THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 30, 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, and I’m the chair of the committee. I’m a senator from Saskatchewan. I would like to invite my colleagues around the table to introduce themselves beginning on my left.
Senator Batters: Senator Denise Batters also from the great province of Saskatchewan.
[Translation]
Senator Carignan: Good afternoon. Claude Carignan from the beautiful province of Quebec.
Senator Oudar: Good afternoon. Manuelle Oudar from the beautiful province of Quebec. Welcome.
Senator Dalphond: Good afternoon. Pierre Dalphond, De Lorimier division in the beautiful province of Quebec.
[English]
Senator Arnot: Senator David Arnot completing the trifecta from Saskatchewan.
The Chair: At this point, you might think the senators on this committee are from two provinces only, but that’s not quite true.
Senator Simons: Let me disabuse you of that belief. Senator Paula Simons, I come from Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. Welcome to our witnesses. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
[Translation]
Senator Aucoin: My name is Réjean Aucoin, and I’m from Nova Scotia, Canada’s ocean playground.
[English]
Senator K. Wells: Kristopher Wells from the home of the majestic Rocky Mountains in Alberta.
The Chair: We have serious business to do today, and I don’t want you to think this is the tourism committee of the Senate.
Honourable senators, we are meeting to continue 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). It is referred to informally as the Joyce and David Milgaard Act.
For our first panel, we are very pleased to welcome the Honourable Harry LaForme, Senior Counsel, Olthuis Kleer Townshend, former distinguished judge in Ontario. He is appearing with Kent Roach, Professor, Faculty of Law, University of Toronto. Both are appearing by video conference. Welcome, gentlemen. We appreciate your time joining us.
We are joined in person by Neil Wiberg, Defence Lawyer, Nicola Law Group, in Kamloops and Emma Cunliffe, Professor of Law, University of British Columbia. Professor Cunliffe also joins us by video conference. Welcome and thank you very much for joining us.
We will begin with opening remarks, initially from Mr. LaForme and Professor Roach who will share their time, followed by Mr. Wiberg and Professor Cunliffe. I will invite Mr. LaForme and Professor Roach to speak to us for seven minutes or so then we will follow with the others.
Hon. Harry LaForme, Senior Counsel, Olthuis Kleer Townshend, as an individual: Thank you very much. It’s a pleasure to be here. I think this is very important. I’m going to turn it over to Professor Roach. Both he and I have worked very extensively on this, as you know. We have some concerns, and we would like the committee to consider them and to maybe propose some amendments.
At this time, I’ll turn it over to Mr. Roach, and then I would hope that I can have a few moments at the end to say a few words.
Kent Roach, Professor, Faculty of Law, University of Toronto, as an individual: Thank you very much for the invitation. We come here not to argue that every one of the 51 recommendations made in the miscarriage of justice report should be reflected in Bill C-40 but that some very important recommendations that continue to be rejected despite helpful amendments made in the House of Commons.
Our report is the most recent, and we talked with all five of the foreign commissions. If anything, the problems with the English commission have gotten worse since we completed our report in 2021.
We share with exonerees and Innocence Canada the hope for an independent commission and sorrow and fear that it has taken this long to get here and that there is still a real possibility that this project may fail.
That said, we believe that Bill C-40 does not do nearly enough to ensure that the proposed commission will be truly independent from government and truly representative of the populations at risk and that it will have adequate powers and funds to do its necessary work.
I will quickly go through seven issues. First is a five-person commission without Indigenous and Black representation is manifestly inadequate for Canada. This is especially true when the far smaller country of New Zealand has a seven-person commission with guaranteed Māori representation. This is especially so if we want the commission to be proactive and systemic.
Second, only the chief commissioner has to be full time under the bill. The chief commissioner has to be a lawyer, but whoever they are, he or she will have to shoulder onerous, virtually full‑time duties of being a chief executive officer. I know that Justice LaForme can speak to some of these issues from personal experience.
Third, the renewable terms for commissioners are, in our view, a bad idea that undermines independence from government. We would not accept renewable terms for judges. As outlined in our brief, the government’s refusal to renew at least one commissioner because of objections to his or her stance has caused problems and helped to undermine public confidence in the English commission.
We also note that the Governor-in-Council appointment process is notoriously slow and not transparent. There need to be, as Justices LaForme and Westmoreland-Traoré emphasized in their 2021 report, at least some vetting of candidates by representative and expert organizations. Relying on business as usual when it comes to government appointments is not good enough.
Fourth, the commission should have the same powers as the English commission and many law societies regarding access to privileged information. The bill will simply continue the status quo of giving the commission Inquiries Act powers. During our public consultations, the heads of public prosecutions suggested, if I were less polite I would say threatened, that they could refuse to cooperate with a commission that was proactive because of concerns that the commission might want solicitor-client privilege or informant-privilege information.
As we suggested in our report, the law societies of Canada have the ability to have access to privileged information without necessarily compromising the privilege. The English commission clearly has that power, and if Bill C-40 is passed without amendment, we are concerned that it will not have the powers it needs to get all information, especially from police and prosecutors.
Fifth, the commission should be able to, in our view, hear requests for assistance on the basis of new matters of significance with respect to ongoing sentences. Only the North Carolina commission of the five foreign commissions does not have this power. Senator Pate’s report on 12 Indigenous women makes the case that you need to have access to information, including Gladue-report information that has not adequately been considered or incorrectly considered by the trial courts, the appeal courts and the parole boards.
Sixth, the commission should not be able to decline to refer a case where there may be a miscarriage of justice on the vague basis that it is not in the interest of justice to do so. Yes, this is the Scottish test, but we heard from the Scottish commission that sometimes they might say a person is an unappetizing applicant, someone who has a lot of convictions. Therefore, it is not in the interest of justice to refer the case to the court even though there may be a miscarriage of justice.
Seventh, funding the commission properly and independently as if it were part of the judiciary is necessary. We agree with exoneree Guy Paul Morin — and he would know better than us — precision and true investigations rather than paper reviews take time. There must be an adequate budget.
I’ll turn it over to Justice LaForme.
Mr. LaForme: Thank you. I have a couple of comments just to wrap up. Thank you very much, Mr. Roach. That’s mostly what we were thinking and how we would improve the bill.
First, the thing that bothers me the most is the independence. I don’t think that this personal structure is going to result in independence. I worry about the chief commissioner having these dual responsibilities, one administrative and the other one as chief commissioner. I have had experience with that, and it simply does not work. The demands of government are just too much for both of those functions to be carried out adequately.
Second, I would say the Indigenous and Black representatives may not even happen. That’s possible under the current structure. However, I think it’s absolutely essential. They are the two most at-risk and overrepresented people in our institutions, our prisons. It seems to me, there has to be a way to ensure that one of them or both of them are represented on this commission. I would go so far as to say my preference would be an Indigenous person as the chair.
Third, I think the funding has to be, as Professor Roach suggested, very much like the judges and that an independent commission determines how much they could increase or decrease. I’m not suggesting they get paid the same as judges, but that ensures the independence of the commission in my view and proper funding.
There are many other things I could say, but I just want to say a couple more things. We spoke to David Milgaard a couple of times in our commission when we were doing our inquiry. He was serious about needing this commission and how much he wanted it to be independent and productive. There are, from his perspective, so many people that need these services, so I can’t stress enough how important they are.
The last thing I would say is that I was a judge for 25 years and for 15 of them, an appellate court judge. The one thing I remember as a judge was that the thing that was the most mysterious to me were the words “in the interest of justice.” I still do not know what that means. I know what I can use it for, and I have used it in decisions, but I don’t know what it means, and I dare say none of my colleagues do either.
Those are the submissions that I would add to it. Thank you.
The Chair: Thank you both. Now, I invite Mr. Wiberg for roughly five minutes.
Neil Wiberg, Defence Lawyer, Nicola Law Group, as an individual: My name is Neil Wiberg. I’m now a defence lawyer in Kamloops, B.C. I was born and raised in Ottawa, still a Redblacks and Senators fan, unfortunately. I went to law school at Osgoode Hall Law School. I then went to Alberta. I was a Crown prosecutor in Alberta for 33 years. I started off in Vegreville and did circuit court in places like Viking, Lloydminster, Wainwright and Vermillion. I went up to Fort McMurray for five years, went into fly-in Indigenous communities like Wabasca-Desmarais and Fort Chipewyan. Then, I went back to Vegreville as chief Crown. I was working at head office for a number of years. Got my King’s Counsel in 2006, and then I went back as a senior trial lawyer in Edmonton for seven or eight years. I then moved to British Columbia and was in charge of the Crown Kamloops office, and then I switched to defence counsel for the last two years. That’s my background.
I have prosecuted about 70 homicides during the course of my career. I’m strongly in favour of this legislation. I’m strongly in favour of having this commission. When we look at unlawful convictions, a lot of Senate and House of Commons work in the past has helped.
When I started off, there was no disclosure except for a copy of the information. That Stinchcombe decision made a lot of difference for defence getting disclosure. In terms of DNA, its acceptance as a science, the DNA warrants and the data bank have made a huge difference, and DNA actually eliminates suspects.
I can tell you about a case in a few minutes — oh, I’ll tell you now — where there was hair and fibre evidence. It was a strong circumstantial case, but the police told me it’s possible to do mitochondrial DNA. If you have a hair that you have to examine and you don’t have the shaft, you can’t do the normal nuclear DNA. It has to be mitochondrial DNA. At the time, there was no lab in Canada that could do that. The closest was North Carolina. As Crown, I said I refuse to authorize charges until you do the mitochondrial DNA. It came back not a match. That individual who could have been charged because the hair and fibre evidence was strong was inconvenienced five minutes to get a DNA sample and then was eliminated, so the DNA legislation is excellent.
