JUST Committee Meeting

     I call the meeting to order.

     I'd like to issue two reminders.

    Before I do that, let me read the standard procedure.

    Welcome to meeting number 84 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation.

    Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely by using the Zoom application.

    I can confirm that all tests were performed for witnesses joining us online.

    I would like to make a few comments for the benefit of the witnesses and members who are online.

    Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike. Please mute yourself when you are not speaking.

     I do want to let you know that I have two cards here. This one says “30 seconds” and this one says “time is up”. I will be as discreet as possible, but in order to follow the timing requirements, I will interrupt witnesses or members if I need to. All comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding in this regard.

    Last, please let the operators open and close your microphones. That's a new procedure. I think they must have had some issues for other committees, although certainly not this one. With many microphones on, the resulting return of sound could hurt our interpreters.

    The tests have been successfully performed.

    Before we begin the first hour, I'd like to discuss the following points.

    I have just two housekeeping items.

    First, I'm requesting that we adopt a motion that I will be asking somebody to move. The motion is on the deadline on amendments for Bill C-321, as follows:

    Can I please have someone move that motion?

    The date is November 28th and the meeting will be held at noon, because the clause‑by‑clause study is November 30. We've already confirmed the dates and they're in the calendar.

    I've also been asked to point out a couple of things on that.

    I would like to insist on reminding members that all amendments and subamendments on Bill C-321 must be submitted in writing and sent to the committee clerk. Please do not send drafting instructions to the legislative clerks, as they are not the ones who drafts amendments. They must be sent to the legislative counsel.

    I'm now looking for somebody to move what I'm asking to be moved.

    Madame Brière, thank you.

    Does anyone have any objection to that?

    Okay. It is so moved.

    (Motion agreed to)

    The Chair: The next item is one that you would have received by email earlier today from Mr. Clerk. There are two budgetary items, one on Bill C-321 and one on Bill C-40.

    I am requesting that someone move that the proposed budget in the amount of $16,500 for the study of Bill C-321 and the proposed budget in the amount of $19,700 for the study of Bill C-40 be adopted.

     Thank you so much, Mr. Moore.

    Are there any objections?

    (Motion agreed to)

    The Chair: Thank you.

    We will now commence with our first study on Bill C-321.

    Today, we are welcoming—

    I'm sorry. It's Bill C-40.

    So today we are welcoming Mr. Simon Roy, Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, appearing as an individual.

    Welcome, Mr. Roy.

    We also have, by teleconference, two witnesses: Mr. John Curtis, counsel, United Kingdom Criminal Cases Review Commission, and Jessyca Greenwood, executive member, Criminal Lawyers' Association.

    Members, we will commence now with the first round of witnesses. You will each have six minutes for questions, please.

    Before we do that, each of our witnesses has five minutes for opening remarks.

    Mr. Roy, you have the floor.

    First of all, thank you for inviting me to appear before the committee. It's a welcome opportunity.

    Overall, I think this bill is a fine initiative, which draws inspiration from other countries. I had the opportunity to listen to the first two meetings of this study. So there are some things I won't revisit, but I will call your attention to three areas that bear scrutiny.

    The first concerns trial by jury. In my opinion, trial by jury is one cause of miscarriage of justice. Several legal scholars, including Mr. Kent Roach, share this view. Indeed, in the case of racialized people, especially indigenous people, it is difficult to find a representative jury.

    Moreover, these are very often emotionally charged cases. So when a murder is committed in a small community, it's harder to get a jury trial. It's also quite difficult to appeal a verdict, since the jury isn't required to present its reasons. Why did the jury decide this or that? We don't know. The test for appeal is the unreasonable verdict test. However, there are no written reasons for assessing the reasonableness of the verdict. As a result, there is a potential for miscarriages of justice.

    What can we do to address this? I propose amending section 649 of the Criminal Code. According to this section, a jury cannot disclose what transpired during deliberations, except in the case of an investigation for obstruction of justice, a case provided for in subsection 139(2). Bill C‑40 could allow the new Miscarriage of Justice Review Commission to question jury members about their deliberations if one of the reasons given for the miscarriage of justice was a problem identified in the jury's deliberations.

    The second area for scrutiny concerns the investigative powers of the proposed commission. According to your bill, the commission has the powers of the Inquiries Act. It therefore has no power to visit premises. Although this may rarely be applicable, it could prove useful to grant this power to the commission. However, it also has the power to compel witnesses to testify, which may include the applicant, i.e., the convicted person. The person filing the application could therefore be compelled to testify before the commission if it so required. They would not have the right to remain silent in this context.

    I'm not saying this is a good or bad thing. I'm just pointing out that it's a possibility right now, under the current wording of the bill. Obviously, the applicant's testimony could not necessarily be used against them in a subsequent trial, because there are constitutional protections. However, the person could be compelled to testify, as could co‑defendants, for example. In a trial, co‑defendants have the right to silence, whereas before the commission you are proposing, a co‑defendant could be compelled to testify about what happened.

