Honourable senators, today I’m thinking of my friend David, his children, his sisters and his mom as well as the hundreds of others and their families who have experienced first-hand the unredressed miscarriages of justice that we hope Bill C-40 will remedy. This legislation must be understood as a first step toward dealing with miscarriages of justice in a more fulsome, proactive and systemic way. There is also, however, much that remains to be done.

Throughout the Legal Committee’s study of Bill C-40, witnesses, including the Minister of Justice himself in a letter sent to the committee and appended to our committee report, reaffirmed that to truly remedy miscarriages of justice, the independent miscarriage of justice review commission created by this legislation cannot simply continue business as usual. Significant change is needed to Canada’s current approach to conviction review, without which we risk perpetuating the systemic racism and misogyny that consistently fail those most marginalized, particularly Indigenous women.

In his letter, the minister confirmed that the commission will have:

. . . all tools required to fully implement this foundational, proactive and systemic approach, in a way that represents meaningful change and departure from past experiences of systemic violence, racism and misogyny that, as our GBA+ analysis underscores, have led to Indigenous women in particular representing half of those in federal prisons yet zero successful reviews under the current Criminal Conviction Review Group, covering a period of over 20 years. . . .

The importance of the expectations articulated by the minister was highlighted in an observation of the Legal Committee in its report on Bill C-40, underscoring that the letter from the minister will help:

. . . inform interpretation of Bill C-40 and guide the mandate of the Miscarriages of Justice Review Commission, particularly with regard to the vital importance of ensuring meaningful and proactive acknowledgement and redress of sexist, racist and other systemic inequalities, in particular for Indigenous women, commencing with the cases identified in the report entitled Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women.

Allow me to highlight some of the key ways these materials, the minister’s letter and the 12 Indigenous women report inform what is entailed by the commission’s proactive approach to rooting out and correcting long-standing systemic problems with and in the criminal legal system.

The minister’s letter notes that the commission must:

 . . . meaningfully acknowledge and redress . . . discrimination, and particularly the systemic racism and misogyny that colour the experience of each Indigenous woman who interacts with the criminal legal system.

This work will require commissioners as well as lawyers representing those who have experienced miscarriages of justice to adequately account for and situate the actions of applicants, in particular Indigenous women, within relevant contexts of systemic inequality and colonial violence. In many cases, this task will entail fulsome interrogation of the oversights, misconceptions and mistakes of police, lawyers, judges and other actors involved in miscarriages of justice, but also of one’s own similar biases and assumptions.

Regrettably, authenticity and candid acceptance of responsibility are too often lacking when it comes to contextualized understanding of discriminatory approaches and attitudes, especially when these are rooted in racism, class bias, ableism and misogyny.

While others alluded to the issue at committee, the clearest and most direct evidence on this point came from two racialized women witnesses: Rheana Worme, representing the Indigenous Bar Association, and Zilla Jones, a human rights lawyer who was integral in the development of Canada’s Black Justice Strategy.

Ms. Jones candidly discussed the ways in which racism, misogyny, prosecutorial charging and plea bargaining create pressures that likely result in questionable convictions and sentences. She discussed one plea deal in particular, questioning whether it was the best outcome for the woman she represented.

In highlighting the need and import of contextual understanding, particularly vis-à-vis Indigenous women who have experienced violence, Rheana Worme focused on a particular example to illustrate this point, namely, the murder trial of an Indigenous woman who was represented by her father, Don Worme, and assisted by her then-law-student mother, Helen Semaganis. She said:

Though both of my parents are Cree, my father unequivocally understood that he could not fully appreciate the experience of this Indigenous woman who had experienced domestic violence, so he ensured he made space to listen, not only to his client but also to my mother. Although she was junior to him and still in law school, he understood that, despite his own experiences in witnessing his mother’s death, he still did not fully understand the layers of colonial violence that Indigenous women face. Together, they were able to present a defence that was unique to the Indigenous woman’s experience with domestic violence.

What I suggest in drawing from this example is that there is an innate inability for even the best ally to fully comprehend the context and experiences of women and, more specifically, Indigenous women.

A new report from UN Women has publicized a stark truth about violence against women: For women, the most dangerous place to be is at home. Around the world, home is where most femicides occur, with most women killed by partners or family members, most doubting — based on previous experience — that police and other actors would intervene to adequately protect them from violence.