The Sophonow inquiry where Justice Cory made a lot of recommendations made a big difference as well, with tunnel vision, for instance. For two years, I was the advisory Crown on the Mayerthorpe murders where I gave advice to the police on the undercover operations on who gave James Roszko the gun. Eventually, after two years, there was enough evidence to lay charges, but by then I was completely off the case because I had given two years of advice to the police and there was the possibility of tunnel vision. So, I was nowhere near the prosecution.
The use of in-custody informants has really changed. After the Hébert case from the Supreme Court of Canada, the police used in-custody informants a lot. That was determined to be a complete disaster, and the Sophonow inquiry really reduced that. In Alberta, we almost never used in-custody informants. Hair and fibre evidence was treated almost as a junk science, so although that was used before, it is not used anymore.
This commission, I think, could do an excellent job in providing legal education. I remember a conference I went to in Alberta where James Lockyer attended a Crown prosecutor’s conference and gave an excellent presentation on wrongful convictions. It was well received by the prosecutors at the conference. People remembered that for years, so it was a really valuable speech. I could see this commission going to law society committees or to bar associations and giving advice on wrongful convictions.
I have just one Criminal Code amendment I would suggest, but I think it’s very important this legislation be passed. Here is my Criminal Code amendment. I don’t like the operation of sections 469 and 473 where the defence is forced to have a jury trial in a murder case. The rule is that for a normal offence, including attempted murder, aggravated sexual assault or impaired driving causing death, the defence has the option of provincial court judge, Supreme Court judge without a jury, or Supreme Court judge with a jury.
Section 473 indicates that for the section 469 offences, including murder, treason and a number of piracy offences — we don’t get much piracy on the North Saskatchewan River, but it shows how old the legislation is — section 473 applies. It’s a deemed judge and jury election, and you can only get a judge alone if the Crown and the defence both consent. If the Crown does not consent, you are forced into a jury election as an accused. There are a lot of reasons why I think that is wrong.
First of all, there are some areas where historical and cultural issues make juries prone to convict. Law school professors and lawyers will tell you in this area, juries almost always convict. There are others where they acquit more quickly. If you are in that area, you’re stuck with a jury that probably will convict. Juries like to compromise. Sometimes, that’s a good situation for defence, but for others, it’s not.
I know of a case in Lethbridge where a fellow was charged with both sexual interference and sexual assault. The only difference between the two charges is in one, the victim is under the age of 16. There was no question the victim was under 16. The judge told the jury if they felt they were going to convict, they had to convict on both because it was the same evidence. The jury came back and convicted on one and acquitted on the other. No legal reason for that except they liked the compromise and to throw a bone to one of the two sides.
Juries may not follow the law. I was involved in a case once. It was a “faint hope” case. You don’t see many of them anymore because faint hope does not exist anymore. There was a challenge for cause where the defence was allowed to ask questions of the jury. This woman had been convicted of first-degree murder, life-25, and at the 17-year mark, she wanted to get an early parole, so there was a faint-hope hearing for this. The question that these prospective jurors were asked was, “After listening to the evidence and the judge’s instructions, would you follow those?” Six of the jurors said no. Life means life. Doesn’t matter what the evidence is or what the judge says. We will not shorten the parole ineligibility.
Preponderance is also a real difficulty. With the last jury I had when I was a Crown, the judge, in fact, after looking at the normal rules for Corbett applications for cross-examination on a criminal record or for severance, said, in effect, “I don’t trust the jury to make the right decision because of preponderance. They will think because of previous convictions he must be guilty.” So she refused to follow the tests because she didn’t trust the jury with that.
Also we don’t trust juries with voir dire because we know they would use that evidence improperly. They also often proceed with emotion, so I think the defence should have the absolute right to be able to pick a judge alone. Thank you very much.
Emma Cunliffe, Professor of Law, University of British Columbia, as an individual: I am speaking to you today from the traditional, ancestral and unceded territory of the Musqueam people. I would like to begin by thanking this committee for the invitation to speak to them.
Senators, my key message is that Canada urgently needs an independent, representative and properly funded miscarriage of justice commission and that the present Bill C-40 risks perpetuating some of the existing biases that operate within the criminal legal system, legal culture and process of ministerial review.
Let me begin with the need for this commission. In 2017, my co-author Gary Edmond and I compared the rates at which wrongful convictions are identified and reversed in three peer jurisdictions: Canada, Scotland and the rest of the United Kingdom. We found that Canada lags far behind its peer jurisdictions.
On a per capita basis, the current Canadian system successfully identifies and corrects wrongful convictions at approximately one twentieth the rate of Scotland and Great Britain, both of which have criminal case review commissions and have had them for some time.
A difference of this magnitude cannot be explained by a difference in the true rates of wrongful convictions. The U.K. has, if anything, stronger trial and systemwide safeguards against wrongful convictions, including more effective regulation of police procedures and forensic sciences and more robust legal aid funding.
If I can turn to the biases that exist within the Canadian system. When one looks at identified wrongful convictions in Canada, one can see more clearly that the existing ministerial review process has significant shortcomings, including biases and blind spots. You have heard from other witnesses, for example, that of 30 ministerial referrals made since 2002, all were male and less than a quarter were racialized.
Senator Kim Pate’s important paper on miscarriages of justice involving 12 Indigenous women points to systemic factors that contribute to this pattern. My co-author, Debra Parkes, and I have studied how existing legal approaches to wrongful conviction do a particular disservice to wrongly convicted women, as well as Indigenous and racialized people.
We identify that these groups are particularly at risk of being criminalized for crimes that never happened, of pleading or being found guilty despite having a strong claim to a relevant defence and of taking responsibility for the actions of others in circumstances where they have no legal responsibility for a crime. In each of these circumstances, factual innocence is difficult if not impossible to prove. For these wrongly convicted people, fresh evidence of the kind that exonerated David Milgaard or Guy Paul Morin is especially unlikely to emerge.
Professor Roach has also written about the distinctive patterns in the wrongful convictions of Indigenous people in Canada, as has professor emerita Elizabeth Sheehy. In short, these patterns are well and widely documented.
There is a universe of academic and policy writing about what drives bias within the Canadian criminal legal system. Systemic racism, poverty and systemwide underinvestment in the reliability and proper testing of evidence are key factors, as is a legal culture that prizes adversarialism, professional collegiality and finality over accuracy in factual determination and allocating resources to poor and marginalized defendants. This bill does not address these biases.
Bill C-40 contains some salutary features, such as provision for financial and material assistance for applicants in need and a lower threshold than presently exists for initiating an independent, government-funded investigation.
I am also very pleased to see subclause 696(6), which makes it clear that proof of factual innocence is not the standard by which a decision to refer a case should be made. However, there are also gaps, some of which have been addressed by my colleagues Professor Roach and Justice LaForme. I endorse their recommendations, especially their suggestion that the new commission must have the power to access privileged information. Failure to give the commission this power will mean that its capacity to do its important work will be defeated in many instances.
In addition to their recommendations, I have a further suggestion. As presently drafted, the grounds specified in subclause 696.6(5) for deciding whether to refer a matter includes “a new matter of significance,” a phrase that I understand to be intended to be interpreted broadly. However, it may be interpreted in a manner that does not extend to the re‑evaluation of a trial and investigative fact-finding processes in the absence of fresh evidence or in the absence of another well-established ground of appeal, such as ineffective assistance of trial counsel.
I would propose that the grounds for decision-making be amended to include a new subparagraph (a.1):
the reliability, accuracy and fairness of evidence admitted, legal strategies adopted, and arguments made in any previous process in relation to the finding or verdict;
This new subparagraph would focus the commission’s mind on the potential operation of bias and prejudicial reasoning towards marginalized claimants, including the role that legal culture can specifically play in securing a wrongful conviction.
Honourable senators, Bill C-40 represents an important step forward for justice in Canada. It is imperative that this bill be passed. Many reports have called for this commission, and you have heard directly from those who have been wrongly convicted of the challenges of seeking exoneration in a system that presently prioritizes finality over justice.
I urge you to take the steps necessary to ensure that the new commission is well funded and fully independent and that it has the powers necessary to do its work without fear or favour, including, when necessary, to challenge the ways in which existing legal structures and professional norms contribute to the problem of wrongful convictions in Canada. I thank you for your attention.
The Chair: Thank you, Professor Cunliffe. We’ll start with questions from Senator Arnot, who is the sponsor of the bill.
Senator Arnot: Thank you. First, I would like to thank all the witnesses providing your expert testimony on this bill. I have spoken with proponents of this bill, including the minister, who want to see it passed as is, without amendments.
The importance of passing this legislation now without amendments can’t be overstated. The bill offers meaningful solutions to systemic problems that have persisted for decades. It’s time to move forward with the justice system that’s responsive to the needs of all Canadians, especially those who are marginalized.
I have two questions, one for Mr. Wiberg. Sir, with your unique experience as Crown and defence counsel, do you think defence counsel can leverage the concept of a new matter of significance under Bill C-40 to challenge past convictions effectively? How broadly do you think the commission should consider what qualifies as new evidence, considering the flexibility and creativity required by this commission?
To the other three witnesses, knowing that passing this bill with amendments would almost certainly defeat the bill, kill the bill, would you be in agreement with passing the bill without amendment?
Mr. Wiberg: Yes. I think that fresh evidence should be accepted as strong as possible. Introducing fresh evidence should be there.
[Translation]
Senator Carignan: Members must not frame their question in such a way as to mislead the witness. An amendment will not kill the bill. It will get the bill sent back to the House of Commons with a message, and the House will decide whether to accept it or not. They will decide. It can take as little as 24 hours. An amendment will not kill a bill, certainly not a government bill. It’s not okay to mislead a witness like that with a question.