    The final area for scrutiny concerns questionable guilty pleas or defence strategies. There was the case of former judge Jacques Delisle, of which you are no doubt aware, and the Sarson case, a decision handed down by the Supreme Court in 1996. In both cases, the defence made strategic decisions. Mr. Sarson decided not to challenge the constitutionality of the law; Mr. Delisle decided not to testify. Both later came back and said they had been unfairly treated. In Mr. Sarson's case, the Supreme Court said there was res judicata and nothing more could be done. In Mr. Delisle's case, as you know, the minister of the day granted his request.

    I think we have to differentiate this from cases of innocence. Someone who has committed an act, but is accused of another act, might decide to attempt avoiding conviction of the main act. Take the case of Mr. Sarson. He was charged with murder and pleaded guilty to manslaughter. It's a strategic choice for the defence. If he's found guilty of murder, that is indeed a miscarriage of justice, but not against an innocent person. So perhaps the same test shouldn't apply. That brings me to the power to reconsider sentencing, which should perhaps be included in your bill.

    I'll close by mentioning an issue that was raised at the previous meeting about dubious guilty pleas leading to miscarriages of justice. It can happen. One example is the Simon Marshall case, which was tried in Quebec. Mr. Marshall, who had an intellectual disability, entered a guilty plea, and it was later discovered that he had not committed the crime.

    He was cleared by DNA tests.

    This is particularly important in the case of racialized or marginalized people, especially indigenous women who are victims of domestic violence. These women could be wrongfully convicted, because they don't think they have a defence.

    Thank you.

    Thank you very much.

     We have Counsel John Curtis with us online.

    Go ahead for five minutes, please.

     Good evening, everybody. I'm very pleased to be with you this evening and to assist you with this important work.

    I thought it would be helpful to set out some background to the U.K. commission's role, structure and powers, and the work we do within the British criminal justice system.

    The CCRC—the Criminal Cases Review Commission—was established by Parliament in 1997, and we operate under the Criminal Appeal Act 1995. Parliament created us to be independent, in order to find and investigate possible miscarriages of justice and refer them to the appeal courts. We've been in existence for 26 years. In that time, we have looked at over 31,000 cases. In the same period, the commission has made 826 references to the appeal court, which equates to more than one case every two weeks and a historical average of around 31 cases a year. Around 70% of those references have resulted in convictions being quashed or, occasionally, sentences being reduced.

    We're funded by way of an annual grant from the Ministry of Justice. Since 1997, our annual cash grant, taking account of inflation, has been £8.775 million. Last year, our grant was £7.28 million, so currently we're operating with funding that is 17% below the historical average.

    Each year we get around 1,145 applications for review. We've seen a marked increase in past years following a move towards an easy-to-read online application form. The forecast for this business year is over 1,600 applications, and that's against a prison population in the U.K. of over 80,000. We don't have any queues or waiting times at the moment, but that position is very hard to sustain. We aim to conclude 85% of our reviews within a 12-month period. Recently we've been achieving that, but it's becoming more and more challenging. Obviously, more complex cases take longer, and reviews can run to one, two or even three years.

    We submit an annual report with accounts to Parliament. Operational oversight is by a board chaired by Helen Pitcher and includes three independent, non-executive directors. We have around 120 staff, which equates to 101 full-time-equivalent employees. We have 11 commissioners to make decisions, and they constitute four full-time equivalents and are paid at day rates. Many, but not all, commissioners and casework staff are legally qualified.

    We believe in a collaborative and multidisciplinary approach, so the organization includes people with legal and investigative skills, as well as specialists in forensic science and financial crime.

    Parliament gave us a unique range of investigative powers. We can obtain material from any public body or private individual. We can order and direct police investigations when a case is particularly large. We have some other powers, including the ability to interview jurors under the direction of the court. We can review any criminal case, from the most minor offence to the most serious. We also cover the military courts.

    We're a body of last resort, so individuals are usually required to have exhausted their appeal rights before they can apply to us. In exceptional cases, we can review a case even when there's been no appeal. That could include a case in which there's extreme vulnerability, perhaps through mental health. We can also deal with cases involving deceased persons if applications are made by their next of kin.

    We can obtain files from police, courts, prosecution and defence, and we often see material from schools, social care providers, medical records and the security services. We can speak to witnesses, scientists, police officers and judges to understand what happened before, and we can order new tests on exhibits. We're the only body that can do this. We're the only body that can send a case for a second appeal. References are made on the basis of fresh evidence or new legal argument.

    I'll wrap up there.

     Thank you very much.

    We now have Madam Greenwood for five minutes, please.

