THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 6, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:18 p.m. [ET] to consider Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews).
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good afternoon, honourable senators.
[English]
My name is Brent Cotter, and I’m a senator from Saskatchewan. I’m the chair of the committee. I’m going to invite my colleagues to introduce themselves.
Senator Batters: Denise Batters, also from Saskatchewan.
[Translation]
Senator Audette: Kwe. Michelle Audette [Innu-aimun spoken], Quebec.
Senator Oudar: Good afternoon. Manuelle Oudar, Quebec.
[English]
Senator Senior: Paulette Senior, Ontario.
Senator Arnot: David Arnot, Saskatchewan.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: I am Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Aucoin: Réjean Aucoin, Nova Scotia.
[English]
The Chair: Welcome, colleagues. Thank you.
Honourable senators, before I introduce the guests, let me advise you, if you already haven’t appreciated it, that there will not be a second panel today. Some of the witnesses were unable to commit to attend. As a result, with your agreement, especially since our visitors are distinguished and joining us in some cases at inconvenient times, we might extend our time to 5:30 p.m. to give them an opportunity to share their thoughts with us and for us to engage them in questions. As a result, I would invite you, witnesses, to take seven minutes for opening remarks, and then we will engage with you further.
For our first panel, we’re pleased to welcome from the Criminal Cases Review Commission, or CCRC, of the United Kingdom, John Curtis, In-house Counsel. He is joining us by video conference. From the North Carolina Innocence Inquiry Commission in the United States, we welcome Laura N. Pierro, Executive Director, who is also joining us by video conference. From the Scottish Criminal Cases Review Commission, we welcome Michael Walker, Chief Executive, who is also joining us by video conference.
I welcome you and thank you for joining us. We will begin in a moment with opening remarks from Mr. Curtis, Ms. Pierro and Mr. Walker. The floor will be yours for approximately seven minutes. Then we will engage you with questions and conversation.
John Curtis, In-house Counsel, Criminal Cases Review Commission (United Kingdom): Thank you, senator. Good evening from the U.K., and good afternoon to you in Canada. I’m very pleased to be with you today and to assist with your very important work. I’ll describe the commission’s role and its contribution to the British criminal justice system. Also, last year, my colleagues and I met with David Lametti and his team, and I gave evidence to your Justice Committee via video link.
The Criminal Cases Review Commission was established by the U.K. Parliament in 1997 and operates under the Criminal Appeal Act 1995. Following from the legislation that created us, it took approximately two years to become operational.
Parliament made us independent and charged us with investigating and referring possible miscarriages of justice to the appeal courts. In 27 years, we’ve looked at over 32,000 cases and made 850 references, around 31 each year and more than one every two weeks. Of our references, 70% have resulted in criminal convictions being overturned or, occasionally, sentences being reduced. We are funded by the Ministry of Justice, and our current budget is £8.5 million.
We have seen a marked increase in work over the years. Our annual intake is now at around 1,500 applications. We have an easy read form and accept online submissions. Those 1,500 applications are against the U.K. prison population of around 80,000. Currently, there are no waiting times for CCRC reviews, and 85% of our reviews conclude within 12 months. The most complicated cases take longer and can run to two or three years.
We submit an annual report with accounts to Parliament, and operational oversight is by a 10-person board. We have around 120 staff, including 10 commissioners. Many but not all of us are legally qualified. We are a collaborative, multidisciplinary organization that includes people with a mix of legal and investigative skills.
Parliament granted us a unique range of investigative powers. We can obtain material from public bodies and private individuals. We can direct police investigations in large cases. Under an order from the court, we can also speak to jurors. We can review any criminal case, from the most minor offence to the most serious. As a body of last resort, individuals are usually expected to have exhausted their appeal rights before applying. However, in exceptional cases, we can review convictions even if there has been no appeal. That may be in a case where there is extreme vulnerability or a person needs us to use our special powers to assist them. We can deal with the convictions of deceased persons if applications are made by close relatives.
In addition to obtaining files from the police, courts, prosecutors and defence, we often see material from schools, social care providers, medics and the security services. We can speak to witnesses — either from the trial or new witnesses — lawyers, scientists, police officers and even judges to understand what has happened in a case. We can also instruct new tests on exhibits. We are the only body with the power to send a case for a second appeal, and references are made on the basis of fresh evidence or a new legal argument that we found and if we think there’s a real possibility or reasonable prospect that the conviction would not be upheld by the court.
Themes in our references include developments in science, often DNA but also pathology, pediatrics, defects in computer evidence or better understanding of mental health conditions. We have referred cases involving victims of human trafficking and modern slavery. There have also been instances where there has been non-disclosure of important information in the trial process or misconduct by the police. All cases are considered by commissioners, and a written statement of reasons or decision is provided in every case. There is no time limit for applying to us, it is free to do so and you can apply more than once. Due to reductions in state funding, only 5% of applicants now have a lawyer. This is a concern. Although we don’t believe it impacts on the outcome of a review, it does increase the time it takes us to work through a case.
Finally, I’ll say that we undertake outreach work to judges, lawyers, universities and campaign groups. We facilitate academic research, have a stakeholder forum and appear before the U.K.’s Justice Select Committee, commenting publicly when appropriate and helping to improve the U.K.’s justice system. We work with our counterpart CCRCs in Scotland, Norway and New Zealand, and we look forward to engaging with the new Canadian commission in due course. Thank you.
The Chair: Thank you very much, Mr. Curtis.
Laura N. Pierro, Executive Director, North Carolina Innocence Inquiry Commission (United States): Good afternoon, Senator Cotter and esteemed members. I am the new Executive Director of the North Carolina Innocence Inquiry Commission. I succeed former Director Smith, who testified before you last in November 2023. I will therefore caution my remarks so as not to repeat what you have already heard, but I would be happy to give you our statistics and our background.
By way of my own professional background, I am a former 20-year career prosecutor out of the State of New Jersey in the United States who worked her way up from the role of assistant prosecutor to the deputy executive in charge all litigation in the county. Following that career, I was appointed as a United States immigration judge, first serving in New York City and then Newark, New Jersey, two of the largest and busiest courts in the country. I left that position to accept my current role as the new director. I highlight my background as it informs my approach to the wrongful conviction process and bestows me with a unique perspective of the criminal justice system and its components.
