THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 20, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:17 p.m. [ET] to consider Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews).
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good afternoon, honourable senators.
[English]
My name is Brent Cotter. I am a senator from Saskatchewan and chair of the committee. I will invite my colleagues to introduce themselves beginning with the deputy chair.
Senator Batters: Denise Batters, Saskatchewan.
Senator Senior: Paulette Senior, Ontario.
Senator McBean: Marnie McBean, Ontario.
[Translation]
Senator Oudar: Manuelle Oudar, Quebec.
[English]
Senator Arnot: David Arnot, Saskatchewan.
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki.
[Translation]
Senator Audette: Kwe [Innu-aimun spoken] Michelle Audette, Quebec.
[English]
Senator Simons: I’m Senator Paula Simons from Alberta, and I come from Treaty 6 territory.
Senator Pate: Welcome. Kim Pate, and I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabe.
[Translation]
Senator Aucoin: Good afternoon. Réjean Aucoin, Nova Scotia.
Senator Clement: Bernadette Clement, Ontario.
[English]
The Chair: Thank you, colleagues. Once again, welcome to the committee’s deliberations. 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). This bill is sometimes referred to as the miscarriage of justice review commission act, David and Joyce Milgaard’s law.
Today, we are fortunate to have a panel composed of the Chair in Indigenous Governance from Toronto Metropolitan University, Professor Pamela Palmater, here with us in person, and Tanya Talaga, investigative journalist, joining us by video conference. I’d like to welcome and thank you both for taking the time to meet with us.
I’m going to invite each of you to provide roughly five minutes of opening remarks, first, Ms. Palmater, followed by Ms. Talaga. The floor will be yours momently, but just to let you know, following those two presentations, we’ll then have senators engage you in questions and discussion for the balance of approximately one hour.
Professor Palmater, the floor is yours.
Pamela Palmater, Chair, Indigenous Governance, Toronto Metropolitan University, as an individual: Thank you very much. [Indigenous language spoken.] I am from the sovereign Mi’kmaq nation in unceded Mi’kma’ki, and it is an honour to be here on sovereign Algonquin territory.
Thank you for inviting me to speak to this. It is very important.
For those who know my background, I’ve been a lawyer for 25 years. I focus on Indigenous rights, international human rights, policing and justice. So when it comes to this bill, Bill C-40, there are lots of things regarding which, if I had my way, I could add things to it, as with any piece of legislation. Sometimes pieces of legislation are such that no matter what you do, you can’t make it work, but this legislation is critical.
Our people who are in prison never get enough attention. Those who are wrongfully prosecuted, convicted and incarcerated never get enough attention in any forum. Prison justice just isn’t something that is mainstream, but it’s critical because it’s the kind of damage that’s irreparable. There is no amount of money you can pay to someone if you’ve wrongfully convicted them in terms of time lost but also in terms of what happens to them in prison. We also all know that Black and Indigenous people disproportionately represent those who are in prison.
For me, given the timing of the bill and things that can happen in the future, I would rather have this bill pass without amendments and take steps in the future to expand it than not have the bill at all. That’s how critical I think this bill is. It is effectively the last chance for so many people who are wrongfully convicted. I’ve talked to people before. I come from the Mi’kmaq territory where Donald Marshall Jr. went through a whole process. There ended up being a Marshall Inquiry into his wrongful conviction. But that is not true for so many; actually, the vast majority of those who are wrongfully convicted and incarcerated aren’t going to get a special inquiry to look at their circumstances or exonerate them. That is why this is so important.
The statistics — I’m sure you’ve heard from other witnesses in terms of all of the inquiries, whether it is the Marshall Inquiry, the Aboriginal Justice Inquiry of Manitoba, Ipperwash Inquiry, the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission, or TRC, the National Inquiry on Murder and Missing Indigenous Women and Girls, all of the court cases, Gladue, Ipeelee, everything Elizabeth Fry has said and everything the Office of the Correctional Investigator has said.
This has been a crisis — first, the over-incarceration of Indigenous peoples, especially Indigenous women and girls. Then there are all of the things that are attached to that such as longer sentences, the less likelihood to get parole, the number of assaults and sexual exploitation that women face in prison, which is another issue we haven’t addressed.
So to me, what Canada has done is create this pipeline in everything — the Indian residential schools, the Sixties Scoop, foster care, forced sterilizations, you name it. They have all created a pipeline to prison for our kids, parents and grandparents. Once you get trapped and sucked into that pipeline, it’s almost impossible to get out. We know that, statistically, if your parents were in prison or incarcerated, you’re probably going to end up that way. We know that the majority of people come from foster care or out of the Indian residential schools.
One of the reasons I care so much about this bill and the miscarriage of justice is this pile-on effect such that, I would argue, even defence lawyers have not properly and fully represented Indigenous women and girls in terms of everything they’ve experienced — all the physical and sexual abuse, the neglect to protect them, putting them in the position where they have no choice but to protect themselves and their children from violence — and all of these things, the intersections of race and the misogyny that’s still in the justice system.
We haven’t taken any radical steps to undo these things. We know from every inquiry that racism exists from cops to lawyers to judges to corrections officers and beyond.
To look at this miscarriage of justice — and if we could start with those 12 women from that report. We know they have been wrongfully incarcerated.
Similarly, we must make sure that when we do put people on this commission, assuming the bill passes, that we have not a population proportion of Indigenous people but a prison proportion of Indigenous people on this committee and, I would argue, heading the commission as well.
I think my five minutes are up.
The Chair: They are. Your timing is exquisite. Thank you, professor. It’s unusual for people who teach in one hour bites. Thank you very much.
Ms. Talaga, you have roughly five minutes.
Tanya Talaga, Investigative Journalist, as an individual: Meegwetch. [Indigenous language spoken.] Hello, everyone. I am grateful to be talking to you on the territory of the Mississaugas of the Credit First Nation.
Thank you for asking me to come and chat about this and talk about Bill C-40. I have to say that this is the very first time I’ve ever spoken at a Senate committee hearing, and I hope that you take my words to heart.
As you know, Indigenous women make up half of the female population in federal penitentiaries, even though just under 5% of women in Canada are Indigenous. For all Indigenous prisoners, both men and women, the rate stands at 32%, but I have to tell you that in some areas of the country where my mom and my mom’s family are from, which is northern Ontario, those rates are much higher. There, about 80% to 90% of the inmate population is Indigenous. That is around Thunder Bay and Kenora.
Statistics show that Indigenous inmates have had involvement in child welfare and have either been at an Indian residential school or day schools themselves, their parents have, their grandparents have. Inmates have histories of abuse — sexual, physical — abuse of all kinds.
As you know, David Milgaard spent more than two decades in prison for a murder he didn’t commit. Senators Kim Pate, Yvonne Boyer and Dawn Anderson wrote a report, which Pamela Palmater told you about, regarding 12 Indigenous women whose cases must be reviewed for possible miscarriages of justice owing to racial and gender bias.
Two years ago, Dr. Ivan Zinger, Correctional Investigator of Canada, reported that the justice system continues to incarcerate Indigenous women at alarmingly high rates, and we have no indication whatsoever that is going to change. As I said, he found that 32% of all people in custody are either First Nation, Métis or Inuit. This is a new historic high, especially so for the amount of women behind bars.
This is a human rights embarrassment for Canada. The Senate’s horrific report is a pathetic reminder of the Canadian government’s continued failure to follow through on detailed reports and recommendations from the Truth and Reconciliation Commission’s Calls to Action and the Missing and Murdered Indigenous Women and Girls’ Calls for Justice. Those are at least two exhaustive investigations that have provided meticulous testimonies and community-led road maps on how to reverse Canada’s genocidal policies and start improving lives. However, both times, those groups’ findings have been completely ignored.
In fact, the Calls for Justice of the Missing and Murdered Indigenous Women and Girls inquiry have been largely ignored, and barely one dozen of the TRC’s Calls to Action have been implemented.
It’s time that we listen to all of those reports; it truly is. How many more reports must be written before we have any action? In particular, if for no other reason — as Ms. Palmater said, an exhaustive report by the senators was written, focusing on 12 Indigenous women who have had some kind of miscarriage of justice happen to them. It will be so awful if those cases are just completely ignored and swept under the rug. How could that be?
Kim Pate, a senator, knew all 12 of those women for decades. One of those women she knew for 40 years. Some of those women are out of jail now. Some have died or are ill. In all cases, Canada — the courts — failed to apply paragraph 718.2(e) of the Criminal Code, which requires consideration of an Indigenous person’s background when weighing sentencing. This is such an important detail because all of the women experienced genocidal violence in one form or another, from early institutionalization or residential school or intergenerational trauma associated with the schools to being violently removed from the land, away from their families, their ways of life and everything they know. This is yet another legacy of Canada’s colonial policies, which some in this country continue to deny.
In particular, Odelia and Nerissa Quewezance, two sisters convicted of life in prison for killing a man who was a maintenance worker at their residential school, are among the 12 women. Their case was picked up by the Innocence Project with the support of the wrongfully convicted David Milgaard, and the justice minister at the time, David Lametti, ordered an investigation into the Saulteaux sisters conviction. Those two women now have hope, but their lives were taken from them, the bulk of their lives were taken from them. How many more women behind bars do we know who are suffering the same fate?
As Senator Pate told me, half of the women serving life sentences or long sentences are in self-defence or in defence of others. They were deputized to protect themselves. When they were being victimized, the state wasn’t there to assist them, so when they do, the state swoops in and criminalizes them. If these women didn’t fight back, they’d be dead; it’s that simple. Was that looked on at all when their sentences were given to them?
And as you know, jailed Indigenous people face terrible outcomes. They are more likely to self-harm, die by suicide, be labelled gang members and spend more time in prison for their convictions. They are overrepresented in maximum security prisons and in structured intervention units, an update to segregation techniques.
This is a human rights emergency. Canadian politicians need to do the right thing. They need to look at those cases.
Bill C-40 is the least what Canada can do. Canada talks about how we are on a mission of reconciliation, of truth and reconciliation. How can that be when you look at the record of how Canada, the justice system, has treated our people?
Last month, I visited the Fraser Valley Institution for women. I was gifted this eagle feather — I’m holding it right now with me here — by an elder in the prison. There were about 30 women that day who came to talk to me. I was there in October. There is a program I am involved in called Book Clubs for Inmates. They had just read my new book The Knowing.