     Thank you, Madam Chair, vice-chairs and members.

    Thank you for inviting the Criminal Lawyers' Association to present to you today. Our organization represents roughly 2,000 defence lawyers across Ontario, with members from all over Canada. We are on the front lines daily, defending accused persons in court.

    More personally, I was raised in small-town Ontario but practise in Toronto. I was called to the bar in 2009 and have had the unique opportunity to work on wrongful conviction cases.

    You may be asking whether wrongful convictions really happen in Canada, since we have a world-class justice system, yet we know that they do. I volunteered, as a young lawyer, with what was then AIDWYC and is now Innocence Canada, for over a decade, working on the case of a young indigenous man convicted of murder. No single case had a greater impact on me or my career.

     Creating this commission is such an important step for Canada to ensure that no Canadian receives a life sentence who doesn't deserve it. But for Innocence Canada, we wouldn't know about miscarriages of justice like the cases of Donald Marshall or David Milgaard or the now discredited evidence of Dr. Charles Smith.

    Wanting to end wrongful convictions shouldn't be something that divides us along party lines; this should be a uniting goal for all of us. Wrongful convictions are not good for victims, for taxpayers or, more importantly, the public confidence in the justice system. The CLA supports Bill C-40. Meaningful reform is long overdue.

    From the CLA's perspective, a robust system of review requires two essential elements: institutional independence and sufficient infrastructure and resources to do this invaluable work. This bill addresses both, but may not go far enough. The CLA respectfully asks the committee to consider three additional points.

    First, with respect to the commissioner and resources, we recommend that the commissioner have security and tenure to review unpopular cases. That's not an easy job and not one that is popular, and may run the risk of political interference. We recommend that the commission be staffed with those candidates who are alive to these issues, to the challenges faced by racialized and indigenous accused persons, those with mental health issues and, most importantly, that they be people who want to do this difficult work.

    Second, with respect to the test for intervention, the test has always been whether or not this person who's coming to the minister for review could prove factual innocence. That is such a high bar. We applaud that the new reforms allow the commission to consider cases in which factual innocence is not established. This should be the norm, not the exception.

    The CLA wishes to stress that this is a critically important change, given the many barriers faced by the wrongfully convicted, as pointed out by Justice LaForme and Justice Westmoreland-Traoré in their report.

    Third, we ask that the reporting function of the new commission be enhanced and that we rely on that critical data to continue to improve our justice system. Bill C-40 presently requires that the commission report to the minister on an annual basis about the work it has carried out. We ask that the committee consider expanding that reporting to include systemic trends on wrongful convictions and a mechanism to make wide-ranging recommendations to police, prosecutors and the courts so that we can diligently make use of the data collected to improve the justice system.

    Bill C-40 may seem like another piece of legislation, but I can say from my experience that it has the potential to be life-changing for those who are awaiting and deserve review.

    Our question is this: Given that our system is one that is internationally regarded as the gold standard, should the test remain unchanged, or is there more we could do to ensure that we protect the most vulnerable in our society and ensure that fairness and justice are delivered to all?

    I am available to answer any questions you may have. Given the time constraints today, I am also available to conduct a private briefing with anyone who wishes to expand on these points.

    Thank you, again, Madam Chair, for the time.

     Thank you very much.

    We will now begin our first round of questioning. Each member will have six minutes.

     I will begin with Mr. Moore.

    Thank you, Madam Chair.

    Thank you to all the witnesses for appearing today on this important study.

    My question is for Mr. Curtis.

     Thank you for appearing and talking about your experience as we consider this next chapter in Canada.

    I think a couple of things distinguish us from your experience. I'd like your comment on this.

     Currently, as the previous witness just mentioned, there's a test that a miscarriage of justice “likely” occurred. That's something that the minister currently would have to consider with the support of specialized individuals within the Department of Justice.

     This bill, in addition to creating this new commission, also introduces what could be a much lower threshold: that a miscarriage of justice “may” have occurred, and when I look at that by definition—“a miscarriage of justice may have occurred”—it could probably apply to almost any case.

     In my understanding of your system, if you could expand on it, it's that in order for there to be a miscarriage of justice review.... In our case, there's no requirement for new evidence and there's no requirement of a new legal argument, but that is the case in your system. Could you expand on that a bit? What is the threshold that would trigger your looking into one of these cases?

    Thank you.

    Our test is if there is a real possibility that the appeal courts would quash the conviction and if our case law tells us the real possibility is below the balance of probabilities—that it's less than a 50% chance in that respect. It has to be real, so it's reasonable rather than fanciful. We've got some helpful case law and decisions that guide us on that. Our court of appeal will quash a conviction if it believes that the conviction “may” be unsafe, but within the “may”, again, I think “reasonably” is implied: It's a reasonable rather than a fanciful one.