As you know, the North Carolina Innocence Inquiry Commission is the United States’ first and only independent state agency charged with the neutral investigation of post-conviction claims of factual innocence. We are notably distinct from criminal investigative units or criminal review units that are formed and run through prosecuting agencies as well as innocence projects that are publicly funded and provide direct representation to the claimant. I have read the pending bill, briefs and submissions and watched the prior hearings to familiarize myself with the issues and prepare myself to answer your questions. It is my great honour to serve as the director of the commission in North Carolina, and, just as I have commended our state’s legislative efforts in creating this groundbreaking organization to address the insidious issue of wrongful convictions, I would like to equally recognize and applaud Canada’s persistence and resolve to found its own organization dedicated to doing the same.
Wrongful convictions erode public confidence in the criminal justice system and its participants. For every wrongful conviction, there is a true perpetrator still at large, a victim under the false impression of having received justice and an innocent person who may spend or has spent years in prison for a crime they did not commit.
North Carolina’s commission model is distinct from the one being proposed here in Canada. We do not address delinquency adjudications of juveniles unless they were convicted as an adult following a waiver or transfer process. We do not investigate cases in which someone was found not guilty by reason of insanity because we limit our scope to those persons who are actually, factually innocent. We insist that the claims be made by the claimant themselves because of the waiver of rights that must be signed and authorized prior to commencing our work, and we, therefore, do not pursue claims by deceased individuals. We also do not address issues such as sentencing and ineffective assistance of counsel because these are considered procedural errors only and may not involve an actual innocence claim. We do, however, accept claims from individuals who are still making their way through the appellate process but have, in certain circumstances, deferred any further investigation until that process is complete.
With these differences in mind, I am prepared to answer any questions and commit myself to your service as well as the service of the future members of the organization you create to help navigate these new waters. With that, I thank you for inviting me to attend and will cede to your questions when you are ready.
The Chair: Thank you very much, Ms. Pierro.
Michael Walker, Chief Executive, Scottish Criminal Cases Review Commission: Good afternoon, senators. I am obliged to the committee for the opportunity to comment on the bill.
The Scottish Criminal Cases Review Commission was set up by an act of Parliament in 1997 and came into being in 1999. Much of our legislation mirrors the legislation in England, as John has explained. I rather thought that John would steal my thunder by making many points that apply to the Scottish Criminal Cases Review Commission, so I won’t dwell on those. What I propose to do is go through and comment on some of the aspects of the bill based upon our own experiences in Scotland.
I note that the bill draws on elements of Scottish and English practice but innovates to produce a solution tailored to the needs of Canada. I do not have expertise, obviously, in the Canadian legal system, so my comments are based upon the application of the legislation which established the Scottish Criminal Cases Review Commission and which provides a framework around which the Scottish commission operates. My comments, of course, must be viewed in this light.
I’ve picked out a few provisions that struck us as being interesting and of importance. With regard to the provisions concerning whether an application is admissible vis-à-vis appeal rights, our experience would perhaps tell us now that we’re not convinced that it is absolutely necessary to make specific reference to the exhaustion of appellate remedies, albeit the bill provides exceptions to this general rule. If enacted in its current form, there is the risk the miscarriage of justice review commission would be unduly inhibited in addressing cases of injustice in which the applicant has not exhausted his or her normal remedies. Those situations arise, in our experience, for a variety of reasons.
I note that the commission’s powers of investigation are in line with the powers of the commission under Part I of the Inquiries Act. I assume that those powers will mirror or reflect the powers that we have, for example and as John mentioned, to seek a court order to compel an individual to give a statement to us, as well as the powers that we have to compel information from both public and private bodies that is relevant to our investigation.
One additional power that the Scottish commission has that I think would interest you is to request assistance from the High Court of Justiciary in Scotland in obtaining information from abroad. This power has proven to be invaluable in terms of our reviews in a number of cases. Most notably, perhaps, is the review that the Scottish commission carried out regarding the man convicted of what is colloquially known as the Lockerbie bombing.
In relation to the grounds, I know that the grounds either to direct a new trial or to refer the case to the court of appeal mirror the test from Scotland. The test of miscarriage has much to commend it. It is, if nothing else, comprehensible to laypeople. The Scottish legislation does not refer, as does England’s, to the idea of a reasonable prospect of success, but the high court in Scotland, in commenting on where the interests of justice lie, has implied something close to this is needed for a successful referral to the appeal court.
More generally, while I note the factors for a commission to consider in making a decision, experience in Scotland suggests that your commission will, in dialogue with your appeal court, develop its own approach in the interests of justice that are appropriate to the needs of your jurisdiction.
I note the mandate you have to make recommendations to address systemic issues that may lead to miscarriage of justice. We in Scotland don’t have this statutory power. Nonetheless, without any specific authority or duty to do so, the Scottish commission has liaised with other actors in the criminal justice system in Scotland where it has formed the view that a review has raised an issue of general importance to the justice system or has highlighted some dysfunction therein.
The position of a criminal cases review commission within the criminal justice system has the advantage of providing an unusually broad view of proceedings with the additional benefit of hindsight in individual cases that come before the review commission. I have no doubt that the status provision in the bill should embolden your commission in any such endeavours.
One point I certainly wish to make is that, as I understand it, the bill has the decision to be made by the majority of commissioners. This mirrors the position in Scotland, or certainly the position adopted by the Scottish commission, rather than the position adopted by the English commission. We consider that a quorum larger than one person for all case decisions is sensible. All decisions not to refer may be subject to judicial review, and this requires, in our experience, scrutiny by legally qualified commissioners. In addition, decisions taken by a single commissioner do not have the in-built checks and balances that a quorum of commissioners can provide. In Scotland, we have had legal police forensic professionals as commissioners, and we have found it very useful to call on the experience of psychiatrists and psychologists. Matters relevant to those professions occur with increasing frequency in our work.
Lastly, in relation to the publication of decisions, we, like the English commission, are not entitled to publish our decisions. On occasion, in relation to decisions not to refer a case, issues have arisen when those involved misunderstand or misrepresent our position. In such circumstances, it can be very difficult to mount an effective defence to such allegations, and it is possible that such uncontested allegations harm the public perception that the criminal justice system in Scotland is able to correct miscarriages of justice.