[English]
The Chair: I think we’ve heard opinions embedded in questions before. I think it’s a fair observation, Senator Carignan, but I’m not going to go beyond just observing on your fair point and let Mr. Wiberg answer.
Mr. Wiberg: First of all, I would agree that it should be as much as possible for new evidence. One thing that would help the defence counsel would be to be able to charge legal aid for this kind of work because usually, as soon as they have finished the file, legal aid is off, things like that. If you could add legal aid coverage, I think defence counsel would be much more interested and invested in doing the necessary work that would be required.
The Chair: With respect to the second question, I’m going to invite Professor Roach, if you have an observation.
Mr. Roach: With respect, Senator Cotter, I’m going to defer to my elder, Justice LaForme.
Mr. LaForme: Okay. I will say to the second question, would we pass the bill or have it be defeated because of amendments, I think we would say yes, the bill is necessary because with a lot of luck, it could be independent. I think that’s what it’s going to take, a lot of good fortune.
With the selection of the commissioners, we’re going to be fortunate if we get an Indigenous person on the commission, or even more so, an Indigenous person as chair. They’re the most overrepresented in prisons, so I would think that luck is going to favour this.
The budget is the same thing. I don’t think the chief commissioner is going to be able to handle both jobs with the kind of vigour that we would insist upon in this commission. If those two things and the proper and guaranteed financing get put in place, then with luck, I think the commission will be able to do its work.
Ms. Cunliffe: I would rather see this bill passed than defeated. I can state that very clearly. However, if that’s the course that this honourable committee elects to take, I would seek that each of us hold ourselves accountable to holding the commission accountable for doing its work and for continuing to press for further amendments along the lines requested today.
The Chair: Thank you very much. Senator Batters, who is the deputy chair of the committee and the critic of the bill, will be the next questioner.
Senator Batters: Thank you very much. Just at the very start, briefly, this is also a government bill, so if there are amendments, it would receive a high degree of priority in the House of Commons from the Government of Canada to have a message heard in a timely way. It’s not like a private member’s bill, which perhaps may be killed if there are amendments done. I just wanted to make that point.
My first question — and I have so many, it’s too bad we don’t have you for a little longer. I very much appreciate all of your work on this and the very important comments that you made today.
I guess first I would like to start with Justice LaForme and Professor Roach, whichever one of you want to comment further on this. I have the same concern about your issue of the interests of justice being included in the standard. I asked the minister when he was here, I quoted the standard. I said the bill fails to find the interests of justice, and then I asked the minister, what possible situations might require an appeal due to a possible miscarriage of justice, yet would not serve the interests of justice? He didn’t really give me an answer to that.
Is that the primary concern you have, is that it doesn’t really say anything, yet it could be, in your view, used to potentially take away somebody’s wrongful conviction situation?
Mr. LaForme: Yes, I would agree with you. As I said in my statement, I never knew what “interests of justice” meant. I knew when I wanted to use it to support a judgment or something like that, I would say it. It’s a catch-all phrase, and no judge likes to admit this, but we don’t know what it means. It can mean pretty much anything you’d like.
It can also do harm, I would say, and that’s what worries me, and I don’t think it should be part of the test.
Senator Batters: Thank you. Would you suggest just merely deleting it from that clause?
Mr. LaForme: Yes, I would.
Senator Batters: Thank you.
Mr. Roach: I agree with that, but I would also say that the miscarriage of justice “may” have occurred, is the appropriate standard, because right now, it’s certainty. I think you have heard from the minister that every one of his references has either resulted in an acquittal or the prosecutor not staying.
The Scottish commission has about a 50% success rate when it refers cases back to the High Court of Appeal. I think it’s clear we have a Minister of Justice or Ministers of Justice over the years who are perhaps good at getting the slam dunks, the cases where —
Senator Batters: Sorry, but I only have limited time here.
Mr. Roach: Okay. Sure.
Senator Batters: I need to ask you about other things.
Justice LaForme, your report also recommended that the commission be able to refer cases for a pardon or record suspension, allowing applicants who may have been wrongfully convicted to benefit from that remedy if it’s justified, but that provision wasn’t included in Bill C-40. Were you consulted on that point during the drafting of this bill? If you were, for what reason was your recommendation not retained by the government?
Mr. LaForme: I have no idea why they weren’t retained, the recommendations. I wasn’t privy to that. We did ask about that, and all of the recommendations that we put into the report and we tabled with the minister were recommendations that we got from other commissions, and they indicated what the problems were and what could have improved their opportunities for doing their job as commissioners. It was something that was always there, and we did consult on it, and we did get advice on it.
Senator Prosper: I want to circle back to some comments made by Professor Roach and Justice LaForme, more specifying related to the composition of the commission. Am I correct in saying that it was a necessary component to have representation from the Indigenous and Black communities within the commission? Is that a necessary component of that?
Second, you spoke about powers invested through the Inquiries Act and how that doesn’t take into consideration solicitor-client privilege. How many cases are we contemplating here involving solicitor-client privilege? I’m just trying to get that into perspective for me. Thank you.
Mr. Roach: On solicitor-client privilege, my concern is that the police can claim solicitor-client privilege with respect to their conversations with Crown counsel. That’s a particular concern. We might also have a situation where the informant’s identity has not been disclosed, but even the courts recognize that there is an innocence at stake exception.
I go back to this was the heads of prosecutions who basically informed us during the consultation that they have had fights with the Criminal Conviction Review Group, or CCRG, and the Department of Justice Canada. They’ve been able to settle it, but they were willing to escalate this through litigation.
I think this would have been an easy fix. To go back to Senator Arnot, if we’re given this choice between yes or no, I think it’s unfortunate, because our report detailing this was on the minister’s desk in September of 2021. So I think it is unfortunate if that is indeed the case, the predicament.
Mr. LaForme: I would add to this that the law societies and others assume the privilege. They have the obligation to protect the privilege. I think you could have the same thing in this commission, such that they would be the holder of the privilege, and they would be responsible for protecting that privilege and acting accordingly with it. It’s done in law societies, and it could be done with this commission just the same.
On the first part of your question, I do think that it’s absolutely essential to have Indigenous people and Black people — this bill does not guarantee that they will be on the commission. It only says that they will be considered and thinking will be in that regard.
I would also say that the appointment of the commissioners is very important, and that should be left like it was done in the Truth and Reconciliation Commission of Canada. They had an independent body that went about and interviewed people that were ultimately going to be on the commission. I think that’s the way it should be done in this instance.
But, I think, guarantee of Indigenous representation and Black representation. They are the most overrepresented groups in our society in prisons by a longshot, and I think that they deserve to have the appearance of independence and their wishes are going to be heard, and that has to be with a representative on the commission.
[Translation]
Senator Carignan: By way of introduction, I want to get back to the amendments. I know that people, organizations and victims are listening to us, and I want to assure them that any amendments moved and agreed to in the Senate will not kill the bill, just delay its adoption by a few hours or days, as long as it takes the House of Commons to agree to or reject the Senate’s proposed amendments.
My question is for Mr. LaForme and Mr. Roach, primarily. Bill C-20 contains no miscarriage of justice review for the Court Martial or the Court Martial Appeal Court, which means that members of the armed forces are subject to a different regime than other Canadian citizens. Can you comment on that? We looked at Bill C-66 in the other place because a bill concerning military justice is going through the legislative process. Nothing in this bill addresses a miscarriage of justice review. I’d like you to comment on that. Should a comprehensive bill on justice and miscarriage of justice include recourse for armed forces members who may be victims of miscarriages of justice?
[English]
Mr. Roach: Thank you very much for your question. We didn’t examine that specifically in our public consultations. Perhaps we should have. I’m aware that the English commission has had court martials added to it after its original legislation.
My only concern would be — and it’s a concern actually with the bill — that we want to make sure, because there are limited resources, that these are criminal convictions. If there was a significant stigma and impact on a soldier wrongfully court-martialled, I think that they should have access to the commission. But I don’t think for every minor infraction. For example, it seems to read any federal act now. Maybe you could fit that in the National Defence Act, but if that’s true, I would worry that it might be far too broad.
Hopefully, the commission will establish some policies. I hope that’s of some assistance. Merci.
The Chair: Justice LaForme, do you have any observations on that question about military justice?
Mr. LaForme: No, I don’t.
[Translation]
Senator Aucoin: Thank you to the witnesses.
My first question is for Mr. Wiberg. Based on your experience as a prosecutor and as a defence lawyer, what are your thoughts on how prosecutors will respond to being required to testify before the commission? For example, might they use solicitor-client privilege, if the defendant has an attorney, as grounds for refusing to testify? This isn’t clear to me.
Mr. LaForme, in your report, you said that, for similar reasons, you don’t believe all commissioners should be bilingual. I’ve heard you talk about the need for Indigenous and Black commissioners. Based on what you said, my understanding is that some commissioners should be bilingual. Would you comment on that, please?
[English]
Mr. Wiberg: Thank you very much for the question. It’s an easy answer for me; yes, the prosecutors would claim privilege. They would say if it has to do with making a decision in a case, memos they provided, they would claim a privilege.
I have a case going right now where an individual was not charged for six years after all the evidence was collected. So the defence is making the rare argument of pre-charge delay. In that case, we want to see why it took six years for these charges to be laid. The prosecutors are arguing privilege.
They are saying our memos, why we did this, why we did that, they are arguing privilege and will not disclose that to us. So the answer is yes, they will argue privilege on their notes, on their decision making, memos between each other, they will claim privilege.
[Translation]
Senator Aucoin: Thank you.
[English]
Mr. LaForme, I understood your reasons for and your comments about having some Black and Indigenous commissioners. But in your report, you did say that you believe that some of the commissioners should be bilingual. I would like to hear you on that because I understand that some of them should be.
