THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 7, 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.
[English]
The Chair: Good morning, senators. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. I am Brent Cotter, chair of the committee and a senator from Saskatchewan.
I’m going to invite colleagues around the table to introduce themselves, beginning with the deputy chair.
Senator Batters: Denise Batters, Saskatchewan.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Senior: Good morning. Paulette Senior, senator from Ontario.
Senator Arnot: Good morning. David Arnot. I live in Saskatoon, which is in the heart of Treaty 6 territory and the traditional homeland of the Métis.
Senator Simons: Paula Simons, Alberta. I come from the heart of Treaty 6 territory.
Senator Pate: Kim Pate. I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
Senator Aucoin: Réjean Aucoin from Cape Breton, Nova Scotia.
[English]
The Chair: Welcome, senators, and thank you for being here.
I’m about to introduce the people who will be speaking in a moment, but just before I do that, I wanted to let everyone who may be watching online that Senator Arnot is the sponsor of this bill in the Senate, and Senator Batters is the critic of the bill.
Honourable senators, we are meeting to continue our study of Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews).
For our first panel, we’re pleased to welcome, from the Canadian Crime Victim Foundation, Lozanne Wamback, Director and Co-Founder. Ms. Wamback is joining us by video conference. Welcome, Ms. Wamback. From the Canadian Resource Centre for Victims of Crime, we welcome Sarah Crawford, Executive Director. Ms. Crawford is joining us in person. We also have, from the Indigenous Bar Association, Rheana Worme, Board Member. She is joining us via video conference. Welcome, Ms. Worme.
I welcome all of you. We will begin with opening remarks from each witness in the sequence I introduced you, beginning with Ms. Wamback. You have approximately five minutes each, which will be followed by questions from and discussion with senators. We have approximately an hour for this session.
I now invite Ms. Wamback to begin. The floor is yours.
Lozanne Wamback, Director, Co-Founder, Canadian Crime Victim Foundation: Mr. Chair and members of the committee, I want to thank you for the opportunity to testify today.
I would also like to say that it is such a terrible thing that happened to David Milgaard. It is horrible, but I would really like to congratulate Joyce Milgaard for turning such a devastating, terrible thing into something good. My congratulations to her.
We would like to identify some of our concerns regarding Bill C-40. First, we are concerned about the delays that will arise in a court system that is already so burdened. Actually, as a matter of fact, as was revealed by the Chief Justice of the Supreme Court of Canada who said on May 3, 2023, the sluggish judicial appointment process is allowing some alleged criminals to walk away because there aren’t enough justices to hear cases in a timely manner. The current situation is untenable and I am worried that it will create a crisis in our justice system which is already facing multiple challenges. Access to justice and the health of our democratic institutions are at risk.
Now, while we can all agree that this bill is needed and beneficial, so worthwhile, we can also assume that many convicted will elect to pursue this, warranted or otherwise, so delays are going to be inevitable in this overburdened system. Therefore, we are hoping that there will be a plan in place to appoint more judges to reduce the burden.
Also, we hope that the support that will be available to those who apply will also be available to the victims and/or their family members preferentially at an equivalent level. As we know, the court process, can be very distressing for them, and reliving the case again is only going to result in re-victimization.
Now, I can tell you from personal experience —
The Chair: Can you give me one second, Ms. Wamback.
Colleagues, the feed from Ms. Wamback’s end is quite difficult and you can see that it is being interrupted. It was at our end that we cut off the video as we hoped that the audio might improve. There is nothing that can be done. I think what we will do is persist in this. We have your written statement, but I think we will invite you to carry on. We’re hearing all of your words, but they are being periodically suspended.
Are we comfortable with that, colleagues, so that we do get to hear Ms. Wamback?
Senator Batters: Sometimes I have noticed on other types of things, if someone goes to just audio only, it does improve because the video component is a fair bit of a burden for the Wi-Fi. So audio only might be better.
The Chair: We tried that. We didn’t have much success. I’m going to suggest, Ms. Wamback, that you carry on with your remarks. We are getting them just fine, but with occasional pauses. We are hearing all of your words. If that becomes problematic, I’ll interrupt you again. But I’m going to invite you to carry on. Thanks.
Ms. Wamback: I am almost through. I’ll continue then. I don’t have much more.
I was saying that the court process can be very distressing for the victims and the family members, and to relive the case results in re-victimization. I know this from personal experience after the violent attack on my son and also with interaction with many crime victims over many years.
The entire process can be a terrible source of stress, requiring years and years of emotional and psychological counselling. Much of this is out of pocket, causing a lot of financial burden. In fact, there are many crime victims who cannot afford the counselling and go without it when it is very much needed. We are really hoping that this will be addressed as well.
Those are our concerns and thank you again.
The Chair: Thank you, Ms. Wamback. Thank you for persevering. We appreciated receiving your remarks.
I will invite Ms. Crawford to address us for roughly five minutes.
Sarah Crawford, Executive Director, Canadian Resource Centre for Victims of Crime: Good afternoon, Mr. Chair and honourable senators. Thank you for the invitation to appear before you this afternoon as part of your study into the miscarriage of justice reviews. My name is Sarah Crawford, and I am the Executive Director of the Canadian Resource Centre for Victims of Crime, or CRCVC. The CRCVC provides critical support, research, and education to survivors of serious crimes and stakeholders across Canada. Our mission is to ensure that victims of serious crime and stakeholders can access the resources they need to make informed decisions, secure justice and have their rights recognized and upheld.
Today, I will discuss the supports and challenges of Bill C-40 as it relates to victims and survivors of crime. I will emphasize the importance of ensuring adequate resources are available for them throughout the process. This bill takes a significant step in addressing wrongful convictions. However, for survivors of crime and their families, justice is not simply about punishment but about accountability, validation and a sense of closure. Knowing that the wrong person may have been held accountable can undermine the faith that survivors place in the criminal justice system. It can create a sense of betrayal and unease.
For survivors, justice is complex. It is the correction of harm that was caused, and the assurance that their voices are heard and their experiences are validated.
The reality is that, while Bill C-40 is designed to prevent injustices for the wrongfully convicted, it also holds the potential to reopen deep emotional wounds for victims and survivors of crime. Having a conviction overturned means that survivors, who believed their case was resolved, may face re-traumatization as they relive painful memories. It is crucial that this bill not only safeguards against wrongful convictions but also safeguards the mental and emotional well-being of survivors and families affected by these decisions.
The CRCVC believes this bill must prioritize resources to support victims throughout these reviews, ensure access to counselling, case updates, and additional resources that may be needed to help them navigate such challenging processes.
A primary concern we have at CRCVC is that the focus on reviewing cases of the wrongfully convicted could be perceived as prioritizing the needs of the accused over the experiences of survivors and victims. In some cases, this emphasis could lead them to question whether the justice system still values their voice or sees their experience as secondary. To prevent this, it’s essential that we incorporate a balance to ensure not only that innocent individuals are exonerated but survivors’ emotional needs are fully respected.
We must also remember that reopening cases means survivors and their families will have to confront the trauma of their cases once again.
We ask that this bill include provisions for victim notification and support services, making sure that those impacted will have the psychological and informational resources necessary to cope with the re-emergence of their cases. Survivors should not be left to navigate these complex feelings and systems alone. They need support, clear communication and a compassionate approach from the justice system.
Our goal today is to be an advocate for victims and survivors, and to show our unwavering commitment to upholding their dignity, safety and rights.
While this bill advocates a necessary conversation on wrongful convictions, we urge that it simultaneously strengthens the supports available for survivors of crime. We stand ready to support this work and ensure that victims’ and survivors’ voices and needs are never forgotten. Thank you.
The Chair: Thank you, Ms. Crawford. Ms. Worme, for approximately five minutes, we’d be pleased to have you address us.
Rheana Worme, Board Member, Indigenous Bar Association:
[Cree spoken]
Good morning and hello to everyone. My name is Rheana Worme.
I am a Cree lawyer, a mother and a board member of the Indigenous Bar Association of Canada, or IBA. I bring thanks on behalf of my board to the members of the committee for the opportunity to share these reflections on Bill C-40.
We view Bill C-40 as an essential opportunity to address the historical and ongoing injustices disproportionately experienced by Indigenous individuals, particularly Indigenous women. This is due to the often-intersecting layers of systemic discrimination that gets exacerbated by the criminal justice system. In line with the mandate and the objectives of the IBA, we respectfully submit that the following recommendations, which align with the Truth and Reconciliation Commission, or TRC, and the MMIWG2SCalls for Justice will ensure that this bill adequately serves the needs of Indigenous communities, especially the Indigenous women whom the justice system has too often failed.