The client whose actions Ms. Semaganis and Mr. Worme so expertly contextualized and defended lived this reality.

Furthermore, the report titled Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women identifies cases where such experiences and contexts were not considered or not seen as relevant. G.S. was sentenced to life in prison after reacting with lethal force to try to protect herself from an abusive partner. S.D. was first criminalized in connection with an abusive partner’s drug dealing, while T.M. was criminalized for breaking and entering after sheltering at a school to flee the sexual abuse of her father. I spoke at second reading about how racist and misogynist stereotypes led to Jamie Gladue being depicted as a jealous wife rather than a woman acting to protect herself and her sister from further physical and sexual assault at the hands of an abusive partner.

It is telling that although other witnesses before the committee may privately now acknowledge that they missed key information or did not know enough to interrogate certain issues or understand the implications of particular contexts or the circumstances of individual women’s cases in the past, they failed to own or articulate this. Whether it is pride or shame that restrain such self-awareness is not the key issue. The reality is that such reticence to acknowledge, much less take responsibility for, such mistakes or ignorance or both is fundamental to the need for an adequately informed and empowered commission.

It was great to hear Senator Cotter speak about the impact of David Milgaard’s presentations at the University of Saskatchewan’s law school. His experiences in Saskatchewan were not positive. When I invited David to the university, in addition to his incredible grace and forgiveness, he requested that I also undertake to ensure that the Saskatchewan community, bar and bench do better. He insisted that we invite an Indigenous woman to join him to commemorate Wrongful Conviction Day in his effort to draw attention to the fact that while the stigmatic and biased attitudes against him, a poor rebellious teen, were significant, Indigenous women are subject to much more severe discriminatory attitudes. He was adamant that the cases of the 12 women should be reviewed, including but not limited to O.Q. and N.Q., the Quewezance sisters. But for his interventions, Innocence Canada would not have assisted, and their claims of innocence would still be at risk of being abandoned on the advice of experienced criminal lawyers.

Against this backdrop, it is particularly important that commissioners be able to revisit and include in their analyses pre-existing contextual information that has not been adequately explored. Indeed, Tamara Levy, Director of the Innocence Project at the University of British Columbia, testified at committee that this recontextualization has not been possible under the current Criminal Conviction Review Group, known as the CCRG, which Bill C-40’s independent commission will replace.

Ms. Levy stated:

. . . when we have said that there is a broad new understanding of cultural and gender issues that need to be taken into account when you’re reviewing these cases, they —

— that is, the CCRG —

— have not interpreted that as a new matter.

This gap has contributed to the inaccessibility of the current process and the reality that of the mere 24 successful conviction reviews since 2004, most involved White men. Only seven successful applicants, mostly reviewed in the last few years, were racialized men. Not one was a woman.

Justice Harry LaForme, co-author of the report to the government on consultations on A Miscarriages of Justice Commission, stressed that by contrast to the current practice, “I think you would have to interpret [Bill C-40] . . . as allowing you to . . . ” to bring this pre-existing contextual information forward.

Contrary to the views of the current Department of Justice review processes, the minister further affirmed that:

. . . fresh evidence includes 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, and other similar considerations.

The minister also confirmed in his letter another crucial way that the commission must ensure that proper weight is given to such contextual factors by specifying that considerations of:

. . . the exceptional circumstances allowing applications to be made where appeals were not sought account for and address the reality that too many women who experience misogynist violence and/or use force against an abuser are induced/encouraged to accept plea bargains rather than going to trial to raise defences to charges of murder.

Without this understanding, too many women will continue to be denied access to the conviction review process and continue to languish under life sentences and in the prison system.

Given the barriers to recognizing systemic and contextual factors, I was particularly heartened that the minister’s letter also emphasizes the importance of group or en bloc reviews, especially for Indigenous women. The report on the cases of 12 Indigenous women referenced in the Legal Committee’s report and instigated by the work of Justices LaForme and Westmoreland-Traoré reminds us of the urgent need and cogent rationale for such an en bloc review of these and other women’s cases.