Mr. LaForme: Yes.
Senator Aucoin: Right now the act doesn’t explain or talk about that at all.
Mr. LaForme: No, I think you’re absolutely right. They should be. We have a very big population in Quebec, and a lot of people go to prison there, some of them wrongfully. For the independence of the commission, for the observation of being heard and heard properly, there should be French-speaking, but there should also be the capacity. There are 50 Indigenous languages that we have no representation. We are not guaranteed.
It’s very much like you say, the legislation that you have in place already can partner with Bill C-40 is probably sufficient to ensure that people will have to be, in some capacity or another, speaking French. That’s not true of the Indigenous languages, of course.
The Chair: Thank you both.
Senator Simons: Since our time is limited I’m going to ask my question to Mr. Wiberg. You have been a prosecutor. Now you’ve been a defence attorney. You have been involved with many criminal trials. Why do prosecutors develop tunnel vision? Could you list four or five of the major blind spots that you have seen in prosecutions that have led to wrongful convictions or dubious convictions? Where do those mistakes most often come?
Mr. Wiberg: The most important one is not wanting to be fair. That’s the most important thing for a prosecutor is to be fair. You’re not looking at results to get a conviction necessarily. You’re not looking to look good in the newspaper. What you are wanting to do is to be fair.
When I mentioned before about consent for jury trials, as a Crown, I always consented if the defence wanted to have a judge-alone trial. I never withheld consent. But a lot of my colleagues don’t. They think they have a strategic advantage if it’s a jury trial, so they say, “I’m not going to consent.”
A recent Court of Appeal of Alberta has a case called Ng that upholds the right of the Crown to refuse consent, and the Crown doesn’t have to give a reason. As long as the Crown says, “I’m not consenting,” the Ng case says the court can’t look behind the reasons.
The second one is when you’re involved in the case for a number of years and give advice to the police, it’s difficult to go back and say, “Oops, I was wrong.” Again, tunnel vision develops. If one looks at the case that was a malicious prosecution in Alberta called Dix.
Senator Simons: I remember it well.
Mr. Wiberg: There wasn’t a conviction in that case. It was stayed early in the trial stage. But in that case, there was extensive pre-charge advice to the police. A lot of it was wrong but because it was the same prosecutor, it was very difficult to say, “I was wrong on all of these.” He would maintain his same position.
Senator Simons: The prosecutor, as we know, overstepped in other ways in that.
Mr. Wiberg: One hundred per cent, but still having the same person involved. I was two years in the Mayerthorpe case giving advice and that. Then I was off the case. It’s not efficient because someone else has to get up to speed, but it’s the fairest thing not to develop tunnel vision.
Again, Crowns that think it’s their job to get a conviction and don’t want to look bad in the newspaper — you have to be fair as a Crown. That lack of fairness, where someone says, “I want to get the win, it’s better for me to have a trial like this; it’s better for me to try to put this evidence in,” even if you know it’s not great evidence and really isn’t fair to the accused, those are the main reasons why prosecutors act in that manner. It shouldn’t be, but a number of them do.
Senator Simons: You mentioned jailhouse informants.
Mr. Wiberg: Yes.
Senator Simons: What you didn’t touch on is something that happened in the Dix case and happened in the Vader case and many others is the use of the Mr. Big sting. The RCMP in Alberta are very fond of the Mr. Big sting.
Mr. Wiberg: Yes.
Senator Simons: I don’t know too many times that the Mr. Big sting has actually worked to find probative evidence.
Mr. Wiberg: I do.
Senator Simons: Okay. All right.
Mr. Wiberg: I had a really sad case in B.C.; a woman was missing and presumed just had taken off. They used a Mr. Big sting, and he said he had killed her, put her in a wine barrel with cement and where he put the wine barrel. That was checked out and her body was found in a wine barrel covered in cement.
We had another case in Sicamous where Mr. Big sting was used and that particular person described where he buried the body after a number of years. The first one was 20 years old. The next was about 10. They found the body buried exactly where he described the body was buried. You have huge corroboration in those cases, of course, because the body is found that way.
I found a number of Mr. Big sting cases have been good. The thing with Mr. Big sting, it all has to be recorded. There has to be a wire, everything has to be recorded during the Mr. Big sting. So I have much more confidence in the Mr. Big sting technique than I do in the in-custody informants.
The in-custody informants have every reason to lie; they want to get out of custody. If they think they can get an advantage. There is a whole host — mostly from Manitoba, but a number from Alberta — where in-custody informants have been an absolute disaster. They were introduced after the Hebert case when the cell plants weren’t allowed, someone would come in with a microphone, a so-called cell plant.
The law now is if someone is out of custody, you can use any trick you want to try to get statements from them. If they are in custody, that cell plant is considered an improper trick. But Mr. Big stings I have confidence in by and large, as long as it’s all recorded, but I don’t have confidence in in-custody informants.
The Chair: Thank you both.
[Translation]
Senator Oudar: I don’t want to bring up the public interest again, but this is a question I’ve asked previous witnesses, and it’s still a concern. I’d like us to turn to the discretionary power to investigate provided for in section 696.5. In this section, it’s clear that the commission has a discretionary investigative power. It states that the commission “may” investigate, not that it must investigate. The section reads as follows:
If the Commission 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…
Several witnesses have spoken out against this clause. The Barreau du Québec stated that the commission should have an obligation to investigate. That would be consistent with the purpose of the bill, which is to repair miscarriages of justice.
I would also refer you to your own report, where, on page 8, you wrote that exonerees reminded you that they aren’t criminal matters or criminals; they are people. They expect their cases to be investigated and not simply subjected to a cursory review.
I’d like you to comment on that, specifically the expectation on the part of victims of miscarriage of justice that their case will be investigated, and rightly so. Under the circumstances, would you suggest that amendments be made to section 696.5?
[English]
Mr. Roach: Thank you very much, senator, for that question. Yes, you are right that the victims very much want investigations as opposed to desktop reviews. That is one of the reasons we’re so concerned about budgets.
But it seems to me that subclause 696.5(1), “If the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred” — and let’s leave out “or considers that it is in the interests of justice to do so” because we don’t think that should be in there, then I agree with you that it’s hard to think why they would not conduct an investigation.
Now, it may be that the investigation might not be extensive if the applicant has already presented them with the new matters of significance, but I agree with you that, as that reads, it does allow a kind of double discretion. It allows them discretion to say, “Even though we think a miscarriage of justice may have occurred, we’re not going to look into it.” I agree that that is somewhat nonsensical.
Mr. LaForme: I do as well.
Senator Oudar: Thank you.
Senator Pate: Thank you to all of our witnesses. My question is first for Professor Cunliffe, Justice LaForme and Professor Roach to start with. It has to do with an issue that we’ve raised in a couple of contexts around how you judge what is new or fresh evidence. You will all know of examples where histories of abuse and misogynist or racist interpretations of facts have been available wherein the information has been available at the time that someone was either defended, tried or both yet not taken into account. In fact, the CCRG has indicated that new understandings of evidence that weren’t seen as relevant at one time cannot be taken into account.
What in this legislation would allow for that, in your opinion, or not? And if not, what needs to be changed? Professor Cunliffe?
Ms. Cunliffe: Thank you for the question, Senator Pate. In my view, the bill as presently drafted does not address that problem. That is the reason why I recommend an addition to subclause 696.6(5), in which the language I have proposed is:
the reliability, accuracy and fairness of evidence admitted, legal strategies adopted and arguments made in any previous process in relation to the finding or verdict.
I believe that the language I propose would allow the commission to consider a matter of the kind you describe.
I think there is a further challenge, which would have to be the subject of argument about the Court of Appeal’s legitimate grounds of appeal, but I think that this at least opens the door to make the argument that on the whole of the evidence it now appears that a miscarriage of justice has arisen before the Court of Appeal.
Mr. LaForme: I couldn’t agree more. I don’t think it does speak to it. I don’t know, Mr. Roach, did we actually have any consultation on that?
Mr. Roach: We certainly heard from people such as Professor Campbell and others who said this is very much from the 2002 amendments, and hopefully we have kind of progressed by it, this idea that it’s an extraordinary remedy.
I would certainly hope that the commission, if not the CCRG, would be flexible about this, especially given that they can consider any other factor that it considers relevant and thinking about the challenges that certain populations face in obtaining remedies, which would also include Indigenous women, Black women and women in general. I would hope that the commission could see its way through, but certainly, it could be clearer.
Mr. LaForme: It could be, and I would say the same thing. I would hope that when you read legislation like this that you would just take it upon yourself to interpret it the way that is best for the people it’s trying to address and be responsible to, namely the wrongfully convicted.
Senator Pate: I’m speaking specifically about — you all know examples because we have individually and collectively talked about them in the past, where excellent defence counsel, often male, may not have an understanding of the lived context of a woman in an abusive relationship or an Indigenous woman who may not be comfortable raising concern.
In your humble opinion, would these provisions allow for that interpretation as well? How do we get at making sure that those who are presenting these cases actually have an awareness of these issues?
Mr. LaForme: I think you would have to have an awareness of it, and I think you would have to interpret the legislation as allowing you to do that. It certainly doesn’t address specifically the question that you’re asking. It doesn’t. Somebody who wants to strictly interpret it could simply disregard it, I agree.
Professor Cunliffe, I think your suggestion is probably the best.
Ms. Cunliffe: Thank you, Justice LaForme.
Mr. Roach: I would just briefly add, Senator Pate — and we didn’t get into this because, as I said, we’re not arguing that all of our recommendations have to be in. But if you look at our recommendations, the second hurdle here is even if the commission can see that this is a new matter of significance, we have 13 different courts of appeal that may say “no” when it comes to the test for new evidence.