Each of the women that I spoke to talked to me about their time in prison. We heard stories of what had happened to them. They told me what they lived through in their lives, how they wound up in prison in the first place, some for decades — for decades.
You cannot tell me with such high incarceration rates like we have in the country of Canada that there isn’t a percentage of people that are wrongfully convicted behind bars.
Bill C-40 is the only hope that we have right now that will be marginally quick to give these women and men a chance at life. It is the least that Canada could do —
The Chair: I apologize, but I’m going to interrupt you there so there will be a chance for a good dialogue between you, Professor Palmater and the senators. You used a little bit of Professor Palmater’s leftover time, but I thought we could turn to questions and answers if we may.
Ms. Talaga: No problem.
The Chair: I will start by inviting Senator Arnot to pose the first question. He is the sponsor of the bill in the Senate.
Senator Arnot: Thank you to both witnesses for coming today and helping us understand the issues from your perspective. I have two questions. One is for Ms. Palmater, and the second one is for Ms. Talaga.
Ms. Palmater, given your expertise in Indigenous governance and law, how important is it for the proposed miscarriage of justice commission to integrate cultural competency training and Indigenous legal principles in its operations?
Ms. Palmater: Thank you for the question and for sponsoring this bill because, like I said, it’s of critical importance.
Given the fact that it’s our people disproportionately sitting in prisons, our people disproportionally arrested, abused, underprotected and separated from our communities, our cultures, our elders, our children, at the very minimum, the people who sit on this commission need to be a significant number of Indigenous experts — and I would argue Indigenous women experts and lawyers — because they are going to know the cultural context. In some cases, they’re going to know the language or at least have a language background and understand those worldviews and beliefs. They’re going to understand the ways in which the people, the files that they’re looking at, are files of trauma, racism, misogyny, abuse and neglect over and over and over again, so they will have unique skills in which to operate in not only a culturally sensitive way, a culturally informed way, but also in a trauma-informed way because that is something that is not very apparent.
We have the opportunity to start out and do it right.
Senator Arnot: Thank you.
Ms. Talaga, in Seven Fallen Feathers and “Spirit to Soar,” you brought national attention to systemic failures affecting Indigenous youth. I’d like to know: How do you see Bill C-40 approaching and considering systemic discrimination in wrongful convictions? Is it sufficient or are there shortfalls in the ability of the commission to address root causes?
Ms. Talaga: I appreciate that question. I am not a lawyer. I wish I could give you a better sense of an answer to that question, but I can tell you that it is the least that could be done.
I mean when you look at the fact that our children are still fighting for high schools in northern Ontario communities, that our people are still dying on the streets of Thunder Bay, that we are both over-policed and under-policed at the same time in this country as both All Our Relations and Seven Fallen Feathers showed. Having one more outlet is better than nothing, and it is, as I said, the least that Canada could do. This legislation is needed right now to help all of our people.
One of the things that I’ve heard many times is that, sometimes, our people don’t feel like they have anything else they can say and they just admit to guilt, but they haven’t actually done the crime. That’s so horrific that you feel so helpless that there is nothing else to do but to say that you did something that you didn’t do that puts your life at risk.
We all know what happens behind those bars. All of those youth — one of the people I met in the Fraser Valley Institution was one of the youngest people ever to be incarcerated in this country in a men’s facility. It’s remarkable.
I would urge you to pass this, absolutely.
Senator Arnot: Thank you very much. Thank you both.
Senator Batters: Thank you to both of you for being with us today.
I am the critic of the bill, and I view it as an important part of my role to try to make this bill better. I agree that it is very important, but it needs to be as good as it can possibly be.
My first question is to Professor Palmater. The report by Judges LaForme and Westmoreland-Traoré recommended that the commission have the authority to refer cases for a pardon or record suspension for applicants when justified, but that provision was not included in Bill C-40.
Do you think those types of remedies should be included in the scope of remedies offered by the commission proposed in Bill C-40?
Ms. Palmater: Definitely, in the future when this bill is expanded, there are many things — I have a list of things that I would love for them to include — but, again, our people are not going to get another chance. If this bill does not pass, we’re at risk of not having anything. The current system is not working, especially for Indigenous women. When you have 200 files that were looked at and not a single one was an Indigenous woman, that says something given that we’re 50% of that population.
So, in my respectful opinion, the bill has to pass, and I do believe that as we review, monitor and evaluate, we can keep adding to it to make it better.
Senator Batters: Yes. Just so you are aware of the process that we have seen this bill go through so far, the House of Commons had it for a considerable length of time, and the Senate only got it on the very last day that we were sitting in June. We have really only had it for two months at this point, so we are dealing with it in a quick manner, as we always deal with government bills as soon as they come to Standing Senate Committee on Legal and Constitutional Affairs. Then we have a thorough study, as we have been having on this.
The House of Commons had it for well over a year, I believe. Our job is sober second thought, so that is what I am trying to bring to this process.
Second, during his appearance before the committee, the Minister of Justice repeatedly spoke about the overrepresentation of Indigenous and Black people. I want to highlight two particularly interesting statements that the minister made:
. . . What I would expect for this commission is that if we are going to give meaning to the fact that we need to have commissioners, those commissioners need to reflect the diversity of Canada, with particular attention to overrepresented groups such as Black and Indigenous people in this country . . . .
He also said:
Now what we’re trying to do with this bill is to take another step in terms of advancing the fight against systemic and anti-Black racism and the fight against anti-Indigenous racism, to be blunt, and advance reconciliation. This bill is one direct way of doing so.
As I’m sure you are probably aware, Ms. Palmater, the LaForme report recommended that there be at least one Indigenous commissioner and at least one Black commissioner, but Bill C-40 only requires the minister to “take into account those” without any concrete guarantees.
The Trudeau government did take a considerable length of time to draft this bill before they brought it to Parliament in the first place, so, in your view, why didn’t the Trudeau government include that sort of guarantee to have at least one Black commissioner and one Indigenous commissioner outlined in Bill C-40? Do you think that the Trudeau government is truly sincere here in its commitment to representing diversity? Again, would that be one of the lists of things that you would like to see amended — maybe you would say in the future — but is that one of the amendments you would see as being necessary for this bill?
Ms. Palmater: I cannot speak to what the minister thought, what was going through his head or the rationale of any member of cabinet, obviously. The fact that they are engaging with this and recognizing the current system does not work is huge. A lot of governments cannot admit that something is not working. They did not create these circumstances; all governments have had a hand in creating them.
I would love for future amendments to state no less than three Indigenous people and three from the Black community — a full representation. I also understand from having worked with legislation, legal committees and commissions that when you sometimes put a number, you can also frustrate a process if, for example, a group says, “No, we do not want to have any part of this.” Then what do you do when there isn’t a number who want to participate in it? As we all know, the justice system has not been fair to these groups.
Again, in the future, I would love to see that it is more than a consideration and that there be a certain number put there, but I also understand it can also be problematic to mandate a specific number. People often treat it as the maximum, so if you say one Indigenous person, then that’s it. At least now it is open. You could have half of the commission be Indigenous, for example.
Senator Prosper: Thank you, Professor Palmater and Ms. Talaga, for being with us.
I have two questions. One has been commented upon. There were questions from Senators Arnot and Batters about representation on the commission itself and it having some representation of groups — the overrepresentation that exists within the prison population. I know, Professor Palmater, you provided a comment on that.
Ms. Talaga, I would like to get your thoughts with respect to representation on the commission from overrepresented groups.
My second question for each of you relates to language. We had a first-hand situation in committee. Certain accommodations were made to have interpretation. We even moved to a separate room to accommodate, I believe, Mr. Woodhouse for his first language to be available. It didn’t work out. But it was a clear example for us of the importance of language, and being represented and accommodated within the context of this particular bill.
I wish for each of you to provide comments as to what language you think should play a role within the context of this bill. If you could go with the first question, Ms. Talaga, with respect to representation on the commission.
Ms. Talaga: Meegwetch.
If I had my druthers, I would have at least two Indigenous commissioners as part of the group.
We need to look at who is in prison, and we also need to look at the makeup of the commission you are proposing. We have to make sure there is adequate representation for our people, 100%.
In order to make sure this gets passed before governments change, I would say what Ms. Palmater said: We have to do what we can now to make sure we have this mechanism that is available for our people.
When it comes to language, absolutely, more needs to be done to serve our people in that capacity. It was in May that, for the very first time, my friend, an NDP MPP Sol Mamakwa, was able to speak Anishininiimowen. It was the very first time in Queen’s Park, the Ontario parliament. Isn’t that remarkable? It was 150 years after this country came to be that an Indigenous language was spoken in the legislature of the most populous province.
As you heard, the jails are full of our people. Most of our people have been to Indian residential school, have been in the child foster care system and have suffered forms of abuse.
English is a second language to many of our people in jail. It is the right thing to do to make sure there are translation services available and that we are able to speak our languages behind bars or in front of them.
Ms. Palmater: Language is essential, especially when dealing with Indigenous people who are filing this application for a miscarriage of justice.
We have to make other federal legislation like Bill C-91, the Indigenous Languages Act, have meaning. We need to see that all of these different pieces of legislation and rules can actually work together.
Similarly, Bill C-15 and the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, affect all of the rights of Indigenous peoples and the right to be able to use their language in every context.
Nowhere is this more important, I would argue, than when rights are at stake, when your life and health are at stake, when you’re at risk of losing your children. In this context, language serves a multitude of roles, not just understanding the words that are being spoken to you but having the comfort and familiarity of that language and the meanings that are behind it and everything that goes with that. It’s so much more than just what those words are. Again, it is a human right. We have it in federal legislation. We need to make all of these laws work together, especially here.
Senator Simons: My questions will begin with Ms. Talaga. Before I joined the Senate, I spent 30 years of my career as a working journalist doing investigative journalism and other such work. This is not just a lost golden age fallacy, but there was a time when investigative journalists played a much more active role in uncovering cases of wrongful conviction and in advocating for reconsideration of verdicts and sentences.
We have fewer and fewer journalists doing that kind of work. There are extraordinary exceptions, like Jana G. Pruden at The Globe and Mail, but there simply are not as many journalists doing that work anymore.
Could you comment, first of all, from your perspective as a journalist, on the role played by investigative reporters in holding the justice system to account? Second, do you think some of those talents and capacities might make a good fit among the commissioners?