I have no doubt that the publication of the commission decisions in Canada, subject to the stated restrictions, should enable the commission to justify its actions and to give the public confidence in the ability of the commission to correct miscarriages. I look forward to welcoming the commission into the small group of review commissions and to learning from its work. Thank you very much.
The Chair: Thank you very much, Mr. Walker. To all of you, thank you very much for your cogent and very concise presentations. We will now turn to questions from senators. A series of senators, not surprisingly, are looking forward to engaging you in conversation.
Some senators will engage you in French. When that begins in a few moments when we get to Senator Carignan, I may interrupt to ensure you’re receiving the translation. We’re going to begin with Senator Arnot, who is the sponsor of the bill in the Senate.
Senator Arnot: Thank you to all the witnesses for appearing today. I believe this bill that the committee is now considering will create for Canada a new, empowered, independent and much-needed review body in cases of possible wrongful conviction. I’m looking forward to all your testimony.
As you know, the authors of this legislation studied what has worked in your jurisdictions. In turn, they created a much-needed Canadian response to an issue that speaks to the credibility of our justice system and the need to minimize miscarriages of justice.
I have two questions in the first round, one for Mr. Curtis and one for Mr. Walker, and I’ll have a third question for Ms. Pierro in the next round.
Mr. Curtis, in the United Kingdom, your commission refers cases based on fresh evidence or new legal argument. Do you find that this threshold effectively balances the need to address wrongful convictions with the need to manage application volume?
Mr. Curtis: Thank you, senator. The short answer is yes, and I would point to the statistics that we provided. In 27 years and looking at 32,000 cases, 850 references have been made, the majority of which have been quashed.
We do face criticism in that some people say that is not enough or that we should refer more and be bolder in our approach. Rather than looking at what might be called a success rate of 70%, they say we should accept more cases being refused by the court of appeal. The response to that is this: What would that say about the criminal justice system in England, Wales and Northern Ireland? If thousands of cases were being overturned and quashed, that would suggest that too many were going undetected and that the appeals system at first instance was unsuccessful.
We’re also conscious that this is a reference bias to the court of appeal; it is not a stress-free or cost-free process. It’s often highly traumatic for the victims of crimes who may have had closure on a serious sexual offence and had it reopened through a reference by the commission. To refer to something where there was a bare possibility as opposed to a reasonable prospect could cause unnecessary distress or raise false hopes and would also impinge on the public purse and judicial time for an unmeritorious case.
Broadly, the commission has been satisfied that it has been able to refer all cases it wanted to. It doesn’t always agree with the court’s verdict, and we’re sometimes surprised by it, but it’s very difficult to think of a case we thought had been a miscarriage of justice that the test that’s enshrined in our statute didn’t allow us to, at least, put before the court. I hope that helps.
Senator Arnot: Mr. Walker, I would like to explore the investigative component of your commission. I would like to know how you assign people to do the investigation and what kind of skills, experience and techniques they may use. On the basis of what we found in Canada, police investigating other police does not necessarily work well. What is it you do to address all the issues effectively in your investigative process?
Mr. Walker: Thank you very much, senator. That is a very good question. The first thing I would say is that, because our numbers are very small with a staff of about 10, which includes now only 6 legally qualified solicitors, we don’t have specialist staff — police employees, for example, with a police background — to carry out the investigations. We do have the power under our act to instruct, however, the Lord Advocate, the highest Crown official in Scotland, to carry out investigations on our behalf. In the 25 years that we’ve been active, we have used that power once. I think we use it sparingly for the reasons that you mentioned. We don’t want the prosecution side somehow investigating their own side. One of the points we always make clear to the public is that we are independent.
Because of the lack of specialist staff, we rely heavily on our board of commissioners, who bring all their different perspectives on the criminal justice system. I mentioned we have police commissioners, retired police officers and scientists. I can’t stress highly enough the importance of the scientific community, both in terms of the psychiatry side of things but also, over the years, having had very esteemed professors of forensic science. They help to address focusing the investigations that need to be carried out. This might ultimately be arranged by our legal staff in terms of following those investigations through, but ultimately, the strategic decisions about the investigations and what to carry out is driven by a board.
In terms of the review process, our board is split into four commissioners, and each active case under review goes through a review process done by a committee of four board members. It’s that level of experience and the different perspectives they are bringing that allow us to focus the investigation on what we need to do. We do not instruct police officers; although we have that power, we don’t do so in practice.
Senator Batters: Mr. Curtis, your Criminal Cases Review Commission in the United Kingdom applies a “real possibility” threshold for referring a case. That’s the criterion that’s supported by case law and requires that the possibility of a judicial error be reasonable and not merely possible. However, the Canadian government, with Bill C-40, is introducing a much lower threshold by simply requiring that an error may have occurred without requiring any new evidence for that.
Given your experience, do you think such a low threshold here could lead to a high number of applications, thus increasing the risk of delays — including court delays, which we have in Canada — and burdening a commission with limited resources available?
Mr. Curtis: Thank you, senator. The short answer to that question is yes. If I can elaborate, it would be along the following lines.
Our court of appeal has made it clear that it’s virtually impossible to be sure that when you have something it might not have made some difference to a jury verdict. That is why this qualifies a mere fanciful, theoretical, bare possibility as not being sufficient to warrant a successful appeal. The court has made it clear that it needs a firmer basis and real possibility. “Reasonable prospects” is the preferred term. There is a corresponding provision in civil law. If you draft a contract, whether the word “reasonable” appears in the contract or not, the obligation for parties to behave reasonably exists. In practice, the court in Canada would want to deal in reasonable and meaningful occurrences rather than very remote and fantastical possibilities.
Senator Batters: We shall see, because, of course, this is the commission that applies that standard. The commission has the ability to refer it on, if they deem it appropriate, to a court for a new trial or appeal, but it’s the commission that decides that standard, so we will see.
With that lower threshold in Bill C-40, do you think there is also a risk that unfounded cases may be accepted for review, which could divert resources from truly deserving wrongful conviction cases and perhaps threaten that Canadian commission’s efficiency?