To ground some of the IBA’s recommendations, I want to draw on somewhat of a personal story. I’m a second-generation lawyer. Both of my parents — Don Worme and Helen Semaganis — are lawyers as well. Early in their legal careers, my parents worked on a file called the Queen versus Donelda Kay. It was one of their first murder trials and one of the first in Saskatchewan to use a battered woman defence. I would say it might even possibly be the first to ever advance the argument from an Indigenous woman’s perspective. It would later be used as a case study in a course called Defending Battered Women on Trial.
Though both of my parents are Cree, my father unequivocally understood that he could not fully appreciate the experience of this Indigenous woman who had experienced domestic violence, so he ensured he made space to listen, not only to his client but also to my mother. Although she was junior to him and still in law school, he understood that, despite his own experiences in witnessing his mother’s death, he still did not fully understand the layers of colonial violence that Indigenous women face. Together, they were able to present a defence that was unique to the Indigenous woman’s experience with domestic violence.
What I suggest in drawing from this example is that there is an innate inability for even the best ally to fully comprehend the context and experiences of women and, more specifically, Indigenous women.
To summarize our recommendation areas, there are six in total: Indigenous representation on the commission and systemic bias; a group review process to identify systemic patterns; a mandate that’s adequate, sustainable and provides predictable funding; potential bias and a need for training of commissioners; culturally competent and trauma-informed legal representation; and, finally, those go to the powers of the commission.
The first category is paramount: Indigenous representation on the commission is essential. It ensures a lived and cultural understanding of the unique barriers that Indigenous people face. Indigenous commissioners would be equipped with lived experience and cultural insights, which would be crucial to fulfilling the bill’s mandate to prevent systemic injustices, particularly those affecting Indigenous women. We strongly believe that the IBA’s representation on the commission appointment committee will support the legitimacy of selection and equip the commission with the insights and perspectives needed to identify systemic biases accurately.
The IBA represents over 330 Indigenous legal professionals across the country, and we’re committed to promoting Indigenous individuals in Canada and ensuring that its members and representatives meet a rigorous standard of Indigenous identity in order to prevent identity fraud and maintain the IBA’s role as a trusted Indigenous professional organization.
This recommendation is grounded in the TRC Calls to Action 50, which calls for the establishment of Indigenous representation on judicial appointments. That is focused on eliminating systemic discrimination.
Our second recommendation is to go beyond individual case reviews and move toward an evaluation of cases, collectively. This will uncover shared patterns of systemic discrimination faced by Indigenous applicants, especially Indigenous women, such as racism, sexism and colonial bias. This proactive approach forces the recognition of connections and improves the identification of patterns. Otherwise, the commission risks reinforcing the very inequalities it aims to correct. This recommendation is grounding in the National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report’s Calls for Justice that emphasize the importance of understanding the collective experience and systemic patterns of discrimination that Indigenous women face.
Third, in order to deliver justice equitably, it must be adequately resourced to support the needs of Indigenous and Black communities. We ardently advocate for dedicated funding mandated within Bill C-40 to ensure the efficacy and sustainability of the commission. Further, the IBA recommends that Bill C-40 allocate dedicated funding for Indigenous women, including financial support for legal representation, culturally competent consultation and trauma-informed services. Without adequate resourcing, Indigenous women and other marginalized communities may face barriers to accessing the commission, hindering its ability to serve its intended purpose.
Fourth is the mandate of cultural competency, anti-bias and trauma-informed training for all commissioners and staff. These sessions should be designed and led by Indigenous trainers and incorporate Indigenous legal principles. We submit that this would help to prevent unconscious bias and ensure that cases involving Indigenous women are reviewed with an understanding of the intersecting factors of race, gender and socio-economic status that can influence justice outcomes.
Fifth, go deeper into the training of commissioners on Indigenous legal traditions to include Indigenous perspectives and legal principles in decision making. There ought to be a mandatory adjudicative notice of Indigenous legal traditions here and notions of guilt, defending oneself or children and the disconnect between Western and Indigenous law in order to expose miscarriages of justice. These should all be factors to be considered and included in the reporting of the commission.
Last, the commission should have a mandate to make broad systemic recommendations based upon its case reviews. These recommendations should inform policy changes, including systemic reforms to policing, legal representation and corrections, with a particular focus on issues that disproportionately impact Indigenous applicants, especially Indigenous women.
If there are no questions, those are my submissions.
The Chair: Thank you, Ms. Worme. I think there will be questions, but we appreciate your presentation.
We will turn now and invite senators to pose questions to each of you, starting with the sponsor of the bill.
Senator Arnot: I have a question for Ms. Worme. I have questions for Ms. Wamback and Ms. Crawford on a second round, if we get to that.
Ms. Worme, as a Cree lawyer and active member of the Indigenous Bar Association, your perspective on the overrepresentation of Indigenous people in the criminal justice system is particularly valuable as we analyze Bill C-40. I want you to get an opportunity to amplify the foundation of the points you’ve just made in your opening comments. I’d like you to focus on the issues of overrepresented groups, such as Indigenous people, in the justice system, but what would you suggest the commission does to shape its structures, it’s guidelines and its policies such that they can address systemic biases in wrongful convictions, particularly the intersectionality of race and gender faced by First Nations women.
The bill mandates the commissioners to reflect the diversity of Canadian society. From your perspective, how essential is it for the commission to include Indigenous voices, cultural competency, trauma-informed competency and training to ensure fair treatment of Indigenous applicants to a miscarriage of justice commission?
Ms. Worme: The IBA recommends that to improve this bill, ensure that the Calls to Action and the Calls for Justice are appropriately met is an Indigenous-led oversight and accountability mechanism that will guide the commission’s work, ensuring that Indigenous laws and practice are respected. This committee would provide ongoing feedback ensuring accountability, not only to Indigenous communities but also for promoting continuous alignment with Indigenous legal standards.
The current wording of proposed new subclauses 696.84(1) and (2) includes provisions of “supports to applicants in need,” including the commission “assisting them, if they are without means, in obtaining legal assistance in relation to making an application or providing a written response . . . .”
It’s uncertain as to what is meant by “without means.” Without adequately defining this, the eligibility for these supports is significantly narrowed. Legal fees add up very quickly, and for individuals with children living at or under the poverty line, those who are underqualified for gainful employment would potentially not fit this category and, thus, further the injustice that is being perpetuated. The commission runs into the continued issue of having to “trauma qualify” certain individuals if they don’t meet this narrow definition.
This definition should be given a liberal interpretation to understand the economic statistics of Indigenous people in Canada.
In addition, we strongly recommend that the additional wording be included in the text of Bill C-40 that ensures culturally competent legal and trauma-informed representation, especially for Indigenous women, and, further, that the commission should include or at least have access to Indigenous legal experts and advocates who can assist in navigating cultural and systemic barriers and who can work closely with Indigenous communities throughout the review process.
Again, we would submit that the IBA is well situated to provide support in this regard.
Senator Arnot: Thank you.
Senator Batters: Thank you to all of you for being here today. It’s nice to see Ms. Worme from Saskatchewan. I’m assuming you are testifying from there.
I want to make a brief note to Ms. Wamback. Thank you for persisting through the sound difficulty, and thank you also for mentioning in your opening remarks about the significant problems that can take place in the Canadian justice system right now dealing with court delays and which were exacerbated by federal judicial vacancies, leaving victims waiting so long for their matters to be heard and for, finally, justice to be rendered.
My first question I would like to pose to Ms. Crawford with us here today. Bill C-40 mentions victims of crime just once in paragraph 696.83(2)(d), where it’s talking about the commission’s obligation to adopt policies concerning:
the provision of notices and other information to applicants, to their representatives, to attorneys general and to other interested persons, including victims; . . .
That’s all that it says. But no specific measures for victims are provided in the bill beyond that mentioned, and even the government’s own gender-based analysis plus document scarcely mentions victims. The minister stated that the commission will include a victim services coordinator, but in my questioning of Justice officials, they indicated that it would be up to the chief commissioner to decide if that position would be a full-time, part time or just a contract position and if there were more than one coordinator dealing with this very important issue.
In your opinion, is it appropriate that the victim services coordinator position is not actually included in the bill, and do you think that this approach could risk becoming just a symbol and giving an image of support for victims without a real structure to help them effectively?