Ms. Talaga: Well, I’m always going to argue for more journalism and for a fair and a free press. We’re seeing unprecedented times right now throughout this country of people turning away from sources of journalism and, instead, preferring to watch things on TikTok or YouTube or reading things on X.
Absolutely, investigative journalists spend so much time researching, reading and — to be quite honest with you — fighting with government departments in order to get at the truth and to find out more information. Freedom of information in Ontario is difficult with all the hoops you must go through. Access to information as well, as a working journalist, takes so much time to get anything back.
As a journalist, you must sometimes have resources behind you to be able to look into those cases. Absolutely, when dealing with the wrongfully convicted, that’s not going to take you five minutes or five weeks. It will probably take you many months, and you will probably also be filing Access to Information and Privacy, or ATIP, requests or trying to get information out of the Royal Canadian Mounted Police, the Ontario Provincial Police or other police sources as well. You are also trying to get to know people’s families and get to know that person who has been wrongfully convicted.
It is the role of journalists to make sure that Canada lives up to its obligations underneath many forms of legislation, international human rights legislation, including UNDRIP. In this bill, Bill C-40, you can easily see how UNDRIP applies to this as well. We have the right to make sure we are treated in a just and fair way. Yes, journalists need to help, and, yes, journalists would also make great commissioners.
Senator Simons: For Professor Palmater, I live in Edmonton. In the women’s prison in Edmonton, about 70% of the inmates are Indigenous. There is a funny line of what’s “wrongfully convicted.” Many of them have taken plea agreements. Many of them were overcharged but are, nonetheless, guilty of an underlying offence.
I worry in some ways that this law is structured to mostly help the people whose cases are the outliers, the people who have really been prima facie wrongfully convicted as opposed to people who are enmeshed in the criminal justice system in ways that are less easy to tease out. Could you speak about how we strike a balance in looking at the way people are being sentenced and forced into plea agreements in a way that is leading to an overpopulation of Indigenous women in prison?
Ms. Palmater: I am glad you raised that. This report is about the 12 women and the miscarriage of justice, the wrongful convictions, but we know that they are not the only ones. I would argue that people who are wrongfully incarcerated include those women who, more often than not, had non-Native lawyers, primarily men, saying, “Look, this system is racist. You’re going to get convicted no matter what, even if you’re innocent, so, here, let’s plead to this lesser charge.” That’s a wrongful situation where they’re incarcerated because we haven’t made the determination that they’re guilty. They are being told that they really don’t have a choice, that the justice system is against them. If I had to choose between 2 years or 10 years — do I see my kids in 2 years — this is an unfair burden, so I would include those in there. It’s not that fine of a line. We would be able to readily identify those cases.
[Translation]
Senator Oudar: In the wake of Senator Batters’ question, I would like to hear from you again, Ms. Palmater, on the subject of appointments. I understand you do not want to see quotas in the bill. Recall that this was one of the recommendations in the report by two experts, Harry LaForme and Juanita Westmoreland-Traoré. It was submitted to the Minister of Justice at the time. In it, they recommended mandating representativeness of the membership through legislation. Sections 696.73 and 696.75 lean towards an objective, but do not make it mandatory. I wanted to make sure I understood correctly. Do you agree with the sections as they stand? I want to hear you again on the membership.
My second question is on another recommendation in the same report, recommendation number 8. It proposes that an independent committee outside of any political sphere make the appointments. However, the bill contains no recommendations on this type of appointment. There is no independent committee, there is no section on that subject. I therefore wanted to hear from you again on that. Of course, the second witness may also answer the question. First, I would like to hear from Ms. Palmater.
Ms. Palmater: Thank you very much for the question.
[English]
In case I misspoke, if I had my way and I was drafting it, I would have a very specific composition of Indigenous peoples to guarantee that, at a minimum, we had a certain amount and, at a minimum, women were on there, and also that we had protections in there to make sure that —
I will restart. Thank you for the question. Just to clarify in case I misspoke, I am in favour. If I were the one drafting it today and I had whatever I wanted, I would have a certain number of Indigenous people. I would also make sure there was a guaranteed number of women on there too because our lives are almost always in the hands of men, and that doesn’t work out very well.
If I had my choice — and there is nothing to say that this couldn’t be amended or added later — I think it’s important to have representation. I would always want it worded so that it was a minimum not a maximum. That’s why I worry about numbers sometimes, but I’m in favour of numbers at some time in the future. But if my choice is between having a number in there and the committee getting bogged down and arguing what the right number is or having this bill, we have to start with the bill. Then for the recommendations around appointments made by an independent panel, there are a lot of recommendations I’d love to see in this bill.
I don’t think we’re going to get everything right now. I mean, it is what it is. And again, I revert to that this could be the last chance for our people who have suffered a grave miscarriage of justice. Every day that they sit in prison wrongfully convicted is another day left without their children, separated from, at least for the Indigenous part, their communities and for women, the significant risk of physical and sexual abuse by correctional officers and other inmates. We owe it to them to have a process, albeit an imperfect one, now because it will really be up to the players. The players can make this what they want it to be. If there are good intentions going in, there is nothing to say we can’t supersede expectations, but we need this legislation to be able to do that.
Ms. Talaga: I agree with what Ms. Palmater said. If 32% of Indigenous people are in penitentiaries, then at least 32% of the commission should be Indigenous. But if we have a choice of no bill or waiting to make sure that the numbers are correct, I would say pass it and then make sure there are amendments and provisions made so we have accurate and proportional representation on the commission. Meegwetch.
[Translation]
Senator Aucoin: Same thing for me; I’m directing my question to Ms. Palmater. I asked questions about official languages, English and French, but especially the language of the minority, which is French. The answers I received from ministers, officials or government representatives indicated that services would be in both official languages. In other words, one of the answers provided to me was that hired staff could give work to the commissioner or the commission in both official languages, in one or the other. In the case of Indigenous languages, for instance, if you were guaranteed the same thing, meaning that the staff understands Indigenous languages, but the commissioners do not necessarily understand Indigenous languages and culture, what would you have to say to that? Could you tell us a little more about that?
[English]
Ms. Palmater: I’m sorry. Are you asking if I think there should be people that are mandated in the legislation to speak Indigenous languages?
[Translation]
Is that your question?
Senator Aucoin: If you have the choice between staff that understands Indigenous culture and languages and the commissioners, what would you do? You said you wanted commissioners, but the reality is that it is completely at the discretion of the minister. In your opinion, what is more important? Can you talk about the importance of both, meaning the staff or the commissioners?
[English]
Ms. Palmater: Given that it is grossly disproportionately our people in prisons, jails and youth corrections — and especially in federal institutions — to my mind, to give life to Bill C-91, the Indigenous Languages Act, UNDRIP, our right to have all services in our languages, this doesn’t push aside English or French.
I have no fear that there will always be English and French in these federal institutions, but our languages aren’t always there, and I think it’s important that a First Nation person who is incarcerated from Quebec who only speaks French and Cree be able to have access to both of those languages for these proceedings.
The only way we’re going to have that is to make sure that we have fulsome commissioners and/or additional processes, supports and staff that can provide those services. But I would never want to relegate Indigenous languages to just staff. I think it needs to be at the commissioner level as well, and I think the minister — I mean, at least how I read it — has the discretion to have that happen.
Senator Pate: Thank you to both of you again for your testimony. I’m struck. Today would have been C.D.’s 52nd birthday had she survived, and one of the things that you’ll know, both of you, from reading the 12 women report is that this was someone who was represented by excellent criminal counsel, by a number of Indigenous organizations who intervened and yet, still, the context of the murder that she was convicted of was never explored in court.
We heard testimony from Ms. Worme, the daughter of Don Worme and Helen Semaganis last week, where she described how her father, even though he was Indigenous, understood he did not understand the context of Donelda Kay, a woman he defended. Ms. Kay was ultimately acquitted in the context where everybody thought she would be convicted, and everyone argued she should have been. Ms. Worme described how it was through the assistance of her mother, who was then a law student, helping him understand the context of that abuse that he actually explored the situation, put it before a jury and the jury, on the basis of that evidence, acquitted and understood the context.
One of the issues, as has been raised by some of my colleagues, is that many of these women have pled guilty. Many people who have been wrongfully convicted have pled guilty. The result is that when we look at fresh evidence, one of the questions is — Dr. Palmater and Ms. Talaga, you will know from your work in so many other areas — if the evidence was known at the time, it’s not considered new evidence for the purpose of courts of appeal.
I wonder if either of you could explore a bit more the importance of being able to put forward that kind of evidence because it’s not clear in the legislation now that would be permitted — the minister has clarified that he thinks it could be — as well as whether you could talk about the importance of being able to look at a series of cases like the 12 women together to see the ways that it’s not just a one-off situation but that these are systemic issues.
Ms. Palmater: Thank you for the question. It’s really important.
I don’t want to sound overly negative because as lawyers we’re supposed to support one another, but of all of the people I have worked with in a criminal context, although the lawyers might have been well intended — they might even be experts; they might be part of amending Criminal Codes and a whole bunch of other things — precious few have taken the time to know history, first of all, of everything that’s happened, but to also know the detailed history of the person that they’re representing. Then, because the majority here seems to be men, also the impact in a situation of violence against women and its impacts and all of these misogynistic and racist ideals that have been so normalized that they don’t even know.
Unfortunately, some of these lawyers today would not admit that they didn’t fully serve their clients to the very best of their ability. Having a miscarriage of justice commission — I hate that this is the last resort; we shouldn’t be able to get through all of these levels. To be able to look at evidence — often, the accused doesn’t even know what the evidence is because there was so much dealing between prosecutors and lawyers behind the scenes, and then they explain to their client that it’s X or Y, without going through the details of the evidence, what could be relevant and what might not be. One’s own defence counsel substitutes their own judgment that their client will likely be found guilty without really going through that with the client who might not have that legal knowledge either or understands the rules of evidence.
So this kind of commission, this last best hope, can look at the kinds of information, context and evidence that no one else thought was important, cared to bring forward or knew to be critical context. We know how it goes: Police officers are the feeder group, and then you’ve got lawyers. Then they’re trying to present before judges. Judges are only looking at what is in front of them. There are pleas. I find that pleas are often at a higher risk of that.