One of the things that we didn’t even mention, but was obviously taken off the table sometime during the drafting of the legislation, was if the commission introduces or is moved by new matters that it thinks are important, the court of appeal should at least consider that while consistent with judicial independence, deciding what weight to accord to the new evidence.
So as Bill C-40 is drafted, you could have a situation that has happened in England where the commission says, “We’re convinced this new evidence means a miscarriage of justice may have occurred.” Then it goes to a court of appeal, which could say, “We don’t want to consider it. We don’t think that new evidence qualifies under our evidentiary rules for new evidence.”
I think that’s just another example of some unnecessary problems that have been created by perhaps a lack of vigour and imagination when drafting this bill.
The Chair: Thank you all very much. That concludes our round of questioning. There isn’t time for a second round.
Justice LaForme, at one point, Senator Carignan was asking a question of you in French, and we think you may not have gotten the translation. This was earlier on in the discussion. I’m going to invite Senator Carignan to return to that question, and invite you to provide a brief answer.
[Translation]
Senator Carignan: The question was about the Court Martial. Bill C-40 contains no recourse for a miscarriage of justice when the Court Martial or Court Martial Appeal Court hands down a decision relating to criminal law for a member of the armed forces. We looked in Bill C-66, which is currently before the House of Commons and will reform military justice. There’s no recourse in Bill C-66 to review a miscarriage of justice.
Don’t you think that introduces inequity for members of the armed forces in the justice system? Shouldn’t the military justice system provide for reviews in the case of a miscarriage of justice?
[English]
Mr. LaForme: I’m going to give you a generic answer here. Whenever anybody is convicted of anything wrong, if there is a wrongful conviction in a criminal context or even if there is a wrongful disciplinary action given in another setting like the military, I think there should always be recourse for us to be able to examine the decision. I don’t think our justice system, whether it’s military or our current criminal justice system, can take the position that we’re always correct and we’re never wrong. We are wrong. We’re wrong a lot. I think we should admit that. Whether it’s in the military or in the criminal courts, we should acknowledge that, and we should have something in place to be able to examine it. That’s my generic answer to it.
Whether it can be done under this legislation, I think it possibly can, but I think you have to have a commission or a commissioner who drives the process and says any other statute, for example, can take it into consideration.
The possibility is there, but as I said at the beginning, we’re going to be lucky if this commission gets the right budget and the right-thinking people behind it. It can work, but I think we’re going to be lucky if it does in its current form.
The Chair: Thank you both. Colleagues, that will bring us to the end of this first session of our consideration of the bill.
I want to extend thanks on behalf of all of the committee to Justice LaForme and Professor Kent Roach for coming and spending time with us. It’s nice to see you back here, Professor Roach you’re something of a regular. Professor Cunliffe, thank you very much for your presence by video conference. Particularly, given the commitment you made, Mr. Wiberg, thank you for coming and being in person and sharing your perspectives. To all of you, thank you for engaging the committee as richly as you have in a somewhat disciplined time frame.
For our second panel, we are pleased to welcome from Innocence Canada, James Lockyer, distinguished lawyer and Director; from the Native Women’s Association of Canada, Amy Sock, member of the Board of Directors who is joining us by video conference. Welcome, Ms. Sock. And as an individual, Tamara Levy, Director of the Innocence Project at the University of British Columbia, who is also joining us by video conference.
I would like to welcome the three of you for joining us and speaking with us and entertaining our questions shortly. We’re going to begin with opening remarks from each of you, roughly five minutes each, beginning with Mr. Lockyer, who is present in the committee room.
The floor is yours, Mr. Lockyer.
James Lockyer, Director, Innocence Canada: Thank you for having me.
Bill C-40, the miscarriage of justice review commission act, is a massive milestone for the wrongly convicted, and if David Milgaard and his mother, Joyce, were still with us, they would be urging you to support this legislation. I feel I’m a poor substitute in doing it for them.
I shared the podium with Joyce Milgaard as long ago as 2000 before the House of Commons Standing Committee on Justice and Human Rights when amendments to enhance the ministerial review system were before the House, and we both urged then that the ministerial review system be abandoned and in its place a new commission legislated to address all claims of wrongful convictions.
Of course, for Joyce Milgaard, it was very personal. The ministerial review process failed her son, David, and it was only thanks to former prime minister Brian Mulroney that David Milgaard was able to show how another person and not he had murdered nurse Gail Miller on the streets of Saskatoon in 1969.
But Joyce Milgaard and I failed to convince the House of Commons Justice Committee, and here I am 24 years later having another crack at it.
In February of 2020, I had the privilege of being with David Milgaard when he met Minister David Lametti. Minister Lametti was clearly moved by meeting, Mr. Milgaard. He asked him to sign the LP album cover of the Tragically Hip with the song “Wheat Kings” on it, which is, of course, about David’s case. Gord Downie said the song was inspired by:
. . . David Milgaard and his faith in himself. And about his mother, Joyce, and her absolute faith in her son’s innocence.
Mr. Lametti has since been quoted as saying it was this meeting with David Milgaard that inspired him to put Bill C-40 before Parliament.
Bill C-40 is the Milgaards’ legacy. I know it is as dear to David Lametti and the present justice minister, Minister Arif Virani. It needs to be passed, and it needs to be passed now. It’s not perfect — few things in life are. I can tell you a number of things that I believe would improve it, but that’s for another day. Once the miscarriage of justice review commission has been in operation for a while, we can all come back and talk about how it can be made better.
Innocence Canada also urges that once enacted, the commissioners be appointed as soon as possible. For now, let’s bring the commission into being. In my opinion, it will be the most significant change in our criminal justice system since the coming of the Charter of Rights and Freedoms in 1984. An election may or may not be coming soon, we don’t know, but I know that if Bill C-40 doesn’t get enacted in this Parliament, it will be another 24 years before I’m back here once more urging that a Bill C-40 equivalent be passed.
I believe that if David Milgaard were with us today, he would be saying to you, “Get it done now; no amendments. I spent 23 years in prison for a murder someone else committed. It was twenty-eight years before DNA proved once and for all that I wasn’t the person who did it, that someone else did. Those in prison for crimes they did not commit should not have to wait any longer, like I had to. They need help now.”
After all, what are we repealing? We’re repealing a ministerial review process that comes from 19th-century British law, for heaven’s sake. And has already been commented in the earlier panel, since 1967, we’ve had 35 ministerial references. In the U.K., since the enactment of their Criminal Cases Review Commission, they’ve had 747 references. That’s an astonishing contrast between the two systems.
This committee last week heard the moving stories of Guy Paul Morin, Brian Anderson and Clarence Woodhouse. Between them, they waited more than 100 years for justice. It’s important that we all understand that if there had been a miscarriage of justice commission 50 years ago, it would have saved them decades of their lives.
I urge you all to listen to them, to remember what they said and acknowledge that our criminal justice system is human and therefore fallible and needs a back-end system to protect the wrongly convicted.
The new commission needs to take over responsibility from the minister of identifying wrongful convictions and remedying them, and, of course, Innocence Canada will do all it can to assist that new commission in its work.
Thank you.
The Chair: Thank you, Mr. Lockyer.
Ms. Sock.
Amy Sock, Board of Directors, The Native Women’s Association of Canada: Hello everyone. It’s been a pleasure just hearing what each of you has to say about this proposed bill.
As a First Nation woman and a non-practising lawyer, I got called to the bar in 1998, and right away, I wanted to do criminal defence work, so that’s what I did for seven years. I had Legal Aid do an assessment of my work for one year, and I have 615 Indigenous clients from east to northern New Brunswick.
Just hearing you discuss this so openly and so much in favour of First Nations people and also Black people, I really admire each and every one of you for all the work that you’re doing.
I agree with the speaker who said that they think it will be a success if we can get the right commissioners in. I have no doubt you will find a lot of good candidates. Just in my own Mi’kma’ki community — that’s where I am now, at our old school in Elsipogtog, Mi’kmaq community — we have six lawyers in our community. Our population is 4,000, and they’re all women lawyers. I also know a dozen more lawyers across Canada who are female. It would be remarkable if we could get some of these women into these roles, because it’s important to understand our point of view as well. Being born and brought up in my community, I can see a lot of gaps between the legal system and the First Nations people.
I’m just going to go over a couple of things from my written statement that I handed to the senators. I’m not going to take up a lot of your time reading the whole thing, just the main parts. Now I’m not speaking as Amy Sock, I’m speaking as the Treasurer of the Native Women’s Association of Canada. I’m on the executive council, and this is just by happenstance that I was asked to talk to you today.
The Canadian criminal justice system needs to be reformed to remedy the social and economic effects of colonialism. Efforts to address inequalities in the criminal justice system should prioritize community-based alternatives to incarceration and ensure justice is carried out properly.
As discussed during the second reading at the Senate, it is imperative to establish a commission with the autonomy to truly investigate miscarriages of justice. It is essential to address the shortcomings of Bill C-40 to prevent it from perpetuating systemic bias based on gender, race and colonial history.
As highlighted in the National Inquiry into the Missing and Murdered Indigenous Women and Girls, it is the government’s legal obligation, not a policy choice, to rectify the provisions in the Criminal Code that infringe upon the rights of Indigenous women. It is imperative to stop the persistent violations of Indigenous women’s rights.
Lastly, the independent commission must be equipped with all necessary resources to facilitate informed decisions on retrials. Failing to provide adequate resources will result in further inequalities and injustices within our criminal justice system and another failed system.
Thank you so much for listening to me.
The Chair: Thank you very much, Ms. Sock.
