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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Wednesday, October 3, 2001
The Chair (Hon. Andy Scott (Fredericton, Lib.)): I'd like to call the 23rd meeting of the Standing Committee on Justice and Human Rights to order.
Before getting to our witnesses on Bill C-15A, an act to amend the Criminal Code and to amend other acts, I have a couple of matters of business to simply bring to your attention.
The reprint of Bill C-15 A and B is now available for distribution with the concordance table. Maybe it's been distributed, but certainly it's available.
I want to bring to the attention of members of the committee that on the afternoon of Thursday, October 25, we will be meeting with a parliamentary delegation from Finland, the Finnish parliamentary law committee. Our business at that time may cause that to be pushed into the late afternoon. For those who don't have their calendars immediately in front of them, that is a Thursday afternoon.
Finally, perhaps at the end of the first session this afternoon, I will be asking for members to speak to the question of their preferences as we consider extended hours over the fall. Very specifically, as I mentioned yesterday, I want to get a sense as to what the preferences are if we have to go to either Tuesday evening, Wednesday evening, or Thursday afternoon. I'd like to make sure that we accommodate as many people as we possibly can.
With that business complete, I would like to welcome our witnesses for the first session this afternoon. The witnesses are representatives of the Association in Defence of the Wrongfully Convicted: James Lockyer, director, and Joyce Milgaard, director.
I welcome you both and I look forward to your testimony this afternoon. As you know, we will offer an opportunity for you to make an opening address, and then members, I'm sure, will be quite interested in an exchange on those comments.
With that, I turn it over to you.
Mr. James Lockyer (Director, Association in Defence of the Wrongfully Convicted): Thank you, Mr. Chair.
I propose to speak for about 10 minutes or less, and I think Mrs. Milgaard will address the committee for the same amount of time. We both want to thank you, Mr. Chair, and the members of the committee for being prepared to hear us today.
We are here to address just one clause of the proposed legislation, Bill C-15, and that is clause 72, which presents some proposed amendments to section 690 of the Criminal Code, which is generally viewed as the section of last resort for people convicted of crimes they did not commit. It's a section our association has always disliked intensely.
In 1998, when we were asked by the present Minister of Justice to make submissions on changes to the legislation, our hopes rose considerably. However, when we came to look at the proposed amendments that are contained in Bill C-15, it's fair to say that our hearts sank because in our view these amendments do not even begin to address the problems we perceive exist in section 690.
It's particularly unfortunate that these amendments are before us now when there is an impending inquiry into the case of David Milgaard, Joyce's son, which has been held up only because it's been considered necessary by the Government of Saskatchewan that its commencement be delayed until the appeals of Larry Fisher have been completed—Larry Fisher being the person who was ultimately convicted of the crime of which David Milgaard was wrongfully convicted.
One of David Milgaard's primary problems in establishing that he had been convicted of a crime he didn't commit was trying to get through the section 690 hurdle, which he found next to impossible. Obviously then, this section will be addressed by the Milgaard inquiry when it takes place.
It's our view that in light of these amendments and the unsatisfactory nature of them, they should simply be removed from this bill and Parliament should await the recommendations of the impending Milgaard inquiry.
The problem with section 690 as it presently exists is that as a last resort for a person convicted of a crime he or she did not commit, that person's only remedy is to apply to the Minister of Justice to review the case and consider whether or not he or she will refer it back to the courts for review.
First of all, in practice, it has proved to be a section with bureaucratic obstacles in it that are virtually insurmountable. The delays inherent in the system are enormous. Section 690 procedures have been said to move as briskly as a snail with arthritis. The secrecy in which a section 690 review is conducted is unacceptable. The lack of resources for a person who claims that he or she has been wrongly convicted is shameful.
Above all, the systemic problems with section 690, which cannot be cured by amending the present process, are twofold. They both reflect the fact that section 690 as it presently exists does not reflect the traditional separation of powers between the executive and the courts, because section 690 requires that before the courts can review a conviction, it must first go through the executive for the executive's approval—in particular, the approval of the Minister of Justice.
This leads to two very practical consequences. First of all, the minister's office inevitably conducts an extremely adversarial approach to any section 690 application that is brought to it. This means that instead of reviewing a conviction to see whether or not it was a wrongful conviction, the minister's office reviews the conviction from the point of view of doing all they can to sustain the conviction.
Second, because it's being conducted by the minister's office, there is a belief in the minister's office that the exposing of a wrongful conviction constitutes an embarrassment to the administration of justice. Of course, the opposite is true. If a person is in jail for a crime he or she did not commit, that is the embarrassment to the administration of justice. Providing a remedy to establish that the person has been wrongly convicted is maintaining a system of good justice.
I want to use as an example a case that our association is working on at the moment. That's a case that some of you may have heard of, the case of Stephen Truscott. Stephen Truscott was convicted in 1959, when he was 14 years old, of a murder of a girl called Lynn Harper, a crime that we at AIDWYC are certain he did not commit. He was sentenced to death. Four months later he was reprieved and a sentence of life imprisonment was substituted. He was released after serving ten years of that sentence, but it's a case that we believe is so seminal in this country when members of the public consider wrongful convictions that it's essential it be reviewed once again and overturned as a case of a miscarriage of justice.
As a consequence, two lawyers and a student, with the assistance of a third lawyer—I'm one of those lawyers—have spent the last six months doing virtually nothing else but trying to prepare an application on behalf of Mr. Truscott. This means that we are unable to devote our energies to other cases of wrongful conviction. If, on the other hand, we had a system of an independent tribunal to replace the powers that the minister presently has under section 690, that work we've been engaged in for the past six months would have been entirely unnecessary. Stephen Truscott could and would have asked a commission of the tribunal to investigate his case. They would have done it in an inquisitorial fashion in a manner similar to a body in the United Kingdom, the Criminal Cases Review Commission.
I meant to say at the outset, Mr. Chair, that we have prepared a short brief for the members of the committee for the purposes of today. I must apologize, it is only in English. We were only notified that we would be heard here today on Monday of this week, two days ago, so we drafted it very quickly and we were simply unable in the limited time to translate it into French. I apologize profusely for that. I hope the members of the committee will nevertheless see it as appropriate to read our brief.
In our brief we point out the work of the Criminal Cases Review Commission in the United Kingdon, a commission that replaced their equivalent of our section 690 in 1997. The work of that commission has been quite remarkable in the four years of its existence. It has in those four years, as of yesterday, referred back to the Court of Appeal in the United Kingdom 141 convictions; 56 of those 141 convictions were convictions for homicide. Of those 56 convictions for homicide, 26 of them have to date been reviewed by the Court of Appeal in the United Kingdom, and 21 of those 26 convictions for murder have been overturned as wrongful convictions as of today. In two of those 21 cases the exonerations of the individuals concerned had to be posthumous, because the two individuals, Mahmoud Mattan and Derek Bentley, were both executed in 1950 and 1953 respectively.
We want to urge then upon this committee that the provisions that seek to amend section 690, which in our view are nothing more than window dressing, be removed from the bill and that this issue be given much fuller consideration by the minister's office and by Parliament, and that an independent tribunal, similar to the one that's been created in England, be created in Canada as well.
We want to stress that in asking for this we are not seeking the creation of a new Court of Appeal. Rather, we are seeking the creation of a new and effective traffic light on the way back to the Court of Appeal. All we're asking is that the section that allows the present situation, where the minister has the ability to stop a case going back to the Court of Appeal, be repealed, and that the minister's role be replaced by that of an independent tribunal who could henceforth become the traffic light on the way to a person trying to satisfy the authorities that he's been wrongly convicted.
The Chair: Thank you very much, Mr. Lockyer.
Ms. Joyce Milgaard (Director, Association in Defence of the Wrongly Convicted): There are five words that ring in my head when I think of our experience with section 690. These are the five words, because we said them over and over: What's happening with the application? We never knew. Our only indications came from calls we got from enraged witnesses who had just been visited by a justice department investigator. They told us that the department's approach to them was to discredit, as opposed to sincerely investigate, their stories.
This attitude of bias could be clearly seen when, after the initial application was rejected, that same application, with no changes made, was resubmitted. And it was accepted. Why?
It was because we had aroused the power of the people of Canada, and as well many members of Parliament, you will remember, who were supporting us at that time. Otherwise, this would never have happened. David would still be in prison.
This process cannot be adversarial, nor can the minister be put in the position of weighing credibility. That is a function that must be performed by independent, arm's length people. As James said, this is being done in England, and this is what is needed here instead of the band-aid treatment being suggested. We need an independent board.
The process has to reflect the fact that the applicant most often is in jail, without means and essentially helpless. Our case, I believe, was the exception. The system has to give the wrongfully convicted and imprisoned person a meaningful chance. Otherwise you're stacking the deck fully against him.
I wonder, are you aware that the changes you're looking at would not take even one day off the 23 years my son served? It would not affect his case in the slightest. How can the justice department support a plan like this? It must be sent back to the drawing board. It is totally unacceptable. Innocent people are still in prison. Everyone knows it. Even the present Minister of Justice, Anne McLellan, has acknowledged it.
Since David was released, just look at the cases that have been overturned. AIDWYC is currently working on 41 cases. James mentioned some of these. We're stretched way beyond our limit. We shouldn't be forced to do the work of the government.
As I mentioned to the chair today, I would love to just get on with my life, but how can I? When my phone rings in the middle of the night, in the afternoon, in the morning, even on weekends, and I get calls from mothers and sons and sisters and brothers about someone in prison who's innocent, I can't turn my back on them.
The government has nothing in place that works. You see, AIDWYC is the only national organization that is investigating individual cases of wrongful conviction. Just after David got out of prison I got a call from James Lockyer asking me to help in the Guy Paul Morin case. I flatly turned him down. My life had been turned upside down for 23 years. No way, I thought. But he doesn't take no for an answer, as you will see. And the next phone call I got was from Guy Paul's mother. How could I turn her down?
This led to my becoming a director with AIDWYC. That involvement subsequently led to David and me asking AIDWYC to arrange DNA testing in our case. When the Supreme Court of Canada released David in 1992, he was left with a cloud over his head. Everyone else was cleared but not David. The court refused to exonerate him. They even suggested that David might in fact have murdered Gail Miller. The institutional bias that permeates the minister's office permeated even the court. As you know, the results of the DNA test proved they were all wrong.
An independent tribunal would change the whole tone of the debate, as has happened in England. There the inevitability of wrongful convictions has finally been accepted by the government and the courts. This is what is needed in Canada.
Let's face it, wrongful convictions happen. We know that. One of the better-known quotes that came out of David's case came from the person the minister had appointed to investigate his claim of innocence. I'll refrain from using his name, even though I've been told I have parliamentary privilege. The comment, referring to David's innocence, was that some people believe Elvis Presley is still alive, too. So it's very hard to fight against bias.
Another frightening thought, often overlooked but so important to remember, is that when the system puts an innocent person in prison, the real killer or criminal is still on the loose. While our David rotted away in prison, and all the family focused day after day on just getting him out, Larry Fisher continued his spree of rapes. Each one became more violent. The last victim, from Prince Albert, Saskatchewan, is a wonderful person, 55 years old. I went to visit with her. She had been stripped, raped repeatedly, stabbed, and her throat slashed from ear to ear. She was left for dead.
These are the results you get when the system fails the wrongfully convicted. An independent board could stop this. You could stop this.
The present system doesn't work. This bill will do nothing to change or improve it. All of you owe it to your constituents to have an independent board appointed. Please, don't make yourselves responsible for more victims.
The Chair: Thank you very much.
Now I will go to Mr. Fitzpatrick for seven minutes.
Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): You've been referring to the British independent commission. I'm very sympathetic to those who are falsely convicted of a crime, but the fact of the matter is, probably a large majority of people in prison are correctly convicted. I'm wondering what safeguards the British system has, because the system could become overloaded by applications, and that wouldn't be good either. Do you have any idea of how they deal with that aspect of it?
Mr. James Lockyer: Yes, I do. I've been to the commission headquarters in Birmingham, England. In the first year or two after the commission was established they took in about 5,000 applications. As of today, four or five years down the road, they have a backlog of only about 600. Of course, AIDWYC has experienced this as well, because we also get a lot of applications.
First of all, it's a bit of a misnomer to say everyone in jail claims they're innocent. It's actually not true. If you're in jail and you claim you're innocent, you tend to be frowned upon by the other inmates. It's not a popular position to take in jail once you've been convicted and sentenced.
