when Minister Lametti approached the two retired judges to undertake consultations for an independent commission, there was a report issued. I just wanted to reference something from that report.
The minister’s record of awarding 20 referrals since 2022, all involving men and only one involving an Indigenous man and one involving a Black man, does not reflect the population at risk for wrongful convictions as measured by the over-representation of Indigenous and Black people in Canada’s prisons. Could you provide further comment on some of the reasons for that?
Mr. Virani: I can say to you that the numbers have changed slightly. We’re now at 25 cases overturned, 5 of which involve racialized people. In that grouping, it would include both Indigenous and Black Canadians. They are all men.
I can say to you that in terms of everything that I’ve learned about this bill, everything I’ve read about the Canadian Criminal Cases Review Commission, led by Justices Juanita Westmoreland-Traoré and Harry LaForme, is that they identified a major problem, that we are just not finding these cases.
As I’ve explained to Senator Dalphond, it seems that you almost need to be lucky or in a position thus far in Canada, because your cases don’t get advanced unless you are lucky enough to have the resources and the legal backing to help you marshal the type of application that’s necessary.
What we’re trying to do is take a hard look at systemic over-representation, something we’ve focused on considerably as a government. You’ve seen it in terms of our responses in other domains, such as mandatory minimum penalties, which were very much in vogue with previous governments. We’ve tried to reverse many of them that have had a pernicious impact on Black and Indigenous people in this country. That has been useful.
Now what we’re trying to do with this bill is to take another step in terms of advancing the fight against systemic and anti-Black racism and the fight against anti-Indigenous racism, to be blunt, and advance reconciliation. This bill is one direct way of doing so.
I’ve had these conversations with Indigenous leaders around the country. When they learn about Bill C-40, they understand its importance. It’s important to underscore that we need to not only reach out to those overrepresented populations but do so in a manner that is understandable to them, accessible to them and also in the language of their choice.
I asked my officials before coming here if that could mean an intervention in Cree with a prisoner on the Prairies. They said that it absolutely could. That is something that the commission would be empowered to do with some of the resources that Senator Dalphond was asking about. That will help empower a change in those statistics.
Senator Prosper: Thank you.
[Translation]
Senator Carignan: First of all, the bill doesn’t seem to cover military courts. Is that intentional or did I misread it? Is there a provision to include them? Are there miscarriages of justice in military courts?
Mr. Virani: Just a moment.
Ms. Besner: You raise some good questions. Given the wording in the bill, I believe it refers to convictions under the Criminal Code, another federal statute or another regulation. If we’re talking about a conviction imposed by another tribunal, I don’t think that would exclude them from the regime.
Senator Carignan: Could you please confirm that this is indeed included, so that we understand the legislator’s intent? Thank you. The other point concerns volume. I was looking at the review criterion in England, and they were talking about a real possibility of the conviction being overturned. The English statistics indicated that since 1995, thousands of cases were referred, and that 70% of those cases led to the sentence being overturned. That’s a very high number. We have a criterion that opens the door to a review in Bill C-40, which is less stringent than England’s, and then we have cases that are underestimated. You explained this, minister, through the issue of systemic discrimination, particularly against Black and Indigenous people.
Do you really think that $17 million will be enough to support the staggering number of applications that will be submitted, given the criteria, the underestimation and everything else we have here? I don’t think it’s enough. I’m telling you this because we’re creating commissions — we just discussed one of these commissions on Bill C-20 at the Standing Senate Committee on National Finance — and we’re hearing from commissioners who say they don’t have the resources, who say that delays are necessary, that they’re unable to process the files, and yet they have the funding. What is your view on that?
Mr. Virani: Here’s a clarification that will be useful. Between 1997 and 2024, 32,000 applications were filed in the UK — England, Wales and Northern Ireland. Among these, around 900 were well received and delivered to court, and 580 were overturned.
Senator Carignan: So that’s about 70%. They still have to be processed.
Mr. Virani: Yes. This will increase the number of applications. I’d like to point out that the budget will be increased by a factor of 10 or 12 compared to what’s already been invested in the Criminal Conviction Review Group (CCRG); we’ve already increased the funding and a review of this bill will take place after the first five years. At that point, in 2028 or 2029, we’ll have to see whether a greater investment is required to process applications. We’ll look at the figures; we assume there will be an increase in requests, but for the time being, we think that $18 million a year will be sufficient. That’s a 12-fold increase over the current level.
Senator Carignan: There is no limit. If the court or commission goes to the Minister of Justice in 2026 and asks for more money, does the government have the power to allocate it? Is there a cap?
Mr. Virani: There is no cap and there can be a review. My role, or that of my successor, is to appoint commissioners and table an annual report in Parliament which, I imagine, will show that everything is working well with the number of employees, but that more funding is needed because there are more cases than expected. There will be a dialogue between the commission and the next government, absolutely.
Senator Carignan: The Senate will have to exercise its oversight role.
Mr. Virani: As you always do.
Senator Aucoin: Good morning, minister. As a criminal lawyer for part of my practice and a long-time advocate for language rights in Nova Scotia, I very much welcome the creation of an independent judicial error review board to replace the current ministerial review process.
I am concerned, however, about the lack of requirements regarding the appointed commissioners’ understanding of both official languages. Section 696.73 of Bill C-40 states that when making recommendations for appointments to the position of commissioner, the minister shall seek to reflect the diversity of Canadian society and take into account factors such as gender equality.
We can’t help but agree with this passage in Bill C-40, but couldn’t we have drawn inspiration from section 16.1 of the Official Languages Act and taken into account the importance of equal access to justice in both official languages? In your opening remarks, you said that services would be offered in both official languages. Why wasn’t that added to section 696.73, which talks about the appointment of a commissioner, that the Official Languages Act should also be taken into account, among the other factors listed? I’d like to hear your thoughts on this.
Mr. Virani: Thank you for the question. The commission is based on access to justice. If we look at the commission from that point of view, it’s necessary to deliver services in both official languages, and that’s what we’ll guarantee. The bill you have before you also mentions the need for diversity among commissioners. This diversity must include ensuring greater professional representation, as Senator Batters mentioned, and that includes lawyers, for example. Then there’s the question of whether commissioners will include large numbers of people from groups that are overrepresented in prisons, such as Indigenous and Black people. As for the priority of delivering services in both official languages, rest assured that the commission’s hearings will be completely bilingual and that the commission will deliver bilingual services in compliance with the Official Languages Act.
Senator Aucoin: Thank you. Yes, I understand that, and that question has already been answered in the same way. But if commissioners are appointed at the discretion of the minister, and there’s no reference to the Official Languages Act — which would be simple enough to add to the bill — why aren’t we doing it?
In the future, we could find ourselves without a commissioner who is proficient in both of Canada’s official languages. Why isn’t this criterion included in the bill?