Tamara Levy, Director, Innocence Project, University of British Columbia, as an individual: Thank you, chair and senators, for inviting me here today. Like Professor Cunliffe, I’m also speaking to you from the traditional ancestral and unceded territories of the Musqueam people.
My brief comments today will address three concerns raised by the senators during these hearings; exhausting appeals, case review timelines, and third, the interpretation of a new matter of significance which has been touched on today.
I want to begin with concerns raised that by not requiring applicants to exhaust appeals, they will use the commission as an alternative appellate process. I offer you the following two observations: One, considerations under new subclause 696.4(4) will prevent frivolous applications; two, the regular appellate process would be the quicker route, therefore only applicants who need the investigative support of the commission will choose this path.
Beginning with point one, subclause 696.4(4) includes several safeguards to prevent the commission from being inundated with applications it considers time since appeal. For context, the Innocence Project has three cases involving individuals who did not appeal. In all of them, over 15 years have passed since the conviction. In one case, almost 40 years has passed. And in two of these cases, their sentences were completed before they sought help.
Second, the reasons for the delay would be considered under subclauses (2) and (3), including a consideration of whether the regular appellate process would be the better route. For example, consider the cases in Senator Pate’s report and others involving Indigenous women who pled guilty as a direct or indirect result of abuse, or an Indigenous man affected by a newly diagnosed neurological disorder which contributed to his guilty plea, or an applicant with an intellectual disability which the police didn’t appreciate during his interrogation and likely led to a false confession. These are all unique situations arising in real cases and provide some explanation for the lack of a timely appeal, but they each require investigation and advocacy.
Next, the commission will consider whether there is a new matter of significance which was not previously considered and requires investigation.
Finally, the case cannot involve a question of law alone, and the commission can consider any other relevant factor before accepting a case for review. The safeguards under this section will help the commission screen out baseless applications.
Turning to my second point, the commission process will inevitably be lengthier than the regular appellate process. It is anticipated the commission review process will be quicker than under the current regime, but it will not be a shortcut for people. The process of investigating innocent claims is lengthy. Reviewers must identify and request information from myriad parties, review and organize thousands of pages of documentation, find and retain experts, wait for their reports, draft an investigation report, which is generally extensive, and then wait for the minister to review the application and make a decision.
This lengthier commission review process will not be attractive to applicants who have not yet appealed. For those who already have clear evidence that a miscarriage of justice occurred, the regular appellate process will be the far quicker route. However, for those who need investigative support of the commission, the regular appeal process will not suffice.
Next, I’d like to respond to concerns about the possibility of placing specific timelines on the commission’s process. We would all like to see these cases be processed as quickly as possible, but it must be recognized that the casework often involves waiting on third parties — court registries, lawyers, government agencies, private investigators and experts.
Additionally, external time pressures can sometimes contribute to wrongful convictions so we should be cautious about placing similar pressure on the commission.
My final comment echoes Senator Pate’s concerns about the interpretation of a new matter of significance under subparagraph 696.4(4)(d). The language of the legislation is broad: a new matter of significance is one which has not been previously considered by the courts or previously considered by the Minister. Bill C-40 has not changed this language, therefore a new matter of significance should include relevant and reliable information that was in the file but was somehow missed.
It should also include new considerations of forensic evidence based on scientific developments, as well as changes in our understanding of human behaviour and culture. In the post-conviction review context, important evidence should not be dismissed on the basis that a lawyer might have been able to make the argument at the time of trial. Even effective counsel can miss facts, arguments, or information in the file. That oversight should not fall at the feet of the convicted individual.
If the information were not previously before the court, but there is now reason to examine it further, the commission should do so. The post-conviction review process should not be an exercise in laying blame, it should be about correcting injustice.
Perfect legislation would be difficult to achieve but Bill C-40 is a major improvement on the current system and, if implemented thoughtfully, will significantly improve access to justice for all Canadians who are fighting to prove they were wrongly convicted.
Thank you.
The Chair: Thank you, Ms. Levy. Four seconds over the five minutes. Thank you. We’re now going to have questions and dialogue with the witnesses who have joined us. We have a fairly lengthy list of senators as well, so I’m going to suggest five minutes each, but I’m also going to ask your indulgence if I bring the dialogue to an end after five minutes to ensure that others have an opportunity. I’m anticipating agreement with that and I’m going to invite Senator Arnot, the sponsor of the bill, to begin.
Senator Arnot: Thank you. First I have a question to Mr. Lockyer. Sir, do you have confidence that the wrongful conviction commission regime which is outlined in Bill C-40 has the tools to identify and address the underlying systemic issues revealed in the cases that you’ve been involved in, with which there are many, but the landmark cases of Guy Paul Morin, David Milgaard, Brian Anderson and Clarence Woodhouse.
Second question to Ms. Levy. Ms. Levy, do you see a role for the commission in supporting the external reviews or collaborations with academic institutions like your own at UBC Innocence to identify and address the underlying systemic issues demonstrated in the disaggregated data that commission will generate?
Mr. Lockyer: As has been said this afternoon, a whole lot depends on who the commissioners are. The way the legislation is set up, I’m pretty confident that we’re going to have good commissioners. They’re required to have expertise in the field of wrongful convictions. It’s required that attention be paid to the over-representation of Black and Indigenous people in jail. So I’m satisfied we will have good commissioners.
If we have good commissioners, then I’m equally satisfied that the commission would be able to address the kinds of miscarriages of justice that we are run into in our cases at Innocence Canada. They range from bad expert evidence to the reliance on erroneous eyewitness identification to reliance on false confessions just to take Brian Anderson and Clarence Woodhouse who were here last week, for example.
We now look at the Indigenous, particularly in our criminal justice system, differently from how we have in the past, and that is so important because, as we know, they are grossly overrepresented in our prison system. I might say that the present system under ministerial review has begun to do that already. Their recognition of the miscarriages of justice experienced by Brian Anderson and the Woodhouses is a good example of that. We have two other cases, those of the Quewezance sisters in Saskatchewan whose cases are before the minister, and we’re satisfied that whether it’s through a ministerial review process or the miscarriage of justice commission, if that comes in soon enough, that their convictions will be quashed as well.
So, yes, I’m confident the commission will be able to do what it’s meant to do.
Ms. Levy: Yes, there is room for collaboration, and collaboration is wonderful in these cases. We often work with Innocence Canada. We had a meeting yesterday of people across Canada doing this work. The short answer is yes, I see room for it.
The Chair: Thank you both.
Senator Batters: Thank you to all of you for being here and for all the important work you do to help so many of these people. Thank you.
My first question is for Mr. Lockyer. I hear what you’re saying about wanting to pass the bill as quickly as possible and to have it done as is, no amendments. I just wanted to reiterate that there is, of course, the possibility, especially given this is a government bill that seems to have great priority to the current and most recent justice minister, that in the event that there was a good amendment that the government could accept, they certainly can expedite things in the House of Commons to make sure that a message from the Senate would receive proper dispatch.
On this issue, the LaForme commission report recommended that the commission be able to refer cases for a pardon or record suspension if that’s justified, but that provision was not included in the bill. Would you like to see that kind of provision in Bill C-40 ideally, Mr. Lockyer?
Mr. Lockyer: I think it would improve things a little bit, yes. I think there might be a bit of a temptation on the commission in a difficult case to, perhaps, dodge the bullet and not make a finding of a miscarriage of justice. That would concern me a bit. Those pardon provisions are already in the Criminal Code, but they are essentially defunct. They’re not used. They haven’t been used for, really, two or three decades, and I think they should be used. I don’t see why the commission couldn’t suggest that in any event. They wouldn’t have the power to enforce it, but if they suggest it, one would think they would be listened to.
Whilst I understand what you say that a proposed amendment could be shepherded quickly through the House of Commons, I don’t want to take that risk. I really don’t. It is a risk. I’m here 24 years after I was here last, with the same advocacy. I’m kind of scared of taking risks now.
Senator Batters: I guess that’s part of you making this plea to the government. If there is a good amendment that can actually improve the bill and I view my job as critic of the bill —
Mr. Lockyer: I would be screaming blue murder if there were an amendment for the government to get on with it, yes, but I rather not do that.
Senator Batters: I’m wondering, Mr. Lockyer, in your capacity with Innocence Canada, has Innocence Canada estimated the number of cases that might rise once Bill C-40 is in force, and how would you assess that kind of forecast?
Mr. Lockyer: You can only judge it by what has happened in other jurisdictions that have brought in a criminal case review commission. They now in exist in England, Wales and Northern Ireland. That’s one commission. In Scotland, there is another commission. New Zealand brought it in two or three years now, and Norway has a commission.
I don’t want to scare you, but you’ve asked me an honest question and I’m going to give you an honest answer. I would anticipate in the first year, there will be more than 100 applications. I would expect the commission to advertise its existence in the penitentiaries particularly and in the provincial jails perhaps as well, and that would lead to a large number of applications, far more than there are ministerial review applications. But that’s one of the problems with the ministerial review system; people don’t trust it, so they don’t bring applications for ministerial review. There are very few brought, let alone very few allowed.
The new commission would undoubtedly increase the numbers, increase them substantially, but the other commissions have dealt with that. As the years pass, the number of applications is reduced, they lessen, and the commissions have been able to cope when you look at the other jurisdictions.
Senator Batters: Perhaps an answer will need to wait, but Bill C-40 mandates that the timeline for the commission to handle wrongful conviction review applications is “as expeditiously as possible.” It does not define the term or provide any parameters for what that actually means. Given the severity of what we’re hearing about here and what we’re dealing with, are you concerned about leaving it so open-ended, just “as expeditiously as possible”? When I ask the Justice Canada officials about this, they really didn’t provide anything that comforted us on this. To properly protect the wrongfully convicted, especially considering the decades of pain that some may have endured, would you like to see some parameters for that phrase included in Bill C-40 or perhaps in the regulations?