    New evidence and new arguments are far and away the most common basis. Theoretically, it would be possible to quash a conviction without new evidence or argument, but it's a theoretical rather than a practical occurrence.

    Thank you, sir.

    In relation to different thresholds and what would be applicable, obviously we already have one of our own. You can look at the Criminal Code threshold of “beyond a reasonable doubt” and the civil code threshold of “a balance of probabilities” in civil law and the real possibility that your threshold is lower than the balance of probability, but I would suggest it's higher than what's proposed in this legislation, which is that “a miscarriage of justice may have occurred”.

    Could you speak to some cases in general terms of the requirement that's generally applied, in your case, of new evidence? What would that typically look like? I know you're dealing with thousands of cases, but can you give our committee an example of what that could look like?

    It could be new DNA that's discovered by more sensitive testing than was available years ago. It can be examples of police misconduct, such as an officer being discredited in a subsequent investigation. We've had pathology cases in which pathologists have overstated the accuracy of time of death. Medical advancements in pediatrics have been some other examples, as well as developments in the law.

    Thank you.

     I have one minute. I'll ask if you can quickly comment on your second avenue of a new legal argument. Could you give some examples of what that could look like in a modern context?

     Recently we had clarification from our Supreme Court on the law relating to joint enterprise. When multiple people have been involved in, let's say, a murder, but it's not possible to say who did what, the Supreme Court clarified that. We had to look at around 20 years' worth of cases to decide whether a new legal argument applied there.

    Thank you, sir.

    Thank you to all the witnesses.

    Thank you very much, Mr. Moore.

    Mrs. Brière, you have six minutes.

    Thank you, Madam Chair.

    I'd like to thank all the witnesses for being here today.

    Good afternoon, Mr. Roy. We are pleased to have you with us today. And thank you for having presented your three areas of scrutiny.

    I'd like to discuss the second one, which is the proposed commission's investigative powers. You mentioned that Bill C‑40 does not provide the power to visit premises, and you feel that it should do so.

    Is it absolutely necessary? Perhaps not, except that this power is currently available to judges and juries. A judge hearing a case who considers that a visit to the premises is necessary to understand the situation can order such a visit. The same holds true when it comes to a judge and jury.

    So, there may be cases where, indeed, the commission would benefit from viewing the physical premises. One example is a situation that occurred in Quebec some time ago, when a car fell into a lock. The question was whether it was an accident or murder. Visiting the scene and seeing the physical configuration of the accident often makes it easier to assess the circumstances.

    I also think that if judges, who have decision-making power, have the right to go there, it seems rather odd that the commission, which has investigative powers, should be denied the same opportunity.

    Thank you very much.

    You also mentioned the power to compel defendants and co‑defendants to testify. Can you expand on that for us?

    Currently, the power to compel someone to testify is that of a standard commission of inquiry. Consider the Charbonneau commission or other commissions across the country. A person cannot refuse to testify at such an inquiry. Therefore, in theory, the review board could compel the accused, who has become an applicant because they've been convicted and claim they were wrongly convicted, to testify before it to discover more.

    I'm not saying that this is a good thing or a bad thing. I'm just pointing out the possibility. Would you be comfortable with the idea of such a possibility arising?

    In a regular criminal trial, the accused cannot be compelled to testify. They have the right to remain silent. However, under such a process, the right to remain silent would, at the very least, be called into question. I'm not telling you that it would be declared constitutional if challenged, but there is at least some concern over it.

    In the midst of a revision process, do you think it would be important for commissioners to have this power, which would give full force to our bill?

    At first glance, I quite like the idea of investigation, and I think we're drawing a little inspiration from the French system. You know, in the French criminal justice system, judges have considerably more investigative power.

    Would it be a good thing to compel the accused to provide their version in support of their claim? That's a political decision that isn't mine to make. In law, it would certainly give the commission more evidence to help it reach a decision.

    As it's currently drafted, Bill C‑40, which also mirrors the current legislative framework, provides that the commission may consider applications from those who have pleaded guilty in cases where all their appeal rights have been exhausted at the provincial level.

    Do you think the commission should be able to consider applications in exceptional circumstances, i.e., in cases where there has been no appeal?

    I think that's an excellent idea, especially for people who have pleaded guilty. I was referring earlier to the Simon Marshall case, but I'd also like to come back to some decisions involving indigenous women. In the case involving Ms. Lavallee, the battered woman defence was upheld. Often, a person can state that they are guilty of killing their spouse, but in law, that homicide is not illegal because it was a case of self-defence. However, the person may feel guilty inwardly, and if they don't have adequate representation, they may plead guilty. They won't be tempted to appeal.