Ms. Crawford: I often see this in the work of victim services. There is, typically, never enough funding or money to support these roles. They are often seen as secondary. Even when we look at funding opportunities, there’s not core government funding. It’s always through grants and applications. By not putting it in, it is not really making sure that we have a victim advocate or someone working with survivors.
If possible, to put it in would be a real commitment to those who are affected by crime and show that their rights matter, and that we are asking for services to be provided to them. They are able to access community services, but no one would have the specific understanding of the nuances of going through this committee, as would someone who was really being a coordinator of that.
I do think if it were to be written in as necessary, it would be a great way to advance support for victims and survivors of crime.
Senator Batters: As one of our witnesses testified yesterday, for every one of these wrongful conviction cases, there is very possibly a true perpetrator still at large. That is crucial for these victims who are involved in, as you stated before, having these cases come up again then. It re-traumatizes the victims, because they believe that their case was long dealt with, and all of a sudden, they found that not only is their case not necessarily dealt with, but the person who did it may still be at large and hurting other people.
Bill C-40 allows individuals who are seeking these types of wrongful conviction reviews to ask the commission for a review without having exhausted their appeals. It also specifically does not require evidence of innocence, and it sets quite a low standard, a low threshold, for reviewing applications.
Do you think those criteria could potentially open the door to unfounded applications that could re-victimize victims of crime? What adjustments would you recommend to prevent undeserving cases from subjecting victims to unnecessary suffering?
Ms. Crawford: That is out of my purview. I do not know that I necessarily have the ability to say what the threshold should be. I do think, regardless of what the threshold is, the ability for victims to have their say, for them to be able to be informed of all decisions and to be able to access supports and counselling are important.
For me, to look at what the threshold would be is a little outside of my purview, but, yes, making sure that they are informed along the way. I don’t know what that threshold should be, if I’m being honest.
Senator Batters: That’s fair enough. Going back to the issue of victim services coordinator, if that position is, indeed, created, how do you think it should be organized? You have considerable experience in this type of thing with the Canadian Resource Centre for Victims of Crime. How would you suggest it be organized to ensure there is concrete accessible support for victims of crime affected by these reviewed cases? What responsibilities and resources do you think this position should include to provide appropriate follow-up and support to victims who are reliving these types of difficult events?
Again, I want to remind those watching that victims are just as concerned as the wrongful conviction applicants in this process because those victims would also be victims of a potential error that may have resulted in a miscarriage of justice.
Ms. Crawford: If this position were to be created, it would be great to consult with agencies doing this work to find some sort of balance. Often, when we are doing this work, we all have specialties we are referring to. Survivors of domestic violence might work with a domestic violence resource or sexualized violence. The CRCVC does work with victims of all serious crimes.
When we are looking at what this job should entail, it should be someone to liaise with the victims, to know the system well enough to be able to navigate where they can get support, to be able to provide them with ongoing counselling and resources, whether it is them as a counselor or them providing some sort of free or available counselling in the community. They need to be able to be a resource to them for all of their needs as it comes to this case, obviously.
Typically, when you are working with someone who is working with victims, you’re able to refer to different services for support. They are able to know their local area, where they can get support and counselling. They are able to look for funds and availability for them, if possible.
The person would have to be able to navigate the system, to be able to understand what the landscape is for victims and survivors of crime. That would be crucial.
How it would coordinate would be a person to oversee the victims’ side. I don’t know how many cases they would review annually, but that could be burdensome for just one person.
Ultimately, that would need to be taken into account. It is a great question.
[Translation]
Senator Carignan: I’ll continue with the topic of victims. Under the Canadian Victims Bill of Rights, you must know that victims have the right to participate in hearings.
[English]
Senator Arnot: I’m not getting interpretation.
The Chair: We will stop for a second. I was getting it, Senator Arnot.
Senator Carignan: It is uncomfortable. Each time I speak in French, we have a delay, technical problems. We have to adjust that type of testing, and everything has to be done before we start. I do not understand why it is always like that when I have to intervene. I am frustrated with this situation.
The Chair: That is noted. Thank you, Senator Carignan. Would you like to begin again, in French, and we will see if we are working fine?
[Translation]
Senator Carignan: I’ll build on Senator Batters’ question. Under the Canadian Victims Bill of Rights, you have the right to participate directly in the hearings by stating your point of view.
Don’t you think that this right should be recognized or included in Bill C-40, to ensure that you’re informed of the review, the investigation and the upcoming decision and that you have the same opportunity to make representations as the accused and the Attorney General?
[English]
Ms. Crawford: Yes. Thank you for your question. I do think, when we are looking at victims and survivors of crime, they do need to be included in all aspects of the criminal justice system, if they choose to be.
That is an important question and a distinction that is important. I do think their right to be involved in the entire criminal justice process is paramount and that, regardless of if there is a victim support worker on the case or not, they need to be included in all aspects. Being able to participate fully in this would be very important. It is a great question.
Senator Simons: Thank you to all of our witnesses.
Ms. Crawford, to pick up from where Senator Batters left off, I cannot imagine the trauma I would feel as a victim if I believed that the perpetrator was in jail, the person who had hurt me or hurt someone close to me. I cannot even begin to imagine how traumatic it would be for someone to say, “Oh, turns out you have been sleeping well at night because the person you thought was guilty, is not.”
I want to give you and your colleague online, if she is able, an opportunity to speak to what that is like, to find out that what you believed and what had been giving you comfort is, in fact, not true?
Ms. Crawford: That is a fantastic question as well. That is one of the concerns of this nuanced balance of how do we uphold our criminal justice system and then look at survivors and victims of crime?
For me, I know that even just doing this work that the folks we are working with are — it is nuanced. It is hard and difficult for them in all steps of the process. To think that the person who caused them harm is in jail, then to find out they are not, that is where I really think that support piece needs to come in.
I know there will be an increase in the needs of those survivors. I know they will need to be accessing our services. I know that re-traumatization and re-victimization open up all of the hurt and wounds that have existed and that they are being re-traumatized and re-victimized. That is where it has to strike a balance that, yes, people deserve everything that they deserve. But also how are we looking at victims in this?
It is very important that we’re advocating that their needs need to be taken care of. Even if this person, or someone who they thought was the right person, is no longer or they are saying that they are innocent, they need to be able to be involved. That is where that piece of access to counselling, support access, is really crucial and paramount to this part which I did not fully see in the bill. It is a gap, to make sure that you are looking at both sides.
The Chair: I will invite Ms. Wamback to attempt to answer as well, Senator Simons.
Senator Simons: I had a question for Ms. Worme.
The Chair: If there is time. You posed the question to both. Ms. Wamback, the same question to you. We have an obligation to ensure that your communications can be shared in English and in French. One of the challenges we may have is the ability to hear you well enough for the translators to translate your comments into French. If that does not happen, I will have to interrupt you and we would have to move on to someone else. The floor is yours now, and we will do the best we can.
Ms. Wamback: I am having a real problem with the audio here. It is from my end. Every five seconds there is a long pause. I am not hearing everything properly. In response to this, yes, of course, the re-victimization is terrible. To have to relive the matter and bring up all of these memories. I want to clearly say that it is not like you get [Technical difficulties].
The Chair: Ms. Wamback, I am afraid I have to interrupt. I apologize for interrupting. We will not be able to hear your answer in this format because we are not able to translate it into French.
I invite you, if you would like, to provide your answer in writing. It will be translated into French as well and be shared with all members of the committee. I am sorry for that inconvenience, but it is an expectation of a bilingual Senate. Thank you.
Senator Simons, you had an additional question?
Senator Simons: Ms. Worme, we know Indigenous women are grotesquely overrepresented in the criminal justice system and incarcerated at higher rates than the rationality would suggest, but they are more likely to be victims themselves. Could you speak from both perspectives, as someone who is defending people who may be wrongly accused or who may have a legitimate defence, and also women who have been victimized?
How do you think we need to strike a balance in this legislation?
Ms. Worme: Thank you for that question. That is a great insight. We know that mandatory minimum sentences and plea bargaining disproportionately affect Indigenous people, particularly Indigenous women. Not only are Indigenous people at the most risk of wrongful convictions, but they also face barriers in receiving remedies for guilty plea wrongful convictions.