When people do claim they're innocent, many of them can be weeded out very quickly. It's obvious at a very early stage in one's look into or investigation of the case that the claim has no merit. So if we visualize an independent tribunal, certainly the British experience has been that about 80% of the cases are very quickly gotten rid of. For the remaining 20%, they then investigate more thoroughly.
As you've heard, in the four years that they've been in existence, there have been 143 referrals. That may sound like a lot or it may not sound like a lot; I'm not sure. I think it depends on the listener. But it's a lot when you compare it to Canada. If you look at Canada and look at the number of section 690 applications allowed in that same four-year period, I'm subject to correction, but I think I'm right in saying there have been three. So that demonstrates very clearly the difference in effectiveness between the two systems.
Mr. Brian Fitzpatrick: The other area that I was concerned about was the makeup of the board. As well, what is provided in the way of financial assistance to applicants in the British system? Do they use a legal aid system? Really, is it another court, with lawyers and that type of people sitting on it, or is the makeup of this commission something different from that?
Mr. James Lockyer: Let me answer your second question first. More than 80% of the applicants do not have counsel at all. The need for counsel is minimal, because the commission acts as an inquisitorial board. In other words, they themselves investigate the case. It has always been my view, and I have always said publicly, that the day we have an equivalent in this country is the day that AIDWYC closes down. We wouldn't see a need for our organization any more.
So the answer is that lawyers are involved minimally, unless and until the commission refers the case to the appeal court. Then, of course, a lawyer will come to represent the individual whose case has been referred to the Court of Appeal, as would be the case here.
To go to your first question on the makeup of the commission in the U.K., there is no set makeup, except there is a requirement—I forget the numbers, but I think this is it—that one-third of the members have legal training, one-third of the commissioners. In practice, the commissioners come from all walks of life. Obviously, if I'm right in that number, at least one-third come from the legal system. It includes retired judges, it includes prosecutors, it includes defence counsel, it includes lawyers who have nothing to do with the criminal justice system, and it includes lay people, people from universities, people from all walks of life.
It's interesting that they try to use the individual experiences of each commissioner when they decide which commissioner will review which case, because in some cases it's obviously helpful if one has expertise in a particular field. Very often, especially in some of their false confession cases in England, they find that mental health workers who have been appointed to the commission are very appropriate people to review those kinds of cases.
Mr. Brian Fitzpatrick: Under the proposed amendments that we have in this bill, is it not possible for the Minister of Justice to create a committee, through the regulations, to review these applications?
Mr. James Lockyer: In practice, that's what the minister is already doing now. When a case is considered to have some considerable merit by the minister's office, the minister will frequently engage the services of outside counsel to review the case on her behalf. The problem is that it's still being done within the rubric or within the control of the minister. Practically speaking—and I can talk about it from a practical level—that means it is treated as an adversarial process.
As I say, in Stephen Truscott's case, we are going to be submitting to the minister a brief of about 500 pages. We have to have it completed by next month. If we were dealing with the CCRC in the U.K., I wouldn't have had to prepare a brief at all. I would simply have passed Mr. Truscott's case over to the commission and asked them to investigate it. They would have done the work from the same angle from which we have done the work on Mr. Truscott's behalf. That is, we look at his case from a neutral point of view.
Our association has no interest in trying to help people who have been rightly convicted—in other words, people convicted of crimes that they committed. That's the antithesis of what our organization is about.
Mr. Brian Fitzpatrick: But that commission must have some sort of compelling new evidence or reason to start this inquiry. They have to have something to open the gate up, so to speak, so that it activates something.
Mr. James Lockyer: No, actually that's not even right. It's simply that a petition to the commission causes the commission to have a responsibility to review the case, whether it's a review that might take half an hour or a review that might take two years. The commission doesn't have to be presented with any material other than the filling in of a form by the applicant. They have forms the applicant fills in, in which he describes what he was convicted of and when he was convicted, no doubt with a brief synopsis of why he claims to have been wrongly convicted. Essentially, the work is all done by the tribunal.
The Chair: Thank you very much, Mr. Fitzpatrick.
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you very much.
Thank you for your presentation, with which I am in complete agreement. I share all your apprehensions and your requirements regarding the amendment to that part. Yesterday, I said the very same things to the minister. I think that the way it is drafted is dangerous. If we are truly sincere regarding any amendment for ensuring that justice be done to wrongfully convicted persons, I think that we should proceed differently from what bill C-15 proposes with regard to wrongful convictions.
I do not have many questions for you because your presentation was very, very clear on this issue, except for one specific point.
With the current draft, do you foresee an additional problem regarding compensation, in cases where an individual has made an application, an investigation has been carried out and it has been concluded that there has been a wrongful conviction and that the individual, man or woman, has been wrongfully jailed? The same people do everything: the investigators, the decision makers, and those who should pay. In the end, even compensation will be negotiated by the same entity. Does this make the problem any worse for you?
Mr. James Lockyer: Yes, it does, but we think there is a solution to that problem coming in the next two weeks. In the last year, Mr. Justice Cory, a retired member of the Supreme Court of Canada, conducted the Sophonow inquiry, the inquiry into the wrongful conviction of Thomas Sophonow in Winnipeg, Manitoba. I was advised this morning that the report is going to be released on October 22.
One of the issues that Mr. Justice Cory has examined in great depth is the issue of compensation of the wrongly convicted. Naturally, as an organization, we're very concerned about compensation of the wrongly convicted. In a sense, though, I suppose we see it as putting the cart before the horse. Let's first set up a system that will identify the wrongly convicted and let's worry about how we're going to compensate them after that, in a sense.
It might be good to get Joyce to answer this as well, because David ultimately had to go through this whole process of trying to get compensation.
Ms. Joyce Milgaard: Yes, the process is a difficult one. In our case, a judge was appointed to act as a mediator between Saskatchewan and ourselves, and that seemed to work quite effectively. It dragged on for a long, long time, because Saskatchewan didn't seem to want to mediate. It wasn't until I made another trip to the House of Commons here that they actually did anything, and that was as a result of my meeting with the Prime Minister.
I can't say anything good about the system, I'm afraid. The system of compensation is just as bad as the section 690 application, because we never knew what was going to happen on it either. We gave them everything they asked for, and then they kept releasing information to the public that wasn't even true, and we could do nothing about it. It was just a very bad situation.
So I agree with the member. I think you have pointed to something very important. It has to be part and parcel of the whole thing that there can be people set up just to do it. It cannot be done in this adversarial manner. That's one of the reasons why the whole thing should be taken out of the minister's office.
If I were the Minister of Justice, not having been Joyce Milgaard, with a son in prison, I probably would not want to have it moved out of my office. I'm speaking frankly here, because the more people you administer, the more power you have—right? So you take away my people, you take away my power, until I would fight tooth and nail against anything that took away people from me.
The fact that it's costing even less with the system they're using in England than what it does with our system.... Just figure out how many bureaucrats' desks this application of my son had to pass through. I can tell you of a time that I received a call two years after the application had been in. I thought it was being looked after, then David Aster phoned me and said, you've got to come back, Joyce, the minister hasn't even seen your application. We found that out. So it takes so long to go across all these desks. Why not shorten it? That's the reason for the independent board.
The Chair: Merci, Mr. Bellehumeur.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair.
I want to thank Mrs. Milgaard, as well as Mr. Lockyer. We're really honoured to have you here for your insights into this. You have very different but very important perspectives to bring.
I have a number of questions, but for reasons of time, I'll try to present them quickly. The Truscott case, I think, and the Milgaard case demonstrate very clearly that there can often be intended and unintended political consequences, or even interference. The Truscott case, I think, is one that is going to renew Canadians' interest in this entire process of how we deal with cases where there is a suspicion of wrongful convictions.
I go to Mr. Lockyer first. The current amendments we see before us, based on what you've presented and your comments, your brief, indicate to me that these changes will have little or no impact on the way we're dealing with the wrongfully convicted today. Similarly, the aspect of politicization of this process is still going to exist, and it continues to pose a threat to the way we deal with this.
Short of putting this into an independent body, is there any way you feel we can improve this current section, or should we be waiting for Mr. Justice Cory's report to come out, seeing that it's going to be coming before us in a relatively short time, a matter of weeks? Should we delay and see what wisdom can be found in that report?
I also wanted to ask you, Mr. Lockyer, from your extensive experience with the criminal law, about the impact of DNA and how that can significantly improve the way these cases are handled, stressing the importance of preserving evidence of DNA in all criminal cases. The Truscott case is a classic example of where DNA could have provided the key, or unlocked the key, proverbially, for Mr. Truscott.
What further insights can you offer on those subjects, and how can we ensure that David Milgaard and Stephen Truscott haven't served their terms in vain? If we don't unlock this question, I'm afraid we'll be leaving Canadians vulnerable further.
Mr. James Lockyer: On the first question, whether we should await the Sophonow report from Mr. Justice Cory, Tom Sophonow never went through the section 690 process. He was in fact ultimately acquitted in the Manitoba Court of Appeal in the early 1980s. The trouble is, like David, when he was set free by the Supreme Court of Canada, Mr. Sophonow was acquitted with the general opinion being, “He probably did it. He probably killed Barbara Stoppel.”
It was only about three years ago that AIDWYC asked the Manitoba police department to review the case again. To their eternal credit they agreed to do so, and ultimately the police and the justice department in Manitoba were prepared to publicly exonerate Mr. Sophonow just last year.
That means Mr. Justice Cory has not been well briefed, and indeed there was no evidence called, with respect to section 690 of the Criminal Code. So I think if he's going to address it at all in his report of October 22, there will be minimal reference to it. It's the Milgaard inquiry that we're waiting for, because obviously in David's case section 690 played a very frontal role in the problems of David having spent the 23 years that he did in jail.
Mr. Peter MacKay: Sorry to interrupt you, but can I ask you when that Milgaard inquiry might be complete?
Mr. James Lockyer: It hasn't started yet. The reason is that the Government of Saskatchewan said at the outset, when David was exonerated, they would have to wait until all of Larry Fisher's appeals had been exhausted. His appeal to the Saskatchewan Court of Appeal for his murder conviction has not yet been heard.
I might say, though, we already have the recommendation of the Marshall report that an independent tribunal be created to replace section 690. That's right there in the Marshall report back in 1989.
Justice Kaufman, in the Morin report, also recommended that section 690 be reviewed from the point of view of whether or not it should be replaced by an independent commission. He didn't directly recommend an independent commission because, as in Mr. Sophonow's case, Mr. Morin didn't go through the section 690 process either. Donald Marshall did, of course.
The next question you asked me was on DNA. DNA has obviously had an enormous impact on establishing that people have been wrongly convicted. But it's only available in those cases where DNA is first of all relevant—in other words, where bodily samples have been left by the killer, and a rape murder is the classic situation where DNA plays such an important role—and where the DNA has been preserved.
You've raised the Stephen Truscott case. We discovered, after a two-year search, that all exhibits in Stephen's case that were capable of DNA testing had been destroyed in the 1960s. So while DNA could certainly have played a decisive role, in Mr. Truscott's case it unfortunately couldn't.
But a role DNA really plays in wrongful convictions, from our perspective, as well as exposing them, is that where exonerations have taken place, DNA cases can be used as a way of seeing how many other wrongful convictions there must be of people still sitting in jail, where DNA is not available because it's either not relevant, or if it's relevant, the exhibits no longer exist to be tested. Indeed, in many of the cases AIDWYC is working on, DNA cannot play a role.
DNA plays an important role from two perspectives—first, in exonerating people who have been wrongly convicted; and second, in raising our antennae so we can appreciate how many have been wrongly convicted, for whom DNA can be no help.
On your third question of whether there should be a DNA databank for people convicted, I want to stress I'm not speaking on behalf of AIDWYC when I answer; I'm speaking as a human being. I'm not even speaking as a lawyer. I'm just giving you my personal opinion. My personal opinion is very much in support of DNA databanks. For people who are convicted of serious crimes or crimes that have the potential of being serious—attempted sexual assault or something like that, for example—there certainly should be a DNA databank.
Mr. Peter MacKay: Thank you.