Mr. Virani: The most important thing is to always consider the commission’s clients. Those clients are inmates. We have a duty to care for them and assist them in their language, be it English, French or an Indigenous language. That is our goal, and it’s far more important than the number of officially bilingual commissioners. What we’ve repeatedly stressed in the House of Commons is the need to deliver bilingual services. That’s what we’ll do. We’re a bilingual country and we will deliver bilingual services.
[English]
Senator Simons: Nice to see you back here, minister. My colleagues now know that, having been a journalist for 30 years, I have a story for every occasion. This reminds me of a case I wrote about years ago, a man named Darcy, a delightfully charming conman who had been wrongfully convicted of possession of stolen property and fraud. He served his full three-year sentence because he refused to admit that he had done this particular crime. He had a colourful rap sheet, but he always insisted he hadn’t done this one. Eventually a retired police officer took up his cause and investigated it. Then minister, Irwin Cotler, ordered a new trial, which was then stayed because there was no reasonable likelihood of conviction, presumably.
As I understand it, Bill C-40 doesn’t include a way to get a pardon or a record suspension, and your only resource is a new trial. In some cases a new trial would be a ridiculous outcome for a sentence. He had served his full three years, and former Minister Cotler acknowledged he had not stolen the car in question.
I’m wondering if there ought not to be some other resource beyond ordering a new trial for someone where it is manifestly obvious there has been a miscarriage of justice, whether that is to set aside the verdict or order a pardon.
Mr. Virani: Thank you very much for the question, Senator Simons. It is a very pertinent one. In terms of the initial salvo, which is this legislation, it is squarely focused on the Criminal Code rules such as they are, in which cases work their way through the system, the CCRG group and eventually end up on my desk for a decision as to whether it goes to a trial court or a court of appeal, and whether we can re-envisage that and implement a miscarriage of justice review commission to effectively eliminate almost all of my role.
In terms of the issues, pardons or record suspensions, that goes beyond the scope of the Criminal Code itself. It relates to other legislation and is properly under the domain of my colleague, the Minister of Public Safety.
We are seized with the matter as a general proposition. We have definitely taken steps, and the departmental staff will correct me if I have it wrong. But in terms of pardon applications, we have tried to speed it up in terms of how fast they are processed and reduce the costly amounts that were in place to make the application.
As I said at the outset, we are looking at convictions and not sentences. As part and parcel of that dialogue with Senator Carignan, if the annual reports show that a further remedy that may be of use for the individual person who has been wrongfully, maybe to address comprehensively other statutory changes that need to be made, perhaps that could be something that forms part of the annual report and studied in future years.
Senator Simons: The lack of any movement on sentencing is also concerning to me. There are plenty of cases where someone is found guilty, but the sentence is disproportionate. We recently saw the Naslund case in Alberta in which Senator Pate played a huge role to help her win an appeal of the sentence. But not everyone has a Kim Pate or a Mona Duckett, who was the lawyer, to ride to the rescue.
I would encourage you to make sentencing a part of this. I would also encourage you to consider whether a new trial is the correct remedy in a case where there has been a patently absurd miscarriage of justice and a stay doesn’t mean the same thing as a not-guilty verdict. Just staying charges seems to me an insufficient remedy.
Mr. Virani: I hear you, Senator Simons. What I would say to you is to recall that even under the current system or the system contemplated here, neither I nor the future miscarriage of justice commission replace the role of the court. We don’t render issues of guilt or innocence. It is either sent back for a new trial or an appeal.
In cases I have dealt with in the past 15 months, the response from certain courts around the country has been, within a matter of hours, to issue a stay or withdraw the charges and not even conduct the trial because it has been so obvious.
I hear you in terms of these matters. It is going to be an iterative process. I appreciate the component about sentencings. I’m wearing different hats at the same time.
I was just with people from your part of the country at a federal-provincial-territorial meeting, and we talked about how we can be more supple in terms of sentencing. There was great appetite in Alberta for Impact of Race and Culture Assessments. That is more germane to Black accused. It’s about having a holistic appreciation prior to sentencing of what a person has gone through in their lives that led them to that crime. It is important, and we are increasing funding on that, which we just did in budget 2024 to expand its scope. I was pleased that Minister Amery in Alberta was interested in that provision.
Senator Simons: Thank you very much.
Senator Pate: Thank you, again, minister. You have mentioned the report that Justices LaForme and Westmoreland-Traoré produced. I was extremely concerned to see their brief in which they say:
Canadians and most importantly victims of miscarriages of justice have waited much too long to be presented with such an unnecessarily inadequate bill.
In particular, they point to the need for a clearer and proactive systemic approach to addressing miscarriages of justice. They point to the New Zealand model, which you have mentioned. Part of why the New Zealand model was attractive to them — and in my meetings with the New Zealand commission as well — is that it is the only one of the countries that have these kinds of review commissions with a similar issue with over-representation of Indigenous people, in particular, Indigenous women. Yet their numbers are not as bad as ours. So we are not looking at these issues.
When I started working with women, I was shocked by what they were charged, convicted and serving sentences for. I was pleased Ms. Besner raised Lavallee because I was going to. Following the Lavallee decision in 1990, the organization I was working with advocated, and one of your predecessors, Minister Rock, appointed Justice Ratushny to look at the cases of women who have been convicted. I was doubly, triply, quadruply — however many times — concerned to read that, on the systemic issues, if there are no new factors, it could preclude people from going forward. You will probably know that one of the things Justice Ratushny found was that she couldn’t review a number of the cases she thought needed to be reviewed in large part because although the evidence was available at the time the women were convicted, it was not seen as relevant or not understood sufficiently by their defence counsel, the Crown prosecutor or the judge, so she did not review those cases. Fast forward, we just had a similar situation in Helen Naslund’s case. I don’t see anything in the law that would now allow for those kinds of cases to be reviewed.
I’m curious as to how you see the gross over-representation of particularly Indigenous women will be addressed by this. How will you see intersectional systemic factors being looked at within the bill?
Also, I underscore the point just made by Senator Simons about not looking at the issue of sentencing. Part of the reason Justices LaForme and Westmoreland-Traoré asked me to pull together Indigenous women is they didn’t trust the system enough to come forward to the folks who were trying to recruit people to be interviewed by them. What in this bill would allow for those women to be reviewed? There’s nothing that I see —
The Chair: I think we have the question, Senator Pate. I’m going to give the minister time to answer.
Mr. Virani: Thank you very much, Senator Pate. I want to acknowledge the work you have done in this area. I have looked at the report that you did on the 12 Indigenous women respecting miscarriages of justice.
In New Zealand, obviously, there are similarities in terms of the treatment of Indigenous populations in both sectors, but I would say that New Zealand is likely doing better at this point because they have this commission and we don’t. That is my first point.
The second point is that it is about having the commission, but it is having it well-resourced in its ability to go out and find those cases and enter into these prisons — including the prison for women in Kingston — getting into the populations, addressing them in a manner that they understand and educating them about their rights.