The IBA submits that Bill C-40 must address these practices by recognizing the cultural and socio-economic pressures that Indigenous women face by providing them with safer avenues to present defences like self-defence. This may help to prevent further injustices and uphold their right to a fair trial for Indigenous women who are currently pressured into plea bargains under inequitable conditions.
There is a need for flexibility, not only in sentencing but in dealing with Indigenous women as victims.
Senator Pate: Thank you to all of you. Thank you for bringing your perspective forward from the victims.
I am going to focus on you, Ms. Worme. Thank you for raising the case that your parents very ably worked on that of Donelda Kay. To people listening, and my colleagues may not know, it was one of the few cases where a trial was proceeded with. Ms. Kay was acquitted of murder in a situation where, but for the day, she was the victim.
You raised some important points about the fact that your father, even though he had witnessed his own mother being murdered as a young child, understood that he did not fully understand the context of Donelda Kay’s life and so had your mom participate in that process.
There are many examples. Some of you are aware that I was asked to pull together some for Justices LaForme and Juanita Westmoreland-Traoré when they were looking at this issue. In those cases, even talking to some of the lawyers who did not understand the context at the time, it seems difficult for them to acknowledge that they did not understand what was happening.
Are there other ways the IBA, or you personally, might recommend the commission require analyses of these cases so that the systemic approach you mentioned, some of these issues articulated and the context is fully explored to help try to prevent, in the future — from my perspective — the massive number of wrongful convictions of women who experience violence and in particular Indigenous women?
Ms. Worme: Thank you for that question, Senator Pate.
To answer that, we should be looking at what other policies can be incorporated to ensure that barriers are reduced for Indigenous representation on the commission. In our view, a more flexible policy regarding the appointment of commissioners and what types of backgrounds are deemed acceptable would go a long way. Many Indigenous candidates have overcome significant challenges in their lives, yet selection committees might interpret these experiences as red flags rather than as strengths. There is also an assumption that family history could impact one’s professional qualifications. This reflects a bias that non-Indigenous candidates are far less likely to encounter. This is especially problematic, given the systemic injustices faced by Indigenous communities that have placed many individuals and their families in contact with the justice system.
The committee tasked with selecting candidates for public appointments themselves often lack adequate Indigenous representation and even understanding of Indigenous realities. This leads to an implicit bias where candidates who do not conform to the typical expectations of the role are sidelined. Those are some areas where we can reduce barriers for Indigenous representation in all aspects of the commission.
Senator Pate: You mentioned mandatory minimum penalties and plea bargains, and I want to provide an opportunity for you to expand on that in terms of the IBA position on those particular issues.
Ms. Worme: I am sorry. I did not catch that.
Senator Pate: I wanted to provide an opportunity for you to expand on the position of the IBA with respect to mandatory minimum penalties and the role that they play in terms of encouraging guilty pleas and how that contributes to the injustices.
Ms. Worme: The biggest missing piece is the incorporation of Indigenous legal principles. This is specific to different areas and different nations across Canada, but in many Indigenous nations, our legal principles necessitate that we face our wrongdoings. This principle that has been instilled in many of our people has impacted a great many, I would dare say, wrongful guilty pleas.
In order to identify this, the IBA submits that the commission ought to have, rather than just annual reporting, even more transparent reporting, particularly in cases involving Indigenous individuals, through quarterly reports on the trends and systemic issues identified, particularly in cases involving Indigenous women. In our view, transparency is crucial to accountability and ensuring that the public can see measurable progress. Identifying systemic recommendations for change would go a long way to ensuring public trust in the commission.
[Translation]
Senator Aucoin: Thank you. I really appreciate your testimonies, which are quite informative.
My question is for Ms. Worme. The Canadian Race Relations Foundation felt that the commission’s mandate should include a proactive and comprehensive review to reform certain aspects of the justice system. It supported the idea that at least one of the appointed commissioners should be Indigenous and at least one should be Black, since representation mattered a great deal. To follow up on your comments this morning, the only thing that I see in the bill regarding the appointment of commissioners is clause 693.73. This clause states that we must take into account the overrepresentation of Indigenous and Black people in our prison systems.
Based on what you said today, is there an obligation to appoint commissioners who are Black or Indigenous? How many would be needed? What could you add to the comments that you already made this morning?
[English]
Ms. Worme: Thank you for that question.
Something we have seen in many commissions is that there is a need for representation at every level of an organization. That goes from the very top, in this case, the commissioners, right down to data collection. The way that data is collected and analyzed can also have an implicit bias, which is why we have advocated for not only anti-bias training for all staff and commissioners but also that there ought to be a diversity of representation at all levels of this commission. That includes not just Indigenous, Black and other marginalized groups but also people with different levels of ability and people living at or who have lived at various levels of socio-economic status. Our mandate insists not only that there be a cultural competency but also that there be anti-bias and anti-racist training for anyone who is going to be making decisions that affect Indigenous peoples in the criminal justice system.
Senator Senior: Thank you to the witnesses for being here. I have two questions. I may only be able to ask one. We’ll see.
Ms. Worme, could you talk about, in your experience or knowledge, the effectiveness of the kinds of training that you feel are important such as trauma-informed, anti-racist and anti-bias training with folks who are not Black, Indigenous or racialized? Could you talk about the effectiveness of that kind of training in your experience and whether it has made a significant difference?
For Ms. Crawford, I am interested in knowing whether or not you would see the work of the CRCVC based upon what you do now to support victims being adjusted somewhat with the implementation of this commission? And what would that kind of adjustment look like?
Ms. Worme: Thank you for that question.
The effectiveness is hard to measure. It is always going to be hard to measure. What I believe to be the most important factor in having not just effective but pertinent information that is part of that training is that it should be led and designed by people who inhabit those marginalized groups.
Having training sessions that are led by Indigenous trainers, that are incorporating Indigenous legal principles, that are including a variety of experiences and voices is what is going to make this training go the furthest.
Oftentimes, we see anti-racist training that is being produced or administered by people who occupy positions of power in society already, and they may have a blind spot for some of these biases. That is part of why we advocate for not just Indigenous-led but also other marginalized communities — Black, Indigenous and various socio-economic statuses.
Ms. Crawford: If we’re looking at how this would adjust the work we’re doing, I think there would definitely be an increase in the number of people needing support. Maybe not just from our agency but from victim support agencies across the country.
I think that we are already traditionally underfunded. We are over capacity, and so there isn’t always enough money, currently, to do the work we’re doing. This would be additional work and additional needs because I do anticipate that in each case that is reopened there will be a number of victims impacted, not just the victim but their family, friends and loved ones. That is something that we do see an increased need for, for sure. Thank you.
Senator Clement: I want to acknowledge, Ms. Wamback, your testimony, your lived experience. I don’t even know how to acknowledge how you read your lived experience, your pain and your son’s pain into this record. I want to thank you.
Ms. Crawford, you used very powerful language. The word “betrayal” is strong to talk about the way victims feel and the lack of trust in the justice system that is the result. Thank you for those words.
I have one question for Ms. Worme. You may be aware that we have in Canada a Black Justice Strategy with 114 recommendations. A lot of them speak to the testimony you provided today around overrepresentation. I wonder if you could lean into some of what you were saying to Senator Pate around seeing the commission having a mandate to speak to collective analysis. Everything about the justice system is on a case-by-case basis, but we’re not going to move forward until we understand collectively what is going wrong. What would that look like, this mandate you talk about the commission having around collective analysis?
Ms. Worme: Thank you so much for that question. I think that is very insightful.
One of the issues that we see is that when we do a case-by-case analysis, we don’t get a greater sense of the issues at hand until we are backwards facing, until we turn around and we look at who the population is in the jails, in our incarceration, that are institutionalized. In this way, of actively stepping back from the data and looking at overall trends, our hope is that it can be more forward facing and looking at these are the trends that are actively happening now. In our view, quarterly reports from this commission could be more up-to-date and more dynamic in responding to trends in systemic discrimination, because we know that discrimination doesn’t just happen in isolated incidents. The real barrier is when a whole system of biases is set up that are ingrained in the system that prohibit or limit Indigenous people, Black people and socio-economically challenged people — poor people — from being able to access justice.
The Chair: I think we have taken ourselves past an hour of deliberations, and it would be awkward to have a second round, colleagues. I apologize for that. At this point, I’m going to take this moment to thank our presenters.
Ms. Wamback, apologies for us not being able to connect with you as well as we would have liked, but I hope perhaps with respect to one or two of the questions posed to you, if you are inclined to provide a written answer, we would very much value it and share it with members of the committee in both official languages.