So, yes, it is of critical importance because I haven’t seen a whole lot of people come forward and say that they should have done better by these women who were sexually and physically abused. There was no escape; there was no home to go to. They lived in poverty, and their kids were going to be taken away.
They’ve had no choice, yet we have criminalized them for the ways in which they have tried to navigate this minefield of genocide.
The Chair: Can I invite Ms. Talaga to respond briefly on this point, if she would like?
Ms. Talaga: A miscarriage of justice commission should be able to bring forward any evidence they find. Rules of evidence should be looked at by this committee. How could they not be? I just don’t understand how they couldn’t.
I’m not a lawyer, again, and I don’t know everything about the rules of evidence, but perhaps that needs to be re-examined. There are so many cases where I mentioned, as you know and where Ms. Palmater knows, where people are behind bars, having admitted to something they didn’t do, or people didn’t do their jobs correctly or cases weren’t examined as fully as they should have. Why is that?
This commission has to be the last stop. It’s all we have. They should be given every power they possibly can to make sure that the truth and justice come out.
Senator Senior: Thank you both for being here. Thank you for the impactful work you’ve both done for decades that has really supported us getting here, in fact.
My question is not around the things that could be improved or amendments to be made, although you’ve talked about the many you would like to see happen; it’s more about the way the commission will work. I’m thinking about how to avoid replicating an approach that is colonial. When I think of commissions that have been successful in the past, they have been led by Indigenous folks, whether we’re talking about the TRC or the National Inquiry into Missing and Murdered Indigenous Women and Girls. Work done on commissions in the past have been led by people who have been the most impacted.
I’m wondering about ways that can be implemented to decolonize this work. I also want to ask about the importance of gender, which hasn’t been mentioned that I’m aware of. You mentioned that earlier. If you could include that, that would be good. The question is for both of you.
The Chair: We will start with Ms. Talaga first and then Professor Palmater.
Ms. Talaga: Meegwetch, Senator Senior. I appreciate that question.
It’s going to be nearly impossible not to replicate a colonial approach when we are working in a colonial system with colonial laws and a colonial justice system. I would love to see a Marion Buller as the head of this commission; I would love to see a First Nations justice, judge or lawyer as head of this commission. However, the truth is that we have to know the colonizer’s law in order to use it in order to get our people out of jail. I would love to say that I wish that wasn’t the case, but this is where we are.
We can always appoint a First Nations person to lead the commission, and perhaps that person, once the work has started, can look at the deeper work of how we got into this mess in the first place. That is long and arduous, and we all know how we got here; to untangle it will take so much time. So many of the people behind bars don’t have all the time in the world, and they deserve to be freed.
Ms. Palmater: I agree with Ms. Talaga. Those are very important questions.
My analogy is this: Why do alleged external police oversight committees not work? Because the vast majority of them are comprised of current police officers, former police officers and contractors who work with and train police officers who are almost all White men. So we don’t have any real oversight.
We have the opportunity to do things differently here. What I wouldn’t want to happen is to just staff this commission with police officers, former police officers, lawyers, prosecutors and judges who have been in the business of wrongfully convicting Black and Indigenous people their whole lives. If we do, then this does not give much hope.
We really need to have community-based people, people who have connections to community and people who understand a broader scope other than just criminal law. Criminal law is going to be important, but there are also related laws and human rights laws. We need to know the history and context. We need to do things differently so that we’re not just replicating police oversight types of committees.
If there was a second part to that question, I forget it — I’ve already said we’ve got to make sure we have significant female representation on this commission.
[Translation]
Senator Audette: I will direct my questions in French to the incredible women. Thank you for the work you do, the voice you bring and the strength you manifest throughout this vast country we call Canada.
A few moons ago, three years ago, I had the privilege of hearing people speak before this committee, whereas before, I was a witness. I am trying to honour my role as a senator. I hear from colleagues in the other chamber; they are from different political parties and are asking us to depoliticize the issues of violence against Indigenous women or women in general. That is touching to me. That is the work we must be doing.
I agree with my colleague, Senator Batters, who said our role is to provide sober second thought and make sure a bill is thoroughly analyzed, with different points of view and varied expertise. We are at a point where, no matter which government put this bill forward, in my heart…. I think of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Truth and Reconciliation Committee of Canada or Ms. Kimberly Murray’s report, which talks about amnesty by the state. We’re not just talking about genocide, but amnesty by the state.
When you said we should pass this bill without amendment, it surprised me. I support your position. I know you as a warrior, so that means the situation is critical. Do you think that in this case, we should pass the bill, but we will have the support required to improve it under another government?
Could you tell me why, on the other side, elected officials have the right to move amendments, and a party voted against the bill at a time when we need real action? Reports have been written, the evidence is there. Could you do better for the next time? In the meantime, we have to vote; do you have anything else to say to me about that? It really affects me, sorry.
[English]
Ms. Palmater: I have appeared before the Senate and the House of Commons for years and years on countless pieces of legislation, regulations and policies. It is rare that I ever come here and say, “You know what? There are things I don’t like in this bill or there are things that are missing, but pass it anyway.” But this is on such a different level.
This is about our women in prison and our men in prison who will not get a second chance. There will not be 200 Marshall Inquiries. We know the current system isn’t working. Do I know it’s problematic if we don’t have everything perfect? Yes, but I need to think about this not from the perspective of what I want as a lawyer but from that of the people who are sitting in prison. I wonder what they’re thinking. I’m quite sure they are sitting there, for anyone who even knows about it, if anyone even engaged with them about it, thinking, “Please don’t take away our one last chance of addressing this miscarriage of justice.” Otherwise, I’d be here like I am every other time saying do this, do this, do this and don’t do this and don’t do this.
I don’t know if we’ll get another shot at this, and politics is a reality. If we have a change in government who just wants to be tough on crime, I fear for our people.
The Chair: Colleagues, a number of you have an interest in continuing the discussion, but in order for us to have a full opportunity to discuss with the second panel, I think we need to stop at this point.
In that regard I want to extend my thanks and the thanks of the committee to each of you who are here, Professor Palmater for coming in person and providing your insights and wisdom and Ms. Talaga online. Thank you for taking the time, sharing your thoughts and responding so directly to questions from our senators.
For our second panel, we are pleased to welcome first, by video conference, from the Canadian Muslim Lawyers Association, Zachary Al-Khatib. Welcome, Mr. Al-Khatib. We also welcome, as individuals, Zilla Jones, co-author and human rights lawyer, Black Justice Strategy. Welcome, Ms. Jones. Ms. Jones is in person with us. Also by video conference, we welcome Professor Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia. I think welcome back, Professor Parkes.
I would like to welcome all three of you and thank you for joining us. We appreciate you taking the time to offer the insights we will hear in the next few minutes.
We are going to begin with opening remarks, and I would invite you to speak for approximately five minutes, if you would, and that will be followed with questions and dialogue with senators.
I will invite you, Mr. Al-Khatib, to begin for roughly five minutes.
Zachary Al-Khatib, Lawyer, Canadian Muslim Lawyers Association: Hello, honourable senators of the committee. Thank you for the invitation to present submissions on the proposed amendments to the Criminal Code.
My name is Zachary Al-Khatib. I represent the Canadian Muslim Lawyers Association, which is a non-profit dedicated to advocating on behalf of all Canadians by Muslim legal professionals. We regularly appear to testify at Senate standing committees on various issues. Our organization spans across the country and has over 200 members from all stripes of the legal community.
We commend the government for taking steps to amend the Criminal Code and are generally supportive of passing Bill C-40. The recommendations that I am going to be making today are rooted in the principles of diversity and representation. I specifically want to thank all of you for the work you are doing to improve justice for all Canadians.
I have clerked at the Court of Appeal of Alberta and at the Supreme Court. I currently work as a defence counsel since my time in courts. My work focuses on civil rights, policing and defence work, both at the trial and appeal levels, where I am frequently trying to convince courts to give an accused person a chance at fairness. I also teach Criminal Law and Procedure at the University of Alberta.
This bill is a matter of both personal and professional importance and investment for me. I am passionate about the issues that are at play here.
I want to briefly address three questions. The first is: What is this proposed legislation actually for? The second is: Why do we need Muslim input? The third is: What modifications should be made so that this legislation solves the problem of wrongful imprisonment?
One of the senator’s questions from the last session was how we ensure this legislation is not colonial. That really summarizes my submissions.
There are two points. First, ensure the legislation actually provides for a review mechanism that isn’t narrow and technical. I think that is the aim of the legislation, which is good. The second is by representation. That is where my recommendations will come in.
What is this legislation actually for? The legislation recognizes that the justice system has failed to properly address miscarriages of justice, and I am going to tell you why. It comes down to a very academic concept, which is what, in law, we call the standard of review.
Basically, a court of appeal takes a narrow and technical review when assessing something that happens at trial. There are very limited grounds on which they can overturn something like a conviction or a plea arrangement. Plea arrangements are even harder. To Senator Simons’ question, I have had those cases. I have had a case where someone was given bad advice by a lawyer — the wrong advice — and was told to plead guilty. They did so and later discovered serious implications that would last throughout their life. It was almost impossible to do anything about it.
I highly recommend the book You Might Go to Prison, Even Though You’re Innocent by Justin Brooks, who is the head of the Innocence Project. The first chapter of that book is about this topic. He says, basically, the standard of review — a narrow technical approach to reviewing miscarriages of justice — is the reason why many innocent persons suffer in prison.
So the purpose of this legislation is for an independent commission to provide a sober second look in a more holistic and contextual fashion than courts of appeal are doing right now.
Senator Pate, you talked about context, and you specifically asked about fresh evidence applications, which is called the “Palmer test” from the case Palmer v. The Queen. I deal with this all of the time in courts of appeal. Palmer, which is from the Supreme Court, actually says that when it comes to criminal cases, courts should not take a narrow, technical approach to allowing fresh evidence into court. They should not be strict.
Unfortunately, courts are sometimes very strict. Even though the case says they shouldn’t be, the reality of its application has not been as aspirational as it should be. And that is why we need this committee.
Now, why should there be Muslim input? Muslims are disproportionately represented in the criminal justice system, just like Black and Indigenous people. It has not been to the same extent perhaps, but it has been increasing. There are statistics on this. The most recent Statistics Canada report is that there was a 20% increase in Muslim incarceration from 2014 to 2018. During the same period, Muslims were less than 4% of the Canadian population. They are at least 8% of the prison population, which is double the prison population with respect to the societal makeup, percentage-wise.