    It's complicated to appeal after a guilty plea, since you have to withdraw the plea first. Especially in cases of guilty pleas, the idea of exhausting remedies is not the right solution. Even if there are fewer miscarriages of justice in guilty plea cases, that doesn't mean there aren't any at all. The Marshall case is a very good example. I'm thinking in particular of vulnerable and marginalized groups. They may be a little more inclined to plead guilty because they fear what might happen if they don't, or because they don't understand the legal standards.

    Sometimes, a person may feel very guilty when, legally, they are not. We can think of cases where the person suffers from a mental disorder. They may feel guilty, but they could mount a defence based on mental disorder at the time of the act.

    Precisely. We know that a fair percentage of wrongful convictions that were later reversed stem from false guilty pleas. Most of those involved marginalized people.

    With a view to shortening the restorative process and ensuring that access to justice is improved, would it be appropriate to amend the commission's powers for cases in which the person has falsely pleaded guilty?

    Our time is up, but I would say yes, that is indeed the case.

    Thank you very much.

    Mr. Fortin, you have the floor.

    Thank you, Madam Chair.

    I'd like to thank all the witnesses who have joined us, either in person or remotely.

    Thank you, Mr. Roy, for being here in person. I'll begin by congratulating you. You are an affiliated with the university that, in my opinion, is the best in Canada.

    That said, I'd like to hear your opinion of an aspect that was raised by my colleague Mr. Moore earlier. When it comes to the threshold, we used to say that a miscarriage of justice probably had occurred. Now, we would say that a miscarriage of justice may have occurred. The expression “may have occurred” seems a bit broad to me too. I feel like anyone could claim that, yes, there may have been a miscarriage of justice in a case, whereas the probability threshold seemed much more reasonable to me.

    What do you think of this threshold issue regarding miscarriages of justice?

    That's a good question.

    It's important to understand that it's not the commission that ultimately decides. It has the power to send the case back to the courts. If the threshold is too low, it will probably send more cases back. Before the courts, however, the applicable standard remains reasonable doubt. The Crown must prove guilt beyond a reasonable doubt.

    Would there be more acquittals or fewer acquittals? That remains to be seen. The final decision rests with the courts.

    Let me clarify my question, because it wasn't about the culpability aspect. If the commission receives a large number of applications, this could potentially, if not likely, overload its hearing dockets somewhat.

    If we want to create a commission whose mandate will be to review miscarriages of justice, will we ask it to review all or almost all decisions that were rendered because someone says an error may have been made? It's so broad that it could encompass virtually any decision.

    On the other hand, should we limit ourselves by telling the commission that the cases it will consider are those for which it can be established that there was a probable miscarriage of justice?

    I'm not saying that either situation is best, but I do wonder about this.

    What do you think?

    Volume is certainly an issue when it comes to the number of cases to be processed. If the criterion is low, there will be high volume. Right now, it's also a question of confidence in our institutions.

    Do the courts, as they were created, miss a large number or a small number of miscarriages of justice?

    I would be inclined to say that our courts still work quite well. If a commission is set up, it should focus on cases that may be more significant. If the criterion is based on the possibility of a miscarriage of justice, this calls into question the efficiency of our courts, as cases that have a lower chance of success may attract more attention.

    Along the same lines, a miscarriage of justice review can take 20 months to six years right now. If a commission is created and made available to more applicants, as I said, whether or not a miscarriage of justice occurred, the caseload will probably increase. If it takes between two and six years now, the wait times could really balloon.

    Do you think it's appropriate for the bill to set out a time limit within which the commission would have to make a decision? If so, what is a reasonable period of time?

    No one should be expected to do the impossible. If the commission is swamped with applications, it won't be able to respect the time limit, even if the legislation prescribes one. If you want to prescribe a time limit, you could look to the criteria established by the court in Jordan, so a maximum of 30 months to decide a murder case, for instance. I know it doesn't apply to cases under appeal, but it gives you an idea.

    What I hope to see is more resources being allocated. There will certainly be more cases, but if more people are handling those cases, the wait times could be shortened.

    I want to draw your attention to another important consideration that isn't in the bill. It should address situations where someone submits two, three or four applications for review. Say a person applies once, and their application is dismissed, but two years later, they identify other grounds. Would that person be allowed to apply a second time? Could they apply a third time, three years later, say? The bill doesn't cover situations like that.

    Perhaps it would be easy to cut out multiple applications because they would be deemed inadmissible. Currently, the bill is silent on the maximum number of applications a person can submit.

    The commission would therefore have to decide whether or not it was reasonable.

    What do you think should be the time limit for making a decision regarding a review application?

    It depends on the case and the degree of difficulty involved vis-à-vis the evidence. If the case is simply about a witness who lied and we now know that person lied, the decision could take as little as a few days.

    Should the time limit established in Jordan apply?

    It could certainly provide a guideline.

     Thank you.

    Mr. Garrison is next, please.

    Thank you very much, Madam Chair. Thank you to all the witnesses for appearing today.