Mr. Curtis: Yes, I think if references were being made to the courts that were only dealing in fanciful and theoretical possibilities, the court may seek to interpret the words and provide guidance to the commission on how it construed the parliamentary intention and whether it might seek to explain to the commission that, when Parliament was giving the commission its power to refer cases where it thought that something possibly may have gone wrong, it should be interpreted as a reasonable possibility rather than a fanciful or theoretical possibility. Otherwise, I think you would find that the resources of both the courts and the commission could be in jeopardy.
Senator Batters: Thank you.
Before I go to my last question for Mr. Curtis, I want to make a comment. I really appreciated, Ms. Pierro, when you said that for every case we are dealing with here, there is a “true perpetrator” still at large. That is something we haven’t heard a lot about, but it is very important to the potential victims who are dealing with these cases, and not only the people who were potentially wrongly convicted.
Also, Ms. Pierro, you mentioned you did not want to duplicate any of the testimony that had been given before. I wanted to let you know that it wasn’t actually given to our committee; it was the House of Commons Justice Committee. This is the Senate Legal Committee, so it was the other process that you went through there.
My last question is for Mr. Curtis. Given the experience of the Criminal Cases Review Commission for the U.K., what measures would you recommend to Canada to ensure that our new commission can assess applications thoroughly and fairly, and what are some of your practices that could be particularly beneficial to a new Canadian commission?
Mr. Curtis: I think the multidisciplinary aspect of our commission, which Mr. Walker spoke about for the Scottish commission, mirror each other. It is great to have non-lawyers involved in a process, both to bring different perspectives and to increase public confidence. Regarding the role of police officers — which one of your colleagues brought up — some of my colleagues who are former police officers have been involved in references and detecting miscarriages of justice, and they come with commendable careers. Having their inside knowledge definitely helps.
If we could do things differently from scratch, I think we would build a better IT system to try to capture all the knowledge and all the different cases and look at issues in sharing all of that. We carry a lot around in our heads and in discussions, and it would be great to explore artificial intelligence as a way of managing our knowledge. After 27 years, it’s a shame that people in the U.K. — practitioners in law as much as the general public — still don’t know what we do and how to approach us. There’s definitely more we could do in terms of publicity and accessibility.
Senator Batters: Thank you.
[Translation]
Senator Carignan: My question is for Mr. Curtis.
In the United Kingdom, it’s possible to request a judicial review for courts-martial. Here’s what I’d like to know: What percentage of the caseload comes from courts-martial? Do they involve a specific element of complexity compared to other cases, namely those that don’t involve a court-martial?
My second question is for everyone. What role does the discovery or identification of DNA play in people’s innocence or proving their innocence? In what percentage of cases are people being exonerated thanks to DNA?
[English]
Mr. Curtis: Thank you. I can deal with the court-martial point. We only have a very small number of cases from the military court. I would think that out of our 32,000 cases in 27 years, maybe 10 or 20 have been from the military court.
In terms of the complexity, the law is fairly similar. Where we have faced problems is in making the military aware of our powers and getting the same level of cooperation from people who are unfamiliar with our presence. When we ask for files and explanations, they may not have worked with us as often as the conventional police forces and prosecutors. However, once we get over that familiarity barrier, the exchange of information and cooperation are very good.
In terms of references and successful appeals, I can only think of one military case, and that was a marine who had shot somebody in Afghanistan when they were said to be defenceless, and that conviction was reduced from murder to manslaughter on the basis of new psychiatric evidence regarding when he was serving.
The Chair: The second question was about DNA and the number of cases that have been resolved through DNA evidence.
Mr. Curtis: DNA often features in our investigations. There are some differences in the concept of innocence. Our court does not pronounce guilt or innocence. The appellate court will say whether a verdict is safe or unsafe. It will rarely make a finding of innocence. The jury might make a finding of innocence at first instance, but the appeal court will only say safe or unsafe.
How many cases have we seen where people are genuinely, factually innocent as a result of DNA? Again, I think it’s relatively small. It does happen, but in most cases, we are satisfied that there is at least a reasonable doubt about the person’s responsibility for the crime, and the court, in most cases, will accept that and quash the conviction, but in quashing it, it doesn’t actually say that the person is innocent. It’s a very hard question to answer. We form our own views, perhaps, but in a legal sense, the court doesn’t see that its statutory responsibility is to declare somebody innocent as opposed to saying that the verdict is unsafe.
[Translation]
Senator Carignan: In what percentage of situations or cases does DNA cast doubt on someone’s guilt? My question is for all witnesses.
[English]
Mr. Curtis: A quick answer from me on that would be that maybe one third of our references have been on some form of forensic science, and DNA is a component of that, so 200 or 300.
The Chair: Could you offer a response to Senator Carignan about the percentage of cases that lead to findings of “unsafe” or the language that’s used in North Carolina based on forensic evidence, most particularly DNA?
Ms. Pierro: Yes. Thank you for the question. In North Carolina, DNA does figure into our cases quite a bit. About 66% of our exonerations involve DNA.
Mr. Walker: That’s a very interesting answer that Ms. Pierro has given, because I don’t have an exact figure in terms of the percentage you’re looking for, but I can say from experience that it is very small and has become smaller over the last 25 years. I’m not quite sure why that is the case. These are, obviously, very interesting cases, and if we are able to drop DNA experts, it’s something they’re always keen to do because it has the possibility of providing incontrovertible proof about who committed the crime.
My experience, looking at hundreds of cases over the last 15 years or so, is that it seems, in Scotland at least, with the different areas of evidence gathering that the Crown is able to get now — including its own DNA evidence to prove the crime — it is not the norm to be referring cases based upon new DNA evidence. It has happened, but it’s much less common.
I was very interested to hear that Laura’s experience with it in North Carolina is 66%. I suspect that may be because of the innocence ideal, and that’s why you’re looking at those cases. At our commission, we’re very often applying legal tests about whether there is due evidence, whether something else has gone wrong in the process — whether the trial has been unfair, et cetera — and so on, which no doubt are in all common law jurisdictions.
To answer your question, the number is very small.
Senator Dalphond: Thank you to the members of the panel. My question is for Mr. Curtis.
Can you comment on the number of cases you receive? Was it a large number at the very beginning, then a kind of average as people already knew you existed? I also noticed that in your last annual report, you referred to an increase of 20%. Does it go up and down all the time, or is it steady? What can we expect here once we have this commission in place and advertise it somewhat?
