Justice committee  What I'll direct you to is that this seems to be contemplated in the legislation. If you look at one of the factors that's relevant to acceptance and the ultimate decision, you see under proposed paragraph 696.6(5)(c) that the “application is not intended to serve as a further appeal”.

Justice committee  With respect to law reform, we do support the idea that the commission should refer and participate in law reform projects. They are uniquely positioned to see the wide spectrum of wrongful conviction issues that come before them, and they're uniquely positioned to study and provide data and input with respect to those issues.

Justice committee  I agree, if the viewpoint is looking at that requirement in a way that is restrictive, which I think is one possible interpretation of that. The other way of looking at it—and this is somewhat hinted at in the bill—is the idea that you may have a case that's on the fence, but the interests of justice pushes it over the fence in consideration of things like the distinct challenges of the applicant, the personal circumstances of the applicant.

Justice committee  That's the part I'm struggling with, namely this idea that it could ever be contrary to the interests of justice to review a conviction that there was reasonable grounds to conclude there may be a miscarriage of justice. That's why I think, when we look at statutes and statutory interpretation, it's within the scheme of the whole bill.

Justice committee  I'll break down your question into two. I agree with you. It should be “must investigate”, not “may”. I'm not sure why there is a discretionary feature to this. The whole point of the standard is to reach a standard such that a power is triggered. With respect to the disjunctive routes, I think it makes sense that there be a disjunctive route at this stage of the process because there can be cases where it's in the interests of justice to review it, where on the face of it, it may not appear to be a miscarriage of justice.

Justice committee  We are very much of the view that this, as a mandatory requirement, should be removed. The reason for that is that the appellate process is very cumbersome, and it requires a great deal of sophistication and expertise. To give you a sense of how it works, when a person appeals they have to file a notice of appeal, they have to order transcripts for the hearing that are relevant, and then they have to file a factum.

Justice committee  I'm a proud Canadian lawyer. I'm very proud of our justice system. However, the vigilance required to prevent wrongful conviction should never subside. It's institutional resistance to the acceptance of the idea of wrongful conviction that breeds wrongful convictions. For many years, we thought microscopy was a very valid science that could give us those same kinds of assurances.

Justice committee  I hope that's the case. It's impossible to tell, because there's also going to be an increase in wrongful convictions with increased use of those technologies, in the sense that we will be able to expose them more. In addition, the “false guilty plea” phenomenon is one we are very much new to.

Justice committee  I think that's a valid concern—making sure the floodgates don't open and overwhelm the system, at the risk of obscuring those who truly need it. In my experience working in the prison system, most individuals who have been there for a long time have come to terms with that reality.

Justice committee  It's impossible to tell because of the outreach challenge that we have at this stage. This is a new system. How well it will be rolled out in prisons to people who will be aware of it and how they apply will be, I think, the driving force to how difficult of a problem it will be to weed out the poor applications.

Justice committee  Our answer to that question already lies in the legislation. Subclause 696.4(4) shows there's an exception built in for those who haven't appealed to the Supreme Court of Canada. All we're suggesting is that you just expand this to include those who haven't appealed to a court of appeal.

Justice committee  In my opinion, what's far more important is the designation in proposed section 696.74 of their being, potentially, part-time commissioners. I'm much more concerned about the fact that they are part-time commissioners than I am about the number. I would like to see full-time commissioners.

Justice committee  The current status quo is not reasonable. It's the main impetus behind the push for this legislation. In my view, a legislative timeline is something that could be considered. I think the difficulty with that is that no case fits any sort of particular criteria. Some may take longer than others.

Justice committee  I'd be happy to address that. Our proposal with respect to the unsafe verdict is to introduce a new ground of appeal—not to lower any thresholds. This ground of appeal exists in the United Kingdom already. It fills a gap in our current appellate process. There is no ground of appeal that one can advance to determine whether a conviction is unsafe, except apart from legal errors that might exist.

Justice committee  I don't want to “wordsmith” with you, Member, but I see it more as being more flexible. We must recognize that for 99.9% of cases, the court of appeal is the forum of last resort. That's the forum that should be equipped with the most tools to rectify wrongful convictions. We say a more flexible approach with an unsafe verdict ground affords those tools.