THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 31, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:35 a.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 morning, honourable senators.
[English]
My name is Brent Cotter, and I am the chair of the committee. I’m a senator from Saskatchewan.
I’m going to invite my colleagues to introduce themselves, beginning on my left.
Senator Batters: Senator Denise Batters from Saskatchewan.
[Translation]
Senator Carignan: Kwe. Hello, Claude Carignan from Quebec.
Senator Oudar: Hello. Manuelle Oudar from Quebec. Welcome.
[English]
Senator Arnot: Hello. I’m Senator David Arnot from Saskatchewan.
Senator Simons: Paula Simons from Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. Welcome. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe Aki.
[Translation]
Senator Aucoin: Réjean Aucoin from Nova Scotia.
[English]
The Chair: Colleagues, 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), informally referred to as David and Joyce Milgaard’s Law.
For our first panel, we’re pleased to welcome, from the Canadian Bar Association, Tony Paisana, Executive Member of the Criminal Justice Section, who is joining us by video conference; and from the Criminal Lawyers’ Association, Jessica Zita, who is joining us in person and has made a meaningful effort to be here in person. We also welcome, from the Barreau du Québec, Catherine Claveau, President, who joins us by video conference; and Nicolas Le Grand Alary, a lawyer with the Secretariat of the Order and Legal Affairs, also by video conference.
Thank you for joining us.
We’ll begin with opening remarks from Mr. Paisana, followed by Ms. Zita and then Ms. Claveau — I think you will be speaking on behalf of you and your colleague — of roughly five minutes each, and then we will move to questions and discussion between you and the senators present.
The floor is yours, Mr. Paisana.
Tony Paisana, Executive Member, Criminal Justice Section, Canadian Bar Association: Thank you for the invitation to present the Canadian Bar Association’s views on Bill C-40.
The Canadian Bar Association, or CBA, is a national association of 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice, and it’s that aspect of our mandate that brings us to you today.
Personally, I am a supervising lawyer with the UBC Innocence Project, and I have worked on post-conviction review cases for over 10 years. I wish to express our clear support for the central aspects of Bill C-40.
For decades, lawyers and others have laboured under a slow and difficult-to-navigate system for post-conviction review. Bill C-40 represents a sea change in how post-conviction review work will be done in this country. This is a welcome change, one that we hope will mean miscarriages of justice will be rectified and, importantly, rectified more quickly.
The creation of an independent commission will improve the transparency and efficiency of post-conviction review. In addition, we support the new standard of review contained in Bill C-40. The existing standard — that is, “a reasonable basis to conclude that a miscarriage of justice likely occurred” — is cumbersome, difficult to apply and leaves many potential wrongful convictions outside the ambit of review. The new “reasonable grounds to conclude that a miscarriage of justice may have occurred” standard solves these issues and is a welcome development.
In addition, we applaud the federal government’s inclusion of posthumous cases in the commission’s mandate. Wrongful convictions affect not only the accused but their families, friends and wider community. Allowing the posthumous review provides an avenue for those affected by wrongful convictions to seek redress.
While, like any bill, Bill C-40 has room for improvement, the CBA sees it as imperative that this bill be passed as soon as feasible. For decades, practitioners and exonerees have fought for this very reform. To see it lost at such a late stage of its development would be nothing short of a travesty. Those who work in post-conviction review know the current system is broken and the time has come for change.
That said, we will highlight one area for improvement for your consideration. The CBA supports the inclusion of a new “unsafe” ground of appeal in the Criminal Code. The most important and immediate step to rectifying wrongful convictions exists at the Court of Appeal level. Indeed, for the vast majority of accused persons, it is the forum of last resort. However, the Court of Appeal is a statutory court, meaning it is specifically constrained by the Criminal Code. Where the court is faced with a case that does not meet the exceptionally high threshold for an unreasonable verdict, they cannot intervene, even if a lurking doubt exists as to the accused person’s guilt.
Unsurprisingly, given this language, many of Canada’s most infamous wrongful convictions were unsuccessfully appealed, sometimes more than once. Indeed, there is a strange history of some of Canada’s leading appellate cases being connected to wrongful convictions.
The leading case on unreasonable verdict itself, R. v. Yebes, involved a murder conviction that was overturned nearly four decades later as a miscarriage of justice. One of the leading decisions on confronting a hostile witness is Milgaard, involving the namesake of this very legislation. In that appeal in 1971, the Saskatchewan Court of Appeal stated:
In my opinion the jury, in finding the appellant guilty, applied the proper principles of law to the evidence before them, and on such evidence could properly find, the appellant guilty . . . .
As you can see, so long as the verdict could properly be supported, it must stand, even if a doubt exists at the Court of Appeal.
There’s a duty to prevent wrongful convictions at every stage of the process, including specifically on appeal, and changing the Criminal Code to add an unsafe verdict ground of appeal would address this issue.
Thank you, chair.
The Chair: Thank you very much.
Ms. Zita?
Jessica Zita, Member, Criminal Lawyers’ Association: Thank you for inviting the Criminal Lawyers’ Association, or CLA, to address you on Bill C-40. It was important for me to be here in person today.
The CLA represents nearly 2,000 criminal defence lawyers across every province and territory who are on the front lines of defending accused persons daily. I was called to the Ontario bar in 2017, but my membership in the CLA predates that. I’ve been a member since I was a law student.
I’m uniquely positioned to speak to you about this bill today, both as a long-standing member of the CLA and also because since 2020, I’ve had the privilege of working closely alongside James Lockyer. I recall clearly when he was participating in round-table discussions in contemplation of this bill. Our offices at that time shared a wall, and I would often discreetly listen to his contributions. To be here now before you at this stage of the bill’s life and to be speaking of its importance — to say it’s an honour does not quite cover it.
Another result of being in James’s presence is that I’m regularly exposed to the broad-spanning impact of wrongful convictions. I hear from the victims of these cases and their loved ones regularly. Their calls flood our office. I wish we could help them all — and we try; we really do — but the amount of resources and time required for these important cases are hard to manage when also running a busy private practice.
We’ve seen the outcome of that with how few applications have made their way to the minister’s desk through the current review process. There is a critical need for this commission in Canada. The commission offers accessibility never before had with the current system.
To me, this commission is for the David Milgaard who does not have a Joyce, the Milgaard without a voice. I didn’t intend that to rhyme, but it worked out that way. There are many more of those individuals out there than we wish to imagine — those who gave up, who are alone, who swallowed their convictions and went on to live in darkness or worse for something they did not do.
Joyce Hayman was one example. She was found guilty after trial of administering cocaine to her son. She abandoned her conviction appeal, as she ran out of funds. She lived in obscurity for years, simply accepting her fate, having no contact with her child.
An independent review came of the Motherisk clinic, the same clinic that tested Joyce’s son. The review revealed serious deficiencies in the methods used by the clinic and the reliability of their results. It so happened that a reporter following the Motherisk inquiry linked Joyce to it. I should say Joyce was exonerated, finally, by the Court of Appeal for Ontario in 2021.
Maria Shepherd is another example. She pleaded guilty to manslaughter and was offered what many would think was the deal of a lifetime, but she had no idea of the wrongs that Charles Smith was committing at that time. How helpless could one be, knowing she did not do anything to kill her stepdaughter while up against the province’s expert? With no resources, how do you fight that? The truth is you can’t. So when faced with a lifetime of parole or a quick exit, she took the latter, as so many have and continue to do.
It wasn’t until the review into his work that her file was flagged, and she was contacted. If not for that, it is very possible that Maria would have continued to live a life with a horrendous title she did not deserve.
The plight of women in the criminal justice system is something that I care deeply about. Many of the women I know of who have been exonerated have had their cases plucked from obscurity, their cases not captured by ministerial review. These women were failed by our justice system, and as a criminal defence lawyer, that’s my worst fear: my being complicit in a wrongful conviction, someone taking the deal because the fight is too painful, because they don’t have the resources or because they’ve given up.
We must consider the everyday realities of criminal practice: the false confessions and the invalid guilty pleas. These things happen more than many of us would like to believe. We should also keep in mind the lawyers who have ineffectively represented their clients.
We must consider the faith that these individuals lose in our system. To apply to the government — in their minds, the same government that pushed for their conviction — is tough, triggering logic to swallow. That is the importance of this commission — its objectivity and its independence — and I can tell you as someone who is in the trenches of criminal defence work, who is also exposed to the realities of the wrongly convicted, that our country needs this.
David Milgaard wanted the wisdom of exonerees to be reflected in the composition of the commission, and we agree wholeheartedly. There are invaluable lessons to be learned and shared by exonerees. The majority should be legally trained, but, more importantly, the commission should be staffed by individuals alive to these issues and who have a demonstrated interest in justice.
There are, I think, roughly 100 known wrongful conviction cases, according to the national registry, but I can guarantee that there are many more waiting to be discovered. Even worse, there are many, many more already forgotten.
To echo the sentiments expressed to you yesterday by Mr. Lockyer, Canada needs this now. To deny that is to ignore all of the systemic failings that have brought us to this point.
Thank you.
The Chair: Thank you, Ms. Zita.
Ms. Claveau?