Mr. Curtis: Yes. I would think, senator, there would be a sharp intake to start with. There will be the files that are handed over from the government plus all the new intake, and that takes a while to work through.
In the first 10 years of operation, we averaged around 800 cases a year coming in, but we had a very text-heavy legalized form that people needed to fill in, and without a representative, it was probably quite difficult to do that. We’ve moved to a much easier form where people give us some very basic details. Once we moved to that form, we nearly doubled our intake from 800; it went up very sharply to 1,200 or 1,400. Our big year, recently, with 1,600 applications, is linked to the fact that it’s an easy read form and online but also the amount of outreach we are doing in terms of going into prisons, talking to prisoners and assisting them in making applications to us. There is a corresponding relationship between the application process and how easy you make that and the advertising and outreach that you do, so you can control and increase or decrease the numbers by adjusting the processes.
Senator Dalphond: I see that you have referred almost 750 cases for what appears to be wrongful conviction, but you have referred far fewer numbers for wrongful sentencing. There are 10 times more cases of wrongful conviction than wrongful sentencing.
Mr. Curtis: Yes.
Senator Dalphond: I see it’s not exactly the same thing. How do you explain that you have mostly cases of wrongful conviction and not wrongful sentencing? There seem to be more cases on sentencing in Scotland.
Mr. Curtis: For us, I would say that tends to reflect the intake. Maybe many people are content with their sentence and the time they’ll serve in prison, or if it’s a non-custodial sentence, they may not want to challenge the fine or the community service. We get a smaller number of sentences to look at, and that drives the number of references that we make.
Senator Dalphond: Thank you.
Senator Simons: Thank you very much to all of you for being us, especially the gentlemen in the United Kingdom where I think it’s close to 10 o’clock now. In North Carolina, I’m guessing you were up late last night, too.
Ms. Pierro: I was. Thank you.
Senator Simons: I wanted to ask about the processes that your different committees use. Mr. Curtis, you mentioned the capacity to interview jurors, which surprised me because that would be very unusual in Canada, and judges.
Can you compel jurors and judges who worked on cases to speak with you? Do you ever have challenges with people not wanting to speak to you for fear of incriminating themselves or prejudicing themselves in some future inquiry or examination of their conduct?
Mr. Curtis: We don’t have the power to compel, senator. We would not seek one because, oddly enough, we find that when we approach people to say that we are an independent organization and are interested in establishing the truth and ask if people will have a conversation with us, they’re generally willing to do that. If we did think there was a risk of incrimination, we would have to instruct the police to conduct the interview and have it done under caution with representation, which may, in turn, deter somebody from actually answering a question.
With jurors, we have to seek the permission of the court and provide an explanation about what we’re doing and why. Sometimes, it’s the other way around in that the court will ask the commission to carry out an inquiry to assist it in examining an appeal, on the basis that jurors might be more willing to speak with and responsive to an independent commission than with a police investigation.
I think we’ve done around 100 of those types of investigations to assist the English courts over the years. I think it’s something that they value.
Senator Simons: I’ll start with Ms. Pierro because we haven’t had a chance to hear from you as often.
When you’re doing these investigations, I imagine that some of your investigators would be former police officers who have become private investigators and such. Is there ever a concern that people will be unwilling to speak to your investigators because they appear in the persona of the same sorts of people whose actions led to the wrongful convictions?
Ms. Pierro: That’s an excellent question, senator. When I first came aboard, that was one of my thoughts as well. It seems intuitive that our investigative staff would be former detectives, but our attorneys are the ones who do the investigations at the commission.
I like that for a variety of reasons. First, as a former prosecutor myself, while, of course, I mostly relied on the investigation that was done by the police or detectives, et cetera, I was in the best position to know the factors that I would have to argue to the court, to know the motions and underlying facts that I would need at my disposal and to know what I had to ultimately prove to the jurors in order to seek a conviction. I felt I was in a unique position to understand questions we needed answered from the witnesses that maybe the detective might not have known to ask during the first go. We do have that background, which is wonderful.
Notwithstanding, as you suggested, our investigators — that is, our attorneys — still frequently come upon some resistance. That is because, as Mr. Curtis intoned and Mr. Walker discussed, we’re still not so well known that everybody understands us to be this neutral commission, this neutral investigatory body, that is simply seeking the truth.
However, once we explain that — and we do — to the witnesses, we tend to gain their cooperation. But, as you suggested, if we don’t, in North Carolina, we do have the tools to compel testimony. We can use material witness orders. We can give people subpoenas. To include former attorneys of the current claimant, we can depose them. We can depose the law enforcement officers, and we can compel them to give us a statement and, ultimately, to be a witness at a hearing.
Senator Simons: Mr. Curtis said that in situations where somebody could be incriminated, the police would come in and they’d be cautioned about their rights, but I can see all kinds of conditions where somebody might be sued civilly or lose their job. There might be all kinds of repercussions short of criminal prosecution that people could face if it turned out that they had done a bad autopsy and so on. You could imagine all kinds of scenarios in which prosecutors, police officers, forensic scientists — all kinds of people — could be held liable in something other than a criminal sense for what they’ve done.
Mr. Walker, I’ll give this question to you. Have there been cases that have, as a result of your commission’s work, led to people facing those kinds of economic or civil sanctions?
Mr. Walker: Thank you very much. That’s a very interesting question.
If I could just make a quick point before I try to answer that question, the powers in Scotland seem to mirror the powers that Laura is describing in North Carolina in terms of the compulsion in relation to taking a statement from an individual. In our experience, that’s very important, the threat of that compulsion, which in some cases allows you to take a statement from a truculent witness, for example. I think that’s a very important power for a commission to have.
To the second part of your question, that is very interesting, and I can only really speak from my experience in review processes where we have criticized taking statements from forensic scientists or anyone involved in the process, or where any professional person has been criticized by us. I don’t know whether we are a less litigious society than North America, but I’m struggling to think of an example where someone has faced a civil penalty or suit based upon their poor performance as to perhaps when we have investigated a case. I just haven’t experienced that. I’d be interested, actually, if John in England has ever experienced something like that.