What I would say about the group review concept, I looked at what happened post-Lavallee, but I have also seen other types of group reviews being contemplated or undertaken in Ontario. You had one with the Dr. Charles Smith matter, which was unreliable forensic pathology evidence. In the U.K., there have been criminal cases review commission that reviewed hundreds of potentially wrongfully convicted individuals. Nothing in this bill is meant to preclude a group review. On a very minor matter, I have even seen coming across my desk similar fact patterns of individuals accused involved in the same actus reus, or similar fact patterns where there were, unfortunately, acts that were unconstitutional being done by police forces or crown prosecutors in certain jurisdictions. There are group patterns that have emerged even in cases coming across my desk.
If your concern was that group reviews would not be permitted under this bill, I don’t read it that way at all. I believe that this bill, as currently drafted, would permit a group review to take place. In fact, looking at the systemic components, it is part of the mandate that’s in the bill in terms of the mandate given to the commission in terms of what it investigates and how it makes those decisions. You were meant to have knowledge of the systemic barriers that people face and look at systemic solutions.
The Chair: If there is a second round we’ll make a note, Senator Pate.
Senator Clement: Minister, it’s good to see you here. I want to go back to what you just said. The mandate includes systemic issues and recommendations. I want to raise Canada’s Black Justice Strategy and the 114 recommendations that came out in June. Black communities across the country are now taking this in, and are trying to understand how this is going to help. I want to ask you a couple of questions, and then I’ll get out of the way.
Recommendation 2 says, “Establish a Black Justice Portfolio within the Department of Justice.” Recommendation 5 says:
Establish a unit within Statistics Canada’s Centre for Justice and Community Safety Statistics responsible for the coordination and implementation of a whole of justice system Race and Identity-Based Data program.
How will the miscarriage of justice review commission gather data on the racial demographics of wrongful convictions to ensure transparency and accountability?
Then recommendation 53 says, “Provide mandatory training in anti-Black racism and cultural competence to all justice system professionals . . . .” In line with that, what specific steps will be taken to mandate training for miscarriage of justice commissioners in anti-Black racism? Will the training ensure that commissioners are fully aware of the historical, systemic racial biases that affect Black victims, witnesses and defendants?
Mr. Virani: Thank you for those questions, Senator Clement. The response to that steering committee report is forthcoming, and I’m a bit encumbered in terms of what I can share publicly. We are very cognizant of the steering committee’s recommendations. There are 114 of them.
There is a strong commitment on the part of the government to address the data collection piece significantly. You have already seen that in our approach and funding of Statistics Canada and our approach toward disaggregated data. What I would expect for this commission is that if we are going to give meaning to the fact that we need to have commissioners, those commissioners need to reflect the diversity of Canada, with particular attention to overrepresented groups such as Black and Indigenous people in this country, and that you would equally have statistics that would be provided so that we could have a slight change in that statistical skewing that I mentioned at the outset where five racialized cases were overturned out of 25 in a span of 22 years. To me, that is a statistically improbable statistic. It doesn’t mesh.
In terms of the training component, the training that would be provided is ultimately up to the purview of the independent commission. There are Treasury Board guidelines that relate to training, including on systemic racism and discrimination. Given that the mandate of the commission is to look at systemic barriers, including overrepresented groups, the training would need to be zoned in on those two particular cohorts, not to the detriment of other cohorts, but specifically with those two cohorts, Indigenous over-representation and Black over-representation. I think that informs a lot of what is guiding this bill.
I would like to be able to return here in years to come and indicate that the numbers have shifted significantly because more applications and also successfully overturned cases are happening. Certainly, in my brief time in this role there have been a number of cases, which goes back to Senator Prosper’s comment that it is slightly on the uptick, but very slightly. It has gone from two or three cases to now five racialized cases. But they are out there, undoubtedly; we need to find them.
Senator Clement: Thank you for those answers. You indicated the current regime that is being addressed by this bill has not been reviewed since 2002. I would like to highlight that the Criminal Code has not been reviewed since 1955. It is time for a review with systemic racism in mind.
Mr. Virani: Fair enough. I think a lot of those steering committee recommendations — the 114 — touch on various aspects of the criminal justice system and looking at matters that start with original interactions and bail all the way to restorative justice and alternative and diversion measures. I hear you, but I think there has been an acute focus placed by the Black leadership in this country on the Black Justice Strategy and how the Criminal Code could be more responsive, and that’s what we are in the process of responding to.
Senator Clement: Good to hear.
Senator Senior: Thank you for being here, minister. I’m going to follow up on a question that came to me — probably quite similar to what Senator Clement asked — which is that I’m not quite sure that I understood your response regarding disaggregated data and how that would be collected based on the cases that you expect to be coming. Who will do that work? Will the budget accommodate for that to happen, or are you expecting Statistics Canada to be a part of this work as well? I wasn’t clear in terms of where the responsibility lies.
Mr. Virani: Thank you, Senator Senior. What I will refer to is that paragraph 696.87(1)(b) of the bill talks about the chief commissioner submitting to me, the minister, a report that would include:
(b) statistics on applicants that, to the extent possible, are disaggregated by gender identity, age, race, ethnic origin, language, disability, income and any other identity factor that is considered in the course of a gender-based analysis;
There you see reference in the specific legislation that the report that is meant to be done is meant to be done in providing disaggregated data across those various categories.
Senator Senior: Thank you.
The Chair: Minister, I want to follow up on the dialogue between you and Senator Batters about the composition of the commission. I was a bit concerned that there may not be enough lawyers, if I may be so semi-elitist as to say that.
Mr. Virani: You definitely sound like a former law dean.
The Chair: In the way in which this is constructed in terms of the qualifications of commissioners, it is actually possible to have all lawyers serve on this commission? We have not created a regime where there is a mandate for at least some non-lawyers. I’m curious to know why that wasn’t done in a different way.
Let me try to be specific for the interpretation. What it says is that one half of the commissioners must not be persons in the other category, and the other category is lawyers with 10 years’ experience in criminal law. What that would mean is that anybody who doesn’t have 10 years experience in criminal law can be appointed in the flexible category, if I can call it that. I would have thought that one would have constructed this — like we do for appointments to boards of directors of law societies and you name it — that we make a commitment to a certain number of non-lawyer members, but you haven’t done that in this bill.
Mr. Virani: If I follow your question, what you are indicating is that there could be other lawyers who either practise outside of criminal law or have practised less than 10 years.
The Chair: Exactly.
Mr. Virani: In terms of the approach that I would take if I’m in office staffing up this commission is that what we are trying to achieve is a complementarity in terms of the composition of the commission. We understand the need for significant criminal law expertise. That’s something the Criminal Conviction Review Group has hitherto provided. That’s something that would need to be provided by this commission.
We’re also cognizant of the fact that if you are looking at systemic inequality, if you are looking at mental health outcomes, et cetera, there may be a different type of expertise we would be seeking. That is the expertise that we are seeking with regard to the remainder of the group.
I agree with your technical point, but I think in terms of the approach to the commission and its composition, what we are trying to ensure is a diversity that would not be present if we said it had to be lawyers only of a certain number of [Technical difficulties] and only in the criminal law area.