As far as AIDWYC is concerned, you obviously dedicate a great deal of your personal and professional life to it because you believe in it, but you have to eat. I suspect that much of what you do is either voluntary or based on some form of contingency. I don't want to put you on the spot, but I think it's important that people understand that this is not a fully funded agency you represent. This is something you have taken a great deal of initiative on. Is that the case?
Mr. James Lockyer: Yes. We're not a well-funded agency. Actually, the only substantial funds we've ever acquired, since our inception in 1993, were due to Rubin Hurricane Carter, our executive director, insisting that the distributor of the film about his life, called Hurricane, donate $50,000 to AIDWYC. That's the only substantial contribution we've ever received. There's been nothing above $100, apart from that. So our funding is minimal, and we clearly can't fulfil the role of an independent tribunal. We can't begin to do that. We're a very inadequate substitute for an independent tribunal.
There is a serious problem for people who are wrongly convicted. I think Joyce pointed out in her opening that they rarely have access to funds. Due to our inadequate resources, we generally only look at the most serious cases—that is, people serving life terms for homicide. Obviously, people serving life sentences are not the kind of people one expects to have access to any resources at all, so much of the work our members do is for free.
Mr. Peter MacKay: Pro bono. All right.
Thank you, Mr. Chair.
The Chair: Thank you, Mr. MacKay.
Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you, Ms. Milgaard, Mr. Lockyer. Thank you very much for appearing here today and sharing your experience and wisdom with us, but also for the contribution you've made to the public interest. I think we should all be very grateful for that.
I'd like to probe a bit in terms of how you visualize this new system that's presented in the bill, and how you compare it with both the old and the investigative commission. Do you see a similarity—perhaps, Mr. Lockyer, I could ask you this first—between the function performed by the Minister of Justice, as proposed in this bill, and prosecutorial discretion? How would you distinguish those two? Is there something of a prosecutorial discretion in reverse about this?
You mentioned the British standard of substantial merit. Substantial likelihood of conviction is the evidentiary standard usually applied to prosecutorial discretions in this country. One of the things I'd like to know about is that distinction. If there is some similarity in the role being played, ultimately, by the Minister of Justice, why should that person not be entrusted with making this final decision?
The second aspect to this is I think we all appreciate that the amendments have been suggested because the current 690 provision has failed us. It's not sufficient and needs to be amended quite dramatically.
As I understand it, we will have a somewhat arm's length investigative agency investigating and preparing recommendations for the Minister of Justice. It's arm's length in the sense that it's a discrete unit that will not involve people who have other duties in the Department of Justice. In the past that may have been confusing, or at least a delaying aspect of many of these applications. I'm wondering, in that sense, why we couldn't see this as a prosecutorial discretion in reverse.
I am interested in your comment, Mr. Lockyer, that AIDWYC of course is a neutral body because you don't care to advocate on behalf of the cancellation of the conviction of anyone who wasn't wrongly convicted, but surely you are an advocacy agency. Yes, you go through an investigative screen yourself, just as this body would as part of the Department of Justice, and you only become an advocate when you believe some threshold has been passed in terms of likelihood of wrongful conviction, as would the minister have to be convinced to refer it back to a court.
Finally, I wonder if either of you know of any country other than the United Kingdom that has an independent commission similar to theirs.
Mr. James Lockyer: First of all, to address the prosecutorial discretion aspect, prosecutorial discretion is an inevitable facet of any justice system, and with respect, it is not the same thing as the ministerial discretion under section 690.
Prosecutorial discretion is not final in judgment. A prosecutorial discretion is merely a decision by a prosecutor that a case will or will not proceed before a court, which will be the place where the ultimate judgment will be rendered.
In the case of the minister's discretion, however, it's very different. If the minister decides not to exercise her discretion, then there is nowhere else one can go; that is the end of the matter for the individual concerned. We take issue, and indeed umbrage, at the very notion that this is viewed as a discretionary remedy on the part of the minister.
I have before me the legislative summary prepared by the minister with respect to the proposed amendments, in which she says:
Clause 81 preserves the basic elements of the current
system for ministerial review provided in section 690.
Ministerial review of convictions continues to be an
extraordinary and discretionary remedy....
It's our view that if a person has been wrongly convicted, there should be nothing discretionary about it at all; that person should as a matter of right be entitled to have his conviction overturned. The fact that it's still considered discretionary by the minister—her power—is merely reflective of the systemic problems created by leaving it in her office to decide whether or not this power should be exercised in a particular case.
In our view, the existence of a discrete unit within her department that will deal only with wrongful conviction applications will not change the systemic problem of the ministry being the ultimate arbiters, and the minister in particular being the ultimate arbiter of any application made to her.
With respect to our role being neutral, obviously you're right. We have to decide—it's in our mandate—whether a person is factually innocent. That's a decision we have to make as an organization. We don't decide issues on whether this person had a trial that had errors and therefore he or she should get a new trial. Rather, we focus on factual innocence. Of course, once we've decided that someone is factually innocent, then we advocate on their behalf, because there is no one else to do it.
With a tribunal, on the other hand, the tribunal that we're seeking to have set up, once it's decided that a person may be factually innocent...because that's all we would ask them to do—that is, decide that a person may well be factually innocent. In the British legislation, if the commission decides there is a reasonable possibility that the individual's conviction will be overturned by the Court of Appeal, then the duty of that body will be not discretionary—there will be no discretion about it—but to then refer it back to the appeal court for the appeal court to decide whether or not the conviction is unsafe and should be overturned.
Finally, are there any other jurisdictions where there's similar legislation? I understand, but I'm not certain of this, that New South Wales in Australia was considering bringing in this legislation and it was before their parliament. Whether or not it was ever passed or enacted, I don't know, so I can't answer that question very well.
Mr. Stephen Owen: Just briefly, you did use the word “bias” earlier with respect to the Minister of Justice making this decision exercising discretion. I'm not sure how you could see an advocacy agency as neutral and the Minister of Justice potentially biased in exercising a discretion.
In the prosecutorial discretion comparison, I really think that's exactly what's happening. You are exercising a discretion from the point of view of a victim of a crime that will stop that matter going to court and that prosecution happening, and that is in the name of maybe a Minister of Justice federally or provincially.
So I don't want to quibble with words, but I think there's a similarity there that we shouldn't overlook, that discretion is being exercised on whether to prosecute someone on behalf of the public because someone has been a victim of a crime. I think there may be some real similarity there. But what I do take very seriously is the horrendous experience that people like David Milgaard have gone through in attempting to use the previous system. That is something that must be addressed very seriously by this legislation.
The Chair: Thank you, Mr. Owen.
Perhaps you want to respond, Mr. Lockyer, before we go to the next questioner.
Mr. James Lockyer: Yes, very briefly. I want to go back to this neutrality thing because I think I may have been misunderstood on it.
Our organization is neutral in the sense that we approach a case to decide whether or not the person is factually innocent. Once we decide that the person is, then we advocate for them. A tribunal, on the other hand, would approach neutrally the issue of whether or not a person is factually innocent. Once they've decided that the person may well be, they don't have to advocate; they have a duty to refer it back to the appeal court.
So we only have to advocate when we've made our decision as an organization, because the remedy that's available, section 690, requires us to do that. The fact that our organization has decided someone is factually innocent is not going to be very satisfying to the individual if we just say to him, well, we made the decision, but you still have to serve your life sentence. Obviously at that point, because of the way things presently stand, we have to then advocate. The creation of the tribunal will take away both the need for our fact-finding and the need for our advocacy. That's what we see as the beauty of a tribunal.
The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Thank you, Mr. Owen.
We'll start the three-minute round now with Mr. Fitzpatrick.
Mr. Brian Fitzpatrick: James, in your initial response you made reference to a lot of bureaucratic obstacles and secrecy. I'm assuming what you're saying by that is there isn't a clearly defined process that a person can follow to get this thing adjudicated or dealt with, or determined. I'd like you to comment on that, but I have a few other things I want to throw in as well.
You mentioned factual innocence with your organization, and so on. I'm wondering about that. Do you deal with whether the person could have been a party to the offence or an accomplice, maybe not the principal party in the offence but an accomplice?
As one further point, on this discretionary unit that is proposed under this legislation, are you suggesting that if that unit recommended a review, there shouldn't be discretion in the minister's hands; it should automatically kick in a review?
Mr. James Lockyer: Let me answer the last one first, but I'm fearful I'm going to forget the one before that if I do.
If the system proposed in the new legislation were to come into effect, as I understand it, this essentially would mean that the present group operating within the Minister of Justice's office, called the Conviction Review Group, would become a “separate unit”—I'm not quite sure what that means, because in a sense they're a separate unit now—and do nothing else. I'm not sure they do anything else at the moment.
I know some of the people who work within that group, and they're very nice people. But that, of course, isn't good enough. They still work with the systemic bias of the office within which they work.
Does this legislation improve the procedure they operate under at present? In essence, no, it doesn't. There is only one change in this legislation that would mean some improvement, that for the first time the minister would have the power of subpoena. That is an important remedy.
Certainly, the Criminal Cases Review Commission in the United Kingdom has all the powers of subpoena and exercises them. When they undertake a case and decide that it has some merit and is worthy of a look, so to speak, or of a review, the first thing they do is subpoena all the police files and all the prosecution files to their office, so that they can examine them. That's the first thing they do.
In one case, for example, the case of a man called John Kamera, who spent 17 years in jail for a murder he didn't commit, the commission, when they exercised that power of subpoena, discovered 201 undisclosed witness statements in the crown brief that the defence had never been aware of. And within those 201 undisclosed witness statements there were numerous statements that made it apparent that the entire crown case was false, that the crown witness who had purported to identify Mr. Kamera as the killer could not have identified him as the killer, because the killing had not taken place at the place where they purported to see Mr. Kamera committing it. It turned out that the killing had occurred at an entirely different place, and the 201 undisclosed witness statements had never been revealed, which would have shown that to the defence.
So the power of subpoena is important, and I would be silly if I denied that if we have to continue to work within the 690 system, that would be some improvement to it.
But there's an awful danger here that if we do that, if this bill is passed with these changes, any real changes will be forestalled for many years hence, that the minister's office will simply say to us, we looked at this two, three, four, five years ago, we made the changes, we're not going to now do it all over again. Why forestall the Milgaard inquiry in particular, which is undoubtedly going to make very important recommendations on section 690? I would be amazed if they weren't in accordance with the recommendations of the Marshall inquiry in 1989.
Get rid of section 690, which is inadequate and unsatisfactory, and replace it with an independent tribunal.
The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Lockyer.
John McKay, please.
Mr. John McKay (Scarborough East, Lib.): Thank you both for your very thoughtful testimony.
As you know, the minister appeared before us yesterday, and if I understood her argument correctly, it was that she didn't have a conflict of interest such as you're suggesting, because the vast majority of cases are in fact done by provincial prosecutors rather than federal prosecutors, and that therefore she was not—I don't want to put words in her mouth—investigating her own.
Her second argument, as I recollect, was that—she made reference to the U.K. commission, although not nearly in the detail you have—all the U.K. commission did was bring out every person in jail who claimed they had been wrongfully convicted, and it created a huge volume of people who had to be all sorted through. So the volume argument and the conflict of interest argument were the two ones I recollect that she addressed.
The other thing I wanted to ask about is Mr. Justice Cory's Sophonow inquiry. It's not clear to me what that is about. Is that a 690 application or just a compensation application?
Mr. James Lockyer: It's a combination of a compensation application and an inquiry into how Mr. Sophonow was convicted twice of a murder he did not commit. The primary issue that Justice Cory is bound to address in that inquiry is the issue of erroneous eye witness identification, because Mr. Sophonow was wrongly identified by numerous eye witnesses as having been seen at the donut shop where Barbara Stoppel was killed.
The Chair: Order.
I would bring it to the attention of members that I've been advised there is a suspicious package in the building and we have to evacuate the building.
I would suspend the meeting, and at the end of this, if it happens in short order, we'll simply reconvene, as we have other people coming as well.
The Chair: I welcome everyone back—without incident.
Mr. McKay has the floor.
Mr. John McKay: I've already put the question on the record, and Mr. Lockyer was starting to respond.