[Translation]
Ms. Catherine Claveau, President of the Quebec Bar, Barreau du Québec: Mr. Chair, honourable senators, I am Catherine Claveau, President of the Quebec Bar. With me is Nicolas Le Grand Alary, lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec.
Thank you for inviting the Barreau du Québec to appear with respect to Bill C-40.
Let me say first that the Barreau du Québec supports the bill’s objective. Based on our experience in the administration of criminal justice, we would nonetheless like to offer some comments to improve it.
Primarily, we would like the new processes established by the bill to achieve their objective of correcting miscarriages of justice in a way that is both efficient and effective. The Barreau du Québec is therefore in favour of the creation of an independent miscarriage of justice review commission to replace the current ministerial review process, and has in fact been calling for this for more than 20 years.
Further, the bill provides that, 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 in relation to an application.
The current wording of the bill provides that the commission “may” conduct an investigation. Practically speaking, it would not be required to do so.
The Barreau du Québec suggests that clause 696.5 of the Criminal Code be amended to provide that the commission “must” conduct an investigation when there are reasonable grounds to believe that a miscarriage of justice may have occurred, which would achieve the bill’s objective of facilitating and accelerating the review of cases of individuals who may have been wrongfully convicted.
At the same time, the bill provides that, when the commission sends a notice that no investigation will be conducted, the notice must also stipulate a reasonable period within which the applicant and the Attorney General may provide further information to the commission in relation to the application.
In the interest of procedural fairness, we recommend that the notice must include the reasons for which the commission has decided not to investigate.
That is because applicants need to know the weaknesses in their application in order to be able to make change and address the problems raised by the commission in its review of the file.
The Barreau du Québec also suggests replacing the reasonable period for providing additional information with a specific time period that is set out in the act in order to give applicants a set period within which to respond to decisions by the commission.
Le Barreau du Québec also questions the appropriateness of using the criterion of the interests of justice to justify a remedy. We are concerned that that criterion could place certain applicants at a disadvantage, specifically Indigenous and Black applicants and other marginalized applicants. At the same time, applicants who are found guilty of serious crimes or whom the public simply consider to be dangerous would not be able to obtain justice, even if there had been a miscarriage of justice. The Barreau du Québec is of the opinion that the criterion of the interests of justice should actually be available to applicants as an additional ground when the commission does not conclude that there may have been a miscarriage of justice, but that the circumstances warrant a remedy.
Under transitional provisions, the bill provides that if an application was made under the current scheme and no decision has been made, the minister must give the applicant the opportunity to consent to the application being transferred to the commission and processed by it under the new scheme. It can be difficult for the applicant to decide whether or not to transfer their file to the commission. While the burden of proof is greater, the current process could be quite far advanced and transferring the file to the commission could considerably delay the processing time, especially if the process has to be started over again. The Barreau du Québec therefore suggests that the bill allow applicants to continue with the former review process, conditional on the new criterion that 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….
Finally, we are concerned that no requirement is stated for the commissioners to understand both official languages. The Barreau du Québec is of the opinion that adequate service must be offered to the parties and that the commissioners must be bilingual.
Those are the main issues that the Barreau du Québec wanted to discuss with you during your consultations on Bill C-40. Our brief includes additional comments. We will be pleased to answer your questions.
[English]
The Chair: Thank you very much, Ms. Claveau. We’re going to turn to questions, beginning with Senator Arnot, the sponsor of the bill in the Senate, followed by Senator Batters, the deputy chair of our committee and the critic of the bill.
Senator Arnot: I have one question for Ms. Zita and one question for Ms. Claveau.
Ms. Zita, do you have confidence that the commission in its current design in this bill is adequate? Do you feel from the perspective of applicants that this bill creates a better access to a fair process to address wrongful convictions?
Ms. Zita: I do. I think it’s adequate in the sense that it is an appropriate response to the current system that we have in place. It’s adequate in the sense that it offers far more transparency, and its objectivity and independence will, I think, promote confidence in those who wish to apply to it.
I think it was a point I made in my submissions; we have people in the system for decades, and it’s hard to trust the state at that point, and to know that your final recourse is not the Minister of Justice — it’s not government, in simple terms — but something that is at arm’s length from that, I think, will increase the number of applicants significantly. In short, to answer your question, senator, yes, I do think it is adequate in its current form.
Senator Arnot: Ms. Claveau, the commission, as it’s now designed, includes a number of non-lawyer commissioners to address diverse perspectives on the miscarriage of justice. Do you and your organization support that approach? Secondly, given your focus on transparency and accessibility within the Quebec bar, in the work that you’ve done and stand for, do you feel that the commission’s duty to publish their review process online every year is adequate, or do you think there should be more transparency measures that you might recommend to ensure the general public has a good understanding of how the process works?
[Translation]
Ms. Claveau: To answer your first question, we don’t have any negative comments about the possibility of a number of non‑lawyer commissioners sitting on the commission, as long as they’re competent individuals who are experts in the field. There are no concerns.
I’ll let my colleague Nicolas Le Grand Alary answer your second question.
Mr. Nicolas Le Grand Alary, Lawyer, Secretary of the Order and Legal Affairs, Barreau du Québec: As the president stated, when it comes to the commission’s makeup, we highlight and salute the proposed diversity to reflect the diversity of Canadian society, as well as gender equality and the over‑representation of certain groups in the criminal justice system. I think there’s a willingness to ensure a representative commission. It’s very positive.
In terms of measures, in our original brief, we had proposed allowing the commission to make recommendations to address systemic issues. That was added to the bill during consideration by the House of Commons. We’re in favour of any measure that will ensure transparency, follow-up on decisions and better communication of the commission’s decisions and recommendations.
[English]
Senator Arnot: Thank you.
Senator Batters: Thank you to all of you for being with us today, those of you online and, Ms. Zita, in person. I share the comments you made earlier about how humbling it is and what an honour it is to be a part of this process of something that has gone on for so long and by which so many people have been so dramatically affected throughout the decades.
I want to drill down a little bit. Being the critic, I’m trying to make this bill better. In your opening remarks today, you stated about commissioners, “The majority should be legally trained . . . .” Right now, Bill C-40 only requires one third of the commission to be legally trained, and Bill C-40 also requires that no more than one half of the commission be legally trained. In fact, given the quorum requirements, it’s possible that only one of the commission’s panellists for a particular matter will be a lawyer. Given that and in light of your statement today, would you agree that Bill C-40 should state that the commission must have at least 50% of its members having legal training?
Ms. Zita: When I answered this, I was speaking on behalf of the Criminal Lawyers’ Association. I stick to what I said in terms of the use of the word “majority.”
The way I see section 696 applications, you have to be well versed in criminal law to understand what you’re looking at. You need to understand the whole process inside and out. You also need to understand the parole process that is followed with this individual. That is the definition of legal training, and I think that the commission would be stronger to have those kinds of individuals at the helm of it.
That said, it is important as well to have, as David Milgaard said, exonerees, who are legally trained in a different way — maybe not formally, but in an equally important way. The way I see that, and perhaps this is my own colloquial take on it, it’s like being judged by a jury of your peers. You get an application, and sometimes we’re jaded, those who are legally trained. Sometimes community members see things in a clearer way. That mixture of the two, I think, will help make this commission that much stronger.
To answer your question simply, we do think it’s important that the commission be led by individuals who understand the subject matter with which they’re dealing.
Senator Batters: As you stated, on behalf of the Criminal Lawyers’ Association, the majority should be legally trained. Thank you.
My next question is for the Barreau du Québec. You were speaking about providing a different standard to be used for these wrongful conviction reviews, which is that of reasonable grounds. Right now, Bill C-40 has the new threshold to be considered stating that a judicial error simply “may have occurred,” and that lowers the criterion required to accept review requests.
In comparison, in the United Kingdom, they have the “real possibility” test, which is what they use as their criterion. They received about 32,000 requests between 1997 and 2024. Only about 900 of those were referred to court, and 580 convictions of that amount were overturned. There’s a significant difference in the threshold.
Given that under Bill C-40 there would be a limited number of commissioners — between four and eight, plus a chief commissioner — is that part of your rationale about the reasonable grounds? Are you concerned about the commission being adequately equipped to effectively manage the large volume of requests expected with a lower standard? And could you provide more rationale as to why you think using a reasonable grounds test as the standard would be better than what’s proposed in Bill C-40 of “may have occurred”?
[Translation]
Mr. Le Grand Alary: Indeed, in her opening remarks, Ms. Claveau referred to the transitional provision applicable to current applications and those made under the new scheme. We support the new criteria lowering the threshold. We’re convinced that there will be an increase in the number of applications, due to both the change in criteria and the passage of the bill with a new mechanism. It’s all part of a package. The commission must have reasonable means with which to follow up on applications and review them for applicants within the time period provided for or as soon as possible. If we want the bill to be implemented effectively, resources will be required to review applications. Indeed, an increase in applications is expected, partly as a result of the criteria but also because of the publicity surrounding the new commission. All those factors mean that appropriate resources will be needed to review applications.
Senator Batters: Thank you.
Senator Carignan: My question is for the Barreau du Québec.
Thank you for joining us. You are a constant presence. Your participation is always extremely relevant. You’re proud members of the Barreau du Québec whenever we hear you give evidence. Thank you.