Mr. Curtis: Occasionally, it’s something you can see as worrying somebody. We have had instances where lawyers maybe gave advice to the defence that, with hindsight, they wished they’d given different advice or they didn’t take account of something.
Scientists can sometimes accept that they did something, but practices evolved, so what they did was in good faith then, but they might do things differently now.
I don’t think we can recall many sanctions, but if somebody declines to comment, that in itself leads the commission and the court to draw an inference from that silence. If they’re invited to comment about what they did and whether they stand by their advice or opinion and they choose not to reply, an inference can be drawn from that.
The Chair: Ms. Pierro, you look as if you would like to make a small contribution to this point. If you would, please go ahead.
Ms. Pierro: Yes. I want to make the point that in certain circumstances, for example, when we have reticent law enforcement officers and we compel their testimony, they will sometimes have their police disciplinary appeals, or PDA, lawyer in attendance.
While we too have not had many instances of civil process following our hearings, the commissioners at one point in time tried to initiate contempt proceedings against a forensic scientist from a crime lab who was lying. At that time, it did not go anywhere.
Typically what you’ll have are full agencies versus individuals who are sued following the event. You’ll have a police department and the district attorney’s office as a whole versus the district attorney or the police officer because they’re acting in accordance with their duties. I don’t see a lot of individual civil processes, but there certainly is the overall agency process, as you can imagine, which would be a part of trying to reap some form of compensation for the wrongful conviction.
I also wanted to echo Mr. Curtis’s sentiment. It was well said and a good thought, senator, but I think we don’t usually find that the experts are committing misconduct so much as they are in positions, reviewing new evidence in a new light with new scientific theories or processes in place that weren’t available to them back when, and that’s why their testimony has changed.
Senator Pate: Thank you to all our witnesses. As you may or may not be aware, in Canada, our process has, up until now, reviewed the cases of very few racialized folks and no cases with respect to women. The impacts of racism and misogyny are very clear in those areas. When you look to the prisons, for instance, 1 in 2 of the women serving sentences of two years or more are Indigenous, and about 5 to 6 out of 10 are racialized women.
For many of these women, even when they’ve been represented by excellent criminal law lawyers, if it’s in the context of violence against women where they’re responding to violence first perpetrated against them, that context has often been left out of the defence in large part, I would argue, because of a lack of awareness.
I’m curious whether you have seen that in your jurisdictions as well. Do you screen prospective commissioners for that? If so, how? As well, how do you deal with situations where many people, as they have here, particularly women, even more particularly Indigenous and other racialized women, may plead guilty to charges as a result of socialization around moral, ethical, familial, cultural and community responsibilities that actually don’t equal legal responsibility but often haven’t been adequately interrogated? I’m curious about whether you’ve looked at this, how you’ve dealt with it and any recommendations you might have regarding how we consider this going forward with this commission, both in terms of mandate as well as commissioners and procedures.
Ms. Pierro: Thank you. I first want to indicate that, according to the 2020 census, there were 130,000 Native Americans representing eight state-recognized tribes, including the only federally recognized tribe of the Eastern Band of Cherokee Indians located within North Carolina.
Our commissioners are specifically selected along racial and gender lines so as to strike a balance of representation, along with geographic diversity so as to properly represent the whole state. In reviewing the commissioners — and we do have some who are coming up for reappointment — it is incumbent upon me to make those suggestions so that we continue to balance those racial and gender lines.
However, senator, to your point, we do not have any Indigenous people on the commission. With that, because I actually reviewed those statistics in preparation for today, knowing that the Indigenous community was a hot topic for Canada, I’m poised to try to reach out and rectify that as we go forward with regard to representation.
But I think it’s going to start with your director, as it starts with me, and that is that I have a career dedicated to the representation of victims and a ton of hours dedicated to understanding and trying to attend to those marginalized communities, and also an appreciation for what informs and compels wrongful convictions by way of guilty pleas.
I think that you are going to feel satisfied, if you choose the right personnel for your commission, that this component will be satisfied and the community will be protected. Although obviously I am not Indigenous, I am very sensitive to, as I said, marginalized populations and making certain that they’re represented or understand the basis by which someone can plead guilty knowing that is a possibility. We do have that. It is a different aspect for the purpose of what the commissioners do.
For example, if there is an underlying guilty plea, then for our commissioners, it requires a unanimous vote in order to pass the case on. So there are differences there, and that may be something that you all want to consider: the impact of guilty pleas versus trials.
I know that is something that we currently — after our history — wish to go back and take a look at. I would urge you from the onset to do your due diligence, if I can respectfully say it that way, and inform yourselves as to whether or not there should be a different process for guilty pleas versus convictions following a jury trial.
Otherwise, I think that it will be your staff members — and we have some of the finest — who will make certain that those safeguards are in place. I hope I’ve answered your question, but I would be happy for any follow-up.
Mr. Walker: Obviously, we can’t speak in terms of anything to do with Indigenous peoples. However, part of the Scottish government’s strategy over the last few years has been for every board in Scotland to have at least a 50/50 gender balance, and our main commission is majority female.
Moving into aspects of what might be called a trauma-informed approach, all our staff are trained in relation to this. They have a much better appreciation of the ways women are treated in society, and I think that feeds into the way in which cases are reviewed. We’re very conscious of those aspects, for example, when a potential defence or guilty pleas are made under some sort of duress.
Without a doubt, on a case-by-case analysis, we have certainly referred cases over the years where women have been defending themselves and been found guilty in Scotland of what we call culpable homicide, or found guilty of murder or perhaps another offence or a complete conviction would be the correct disposal of the referred cases in that light. As we move forward, I think we have much better training of our staff, and they have an appreciation of those types of issues. I think it’s very important that our board will always be at least 50% female.
Mr. Curtis: Our commissioners are majority female, and our chair is a woman at the moment. Of our applications, 10% come from women and 10% come from young people under 21. We don’t think that’s enough, and our advice would be that it’s not so much the decision-making components but the outreach staff. They need to be representative. They need to win the confidence of the communities that we’re trying to reach. Even if we can’t employ the right representation, we can try to find community groups and work with them. We can use them as intermediaries and advocates for us and raise awareness. That’s been fairly successful.
The Chair: Thank you, Mr. Curtis.