These are likely under-reported figures. In Edmonton, the Islamic Family & Social Services Association has done its own studies at institutions here in Edmonton. The Muslim prison makeup is at least 11%, if not more. The actual numbers of Muslims in Edmonton are more around 7% of the population.
Why do I say this? Just as we recognize, explicitly in this proposed legislation, that Black and Indigenous groups have suffered systemic discrimination, those effects reverberate through the justice system. We also need to recognize religious minorities, such as Muslims.
What I’m really asking for is expressed in the case of R v. Jackson where it says that the voices of each community deserve to be heard on their own individual terms. That creates an impetus to have minority representation in the commission group, as some of you have pointed out explicitly.
I am basically asking that proposed new section 696.73 have the words “seek to” in the first sentence removed:
In making recommendations for commissioner appointments, the Minister must . . . reflect the diversity of Canadian society and must take into account considerations such as gender equality and the overrepresentation . . . .
So instead of “seek to reflect the diversity Canadian society,” it ought to be “must reflect the diversity of Canadian society.” That would create an onus to actually look at the composition of both society and the prison population and ensure this commission is properly representative.
I want to point out briefly why that is necessary. When you don’t have context — one of the senators asked a beautiful question about not having context. The lack of context is often filled with false stereotypes and assumptions, which rob people of the presumption of innocence and fair trials. I have seen that happen.
I will give you a very brief example. When you have representativeness through a lawyer, it sometimes helps; it is not a panacea. I had a client, for instance — and this is very common — who is an immigrant. He had two names; he had his birth name and his name that he used in Canadian society. It was important to explain to the court that this is a phenomenon amongst immigrant communities because it might otherwise be taken as some sort of evasion tactic to escape liability, and a negative finding might be made against him. That is extremely difficult to overturn on appeal, if it is at all possible, because it is the purview of a trial judge to make those findings, and courts won’t interfere with them.
Since some cases turn entirely upon issues of credibility — whether a person is believable — that can have a huge impact. Something as minor as having multiple different names because you have a name that you use in your native language and a name you use in Canadian society that people find easier to pronounce.
The Chair: I apologize, Mr. Al-Khatib, but I must interrupt you. I’m glad we heard that last point. I would have felt terrible interrupting you before you described that contextual piece.
But I will invite the other two speakers. Then, we will have an opportunity for questions and discussions following that.
Ms. Jones, please go ahead.
Zilla Jones, Co-author and Human Rights Lawyer, Black Justice Strategy, as an individual: Honourable senators, good afternoon. Thank you for asking me to be here today. As a Black woman who is also a criminal defence lawyer in Treaty 1 territory of Winnipeg, I was honoured to be invited by the Minister of Justice to be one of two co-authors of A Roadmap for Transformative Change: Canada’s Black Justice Strategy in which we examined the over-incarceration of Black people in Canada and the effects of anti-Black racism in the Canadian justice system.
The painful legacies of enslavement and colonialism are everywhere in our justice system, and they impact both Black and Indigenous people daily. As Bill C-40 recognizes, that includes wrongful convictions with racialized aspects, perhaps most infamously seen in the wrongful conviction of Donald Marshall Jr., which I heard mentioned in the previous session.
The Royal Commission into that wrongful conviction was held in Nova Scotia in 1990 for a 1971 conviction. Many of its recommendations have still not been fulfilled. Many of them were also our recommendations in Canada’s Black Justice Strategy.
What was true of Donald Marshall Jr.’s case remains true today: Wrongful convictions happen after a cascade of other injustices that compound. The problem is not that we do not know that these things exist; the problem is a lack of political will to take actions to solve them.
The proposed commission on wrongful convictions is a good step. It depoliticizes the wrongful conviction review process by taking it out of the hands of an elected official, and it makes the process more expeditious. Consideration is given to appointing Black and Indigenous commissioners since those are the over‑incarcerated groups in Canada, and it is crucial to pay attention to that.
It is important that subclause 696.4(4) is included, which allows the commission to accept a matter that has not been appealed up to the Supreme Court of Canada. This acknowledges the systemic barriers some accused face in navigating court processes, barriers that are especially acute for Black accused.
It is encouraging that the work of the commission includes outreach and education to society in general and to prospective applicants. This outreach must be included within jails and prisons across Canada, and I would recommend specifically including that in the language of the bill, that the outreach must include institutions.
Under paragraph 696.72(b), the commissioner would be empowered to make recommendations to address systemic issues that may lead to miscarriages of justice to relevant public authorities and bodies. One issue that came up time and again during our work on Canada’s Black Justice Strategy, or CBJS, was consultation fatigue. There have been numerous commissions, inquiries and reports on things like racial profiling, all with recommendations. We made 114 recommendations in Canada’s Black Justice Strategy to the federal government. We don’t need more recommendations. We need action on the ones that exist.
I also note that while the bill addresses a matter of judicial interim release, allowing it to be considered the same way as a bail application by anyone appealing a conviction, it does not address potential immigration consequences to a non-citizen whose matter is accepted by the commission. As the background to the bill states, such a person is still considered to be convicted unless and until the matter is overturned.
Canada’s Black Justice Strategy was centred around consultations with Black communities from coast to coast to coast. One of the issues raised the most by the communities was that of the interaction between the Immigration and Refugee Protection Act and the Criminal Code by which non-citizens can be deemed inadmissible to Canada and removed if they receive certain convictions and sentences. This bill should include provisions to stay removals for non-citizens who’ve exhausted appeal deadlines and completed sentences but have applied to the commission for relief until a decision is made.
Finally, clause 696.84(2) empowers the miscarriage of justice commission to direct applicants to support services. Currently, it is very clear that Canada lacks sufficient resources to address Black mental health and other needs of our community. Another thing made very apparent in our consultations with the CBJS was the critical role played by social determinants of justice in the involvement of Black people in the criminal justice system, particularly Black youth. Housing, education, health and mental health, employment and income — inequities and disparities in these areas need to be addressed to prevent wrongful convictions.
To that end, we made a number of recommendations including the establishment of a centralized federal department or agency responsible for championing and coordinating efforts to advance the interests of Black people in Canada, to establish a Black justice portfolio within the Department of Justice and a Black community well-being and safety division within Public Safety Canada. If the miscarriage of justice review commission is to direct applicants to support services, these services need to be available, and so measures such as the ones we recommended are critical to support the commission’s work.
Thank you for your time. Meegwetch.
The Chair: Thank you Ms. Jones, and thank you for the time discipline that you provided us.
Professor Parkes, the floor is yours.
Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, as an individual: Good afternoon, senators. I will get right to it and say that I have been someone working on issues of wrongful conviction, particularly with respect to women, for quite some time. This bill and the commission are very much needed. The current system is horribly broken and utterly inadequate, but I will focus my time on some important aspects of the proposed commission that I think will be crucial to its success.
One is a mandate and capacity for systemic reviews and analysis. This came up in the previous session. Second is a related mandate and capacity for group reviews. The third thing I will say a bit about is the need for the power to recommend remedies other than referral to a court in appropriate cases.
I’m drawing on my research with Emma Cunliffe on the wrongful conviction of women. I believe she testified here earlier. That research shows how existing legal approaches to wrongful conviction have often failed to uncover or even understand miscarriages of justice experienced by women, as well as Black, Indigenous and racialized people and, obviously, the intersection of those experiences. First and most damning, women have not been successful in having their cases reviewed under the ministerial process. To the extent that we know about women’s cases of wrongful conviction, they’ve generally been uncovered through ad hoc, group-based reviews, particularly the review of cases involving Dr. Charles Smith and the Motherisk Independent Review.
Another thing we know about the need for systemic and group-based reviews from the women’s cases is that women are particularly at risk of being wrongfully convicted for crimes that never happened. Not a crime at all. Think of Maria Shepherd or Tammy Marquardt and other women whose children’s deaths were the results of tragic accidents or illnesses and for whom gendered biases of criminal justice actors contributed to those wrongful convictions.
Known wrongful convictions of women and Indigenous people are more likely to involve a false guilty plea. Women’s cases are more likely to involve death or harm to a family member, to be cases of party liability or involve a strong but unaddressed claim to a relevant defence. The mandatory minimum sentence for murder and plea bargains related to it play a big role here. My current research is on life sentences, and this is where a lot of this comes up.
Senator Pate’s report on 12 Indigenous women highlights similar systemic patterns and shows the ways that a focus on demonstrable factual innocence, that is, revealed through DNA evidence, is inadequate to address wrongful convictions. It is part of it, but it is certainly not adequate. A key problem is that justice system actors fail to understand the systemic context that contributes to criminalization, including wrongful criminalization of women, Indigenous and Black people and others who are overrepresented in Canadian prisons and yet have been under-represented among those exonerated.
It is important that the commission’s capacity to consider a “new matter of significance” under subparagraph 696.4(4)(d) be interpreted and applied broadly to include, in addition to material that might have been in the file but was overlooked by counsel, fresh evidence of a more systemic nature. I’m glad that this topic of fresh evidence has come up because the commission’s powers need to be very clearly broader than the current definition of fresh evidence in court.
Just this morning, though, I did see on this committee’s web page a letter from Minister Virani dated November 5 that’s heartening in this regard. In the interests of time, I will not read it into the record, but I note that Minister Virani states a commitment to the miscarriage of justice commission taking a systemic approach and in particular that he says that applications to the commission may be grouped and reviewed together, that fresh evidence the commission will consider includes the following:
. . . updated understandings of social context, intersectional analyses of the adverse impact of the criminal legal system on particular racialized and other groups who experience discrimination . . . .
Honourable senators, it is imperative that this bill be passed and that these commitments to systemic group reviews be formalized so that they can become a reality.
Briefly, on remedial powers, clause 696.6(2) of the bill is the remedies section, and it’s limited to directing a new trial or referring the matter to the relevant court of appeal. Now, there will be cases where the injustice — and we know of these cases — has been so profound and prolonged and the individual in question so harmed by it that a more tailored, direct remedy will be necessary to do justice. The Crown and relevant ministers have an unfettered discretionary power in the form of the Royal Prerogative of Mercy to intervene and, for example, to authorize release from prison or from parole supervision for a life sentence. I know that Justice LaForme spoke about the need for broader remedies in his submissions. I endorse those.