Mr. Lockyer: In other legislation which is similar to this in other jurisdictions, some have required that there be a report made to the applicant every six months, say. I think if that was here, it would be an improvement. Again, that’s not something that I think should hold up the enactment of the bill. It would be an improvement. As Professor Levy says, I don’t think you can put a time limit on a settlement or decision on an application. Some would take years, but I don’t think a commission would take as long as the ministerial review process has tended to take.
At Innocence Canada we worked out the average of how long an application to the minister takes when it’s successful, and the average wait time is approximately 4.1 years. We don’t think a commission would take that long. We certainly hope it wouldn’t take that long as an average. Certainly, in some exceptional cases, I could see that being an outer limit, but I don’t think an outer limit in the legislation would be helpful.
Senator Dalphond: Thank you to the members of the panel. My question is for you, Mr. Lockyer. This is a question about how this applies to not only the Criminal Code but also every federal legislation and how there are some issues about a court martial and court martial wrongful convictions. Innocence Canada has been involved since the Guy Paul Morin case. That’s the first case you had. It’s been about 40 or 50 years since. How many cases were from court martial condemnations where people went and knocked on your door to call for a miscarriage of justice?
Mr. Lockyer: We’ve never had an application on a court martial conviction that I’m aware of, and I think I would be aware of it if we were. That’s my answer, I suppose.
Senator Dalphond: How many applications —
Mr. Lockyer: I’m sorry. Say again?
Senator Dalphond: Compared to how many applications that you get?
Mr. Lockyer: Over the years, how many applications have we had? I’ve never counted, but 250 over the years. We still have outstanding probably 80 or 90. I don’t know the exact number at the moment.
I think it’s not a cause to hold up the legislation. I must say, in my reading of the legislation, I would suggest that, in fact, it does cover a court martial because it deals with a person found guilty of an offence under an act of Parliament. A person found guilty at a court martial hearing would have been found guilty of an offence under an act of Parliament, namely the Criminal Code. The court martial court tries offences under the Criminal Code. That’s perhaps an academic argument and something that we may one day have to deal with when this is enacted.
Senator Dalphond: My second question to you is about the two-step process. Under the current system, not many files will go to investigation; they will shut down before that. The burden is so high that nobody can meet it.
Under this new process, some people are worried about the fact that the commission doesn’t have to go to the second step; it may go to the investigation step. Is that a source of concern for you?
Mr. Lockyer: Again, if we have good commissioners, no, it’s not a concern to me. In the current system, the people who do the work for the minister are reluctant to allow it to find it got through the first stage, if only because that gives the person the right to bring a bail application for release pending the minister’s ultimate decision.
In my experience — and I think there is only one case where I would be wrong in this — once the minister has found that there may have been a miscarriage of justice and sends it on to stage two, there has only been one case where the minister rejected the application. It’s a high hurdle, that first stage.
I think the first stage is a good idea. It gives an opportunity to weed out all meritorious applications quickly. The subject of the application still has a chance for a second go, so to speak, under the legislation to convince the commission that they are wrong and, in fact, they should move it up to the next level.
I’m comfortable with the way it’s worded and the system as it is set up. I’m particularly comfortable with the new standard for making a reference. It’s a lesser standard than the one that the minister presently acts under. I have always thought the standard that the minister presently acts under is higher than the standard that would then be considered by an appellate court if the reference is made to an appeal court, which seems sort of back to front to me. The minister’s power should be to make a reference on a much lesser standard of proof than a Court of Appeal that would subsequently rule. The way this commission is set up, that would not be the case.
Senator Dalphond: Thank you.
Senator Prosper: Thank you to the witnesses. Mr. Lockyer, thank you for your service and commitment throughout the years. It was a real awakening when you started listing years in terms of your advocacy and service.
As I understand your testimony within your opening statements, they go along the lines that there is nothing that should really derail the passing of this bill. It’s not perfect. Those improvements that need to be made, just like having something run for a bit, there is an opportunity to fix it later. That might be a really crude way of putting it, but that’s what I gained from your testimony earlier today.
I just want to go to Professor Levy and Ms. Sock to get your opinions on whether you have the same sentiments here, wherein it’s best to have this legislation go through. It’s not perfect. Certainly, there is room for improvement, but if there were a choice to amend the bill, would you suggest that this bill proceed and then make improvements later?
Ms. Sock: I’m so grateful for what you guys are saying. To me, this bill, if it passes, even though it’s not perfect, I still think it’s going to work. I really do.
If it’s not passed and we make amendments, that’s good too. That’s not going to hurt anybody. So either way, I’m just happy that the government is considering taking this leap of faith with us. Thank you.
Ms. Levy: Yes, I think that amendments can be made in the future. In the five-year review, when we have to look at how the commission operated, I think there will be lessons learned in those five years that may even inform some of the amendments.
We all have ideas about how it should work and how it could be improved, and those may play out over the years, but there may be other things that need to be improved as well. We’ll only see that as the commission process gets going.
[Translation]
Senator Oudar: Thank you for your testimony, Ms. Sock. I agree with what you said about the commission being a success “if we have good commissioners”. I’m glad that you have people in your community who would meet the criteria.
I took a close look at the makeup of the commission at sections 696.73 and 696.75 of the bill because the minister can in fact make recommendations for commissioner appointments, and the bill says the minister must seek to reflect diversity, which doesn’t mean much. In Quebec, within the organization I used to lead, to ensure parity, the minister selected people from a list submitted by the most representative associations in Quebec. There was a little less discretion that what appears in section 696.73.
When I read Justice LaForme’s report, which inspired this bill, my concern is that one thing the authors really emphasized was not to include a requirement of 10 years standing at the bar. Why? I myself can speak to an elevated risk of discriminatory bias in legislation when a 10-year requirement is imposed, because that excludes women and members of First Nations as well as people from marginalized groups. The report specifically mentions this, stating that one third of commissioners should be legally trained. I’ll quote the report:
…though we would not recommend a requirement of 10 years standing at the bar because it could be a potential barrier to the representation of disadvantaged groups among commissioners.
I was therefore disappointed to see that the bill includes this criterion and that it included the 10-year criterion, despite the recommendation against that. Would you please comment on that criterion, which I believe constitutes a discriminatory bias in the bill.
[English]
Ms. Sock: I’m not sure. I was called to the bar in 1998. I got my law degree in Ottawa, and I practised for 7.5 years straight. Then something tragic happened to me. So for five years, I was not working. I was in a dark place. I lost my son through suicide, and I just couldn’t do it.
So for five years, I mourned for him and then when I was done, and I said, “Okay Amy, it’s time for you to go back to the New Brunswick bar, and get your license reinstated.” I did that about four years ago, so I would have about 10 years of practice.
And I don’t know. It depends on the person. You can have a wealth of knowledge and be the perfect commissioner with five years’ experience, as long as you’re a First Nation person who can understand what another First Nation person may be going through. Thank you.
The Chair: Thank you.
[Translation]
Senator Oudar: Thank you, Ms. Sock. I wish to convey my sincere condolences for the loss of your son, and thank you for your answer.
[English]
Senator Pate: Thank you, Ms. Sock, I’m very sorry to hear about the loss of your son. I can only imagine how devastating that is. As an Indigenous woman, there are in your community I’m sure many other issues like that that you’re dealing with on an ongoing basis.
One of the reasons that we put together the 12 women report was something that you raised Mr. Lockyer, which was the lack of trust in the system that so many folks have. The fact that Indigenous women are one in two in the federal prison population underscores the fact that there are absolutely miscarriages of justice. But often they have not been understood by many groups. There has been a lack of trust in some of those groups as well that are trying to do this important work.
David Milgaard understood that. As you know, he was a big part of why you and Innocence Canada took on the issue of the Quewezance sisters and he wanted all of the 12 women to have their cases reviewed. We’ll work on that.
What are the measures that could be undertaken right now that would address some of those issues? What I see is a systemic lack of understanding as well at all levels, from police, to defence counsel, to prosecutors, to judges. Most recently, it was underscored in the Helen Naslund case, not an Indigenous woman. There wasn’t the overlay of racism as well. But certainly we continue to see the biases in the system. What else needs to happen?
What could you see us recommending that would try to ensure this doesn’t happen with this commission?
Mr. Lockyer: I’m going to address your question, Senator Pate, in the context of the commission, assuming it suddenly comes into being tomorrow. How can that help? What can it do for the excessive overpopulation of the Indigenous in our prisons?
I suppose the thing I would say is the day the commission comes into existence, the 12 cases that you documented in your report, which includes, of course, the Quewezance sisters that we are busy working on for Innocence Canada, you could bring an application on behalf of all of them straight away. It would be the commission’s responsibility to investigate the cases and to act proactively as opposed to reactively, which is how the present ministerial review system works. And hopefully that would get justice through a body that it is required must reflect, among other groups, the Indigenous. I think that would be a tremendous step forward.
I’m working, coincidentally, on the Quewezance sister’s case yesterday, today and indeed tomorrow. And it’s occurred to me that whilst I’m confident that they will be successful in the ministerial review system, I will be even more confident they would be successful in the system which had the new commission. That’s a way of appreciating how the new commission can be a giant step forward for Indigenous people, Black people and, indeed, for all the wrongly convicted.
Senator Pate: If there is time for Ms. Levy, and Ms. Sock, if you would like to add?
Ms. Levy: In terms of the new commission, I agree with James. I think those applications could start right away. I don’t even think they have to wait for the new commission in terms of putting everything together. I reviewed the report yesterday again, and there are definitely cases of concern in there.