I’d like your comments on the commission’s composition. It’s similar to the question that Senator Batters asked. However I’d like to know the position of the Barreau du Québec. I heard that one third of all commissioners must be lawyers with at least 10 years’ experience in the practice of criminal law, and that one half must not, if possible, be persons described in clause 696.75(2). Does that mean that they may be lawyers but without experience in criminal law? Does that mean that they don’t have to be lawyers? Did you look at that? I’d like your opinion. Should it be restricted to lawyers? When it comes to criminal law experience, some lawyers will include several areas of practice when they fill out the application. In other words, their experience won’t be solely in criminal law, which would make it difficult to apply all that. I’d like to hear your comments on that.
Ms. Claveau: Thank you for the question.
In terms of having 10 years’ experience in criminal law, it corresponds more or less to our criteria for the judiciary when new judges are recruited. You need a minimum of 10 years. It seems justified, in our opinion.
In reference to the other clause, those who aren’t in the first group could be, for example, criminologists or criminology experts. That’s who comes to mind.
I imagine that there will be a process to ensure individuals sitting on the commission will have the necessary and relevant expertise and experience to be a commissioner.
We don’t believe 100% have to be lawyers. I mentioned that earlier. We can compare it to other commissions in Quebec. For example, on our administrative tribunals, for social programs, there are often three commissioners. In our opinion, it’s important that it be chaired by a lawyer. It’s important that a lawyer lead the discussions. If they’re joined by other expert resources, there’s no issue.
I’ll let my colleague add to my answer.
Mr. Le Grand Alary: As Ms. Claveau indicated, we believe that there should be at least one lawyer on the panel or the bench reviewing the application. Clause 696.73 is important as it sets out the criterion on diversity of opinions and diversity in relation to various issues and lived experiences within the criminal justice system. The bill proposes an interesting ratio, but lawyers must be represented.
I would point out that clause 696.75(3) mentions that one half “must not, if possible [...].” We expect that it will be higher. What’s being set out here is an ideal target for diversity. This is an interesting measure.
Senator Carignan: Thank you.
I’d like your comments on another subject that’s important to me in relation to the bill. I think an amendment is required. The bill does not seem to cover court martials or military justice. We know that court martials apply provisions of the Criminal Code and the Controlled Drugs and Substances Act in reference to their code of conduct. Don’t you think that soldiers should also have access to recourse in the event of a miscarriage of justice?
Mr. Le Grand Alary: That’s an excellent question.
It’s not the subject of the bill. Bill C-66 on military justice is currently under consideration. Over the years, a number of reports have been submitted under the National Defence Act requesting a review of the court martial system. The Barreau du Québec has always advocated in favour of the creation of a permanent military court. If legislative amendments were made and if there were a new framework, it would be easier to integrate military miscarriage of justice reviews, in light of Bill C-40. That is an interesting possibility, but changes would need to be made to other laws, namely the National Defence Act. It’s an interesting exercise that should be pursued.
Senator Carignan: Thank you.
Senator Oudar: It’s my turn to acknowledge the presence of Ms. Claveau, the president of the Barreau du Québec. I want to thank her for her excellent work in Quebec. I’m also a proud member of the Barreau du Québec.
Ms. Claveau, I was pleased to read your brief regarding the commission’s discretion. I asked just about every witness the same question. Yesterday, I put the same question to the drafter of the report that inspired the legislator. I’m referring to the Honourable Justice LaForme’s report. When it comes to the discretion to investigate granted to the commission in clause 696.5, he, like you, suggested an amendment to this clause. This amendment would specify that, if the commission has reasonable grounds to believe that a miscarriage of justice has occurred, it must conduct an investigation. It can’t have discretion — not after hearing from the witnesses who appeared before Justice LaForme. The witnesses told him that it wasn’t about files, but about people, and that these people felt that they too were entitled to proper investigations. Thank you for your comment in the brief, which I agree with.
I’ll move on to the next clause. These clauses also refer to the notion of public interest, which gives the commission considerable discretion.
I’m thinking in particular of clause 696.6. This clause states that, if the commission has reasonable grounds to conclude that a miscarriage of justice may have occurred, it may order remedies. The legislator also added another test. The commission must also consider that it is in the “interests of justice” to do so. In your brief, you rightly stated that this could penalize marginalized groups. I would like to hear your thoughts on this.
Ms. Claveau: Thank you, Senator Oudar. I’ll ask my colleague to answer your question.
Mr. Le Grand Alary: Great question. The bar association brought this up after reading Justice Westmoreland-Traoré’s report. This report clearly stated that the interest of justice test, which was added as another condition... You talked about the public interest, and the same applies to the interests of justice. Clause 696.6 and this additional test could indeed hamper certain applications, particularly for applicants who may belong to marginalized groups, but also for applicants who may have committed serious crimes. It may be worth stating that there aren’t any issues or that, if a miscarriage of justice has occurred, the person is being held for another offence.
It’s necessary to avoid purely theoretical issues in this type of test, and the report clearly states that this could be used. Our recommendation is to keep this test, but to use it only for the benefit of the applicant. If the first test isn’t completely satisfied, but if issues arise and media attention is generated — meaning if a case has raised issues in society or if an aspect seems unfair, but the first test isn’t completely satisfied — we recommend that it be used as another reason for the applicant to ensure that the commission holds an investigation.
Senator Oudar: I have a follow-up question. Are you suggesting that the legislator make this clarification in the bill, meaning that the test be used only for the benefit of the applicant to bind the commission’s authority by statute or otherwise? I would like to hear your thoughts on how this could be done.
Mr. Le Grand Alary: Yes. We aren’t proposing the wording of an amendment. However, we would suggest amending clause 696.6 to specify that the applicant must be able to refer to the interest of justice test in certain circumstances.
Senator Oudar: Thank you.
Senator Dalphond: I want to thank the witnesses.
[English]
Senator Dalphond: Thank you very much for being here with us. I’ll start with my questions for the Barreau du Québec.
[Translation]
First, thank you. It’s always helpful when the bar association takes the time to submit briefs and to appear before Senate committees. We always appreciate it. In your brief, you brought up two points. You talked about the word “must” or “may” between the review of the file and the investigation. You also talked about the reasons for the decision.
In some sense, am I right in thinking that the legislation isn’t as specific as you would like it to be? Subclause 696.83(1) of the bill states as follows:
The Commission may adopt policies generally for the carrying out of its work and the management of its affairs, including policies respecting its procedures and practices.
Subclause 696.83(2) states as follows:
The Commission must adopt policies—
In English, the clause states as follows:
[English]
“. . . must adopt policies . . .”
[Translation]
—respecting:
(b) each stage of the review process;
(d) the provision of notices and other information to applicants—
Basically, can we assume that your concerns will be addressed by the policies that the commission must adopt?
Mr. Le Grand Alary: They could be addressed by the policies. We’ll have to see. In general, I would say that the bar association, when a test will affect the decision... The example here concerns the reasons for the dismissal of the application and the time limits for compliance by the applicant. Clearly, this significantly affects the processing of the application, the applicant’s rights in the future and, ultimately, the possible remedy of any miscarriage of justice. Of course, this can be covered by the policies. However, in general, when this could significantly affect rights, it may be a good idea to have these provisions in the legislation. It’s reasonable to have policies that spell out procedural details. Sometimes, you may want to include certain standards or criteria in the bill itself. We suggested that you do this in the bill. We’ll take a close look at the issue when the commission is set up, in addition to the policies adopted by the commission to respond to the application. I think that we understand each other here.
Senator Dalphond: We must remember the commission’s mandate and power to provide the best possible access. You described the joint composition of the commission as an advantage. I agree with you. This won’t be the first joint commission of lawyers and specialists. This approach is used by the social affairs section, or SAS, of the Quebec administrative tribunal, or TAQ, which serves as a commission for people deemed unfit to stand trial under criminal law. It’s headed by a lawyer, who is assisted by psychiatrists and other people who take part in the process. Isn’t that right?
Ms. Claveau: Exactly. This was my example earlier of an administrative tribunal dealing with social affairs, mental health, the parole board and things of that nature.
Senator Dalphond: Any application of the Criminal Code by a joint body.
[English]
I understand that you are also quite open to the idea this is a mixed commission and not just a group of lawyers who will have to look through the prism of the Criminal Code and maybe not see the systemic discrimination and all of the other factors that are not written in the Criminal Code?
Ms. Zita: That is correct.
The Chair: Thank you.
Senator Prosper: I have just a couple of questions, one for Ms. Zita and one for Ms. Claveau.
In an earlier question from Senator Batters, you got into questions related to the background of the commission. Do you think it would be appropriate to have both Indigenous, explicitly, and Black representation on the commission, given the representation of marginalized individuals involved with the criminal justice system and serving time?
For Ms. Claveau, we heard testimony in previous panels related to the interests of justice. In that testimony, I believe it was a former member of the judiciary who was not sure what the “interests of justice” actually means. I was wondering if you could provide further insight or a potential definition of what the “interests of justice” would mean in that regard.