At this point, thank you, Ms. Wamback, for joining us by video conference. Thank you, Ms. Crawford, for being here in person. And also thank you very much, Ms. Worme, for being here. We love University of Saskatchewan law graduates to appear before our committee, I confess, and there are three of us around the table who are silently celebrating the generosity of your remarks and the insights you provided.
Honourable senators, we will continue our study of Bill C-40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law).
For our second panel, we’re pleased to welcome in person — I think “welcome back” would be better — from the Office of the Federal Ombudsperson for Victims of Crime, Dr. Benjamin Roebuck, Federal Ombudsperson for Victims of Crime; and, by video conference, from the Canadian Police Association, Tom Stamatakis, President. Thank you for joining us, Mr. Stamatakis, even if it is at a slight distance. We appreciate having you back before us. Once again, welcome.
We will begin remarks of about five minutes each from each of you, beginning with Dr. Roebuck and then Mr. Stamatakis. As I say, about five minutes for that, and then that will be followed by questions and discussions with senators. We have just under an hour to be able to engage with you, and we’re looking forward to it. I’m going to invite Dr. Roebuck to begin.
[Translation]
Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsperson for Victims of Crime: Good afternoon, everyone, and thank you for having me here today.
[English]
It is nice to see you all again. We are on the unceded, unsurrendered territory of the Algonquin Anishinaabeg people who have cared for this land since time immemorial. I am grateful for the wisdom and generosity of Indigenous friends and leaders who continue to model living in a good way and embody reconciliation.
First Nations, Inuit and Métis communities continue to experience miscarriages of justice rooted in colonial violence and patriarchy and are overrepresented in the criminal justice system. I believe that strengthening responses to miscarriages of justice is an imperative step for the Government of Canada toward reconciliation and a fitting way to honour the legacy of former Senator Murray Sinclair.
The Office of the Federal Ombudsperson for Victims of Crime, our team, operates at arm’s length from Justice Canada. We help victims of crime resolve complaints with federal agencies, and we raise systemic issues with policy-makers. As Federal Ombudsperson, I help the government respect its obligations under the Canadian Victims Bill of Rights, which is a quasi-constitutional law in Canada.
I support this legislation. A reform of Canada’s criminal conviction review process is overdue. We know that wrongful convictions disproportionately impact people who are Indigenous, Black, racialized and people from marginalized communities. I think that the commission’s expanded mandate to look beyond individual cases and explore systemic issues is a critical way to advance justice.
It’s also clear that wrongful convictions are a miscarriage of justice for victims of crime. Victims and survivors experience complex trauma reactions that can include guilt or stigma for their participation in the justice system; safety concerns if the person who harmed them remains unknown; a privacy breach by the state of those who have shared intimate details about their trauma in victim impact statements; loss of privacy in the media; the risk of civil litigation for defamation; feelings of betrayal when convictions are dismissed on a perceived technicality; post-traumatic stress disorder, or PTSD, and painful memories if asked to participate in a new trial; lost income from time off work; and gaps in victim services since survivors are no longer eligible to receive compensation for counselling. This is an area where the federal government consistently fails survivors of the most violent crimes in Canada. Most provincial compensation funds only cover limited sessions from one to three years. That means survivors who participate in parole hearings or federal programs years after a violent offence do not always have access to help.
The commission will be subject to the Canadian Victims Bill of Rights, or CVBR, which has primacy in Canada. Justices LaForme and Westmoreland-Traoré agreed with our former ombud, Heidi Illingworth, that victims of crime have rights to information, protection and participation that must be upheld, and that a commission on the miscarriages of justice should also address the ways the justice system has failed victims.
Bill C-40 requires the commission to establish policies to communicate with victims but falls short on the rights to protection and participation.
Under the Canadian Victims Bill of Rights, the commission should be required to have a complaints process for victims of crime, as all criminal justice organizations are required to have at the federal level, and if a victim is not satisfied with the response, they can file a complaint with our office. These should be set out in legislation so that it’s clear.
We would like to collaborate with the commission as they develop their policies for victims to reduce common barriers and minimize harm. Setting up a new organization like this is complex, and it’s inevitable that there will be many challenges experienced by victims of crime, and we think of a complaints process as a learning mechanism. We help people to do better by listening and hearing from survivors.
I have some recommendations. Number one, ensure the commission has legislated authority to disclose information to victims. So Bill C-40 may require a coordinating amendment with section 26 of the Corrections and Conditional Release Act to authorize Correctional Service Canada, or CSC, to release information to victims about the work of the commission itself.
Number two, when the commission notifies an applicant, it will conduct an investigation under subclause 696.5(2), notify the victim as well.
Number three, if an applicant is released from custody pending a hearing, ask victims if they have safety concerns.
Number four, notify victims who are not registered to receive information if there is an appeal that may overturn a conviction. The length of a sentence can influence the choice to register to receive information or not, so withholding new information further erodes trust.
Number five, expand the authorities in subclause 696.84(2) to authorize the commission to provide support to victims without means as well as applicants in need. This could include compensation for counselling or limited independent legal advice.
Miscarriages of justice create an ethical obligation for the state to address harms to victims of crime and those who are wrongfully convicted. Thank you.
The Chair: Thank you very much, Dr. Roebuck.
Mr. Stamatakis.
Tom Stamatakis, President, Canadian Police Association: Honourable Senators, members of the committee, thank you for the opportunity to address the committee on behalf of the Canadian Police Association, which represents almost 60,000 front-line police personnel across Canada, including both civilian and sworn members. We appreciate your work on this important issue and are grateful for the opportunity to discuss Bill C-40.
Our association supports the general principles of Bill C-40 and the establishment of a commission to address wrongful convictions in Canada. Front-line police officers and civilian members are often the first point of contact for Canadians engaging with the justice system, and they carry a deep commitment to ensuring that justice is served fairly and accurately. We understand that public confidence in our justice system is paramount, and wrongful convictions undermine that trust. As police personnel, we share in the duty to ensure justice is not only done but is seen to be done.
For this reason, we recognize the need for mechanisms that address any failures within the justice system and support initiatives aimed at correcting miscarriages of justice.
However, we do have some concerns about certain aspects of the proposed legislation that we believe require further clarification to strengthen its implementation. Specifically, we are concerned about the lack of clear timelines for the commission’s review process of potential wrongful convictions.
From the perspective of our members who have been involved in investigations, we know that delays in review and, potentially, in retrial can lead to significant challenges. The passage of time inevitably impacts the quality of evidence and the reliability of recollections.
As you all know, investigations rely heavily on the detailed records kept and on the specific recollections of the investigators involved. Over time, records may become incomplete or difficult to locate, and witnesses’ memories fade. Many of our members carry large caseloads and may have retired or moved on to other positions by the time an old case is revisited. It is critical that this commission functions with clear timelines wherever possible to ensure cases are reviewed promptly, limiting the impact of time on evidence and enabling justice to be achieved effectively.
We believe that with the right resources and clear procedural timelines, this commission can play an essential role in strengthening confidence in our justice system. Ensuring that justice is served fairly requires that cases be processed both thoughtfully and efficiently. Prolonged delays, on the other hand, do a disservice to everyone involved; those wrongfully convicted, victims, their families, and the investigators who are called upon to re-engage in these cases, sometimes decades later.
We are hopeful that this committee, in its detailed review of the legislation, can help address these concerns and provide additional guidance on timelines for reviews. A structured timeline will ensure the commission’s work is carried out effectively, balancing the need for thoroughness with the need for timelines in order to maintain the integrity of new trials.
In addition, we would encourage the committee to consider the composition of the commission itself. Given that many of the cases under review will hinge on the specifics of investigative practices and techniques, it would be beneficial to ensure that law enforcement professionals are included as commissioners. This perspective can provide valuable insights into the practical aspects of investigations, from the handling of evidence to the complexities involved in interviewing witnesses and suspects.
Having members with a professional understanding of investigatory techniques will help ensure that reviews are comprehensive and that any recommendations made are grounded in the realities of front-line police work. Such representation would enhance the commission’s credibility and help foster a balanced approach to this important mandate.
In closing, I want to emphasize our support for Bill C-40 as a positive step forward. We recognize and respect the complexities involved in establishing this commission, and we offer our partnership and cooperation as you continue your deliberations. We are all striving toward a justice system that Canadians can have the utmost confidence in, and we are proud to be a part of that effort.
Thank you for the opportunity to speak today and I look forward to any questions you might have.