The Chair: Thank you. I’m confident you will achieve that. I’m surprised that since you get to write the legislation, you didn’t impose that obligation on yourself and your successors.
That takes us to slightly past the time we asked the minister to join us. As a result, we should bring this round of discussions to an end. I want to extend my thanks, colleagues, to you for your succinct questions and to the minister for providing succinct answers, which enabled each of us who wished to engage in dialogue with him to do so.
Thank you again, Minister Virani, for joining us.
Mr. Virani: Thank you for having me.
The Chair: We are resuming our study of Bill C-40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law). For our second panel, we’re fortunate to have Ms. Besner and Ms. Cyr remaining with us to continue our study and to field questions from senators.
We are able to skip past opening statements and move directly into questions.
Senator Arnot: My question is about the duty of the commission to do an annual report, with a view to — I hope — exposing, identifying or correcting the causes of a wrongful conviction — systemic or otherwise. What is the ministry’s hope or expectation for that kind of reporting clause, of identifying, for instance, police officers, who are — first point of discretion — off on their own adventure or are myopic about things?
Also, a second point of major discretion, the Crown prosecutor. I’m just wondering what your thoughts are and what the ministry’s expectations are. I could see that would be critical in getting at the core issues, making them public and calling certain institutions to task or accountability for mistakes with the kinds of consequences that this bill is trying to address.
Ms. Besner: The provision that requires the commission to publish its decisions is the one that’s intended to provide a little bit more meat around what the circumstances when that led to the miscarriage of justice: the causes, the consequences.
On the specific issue of, for example, naming a particular individual, the commission may have to exercise a bit of caution because it’s not going to be an adjudicative body, for example, capable of making conclusive findings like a court. There could be concerns about establishing wrongdoing categorically from a legal perspective. Once they refer the matter to the courts, and the courts of law will look into the specific legal issues, it may come out there, as well as subsequently afterwards when there’s a claim for compensation due to wrongdoing.
The annual reports are intended to be a little bit more like a roll-up of stats, volume and turnaround time, but it’s the publicity of decisions that’s more intended or other things like general outreach function to provide public legal information to interested parties including criminal justice participants like law enforcement and prosecutors.
Senator Arnot: I saw that as a real value if the commission was going to report on those kinds of issues identifying common denominators in a wrongful conviction. I was hopeful that this would be one of the aspects that the reports could address.
Ms. Besner: In their outreach function and raising awareness about miscarriages of justice, in general, that is mentioned in Bill C-40. I think they’re going to have a capacity to provide their oversight or even granular instances that led to miscarriages of justice, but just being careful not to influence the courts afterwards that are still going to have to deal with the specific legal issue at hand and some caution at naming someone if they don’t have an adjudicative function.
Senator Arnot: Thank you.
Senator Batters: Bill C-40 mandates that the timeline for the commission to handle wrongful conviction review applications is “. . . as expeditiously as possible . . . .” But it fails to define any parameters for what that means. Given the severity of what we’re dealing with here, and how long some of these people have been waiting for actual justice, what does “as expeditiously as possible” mean, and why aren’t there any parameters for this in Bill C-40?
Ms. Besner: Again, it’s in the annual reports, the long list of data and information they will have to provide in the annual report. It includes the average processing time, et cetera. If you look, for example, at the commissions abroad, they publish on their websites that, for example, 70% of their cases are closed within a six-month period, a certain percentage takes more than a year or two years due to complexity — things like this is what is intended with the reporting requirements. Then just their transparency and the fact they’re going to need to have a website and be accountable.
The words “as expeditiously as possible” are just to provide that general requirement to improve on processing times, and then there’s the obligation to report on their processing times.
Senator Batters: Right. What I’m mainly concerned about is somebody being wrongfully convicted for a very long time. This is a whole huge new process being put in place to apparently alleviate many of these cases, but currently the processing of applications can take 20 months to 6 years, which is a very long time. Why wouldn’t the minister and the government have put somewhat of a parameter around that, rather than just “as expeditiously as possible”?
Ms. Besner: Just to reiterate, I would point you to the annual reporting and the requirement to track and report on processing times. Also, I can point out, for the committee’s benefit, that the regulations that currently accompany this part of the Criminal Code will be repealed. Those regulations have been identified as being onerous for applicants to meet, and also, part of the reason why some applications take a long time to process because there are different stages of the review, et cetera.
For example, the preliminary assessment stage will no longer survive once this legislation is implemented. It’s intended that this legislation — like the commissions abroad — will do more of an admissibility screening and move to processing applications, so hopefully that will save on time.
Senator Batters: Bill C-40 creates the position of a victim services coordinator, but it doesn’t state whether that will be a full- or part-time employee or a contract position. Which one is it?
Ms. Besner: The chief commissioner in the legislation is the chief operating officer responsible for overseeing staff and operations. The chief commissioner will be responsible for determining whether the victim coordinator position will be full-time, whether there will be more than one. It may depend on volumes, but as the head of the institution, the chief commissioner will be responsible for that.
Senator Batters: So there has been no determination made whether it’s just a contract position, a part-time position, a full-time position, more than one? There’s no indication about that? There’s just the requirement to have some sort of victim services coordinator, but not necessarily anything more than that?
Ms. Besner: Yes. Oversight on staffing, as I mentioned, will fall under the responsibility of the chief commissioner as the head of the institution.
Senator Batters: Bill C-40 does not stipulate the pay of the chief commissioner and the other commissioners, only indicating that compensation will be “. . . fixed by the Governor in Council,” which is cabinet. I received the government’s minimally responsive answer to that question after I had asked questions to the sponsor after his speech. I asked that weeks earlier and finally I got responses from the government. This is what the answer said for that question:
The salary range minimum is between $180,000 minimum, and the maximum is $464,800. The salary range for the other four to eight commissioners will use the same 2024-25 compensation for GC group, but beginning and ending at lower levels.
That’s a range of $284,000 — just the range. Can you give us a better indication of how much these commissioners will actually be paid?
Ms. Besner: Determining remuneration falls under the responsibility for machinery of government issues. It’s the Prime Minister who’s responsible for that, and he’s supported by senior personnel at the Privy Council Office. After the legislation passes, there will be a development of the classification profiles for the commissioner positions. The chief commissioner will undoubtedly be a higher-level position given the additional responsibilities involved in that being full time and having the responsibility for the oversight of operations, staff, et cetera, versus the other commissioners who could be full time or part time.
In terms of that range, I agree with you: It’s very wide. Given the complexity of the issues, et cetera, all I can say is that we don’t anticipate it’s going to be anywhere on the lower half of the Governor-in-Council range. It’s like GC-1 to 8 or 9 — something like that. We’re figuring middle to upper, but it’s not for us to confirm what it will be. It will probably be part of the information provided when they do recruitment, staffing and all that.
Senator Batters: Middle to upper — so probably $300,000 plus up to $500,000?
Ms. Besner: Somewhere between those two figures that you were provided, yes.
Senator Batters: Good to know. Second round, please.