Ms. Zita: Yes, to your question. I think it is well known that Black individuals and Indigenous people are vastly overrepresented in the correctional system, and their plights are very different historically and even in the present day, unfortunately. To have that representation — again, I hearken back to this idea of a jury of your peers — to have like-minded people reviewing these applications is exactly what I think the spirit of this commission was, to have a more fulfilled, a more fruitful understanding of not just the file coming onto your desk but the person and the life attached to that. Full and intentional representation will certainly help to achieve that.
Senator Prosper: Thank you for that.
Ms. Zita: Thank you for the question.
Senator Prosper: Ms. Claveau.
[Translation]
Ms. Claveau: I agree with you about the presence of an Indigenous or Black commissioner. I think that it would be really useful. These two communities are over-represented in prison.
I’ll let my colleague respond to the second part of the question.
Mr. Le Grand Alary: I believe that this concerns the question of the day regarding interests of justice. This test can have a number of definitions and can be interpreted according to the circumstances.
In this situation, the interests of justice include the notion of correcting miscarriages of justice to ensure justice, as well as the aspect that affects the public. All these factors contribute to the notion of the interests of justice. The fact that this is a broad test explains why we believe that it should be used to the applicants’ benefit to force an investigation.
The report by Justice LaForme and Justice Westmoreland-Traoré pointed out that this interest of justice test could be misused, particularly with regard to Indigenous or Black applicants, or in other circumstances. Instead, we propose that this test be used as a positive measure for the applicant.
[English]
Mr. Paisana: Chair, I wonder if I might contribute to that last question about “interests of justice.”
The Chair: Sure. Please offer your perspective.
Mr. Paisana: Thank you, chair. Why I wanted to chime in on that is we addressed that in our brief to the consultation phase. In our view, we agree with the Barreau du Québec that “interests of justice” should be interpreted in a manner favourable to the applicant. What I think that is actually getting at is there are circumstances where a miscarriage of justice can occur that don’t specifically relate to the specific facts of the case, for example, if there has been juror influence, juror impartiality, ineffective assistance that does not necessarily reflect something having changed, but the person has had such an unfair trial because of ineffective assistance that it amounts to a miscarriage of justice. There are things that don’t necessarily speak to the precise facts of the case that could call out for a miscarriage of justice finding under this rubric of “interests of justice.”
The Chair: Thank you very much, Mr. Paisana.
Senator Simons: My question is for Ms. Zita. Thank you very much for being with us, especially when I can see that you are working on a deadline project.
Ms. Zita: Yes, five weeks left. Thank you, senator.
Senator Simons: One of the things that really surprised me once we started our study of this bill is how few of the cases that have been dealt with in the past involved women. Now, obviously, there are more men incarcerated than women, but it still seems extraordinary to me how few women have been exonerated under the current system.
I wonder if you have concerns about gender representation or also concerns about the capacity of women to exercise their new rights under this legislation. When Mr. Lockyer was here yesterday, he said something like, “Clarence Woodhouse would have been out 50 years ago if he’d had this system.” I challenged him and said I don’t think he would because I don’t think he would have known how to ask for the help. I wonder if you could speak to that.
Ms. Zita: I agree with you, senator, on the concerns about the under-representation of women as exonerees. When I thought about it in preparing my submissions, by and large, the only women I could really come up who are those discovered through inquiries — Charles Smith, the Motherisk. Even in my own work dealing with appeal — I have a large appellate practice, and I think about mostly Indigenous women who are just so poorly represented at trial. I wonder why that’s the case. I have to think it is because their voices are heard differently than others’.
I think that’s why representation of the composition of this commission is so important. This isn’t an opportunity to dig into systemic —
Senator Simons: Everything is an opportunity to dig into systemic injustice.
Ms. Zita: In the three minutes we probably have left to have this discussion, in my practice, women who are charged with criminal offences are looked at more suspiciously than others.
An Hon. Senator: Men.
Ms. Zita: Yes. When I think about this commission, I think that these discussions are more out in the open than they have ever been. I was speaking about being intentional in the way it is coming together and also in the way that files are being approached and handled. I think that the culture shift that we have seen in the open discussion gives me hope less than concern about how women will benefit from this kind of commission.
Senator Simons: One of the challenges is this legislation looks to right wrongs that have already happened. It is silent on the issue of preventing those wrongs from happening in the first place. Some of those things are the funding of our Legal Aid system, the access people have to effective counsel and the pressure counsel face to take plea bargains to get their own desks cleared. I don’t like to deal in gender absolutes, but I wonder how many more women rush to take a plea because they are socialized that they should accept responsibility even when it may not be appropriate for them to do so.
Ms. Zita: I think the number would devastate us. It is a thought I have quite often. Joyce Hayman is a great example. I had the pleasure of seeing her in our office. She was not someone who was going to speak out and cry for her innocence. So many of the people who have come forward — the wrongfully convicted whom we celebrate today as powerful exonerees — had a team around them fighting for them. And there are so many women — vulnerable women, homeless women and drug-addled women — that’s where it begins. They are not listened to. They are perhaps demonized when they speak out.
Senator Simons: Because a woman who commits a crime is more horrible to us than a man, I think.
Ms. Zita: There is a term used to describe it. I didn’t think I would use it, but it’s “witchification.”
I am going to end on this point because I think we could go on too long on this for our purposes today. I think about the differences between me and a client I see on video screaming about what has happened and the wrongs being done, and the only difference is for some reason when I speak, I get a little bit of credibility, and that person doesn’t. That really informs my job and how I listen and how I present myself with my clients.
Senator Simons: Thank you.
The Chair: Thank you both.
Senator Pate: That’s a perfect start to where I’m going to continue.
Ms. Zita, I think you are familiar with some of the work we have done on the 12 Indigenous women. In fact, I want to drill down a bit on your comment that Indigenous women, in particular, are sometimes poorly represented. I particularly used two cases when I spoke to this bill at second reading where very excellent criminal lawyers represented two Indigenous women but didn’t get the story of the background. If you could talk a bit more about this hyper-responsibilization of women, the ways in which they are socialized.
I was struck when I went from working predominantly with men to working predominantly with women by how many women were jailed for things it would be rare to see a man jailed for, and how few were aware the context was actually interrogated at all. In most cases, it was, as you have indicated — I think of Tammy Marquardt, who accepted responsibility. She had no plan to challenge that, despite many of us pushing for her to challenge it, but she was exonerated because she was one of Dr. Smith’s victims. I think of so many more like that.
How would this bill address those issues? What would be needed in this bill for those women to be assisted, in your opinion?
Ms. Zita: What the bill has that I find interesting and important and maybe not discussed enough is there’s an educational element behind it. There’s a mandate within it that the commission is supposed to put up policies and engage with the applicants, which is something that I have not seen in similar pieces of legislation.
I think that is important because, again, it’s like building blocks. If we staff the commission appropriately and in a representative way, then someone reviewing a file or reviewing an application will see that it has the makings of one of these women and will perhaps know to reach out to them. That’s assuming that they even make the application.
I have to think that, again, these discussions that we’re having and the work that you’ve been doing with the 12 Indigenous women, a story as powerful and captivating as the Quewezance sisters, I can see in my practice, in our firm, how important those stories are to so many others. It’s so simple. Just being on TV makes a huge difference. These were discussions that weren’t around when I was growing up. I think that is important. There’s a lot to delve into with your question.
Senator Pate: The Quewezance sisters are a good example. It took almost 10 years for them to even accept that they had been wrongfully convicted, that moral, ethical, familial and cultural responsibility did not equal legal responsibility. They now accept that, and that’s great, but that’s nearly four decades on.
Ms. Zita: In your report, senator, on the 12 Indigenous women, there was one point that really struck me. With the Quewezance sisters, it’s a case I know and have worked on from behind the scenes. As you know, the cousin came forward as a youth and said, “I did this,” but you specified that the police were really focused on pinning it on the sisters. It’s that piece that we’re trying to get at. Why?
Back to your point about good lawyers representing Indigenous women and not getting their stories out, why is that happening? Are they operating with biases? Are their stories less believable because perhaps they’re not being communicated in a way that seems credible? That is a problem I don’t know if this commission — I think that’s a deeper issue, but the fact that these discussions are going into the tabling of this commission, for me personally, gives me hope that it’s going to be created with that spirit and intent in mind.
[Translation]
Senator Aucoin: My first question is for Mr. Paisana. You said that the Court of Appeal has a few restrictions. First, however, I would like to ask you whether you can hear me.
[English]
Mr. Paisana: Yes, I hear you. Thank you.
[Translation]
Senator Aucoin: You spoke about the shortcomings and the fact that the Court of Appeal is limited in what it can do. Could other suggestions have been made that the commission might use for all file review cases?
[English]
Mr. Paisana: Yes, there are a couple of things that have come up in the discussion today that could be improvements. One of the questions that has come up is this issue of interests of justice and the current conjunctive construction of that in the bill at 696.6(2). Our recommendation to improve that would be to make it disjunctive, so instead of the word “and,” just change it to “or.” That would actually have a tremendously important impact on the structure of this. What it would mean is that the commission could issue a remedy if there is a miscarriage of justice or if it’s in the interests of justice.