Mr. James Lockyer: Yes. The issue of a conflict of interest on the part of the minister investigating claims under section 690 was obviously addressed by the British when they created the Criminal Cases Review Commission. The Criminal Cases Review Commission came about as a result of two inquiries conducted in the U.K., one by Sir John May, who conducted an inquiry into the wrongful conviction of the Maguire Seven, which has been glorified in the film In the Name of the Father—the Guilford Four and the Maguire Seven—and another by Viscount Runciman, who reviewed all the wrongful conviction cases in England and the inadequate response of the British equivalent of our section 690 to claims of wrongful conviction. Our section 690 is premised on the original English legislation, going back many years in England—the Minister of Justice equivalent was the Home Secretary.
Viscount Runciman, in his report, which led directly to the creation of the Criminal Cases Review Commission, said, on the conflict issue, the following:
Our recommendation for a Criminal Cases
Review Commission is based on the
proposition that the role assigned
to the Home Secretary and his Department
under the existing legislation is
incompatible with the constitutional
separation of powers as between
the courts and the executive. The scrupulous
observance of constitutional principles has
meant a reluctance on the part of
the Home Office to enquire deeply enough
into the cases put to it and given the
constitutional background, we do
not think that this is likely to change
significantly in the future. We have
concluded, then, that it is neither
necessary nor desirable that the
Home Secretary should be responsible for the
consideration and investigation of
alleged miscarriages of justice, as well as
being responsible for law and
order and for the police.
Sir John May, who did the Maguire investigation, said something very similar:
The very nature and terms of the self imposed limits on
the Home Secretary's power to refer cases have led the
Home Office only to respond to the representations
which have been made to it in relation to particular
convictions rather than to carry out its own
investigations into the circumstances of a particular
case or the evidence given at trial....the
approach of the Home Office was
throughout reactive, it was never thought proper for
the Department to become proactive.
One could very well substitute the Minister of Justice wherever it says the Home Office in those quotes.
As regards the rather cynical view that the minister presented yesterday of the CCRC, that being that it was just an opportunity for everyone in prison to complain they had been wrongly convicted, that is nothing more than a cynical view of the work of the CCRC. Frankly, it surprises me that the minister said that.
I know people within her office were sent to Birmingham, England, to review the work being done by the CCRC there. They spent some considerable time there in the offices of the CCRC, meeting its members and its commissioners. I've spoken to at least one of the people from the minister's office who went on that trip, and she was clearly extraordinarily impressed by the work they had done and the work they were doing. It's very sad, then, to hear that the minister in essence has simply contradicted what her own people have presumably told her as a result of the trip that they made to the U.K. to see how the CCRC worked in practice.
In practice, the CCRC has not had complaints from everyone in jail. Six thousand claims were made to it, and the vast majority of them have already been dealt with. There are obviously considerably more than 6,000 people in British jails. It probably runs into the hundreds of thousands. So I would ask you not to give a great deal of consideration to the very cynical view presented by the minister yesterday.
The Chair: Thank you, Mr. Lockyer.
Mr. Michel Bellehumeur: No, I have no questions.
The Chair: We'll go back to Mr. Owen.
Mr. Stephen Owen: Thank you, Mr. Lockyer.
First of all, I take exception to your characterization of the minister's evidence, with respect.
Mr. James Lockyer: I didn't hear it. I only heard what was described.
Mr. Stephen Owen: And that's particularly why I take exception to it, sir.
Your characterization of the Home Secretary as being interchangeable with the Minister of Justice of Canada is off base, frankly, with respect again. The Home Secretary is not responsible for prosecutions, and the Minister of Justice in our system is not responsible for the police. Those two distinctions create a wide gap in any kind of comparison.
Mr. James Lockyer: But I think the point is still the same. When I said you can substitute the Minister of Justice for the Home Secretary, I meant it in the way in which the Home Secretary is described in those two quotes as dealing with applications for references. The minister here deals with them in the very same way in which the Home Secretary is described as dealing with them there.
Mr. Stephen Owen: Excuse me, but surely the point of the quote is that there's an institutional bias that you've mentioned earlier. If the Minister of Justice is not responsible for the police, as the Home Secretary is, and if the Home Secretary is not responsible for the prosecutions and prosecutorial discretions in order to see that justice is done in the way the Minister of Justice is, then surely we're talking about very different offices.
Mr. James Lockyer: I'm sorry, but with respect, I myself would have thought the Minister of Justice's position, on that analogy, is worse than the position of the Home Secretary, in that the Minister of Justice is responsible for prosecutions. I would have thought one would have seen even more potential for institutional bias where the minister is responsible for prosecutions, as opposed to where the minister is responsible for the police. So in a way, I think the Minister of Justice's position is worse than that of the Home Secretary.
But I'm not sure that's what really matters, at least from our point of view. What matters is that it's government doing it, it's the executive doing it, and not an independent tribunal doing it. We would all surely be extremely upset if we got rid of courts and allowed the executive to try people and convict people. So if we're upset at that—as we would be, because it's a complete violation of our notion of a separation of powers—then we should be similarly upset when the executive has the power to prevent a person who has a valid claim of wrongful conviction from getting his case back before the judiciary. I think that's really what I'm trying to say.
Mr. Stephen Owen: To go on from my earlier question, I'm struggling with this notion—I'm asking for your assistance, and I appreciate your comments—of the distinction between prosecutorial discretion exercised in the name of the Minister of Justice in many cases—the models are slightly different across the country—and the decision to refer back to court, rather than to a court, again a discretion exercised in the name of the Minister of Justice in a prosecution. That being a quasi-judicial type of decision, do you see prosecutions being under the direction of a minister of the crown as a violation?
Mr. James Lockyer: No, I don't. Earlier you said that the prosecutorial discretion can be exercised against the victim—I had thought of saying something about that but didn't at the time—and that therefore a decision can be made not to prosecute that has a lasting impact on the victim.
That, with respect, is not the way one should look at the exercise of prosecutorial discretion. Prosecutorial discretion is exercised in the public interest. Prosecutors act on behalf of the public and not on behalf of individual victims.
Prosecutorial discretion is exercised on behalf of the public in an assessment as to whether it is economically viable and serves the cause and the interests of justice to maintain a prosecution that has insufficient merit. An exercise of prosecutorial discretion deeming that an individual case has insufficient merit to justify, in the public interest, its proceeding any further is a perfectly valid exercise of discretion.
My objection would arise if the prosecutorial discretion exercised on behalf of the public enabled a person to be convicted, but of course it doesn't. That is where the analogy breaks down, in my submission, because all the prosecutorial discretion can do, in terms of the individual accused, is enable a case to proceed to an adjudication by a court of law. That is really all we're here for. We're saying that courts of law are where issues should be adjudicated.
Now, we appreciate that, when someone has been convicted and has exhausted all appellate remedies, the individual should not be allowed, as nauseam, to go back to the courts for review, as they are in the United States to some extent, although there have been bills that severely limited that ability in the last five or ten years. We see a need for what I have described as a traffic light in the middle that can prevent a case going back to the courts. Our objection is that the traffic light should not be operated by a member of the executive; it should be operated by an independent tribunal.
Mr. Stephen Owen: Isn't, though, the decision to send it back to court—
The Vice-Chair (Mr. Chuck Cadman): I am sorry, Mr. Owen, thank you, that will be the end of it. Since it is five to the hour and we have new witnesses coming up, I would like to suspend until 5 o'clock.
Thank you very much to the witnesses. Thank you for your testimony and taking the time to come.
Mr. James Lockyer: Thank you.
The Vice-Chair (Mr. Chuck Cadman): The committee is adjourned until 5 o'clock.
The Vice-Chair (Mr. Chuck Cadman): I'll call the meeting back to order.
We have our second group of witnesses from the Canadian Police Association and the Canadian Association of Chiefs of Police. Welcome, gentlemen.
You folks have been here before. I think you know the drill by now. We'll entertain a 10-minute presentation from each of the witness groups. Who would care to start? Mr. Griffin from the Canadian Police Association. Ten minutes, Mr. Griffin.
Mr. David Griffin (Executive Officer, Canadian Police Association): Thank you very much.
We appreciate the opportunity to appear today before the committee to speak to Bill C-15.
Constable Scott Rossiter started his police career at 21 Division, Peel Regional Police. After marrying and starting a family, Scott and his wife Penny decided to move to a smaller community in southwestern Ontario to make a better life for their family. Scott left the Peel force and joined the Ingersoll police service.
On September 19, 1991, Scott was working an evening shift and stopped to investigate a male cyclist in the municipal lot next to the police station. An altercation occurred, and the cyclist managed to relieve Scott of his police revolver. Constable Scott Rossiter was fatally wounded, with a gunshot wound to the head. He was 30 years old and the father of two small children.
We do not know how many police officers have been killed in Canada with their own firearms. While we do not have statistics on the number of incidents involving the disarming or attempted disarming of police officers, we do know from talking with our members that this type of aggression is on the rise.
Sandy Brohman, president of the Peel Regional Police Association, first brought this proposal to the Canadian Police Association.
Sandy could not be here today but sent me details of occurrences involving several Peel Regional Police officers.
On December 7, 1998, Constable Michael Seymour was working in uniform and intervened in a dispute among several men. When he tried to stop one of the aggressors, Constable Seymour was punched in the face. An attempt was made to pull his jacket over his head, and he was knocked to the ground. While one male got on top of the officer and began punching him, another began kicking him. He head was slammed against the ground, while an attempt was made to remove the officer's duty firearm. If not for the intervention of a witness, the aggressors might have been successful, since two safety latches on the holster were released.
On June 11, 1999, uniformed Patrol Constable Dyet was attempting to arrest a male who had assaulted another officer. In the process, the suspect grabbed her firearm and tried to remove it from the holster. Witnesses assisted in preventing the man from obtaining the officer's weapon.
On August 15, 1999, Constable Kirk McDonald was working in plain clothes and attempting to arrest a man for breach of his recognizance. He identified himself as a police officer and attempted to take custody of the male. The male responded violently, throwing the officer against the fence, kicking, and kneeing him. He tried to get the officer's firearm, while shouting at his girlfriend to shoot the officer. Fortunately, Constable McDonald was able to protect his weapon, and the individual fled.
On May 14, 2000, Constable Peter McLaughlin was speaking on the telephone in the Mississauga hospital when a patient grabbed at the officer's weapon and was able to break the firearm free from the holster and gain possession. Fortunately, Constable McLaughlin and hospital personnel were able to get control of the firearm before the weapon was discharged.
On May 26, 2000, two Peel police officers responded to a call about a suspicious male. When Constable Chris Lachappelle arrived, two males attacked him and attempted to dislodge his firearm. The officer maintained security of his weapon during the attack. When the second officer, Sergeant Bond, arrived, one of the males attacked Sergeant Bond and was successful in removing the officer's gun; however, the gun fell to the ground. Sergeant Bond was able to prevent the attacker from reaching the weapon.
On March 28 of this year, police attempted to stop a vehicle for impaired driving as the driver pulled the vehicle into the driveway of his residence. During the arrest, the man yelled for the assistance of his family. The accused's father and two women ran out and surrounded the uniformed police officer, Inspector Bob Strain. The father attempted to pull the officer away from his son.
A second officer, Constable Manson, arrived and attempted to intervene. The father attempted to remove Constable Manson's firearm after punching the officer repeatedly in the face. Constable Manson managed to retain his firearm until other officers arrived.
On April 2 of this year, Constable Dana Nicholas was working at the Clarkson Secondary School and was called to the front of the school to deal with a disturbance. A 19-year-old male charged the officer, struck her in the head and face, and knocked her to the ground. He proceeded to kick Constable Nicholas in the head, face, legs, and back. The attacker attempted on three occasions to pull her gun from its holster without success and was finally subdued with the assistance of school personnel.
On July 13, police approached a man walking in rush hour down the middle of Steeles Avenue, a major Brampton thoroughfare. The man lunged at Constable Smith, screaming, “Now you're going to die” and grabbed the officer's weapon. A struggle ensued, and Constable Smith succeeded in protecting his firearm as the individual tried to pull it from his holster. The officer gained control of the accused.
These are just eight incidents that have come to our attention in one police service—ten police officers who may not have made it home from their shift if not for their presence of mind, the security of their equipment, and the intervention of witnesses and other police officers.
The risk to officers increases dramatically when an attempt is made during an arrest or altercation to disarm the police officer of his or her protective equipment. Police officers are no longer able to defend themselves properly as the officer's focus shifts to preventing an offender from obtaining the officer's firearm or protective equipment.
We are grateful to Justice Minister Anne McLellan for listening to our concerns and bringing the provision of Bill C-15 forward. I think it goes without saying that we strongly support this proposal as presented.