Senator Dalphond: I might be interested in that. It’s more in my field than the Senate; I’ll leave the Senate.
[Translation]
Ms. Besner, you were very involved in drafting the bill and you’re in a position to enlighten us.
My first question is quite short — it’s Senator Carignan’s question. It relates to clause 696.2, which defines who can make an application for review. Clause 696.2(1)(a) reads as follows:
(a) a person who has been found guilty of an offence under an Act of Parliament or a regulation made under an Act of Parliament, including a person found guilty under the…
That would include a military member who has committed an offence under the Criminal Code or the service code for military personnel.
Ms. Besner: My colleague and I discussed that issue over the break. The Controlled Drugs and Substances Act and the Criminal Code are both federal statutes.
As to whether the code of conduct is a regulation, that’s a very specific and technical question, subject to the Statutory Instruments Act. With your permission, we’ll need to follow up on that question.
Senator Dalphond: Yes, of course.
My apologies, I think I called the code of conduct a “service code”. My second question concerns the powers. The powers, duties and functions are set out on page 10. Subsection (2) makes reference to support for applicants in need.
I myself have argued the case of a prisoner. Communicating with him was complicated and his ability to send us instructions was even more complicated. I know that the minister mentioned that it would be possible to visit people in prison who have made an application. This is a major change in comparison to how the RCMP operates.
Among the powers already mentioned, clause 696.84(2)(d) reads as follows:
(d) assisting them, if they are without means, in obtaining legal assistance in relation to making an application or providing a written response to an investigation report prepared by the Commission.
If there is an investigation and a report is prepared, comments on the report must be provided within a specific timeframe. Will this be contracted out or will it be done by commission staff?
Ms. Besner: No. It will have to be contracted out to avoid any conflicts of interest.
Senator Dalphond: Do you have a budget allowing you to appoint outside counsel to assist the parties who don’t have access to legal aid or other financial means?
Ms. Besner: Yes.
Senator Dalphond: Are the powers enumerated based on the powers of the British or Scottish commissions? Are we mirroring what is being done in Scotland or England?
Ms. Besner: I think that the idea originated from the report that came out of the public consultations.
Senator Dalphond: Thank you; that answers my questions.
[English]
Senator Prosper: Thank you for being here with us.
My first question relates to language, specifically the language within remedies and investigations.
Under investigations, proposed new subclause 696.5(1) provides the condition:
. . . has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so, it may conduct an investigation in relation to an application.
Under “remedies,” proposed new subclause 696.6(2) provides that:
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 . . . ;
Then it goes on to proposed subparagraphs (a) and (b).
Why is there reference to “or” under “investigation” and the inclusion of “and” under “remedies”?
Ms. Besner: Thank you for that question. It’s an intentional distinction between the trigger for the commission to be able to conduct an investigation. It was pointed out that, under the current regime, regarding which the regulations state that the Minister of Justice must have reasonable grounds to believe that a miscarriage of justice may have occurred in order to conduct an investigation, there are instances where there is not sufficient information already available on hand and where the minister or the CCRG on their behalf felt it precluded them from being able to access relevant information to retain an application and continue to look into it.
The “or” there is intended to remedy that Catch-22. If there isn’t already sufficient information or evidence but there’s something in there that points to potential merit, they’ll be able to do it in the interests of justice. When it comes time to make the referral back to the courts, the two components are needed. It’s a single test still but with two components.
Senator Prosper: Okay.
Proposed paragraph 696.6(5)(e) provides:
the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention to the circumstances of Indigenous or Black applicants; and
— it goes on.
Could you comment on “distinct challenges” and “circumstances” as referenced within that particular section?
Ms. Besner: Yes.
The decision-making factors currently include the first three that are in the bill, which I think are (e) and (f). I’m going to have to look at it again there. The last two, the personal circumstances of the applicant and the distinct challenges, are being added. They’re to reflect the fact — I think senators around the table were mentioning a while ago about systemic racism and a lot of other factors that have led to miscarriages of justice, and yet there still hasn’t been an ability to look into those cases more deeply. So they’re being added there.
Also, it reflects the fact that the interests of justice, which I was just talking about, are not just administration of just considerations; they are also circumstances that relate to an individual. The courts consider the interests of justice, so this is kind of mirroring that. Again, this is drawing from the case law. The distinct challenges faced by certain populations could include Indigenous identity; the impacts of colonialism, residential schools, systemic racism, racial profiling and the effects of intimate partner violence; and underlying issues, such as poverty, homelessness, addiction, mental health, age, gender and disability.
It’s meant to provide an ability to look at all the underlying factors that could be relevant.
Senator Prosper: Thank you.
[Translation]
Senator Oudar: Perfect, because I too have questions on clause 696.5(1), relating to the commission’s powers. This clause stipulates that the commission may conduct an investigation if it has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interest of justice to do so. Here, the nuance of the word “or” is clear.
However, in either case, the commission must conduct an investigation and not “may” conduct an investigation. In my opinion, the commission should have the duty to conduct an investigation if it deems that it has reasonable grounds to believe, or, in the second case, if there’s a miscarriage of justice.
Both are extremely important: reasonable grounds by the commission or a miscarriage of justice. I’m having trouble understanding when the commission would not conduct an investigation under either of those circumstances. I think that the legislator should have made an investigation mandatory. I’d like your thoughts on that.
Ms. Besner: I’m delighted you asked that question. It is possible in some cases for there to be already enough evidence or information to justify the referral.
Certainly, the bill seeks to reduce the processing time for applications. If there are circumstances where an investigation is not necessary, because there are already sufficient grounds for a referral, the commission will have the power to immediately make the referral to preserve its resources and investigate where warranted.
Senator Oudar: Are you not referring instead to clause 696.6? I’m talking about the power to investigate first, prior to the remedy. Indeed, I had another question on the subsequent clause. I understand that the commission may already have received information?
Ms. Besner: Yes.
Senator Oudar: Do you think everything is being done to ensure a comprehensive process? The Quebec Bar suggested exactly the same thing. Is the commission authorizing itself to use information it already has? Rather, why not conduct an investigation to abide by a process that would ensure some measure of fairness? Doesn’t that concern you? In terms of fairness, are all the legal processes being followed, in your opinion?
Ms. Besner: The intent is to give the commission enough flexibility to investigate when it needs to and for it to be able to seek evidence. If that’s not necessary, for whatever reason, resources to do that should not be used, including the time period prior to the referral.
For example, when new DNA evidence is revealed by another source and it’s recognized as being reliable and proves quite conclusively that the wrong person has been convicted, it’s possible that the new DNA evidence is already sufficient for a referral to be made, without the need for new samples or new lab tests. That’s one example.
Senator Oudar: It’s possible that errors can occur under the new system too.