The interests of justice, as I mentioned in my answer to a question a bit earlier, can encapsulate things that don’t necessarily reflect the pure facts of the case, but there is some fundamental unfairness that has otherwise been visited upon the applicant, including some of the things that Senator Pate has been talking about and advancing in her work.
[Translation]
Senator Aucoin: I gather that you talked about an unsafe ground of appeal. Is that right, or did you mean something else?
[English]
Mr. Paisana: If you’re asking me to elaborate on the unsafe ground of appeal, what I meant by that is that in England, in the United Kingdom, there is an unsafe ground of appeal. What that is, unlike unreasonable verdict, is it allows the Court of Appeal to intervene in a case where the Court of Appeal judges feel there is a lurking doubt about the innocence of the person.
Currently, Canada does not have that ground of appeal. The ground of appeal that is most akin to that is unreasonable verdict. Unreasonable verdict is a very high threshold. It requires that there be no evidence to support the conviction. As long as there’s one reasonable outcome or reasonable interpretation of the evidence that is the guilt of the accused, the Court of Appeal cannot interfere, even though the Court of Appeal may be of the view that there is a reasonable doubt. There’s a disconnect there when we’re considering the question of innocence.
If the Court of Appeal is of the view that there is potentially an innocent person before them, which is more or less the conclusion that the commission would arrive at to order a new trial, the Court of Appeal should be empowered to do the same thing and, therefore, avoid all of this unnecessary work of the commission and have it rectified at a much earlier stage in the process.
In effect, what an unsafe ground of appeal does is it empowers the Court of Appeal to do the very same thing that the commission would do years later with the same case.
[Translation]
Senator Aucoin: Ms. Zita, you talked about the need for someone from the community. We know that, for people who must return to the Court of Appeal to have their case heard, it’s often the justice system that incarcerated them in the first place.
Regardless of whether they’re men or women, don’t you think that they feel intimidated by having to return to the justice system that incarcerated them in the first place?
[English]
Ms. Zita: I agree. The whole process for anyone involved, especially when they’ve been involved for as long as those wrongfully convicted, is certainly triggering. Having to face again the same court that contributed in facilitating this harm to them, the continuation of the wrongful conviction is a reality not many individuals want to live with.
I know from the appellate world, when you win an appeal and the remedy is a retrial, that almost takes the sweetness out of the victory because you’re now back in the torture chamber again. I don’t know that there’s a good way to remedy that. The case has to be adjudicated. There could be community resources in place to help those individuals and to support them. As I’ve been saying, it’s good that we’re having these discussions and we’re being mindful of that.
In terms of the powers of the commission — I’m not sure if this is what you were asking — I don’t know any way around it, unfortunately. It’s a reality, though, that those wrongfully convicted and exonerees have to face, definitely.
The Chair: Thank you both.
Colleagues, we have exhausted our time, and there won’t be a chance for a second round, but I’d like to take the prerogative of the chair and extend this conversation for two or three more minutes and pose a question mainly to Mr. Paisana.
Yesterday, in our discussions, we heard suggestions from fairly distinguished witnesses that there ought to be provisions that would set aside privilege as between prosecutors or as between prosecutors and police officers. The innocence-at-stake exception is one example that was cited. We know that there are examples of the setting aside of privilege when Law Societies are investigating lawyers for wrongdoing. Privilege is a valued commodity, if I could call it that, in the context of lawyer-client relations. I would be interested in knowing whether the CBA has a position or whether you have a view on this, Mr. Paisana, about whether there ought to be the ability to set aside privilege when the commission is doing its investigations.
Mr. Paisana: Thank you for the question. We do support that power. It was in our consultation brief for Justice LaForme and Justice Westmoreland-Traoré when they consulted with us; we supported that proposition as well.
I think it’s fundamental for two reasons. One is that there will be pieces of information that will only be accessible within the realm of privilege that could speak directly to a person’s innocence. That could be in the form of informer information that was never disclosed because it was informer information, but nevertheless would have exonerated the person, and no one ever knew about it and, therefore, could never apply to invoke the innocence-at-stake standard. It could also arise from the conduct of a prosecutor or a police officer in private: withholding evidence or otherwise conducting themselves in a way that contributed to a miscarriage of justice.
I suppose there’s also a third realm in which that could arise, and that is in the realm of ineffective assistance. If a lawyer defending a person has committed a point of misconduct or otherwise affected the case but that is buried in the lawyer’s own files and they’re not, for whatever reason, being co-operative, the investigator on behalf of the commission should be able to access that information in that realm as well.
The Chair: Do you have any insight as to why such a provision doesn’t exist in the legislation currently?
Mr. Paisana: Privilege is one of the most hallowed principles in Canadian criminal law and in law generally. Generally speaking, we don’t legislate in the area of privilege, leaving it to common law. In our experience, statutorily, the only exceptions we seem to have are Law Society exceptions for the investigation of lawyers.
That doesn’t mean that it can’t happen, however, and there are ways to legislate around it in a way to protect that privilege. It can be done through in camera proceedings; it can be done by extending privilege to the investigators so that the zone of privilege is only extended insofar as necessary to fulfill the mandate of the commissioners.
The Chair: Thank you very much. Let me bring this session to a close. I want to begin by thanking our witnesses, who have joined us partly at a distance and partly in person. Ms. Zita, thank you for your efforts. There was an allusion to you working to a deadline; not everyone on the screen can tell that you are close to giving birth, and we want to thank you for your presence and the challenge that may have presented to you. Also, thank you to the senators for their prescient and focused questions and a very good discussion.
For our second panel, we’re pleased to welcome, from the Canadian Criminal Justice Association, Dr. Myles Frederick McLellan, Chair of the Policy Review Committee. Dr. McLellan joins us in person; welcome. From the Canadian Association of Black Lawyers, we welcome Paul Erskine, Member of Criminal Justice and Police Reform Subcommittee. Mr. Erskine is joining us by video conference; welcome. From the Canadian Council of Criminal Defence Lawyers, we welcome Mark Knox, board member for Nova Scotia, who is also joining us by video conference.
We will invite each of you to present opening remarks of approximately five minutes, which will be followed by questions and conversation with the senators who are present.
Myles Frederick McLellan, Chair, Policy Review Committee, Canadian Criminal Justice Association: Thank you, chair. In addition to being here on behalf of the Canadian Criminal Justice Association, I can advise the committee that my life’s work for the last 15 years has been wrongful convictions, particularly looking at the systemic factors that cause wrongful convictions and what can be done to reform the operations of police services and Crown counsel in order to hopefully reduce the number of convictions based on those systemic factors. I suppose it’s apt in appearing here today that I paraphrase a quote of David Milgaard, because what I’m dealing with today more particularly is the issue of compensation for wrongful convictions. What David had to say was that seeking compensation after a wrongful conviction was every bit as difficult as exonerating the wrongful conviction in the first place.
Having said that, I’m going to read a prepared statement and then I’ll take it from there.
The plight of the wrongly convicted has gained prominence worldwide with the growing awareness of the prodigious harms to innocent persons at the hands of the criminal justice system. Most of the attention, both scholarly and legislatively, has been focused on the causes of wrongful convictions and the need to free the innocent. The pending enactment of Bill C-40 and the creation of a miscarriage of justice review commission is the latest and most significant advancement in Canada in this regard.
What now needs to be addressed more comprehensively is the issue of how to provide redress to those persons whose lives have been inexorably damaged and how to best compensate them in their efforts to rebuild a life. The available remedies in Canada to pursue compensation include civil litigation for malicious prosecution, negligent investigation, a Charter breach and the highly politicized exercise of a discretion by a government to make a payment without acknowledging any liability. Except for the very few, none of these remedies have been helpful. As I wrote in my book:
Liberal democracies like Canada are honour bound if not constitutionally mandated to provide for innocence compensation far beyond the onerous and cost prohibitive pursuit of litigation against the State and the current highly secretive and inadequate executive remedy requiring an elusive exercise of mercy.
I’ll deal with both litigation and the exercise of mercy as remedies for compensation, and I’ll give you a quick story about a young man by the name of Jason Hill. Jason Hill was an Indigenous man in Hamilton in the 1990s. At that particular time, in 1994 and 1995, a number of variety stores were being robbed, knocked over by perpetrators. In each case, when the police went to interview the variety store owner or operator, the best they could come up with was they thought the perpetrator was Indigenous. So the Hamilton-Wentworth police service kind of liked Jason Hill for these robberies, not because there were any facts that led directly to him, but he did have a minor petty record, and that’s low-hanging fruit for the police. If they see somebody who already has a record and has already been in touch or enmeshed in the criminal justice system, then they take a pretty hard look at them.
They put together a personal lineup or an array of possible people — and the committee has all seen these on TV or movies — where there are 10 or 12 people who stand behind a glass. This doesn’t happen anymore, but it did back then. The potential witnesses to the crime stand on the other side and try to pick out who the perpetrator may well be against the wall behind the glass. Remember, of course, that in this particular case, all of them pretty much thought the perpetrator was Indigenous. They put Jason Hill in that lineup with 11 Caucasian people to be compared against.
He was convicted. He spent almost two years in custody before it came to the light for both the Crown and the police that robberies were still taking place. And so, of course, it wasn’t him.