The Chair: Thank you, Mr. Stamatakis, and thank you for the discipline of your presentation. It’s much appreciated.
We are now going to begin with questions from senators, beginning with the sponsor of the bill, Senator Arnot.
Senator Arnot: Thank you to both of the witnesses. Senator Cotter, I have two questions for Mr. Stamatakis, and then on the second round I would have a question for Mr. Roebuck.
Mr. Stamatakis, as president of the Canadian Police Association representing frontline police personnel, your perspective on the potential impact of wrongful conviction reviews on law enforcement and public trust is very crucial to this committee.
Given your experience advocating for police personnel and public safety, what role do you see the police playing in supporting a fair review process that maintains public trust, especially in cases where wrongful convictions are alleged?
Second, how could law enforcement agencies improve training or investigative procedures to reduce the likelihood of wrongful convictions? Do you think police enforcement agencies can work with the commission to support preventive efforts to reduce the incidence of miscarriages of justice? Here I’m thinking of some of the evidence we’ve heard about a tunnel vision investigation being a problem.
Mr. Stamatakis: In response to your first question, I think the police play a crucial role, and that’s why, in my opening remarks, we’re recommending that law enforcement personnel become part of the commission so that they can inform how the commission does its work. More importantly, as the commission, once established, does undertake their work, their findings can very much inform training, which then leads to the second question you asked. The question was, can I identify areas where additional training could help prevent wrongful convictions or investigations that lead to wrongful convictions from happening.
We’ve heard from some of your previous panellists around things like trauma-informed training, bias training. Those are all important types of training that are incorporated in police training currently, and to continue to be informed by best practices or new findings, some of which the commission that is being contemplated by this legislation will, no doubt, arrive at as they do their work.
The Chair: Do you want to take a bit more time with your second set of questions now, Senator Arnot, just in case?
Senator Arnot: I’ll defer to my colleagues.
Senator Batters: Thank you to both of you for being here today. First of all, to the Federal Ombudsperson for Victims of Crime, thank you for the important recommendations you would suggest to make sure that the commission has the necessary legislative authority to deal with victims in a proper way, given the major consequences that these situations have on them.
First I want to ask you if Bill C-40 allows individuals to ask the commission for review without having exhausted all of their appeals, it specifically does not require evidence of innocence, and it sets quite a low threshold for reviewing applications.
From the perspective of protecting victims of crime, do you think those criteria could open the door to some unfounded applications that potentially re-victimize victims of crime? Do you suggest any adjustments to prevent undeserving cases from subjecting victims to unnecessary suffering?
Mr. Roebuck: First I’d like to always challenge a model that is maybe in the back of the mind about stranger-perpetrated offences because that’s the minority of cases going through the system. Often these are complex cases where a person who was convicted knows the person, and a miscarriage of justice does not always mean innocence. It could mean that a conviction wasn’t merited because of some sort of aspect of procedure in the case and evidence shouldn’t have been admitted that was critical to the conviction. So the impact on victims can still be quite pronounced and may put them at risk is very realistic.
I think when we were reviewing practices internationally around processes like this, one of the things that we saw that could be a safeguard to your question is informing victims once a case has been accepted for review, not an application, because if it’s not going to get serious consideration, then it might not be helpful to convey that to the victim. I need more time to consider that because I prefer the idea of not making decisions for victims to protect them when it’s often not the case.
Senator Batters: Perhaps, yes. Could you please get back to our clerk and he can relay that? What I’m specifying thinking about there is given the significant lowering of the standard from the current example — and as we heard from the United Kingdom witness yesterday — that’s quite a bit lower standard than exists in the United Kingdom and quite a difference from what exists right now in Canada.
Perhaps maybe I’ll come back to you if I have a chance.
To the Canadian Police Association, Bill C-40 mandates that the timeline for the commission to handle wrongful conviction review applications is listed as “. . . expeditiously as possible . . . .” That’s all it says. It fails to define any parameters for what that means. And as you were referring to this kind of situation in your opening comments where you stated the given the major situation that we could have with the passage of time, it can impact the evidence with respect to records that are kept in witnesses’ memories as well as the officers involved and that type of thing.
Given the severity of what we’re dealing with here — potentially, somebody dealt with unfairly as far as a wrongful conviction but also victims and the officers who have, perhaps, long ago dealt with these cases and the impact on their reputation — is that part of what you are concerned about here — just the vague situation of having it classified as expeditiously as possible?
Can you provide us with more information about how this can be an unreasonable situation and we need to have more clarity on this?
Mr. Stamatakis: There are two aspects to this.
One is timelines in the context of accepting the application for a review. Back to your earlier question with respect to the threshold for doing so, that is a good question. It is something that needs to be considered carefully. It has been raised in previous testimony or questions that have been asked.
At the same time, we do not want people using the system inappropriately for all of those reasons discussed, the impact on victims, in particular, of very serious crimes. There is that aspect of it.
There is also how the commission is going to deal with those applications when they are made. One of the things you should consider as a committee is to create specific timelines around that, so that once the application is received, these are not reviews that will go on for an extended period of time — sometimes years. There should be specific timelines with respect to how quickly the commission should conduct their review. For all the reasons described by other panellists today and probably others who have appeared before you, from a policing perspective, one thing that is rarely considered, in addition to the reputational risk to the police service or officers involved who are sometimes being questioned about something that has happened 5 to 20 years in the past — even that aside, it is the trauma for the police officers themselves. These are police officers investigating serious crimes. They are dealing with the victims and survivors of those crimes. They are responding to horrific scenes where they are being overexposed to trauma. The more you compel them to relive those scenes they have had to investigate — those traumatic incidents they have had to investigate — it has a significant impact on them as well. It has the same kind of impact, often, as it does on the victims and survivors of those kinds of serious crimes.
[Translation]
Senator Carignan: Thank you. That was quite informative. I’ll turn to Mr. Stamatakis.
Given the impact involved, don’t you think that, to prevent miscarriages of justice, it would be better to take a proactive approach and give police officers the necessary tools, such as improved access to genetic data? More crimes and more information could then be entered into the database, so that you can prevent this type of miscarriage of justice? That way, we aren’t trying to put the toothpaste back in the tube.
[English]
Mr. Stamatakis: Thank you for the question.
I agree 100%. Resources are underlying this entire discussion. First of all, any commission that is established needs to be properly resourced. We have seen a significant growth in the population of this country without any corresponding investment in supporting police. Police services across the country at the moment are struggling to keep pace with the demand. That is one aspect of it.
It is not just in terms of staffing but also the infrastructure deficit. You alluded to part of that, senator, with respect to the tools that the police can use effectively to better investigate crimes to ensure that we avoid wrongful convictions in the first place.
Then there is that other piece mentioned in previous testimony around the barriers that some people who are disproportionately represented in the criminal justice system face, whether it is the socio-economic situation or other challenges they face that often bring them into the criminal justice system when, if we did respond upstream and had adequate resources and were responding to some of these challenges in communities across the country, we could avoid seeing these kinds of outcomes occur in the first place.
[Translation]
Senator Carignan: My question is for Mr. Roebuck.
I hear you and I agree with what you said. This ties in with the question that I put to the previous witness.
Do you think that victims should also have greater rights, including the right to representation, so that they can make more direct representations to the commission? In any case, this is a different level. This isn’t a judicial level. Shouldn’t there be a much more aggressive right to make representations?
[English]
Mr. Roebuck: In Canada, we often do not go as far as other countries have in terms of the right to participation and representation. So, to be consistent with the existing framework, perhaps, it would be hard to see how bringing representations at that point would work.
I would like to say that the CVBR currently has a privacy clause. It means that the commission is subject to the CVBR. It must include rights to protection and participation. Those are not included in this bill. They will need to be further developed.
Where there is an inconsistency, then the CVBR has to be prioritized. I would like to see better attention given to what participation will look like.
The justices who actually prepared the report actually outlined some wonderful recommendations that are not reflected in the legislation. There needs to be a process, and more attention given to the fact that this is a miscarriage of justice for victims. The whole point of a miscarriages of justice commission is to address miscarriages of justice. It cannot push victims to the side.
Senator Simons: I wish to pick up right there.
We met yesterday. We had a fascinating meeting last night with representatives of the English and the Scottish systems, and a former prosecutor from North Carolina who runs their program there.