One possibility is an amendment to this law empowering the commission to at least recommend the exercise of the Royal Prerogative of Mercy. There are other potential remedial powers, but if we’re looking for something that may be simpler, that may be one way to do this because referral to a court, in some cases, is simply not going to do justice and will prolong the injustice.
I should say that I also think it is a real mistake to not include a power to review unjust sentences in addition to unjust convictions. I can speak to that in questions, but I have focused here, in the interests of time, on aspects that I think are to some extent already in the bill but need strengthening, confirmation and government commitment and resourcing.
With well over 50% of the population of federal women’s prisons being Indigenous women, this is the work that I do, and I see these women every day. I was out at the Fraser Valley Institution for women just two weeks ago. The miscarriages of justice commission must not be set up to fail them.
I thank you for your attention and look forward to your questions.
The Chair: Thank you, Professor Parkes. We will now turn to senators, who will pose questions. We have a number of senators who would like to engage in a dialogue with witnesses. With your understanding, I will try to limit it in a disciplined way to five minutes each, starting with the sponsor of the bill.
Senator Arnot: Thank you to the witnesses. I have one question, and it is for all three witnesses.
Witnesses, many wrongful conviction applicants from marginalized communities face barriers such as limited resources or a lack of trust in the system. What specific steps should the commission take to ensure accessibility and build trust among Black Canadians, Indigenous Canadians and other marginalized Canadians?
Ms. Jones: That is a great question. That is why it is important to bring this bill forward in conjunction with other recommendations being made. For example, in Canada’s Black Justice Strategy, we looked at those things and dealt with the lack of trust and the way the system has harmed people.
It is very broad. It is not only accused persons who have their rights violated by the courts; witnesses often do. That can impact the conduct of a case. We heard from many Black victims and witnesses that they were mistreated by the courts and believed they were not helped, treated badly by the Crown and so on. They were scared to come to court.
The conduct of a case starts very early on. In order to address wrongful convictions — ideally, we would not have wrongful convictions, and we would not need this. I think we’re starting at the wrong point; we need to go back to the social determinants and some of the other issues that happen early in prosecution, such as policing. That is where you build the trust.
When people see those things changing, and when they see systemic and transformative change that we looked for — when they see that there is no longer anti-Black racism operating, then they will have trust in the system, but it begins with our youth because a lot of Black people are criminalized as youth.
We need to love those youth, lift them up and educate them. We need to give them opportunities so they are not in the criminal justice system.
Mr. Al-Khatib: Thank you, senator, for the question.
Public confidence in the administration of justice requires feeling like you have been heard. You don’t feel like you have been heard unless there is someone who understands what it is that you are trying to say.
What specific steps do we need to ensure that the miscarriage of justice committee is actually a place where people feel like they’ve been heard and, whatever comes out of it, they feel like they have gotten a fair shake and they have confidence there has been a process where they have been able to advocate properly for themselves?
The first wrong is representation, in my view. That is because, without representation, no one is going to feel like they’ve been properly understood. The second is meaningful process. Professor Parkes suggested a number of means by which the process can be enhanced, not just for individuals but for entire groups.
So representation and process are my answers to your question. Thank you.
Senator Arnot: Thank you.
Ms. Parkes: I would certainly endorse what Ms. Jones was saying about the Black Justice Strategy.
There’s a lot of evidence — and, in many ways, what people need to be able to meaningfully participate in these processes in terms of material resources and the appropriate representation of people on the commission and among staff who actually have that lived experience themselves of the criminal legal system and having been wrongfully convicted. We need representation of those folks in these processes, as well as Indigenous, Black and other marginalized groups who are overrepresented.
I do not want to take too much more time, but, yes, there is important work to be done in terms of representation, fair process and also investment into communities to address these issues at the front end.
The Chair: For those who are watching, Senator Batters is the deputy chair of the committee and the critic of the bill.
Senator Batters: Thank you to all of you for being here today.
I would like to start with Ms. Jones given that you are the co‑author of the Black Justice Strategy. Thank you for being here.
Given your work on that, I wanted to ask you a similar question to one I asked of the previous panel. The report by Judges LaForme and Westmoreland-Traoré recommended that the commission have the authority to refer cases for a pardon or a record suspension for applicants, when justified, but that provision was not included in Bill C-40.
I’m just wondering if you think those types of remedies should be included in the scope of remedies offered by the commission in Bill C-40.
Ms. Jones: It is unfortunate if the ability to give a pardon or record suspension was removed because that is a critical issue that also came up in the Black Justice Strategy: A lot of people had difficulty navigating the pardons. Even now with it being simplified and there being less of a charge, et cetera, it is still often difficult. They have to be literate, speak English and have access to either the forms on the computer or someone to assist them. Legal Aid does not generally help people do that. I often get people asking me to help with those because they cannot navigate it.
So it is unfortunate that such a process is not one of the powers the commission could have to circumvent that process or assist people with it because having a criminal record is a huge stigma. We heard from many of the people we consulted with — and I knew this before — that people are having difficulty getting housing or employment because of their criminal records, which impacts what they can do for their children. That, then, gets them trapped in the system.
Again, it is looking at those social determinants. Having that pardon is critical, as is having the ability to bring in other remedies and to exempt people from community service, probation or parole conditions or things like that.
Senator Batters: Thank you. I appreciate that.
To Professor Parkes, this question is along the same sort of line. You were speaking about an amendment that you thought could be helpful here in cases — I think I wrote this down correctly — where you need a more tailored, direct remedy. You were saying that you endorse an amendment to allow the commission to at least recommend the Royal Prerogative of Mercy.
Would you see a pardon and a record suspension ability — for the commission to do that, as Judges LaForme and Westmoreland-Traoré’s report recommended — as another direct, more tailored remedy that could be used in appropriate cases? Would you also support an amendment for that kind of a situation?
Ms. Parkes: Yes. I would support there being broader remedies beyond simply returning to court because that does not do justice in some cases, so whatever particular mechanism is most expedient to do that.
In suggesting amendments and potential changes to the bill, I do so in the spirit of “the perfect should not be the enemy of the good.” This bill is important and it ought to be passed, but I also think it’s important that the Senate do seriously consider whether there are some potential amendments that could be made that would do its job better and address the real harms, and not fall into some of the problems of the existing regime. I am in favour of the Senate doing that work.
I know from previous testimony before the Senate that such has happened in some cases, although the House will sometimes reject those. However, I think it’s important we have this full discussion and that we see the positive aspects of the bill as well as the parts that could be improved.
Senator Batters: Yes. As critic, I view it as my job to try to make this important bill better, especially in situations like that. We don’t see this sort of thing come around often, so we need to make sure of it.
Many people who have seen me on this committee for a little while know that I really do not like the phrase “do not let perfect be the enemy of good” because I often say that it is actually our job to make things a little bit more perfect here. This is a government bill, and the government has a lot of control over how they bring things forward. Yes, we can propose amendments here, and if they are passed, the government can do things quite quickly if such a message were to be sent to the House of Commons.
Professor Parkes, I also wish to ask you something. I referred to this in my second reading speech; I was talking about the Gender-based Analysis Plus document that the government prepared on this. Given your scope as Chair in Feminist Legal Studies at the University of British Columbia, I want to bring this up to you. It is something that I am seeing more routinely from this government, which is unfortunate.
What I remarked about in my speech was that this document doesn’t have much to really even say about women, and it is silent even on basic statistics about the number of women who are victims of crime, even though it lists similar numbers for other specific groups.
The government, after quite some time, finally did provide those statistics to me, but it took a while. I’m just wondering if that’s something you’re concerned about too. You probably look at these Gender-based Analysis Plus documents, and I wonder if you’re concerned about those sorts of things being missing, the basic information about women.
Ms. Parkes: Just briefly, I can say that it does concern me if that’s not done in a fulsome and intersectional way.
I would say, with respect to victimization, one of the things you see in the work that I do, looking at gender inequality in the criminal legal system and the circumstances of people in women’s prisons, is that victimization and criminalization are on a continuum and there is real overlap. We’re not talking about different groups of people who are victims for the most part and people who are criminalized for the most part. There is a great deal of overlap there. Those kinds of complexities, I think, are really important to understand, and I would like a more fulsome analysis sometimes of these things, but I do think we have lots of resources at our disposal.
Again, with the work that Senator Pate has done in terms of looking at intersecting inequality that a number of Indigenous women experience and the very complex ways that the state has contributed to their wrongful criminalization, I think we have some examples to look at in order to encourage the commission to do this work in a systemic way.
The Chair: Thank you, both.
Senator Prosper: Thank you to all the witnesses who are here before us. My first question is for Mr. Al-Khatib because you provided some detail on statistics with respect to the incarceration of Muslim people. We had discussion about the representation of Black and Indigenous people for purposes of composition of this commission. Do you think there should be some kind of proportionality that exists with respect to the prison population to those people who should be representative of a commission?
My second question is for all witnesses here. It relates to any comments that you can provide with respect to language and, in order for this commission to do its job, the importance for the commission to take into account language considerations for the population in question to be enabled to avail itself of the fruits of this bill as well. I’m looking for comment in that regard if possible.
Mr. Al-Khatib: Thank you, Senator Prosper. In respect to your first question, I hear you asking, “How do we do representation?” The short answer I would provide is yes, but then there is a little bit of nuance that I want to add.
I think it’s not sufficient to just look at the proportion of people in the Canadian prison population and then go and select a number of commissioners based on percentages in that population. It’s going to have to be a little bit more complicated than that.
Right now, to be honest, the theme that you’ve continuously heard throughout every witness’s presentation is they want this bill to pass even if there are no modifications but they also want it to improve. The reason they want it to pass is because the system isn’t working as it should. It’s not giving redress to those people who are wrongfully convicted. That needs to happen, and this is at least a step in the right direction.
In terms of potential and improvement, what I would say in respect to representation is that I’m looking for a minimum and not a maximum. I think that’s essential with respect to Indigenous individuals. I think that’s essential with respect to Black Canadians. I think that’s essential with respect to other minorities such as Muslims. There should be a minimum amount of representation. We can go up from there. We can continue to increase and improve from there, but simply saying the minister must seek to represent these groups, I feel that that language isn’t strong enough. This committee has previously improved that language like removing words like “seek to” in Bill C-9, for instance, and made it incumbent that the minister actually do something.