     I'd like to start with an issue raised by Ms. Greenwood, and that's the issue of independence.

    The LaForme report on the creation of a commission on miscarriages of justice recommended that the terms for commissioners be non-renewable. You've raised the issue of independence in relation to the term of a commissioner. I would just like you to say a bit more on this question, since we seem to have a couple of competing ideas about how to make sure our commissioners are independent. One gives them the security of tenure and the other limits their tenure.

    Ms. Greenwood, maybe you could give us some advice on that.

    Thank you, Mr. Garrison, for that question.

    I did see that recommendation in the report of Justice LaForme. I understand why you may want a diversity of perspectives and certainly will need someone who has experience in this area to lead such an important initiative.

     There are pros and cons to both. If you have someone who has the experience and is leading the commission well, you might want that person to be reappointed. However, this is difficult work and probably deserves to have someone who brings fresh perspectives.

    I can see the arguments to both, but obviously I defer to Justice LaForme and his recommendation. I saw that he had recommendations with respect to the commissioner and to having part-time commissioners and rotating appointments, which I think is key to having enough people to do the work, along the same lines of the questions that were being asked of Mr. Roy.

    Thank you, Ms. Greenwood.

    You also talked about the importance of having staff who are aware of the issues in the miscarriage of justice, in particular as they relate to the most marginalized Canadians. Certainly, in terms of the record of the current process, I think that we heard from one of the witnesses that since 2002 there have been 20 reversals. Of those, only one was an individual who was Black and only one was indigenous. I believe all of them were men.

    When we look at the representation in our prison system, those numbers would indicate that there's something wrong. We have far different ratios of representation within those who are convicted.

    Can you say a bit more in terms of the mix of people you think should to be a part of the commission so that they are sensitive to this issue?

     If we look at the makeup of the prison population, we see that indigenous persons and racialized persons are over-represented, as well as people with mental health issues. Some of the stats in Ontario say that three out of four inmates in Ontario have mental health issues, so we know that those who are seeking review.... The staff who are going to be doing the review must have some kind of training, whether it is bias training or other kinds of training that allow them to see different perspectives on these issues. This is because we know there is inherent bias that infects our justice system.

    While all of the initiatives that have been taken to modernize our system and become more aware of implicit bias are to be commended, we're not there yet. We know these things still impact our system, and we know that juries, especially in small communities, are not necessarily representative of the population.

    In terms of how we attract those people, that will have to be something.... Staffing the commission in a way that's representative will probably require a robust appointment process that asks people to demonstrate their interest, knowledge and education in these issues so that we can have real perspective and a diversity of perspectives. Perhaps there could be a stakeholder committee that leads to this appointment process.

    My last question for you—and I'm trying to squeeze in one for Mr. Curtis—is about legal representation during this commission process. We know that often those who are most likely to have had a miscarriage of justice have the fewest resources to mount things like challenges against that miscarriage of justice.

    How do you feel about the way things are set out in the existing bill in terms of providing legal assistance to applicants?

    I read some of the submissions that were made to Justice LaForme and I couldn't agree more that legal representation, especially for someone who is marginalized or has mental health issues, is absolutely critical to the success of the application. We can take Innocence Canada as an example of that. Were it not for Innocence Canada, we wouldn't have had such a well-put-together record by lawyers and staff to bring these miscarriages of justice to light.

     I think it is really important that we have a robust system for the appointment of counsel.

    I have just 30 seconds.

     Maybe I could ask Mr. Curtis to say a bit more about the application process and the simplification of it that took place in the U.K.

    We changed it from a text-heavy form to a much simpler one.

     In terms of representation, people often don't know why they were wrongly convicted. They know they didn't do what they were accused of, but asking them to articulate what went wrong is really only a starting point. Even good lawyers don't necessarily have that answer, so we have to look at things and bring our own skills to bear on the cases.

     We don't have a huge number of legally represented people. About 15 years ago, 40% of our applicants were legally represented. That's dropped to less than 5% now. We don't think it changes your chance of getting your case referred, but it undoubtedly takes longer to work through a case when somebody isn't represented.

    Thank you very much.

    I will now begin our second round. Maybe we'll go four minutes, four minutes, two minutes and two minutes to allow time for the second panel as well.

    It's over to Mr. Brock, please.

    Mr. Van Popta is taking over.

    I believe I'm up next.

    Okay. Go ahead, Mr. Van Popta, please.

    There was a change of plans. Thank you so much.

     Thank you to the witnesses for being here.

    Jessyca Greenwood, I have a question for you. You had three asks in your submission. The second one, I think, dealt with the issue of factual innocence. I'm reading here the LaForme-Westmoreland commission's report on page 36, which states:

    Is that your organization's position?

    I actually support what you have written in the legislation as proposed. I think at that time, when we made the submission, we didn't have the full background and benefit of all the submissions that have been made.