In North Carolina, they only look at cases of factual innocence, which is a much higher bar. Our system will look at miscarriages of justice where there has been a legal error, poor representation, a bad search or an illegitimate confession extraction. So there are going to be cases where the people are not innocent but they should also not have been found guilty.
I wonder how big of a challenge that is going to be for the people you represent and speak for. If they want to be a part of the process, the process is going to involve, inevitably, people who really did hurt them getting off. How is that going to work?
Mr. Roebuck: That is an excellent question.
Being able to look at a wide range of cases is an important piece to be able to trace systemic inequalities that lead to some of the miscarriages of justice, but it also underscores the essential addition of support and care, and seeing yourself in the legislation, to be frank, for victims of crime. The role of the victim liaison officer in the military system was written right into the National Defence Act when victims rights were enacted.
I do not think it is okay to leave it up to discretion around what a notification will look like and to assume that there will be a position. That needs to be covered in the act so that the rights of victims are reflected in the legislation itself.
Senator Simons: I wonder if this, then, is not inevitably setting up, not a conflict of interest but a clash of interests.
Mr. Roebuck: That is what the criminal justice system is. There is a huge clash of interests. The interests of victims of crime are pushed aside for the interests of the state. We have to do better at dealing with both. There are a lot of things that do not conflict in terms of the rights, so we had better ensure we are doing what we can to treat people effectively. Not notifying them of a hearing on the anniversary of the date on which a child was murdered, these things have to be thought of in advance, and they have to be protected.
Senator Simons: Mr. Stamatakis, the other interesting testimony we heard last night is that these three different agencies had very different rules about whether they could compel testimony, whether they could — “subpoena” was not the word that people used, but in some cases they could, in fact, compel people to testify — judges, jurors, prosecutors, defence counsel — and in other cases, they couldn’t. They could make a request.
This legislation does not seem to be very clear about that. What do you think in terms of the officers whom you represent? Do you think there should be a power to compel investigators to testify, Crown prosecutors to testify, defence attorneys to testify? Not to testify but to provide statements. Sorry, that is a better way of putting it.
Mr. Stamatakis: The short answer would be yes. I think if it is about thoroughly examining cases where there has been a miscarriage of justice or a wrongful conviction, without the ability to compel people to come and participate in the process, then you are probably not going to get to the kinds of outcomes that are anticipated by the legislation. I think if that ability to compel or subpoena witnesses is going to exist, it should exist for everyone who is involved in the process and not for one group over another.
Without the ability to compel witnesses to participate, you will, in my experience, anyway, inevitably have some who choose not to for a wide variety of reasons I already alluded to. Perhaps it is the trauma they experienced, speaking on behalf of my members, during the course of the investigation and the subsequent prosecution of the case, not wanting to relive that. When these reviews occur, sometimes many decades later, many will have moved on to live in other parts of the country or the world or into other positions. It would be difficult to have people participate without some ability to compel them to participate in the process and then resource that participation appropriately.
Senator Simons: Thank you.
Senator Pate: Thank you to both witnesses.
First I will ask Dr. Roebuck and then Mr. Stamatakis. Am I saying that correctly? My apologies if I am mispronouncing.
Mr. Stamatakis: It is okay.
Senator Pate: Well, it is not okay, but my apologies.
I think you both heard the previous panel. As Ms. Worme indicated on that panel and as you have already identified as well, Dr. Roebuck, the interconnection between accused and victims, particularly when it comes to violence against women, and, I would say, particularly when we are talking about Indigenous women who are far too often criminalized as they are responding to situations of their own victimization, means that they end up in situations where they are induced to plead guilty or they have taken on a responsibility because of ethical, familial, moral or other reasons.
In the very few cases where an examination of that context has happened, part of the challenge has been not just police bias, but Crown and defence and judicial bias, that the minute someone hears a woman say, “Yes, I feel responsible,” it is almost as if there is a zoom right in that they are.
We know from the Self Defence Review, Justice Ratushny recommended that part of the reason to deal with mandatory minimal penalties was to address some of that pressure. I am curious as to what you would recommend in terms of this moving forward for the victims on both sides, if you will — the Indigenous women who have previously been victimized, but for the day, they might very well have been labelled the victim in the case — and how you would see us moving forward to address some of those issues and how we not just educate but ensure those contextual pieces are part of what the commission looks at, because that has been at the root — according to Justices LaForme and Westmoreland-Traoré — of why no women, particularly no racialized women, have had their cases reviewed.
Mr. Roebuck: Yes, thank you. Because bias is a contributor, it is important that this be addressed and accounted for. The makeup of the commissioners should at least represent the population of people who are eligible to ask for help. One Indigenous commissioner is not sufficient if we know that Indigenous people are overrepresented. I will be very clear that people who are wrongfully convicted have been victimized by the state and should be treated well.
That representation creates a context where it is easier to recognize the bias that might have led to it. We do see survivors being criminalized often. There has to be protection.
Perhaps I was not as clear as I would like to be, but, yes.
Senator Pate: Mr. Stamatakis, do you have recommendations? You talked about DNA, but in these cases, it is not a situation of DNA. It is about the context of the preexisting violence not often even being explored, or if it is known, being not seen as relevant.
Mr. Stamatakis: Yes. Speaking strictly from a policing perspective and in my policing experience, underlying it all is often a lack of resources. There are many examples where, for the reasons that you have stated, people, when they do not have access to resources, will often plead guilty just to get something over with, or agree to some kind of a plea deal just to move on. They do not have somebody advocating on their behalf. You have Crowns who are juggling multiple files and are happy to clear files off their desk to get to outcomes.
Underlying it is how do you properly resource something, including the commission that is being proposed, and then make sure that you have the right representation, which has already been spoken about many times, including by Ms. Worme, I believe it was, earlier where you have the right representation that those people who are acting as commissioners have the right training so that they are aware of their own biases and how to check those, and they know how to respond to people who are applying in a trauma-informed way?
We need to be embedding those concepts into all of our systems every step of the way. I know in policing that there is a significant emphasis on trauma-informed approaches to interacting with victims. We have not always done that as well as we should have. There is a lot of training now with respect to bias, ensuring that we are aware of our own biases as we approach different racialized groups in our communities.
I cannot empathize enough — it has been spoken to already — how important that kind of training and concepts need to be embedded in the approach of the work that is going to be done by this commission so that we make sure that people who face many barriers, socio-economic and sometimes other barriers, that we are aware of those so that we can take them into account as we are responding to them to ensure they are being treated fairly and that their perspective is being considered not only fairly but objectively in the circumstances.
[Translation]
Senator Oudar: I want to thank our two witnesses. My question is for Mr. Roebuck. I’m concerned about the issue of victims.
In the last few years of my career, together with the organization that I headed, I managed the compensation for victims of crime program in Quebec.
I have some questions to follow up on Senator Carignan’s questions. You spoke about representation. I’ll move on to support for victims. After reading the Canadian Victims Bill of Rights, I wanted to get a better idea of your organization’s support services for these victims. I would also like you to describe your resources.
When we read the Canadian Victims Bill of Rights, which applies to all victims…. I would like to get a better idea of your organization’s support services for these victims and hear about the resources available. Victims have the right to know everything about their case. I think that this is the crux of the matter.
If the case takes a different turn — and if there has been a miscarriage of justice — the victim must be looked after to ensure that they receive the proper information, support and advice. They will be called upon to testify in a procedure organized by the commission.
How do you see your role in supporting victims, and how do you look after them? Do you also help them prepare their testimony, which they may need to give since they have the right, under the bill, to submit a statement to the appropriate authorities?
I think that the section on the right to participate found in the Victims Bill of Rights applies to the situation being discussed here.
I would like to hear about your organization’s services in the area of victims’ rights.
Do you go so far as to accompany the victim in person to the hearings, in addition to providing information and support services? We know that victims experience a great deal of stress during hearings. As you know, many victims drop out for fear of the stress involved in the hearings. That’s why being present in person, and not by telephone, is so important.
Do you think that your organization’s mission will change if this legislation is passed? Do you have enough resources for this as well?
Mr. Roebuck: Good question.
[English]
Lots of questions in here. It is important to distinguish our role as an ombuds service from frontline direct service providers, because there has to be a place to ask for help if you are not getting what you need from that service.
If we are setting up something at the federal level like this, there should at least be mechanisms like at the provincial level where there is victim witness assistance and people who coordinate and provide information, accompany. We do occasionally, supporting people in a complaints process, attend court or that kind of thing, but it is not our core service, so something like that has to be in place.