I have a question relating to the following clause. Clause 696.6 states that the commission can grant one of the following remedies on completion of a review: direct a new trial or refer the matter to a court of appeal. The clause begins as follows: “If the Commission has reasonable grounds to conclude that a miscarriage of justice may have occurred…”. If a miscarriage of justice has occurred, that is enough to direct a new trial or refer the matter to a court of appeal, but the legislator included that it may also do so if it “…considers that it is in the interests of justice to do so…”.
If there is any unconscious bias or anything, more marginalized groups may be disadvantaged. Why did you add the words, “in the interests of justice”? If there is a miscarriage of justice, is there not an obligation to direct a new trial or refer the matter to a court of appeal. Why add that condition that seems, in my opinion, to give the commission some discretion, because it will have to determine whether or not it’s in the interests of justice to do so?
I want to return to the comments made in this committee on concerns about marginalized groups, be they Indigenous, Black or women. Those words are redundant. Suffice it to say that if the commission believes there has been a miscarriage of justice, it must act and order a new trial or refer the case to a court of appeal for a hearing and determination. We don’t need to add to that discretionary power the need to determine whether or not it’s in the interests of justice. I’d like to hear your comments on that. Does that requirement concern you?
Ms. Besner: The idea is based on the threshold used by Scotland. Their threshold has two parts, more or less in the same way we do in the bill. They explained that they find it very useful to have these two parts, because it ensures flexibility on both sides of the issue.
They gave the example of a single mother who had been convicted of an offence that wasn’t very serious and hadn’t been imprisoned. This greatly influenced her ability to get a job, among other things. The commission could have seen this case as not being one for which a court should order a new trial, as the courts are already overloaded with cases. However, the commission was of the opinion that, in the interests of justice, under those circumstances, it was justifiable to retain the file and make the referral.
I have another interesting example. On the flip side, they receive requests from people who have been found guilty of multiple murders. It’s possible that, among these murders, there is a victim for whom they are not responsible. The commission gave that as an example of a referral or review of the case by a court, but it would be unlikely to have any impact on the status of the individual, who will still have to serve their life sentence, given their many very serious convictions. They apply the interest of justice threshold in those circumstances to not investigate and make a referral.
Senator Oudar: Thank you for those clarifications. In both of those examples, there was a miscarriage of justice.
Ms. Besner: Yes.
Senator Oudar: In the event of a miscarriage of justice, we could simply send the case back without adding an additional criterion. Thank you for giving the example of Scotland.
Given that their law has been in force for some time, have they studied the results of applying that criterion, to see if it has caused any injustices or errors in terms of systemic discrimination against marginalized groups?
Ms. Besner: I’d have to do some research on that. They also have an extensive website with research and other information. However, it’s not something I could explain to you today.
Senator Oudar: Thank you.
[English]
The Chair: Would it be possible, Ms. Besner, to identify that material and share it with the committee through the clerk?
Ms. Besner: What I can find on it, yes.
The Chair: That would be great.
Senator Pate: Thank you to both of you for staying with us. I was very pleased to hear the minister say that he didn’t see anything in the bill that precluded a group review.
I’m curious as to what your view is on Justices LaForme and Westmoreland-Traoré’s recommendation that the bill be amended to include proactive and systemic changes. They reported this as necessary to ensure a more comprehensive review.
I understand that you may have read this. The minister indicated he had.
Ms. Besner: Yes.
Senator Pate: What in the bill would allow the type of review, remembering this was actually something produced at the request of Justices Westmoreland-Traoré and LaForme to document the discussions they had with these women? What in the current legislation would allow this type of review, and how would you see it happening?
Ms. Besner: I’m happy to point out a few things in the bill. You’ll notice that at the beginning of the part that talks about the commission, the mandate of the commission was narrowly worded to begin with. It’s been expanded as a result of an amendment made in the House of Commons.
However, the mandate was intended to be an overarching mandate. When you get close to pages 10, 11 and 12, which discuss the powers, duties and functions, there was a lot in the bill that was intended to get out the proactive outreach function and the publication of decisions, as I mentioned a while ago, to be able to describe systemic causes that — yes, sorry?
Senator Pate: I don’t mean to be rude, but I’m conscious that I went overtime last time, and I don’t want to take from my colleagues. Would this review being advocated for be possible with Bill C-40, in your opinion?
Ms. Besner: I don’t see why it would not. The only thing I could see as in other cases like in the U.K. when they did the massive postal worker review, I think the remedies themselves have to be individual because the remedies are made to a particular court where the instance first originated. The remedy, of course, is to a particular individual that was found guilty. I think that would be the only limitation. The same happened as well in the self-defence review where, at the end, there was a group review where there were individual recommendations and remedies that were then issued. I see it as being similar.
Senator Pate: The challenge with a self-defence review is there was evidence the context of abuse had not been taken into account. There is evidence of context of abuse, racism and the history, the 718.2(e), even though it existed in law at the time, it was not taken into account.
There are a number of issues judges — the requirement for new factors, the bill does not read that you could actually go beyond and look at context that may have been available but didn’t get presented, because either lawyers, Crown counsel or judges didn’t think it was relevant. As we know, there are ongoing cases still where that is an issue.
Ms. Besner: It is the provision pointed out a while ago, the distinct challenges certain populations face in obtaining a remedy for a miscarriage of justice. That is really the spirit behind that, additional factors that must be considered.
Senator Pate: If you were asked for advice, you would say Bill C-40 could allow for this kind of review.
Ms. Besner: Yes.
Senator Simons: I have two separate questions: One is to do with the annual report where it says the average length of time. Ms. Besner, I think it was you who said in Britain 70% is this, 30% is that. It doesn’t say that in the act. When you are saying an average, is it a median? I always think of the statistician who drowned in a river that was an average of three feet deep.
Ms. Besner: I want to look at it again.
Senator Simons: It just says “average.”
Ms. Besner: Okay.
Senator Simons: If you know what I mean, the average can sometimes hide a —
Ms. Besner: Yes. I can say we modelled that on what is done in other jurisdictions. They do compartmentalize the percentage of cases that take six months and under, or one year and under, then the percentage that take a year or two years, the complex cases. Hopefully, the commission will adopt that.
Senator Simons: It doesn’t say that. Now that you have said it in this room and on the record, we’ll hope they will look back at this transcript and they do just that.
Then I wish to ask about the supports for applicants in need. I find this perplexing. Do you actually provide them with any support or tell them where to go? Directing them to services in their communities for persons in need. That’s like the work of a social worker. You are directing them presumably to provincial resources. This one, assisting them if they are without means in relation to necessities such as food and housing. Presumably, that doesn’t mean you give them food and housing. What does it mean?
Ms. Besner: It is intended to provide authority and responsibility for a certain function so that there is funding that goes with that. It is anticipated it would be third service providers who would provide those support services, but the commission would have funding and an ability to refer to that.
Senator Simons: You would actually have funding. Then would you be partnering with provinces or not-for-profit agencies? I don’t understand.
Ms. Besner: As well, the commission will have the capacity and ability to contract for services, including service providers. Many of the things in here are those jurisdictional hooks. They are backed up by the budget proposal that goes with it.