Turning briefly to the other portions of Bill C-15 currently before the committee, children are the most vulnerable group in a society and are in need of protection from those who would prey on them. The growth of the Internet has significantly increased the availability of child pornography and facilitates attempts by pedophiles to find new victims. We support the proposed sexual exploitation provisions dealing with child pornography and Internet luring. We would, however, like the government to establish a national sex offender registry as set out in our resolution at tab A in our brief.
We have also proposed a number of other strategies in our recommendations, including establishment of a national photo-image database, creation of a national tip line, and raising the age of consent to 16 for children to have sex with older persons.
We concur with the proposal to increase the maximum sentence for criminal harassment. This is a very serious predatory type of offence, and we recommend the bill be strengthened to include a significant minimum sentence for second and subsequent offences.
We also propose an amendment to include the offence of criminal harassment within the long-term offender and dangerous offender provisions of the Criminal Code of Canada.
We concur with the proposed changes dealing with sexual exploitation of persons with disabilities.
We are somewhat ambivalent over the proposal concerning home invasions, and would point out that the offences of break and enter and robbery already carry maximum sentences of life imprisonment. Unfortunately, maximum sentences do not seem to have any significant effect on the sentencing practices of members of the judiciary.
The proposals to streamline criminal procedure appear to bring our archaic justice system one step closer toward 20th century efficiency—notably two years after the rest of the world moved into the 21st. We would like to see the procedures amended to provide for mandatory electronic disclosure of documentary evidence, and we suggest that a serious, contemporary evaluation concerning the effectiveness and efficiency of our judicial system is long overdue.
With respect to the miscarriage-of-justice proposals, we would question whether the expansion of this process to include summary conviction offences is warranted, given the costly levels of appeal already available. Secondly, we caution that the minister may be leaving open too much latitude for judicial review of these determinations.
Finally, we believe the victims should be notified at the time of application, consulted during the review process, provided a copy of the final investigative summary, and afforded an opportunity to make submissions prior to a determination.
In conclusion, we support Bill C-15 and have proposed a number of improvements in our recommendations.
We thank you for your consideration and attention, and we welcome any questions.
The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Griffin.
Now we'll proceed with Mr. Vincent Westwick from the Canadian Association of Chiefs of Police.
Mr. Vincent Westwick (Co-Chair, Canadian Association of Chiefs of Police): Thank you, Mr. Chairman.
My name is Vincent Westwick and I represent the Canadian Association of Chiefs of Police. This afternoon, I am accompanied by my colleague Jacqueline Loignon from the Ottawa Police Force and superintendent Michael Shard from the Ontario Provincial Police, who also is a member of the association.
The Canadian Association of Police Chiefs represents 950 chiefs and deputy chiefs and members of police executives and more than 130 police forces in Canada.
By advocating legislative reform and innovative solutions for crime and public issues, as well as promoting community partnerships and high professional standards, the CACP is dedicated to leading progressive change in policing.
I would like to convey to the committee the best regards of the newly elected president of the CACP, OPP Commissioner Gwen Boniface, and my co-chair, Chief David McKinnon of the Halifax police service.
It is a pleasure and an honour to appear before this committee yet again this afternoon. Even in its slimmed down version, Bill C-15 contains much that is important and indeed significant to the police community. Given the time restraints, we will try to emphasize those issues we feel are most important to the CACP and those that need some explanation and expansion.
I will ask Superintendent Shard to present our comments, Mr. Chair.
Superintendent Michael Shard (Canadian Association of Chiefs of Police): Thank you and good afternoon.
I would like to speak first to the proposed provision regarding disarming a police officer. We believe this is an important provision that has been introduced as a result of the hard work of our colleagues at the Canadian Police Association.
This section is fundamentally preventative in nature. It's timely that this section is being considered by Parliament in the same week as the police memorial service that took place this past Sunday on Parliament Hill, in which nine peace officers were honoured.
It is intended that this special provision will reduce the number of attempts to disarm police officers and ultimately reduce the number of tragic effects that result when the weapons are then used against both police and members of the public.
We strongly support the proposed provision and rely on and adopt the comments made by our friends at the Canadian Police Association.
I'd like to speak next and in more detail to the proposed legislation around sexual exploitation of children.
The amendments are an attempt to keep pace with the ever-changing problems faced by our society, specifically the technology of the Internet. These provisions provide the police with some practical enforcement tools. We all bear a special responsibility when dealing with crimes against children.
Many of you are aware that Chief Fantino of the Toronto Police Service has been very involved in these issues for years. He expresses that any improvement in this area is a positive step, but encourages the committee to keep a watchful eye on the impact of these sections.
With ever-changing technology, it is critical that the community be given the tools to protect its children from exploitation.
Specifically with respect to the court-ordered deletion of child pornography from Internet sites, the CACP believes this power, as found in clause 13, is an important investigative and preventative tool that has been introduced by this legislation. This ensures that there is a legal mechanism to focus on and remove the material. We do find this to be a very important step.
With respect to the luring of a child, or clause 14, we feel this is an important clause and worthy of support. We have some suggestions.
Firstly, we are somewhat concerned by the hierarchy of ages found in the proposed subsection. This may create practical investigative and procedural problems.
Secondly, we also wonder whether the definitions are broad enough to capture Internet or internal e-mail and computer systems, which are now common in both the public and private sectors.
Lastly, the provisions fail to capture those adults who facilitate the commission of those offences targeted in the proposed section—for example, where a person asks an undercover officer to help lure a child for sexual purposes.
I'd like to speak next to the criminal procedure issues. Specifically, I'll talk about the remote appearances, private prosecutions, and preliminary inquiries provisions.
The Canadian Association of Chiefs of Police have for several years been making representations on changes to criminal procedure. These are not merely technical amendments.
We hear much frustration expressed in our communities about how the criminal justice system operates. While some of the criticism is based on misinformation, some of it is well founded.
In our view, some provisions of the Criminal Code are simply outdated and have been overtaken by new technology and approaches. Continuing to hang on to the old procedures is both expensive and time consuming and in no way advances the interests of justice.
Our submissions address technical concerns, but also, more fundamentally, respect for and integrity of the criminal justice system. We ask, therefore, that you give careful consideration to our comments in this regard. Generally, what you will hear is that the steps being taken are important but regrettably do not go far enough.
Specifically, on the issue of remote appearances, every day in our courts persons in custody appear for adjournments and remands, etc. Typically, these take less than a minute and in some cases only a few seconds. These are not trials or hearings, but rather merely adjournments. Many jurisdictions are trying to implement video remands so that the exorbitant expense of transporting and securing prisoners for remands can be avoided. The problem is that under the current and also the proposed law, it is still voluntary. Quite frankly, prisoners enjoy the opportunity to get out of their cells for the day and go to court. We suggest that we need something to make this process work.
With respect to private prosecutions, this is a very important topic for the police community and public officials generally. Under criminal law, every person has the right to commence criminal proceedings against another person. Regrettably, these provisions are often misused. For example, there have been several high-profile cases in Ottawa where police officers and senior public officials have been subjected to months of expense and stress as a result of this kind of action. Again, unfortunately, once the process has been commenced, other officials are loath to interrupt the process. It is disturbing how far and to what expense these actions can go before they are terminated. One executive member of the RCMP attributes a heart attack to the rigours of facing this kind of unfounded, but stressful, process.
In Ontario there is an elaborate procedure for police complaints, but increasingly private prosecution is used as an alternative or as an appeal process. Tens of thousands in public funds and extensive resources are wasted in these ill-conceived actions. Only last week Vince Westwick prepared a strongly worded letter to the Attorney General of Ontario on this very issue. Our concern is that the proposed sections do not go far enough.
We agree that the applications for private prosecutions ought to go to a judge, but we go further and recommend the following. If the judge decides that the matter ought to proceed, we suggest that the crown must take carriage of the prosecution so that the community can be assured that the prosecution is both a proper and professional approach and consistent with the law and standards set by Parliament and the provincial legislatures.
Speaking next to the preliminary inquiries provisions, a preliminary inquiry has historically been used in more serious cases to determine whether there is enough evidence for a trial and to ensure that disclosure to the accused has been made. This involves the crown producing all of its witnesses and putting its case before the preliminary hearing judge. The defence rarely calls evidence.
The CACP has strong views on this topic and has been making submissions to the government for several years concerning the preliminary inquiry. We welcome the important steps taken in Bill C-15 in narrowing the scope of preliminary hearings, but question why preliminary hearings are simply not abolished. The process is very expensive and time consuming, and in our opinion, in light of the charter and our extensive laws on disclosure, it is simply no longer justified.
In conclusion, the CACP and its members respect and are very grateful for the opportunity to appear before this committee to make submissions on the future of the Canadian criminal law. We support Bill C-15, subject to the comments we have made, and we are available to answer questions. Thank you.
The Vice-Chair (Mr. Chuck Cadman): Thank you very much, gentlemen, and thank you for sticking to the time.
Now we'll go to the opening round. Mr. Fitzpatrick, seven minutes, please.
Mr. Brian Fitzpatrick: Yes, I just have a few comments.
I would certainly agree with your position on preliminary inquiries. At one time the accused would have to fight to get disclosure, but now they get everything under the sun, and it's very fatal to the crown's case if they don't disclose information. So the purpose for this procedure, to me, is not clear any more.
On the private prosecution thing, I take it what you're mentioning on that point is that people are using that as a way of harassing the police officers, that sort of thing. If that's the case, we really don't need that sort of thing, especially in the context of the type of situation we're finding ourselves in with this new paradigm from the New York incident. Is that your point with the private prosecutions, that they're really being used to harass police officers and the police forces?
Supt Michael Shard: Yes, from my perspective—I am the bureau commander of the OPP Professional Standards Bureau—I am aware when private information is laid against police officers on the Ontario Provincial Police. And I have seen some that in my opinion were exactly this, an abuse of process. That's from my perspective, what I see, so, yes, very much so.
I suspect they're also misused against other members of the public. It's not something I would personally see, but it's a possibility that concerns me because the slice of it that I do see concerns me. I would be surprised if the broader pie wasn't similarly troubling.
Mr. Brian Fitzpatrick: In defence of judges, who aren't always the most popular people around, I did have a conversation with a judge not long ago about a lot of the criticisms they received for sentencing and so on, and his point of view—this is in the Saskatchewan context—is he's very frustrated with the whole system. He imposes a sentence on somebody he feels is appropriate, and for whatever reason the system has these people back on the street long before he anticipated them to be back on the street. It's his suspicion that there are just inadequate resources at that end, that it's a warehouse problem and people are being pushed back out onto the street just because of shortage of space and so on.
Do you have any information on that sort of a problem, or a viewpoint on it?
Mr. David Griffin: As I alluded to in our presentation, we see some of the measures in here dealing with aggravating factors—home invasion is an aggravating factor—as a band-aid to a much bigger problem in terms of how we sentence and deal with people in our population, particularly people who are habitual offenders. So we would certainly endorse a whole-scale review of our criminal justice system and look at opportunities to use alternative measures to incarceration where those are available, but at the same time ensure that there are meaningful consequences for people who commit serious crimes.
Mr. Brian Fitzpatrick: I'd draw on the American experience. I think if you want to look at the data in the United States, there has been a dramatic decrease in the crime rates in the United States. I think I saw where New York City, for example, maybe had a lower crime rate than any city in Great Britain with over 500,000 people, which I found quite amazing. The mayor of New York I think had a fair amount to do with it. I think his thinking on prevention is you go into the high-crime areas, and if the police are there and the risk of getting caught is going to be a lot higher, that helps. The second thing is, when you get caught, you know you're going to get convicted. Third, when you get convicted and get sentenced, there's going to be a penalty with it that's going to act as a deterrent.
This sort of approach to policing has been handled right across the board in the U.S., and we see a dramatic decrease in crime. People are always saying let's get to the root cause of crime and get preventive measures in. It seems to me it's hard to ignore the data coming out of the United States.
I would like to have your comments on that, on whether this bill actually deals with any of those sorts of areas.
Mr. Vincent Westwick: One of the areas we're particularly interested in, as Mike said, is the provisions dealing with the preliminary inquiry. We would certainly encourage the committee to perhaps consider expanding those provisions, but our concern is perhaps along the same line of what you're talking about. We're concerned about the respect the public has for the criminal justice system, and we feel that the preliminary inquiry no longer serves a useful function. Therefore, we feel that the respect for the system can be enhanced without in any way detracting from the principles of substantive criminal law or in any way taking away from the important principles of the charter of rights for the individual charged person.