For us, I anticipate more work involved in giving time, attention and review of how victims are being treated in this process, and consultation as well. I have heard about participation. It has to be established, with consultation, with survivors in Canada, about what their needs are.
Senator Senior: My question is for Mr. Stamatakis following up on Senator Batters’ question around timeline.
You talk about the timeline in two aspects. I am curious about one of the aspects where you talked about some of the complaints being 5, 10, 15, 20 years as a concern in terms of all the variables that would come into play.
I am curious about whether you are thinking about a timeline that would be too long, particularly in terms of some of the testimony that we have heard from folks who spent years languishing in jail waiting for their cases to be reviewed or to be believed so that their cases could be reviewed. I am curious about those two things. How would you actually balance that, considering your concern?
Mr. Stamatakis: You would balance it in two ways. One, if there is a significant new evidence or new information that calls into question a conviction, you would obviously review that, regardless of how much time has passed.
I was giving my answer to the question of what the threshold should be for considering the application.
I would expect that creating something like this would hopefully address some of those cases that you have alluded to where people do languish forever or wait to be believed. I would like to think that the creation of this commission would give people an avenue to apply for your circumstances to be reviewed, and then that would trigger a response from the commission. Then there would be some kind of a timeline that would require the commission to respond and investigate or conduct a review in a timely way, within a certain amount of time, so that we can avoid those cases where people do sit and wait for years and years to wind their way through our various levels of courts to get to an outcome. I hope that helps to clarify where I was coming from.
Senator Senior: Thank you.
Senator Clement: Thank you to the witnesses. My first question is for Mr. Stamatakis and then one for Dr. Roebuck.
First, I wish to thank you, Mr. Stamatakis, for your work and for the work of your members. When I was Mayor of Cornwall, we worked closely with our municipal police service and were grateful. We also worried about them and their mental health and trauma in terms of how it is to work in the field.
I have a question about whether you are familiar with the Black Justice Strategy. My colleagues are starting to understand that I will mention the Black Justice Strategy every single meeting. In pillar number two under “Policing” it says:
Focusing on the dynamics of over-policing and over-surveillance in Black communities, this pillar examines policing practices that lead to increased detention, arrest, and . . . .
Basically, overrepresentation in the system.
I wonder if you could speak specifically about what your organization is doing around the Black Justice Strategy and around that particular pillar.
To Dr. Roebuck, Mr. Stamatakis, in his opening statement, said that he would appreciate seeing representation on the commission from someone with a policing background. Some of us around this table have talked about representation around Black and Indigenous. I wonder if you had thoughts about the representation of commissioners and how we should think about that process.
Mr. Stamatakis: In terms of my organization and what we have been doing specifically in response to the pillar that you mentioned, I have been advocating in the police community to be responsive to the Indigenous community, the Black community or other racialized groups in the communities we police in terms of their concerns, and to rely on them to inform how we serve those communities. That, in my view, hasn’t happened as robustly as it should have historically. We are doing better. We still have a long way to go where we find ways to create those relationships.
I know some of our member organizations create advisory groups they interact with, but we need to do a better job of bringing in representatives from those communities who are concerned about how they are being policed so that we can respond to those concerns and use that information to inform our training, our practice and how we interact with them so that we can address those concerns. Historically, that has been a gap or a failure, or whatever word you want to use, where we have not engaged in a meaningful way and actually embedded those different perspectives in our training and practice. I think if we do that, hopefully, we’ll have better relationships with those communities, the Black community, Indigenous community and other racialized groups, and be more responsive to their different cultures, values, practices and traditions that we should be more aware of, than we have been in the past.
Senator Clement: Thank you.
Mr. Roebuck: I think we continue to see a lot of investment in mechanisms like this for the rights of people who have been accused or who have gone through the system, and we don’t see equivalent investment in the needs of victims of crime. Our office is doing a systemic investigation across Canada right now on how survivors of sexual assault are treated in the justice system, and we see clearly that there are barriers to access to justice and that people often don’t end up with a conviction or justice when they come forward.
Like you mentioned, even the interest of victims of crime aren’t fully represented in that Black Justice Strategy and the barriers they experience when going to police. If people are criminalized within a particular group, often survivors in that group don’t feel comfortable accessing. We would like to have seen more exploration of those components and systemic barriers that survivors face in access to justice.
At the federal level, then, within a body like this, there needs to be a high-level commissioner or equivalent position that is dedicated to the needs of victims of crime because it’s one of the key interests at play. It’s a miscarriage of justice for victims, and that needs to have the same attention and resourcing in a different way than what’s for the people who are accessing the program, but it should be an equivalent. There should be meaningful consideration of that.
To the earlier question, I think as we’ve seen investment in these mechanisms, we haven’t seen equivalent investment in mechanisms like the Office of the Federal Ombudsperson for Victims of Crime where our budget was set in 2007 and hasn’t had an increase. It didn’t increase with the Canadian Victims Bill of Rights at all. This will include work for us, and it has to be meaningful. We need legislation to be able to inquire and request information to address victim concerns because, right now, our mechanism of complaints for survivors is denied requests for information.
We have to fix those pieces at the same time if we’re going to fix the pieces that are looking at miscarriages for people accused.
The Chair: I’d like to take the liberty of posing a couple of questions myself if I may, particularly to Mr. Stamatakis.
Thank you for your presentation here and the work that you and your organization have done for many years in championing the responsible perspectives of police on these questions.
I wanted to just make a comment as much as anything and see whether you would agree with it. You had observed the need for timelines for these investigations, but one of the challenges is that some are complex and if you establish a timeline, you may actually truncate a meaningful investigation.
I authorized the reinvestigation of the David Milgaard conviction a couple of years after the Supreme Court had resolved the wrongfulness of the conviction and had set aside and stayed his conviction. That work involved a deputy Attorney General from the province of Alberta, a prosecutor and 14 police officers. It took two years to do before they were able to produce a report. It was an unusual case to be fair, but I do worry a little bit that if we declare that everything has to be done within 12 months, it presents some problems. I guess I’m inviting you to agree that sometimes we have to be attentive to the need for an elongated investigation in order that justice be served. Then, I have one our question for you.
Mr. Stamatakis: I think the way you address that concern — which I agree with. You certainly don’t want to create a mechanism that leads to another incomplete investigation — is to set up some reporting timelines.
For example, across the country, there are pieces of provincial legislation established around the oversight of policing. All of those pieces of legislation include some sort of a timeline, but there is a mechanism to seek an extension. What that does is to create some accountability in the process and ensures that investigators are proceeding diligently and that they’re reporting regularly around their progress. It creates that incentive to be efficient. That would be my perspective.
The Chair: I think your answer was better than my question. Thank you. I used to be subject to those that you just described.
Could I now ask what I think is a hard question? You were frank and open on the question of access to information from all participants, that they should all be required to participate but to share what they know. One of the questions that has arisen has been whether or not commissions like this one should be able to have access to privileged communications between prosecutors and police officers. We’ve seen exceptions to that when law societies are looking into matters of lawyer behaviour, and this seems to me to be a hard question. We don’t usually get to ask — let me call it — the policing side of these questions, and I would be very interested in your perspective on whether privilege should be set aside for these purposes.
Mr. Stamatakis: I’m not a lawyer. I’ll start there. I would suggest that it should not be set aside as a rule but that there could be circumstances where you would want to have access to those communications because those communications might be central to why there’s an application in the first place and the review is happening at all.
I think as long as you set up some kind of a mechanism within the legislation, perhaps, or maybe by way of regulation, where the privileged communications remain privileged but you engage in some process to get access to those communications, that would probably provide the right kind of balance around the need to protect those communications but also to ensure that the review is complete.
The Chair: Thank you. That’s very helpful.
I think that brings us to the closure of our session today. We have other commitments in only a few minutes with respect to our senatorial responsibilities, but just before we go, I want to thank my colleagues for their thoughtfulness in their questions and the precision in which they’ve asked them and the richness that, Dr. Roebuck and Mr. Stamatakis, have provided to us in this dialogue. Your knowledge, background and openness to fielding our questions have been very much appreciated as we study this very important bill.
Just as a reminder before we go, we’ll have one more meeting with witnesses with respect to Bill C-40 on the afternoon of Wednesday, November 20. It’s our intention then on Thursday, November 21 to move to clause-by-clause consideration of the bill. That will be after the break week, but those will be the two focused meetings of the committee in the first week back.
Once again, thank you very much for your attention.
(The committee adjourned.)