Colleagues, we have three more senators who wish to ask questions. I’m hoping, with your indulgence and the indulgence of our witnesses, we may go for another 15 minutes.
[Translation]
Senator Oudar: First, I’d like to thank all three of you. Your expertise and the experiences you’ve shared with us today are important. Your testimony will be useful.
I also very much appreciated your offer to work with the new commission. If the bill is passed and this commission sees the light of day, that’s a gift you’re giving them.
Thank you for reading Bill C-40. With the expertise and experience you have in reading this bill, in terms of the commission’s mandate, makeup or powers, are there things you would have liked to see in the bill before us today? What advice or recommendations could you give us?
If you haven’t had time to look at the bill in detail, what are the three best pieces of advice you can give us today for securing the success of this new organization?
Let’s start with you, Ms. Pierro, since you were the first to say that you had read the bill and done your homework. I’d like to hear from you first.
[English]
Ms. Pierro: Thank you. One of the key distinctions, as I have mentioned already, is the fact that we do not deal with claims of deceased persons. Mr. Curtis has indicated that they do.
There is a little bit to that, I think, insomuch as I think the claimant’s own testimony winds up being such an integral part of our process. Mr. Walker made a very good comment about our system versus others, but please understand that we are limited to actual factual innocence. As a partner to that, by necessity, we would need the claimant to take part.
I also think that your different threshold was something that was — I don’t want to say “concerning” to me because that would be the wrong word, but when we seek to present a case to our commissioners, the commissioners are tasked with determining whether there is a sufficient evidence of factual innocence to merit judicial review. At that point, our process is not adversarial. I am presenting our case to them on behalf of the commission. Once they determine that there is sufficient evidence, it then goes before a three-judge panel, and from there, the convicted person must prove via clear and convincing evidence that the convicted person is innocent of the charges.
What Mr. Curtis was speaking about before, I would echo those sentiments in that the theoretical “may,” to me, left a lot to be decided. What is “may”? I know in America, for example, we deal with probability versus possibility when it comes to, for example, certain forms of manslaughter. Without a concise definition, I have that concern for the current “may” provision within the statute.
Also, as a former judge, I will say that we are limited to actual factual innocence. We don’t deal with sentencing issues or make recommendations. This is for purposes of seeking an exoneration.
One of the other things I will note that I don’t think has been addressed here, and I think it is an important component to the overall justice system, is that you are calling yours the “miscarriage of justice” commission. A miscarriage of justice, importantly, is a failure of a court or judicial system to come to a just conclusion, especially one that results in a person being convicted of a crime of which they are not guilty. I like your title insomuch as it doesn’t limit itself to a person being convicted of a crime for which they are not guilty, but it also may, in some instances, enter the judicial realm. I know that judges are very sensitive about, perhaps, a director of a commission making what might be considered decisions that a court would ordinarily make —
The Chair: Ms. Pierro, I’m going to interrupt you there with apologies so that we can hear from Mr. Curtis and Mr. Walker.
Ms. Pierro: Absolutely.
The Chair: Thank you.
Mr. Curtis: I would echo Ms. Pierro’s thoughts around what “may” means. I think it’s important for the new commission to find a way of maintaining judicial confidence as well as public confidence. Dialogue with the judiciary is as important for us as outreach to the communities.
I think that locations are important as well. I don’t know whether you envisage your commission being in a single location or having regional offices, but in terms of conducting investigations on the ground, speaking to people and going into prisons, a country the size of Canada is going to present very different challenges — and greater challenges — to the considerable practical challenges in a country the size of the U.K. Going to part of the U.K. to investigate or do an interview can still take somebody two days. I wonder how long it would take to do the same thing when going to a coast of Canada.
Mr. Walker: I would like to make one point that was mentioned at the beginning; I think both Laura and John mentioned it. The test being with respect to a miscarriage of justice mirrors exactly the test we have in Scotland. I think what you’ll find as you go on is the use of the word “may” will not allow you to refer cases based on fanciful arguments, for example. Certainly, what happened in Scotland is that we were told at the beginning that it was not to be interpreted quite as low as that. We had a case where we referred on a “lurking doubt,” and we were told that was not the correct interpretation of the expression “may have been a miscarriage of justice.” I suspect your own courts will possibly take a similar line.
I was struck in reading the bill just how many of the provisions reflect some of our own procedures and policies. I find that reassuring.
The final point I would make quickly is a much wider one. In Scotland, the commission is a small part of the criminal justice system, and it operates effectively only if the rest of the criminal justice system is, for example, well funded and if the defendants have solicitors and good representation. As we plow on into our twenty-sixth year, what we’ve found, and I think to a certain extent it is the same in England and Wales, is if the applicant is not represented — and in our figures, the represented applicants have fallen to a low figure of 14%, slightly higher than in England — I don’t think the system works as effectively. The people who represented the accused at trial, who’ve got an in-depth knowledge of the trial, if they’re not involved in the process when it comes to the commission stage, then that loss of knowledge is a loss.
So as we move forward in the next 25 years, we will be lobbying our own government and the system itself to say that we can only operate in a bigger system, and if that system is creaking, I think it has effects on how we, the Scottish commission, operate.
[Translation]
Senator Aucoin: Thank you to our guests. What you’ve told us has been really fascinating.
Since time is limited, my question may be for Mr. Walker only, but the other two guests may want to answer too.
I see that in Scotland, you have a 2% Gaelic population. First, who appoints the commissioners? Second, do you take language into account when appointing the commissioner? Do you take Gaelic into account, for example?
[English]
Mr. Walker: The appointment of the commissioners is done by the King, and the appointments are taken through our government. We as the commission, at an employee level, are not involved in that process.
As regards the point about Gaelic, for all of our forms, as in England, we are always open to translating everything, and we do reach out to these communities. I don’t have any tremendous experience of living in these communities. It tends to be up in the western islands of Scotland, and it’s, perhaps, putting it too bluntly or crudely to say that little crime appears to come from these communities in terms of the wealth of crime that happens in Scotland.
It doesn’t feature greatly in our process. It’s not because we don’t reach out to the Gaelic community. We, of course, allow applications in the Gaelic language. We simply don’t receive as many applications, perhaps because crime and the number of people convicted of crimes are far lower where people who speak Gaelic live in Scotland. That seems to be a simplistic answer, but that is my experience. We don’t get loads of applications from the Gaelic population.