So we feel there are opportunities within this legislation to take steps from a legislative standpoint that would enhance the public confidence in the criminal justice system.
Mr. Brian Fitzpatrick: I have one more comment. You made a comment about handguns, and the cases David was mentioning are disturbing. I think this is a problem. I have heard it back out west, that sort of problem.
It just occurred to me that apparently the technology is available—or is very close to being available—where you can have your personal handgun and the only person who can use that handgun is the person who owns it. The technology is there. It just occurred to me that this sort of thing would certainly be very helpful as a resource for police officers in dealing with this sort of problem. Do you know what the...?
Mr. Vincent Westwick: I have heard of such technology. I haven't see it, and it's not available in the trade shows the police attend for security equipment and police-related equipment. I haven't seen it as yet.
The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Fitzpatrick.
Mr. Michel Bellehumeur: Thank you very much.
First of all, let me thank the three witnesses. It is less exciting when we agree. It seems to me that questions are less incisive when we agree fairly well on the approach.
But here is a point I am less enthusiastic about. This is the new offence of disarming a police officer. This was already raised in the committee, and I already met with people here. I still believe that the Criminal Code has enough instruments, and the Canadian Police Association also notes this. You mentioned the articles in your brief. However, I know that many police officers have requested this and, if it meets your expectations, I will not hesitate to vote for the amendment and the new offence. Perhaps we should emphasize police work even more and try to show that disarming a policeman might be a more serious matter than disarming some other persons. So I think that there is no problem with passing this amendment.
There is a point that is not really dealt with in Bill C-15, but someone from the Canadian Alliance raised it yesterday and the Canadian Association is doing the same today. Your third recommendation seeks to increase to 16 the age of consent for children to engage in sexual relations with older persons.
I know that this is not in Bill C-15, but I cannot help wondering about it. You may be right in saying that the age should be raised to 16 years. Perhaps a 14-year-old is not mature enough to give consent. But please explain to me why these 14-year-old children should be treated like adults in other respects.
I am referring to Bill C-7. You made a statement about it and you were of the opinion that at the age of 14, people are sufficiently enlightened and mature to be treated like adults, are fully conscious of their actions, etc. But with regard to sexual relations, we should increase the age from 14 to 16, whereas in the population at large... I have a 12-year-old daughter and I would not especially like her to start having sexual relations in two years, but in the population at large, children are much more mature than they were when I was a child. At the age of 14, I was still playing in a sandbox, but I know some 14-year-olds who are no longer playing with their trucks in the sand. We are in the year 2001, but we want to raise the age from 14 to 16.
This is something I do not understand. You will really have to explain this to me, I'm sure of that. I repeat that you might be right in saying that the age should be raised from 14 to 16, but we should be consistent. There seems to be a contradiction, but once again, this is just a footnote because it is not included in Bill C-15. It looks like some agreement was reached with the Canadian Alliance. We spoke of this yesterday and you are speaking about it today. We will certainly hear about this again, and you'll have to explain this to me, because I do not understand.
Mr. David Griffin: I'm sorry, but it is easier for me to speak about this in English.
First of all, I think from our perspective there is a lot of ambiguity in the Criminal Code at the present time concerning age of consent for different types of offences. We have age categories dealing with certain offences that don't necessarily make sense when we look at other offences. Our view is that as a society, we only grant certain privileges to people who are considered to be adults, whether that be 16 years of age in order to drive or whether that be 18 years of age or perhaps older in some provinces in order to consume alcohol. We believe there's a problem when we have 40-year-old male adults who can have sex with a 15-year-old juvenile, be they male or female. We have concern, when police or parents are asking the police to intervene, that there are no provisions there to assist us in interrupting that situation.
Certainly, we would agree that any new language would have to address circumstances involving perhaps two teenagers, one who is 15 or 16 years old and another who is within several years of that age. That's one thing. But for mature adults to be preying on 15-year-olds is a concern to us, and the language that's currently in the Criminal Code requiring the accused to take certain steps to ensure that they have some assurance of the age of the young person is the same sort of protection we would envision. It is, I believe, under section 172 of the code, dealing with ensuring that a person should at least take reasonable steps to determine the other person's age.
This is an issue we've had raised by police officers. They're in the community dealing with these sorts of situations. While we would obviously make distinctions for teenagers, we wouldn't make the same distinctions for older persons who are quite clearly preying on younger people.
The Chair: Is there any other response?
Mr. Vincent Westwick: I could perhaps just briefly respond to the first part of your question. You spoke about the provision concerning the disarming of a police officer. I think part of the importance of the inclusion of this kind of section is its preventative role. It sends a very important message to the street, one that may in fact be more important than its prosecutorial potential, that the integrity of police officers and their personal safety have to be respected. This, in our view, is a way the system can send that kind of message out. Whether it results in significant penalties is to some extent a moot point because presumably, if someone is engaged in this kind of activity, they're likely committing other offences as well. Who knows how that will all come out in the wash in terms of a sentence, for example?
Mr. David Griffin: If I could just add something, Mr. Chairman, I think from our perspective the denunciation is certainly important, but so is the fact that this individual will have on their record the entry that they did in fact try to disarm a police officer. That is the type of evidence that, if they were to repeat that offence, wouldn't necessarily come out clearly if they simply had an assault on a police officer, an assault with intent to resist arrest, or an obstruction of police entry on their record. So it's a matter of entering that record on the person's record as well.
The Chair: Thank you very much.
Mr. Stephen Owen: Thank you, Mr. Chair. Thank you for your attendance before us today, gentlemen.
I'd like to make a couple of comments, one on private prosecutions, and I thought your presentation on that issue was quite interesting. The power to swear on reasonable and probable grounds that a crime has been committed is of course the same for a police officer as it is for any individual in society. But what you may be interested in knowing is that in British Columbia the prosecutorial discretion in most of these situations would rest with the provincial crown. In British Columbia there is a matter of crown procedures, where first of all there's a charge approval process. At that time that really evidentiary question of whether the higher standard of substantial likelihood of conviction can be met at trial is made by a crown approving officer.
That also applies to private prosecutions, but it's important to remember that individual members of the public will not be uniformly aware of charging standards. Therefore, to create some uniformity and fairness for people who might be accused according to lower standards, the crown takes over that role. They make the decision as to whether the situation meets the standard and as to whether to conduct a prosecution, which of course is an important feature in that individual members of the public aren't put to the expense and trouble of carrying out those prosecutions.
In your recommendations to the Attorney General of Ontario, you might suggest that he look at the charging policy in British Columbia, because that's quite long-standing now.
Mr. Vincent Westwick: We feel very strongly about this issue. I can't tell you that there's an epidemic of private prosecutions out there, but the problem is that when those private prosecutions take place, they have a disastrous effect on the subjects of them, and in our world they're police officers.
There are three situations ongoing in Ottawa right now where private prosecutions are underway or there is an attempt to commence them against police officers. In our view, they are all without merit. They are without merit according to the word of the crown, but the crown's officials are reluctant to interfere with the individual's right to have his or her day in court. While we're prepared to respect that, it seems to us grossly unfair that a police officer and, I might point out quickly, other public officials should be subject to this kind of harassment—and that's what it is; it's harassment.
Also, I can tell you that huge amounts of public funds are spent defending these situations, which invariably are without merit. Invariably they are without merit. In fact, we debated before we came here this afternoon as to whether we should recommend that the statute ought to call upon a judge to take notice of whether or not there are other systems available to address what underlies the person's wanting to proceed with a private prosecution. For example, for landlord-tenant matters, unhappiness with members of Parliament and their staff, and unhappiness with police officers, there are complaints and appeals processes that are available for the redress of those. We didn't include it in our submissions, but I've slipped it in inside the answer to the question.
Mr. Stephen Owen: Thank you.
I have a further comment on that. There may be a balance here to be struck. While there may have been frivolous or vexatious prosecutions launched, private prosecutions have played an immensely important role in bringing to the attention of the public certain environmental failures and infractions over the last 30 years of history. They have played an important role.
I think the point you make is that the attorneys general have to take the responsibility, perhaps eventually a political responsibility, to stand up and explain why they're staying a private prosecution. Public policy will be judged on their failure or their decision to do something. I think that's the thing; we have to encourage them to stand up and take responsibility.
Mr. Vincent Westwick: Mr. Chair, I endorse the words of the questioner. He phrased it better than I did.
The Chair: Well done, Mr. Owen. Perhaps you should be a witness.
Mr. Stephen Owen: Today we have a few questions.
The Chair: Mr. Cadman.
Mr. Chuck Cadman: Thank you, Mr. Chair.
Concerning the video remands, speaking as an individual who's experienced it from the gallery and having taken half a day or a full day off work to go and sit for an hour in a courtroom to get a two-minute remand, I could certainly see the advantage to this.
The only thing I would be concerned about is the possibility of the accused pulling an end run, some kind of a surprise over the TV screen. I'm thinking of one particular case in B.C.—and Mr. Owen may be familiar with it—where we had an accused who was accused of first degree murder. He walked into what should have been essentially a 30-second remand and pled guilty to first degree murder. Of course, the family of the victim was taken totally by surprise. Everyone was.
So I would be a little bit concerned about that being able to occur. I don't have any problem with the whole concept of video remand, but would you want something in place to prevent that? In other words, it would be restricted to serve notice that this is only going to be a remand and nothing else, no surprises.
Mr. David Griffin: I concur.
The Chair: You have a couple of minutes left.
Mr. Brian Fitzpatrick: On private prosecutions, just to be clear on that point, my understanding from listening to Michael is that if the court approved the private prosecution, or enough grounds were there to proceed with something, it would be turned over to the regular prosecution system. That seems to me to make a lot of sense. Why have a private prosecution system? The criminal justice system isn't concerned about individual things. It's concerned about harm to society, etc. It just seems to me to be a very logical and rational type of argument.
Mr. Vincent Westwick: And we're grateful for your support. To accomplish this the bill would need an amendment, but it would be a minor amendment, not a major one.
Mr. Brian Fitzpatrick: One other thing. The registry system for sexual offenders has been a topic in Ottawa. There seems to be a consensus that this would be a good thing, but there are people in certain quarters who say we already have that; this sexual registry system would just complicate the system; the criminal registration system we have already provides that service to the police; and we really don't need this special sexual registration system.
I wonder if you have any reaction to that type of logic or argument.
Mr. David Griffin: From our perspective, certainly the concept of the sex offender registry we have advanced is not what is in place at the present time. We believe there should be a system where, for all proscribed offences, the offender would themselves be required to register with police upon arrival in a community and in the event of a change of address. We don't accept that this should be left to a determination by Correctional Service of Canada officials over whether or not the person presents significant concern to warrant notification of the police. We think we should do it for all people who have demonstrated certain types of sexual deviation.
We're not suggesting that this information be released into the community, but as indicated in our brief and as indicated in our resolutions, we have seen cases where violent crimes, such as the death of 11-year-old Christopher Stephenson in Brampton, Ontario, could possibly have been prevented—for instance, had the police known that this sexual predator had moved into their community before that young boy was abducted. So we certainly believe there's room for improvement beyond what the Solicitor General has indicated to date.
I'd also like to comment on the private prosecutions. When we were reviewing the materials, I know we had some concerns. We weren't necessarily sure what the best form was to address those with, but I'd have to say I would support the position; I'm glad the chiefs of police have brought this forward. This is a concern. I don't think anybody here is suggesting that a decision should be made by anybody other than a judge to disallow that case from going forward, but rather, once a decision is made that the case has sufficient merit, that it should be a public prosecution and no longer left to the carriage of the individual. So we would certainly support that.
I have to say, the difficulty I see with the bill as it's set out right now is that we're going to have the opposite effect of what may be intended, because we're now going to have the potential for the crown to be there as an intervener. It's going to increase the cost of these proceedings. It's going to make the hearings longer, and we're going to run into the potential for two prosecutors prosecuting the same allegations. That's not an advantageous situation for the crown.
That said, I would defer to those who have that experience to speak to this.
The Chair: Thank you very much.
Mr. Michel Bellehumeur: I have no questions.