     I would amend that to say the legislation as proposed is what we agree is critically important, and we're hoping that this brings a shift from what was required, which was factual innocence, because that requirement presented huge barriers. As you can imagine, if those who are wrongly convicted and are in jail could show factual innocence, they probably would have done that in the first place.

    We really support this bill and hope that it brings an expanded review of potential wrongful convictions, especially when vulnerable persons are involved.

     It's fair enough to change your mind after having done some more research and education.

    I have another quote from that commission. This is on page 103, where you're quoted as saying:

    Is that still your organization's position?

    While I agree that the most serious cases have the highest penalty and those clients are in the most jeopardy, I don't think the commission should limit it only to the most serious of cases, because there can also be wrongful convictions in less serious cases, such as attempted murder or other serious offences that don't attract a life sentence.

    I don't think we would limit it in that way, but I understand that overburdening a commission is a concern. There are resource constraints on any commission or agency. We do appreciate that.

    I'm going to switch to Mr. Curtis now.

    Your organization has 25 years of experience. What you're telling us today is very valuable and important.

    How does your commission avoid getting overburdened with what I would call faint hope applicants clogging up your commission's human and financial resources?

    About 97% of our applicants are disappointed, in the sense that they receive a turndown from us. There's no way of knowing that at the outset of the process. It's something we have to deal with.

    Could you tell us about the early intake filtering process? There must be some process to dispense with some applications very quickly.

    We wouldn't look at a case if there were live proceedings or an appeal under way. You have to exhaust that. We'll do a triage with a screening. We'll be able to size the case. Is it something we could expect to make a couple of inquiries on? Is there a much longer process? We will size cases as small, medium, or large. We would then try to match the case with somebody with the investigative skill set and experience suitable to that type of case.

    Thank you very much.

    Next we have Mr. Housefather, please.

    Thank you very much, Madam Chair, and thanks so much to the witnesses for being here.

    Mr. Curtis, very quickly, this is on that last point regarding the screening. When something comes through the court, normally the clerks will look at applications and then write a bench memo.

    Is there something like that in the process to allow you to go through a wider variety of cases and make quick decisions to screen them out right away?

    You can make a recommendation. The commissioner makes the decision in all cases. Experienced staff will maybe make a recommendation that this does look like a hopeless case, but a commissioner will make that decision. Sometimes we'll disagree.

    Perfect.

    I want to come to another thing. The thing that I'm the most worried about in the legislation is the fact that you need to exhaust the appeals process. I'm very concerned that the defendants we're looking at—indigenous, Black, and marginalized people—are the least likely to have the financial resources and the least likely to have the ability to pay high-value lawyers to give them advice to continue appealing.

    Can I get an understanding of what, in the U.K., is allowed in terms of the commission's discretion to circumvent the exhaustion of appeals?

    It would be extreme vulnerability. Social standing could be an issue. Mental health could be an issue. It's the need to investigate something that you couldn't do yourself.

    If you're looking at surveillance material, the average person isn't going to be able to get access to that. The need to use our special powers can also be.... One in three of our references is made on the basis of somebody who hasn't used an appeal. It is a really important discretionary element.

    I'm assuming that power is given to the commission under the original base legislation in the 1995 act in which the commission was established. Would you recommend we look at copying or adapting that language?

    Yes. I think it's an important part of our work. The miscarriages of justice that we've investigated and referred and that have been quashed by the court are with people who haven't exhausted their appeals. They're in such large numbers that it would seem sensible to take that on board in some form.

     Thank you.

    Ms. Greenwood and Mr. Roy, could you also give me your opinion on that?

    I agree completely with Mr. Curtis. Have some mechanism for the most vulnerable to be able to be reviewed. They possibly didn't present well at their trial. They may be doing better now. They may be on medication or be receiving treatment. They may have the ability to participate in a way they weren't able to during their trial, so I do really agree.

    Thank you.

    Do you agree with that, Mr. Roy?

    Yes, I also agree. I mean, those people have a hard enough time just going through the criminal justice system. We can't ask them to go through all the steps. It's impossible for some of them.

    Madam Chair, do I have any time left, or am I done?

    You have 30 seconds.

    How much?

    It's 30 seconds, now 28.

    Voices: Oh, oh!

    To conclude, I'll just say that the discussion on section 649 was quite interesting. A few years ago, I used to chair the Standing Committee on Justice and Human Rights, and we did a lot of work on the disclosure of jury proceedings. I think that's an important element in cases where it could help people struggling with mental health issues. I took note of the discussion.

    Thank you, Madam Chair.

    Thank you, Mr. Housefather.

    We now go to Mr. Fortin for two minutes.

    Thank you, Madam Chair.

    I'm coming back to you, Mr. Roy, not because the other two witnesses aren't important, of course. They raised some very interesting points, but you are here.