The minister noted that under Bill C-40:

. . . applications to the Commission may be grouped and reviewed together. This would include circumstances where applicants’ cases, although rooted in separate miscarriages of justice, highlight systemic patterns and experiences of discrimination.

Ensuring that group reviews are available and eliminating barriers to access will be key components of a crucial strategy for redressing miscarriages of justice that arise from systemic discriminatory failures of the criminal legal and prison systems to adequately recognize, contextualize or address inequities occasioned by racism, sexism, violence and ongoing trauma.

Contextualizing women’s stories alongside one another helps ensure a more fulsome identification and analysis of the intersection and patterns of systemic inequality, discrimination and violence. Without this framing, even the best ally, lawyer or commissioner may very well miss such crucial context.

So much of this bill confers broad discretion to the commission and trusts it to do the right thing. To amount to more than a perpetuation of the misogyny and racism that too many of those who have been wrongfully convicted have experienced in almost every facet of their lives, this commission will need the right people, the necessary resources and an unwavering commitment to the proactive and systemic redress of injustices.

For those reasons, we need to be vigilant and ensure the commission and its personnel, policies and decisions reflect this vision and that the commission’s ability to respond effectively to injustices continues to expand.

As the minister has emphasized, the commission will do the following:

. . . consider on an ongoing basis what additional measures, including remedies such as sentence reviews, free pardons, the royal prerogative of mercy and conditional pardons, are necessary to fully redress miscarriages of justice . . . .

Passing Bill C-40 is just the start. Next, we must ensure that the commission is both empowered and held accountable with respect to fulfilling its mandate to create a miscarriage of justice review system that is accessible, fair and truly just for all.

Meegwetch. Thank you.

Senator Batters, I am afraid we are out of time. Do you wish to ask a question of Senator Pate?

I will ask for time for a question.

Honourable senators, is leave granted for one question and answer?

Thank you for that. As you know, David died as the negotiations about this bill were happening.

He is someone who spent far too much of his life in custody. As I tried to point out in my speech, that was in part because people did not believe him. As Guy Paul Morin also told us at committee, had it not been for DNA testing, David might still be under that cloud.

When he came out, he actually devoted most of the resources that he had gained from his compensation to his mother. He also insisted upon trying to set the best possible situation in place for his son and daughter, who are now teenagers.

He then spent almost every minute that he could — when he was not with his children or his family — working to try to ensure that the cases of other people who had experienced miscarriages of justice were remedied as well. That is how he came to know some of these women. When he was involved with the justices who were recommending changes and some of the approaches to be taken, he actually talked about the need to ensure that people had a better understanding of these issues.

I dare say that while the bill is named after him, he would have wanted it to go further. That is why the minister’s letter and the types of evidence that we heard at committee are so important. Thank you.

Honourable senators, I will speak briefly to register my entire support for Bill C-40.

This has been in the making for over 20 years. During those 20 years, other miscarriages of justice have happened. It is time to put an end to them and provide a way for people who are the victims of miscarriages of justice to have access to a more open, assisting and fruitful exercise than the current system.

I say that because I wish to tell you about something that happened in a courthouse in Montreal less than a month ago. It is about a gentleman named Claude Paquin. Mr. Paquin was charged with a double murder based upon the testimony of a paid informer. Paid informers are part of our system, but they are one of the less reliable parts of the system, as I can tell you.

Mr. Paquin was convicted of murder.

One month ago, he was in the courtroom. He walked to the courtroom with his cane.

Claude Paquin went to the courthouse. The 81-year-old had been wrongfully convicted of a double homicide in 1983 and spent four decades in prison. He left the courthouse a free man on Wednesday, November 6. Here’s what Claude Paquin said to the judge:

I am no longer in hell. I have total freedom. That’s what I’ve wanted for 41 years. I served a lot of time. I lost my freedom for 41 years. Now I have my freedom. I’ll try to live the best life I can for the time I have left.

Under the new system, it won’t take 41 years to correct mistakes. That’s why I invite you to make sure that what happened to people like Claude Paquin, David Milgaard, Simon Marshall, Guy Paul Morin, Michel Dumont and Daniel Jolivet, the man I told you about in my speech last October, never happens to anyone else.

The time has come to pass this bill, and I urge you to do so as quickly as possible so it can receive Royal Assent. Thank you.