With respect to language, I think this ties in. Senator Arnot asked a similar question about accessibility and making sure people are heard. One of the reasons the system is broken and that it isn’t sufficient to just have an appeal system is because it’s so difficult to file appeals. If you just go and fill out the forms and submit them, very often, they’ll get rejected by the administrator and it will just go back and forth and back and forth. People get stuck in prison because they literally can’t put their forms in properly. As a lawyer, I’ve had forms rejected time and time again.
These little technicalities are barriers to justice, and language is part of that. It should be that people should write in the language they feel comfortable, whether that be French, their Indigenous language or some other language, and submit their application that way and have it be accessible to the committee.
Again, I endorse the comments of my colleagues who have said that they want to see this bill pass but they’re also hoping to provide this commentary as a means of increasing its potential for remedying justice. Thank you, sir.
Ms. Jones: I would note that many of the Black inmates are Muslim, so there is intersectionality. I would not say that there is a separate Muslim community and Black community. Many of those inmates are likely the Black inmates we’ve been addressing.
In terms of language, that is definitely an issue that we encountered, whether it’s Black anglophone prisoners being sent to prisons in Quebec where they don’t speak French or vice versa and they can’t access lawyers because they don’t speak the language or whether they’re speaking a third language that isn’t English or French and they need interpretation. That is a huge barrier for many Black Canadians, so it is important that this commission provide interpreters and services for that because it will be an issue.
Ms. Parkes: Just briefly, on accessibility to the question about folks who are incarcerated — and I should have said this in response to Senator Arnot’s question around the need for really intensive outreach and support to people who are inside — accessing the commission is incredibly important, especially because incarcerated people don’t have any access to internet, email or anything like that. That’s incredibly important as well.
The Chair: Thank you, both.
Senator Clement: Thank you to all three of you for applying your obvious smarts to the justice system. I’m very grateful.
Ms. Jones, thank you for being here. My colleagues have heard me speak often about the Black Justice Strategy. I have made it my business to respond to your consultation fatigue by saying the words Black Justice Strategy in every space that I occupy. Not just here, but in every space. I’m going to keep doing that.
I want you to address how we use this document with the 114 recommendations as a lens through which to review legislation in a systematic way. That’s a first thing you might want to address.
The other thing is we’re talking a lot about representation, that the language isn’t necessarily going to get us there but that we have to pass this bill —
Ms. Jones: I don’t agree with that.
Senator Clement: I understand, but this is the pressure that we’re getting.
We’ll have a commission. We hope that there is representation — and not just in terms of the representation in the commission but also in terms of all the staff too, right? At every level of that in the peopling of that institution, there should be representation. But the recommendations in the Black Justice Strategy speak to training. I don’t mean training in a shallow way. The language you use is comprehensive, covering historical and contemporary contexts of anti-Black racism and involving Black communities in the development of curriculum.
Could you speak to whether we should — I don’t know. I’m thinking of an observation to maybe add around the importance of real training to make sure that if we don’t quite get the representation right, we’re still doing the work and that people understand the context in which we’re operating. Could you comment on that?
You also spoke interestingly that outreach must include institutions. I’d like you to delve deeper there.
Then, Mr. Al-Khatib, you mentioned the increase of representation of Muslims in the justice system. That led to heartbreak in terms of me learning that and trying to be an ally in that space, as well. Could you comment about what’s going on there? Is it different from the increase of Black folks in the justice system? What should we be urgently doing about that?
Ms. Jones: I’ll just try and get to both of these, briefly. I’ll start with the representation issue.
First of all, it’s really important that we stay focused on the two groups that are the most over-incarcerated, which are Indigenous and Black people. I get a little nervous when we start talking about other minority groups because, statistically, these are the two. These two are whom the reports have shown time after time.
The other thing is that this is the history. If we look at the history of Canada, we know that Indigenous people were colonized, taken off their lands, the RCMP were sent in to move people violently, et cetera. There have always been interactions between the law and the colonization or subjugation of Indigenous people.
It is the same for Black and African people. The law to bring slaves into this country was how most Black people got here in the first place. Things like the segregation of public spaces — we all know about Viola Desmond. There was the segregation of schools and the slave laws that said you could kill a slave for trying to run away. Those are all parts of Canadian history. This is unique to Black and Indigenous people, so we need to stay focused on that. That is why the law needs to be addressed: because of the long systemic inequalities of hundreds of years for these two groups.
So, yes, representation is extremely important for keeping those historical principles in mind. That ties into the training issue a bit. Yes, the training needs to cover this history and context in depth. It’s not enough to have people — my mom sometimes says, “Skin folk are not necessarily your kin folk.” Just because somebody is Brown couldn’t mean they understand the context or that they agree with it. I’ve heard opposition from Black people to the Black Justice Strategy.
We need to make sure these are people who have worked in the field and the community, as well as who are accepted by the community and have dealt with these issues. That is on top of being people of colour.
For me, there is a danger, sometimes, when representation becomes superficial and not necessarily about people’s principles and values, which are what need to be there.
With training, regarding the CBJS, we were conflicted about training. We wanted it to be evidence-based, and that was one of our principles. There were lots of conflicting studies that, sometimes, anti-racist training for police doesn’t really work. So it was a recommendation that we made very conditionally, with all those things happening. However, it’s something we should try. It is important to have the conversation.
I teach training, and when I get in a room with a lot of White justice professionals and I talk to them about these issues, you see minds opening and lights going on in the eyes, so there is value to it. Whether it necessarily changes outcomes is very much a question that needs to be studied. That’s why we recommend that we study that and get that data to find out if it’s working and track it. That would be important to do.
Finally, briefly regarding institutions, the reason I said you need to do outreach is because of what Professor Parkes, my professor in law school, said: They don’t have access to the email, fax numbers and those types of things, so they might not often have a lawyer. Once the file is closed with Legal Aid, it’s sometimes hard to open it. They will not have a lot of knowledge of what is happening in the outside world or in the justice system at any time, so it is important that people physically go into the jail, do sessions and get materials right into their hands. Otherwise, they won’t know about it. Obviously, a lot of wrongfully convicted people are in the institutions.
The Chair: I will turn to Mr. Al-Khatib, but let us observe that Ms. Jones put in a small plug for the University of Manitoba, Professor Parkes.
Mr. Al-Khatib: Thank you. First, thank you, senator, for the question and your allyship.
I would like to start with the words of Justice Nakatsuru in the case of Jackson, citation 2018 ONSC 2527. He said that the voices of diverse communities in the justice system need to be heard on their own terms.
There is an increase in representation of incarcerated Muslims in the justice system that is disproportionate to their growth in the Canadian milieu. That comes from Statistics Canada, and I anticipate my written submissions will provide specific references for that information.
In terms of a solution, let me first comment and say that there are a number of unfortunately marginalized groups in Canada that have suffered from historical and systemic discrimination in this country that extends beyond the specific categories indicated in the legislation. Justice Nakatsuru himself is from the Japanese community. If you go to the West Coast and elsewhere, that community has a history and has been the subject of similar crimes. There are others.
The injustices of the past should never blind us to the injustices of our present or the potential injustices of our future; rather, they should educate us and be a means for us to remedy not only those historic matters that absolutely deserve a particular focus but also create a more just society for everyone.
The way that happens, in my view, is as my colleagues — as Ms. Jones — have said: by engaging with those communities themselves and their institutions. Part of people being heard on their own terms means that they get to communicate how they want to be engaged, how they want to be heard, how they want to be perceived and how the system itself should work.
I understand that, too, can create fatigue. Some solutions create other problems, and we have to address those as well, but that’s my humble answer.
Senator Senior: Thank you all for being here, and thank you for the incredible work you’ve done on your various supports. Those are really informing what we’re focusing on.
I have a question for Mr. Al-Khatib with respect to what you’re seeing in Edmonton in the increase in Muslim populations in jail. Also, what you’ve said reminds me eerily of some of the things we used to see in Toronto in the 1980s and 1990s with Black youth, their incarceration and much worse in terms of their lives being taken.
I’m curious as to whether you also have any statistics regarding the portion of Muslim population that is also Black. I’m curious about that particular statistic.
One of the things I was very disappointed about when I started to engage with this bill was a lack of inclusion in terms of sentencing. Professor Parkes, I know you talked about research that you’ve done on life sentences. I’d love for you to comment on how you think that could inform the bill as it is as a resource to support or inform the work of the commission.
Ms. Jones, I’m curious about the lack of formal inclusion of sentencing and how — it is a similar question as mine was to Ms. Parkes, if you don’t mind.
The Chair: Each of the three of you please respond, but limit it to the minute or so each so we can move to the other senators before we have to shut down.
Mr. Al-Khatib: I will endeavour to get you statistics on the number of Muslims who intersect with the Black community. I don’t have them at the top of my head.
As Ms. Jones pointed out, there is intersectionality; Professor Parkes pointed that out as well. Part of what needs to happen is that we recognize that systemic biases occur in a multilayered and cross-category fashion.
In Edmonton, specific to your question, the Islamic Family & Social Services Association has been studying levels of incarceration of Muslims in Edmonton and Alberta jails, and I anticipate in my written submissions that I will provide references to their statistics and their information. The overall trend is increasing, unfortunately, and an increase that is not in proportion to the increase in communities despite the expansion of all these categories in the community.
With respect to your question about sentencing, I fully agree with what you and my colleagues have endorsed. Sentencing needs to be addressed. When we challenge sentences, we refer to them typically in the framework of being cruel and unusual when we want to challenge mandatory minimums or the like, and one of the ways that a sentence is recognized in our jurisprudence as being cruel and unusual is when it’s unduly long or when it incarcerates at all when there shouldn’t be incarceration. Those are miscarriages of justice by definition. I think if we are to be basically equal across the board in our jurisprudence, we should recognize these as part of a miscarriage of justice framework.
Ms. Parkes: Thank you for that, senator. Yes, I work on life sentences, and the evidence is really clear. This has come from previous reports as well, such as Justice Lynn Ratushny’s report into the self-defence review — in 2000, I believe it was, or 2001 — looking at cases reviewing cases after a landmark case called Lavallee recognized the sexism built into self-defence and changed it. Then there was a review of cases involving women and their unjust conviction and sentences. Not very many women got a remedy out of that, but ultimately it’s that kind of review that we need. The thing she found — and it’s very clear in the research — is that life sentences, with that power, prosecutors exert incredible pressure — the mandatory life sentence for murder is the creator of many wrongful convictions because people plead guilty to manslaughter or even sometimes to murder to a particular parole eligibility period when they actually have a valid defence or, in fact, are otherwise innocent of the crime.