He decided to sue the Hamilton-Wentworth police service for malicious prosecution, including the Crown, for the breach of the Charter and for negligent investigation. He took the fact that it was negligent very seriously, and it went to the Supreme Court of Canada in 2007. It is the leading case in the common law world on negligent investigation because the Supreme Court of Canada ruled that police do not have a qualified immunity against being sued for negligence. And, in fact, Canada is the only common law jurisdiction that has this cause of action — that you can sue police if their investigation was negligent.
Unfortunately for Mr. Hill, what the court also said was, “Yes, we find this was potentially negligent,” but back in 1995 and 1996, when the array took place, that wasn’t particularly out of the scope of conduct for police services. As a function of that, they found it hadn’t gotten over the standard of care for negligence, so he lost his case. But his case does stand for the fact that you can sue police for negligent investigation.
That’s a synopsis of how difficult litigation is for those who are finally exonerated to try to rebuild a life. You have to remember if you’re exonerated after any relatively short period of time of being in custody, whether it’s four, five or even six months, you’ve lost your job, your home, your vehicle, and maybe you’ve lost your family. Any number of harms are a result of a custodial sentence, and, as a function of that, those who are exonerated who are basically forced to sue the police or the Crown for negligence or malicious prosecution have to somehow put money together to retain counsel, which is a very onerous thing to do. Then they have to roll the dice to see if, in fact, they can get to trial and prove either negligence or malice. Proving malice, particularly with Crown counsel, is almost an impossible task; there are very few cases.
Negligence has had a bit of a better run for it. Since the Hill decision, there have been over 200 cases that have been reported in which exonerees have sued the police. In one third of them, they actually got judgment. That’s a pretty encouraging kind of thing, but again, remember, it’s a very difficult task to get to that point where you can actually get a judgment and collect on it.
The other remedy we have, and it has been around since 1988, is called the Federal-Provincial-Territorial Guidelines for Compensation. Canada, along with its provinces and territories, put that in place as a function of its obligation to the United Nations when it agreed to implement the International Covenant on Civil and Political Rights.
Having said that, they put these guidelines in place, and these are the guidelines that have given David Milgaard $10 million; Steven Truscott, $6 million; William Mullins-Johnson, $4.25 million. These are the guidelines on which decisions are made behind closed doors, almost always by cabinet. They’re in secret; there’s no transparency whatsoever, and they tend to make these large awards because the system has egg on its face. The system is facing known exonerees who have very publicly been exonerated as a function of the work, for the most part, of Innocence Canada or what have you.
Having said that, there are very few people — 20 or 30 of them in the last 35 years — who have had these kinds of awards, none of them higher than David Milgaard’s award. But that doesn’t help the thousands of other wrongfully convicted individuals who are put back out on to the street, have to rebuild a life and have no recourse to that very secretive environment called the ex gratia environment. It means “out of grace,” which means it is a function or a product of mercy. Very few people have that because the publicity doesn’t warrant it. The only other alternative is litigation, and that’s an expensive proposition for everybody.
The Chair: Could I stop you there, and we’ll no doubt explore more of your thoughts in the questions and answers? I’ll invite Mr. Erskine to speak for roughly five minutes, sir.
K. Paul Erskine, Member of Criminal Justice and Police Reform Subcommittee, Canadian Association of Black Lawyers: Good afternoon, everyone. Thank you for inviting me today to speak about this bill. As you’ve heard, my name is Paul Erskine. I’m a criminal lawyer, and I have experience as both defence counsel and as an assistant Crown attorney. I’m also a member of the Canadian Association of Black Lawyers, or CABL, and their Criminal Justice and Police Reform Subcommittee. I’m extremely honoured to be speaking today on behalf of CABL.
CABL strongly supports Bill C-40. This bill emphasizes the importance of making our criminal justice system transparent and holding it accountable not only to the individuals who come into conflict with it but to society at large. When this happens, a greater respect for the rule of law is fostered, and the administration of justice in our country is held in a higher regard.
Given my limited time, I would like to highlight three points in relation to this bill that are important from CABL’s perspective.
I’d like to start with some sobering statistics. The Innocence Project, which is a U.S.-based advocacy group that works to secure the release of innocent accused and to prevent wrongful convictions, reports that 58% of the people freed or exonerated by the Innocence Project have been Black; 52% of the people exonerated from 1989 to 2022 were Black; and 75% of those who were exonerated after a guilty plea were Black and brown people. To put these numbers into context, one must remember that Black people account for only 13.6% of the population of the United States.
While it may be easy to dismiss these numbers and say they only apply to the U.S., we are all well aware of the studies and reports here in Canada that point to systemic inequalities in the criminal justice system that negatively impact Black and Indigenous offenders. When compared to other offenders, it is recognized and accepted that Black and Indigenous offenders are disproportionately subjected to higher rates of excessive force by police or correctional officers; situations of “overcharging” in relation to criminal or quasi-criminal offences; potentially harsher sentences upon conviction; higher numbers within the prison population; and harsher treatment while in custody, whether they are awaiting trial or serving a sentence. It stands to reason that these disproportionate systemic inequities will be manifested in the number of Black and Indigenous accused who are wrongfully convicted.
CABL is supportive of this bill, as it seeks to address an inequality in our criminal justice system and increase access to justice for racially marginalized individuals. To that end, CABL is pleased to see clause 696.6(6) included in the bill, which is a codification of the principle that a miscarriage of justice could still have taken place in the circumstances where an offender is legally guilty and that such an offender is entitled to a remedy. Furthermore, clause 696.6(5)(e) is a recognition by this government that systemic inequities do exist as it relates to Black and Indigenous offenders and that there is a duty and responsibility to address those inequalities and mitigate them.
Second, clause 696.6(5)(d) of the bill is an important reminder of one of the fundamental principles of our criminal justice system: that an individual offender’s personal circumstances must be taken into consideration. CABL is supportive of the inclusion of this principle in the bill. CABL is also encouraged by the codification of the need for diversity in the composition of the appointments to the commission, as prescribed in clause 696.73. That being said, CABL would like to suggest that clause 696.75 should go a step further and mandate that a specific percentage of the commission’s appointments be composed of qualified members from both the Black and Indigenous communities.
My final point is that the minister promised that this bill would make it easier and more efficient for wrongfully convicted offenders to have their cases reviewed, with a particular focus on removing barriers to access for Indigenous, Black and racialized people, women and members of other marginalized communities. It seems that clause 696.84(2) of the bill reflects that promise, but, respectfully, CABL finds that section to be vague, particularly paragraph 696.84(2)(d).
The government needs to ensure there is funding available for representation for low-income applicants; otherwise, this avenue of legal review is effectively meaningless for low-income or racialized people. There needs to be a specific source of funds available. CABL urges the minister to specify exactly where funds are to assist applicants or specifically legislate a source of funding for applicants and the process to apply for said funds. Finances should never be a barrier to accessing the remedies the commission is being created to implement.
On behalf of CABL, I welcome any questions that this committee may have for us, and I thank you for your time.
Mark Knox, Board member for Nova Scotia, Canadian Council of Criminal Defence Lawyers: The Canadian Council of Criminal Defence Lawyers, or CCCDL, is a national voice and offers perspectives on criminal justice issues. We are very thankful to the Legal and Constitutional Affairs Committee for inviting us to participate.
I’m labouring under COVID, so I won’t be very alert today, but I will do my best to express our thoughts concerning Bill C-40. We support the observations, recommendations and amendments by Justice LaForme, Justice Westmoreland-Traoré and Professor Roach. We are very in tune and interested in the concerns offered by Senator Pate and those embraced by Barreau du Québec. All of these were done thoroughly, internationally considered and reviewed and goal-oriented.
We are very appreciative with respect to the concern that the miscarriage of justice review commission be independent. It must be independent from government. How? We support the observation that the commissioners’ term should not be renewable and, as has been discussed earlier today, that the commissioners should be chosen appropriately and logically. Between 9 and 11 would be a suitable number of commissioners. They should be chosen by an independent learned committee and not by cabinet, and, as reviewed roughly earlier, we do support the recommendation that a third should be lawyers and then, to balance, a third should be acutely aware of the causes and consequences of miscarriages of justice, and the last third should represent the marginalized groups that are overrepresented in prison and disadvantaged in seeking relief, including at least one Indigenous commissioner and at least one Black commissioner. As also outlined in the study by the justices and Professor Roach, we support that the chief executive officer should be separate from the chief commissioner.
Regarding the commission’s mandate, we believe it must embrace a sentencing mandate, as expressed in other advanced Western democracies; a consideration of a parole mandate, as reviewed by Senator Pate; as well as Senator Pate’s en bloc review mandate to ensure that racism and misogyny are investigated and dealt with appropriately.
I have a few last points. As reviewed in detail by my friend Mr. Paisana from CBA, the investigations cannot be hampered by claims of privilege. Like my friend, I’m familiar with our bar society’s ability to deal with files where privilege is a big issue. We are dealing with one of those right now in Nova Scotia.
We are grateful of the changes in Bill C-40 that all appeals do not have to be exhausted. We are interested in the decision in the remedies clause 696.6(2), the options available being a new trial, a new hearing or referring the matter to a court of appeal. We are very impressed and interested in the functional and practical aspect of Bill C-40 to provide statutory authority for the release of the custody of an applicant to be included as proposed new section 679(7) of the code.