But I think it’s really important what Professor Cunliffe talked about and you raised in terms of the definition and broad interpretation of new matters of significance, because those issues we have found in the past, when we have raised some of those within the current regime, they are not considered new matters. The lawyer could have raised it at the time, these were all facts that were known at the time. So it’s not a new matter of significance, and you know, when we have said that there is a broad new understanding of cultural and gender issues that need to be taken into account when you’re reviewing these cases, they have not interpreted that as a new matter.
So we need to frame those and then the commissioners and the staff need training and all of that must be considered when we go to the commission. But I think that they can be addressed right away.
In terms of prevention in the future, there has to be a tonne of more training. Some of it might need to be mandatory. It’s sometimes not very meaningful, the training in the legal profession, and it’s not always required. So, training, education, representation would be my answer.
The Chair: Thank you both.
Senator Simons: Mr. Lockyer, you had something provocative, to me anyway. If this system had been in place, Clarence Woodhouse would have been out of jail 50 years ago. This is my concern: That Clarence Woodhouse is precisely the kind of person who wouldn’t have been out of jail any sooner because he had no capacity to advocate for himself; no English language skills, no financial capacity to hire an advocate, even if that advocate isn’t a lawyer.
I am concerned that the people who may be the most vulnerable won’t be able to access the system because they won’t be able to know how to press the doorbell to get the door to open for them. I wonder if maybe you and Ms. Sock could speak to this. What needs to be done to make sure that prisoners who may have been subject to a prosecution gone wrong knows that the system is there for them?
I want to ask Mr. Lockyer first, but Ms. Sock, is your organization going to be working proactively with women in prison to let them know that this new system is out there for them?
Ms. Sock: Yes, we already have a program at the national office where a board member visits the female penitentiaries to talk to the female native population. We would be more than happy to let them know that this is going to happen in the places we go to.
I think we should start the commission right away. If there are things that we can do now rather than wait, I say we do them now. Thank you.
Senator Simons: Mr. Lockyer, I want to ask you, your group is called Innocence Project. Some people are not in fact innocent. They were just tried incorrectly, and they were errors in law that led to a conviction that should not have been sustained because the Crown didn’t make out its case.
As you see it, should people who were not necessarily innocent but who were wrongly convicted still be able to access a potential review of their cases under this system?
Mr. Lockyer: Definitely. Indeed, Bill C-40 specifically provides for that. It specifically says that an applicant does not have to establish innocence in order to get a remedy. That’s true, I might say, of the ministerial review system as well. In practice, they haven’t demanded proof of innocence. Proving innocence can sometimes be a literal impossibility, so it shouldn’t require proof of innocence, of course; it should require proof of a miscarriage of justice. That is how Bill C-40 phrases it. That’s how the ministerial review process works at present, as well.
[Translation]
Senator Aucoin: My question is for Mr. Lockyer. I’m taking into account your comments about needing to set up a commission as soon as possible. However, with respect to the number of commissioners and the criteria that aren’t well defined in the legislation, do you think the number of commissioners is sufficient to address the number of applications expected in the first year? Do you trust the justice system and the minister to appoint bilingual people, Black and Indigenous people, and people from other groups that are wrongly incarcerated? I’d like your comments on that. Congratulations on the work you’re doing.
[English]
Mr. Lockyer: Thank you.
Regarding the first question, as to whether the number of commissioners is sufficient, the legislation provides for anywhere between four and eight commissioners. Do I think eight is enough? Probably not. That may, indeed, be the first proposed amendment: that they increase that number, but we’ll see. With the number that we can anticipate at the beginning, I think you would certainly need some ad hoc members as well — in other words, some short-term members — to increase that number to be able to address cases with the necessary speed in which they need to be addressed.
In terms of whether I trust the Governor-in-Council and the minister who will be responsible for appointing the commissioners? That’s a very difficult question for me to answer, but I will say this: I am confident that the present minister, Minister Virani, is very much devoted to this bill. He believes in it, and if he does believe in it, as I think he does, then he is almost bound to appoint commissioners who will do a good job.
Can I say that for the next minister or the next government? I hope I can. You have to have some confidence in the system. There may well be appointments I won’t agree with. There will undoubtedly be appointments I do agree with. But the criteria that are set out in Bill C-40 go a long way to ensuring that the commissioners who are chosen will fit the bill, so to speak.
There is the requirement that they have knowledge in the field. If you have knowledge in the field of wrongful convictions, you are bound to have some understanding of how people can be wrongly convicted and how the system can make a mess of a case. If you are engaged or appointed because you are either Black, Indigenous or have a good understanding of the problems they face in the criminal justice system, as the legislation says, again, you should be a good commissioner.
So yes, I have confidence in the commissioners who are going to be appointed, if this bill comes into force.
Senator Aucoin: Thank you.
Senator Clement: Thank you to the witnesses for your testimony, as well as for your careers and your work.
I want to pick up where Mr. Lockyer left off talking about the trust in the system. Many communities don’t trust the system due to over-representation.
Ms. Sock, I’ll start with you. First, thank you. I want to acknowledge you reading your lived experience into the testimony today. You raised three points, and the third thing you said was that this needs to be properly resourced for it to work. If it isn’t resourced, that will create further injustice.
I wonder if you could lean into that. The concern I have is not with this current Minister of Justice. I agree with Mr. Lockyer: I think he feels he has spoken about the budget assigned to it, but what about the next minister and the next minister after them?
Ms. Sock, what could go wrong if it’s not properly resourced?
Ms. Sock: A lot of things can go wrong. The commission can just fail by being discouraged by the government, being slow or not being taken seriously.
But I have to have trust and faith in the justice system. I really do. My dad is a retired RCMP officer, and I’m a criminal lawyer. I have always been a rebellious child.
So I have to have trust. If I don’t, then it’s hopeless. I don’t want to be in that position anymore. We need hope and trust. Thank you.
Senator Clement: I understand that. It means we all have to work to make sure this continues.
I have a second question, if I may, about the factors that the commission must take into account in making a decision. There is a list that is not exhaustive, but it talks about taking into consideration the personal circumstances of the applicant and the distinct challenges that applicants who belong to certain populations face. It doesn’t say, though, how the commission is to take those things into consideration. It lists things, and it says it must take it into consideration, but how do communities that don’t have as much trust or faith understand how those things have been taken into consideration?
Do any of you have comment on that?
Mr. Lockyer: Sure. You’re looking at me.
Senator Clement: I am to start, sure. You are in the room.
Mr. Lockyer: Indeed. Sure, I’ll comment on that.
There is a big onus on the commission to sell itself once it comes into being. There isn’t trust in the present system because the present system is run by the Minister of Justice, and the Minister of Justice is never going to give confidence to an applicant who is essentially saying to the Minister of Justice that they have been convicted, it’s an unjust conviction and they have been convicted as a result of that minister’s justice system.
That doesn’t cause confidence in the applicant, whereas an independent commission is a different story. They have had nothing to do with what has gone wrong to date.
So I think they can sell themselves, both directly and through their staff. As there has been in other jurisdictions, there will be a substantial publicity about the work they do, the results they come to and about the cases. Even as they wind their way through the commission, there will be substantial public interest in many of the cases.
It’s going to take a bit of time, but as time goes by, I think there will be more and more a public trust in the system. But as I said, the commission can sell itself. I think that’s very much going to be a part of the job.
Ms. Levy: I think the commission will initially have work to do, as Mr. Lockyer said, in selling itself and doing outreach, going into communities and prisons, and doing more learning. The commissioners are going to be knowledgeable in the area of wrongful convictions and have some experience, but I think there is always learning to be done. In the initial stages, it will do that work, including its staff. There has been talk about the number of commissioners. Just as important is going to be the number of staff lawyers that work for the commission, because depending on how it’s structured, they will be the ones doing a lot of the work.
Senator Senior: Thank you to the witnesses for being here. When the TRC was established, I took the time to attend a couple of the gatherings and, to me, there was a great trust in the room. I think that trust had to do with the people who were on the commission and the credibility that they had built up.
In 1992, I participated in the work of another body that was established to look at the impact of racism and the criminal justice system that was led by the great Stephen Lewis. Even though it was looking specifically at the Black community, he had built up enough credibility on the issues he addressed that had me, as a Black person trust him even though there were complaints that the person leading the body wasn’t a Black person. I’m digging down a little bit further on this issue of trust and some of the elements that actually create trust so that it’s not something that has to take so much time to build but would be established as much as possible from the beginning.
I wanted to hear Ms. Sock’s comments on this, actually, because I really appreciate that you are representing the Native Women’s Association of Canada, an organization that I have a lot of respect for, and their involvement in supporting what this commission would do, to have your input on the actual makeup of the commission and the commissioners and some of the important aspects of who would be on this commission that would engender that kind of trust.
Ms. Sock: Do the senators rely on the MPs? Because I know of a Mi’kmaq senator, he is from P.E.I. I know a MP from Eskasoni, his name is Jaime Battiste. Can you collaborate with the native people that you have working in Ottawa to see how the commissioners can be picked in the right way? I think we have to rely on the people that we have in Ottawa. Thank you.
The Chair: Colleagues, that concludes our round of questioning and discussion with our witnesses. We have asked them to stay — without them knowing, perhaps — a bit longer to engage with us. We asked them without their knowing, I guess.
More seriously, I want to take a moment to thank each of the three of you who have joined us and made this commitment with your time and expertise to enable us to understand this bill a little bit better. As you all appreciate, we are studying an important piece of legislation in this exercise, and it’s been a real pleasure for us to have been able to speak and discuss the bill with you this afternoon. I also want to thank you for your slightly extra time that you have devoted to us.
We will be continuing our study of this bill tomorrow. Colleagues, want to also extend my thanks to you and the staff that support us even when we push them beyond the fair limits of their work. We will pick things up again tomorrow.
(The committee adjourned.)