The Chair: That being the case, I would like to thank the witnesses for their appearance here today, and I thank members of the committee. I would excuse the witnesses, and I would ask members of the committee to stay just for a couple of minutes so we can speak a little bit about what we're going to be doing tomorrow.
Thank you very much. It's always a pleasure.
Mr. David Griffin: Thank you.
The Chair: Now, to the remaining members of the committee, it is our intention to meet tomorrow morning at nine o'clock. We will be hearing from witnesses from the Victims of Violence Canadian Centre for Missing Children, the Canadian Resource Centre for Victims of Crime, the Canadian Cable Television Association, and the Canadian Association of Internet Providers. That will be roughly from nine until eleven o'clock. At eleven o'clock I would like to go to clause-by-clause, so people who have whatever amendments they would like to put, please put them to the clerk.
Mr. Michel Bellehumeur: I would like to know the position of the committee members and what they think of the section in this bill that deals with wrongful convictions.
I understand that we have a schedule to follow and that we could carry on with the clause-by-clause study of the bill tomorrow, but I think that the witnesses have raised some important issues.
I am not going to get into a fight over this, but perhaps we could work out something that would better meet the objective of the minister and also respond to the concerns of persons like the lady who lived through so many mishaps and who knows exactly what she is talking about, as well as the other lawyer who raised the question of an independent bureau.
Yesterday, I put this question to the minister and she seemed to say that she had looked into it and that it did not apply in Canada, because of our particular methods. However, these two witnesses were of a different opinion.
I understand that we want to go ahead quickly, and that we can even start the clause-by-clause study tomorrow, that we must refer this bill back to the House of Commons, etc. However, the committee members perhaps feel, generally, that we should slow down a bit, to closely study sections 690 and the following that are referred to in sections 72 and 73 of the bill. If most committee members share the same feeling, could the government consider amending these sections, given the great complexity of the file?
I will not table any amendments because I could never produce adequate ones in one hour. I do not have the time to draft such amendments and to carry out the proper verifications.
The department has already analyzed this option. So I ask the committee members whether they believe that this section poses a problem or if, in their opinion, there is no problem and we should pass it as is. I do not find the comments and concerns of the witnesses at all excessive.
Mr. Paul DeVillers (Simcoe-North, Lib.): I think that we should go ahead and study the amendments as early as tomorrow, even if today's witnesses do not think that it is worthwhile and would like to see an entirely different system. I think that the amendments to section 690 that are before us today are an improvement. I think it is worthwhile to go ahead.
We are awaiting the outcome of the Truscott case. We will have to obtain additional information before determining if we need to change the system. We cannot do that in two or three weeks. The committee can examine the matter later on, but for the time being, we have something before us. We should go ahead with it.
The Chair: I'll come back to you.
Mr. Brian Fitzpatrick: I'm new to the committee, but I would like to think that one of the reasons we hear the witnesses is that they're going to give reasons why some aspects of the bill or the legislation we're dealing with is deficient and that, with some amendments and so on, we could improve the bill. It seems to me that if we have the witnesses come through and we then just jump right into clause-by-clause, it really makes it hard to come up with amendments that would flow from the information coming from the witnesses. I could think of maybe two or three amendments that it might be worthwhile to proceed with just based on what I've heard today, but I'm certainly not going to be in a position to get them drafted and here by clause-by-clause stage. That's just a point. I'm not so sure this process here is ideal.
The Chair: First of all, I think we're driven by the fact that we were going to pass this in an afternoon in the spring. To some extent, I think there was the impression that there was a desire to move quite quickly, because I think we all recall the debates of the spring.
We have already received a couple of amendments from the opposition side that we will be entertaining tomorrow, and we would entertain others. It is not my desire to take away from anyone their genuine right to propose amendments, and I accept the fact that we're doing this very quickly. I also know, however, that we want to allow the government the opportunity to send to us other legislation, if the government would choose to do so, with regard to some of the very serious and pressing issues facing the country. I think we all know the climate within which we're working, and we would like to make ourselves available to that.
Mr. Michel Bellehumeur: I just want to make two comments.
If I understand correctly, there is a motion before the House and I think that everyone here is morally committed to moving quickly. My objective is not to slow down the process, but I do not fully agree with your interpretation of the evidence. That section of the Criminal Code is not my area of expertise, but from what I can see, with section 690, we will codifying in the Criminal Code more or less what we already do at present. That will not improve the fate of people who are victims of miscarriages of justice. We are simply codifying a practice that is more or less followed at present. Moreover, the witnesses are proposing something very new, with an independent court emphasizing the ultimate objective, which is the appearance of justice, remedies, etc.
Mr. Paul DeVillers: There are some rather important changes.
Mr. Michel Bellehumeur: Obviously, I see that it is not the case. If the committee had wanted to give directions to the minister on a specific point like that, it could have taken the time to amend the section along the lines of what we have heard today. I think we could have done that, but I am under the impression that on the government's side, you do not want to change anything. We won't fight it. To my mind, not all battles are worth being waged, and this is perhaps one that is not worth it.
Mr. Paul DeVillers: The witnesses are suggesting a new court, in other words a new system. That is not something we can put in place in two or three weeks. That will take a long time.
Mr. Michel Bellehumeur: Based on my understanding of the witness, who spoke to officials who went to Great Britain, a lot of headway has already been made. The officials seem very interested. The hitch is at the political level.
Mr. Paul DeVillers: That is not what the minister told us yesterday.
Mr. Michel Bellehumeur: I know, but the minister says a lot of things, and I do not always necessarily share her views.
Mr. Paul DeVillers: That is quite obvious.
Mr. Michel Bellehumeur: I was going on a fishing expedition today and I can see that, obviously—
Mr. Paul DeVillers: There are no fish.
Mr. Michel Bellehumeur: If there is a fish, it is the system. My goal was simply to improve the system. Rest assured that I am not going to play politics on that. These people are specialists, people who work hard. There will not be many other witnesses who are going to make such specialized presentations. I have been sitting on the Justice Committee since 1993, and I find these witnesses very credible. They have given us examples, etc., and I find their position very interesting. I think it is very important for us to fully understand their message and take our time on this section. That will not prevent us from adopting the rest, but as far as that section goes, another three months will not make a big difference.
Mr. Paul DeVillers: Even if we agree to it, it will not prevent us from continuing our studies.
The Chair: Mr. McKay.
Mr. John McKay: I find myself in the bizarre position of agreeing with Mr. Bellehumeur.
Mr. Michel Bellehumeur: At the rate they are going, we will all have retired—
The Chair: Mr. Bellehumeur, you had better listen to this.
Mr. John McKay: The presentation by Mr. Lockyer and Ms. Milgaard was a quite cogent critique of the section. Clearly this is a direction that this committee needs to explore more fully.
We had the minister's presentation yesterday, though this did not form the substantial part of her presentation by any means; it was only a part of three, four, five, six, or seven other things. Yet their evidence was very compelling. I would much rather get it right than simply proceed for the sake of proceeding.
If there is no other argument that appeals, the politics of this would be very difficult for all of us. If we don't get it right, giving some serious exploration to the model presented here this afternoon, we will open ourselves to quite significant criticism from a variety of sources. And they will be right, while we as a committee may well be wrong.
I am very disturbed that we just rush through clause-by-clause rather than having more argument and testimony as to what could be done as an alternative.
The Chair: Mr. Owen.
Mr. Stephen Owen: I take our colleague's comments very seriously. We have to make sure that when these amendments go through, in this form or whatever form, they are a positive improvement on the current situation, which we all recognize is deficient.
I found parts of the information we were given today very interesting; I found parts of it overstated, frankly, in the sense of suggesting bias in a system in a way that is unmerited for the structure of the system, and in particular the lack of acceptance of any improvement in the system. I am not sure how much time they have had or in what detail they have considered the amendments. The horror in the poor operation of the system all of us have observed over the years has been the inordinate delay, the inability to come to a decision in any reasonable period of time to send a case back for review or to decide that there is some substantial likelihood of a miscarriage of justice.
We need to look at these amendments to see if they take us forward in a positive direction. Certainly something like an expert, discrete, unit is immensely important. The minister has to report every year to Parliament on the disposition of the cases coming before it. This has been extended to summary conviction offences. The subpoena power of the investigative unit is immensely important. As I heard, this is very clearly an inadequacy in the current system.
This is coupled with the inappropriateness of the government's going toward a system modelled on the one in the U.K. Until the Milgaard inquiry is completed and we have the benefit of the recommendations flowing out of that very specific inquiry, we should not be moving in this direction. Without the benefit of having the results of this inquiry, which could be two years away, we have to be careful about this.
I would suggest, Mr. Chair and colleagues, that we invite an official from the Department of Justice for tomorrow to give evidence specifically on this case, because I agree with Mr. Bellehumeur and Mr. McKay that we had only a very brief description of it from the minister yesterday. This official would be able to receive the questions we have on how this is going to be an improvement, questions that have been informed specifically by what we've heard today. If we are convinced it's an improvement, then we should go ahead with it, knowing always that when we've heard the results of the Milgaard inquiry, and the Sophonow inquiry, which will come before it, we can always improve the system in the future. We can always make recommendations that this somewhat independent unit become properly independent.
But we should not miss the opportunity to improve the current system, which is clearly inadequate, simply because the perfect eventually might be the enemy of the good now. If we could get that evidence tomorrow and do that in an efficient way so we could be better informed, I'd be much happier, Mr. Chair.
The Chair: Okay. We've heard this suggestion.
John's intervention, if I interpreted it correctly, was something more elaborate.
Mr. John McKay: Let me respond to what I would characterize as Stephen's half-pregnant argument.
I agree with you that they did go somewhat over the top on the bias arguments. I can see how this bill does address the systemic bias argument, but it is still part of the overall minister's responsibility. I've never met any crown attorneys yet who want to find out that they or their colleagues have made any mistake whatsoever. So there's an apprehension of bias that still exists.
As for the delays, I don't think the minister addressed the issue. It's my recollection that she made no comment on the delays. Our witnesses are absolutely right. They've been run around for years and years and years. Mrs. Milgaard was devastating on this point.
As for the U.K. system, I know as much about it as was presented to me today. I suspect we are all in virtually the same category. On the face of it, it does provide an attractive alternative to what is an apprehension of bias, if not a real or systemic bias. At this point, I would be in a real quandary as to whether I could vote for this section of the bill as it stands. That's where I would stand.
The Chair: Mr. DeVillers, and then Mr. Grose.
Mr. Paul DeVillers: I still am confused over why we're passing the bill. Yes, let's hear some more evidence, but clearly it is an improvement. There are a number of significant improvements to the current system in section 690. It may not be perfection, but here we have a bill that's ready to go so we can make those improvements.
Making these improvements now does not mutually exclude the possibility of our making further improvements later, after we examine the results of the Milgaard inquiry. It doesn't mean we can't pursue this issue and change the system. Going to the British type of tribunal will take a great deal of time. We can make immediate improvements as a first step now by going with the bill we have. It's ready to go.
The Chair: Mr. Grose.
Mr. Ivan Grose (Oshawa, Lib.): Well, I didn't want to throw a spoke in the wheel, if I was the only one disturbed by the presentation, but as usual I look at it from a different point of view.
There's absolutely no compensation possible for someone who is wrongfully convicted and has spent one day in prison, let alone 23 years. For this reason we ought to take a look at this thing, maybe not in this bill, and maybe not right away. But let's not lose our focus on it, because the system in Britain, which we may or may not be able to adapt to our own system, sounds a lot better than waiting 23 years, as with the Milgaard case.
And that was simply a case of delay after delay after delay. No one would do anything. I remember that poor lady going back and forth to Ottawa. I worked on a committee that was supposed to help her, but it eventually died because it lost interest in the thing.
So we can't lose focus on this possibility. We may not be able to do it this week, but let's not lose our focus on it in the long run. I agree with you that this kind of change can't be done by the end of this month. And I'm not a lawyer. It seems difficult to me, so it must be awfully difficult to you fellows.
The Chair: Mr. Fitzpatrick.
Mr. Brian Fitzpatrick: I don't want to raise things that the bill didn't envision, but I don't know how many times people have used the cliché that since September 11th everything has changed. In a few years from now we may be talking about some real injustices done in the name of dealing with anti-terrorism, and we're going to have people who are going to be wrongly convicted and the system will sort it out.