Finally, although it is easy to forget for those who are not in the trenches, the focus on providing supports, which has been expressed by my friend, and to ensure that the public is informed of the mandate must be in the forefront.
Those are the points I wanted to make on behalf of the CCCDL. I want to thank you for the opportunity to review the work done and the recommendations and observations that have been made. Thank you.
The Chair: Thank you very much, Mr. Knox. Mr. Knox and I have a bit of a history, but we won’t hold that against either of us, I hope.
We are a little pressed for time. As you know, senators, we need to make our way into the chamber shortly. There are a number of interested senators wishing to pose questions and engage in conversation with our witnesses. I’m going to propose four minutes each, if that is acceptable, starting with Senator Arnot, the sponsor of the bill.
Senator Arnot: My question is for Mr. McLellan: Given your organization’s focus on education reform, do you think that the commission as constructed in Bill C-40 has a duty to contribute to the broader public awareness and understanding of the contributing causes to wrongful convictions, such that those systemic issues can be identified upstream as opposed to downstream?
Mr. McLellan: Absolutely. Part of the bill deals with that issue as well. There is no question that the operation of the commission should also have a public education component to it so that the issue is broadly known, that the factors are addressed as a function of that educational piece and that those who apply to the commission have the ability to look at what the commission is doing and what it could possibly do for them.
Senator Arnot: Thank you.
This question is for Mr. Erskine: Sir, along the same lines, do you feel that the commission in its current construction has the ability to sufficiently identify and address the root causes of wrongful convictions, especially with respect to the Black community and the Indigenous community?
Mr. Erskine: Thank you, senator. With the composition of the way the commission is, yes, there is the potential for that. Respectfully, I think that’s why CABL is taking the position that it is great to see the mandate of the commission is founded on a principle of diversity. I do remember seeing that codified in the legislation, which is really encouraging. CABL wants to make sure there is actual representation on the commission, and that might actually require saying that there needs to be a specific number of commissioners who are either Black or Indigenous — both, quite frankly — just to make sure that representation is there and that voice is there and that perspective is there when cases are reviewed.
Senator Arnot: Mr. Knox, I would like you to comment, given your experience as a defence lawyer, on the removal through exemption of the necessity to appeal any conviction to exhaustion. Do you have any comment on that?
Mr. Knox: Thank you, senator. Glen Assoun was an individual who — I’m going to get there, and it won’t take too long — fired his lawyer. He self-represented, and he was convicted. He spent so long — as Senator Pate and others know, the path toward finding counsel who understands, believes and trusts a client such as Mr. Assoun is a treasure that is rarely found. So, the ability to do something else, to be more expedient and to avoid passing before the matter is concluded or immediately after, I think, is a wonderful asset in Bill C-40.
Senator Arnot: Thank you.
Senator Batters: I’m going to start out with a question for Mr. McLellan. You provided us with a lengthy, well-researched brief. I have been going through it as we’ve been dealing here, so Mr. McLellan, I want to ask you a couple of things about it. I note that you have a piece of information here that I hadn’t realized, which is that Innocence Canada deals only with murder cases. They don’t have the scope to deal with other types of cases. As you were saying, there would be a need for some other type of body to assist people with those types of convictions because this is not limited, obviously, in Bill C-40 just to murder cases but to all kinds of wrongful convictions. I wanted to make that point.
My question to you, Mr. McLellan, as I look through near to the end of your lengthy submission, on page 121, it says the best estimate of the number of applicants per year for the newly created miscarriage of justice review commission will be in the neighbourhood of 1,333. Mr. McLellan, that is considerably higher than the government told me they would expect. They told me to expect only about 250 per year. The next page says that you would expect probably about 400 convicted Indigenous individuals to apply on an annual basis.
I’m assuming the government has decided on the number of commissioners and the funding they are giving for this commission based on a number of applications in the realm of 250 a year, not 1,300 a year. It sounds like you did quite a bit of research to come to these numbers. Why are your numbers so different than the government’s?
Mr. McLellan: I have no idea how the government arrived at its numbers. In the PowerPoint you have, I have set out the experience of the United Kingdom commission, the Scottish commission, the Norwegian commission and the New Zealand commission. I have taken their populations and multiplied those by the number of applicants they received and applied that to the population of Canada.
If we look at the most recent example of the New Zealand commission, which was favourably looked upon by Justice LaForme and Justice Westmoreland-Traoré in their report, New Zealand has about an eighth of the population of Canada. They have a commission of seven commissioners, and in the first two years of its operation they had 310 applications. That’s 155 applications per year for a population of just over 5 million. We have eight times that population. Maybe this is naive, but if you simply take 8 times 155, you are going to end up with over 1,200 applications based on the population of Canada.
The one thing that’s uniform for all these commissions is that the causes of wrongful conviction are universal. The things that lead to wrongful convictions, like mistaken ID or false confessions, are all the same throughout all the common law jurisdictions, so there is no reason to think, from my limited point of view, that you wouldn’t be able to take the numbers and extrapolate them into the Canadian population.
Senator Batters: Thank you.
To Mr. Erskine of the Canadian Association of Black Lawyers, the report by judges LaForme and Westmoreland-Traoré recommended the commission have the authority to refer cases for a pardon or record suspension for applicants when justified, but that provision was not included in Bill C-40. Do you agree these types of remedies should be included in the scope of remedies offered by the commission in Bill C-40?
Mr. Erskine: Thank you, senator, for that question. I do agree that set of remedies should be available to applicants. Again, the bill itself talks about how a miscarriage of justice can even be found in a situation where a person was legally found guilty, meaning everyone did their job properly, but somehow there was still a miscarriage of justice that could be remedied by a pardon or record suspension. Certainly, I think it should be included.
Senator Batters: Thank you. Very quickly to Mr. Knox, in your opening remarks, you were saying commissioner terms should not be renewable to support better independence of the commission. Would you support an amendment to Bill C-40 to remove the renewal provision that’s provided?
Mr. Knox: Thank you very much, senator. I drew my position from the report that you referred to by Justice LaForme, Justice Westmoreland-Traoré and Mr. Roach. Yes, I think, as they put it, these commissioners should be independent of government. They should be in a quasi-judicial position, and, therefore, they should not be subject to government review. Thank you.
Senator Prosper: I have just a couple of questions. Dr. McLellan, thank you for your testimony and getting into the subject of compensation. As stated by the minister, this is within the box of the Criminal Code. Compensation is outside of that. But do you see this bill being of any utility to help navigate or be of assistance to those elements of compensation. I put a question to Mr. Anderson about compensation, and he said he was 70 years old, so that’s a question.
Then a question for you, Mr. Knox. Mr. McLellan just provided testimony in terms of the number of cases projected to come before here. I believe your testimony suggests 9 to 11 commissioners. I am curious what your logic is with respect to the numbers.
If we can go to you first, Dr. McLellan.
Mr. McLellan: Thank you, and I saw your question to Mr. Anderson last week.
The bill does have provision under, basically, clause 696.84 to provide some re-entry assistance for those who are exonerated, which is crucial to somebody who has just been released from imprisonment, and the bill could have an element of compensation in it. I have given it to you in my opening remarks. It just takes a very small subsection change to basically say that the bill will allow for access to a statutory scheme — and that’s the one I promote — and leave it at that. That’s all we are asking for at this point.
I don’t expect this committee or the other place to talk about what would actually be a statute for compensation. I think that’s beyond what we are looking for and certainly beyond any delay that would be forgivable. It wouldn’t be.
I’m suggesting that we insert that one small change and leave it to another day, but at least to have it in there, because the prospect of starting from scratch to get a statutory scheme in place without the amazing foundation of what this bill has already created would be exceptionally difficult and would maybe never happen.
Senator Prosper: Thank you.
Mr. Knox?
Mr. Knox: Thank you, senator.
I basically did a cut-and-paste, reviewing the research and the conclusions of Justice LaForme, Justice Westmoreland-Traoré and Professor Roach, who — and I’m looking at their summary paper for the committee — looked at New Zealand and looked at the U.K. and determined that this would be a good range.
I think, additionally, just to fill in the picture, to ensure that there is a fulsome ability to be provided to review and sit on the commission if we want to — we don’t want too many lawyers, but we need some, and we need these other two fundamental groups, too. I think we would want at least two in each of those, and three would be better, and 11 might be ideal.
Senator, I also wanted to mention one thing very briefly concerning compensation. When I was a young lawyer, Donald Marshall Jr. went through round 1 of compensation, and our government was brutal to him and his counsel. That resulted in such an unfair resolution that it was ultimately, of course, after the royal commission, reopened. So it was so interesting, listening to Dr. McLellan and for you to bring up that issue, too. It is a fundamental thing that is really not addressed here, and maybe that’s for another day.
Thank you, Senator Prosper.
Senator Prosper: Thank you both.
Senator Simons: I have a question for the gentleman from CABL. You spoke about the issue of dealing with cases where there has been no error in law, but there has been, nonetheless, a clear injustice, even though the police acted in good faith, the prosecutors acted in good faith, and the judge and jury did their jobs.