[Translation]
Senator Aucoin: Just to clarify, my question was: In appointing commissioners, does the government try to appoint commissioners who speak and know Gaelic?
[English]
Mr. Walker: I’m not sure because I’m not involved in that process. That is the honest answer to that. I can certainly tell you that in the time I’ve been there, we have not had a Gaelic-speaking commissioner. Maybe that tells its own story. I am certainly happy to provide a written answer to that so I am not in any way providing you incorrect information, but my understanding is no.
[Translation]
Senator Aucoin: Do the other commissioners have any comments on the issue of minority languages?
[English]
Mr. Curtis: All our literature exists in, I would think, at least a dozen different languages for various communities within the U.K. In the 27 years of operation, we have had commissioners who have languages other than English in their skill set and who are appointed for different ethnicities. The act doesn’t make any specific provisions for that, but inevitably, public life and public appointment principles require the government to have regard for a body that is reflective of and commands respect from communities.
Ms. Pierro: I would note that unlike some of the other commissioners, we do not have a predominant language outside of English. However, there are a lot of Spanish-speaking people in North Carolina. We would necessarily translate all of our forms into Spanish for them. We would make certain that there was an interpreter, as there is here for us today, to interpret everything. I personally am fluent in the language for the purpose of dealing with witnesses and victims. But regarding commissioners who are fluent in the language, I’m not aware that we currently have any.
Senator Senior: Thank you so much to all of you for your generosity with respect to your time and all that you’re sharing with us. It’s really appreciated.
I’m curious about key learnings that you’ve taken away and can share with us, maybe the top two or three, specifically around the types of cases and the types of folks that you come across in the cases that you’re dealing with, as well as, for those who look at this, some of the systemic barriers that you’re seeing and any that you’ve acted on. Ms. Pierro, because you started talking about the makeup of the commission and changes you would like to make, perhaps you can start.
Ms. Pierro: Thank you, senator. I think one of the key takeaways that I have seen after being involved in this process since 2007 that the staff I work with have shared with me is the difference between the treatment that a case that was referred to us with a guilty plea versus a case that came about as a result of a trial by jury is given. I think just like science and technology has caught up, one of the areas where we need to catch up is the idea of false confessions. That would be my number one: to drill down on the issue of how you’re going to treat cases that come to you by way of guilty pleas versus following trials.
Another key takeaway would be — and it is a part of false confessions — the idea of marginalized communities. By that, I mean those who present with educational deficits and those who have other unspecified learning disabilities. They are more susceptible to false confessions, and one kind of dovetails into the other.
Number two is trying to do specific outreach and appreciate those who may be disabled in their ability to apply to us. You all seem to be very focused on this, which I think is fantastic. This includes women and Indigenous communities. Women, by nature, are a little reticent to come forward. I definitely think that specific focus on those people for the purposes of outreach and recognizing that would be my number two.
As for number three, one of the things that I think you have all been concerned about, and that I continue to be concerned about, is limiting our time on cases that are ultimately not going to materialize into ones that we can pursue. There are a tremendous number of folks who will occupy our time with frivolous claims, to be honest. Those would be the top three takeaways from the course of this process for your consideration.
Mr. Walker: I would echo what Ms. Pierro has said about having some sort of triage system to deal with unmeritorious cases to allow the commission to focus the bulk of its time on the cases that merit much further investigation. That’s something we put in place about 10 years ago that has allowed us to deal very quickly with cases that are frivolous. Where we have taken on cases, our referral rates are actually quite high when we consider the cases that we look at in what we call our “stage two.”
The other two very quick points I would make is that, certainly in our experience in Scotland, the number of homicides has reduced — which is a good thing — due to various schemes the government has put in place. We’ve seen an explosion in Scotland over the prosecution of sexual offences. That brings its own difficulties, both in terms of staff having to deal with that — they are very difficult cases to review — and very often we’re not talking about ideas of fresh evidence, DNA evidence or false confessions. This class of cases, when I talk about sexual offences, it’s generally familial sexual offences. That has been our experience over the last 10 years, and I suspect as your jurisdictions seek to prosecute these offences, perhaps that will happen there too.
The other thing, I think, is to always to look out for trends in other cases, when one or two cases come through the door. John mentioned human trafficking. We have that in Scotland, and it’s then that we can go to our prosecution and see whether they are following the rules they’re meant to follow to make sure that people are not prosecuted for human trafficking. That allows us to look at systemic problems and to try to cure the problem before people are actually prosecuted for the offences.
Mr. Curtis: In terms of the community you reach out to, literacy or illiteracy will be a big issue, I would imagine. Written materials are not the be all and end all; you need ways of engaging that do not rely on writing. A lot of people will have mental health issues within the prison sector, so it’s finding mechanisms to reach them. Internally, a good knowledge management system is essential for a commission to work.
I would suggest that you consider whether or not there should be a bar on people who haven’t appealed being able to go to the commission. One third of the cases that we have successfully referred have been cases where somebody hasn’t been able to bring an appeal, and it is the assistance that we’ve been able to give them that has resulted in their conviction being quashed. It’s recognizing the vulnerability of people.
Then, I think, it’s funding, both for people to represent applicants and ensure that lawyers in Canada can support applicants to the commission, but also that the commission’s budget and resources are protected and it’s not seen as an easy casualty in a time of austerity.
The Chair: Thank you very much. This brings us to the conclusion, and there will not be an opportunity for a second round or for the chair to ask a question that he was keen to ask.
Colleagues, I want to invite you to join me thanking our witnesses this afternoon and this evening: Mr. Curtis, Ms. Pierro and Mr. Walker. This has been extremely helpful to our deliberations on this bill. Your insight, experience and responsiveness to our questions are greatly appreciated. I apologize, at least on my behalf, for extending the time that we asked of you well into the evening for all three of you, but we really are grateful for the time you have shared with us.
I would also thank you, colleagues, for hanging in for a longer session than planned. I think it was a great opportunity for us to chat with these witnesses.
I want to thank the staff whom we have also asked extra time of to enable us to continue our deliberations a little bit longer. This brings us to the conclusion of our day’s deliberations.
(The committee adjourned.)