Senator Simons: In 2(d), assisting them if they are without means in obtaining legal assistance. One of the constant challenges is the provinces simply don’t have the money to run their legal aid programs. Whether you want to point fingers at the federal or provincial government, it doesn’t matter to the person who cannot get legal aid. Is there money imagined here to hire legal counsel, to fund legal aid? How would this work to help them obtain legal assistance?
Ms. Besner: It is not, necessarily, to connect with the legal aid plans. It is to have a fund so if applicants in need do not have the assistance of a lawyer and have not qualified for legal aid, there could be funding for them to access the services of a lawyer.
For example, there could be a roster of experienced people in the areas of miscarriages of justice. We know of several in Canada who have expertise in this area who could then have a limited mandate to assist someone with the application, or in responding to the commission before it makes a decision.
Senator Simons: I’m sure this is all very well intentioned, but it strikes me that, in some cases, it is duplicative and in other cases — these cases are often complicated. You do not need lawyers only; sometimes you need private investigators or to reinvestigate if the police have not done the investigation that seems to be necessary.
I’m a little at a loss. What kinds of funds are we talking about? How many people? Will there be lawyers who are retained on contract? Will there be a rota of people who are doing this pro bono or at a reduced rate? How would this work?
Ms. Besner: When it comes to investigations, the commission is the decision-making body. If it contracts out to private investigators or other forensic experts for whatever, those services will be provided to the commission, not to the applicant. There cannot be a conflict of interest.
If an applicant is without representation, and doesn’t have the means to articulate the grounds for an application or to make submissions that would assist the commission in making the decision, there will be a fund available so they can get independent counsel to assist with those parts of their application, but not with the investigative part. The commission will do that itself.
Senator Simons: Before I run out of time here, I want to make sure I understand.
You are saying you would do the investigation?
Ms. Besner: The commission.
Senator Simons: The commission. So you would have private investigators, forensic DNA analysis, maybe a pathologist to redo an autopsy? These are all things that would potentially be things you would fund?
Ms. Besner: Yes. Currently, this happens under the existing regime. They are not like staff. We don’t have, for the government, extensive staff, because it is in accordance with the demand. It would be largely contracted out, indeed. Forensic labs are often reached approached to do additional analyses whether it is ballistics, biology, DNA.
Senator Simons: A forensic accountant. You could imagine all kinds of things that are not murder. Thank you.
[Translation]
Senator Clement: I have a question similar to Senator Simons’, but your response is interesting.
I’d like to come back to the annual report described in clause 696.87. There is a very detailed list of disaggregated statistics that will be required.
What will the department do with that report? I represent communities that want follow-ups. I have to tell you that it’s great, that gender analysis plus is satisfying and there are details. However, what are you going to do with this report and how will you communicate with the people who are waiting for that data, these statistics and these results?
Ms. Besner: There is an obligation to publish the annual report on the commission’s website, and annual reports will also be tabled in Parliament through the Minister of Justice.
Senator Clement: Given all the communities you’ve consulted for analysis, putting information on a website isn’t always the most community-oriented way of communicating.
Does the department have any other ideas for reconnecting with marginalized communities?
Ms. Besner: It’s not necessarily the department, but rather the new commission, which is at arm’s length from government.
It undoubtedly has the obligation to educate the public and potential or existing applicants and be accessible. All these provisions set out in the beginning, under powers, duties and functions, list those elements.
Senator Clement: Can there be a function to ensure in-person communication?
Ms. Besner: Yes.
Senator Clement: Thank you.
Senator Carignan: I have two questions. Indeed, I saved time, because Senator Prosper and Senator Oudar asked my questions. Unfortunately, I still have one question. It relates to presumption in 696.6(6), which reads as follows:
Innocence
(6) For greater certainty, the Commission may grant a remedy under subsection (2) even if the evidence does not establish the innocence of the applicant.
Here then is my question. How can I reconcile this subsection with the remedy set out in clause 696.6(2), which states the following: “If the Commission has reasonable grounds to conclude that a miscarriage of justice may have occurred…”? How can I then conclude that there was a miscarriage of justice without a shred of proof establishing innocence?
Ms. Besner: In the U.S., many regimes require conclusive proof of a person’s innocence. It should be noted here that the commission is not a judicial court, it is not a criminal court, so it won’t have to determine innocence or guilt. It is an entity with the mandate to conduct an investigation, gather evidence and information —
Senator Carignan: I understand that, but my question is quite clear. How can one rationally determine that there are reasonable grounds to conclude that a miscarriage of justice may have occurred without any evidence establishing the person’s innocence?
Ms. Besner: Proof of innocence is precisely what the courts rely on to determine guilt or innocence. Let me be clear that the commission is not there to make that determination or overturn a conviction. The commission is an entity that can conduct investigations, and if a certain threshold is reached, a different threshold than the courts have, it can make a referral. Indeed, in foreign countries, some referrals are made but not accepted by the courts; we’re talking about approximately one third.
Our threshold, currently, has been criticized as being too high, such that all the referrals are more or less overturned later by the courts. If the threshold is that high, there may be some cases that are dismissed, when, in fact, there could be a miscarriage of justice.
Senator Carignan: I’m hearing you, but I don’t understand; these are things that happen.
I have another question, still in relation to court martial courts. There is a definition of court of appeal in clause 696.1, which states the following:
court of appeal means the court of appeal for the province in which the matter that is the subject of the application was heard.
Every time I read “court of appeal”, I have to read “court of appeal for the province”. Does that include the Court Martial Appeal Court of Canada? What is a court of appeal for the province?
I think that it should be included in the application for review. Those are my two points.
[English]
The Chair: Such as you discover, Ms. Besner, could you share that with us through the clerk?
Ms. Besner: Yes.
The Chair: Thank you.
I have a few questions myself. It seems to me that the two most critical dimensions of this whole process of addressing potentially wrongly convicted people are the person who believes they — and so far, we have only seen about men — believes they were wrongly convicted. How do they initiate, and how do they get the support to move their claim forward?
I’m interested in the degree to which the inmate in the Prince Albert penitentiary is going to know this is an opportunity for him, in this case, and also that there might be a degree of initial legal support to guide that process. Do you imagine a kind of prison legal aid for potentially wrongly convicted folks that the commission will establish?
I ask that question recognizing you are not the commissioner, and I am in, in some ways, asking you to build a commission and how it would work. It seems to me to be a critical question. I don’t know that we want to hear that there are 32,000 applicants, but we do want to know that these people will get an opportunity to know and have their cases move forward.
That is the first of my two questions.
Ms. Besner: We hear through a variety of sources that perhaps the reasons why there aren’t too many applications in Canada compared to abroad is reluctance or a lack of trust in the fact that the decision maker is not an independent body. There is also the fact that the system is not known — even among some criminal law practitioners, not everyone knows about the Criminal Conviction Review Group. The regulations have been criticized as being very onerous for applicants, especially those without legal assistance, to meet. They have to gather all transcripts and have all the dates of all their hearings, et cetera. There is also a high test for referral.