But I want to talk about the converse, where you have somebody who is probably guilty — who we intuitively know is guilty — but the trial has been so mishandled that there have been clear miscarriages of justice. I would argue — although some would disagree with me — that those people should also be not exonerated, but there should be heed paid to the fact that there were significant legal errors made in their cases. I’m wondering how you think we ought to deal with people who are not innocent but who are, nonetheless, wrongly convicted.
Mr. Erskine: Thank you, senator. That’s a good question.
Our criminal justice system is founded on the principle that to prove a person guilty is proof beyond a reasonable doubt. A person starts with the presumption of innocence.
I started off my submission by saying that I was a defence lawyer, and I was a defence lawyer for over 20 years, and now I’m a Crown attorney, and so I have seen both sides of the coin, if I can put it that way. It is a reminder that the Crown has the burden of proving a case beyond a reasonable doubt. It is not that maybe the person is guilty or that they are likely guilty. If there is any doubt at all, then the person is not guilty.
So in the situation that you have talked about and that you are raising, that person should be entitled to a remedy. There has still clearly been a miscarriage of justice, and it actually would be a miscarriage of justice to say, “Well, I think that person is guilty; I suspect that they are guilty; they are likely guilty, and their trial was botched, but they don’t get any remedy because we think they are likely guilty.”
Senator Simons: Yes.
Mr. Erskine: That’s not the right standard. They should be entitled to a remedy.
Senator Simons: The nomenclature is we talk about the Innocence Project; we talk about exoneration. There are some people who should not be in jail, because it was an illegal search or there was a falsification of evidence, and I’m just wondering where this commission prioritizes its resources.
I sometimes worry that we box ourselves in by using this language. It is easy to say in David Milgaard’s case or in Guy Paul Morin’s case that they clearly didn’t do it, because the DNA evidence absolutely exonerates them. But there are going to be people who should not have been convicted because of error at trial or error in the investigation. I am wondering if we don’t create a problem for ourselves by using this language. It is almost religious language that people are being pardoned, purged of their sins or found innocent.
Mr. Erskine: Right. I know that language matters a lot, and we can box ourselves in or “overbroaden” ourselves based on the language.
I think what is important is the idea that the commission will look at every case on a case-by-case basis. Even that seems almost cliché sometimes, but it is important because you don’t want to be in a situation where the commission is overburdened and taking on too many cases.
At the same time, the flip side is that by looking at it on a case-by-case basis, they are able to decide an appropriate remedy for that particular case, because it is not going to be the same remedy for every case, and it shouldn’t be the same remedy for every case.
That could, hopefully and potentially, result in the appropriate remedy for a situation that you describe where a person is actually legally guilty, but there has been some kind of an error somewhere — an improper search or introducing evidence that should not have been introduced. That remedy may not necessarily be “exoneration,” but it can still be a recognition that something was done wrong, and here is how we are going to redress that wrong.
Senator Simons: Thank you very much.
Senator Pate: Thank you, Senator Simons, for introducing —
Senator Simons: I tee them up. You hit them out of the park.
Senator Pate: I would like to pick up on the flip side of what Senator Simons just talked about with, first, Mr. Erskine and then Mr. Knox and Mr. McLellan if you each want to comment.
When Mr. McLellan was talking about the Hill case, it, of course, brought this to mind where there are clear miscarriages of justice that are linked to racism or sexism, but those do not get interrogated at all. How would this commission be able to look at these issues in situations where the issue is basically — it is evidence that was available at the time of trial or at the time the person pleaded guilty but was not seen as relevant because of racist or misogynist attitudes?
Mr. Erskine: Thank you, senator. I think that’s a very valid point and, I think, it is one of the reasons why CABL is encouraged about the idea that diversity is actually codified in the commission but also wanting us to take it a step further and say there needs to be a certain — whether it is a percentage or a number of people from Black and Indigenous communities on the commission.
Why that’s important is because that gives the perspective of saying, “Let’s take a look at this case and look at why this person was found guilty, why this evidence wasn’t brought forward, why it wasn’t considered, why it wasn’t viewed because of a certain perception of it.” The commission needs to feel empowered and emboldened to take a stance and say they’ve looked at this and they think the reason why this came out this way is because there was racist ideology, racist thinking throughout the entire process, apart from particular recruitment of people involved in the process. There was misogynist or sexist thinking from a group of people, and that permeated through the prosecution in a way that made this miscarriage of justice even worse.
The commission needs to be able to feel emboldened that they can do this and take a stand and say, “This is why we think this happened, and we need to right this wrong,” even if it’s a matter of their making this pronouncement, if I can use that word, to say, “We feel this is why this happened.” And then the applicant has a remedy in another course or form because the commission was bold enough to say, “The only reason why we think this person was convicted was because the investigators engaged along the line of an investigation that relied on certain racist stereotypes.”
Senator Pate: Mr. Knox, if you can also speak to which provisions of the legislation would allow this, that would be helpful.
Mr. Knox: Thank you, Senator Pate. I probably won’t be able to point to those off the top of my head here, but I wanted to reiterate what Mr. Erskine said and, Senator Pate, what you know better than any of us, and that is the pervasiveness of racism and misogynistic thinking.
We talk about police. We know it occurs there. We talk about prosecutors, and we know these features are there. We should talk about defence lawyers being concerned about those issues and judges as well. We also need to think about witnesses, and that’s a concern sometimes we forget.
One thing that I did want to point out — I hope it’s not off topic, Senator Pate — being experienced in a sentencing circle, reviewing the Impact of Race and Culture Assessments, or IRCA reports, Gladue reports, those are profound tools to help me understand marginalized communities. These topics, hopefully, can be embraced through the mandate, through the commission because they are very pervasive. But you and the members of the Senate know that much better than I do. Thank you.
Senator Senior: Thank you to our witnesses for being here today. I wanted to poke away a little bit at Mr. Knox’s thoughts around the makeup of the commission because I think it’s really important that it be considered seriously in order to make sure it’s a commission that will be accessible, particularly to those who need it most, Black and Indigenous folks.
I wanted to know, Mr. Erskine, beyond it being codified, do you have any thoughts around — and before I get there, this idea of so many who are lawyers, so many who are from the community, et cetera. Sometimes when we think about this, we’re thinking that perhaps the ones who are not lawyers are the ones from Black and Indigenous communities. So I want to ensure that that’s not the thinking, but that when we are thinking of the makeup of the commission, we’re looking across all the qualifications that we have in folks from different communities who are involved.
Do you have any thoughts on that, Mr. Erskine?
Mr. Erskine: Thank you, senator. I would agree with you. It’s sometimes difficult. I don’t want to seem like CABL saying we need to have a quota of candidates from certain communities, but we need to ensure there’s representation. I agree with you that we shouldn’t look at it and say anyone who is maybe Black or Indigenous is going to be a non-lawyer. We don’t want that, certainly. The reality is, though, that sometimes both the Black and the Indigenous communities are under-represented in the legal profession, which is a problem and another issue that I know is beyond the scope of this Senate hearing.
Certainly, if you can get the best of both worlds, if I can say that, where you have candidates for commission appointments who are actually lawyers who are from both Black and Indigenous communities, that would be amazing. Again, I don’t want to seem like I’m just checking off a box, but it does help. It’s important to ensure that we have the broad perspective because even a lawyer who belongs to the Black or Indigenous community may not always get the full grasp and understanding of a person who is a layperson who belongs to the same community as well.
Those are the legal qualifications for sure. I know when Ms. Zita was here, she talked about legal qualifications for commission members — that definitely needs to be there, but a person doesn’t necessarily have to be a lawyer to be qualified.
Senator Senior: Thank you.
Senator Clement: It’s past the time, and I’m well aware of that. Mr. Erskine, are you familiar with the Black Justice Strategy?
Mr. Erskine: I am, yes.
Senator Clement: Do you feel that the recommendations there would support a mandated diversity around that commission more than the language that is currently in the bill?
Mr. Erskine: I think it’s incumbent on the commission, yes, to have a mandate — to go more than what is mandated currently in the bill.
The bill already talks about diversity, and it talks about that the commission needs to consider diversity. But if it doesn’t go a step further and make sure it’s drawing from the population that it’s designed to address and accommodate, then really it’s making an empty promise. The Black Justice Strategy is a part of that too. The Black Justice Strategy, as well as this commission — although it has other goals as well — one of the goals is about making justice accessible to people in communities that for far too long have seen it as inaccessible. Any way that we can go about doing that is obviously a bonus and must be mandated as well, respectfully.
Senator Clement: Thank you all for your work and testimony.
The Chair: Thank you both.
Colleagues, this takes us to the end of the round of questioning and conversation with our witnesses. We’ve pushed their limits and, to some extent, yours in the conversation. I want to express my appreciation for that so that we have a really good opportunity to explore the insights that they can provide to us.
At this point specifically, I want to thank Dr. McLellan, Mr. Erskine and Mr. Knox for joining us and sharing their perspectives, and also to you, senators, for the tight, focused questions that you posed to the witnesses.
At this point, I’m going to bring this meeting to a close. As you know, we will be continuing the study of this bill next week in our committee deliberations.
(The committee adjourned.)