It’s a huge problem, and I do think the commission should have the power to review unjust sentences. That’s certainly what you see in a number of the commissions around the world that are successful.
Ms. Jones: I do think that some of the biggest injustices come in plea bargaining, and I think that a lot of justice professionals, lawyers and judges, undervalue the impact of going to jail. A lot of people think it’s just a few months, it doesn’t matter. But just how much that can derail a person’s life and how much a criminal record can derail a life — we don’t value that enough. There tends to be a real focus. It puts a lot of pressure on that individual to make a decision in a very short period of time. It does really lead to some injustices.
The social determinants are relevant because there are lots of people who take jail because they can’t do probation or conditional sentences because they don’t have phones or a place to live, so they will not get that from the judge. They can’t be on probation; they keep breaching. They end up taking jail sentences when it should be probation, but they just can’t do probation.
There is the murder-to-man calculation, which I what I think Professor Parkes is talking about. I recently had a case like this with an Indigenous client where there were a lot of holes in the Crown’s case and a lot of witnesses not coming to court, and they had first degree on the table and then they offered manslaughter for six years. Knowing that 25-to-life is the alternative, it’s very difficult as counsel to say, go roll the dice and see if that witness shows up, so the client takes the six. If the witness was not telling the truth, that is a wrongful conviction. I worry about this every day. Am I wrongfully convicting people when I’m giving them advice and helping them stay out of the system for the least amount of time? There is a lot pressure on all of us for that.
Senator Simons: I have a quick question for Mr. Al-Khatib. You’ve highlighted one way in which the appeal system doesn’t work when you talked about the complexity of filing the paperwork, but there are other reasons that you can delineate that the appeal system is not working to deal with miscarriages of justice. What shouldn’t we replicate that the appeal system is doing wrong that you don’t want to see bootlegged into the mechanisms of Bill C-40?
Mr. Al-Khatib: Thank you so much for that question. The ways that the appeal system perpetuates difficulty for people to have redress are manifold. It starts administratively with the level of technicality that’s necessary to even file an appeal, to frame an appeal complaint in proper legal language such that a court will even hear it. I’ve had documents rejected because the tone of ivory was not correct on the covering document and it was sent back to me. I’m a lawyer so I can fix that, but a self‑represented accused could not.
It starts with that, and it ends with — I’ve had judges in court when I’ve sought to redress a matter on appeal say to me, “Do you think that if you call this or if you raise this as a miscarriage of justice issue we’re just going to review the entire case again?” And I said, “Yes, that’s exactly what I want.” And he said, “That’s not what we do here.” That’s the problem on a holistic level with the Court of Appeal. The Court of Appeal doesn’t see its role as taking a holistic review of a case and re-evaluating whether the person should have even gone to trial or whether this person should have been imprisoned at all. That’s not their job as they see it.
What should this committee not do? Succinctly, it should not take a technical or narrow approach either in terms of how it receives applications to how the applications are framed to how it evaluates them. People should be able to take a pen, a piece of paper and write out why they think they have not been given a fair shake in the justice system and have that be put before a committee that will take it seriously and really look into the matter for them so they at least feel that someone has recognized and evaluated whether they have been the subject of an injustice. Unfortunately, our court system just doesn’t do that.
[Translation]
Senator Oudar: Mr. Chair, I want to ask a question about prevention, because that’s one of the recommendations in the report by Justices LaForme and Traoré. However, it’s a vast question that requires us to spend a great deal of time on it. So, I give my speaking time to my colleague Senator Pate for the time we have left. We will have the opportunity to talk about prevention another time.
Senator Pate: Thank you very much, Senator Oudar.
[English]
I think I would agree that prevention that you were going to talk about is important.
I want to first start with Professor Parkes because I’m not sure if anyone else saw the letter from the minister. If you have — and even if you haven’t —
The Chair: Could I interrupt to share this with the committee? This is the letter provided by the Minister of Justice to us. It has been posted on the website so people can follow.
Senator Pate: Thank you very much.
Given the political context we’re in and the discussions we’ve been having, I’d be curious as to whether Professor Parkes thinks the minister’s letter, combined with the legislation, provides enough flexibility to a duly appointed commission to actually flex to provide the sorts of remedies and the sorts of reviews that you and others have recommended?
Second, for everyone, talk about some of the ways you think the commission should be constituted. One of the issues raised by Justice LaForme when he appeared before us is the concern that there are so few commissioners and so few resources. Are there ways we can build in structures or make recommendations as a committee that the government or the commission build in structures to allow for layering of this? I think, Ms. Jones, you recommended some of this around the staffing and other ways that you could build in the representation given that it looks like we could be looking at as few as five commissioners.
Perhaps Professor Parkes can start and then from there.
Ms. Parkes: I’ll try to be really brief on this. I was preparing and looking at the materials on the Senate committee website, and I did see this letter from the minister. It’s a number of the things I was planning to speak to and the need for systemic review, for group and for more meaningful remedies beyond returning to court. It’s possible for it to be done, that suggests a willingness on the part of this particular government to do that, but it’s certainly not guaranteed when it’s in the form of that.
Obviously as a constitutional law professor, I know that the legislative record and history are part of interpreting legislation and that sort of thing, but ultimately, in terms of compelling the process, it would be much better to have changes in the legislation itself that make those changes. But I do think it is certainly heartening to see, but it would depend on whether this government is even in a position to continue should there be a future election.
All of that creates a bit more up in the air, but it is certainly a commitment that has been made. I encourage the senators to take whatever efforts that are within your ability and time to try to formalize some of that in your returning the bill.
Ms. Jones: First of all, I think that criminal law is a specialized area of law, and so it is very important that there be people that have experience whether working in the system or being in the system. I think you said half would be that and half not. I would say even that other half should still be people that have some sort of interaction with the criminal justice system in some other capacity.
I was listening to Mr. Al-Khatib talk about the court of appeal; I was thinking, “Yes, I go to the court of appeal.” Part of the problem is judicial selection, you have tax lawyers turned judges. I had one of them ask me what hearsay was because they don’t know criminal law. It’s a very specialized area and it’s often not valued. People think anyone can learn it, anyone can do it, but when you spend many years doing it, you know how specific and specialized it is. That’s really important.
In terms of the structures, staffing would be one beyond just the commissioners because most likely individuals would be interacting at first contact with an administrative support person or intake person or somebody like that. They need to be people they’re comfortable with and trust.
I think it would be important to have the commission travel on a regular basis and meet with communities, not necessarily do consultations — because as I said there’s consultation fatigue — but tell them what they do, see if anyone needs help, see what they can provide for these communities. It’s important it’s not just sitting in Ottawa but getting out to the First Nations and getting out to the different communities.
I would also suggest that there should perhaps be something included about funding through Legal Aid. I know that the federal government has funded Impact of Race and Culture Assessments and they funded certain programs to make sure those happen. Perhaps it should be funding about people who want to access this commission so they will have counsel to help gather the documents and help make the arguments. That might be something to consider as well for accessibility purposes.
Mr. Al-Khatib: I want to build on some of the comments Ms. Jones made. The first is with respect to criminal law being a specialized area and requiring certain levels of expertise or insight. I endorse that entirely, but the thing I would add is that often the way we try to fill that gap is by putting those we inherently trust, which are prosecutors, into those positions.
Typically, judicial appointments come from Crown counsel more often than defence counsel. That’s not something that the Senate can remedy right now. Representation also requires having people who really understand the concept of reasonable doubt and live with that concept on a daily basis, who live and breathe the presumption of innocence and care about it, who live and breathe for fairness in the process. Those are the types of people you would want to have on the committee. It’s an attitude and not just a type of paper qualification. That can be proved through pedigree and through work and through other areas, but that’s ideally the type of thing that I’d like to see.
I also endorse your comments with respect to if we’re looking at a limited number of commissioners, that creates limits on representation obviously. The only solution I can see is the one she proposed which is there has to be sufficient funding and opportunity for meeting and education with communities. This really does work.
I had a case where a Muslim person was being sentenced. The Indigenous justice — who had just attended an educational event through the judicial education committee — understood that a conditional sentence should make an exception for him to attend his own spiritual practice that she was aware of. The fact that she was able to anticipate that and put it into the record went a long way to him feeling that he got a just outcome in the system and he was understood.
These things do make the difference, and I endorse that part of Ms. Jones’ comments as well.
The Chair: Professor Parkes, a minute and you get the last word.
Ms. Parkes: Yes. It is disappointing that the number of commissioners is potentially five to nine instead of what was recommended by the really fulsome work that the Justices LaForme and Westmoreland-Traoré did.
The key will be resources. The key will be commitment to meaningful representation of the kind that’s been talked about, and not just people from a particular group but people who actually have done the work in community as well as people with lived experience of this, that they’re adequately paid and seen as having expertise.
The previous panel talked about Indigenous people and language. That’s obviously very important. There are over 70 Indigenous languages spoken. This commission needs to be properly resourced for it to be meaningful.
There is a worry that maybe there will be this huge influx of cases. I suspect in the first couple of years, yes, but there is a pent-up demand, right? It will level off a bit more after that, but there does need to be significant front loading of resources for this to be done properly and for the right people to be involved.
The Chair: Thank you very much. There won’t be time for a second round and we’ve already extended the witnesses beyond their tolerance level probably. I know a number of senators have commitments. I want to thank Senator Oudar for deferring her questions so we could conclude by now.
At this point, I want to extend my thanks to Mr. Al-Khatib, Ms. Jones and to Professor Parkes for the time they spent with us fielding our questions. You can see the enthusiasm and interest of the members of the committee and the dialogue we’ve had with you.
Colleagues, I also want to thank you for your own diligence and patience taking us a little bit beyond our normal time.
I will remind you we will begin clause-by-clause consideration tomorrow. If you have amendments or observations in both official languages and are able to circulate them in advance, that would be extremely helpful. We will reconvene tomorrow at 11:30 to begin clause-by-clause consideration. Thank you all.
(The committee adjourned.)