Those are some of the things that this bill seeks to remedy, along with a specific outreach function for the commission to communicate with potential applicants about its existence and mandate to offer guidance and assistance. If people are without means, it is also to give them access to some legal assistance for the application. It’s that kind of transformation that is intended.
The Chair: Thank you.
I will ask my second question. The other dimension that is critical for applicants is the decision that the commission will make.
We have been through exercises around this table in the last few years. Let me take the judge legislation as an example. In the consideration of whether a judge did a dishonourable thing for which they may get their knuckles rapped and reprimanded, we built in layers of consideration and we constructed the nature of panels that have to include some judges and some laypeople, and all the rest of it — for a decision as to whether a judge did a moderately bad thing in terms of judicial behaviour.
We were unbelievably disciplined in the structure of that.
Here, we are not disciplined in the structure of it. We have a set of commissioners. We don’t say whether they need to be three lawyers and a non-lawyer deciding. We don’t say whether there have to be non-lawyers on the panel. I don’t understand why we haven’t committed the same kind of discipline to the decision process here for wrongly convicted people that we do for judges or for lawyers facing discipline — or probably 100 myriad circumstances where provinces and the federal government write the rules.
Why haven’t we done that here?
Ms. Besner: I’m glad you asked the question, because it gives me an opportunity to expand upon an answer that the minister provided a while ago. I think it’s a question that came from Senator Batters about quorum. In the legislation, you will notice that the chief commissioner convenes and presides at the meetings. The chief commissioner must be a lawyer with 10 years of experience. That is one answer to that question.
In terms of other elements of what you just asked, Mr. Chair, the commissioners will be supported by staff. Commissions abroad have mentioned that their staff — the case reviewers — are all lawyers. Some of them are perhaps not lawyers but maybe former investigators. They come with experiences. They are the workhorses.
For sure, with this commission and the budget it has, it will be supported by staff that will be competent and qualified to assist in the commission’s decision making.
The Chair: I’ll stop there. We have a few people on a second round, and I don’t want to interfere with that. Senators, you have about three minutes per question.
Senator Batters: First of all, going back to what you were just discussing the quorum, I noticed that about the presiding. However, there is also a provision — and I can’t find it as quickly as I need right now — but there is a provision that says that when the commissioner is absent — and it is pretty open-ended about that — then there is an acting commissioner. There is nothing to say that the acting commissioner necessarily needs to be a lawyer. That is a potential hole, because I was going to follow up on whether the commissioner actually needs to be part of that quorum or not. So maybe you could just look at that, because I think that is a hole there for you.
The other thing I wanted to briefly ask you about to give you a chance to clarify the answer: Senator Oudar was having an exchange with you in French and I was listening to translation — and something might not have been properly relayed to me. You were giving an example, Ms. Besner, of a murderer convicted of several murders but perhaps one of them was a wrongful conviction. However, they were in jail, serving a sentence for many other murders. Were you using that as an example of something not be in the interests of justice? Because I was, frankly, shocked by your answer. I would like to give you an opportunity to explain it because I see no other way out of that.
Ms. Besner: It is an example where if someone is convicted of a murder that they did not commit, that does amount to a miscarriage of justice. Whether or not it is in the interests of justice to refer the matter back for a new trial is something the commission can turn its mind to and something the commissioners abroad have had to turn their minds to when it comes to applicants with, like I said, for example, serial killers —
Senator Batters: That’s one part of the test but not the other part. Is that what you are saying? That it could be something —
Ms. Besner: The interests of justice, yes.
Senator Batters: That would not meet the interests of justice. Okay. You were giving the answer I was trying to get from the minister that he didn’t give me.
Ms. Besner: On your first question, I believe, in the case of absence or incapacity of the chief commissioner, subsection 2 does say it has to be someone so qualified, so a lawyer with 10 years of experience. I think it does say that.
Senator Batters: I will look at that when I have a chance. Thank you.
Senator Pate: The recommendation was made by Justices LaForme and Westmoreland-Traoré that clause 696.72 would need to be amended to allow for proactive and systemic reform within the commission’s mandate.
You mentioned sending back for a new trial. I need your help to tell me how you would construct the argument to do this kind of review for these 12 women. Because many of them pleaded guilty. They need to have proactive and systemic reform to prevent future miscarriages of justice. I thought it would require an amendment, but I was really pleased to hear you didn’t think it would. Could you walk us through — if there is no time, perhaps you could provide it in writing — how you would argue within Bill C-40 for this kind of review?
Ms. Besner: With all due respect, I don’t think I could go so far as to provide the committee with an opinion about how to structure a particular application as you suggest. I tried to explain that there are new decision-making factors that must be taken into consideration. They are quite expansive and they would include, as I articulated a while ago, the circumstances of particular populations.
There is the mandate provision, but also there are, in the powers, duties and functions, the outreach function, the duty to provide guidance and support is really intended to help applicants along the way, whether that applicant is an individual or a group. There is the inclusion to make it clear in the law that false guilty pleas would be subject to review. I don’t know if that is something that could help as well. That’s a clarification.
Senator Pate: Even where there weren’t guilty pleas — I’m going to go back to the self-defence review — of the seven women who received a recommendation for a remedy, five of them were initially rejected by Judge Ratushny and her team. When they came and told me that, I said, “Did you tell them X, Y, Z, whatever?” When they went back, five of them were then re-reviewed and did get a remedy. That tells me that there has to be some very clear direction to look for systemic inequities, particularly when you are talking about racialized people and even more particularly when we have the intersection of race and gender.
I don’t see anything in the law. I’m really pleased to hear the minister say what he did. I’m really pleased to hear you say what you did. I’m really pleased with the Gender-based Analysis Plus, but I don’t see the path forward in this legislation unless you can help me with that.
Ms. Besner: Just again, I’ll reiterate that it is all packed into paragraph (c) in the decision-making factors that must be considered.
Senator Pate: And remedy?
Ms. Besner: The remedies are for a new trial or new appeal. There is nothing precluding the commission to point someone toward — let’s say it is not a miscarriage of justice and that the person is responsible, but perhaps they might benefit from a respite of their sentence or something like that, they could be directed to that other administrative regime that exists for a record suspension. Section 749 of the Criminal Code says nothing in this act limits in any way the Royal Prerogative of Mercy, which is a broad, limitless power. It’s still available for anything not captured under these statutory schemes.
Senator Pate: How many Royal Prerogatives of Mercy have been issued in the last 20 years?
Ms. Besner: I don’t know the answer to that question. It’s probably rare, but it is not unavailable.
Senator Pate: There has been none.
The Chair: Thank you.
This concludes our consideration of this part of the bill with Ms. Besner and Ms. Cyr. I want to extend the thanks of the committee to you, once again, for answering our questions extensively and precisely. I want to thank the senators for the precision of their questions so that everybody got a chance to air their interests in the bill.
This brings the session to a close. We will continue our consideration of the bill tomorrow when the committee reconvenes. Thank you all.
(The committee adjourned.)