I remind members of the FLQ crisis. There were many people detained, hauled in, and so on, and after the fact it was clear that these were innocent people who were simply caught up because of the hype of the times. I can see the need perhaps being greater because of what's happened and what we've heard about things that have happened in the past.
It's just an observation, but I think this is going to be a big dilemma, the fight against terrorism and the protection of individual rights and freedoms. These things are going to be in conflict.
The Chair: My view is that we ensure that, given the time referred to, we deliberate and make improvements. In this exercise and every time we do legislation, if we brought in more and more people, they would bring up more and more things. I don't mean to diminish at all our responsibility to amend the legislation; however, again, I can't forget the spring and the calls on the government to do this in an afternoon because it wasn't contentious. And some of us would have liked to have done it this way.
Now September 11th has brought an urgency to matters we assume will be before the House. As a result, it was understood that we were going to try to dispense with this as quickly as we could. That's the reason it was split, probably so we would clear the decks, give instruction to staff so we could go into the week that we're back with the second half of this legislation, the original C-15, anticipating the possibility that we might see other legislation at that time. That is why we were proceeding.
In the event that there was a momentum towards some sort of galvanized position that would cause a change, a momentum created over the course of the hearings we've undertaken and with what we anticipate tomorrow, we could push it forward and make the change. I'm not sure I discern that momentum at this point.
Mr. Paul DeVillers: Any significant change will pretty well have to wait until we hear the result of the Milgaard inquiry. To put in place the type of tribunal system they have in Britain would take a lot of time and study as well. We have on the table some immediate improvements—and if people aren't convinced of that, I am; it's certainly better than the existing system.
The Chair: Mr. Cadman.
Mr. Chuck Cadman: Thank you, Mr. Chair.
I would concur. I've heard some things this afternoon that made me stop and think, things I have some serious concerns about, but I'm also concerned with the length of time we would have to take to actually do it justice, especially if we're talking about a major change.
Like Ivan, I'm not a lawyer either, and if you guys are having problems with the U.K. system because you don't understand it, I certainly have a problem with it. It's something we can't let slide. We can't forget about it and we have to take a look at it, but I'm not so sure that, given the instructions that have come from the House, we can actually do it justice by trying to do it all here. But we certainly have to come back to it.
The Chair: Mr. Bellehumeur.
Mr. Michel Bellehumeur: It is funny, but I am convinced that if we were to hear from the officials who went there and who undoubtedly took notes, and whom I know are very competent and capable of making a quick presentation, it would not take an eternity to draft amendments to put this in place.
Mr. Paul DeVillers: It would require setting up a new tribunal.
Mr. Michel Bellehumeur: Yes, it would require setting up a new... I have never been Minister of Justice, but I am convinced that the minister has been given some scenarios. She did not just get it verbally, right in the kisser, pardon my French. The minister was given some scenarios, some general guidelines, and so on. Once the broad guidelines were presented, she made a decision, for all kinds of reasons as she said yesterday, but the most important one was probably, as was she said, to keep power.
Of course, that is legitimate. If I were Minister of Justice, I would perhaps do that too. But looking at it from the outside... I would like someone to come and give us the details. I have examined the matter, but not in detail and I did not go to Great Britain like some officials. I would like someone to come and give us the details on it and tell us if it is feasible or not.
Once again, I do not want to get involved in a never-ending debate. I have given my approval. I am the one who instigated that. I am the one who suggested splitting the bill in two and obtaining all-party consent. I want it to be adopted quickly. Yesterday, when the minister appeared, I was prepared to go along with what she told us. It seemed to make sense. But today, the lawyer and the woman who appeared before us have told us something different. Since we are already in the thick of it, why not try to have something that is better than what is being presented in Bill C-15? It is as simple as that. If it takes six months to put in place, we could perhaps decide to wait six months. If we are told it would take two years, we may decide to vote in favour of the provisions in the bill.
Mr. Paul DeVillers: Do we have to wait for the outcome of the Milgaard inquiry?
Mr. Michel Bellehumeur: Why not wait? We are amending the bill. We could amend it even more.
Mr. Paul DeVillers: That will take two years.
The Chair: Could I bring to your attention the fact that it's almost impossible for the people who are trying to organize this when we get into little conversations.
I want to recognize Mr. McKay, and then Mr. Owen.
Mr. John McKay: On Paul's argument that this is sort of like reinventing the wheel, I noticed in a footnote on page 25 that there was a royal commission on the Donald Marshall prosecution. The footnote says:
Another provincial inquiry into a case of wrongful
conviction recommended the creation of such a body
should at least be studied by the federal government.
If for no other reason, I think the committee owes it to itself that we should hear a little bit more reasoning as to why this was considered to be an unacceptable model. Mr. Lockyer made specific reference to a civil servant he either met in the U.K. or was at a joint meeting with, and she was quite enthusiastic about the “U.K. model”. Obviously, her enthusiasm did not translate into legislation.
Maybe we should just refocus our minds here a little, and our witnesses. As I see it, five out of the six pieces in Bill C-15A are not really contentious. The police came in and said they think it's wonderful, basically. They had their other shopping list, but they were very supportive of the bill other than that.
The Chair: It appears to me that we have an amendment, and it's the amendment that was proposed probably by Mr. Lockyer: that we in fact set aside that section until after the.... That isn't a complicated amendment. Consequently, my sense is that we put the amendment tomorrow during clause-by-clause, and if the amendment passes, it passes. If the amendment is defeated, it's defeated. To me, that seems to be what it is we're discussing here: whether or not we should take this on now, in the face of it, or whether or not we should wait until afterward.
On one side of the debate, we have the argument that it's better to put this now because it's an improvement over what exists, and that we can then come back to it when the inquiry is done.
Really, I think that is the essence of what this discussion is about, and for us to set this process back for a few days, for a week, or for two weeks, in order to deal with something of which we really know the nub of the issue right now.... Either way, if I may suggest it, the opportunity exists to revisit the issue at the end of the inquiry, appropriately and with all that information. I think that's essentially the nub of this. Tomorrow, in the event the committee believes it wants to strike that section in favour of...if someone wants to put such an amendment because they wanted to strike that section in favour of waiting until later....
However, to be as fair to both sides of this as I can, I think there's an argument on the other side that what is represented in this legislation is an improvement over the status quo, and we would not have it available to us until such time as we would reconsider this. That seems to me to be a fair debate as well.
Mr. Brian Fitzpatrick: Mr. Chair, I didn't hear a really strong appeal from either of these two people who were saying this was really any real improvement over the status quo. I think the best he could say was that the subpoena powers were the only thing he could really find over it.
Under this existing section 690, I would think the Minister of Justice surely has enough discretion to do a lot of the stuff that this thing is suggesting could be done anyway. So I'm not exactly sure it's a big breakthrough. It's a very minor improvement, if I understood the witnesses.
The Chair: If I may, Mr. MacKay has returned and has been part of discussions that we have had in the context of the work plan that would have caused us to do clause-by-clause tomorrow.
Mr. Bellehumeur went fishing—I think that's the expression he used, so I'll use it—to see if there was interest in doing something. He was looking for some sort of consensus that would allow the committee to explore the testimony that we heard around section 690.
I was listening to hear whether or not his fishing expedition would result in a consensus—I don't see it—that would be sufficiently real as to push this off. At the end of the day, I think the debate is around whether or not to make the amendments that are proposed as an improvement or not—that will be the judgment of the members of the committee when they vote—or to proceed to hear other witnesses.
But I think the crux of the argument that was put is that we should wait until after the Milgaard inquiry to know what to do.
Mr. Stephen Owen: Mr. Chair, in fairness to the concerns that have been raised by a number of people, I think we should hear from the official. I'm advised Mary McFadyen is available tomorrow morning to get some specific advice on the improvements—
Mr. Paul DeVillers: And the timeframe.
Mr. Stephen Owen: —and the timeframe, yes—of this over the status quo. Then, as other colleagues have said, if we can reach a more perfect solution later on after the Milgaard inquiry is over, we can always improve it. But I would hate to see us miss the opportunity to improve the current situation—which I think we all agree is insufficient—when it's right before us.
In fairness, I think we should hear the detailed advice of the Department of Justice official on why this is better than what we have now.
The Chair: I'm advised that's possible, so we'll call. Mr. Owen can assist us in arranging that for tomorrow morning.
Mr. Peter MacKay: Certainly, in not being privy to everything that was said here, I would think that, at a minimum, it's a very reasonable suggestion that we look at what actual improvements might flow.
Just by pure coincidence, I ran into the minister on the way over here—she's on her way to another committee—and I told her there was some discussion.
Like Mr. Bellehumeur and others, I was really struck and unsettled by the suggestion that this change would not result in any greater access. Certainly the accessibility to this particular provision and process is what is critical.
I was also taken by the remark—and I think he has reason for saying this—that if we pass these amendments in the face of a very extensive report that bears directly on this particular section, it is going to be arguably difficult to come back six months from now and say we have this report now, which is the basis of amendments, and we should be revisiting this section. I strongly suspect the Department of Justice will say, “No, we just did this. We just went through this whole process. Sorry, there are more pressing concerns; we can't deal with it now.” We would be missing a huge opportunity to have the knowledge of Mr. Justice Cory and others involved in that review of the Milgaard case.
For what it's worth, I agree with Mr. Owen's submission that we should certainly hear from the officials who have drafted this provision, this change, and find out what the practical implications are going to be.
I would still reserve the right to argue tomorrow that we might exempt this particular section—I know the minister won't be pleased to hear that—take it out and hold it in abeyance. We could bring it back as stand-alone legislation in very short order, once we've had the benefit of the knowledge in the Milgaard report.
The Chair: We'll take up Mr. Owen on his invitation. We had some level of concurrence on the possibility of going to clause-by-clause tomorrow. The only thing I'm struggling with right now is whether the committee will have the time, on this very narrow question that Peter and others have identified as narrow, to adequately deal with the amendment you want to propose.
I assume, Peter, it's not included in the amendments you've already designed, although an amendment to exclude that section is not complicated.
Mr. Peter MacKay: It's a pretty simple amendment.
The Chair: We'll hear from the officials from Justice tomorrow. We'll go to clause-by-clause after we've heard the witnesses tomorrow. If people are not convinced, then the opportunity will exist to introduce the amendment to eliminate that, and we'll have our vote. If people are of that view, then so be it. If they're not, so be it. We'll decide tomorrow. It's not going to change if we give it another week.
Mr. Peter MacKay: Just so we're clear, you would be willing to accept an amendment as late as tomorrow from a committee member suggesting that we carve that section out.
The Chair: I have no choice, Peter. I'd like to be magnanimous, but the fact is I have no choice.
So we all understand each other. I want to say once again what a privilege it is to work with such accommodating people. It really does make this place look a lot better.
On other business, just before we leave, while you're in such a great frame of mind, I'm going to ask the staff to begin the process of putting witnesses together for the second half of Bill C-15B for the following week. I want to go to extended hours, and I want to know your preference now, in terms of the three opportunities available to us. They are Tuesday night, Wednesday night, and Thursday afternoon. Which of those three is the least attractive? Is it Thursday afternoon? I think it is.
Mr. Peter MacKay: This is being selfish, but Bill Blaikie is in the same position. Tuesday afternoons or Tuesday nights, from right after Question Period until 7 p.m. or 7:30 p.m., we're at House leaders...followed by the Board of Internal Economy. If you're saying to meet from 7 p.m. to 9 p.m., fine. I realize you can't accommodate everybody.
The Chair: Am I right in my assumption that there's an aversion to Thursday after 1 p.m.?
A voice: Yes.
The Chair: Okay.
Mr. Peter MacKay: We're talking about doing this, though, for a couple of weeks, right, until we're finished Bill C-15B?
The Chair: And whatever else we may get.
Mr. Peter MacKay: We're not talking about setting a precedent for the rest of the year.
The Chair: No, this is just for three weeks.
Mr. Peter MacKay: Right.
The Chair: Okay, I'll take my directions. It's going to be Wednesday night. We will be meeting Tuesday afternoons; I don't think we can avoid that.
We'll try to meet with you, Peter, in terms of witnesses that would make it easier for you. It's an unfortunate situation that we have two House leaders on our committee. We'll do our best to accommodate you. If it becomes impossible, we'll revisit it.
At this moment we're doing normal hours plus Wednesday night. Is that agreed? Thank you.
The meeting is adjourned.