    You talked about how we should consider expanding the commission's investigative powers to include going to the scene. The commission can compel certain witnesses to appear, if it wishes, including the applicant, who as you pointed out, is the accused. Those are all important considerations, in my view, but something is bothering me.

    Let's say we give the commission broader powers, as you recommend. At the end of the day, doesn't that amount to the commission retrying the case? Theoretically, that should not be possible, since the commission's job is simply to determine whether a retrial is warranted.

    Aren't you concerned that is a step too far, to some extent?

     That's an interesting question.

    One of the discussions earlier was about whether the basis for triggering a review should be limited to new evidence. Obviously, if the evidence has already been considered, there could be a duplication of work. However, if someone wants to present new evidence, I think the commission should have the power to assess evidence that wasn't presented during the original proceedings.

    Consider the argument that someone else committed the crime. If that argument wasn't presented at trial, I think it's appropriate that the commission would want to hear the witness in order to assess whether a miscarriage of justice occurred. If the witness was already heard at trial, the commission might not gain much from hearing the witness again.

    It could also increase the wait times.

    Thank you, Mr. Roy.

    Thank you again to the witnesses for being with us today.

    Thank you.

    Mr. Garrison, go ahead, please.

    Thank you, Madam Chair.

    I'd like to go back to you, Mr. Curtis, and to where we left off.

    You said that only 5% of those applicants in the U.K. commission were legally represented. I'm going to ask you the obvious question, and I'm sure you have studied this: Is there any difference in success in having those wrongful convictions reversed? Is there any difference between those who had legal representation at the commission and those who did not?

    We don't think so. We think the difference is in the time the case takes to review rather than the outcome. Once a case gets back to the court, the court will appoint representation for the actual hearing day.

    Of course, that would be the same situation here in Canada.

    In terms of successful appeals in Britain, have you noticed any difference, let's say perhaps with the social makeup in Britain, in the overrepresentation of Blacks or those who live in poverty? Have you dealt with this question in the U.K. commission?

    We haven't. I can't give you any data on that, I'm afraid. It might be something we could supply further to the session.

    It's not something the U.K. commission has been seized with.

     There is a definite overrepresentation of certain communities within the prison population. We work on our outreach to try to improve our application intake so that it is representative of the prison population. We've had some success with that, but it requires a good investment, as far as the commission is resourced, to do that—to go into prisons and build those relationships with people in prison and build trust within the communities.

    Thank you very much, Mr. Curtis.

    Thank you very much to our panellists, both those in person and those online.

    Members, we'll suspend for two minutes to allow the next panellists to be set up. My understanding is that there will be one in person and two by video conference.

    Welcome back, colleagues, for our second panel. We will now resume.

    In our second hour, we are proceeding with our study on Bill C-321.

    We welcome, as an individual, Elizabeth Donnelly, associate professor, school of social work, University of Windsor, who is joining us by video conference; Linda Silas, president of the Canadian Federation of Nurses Unions; and Danette Thomsen, British Columbia regional council member, northeast region, British Columbia Nurses' Union, also joining us by video conference.

    We will start with six minutes each.

    Mr. Brock, are you on the list?

    Oh, I'm sorry; before that, you each have five minutes for your opening remarks. After that, we will commence with questions.

    I will ask Madam Donnelly to please proceed.

     I want to thank the committee so much for the invitation. I'm delighted. It seems the third time's the charm to be able to present to you today.

    My name is Elizabeth Donnelly. I'm an associate professor, but I am here today primarily because I have spent the last decade, and more, of my life focusing on workforce health issues for paramedics. I'm currently a co-investigator with Dr. Mausz in the Violence in Paramedicine Research Group.

    In addition to my research, I have maintained certification as an emergency medical technician for over 20 years. I have done a significant amount of frontline work, so this is not theoretical work for me. This is very much about the folks I worked with and about keeping them safe.

    Because I was initially supposed to testify last month, I just want to very briefly reiterate the points that my colleague made about our research.

    Violence against paramedics is wildly under-reported, primarily due to a culture of a under-reporting and this idea that tolerating violence has become an expected professional competency. These beliefs about violence being unavoidable are changing after the creation of a novel reporting strategy and significant organizational change. Violence reporting is increasing, and while it's still under-reported, our research has found that paramedics are reporting violence every 18 hours, are assaulted every 46 hours and experience violence that results in physical harm every nine days.

    The issue of violence against paramedics has been a concern for the paramedic community for years. The Paramedic Chiefs of Canada put out a position paper a number of years ago outlining a host of strategies that needed to be operationalized to keep paramedics safe. These included research to better understand the scope of the problem, evidence-informed strategies to keep our paramedics safe on the front line, increasing public awareness, and—most importantly for the folks on this call today—changes in policy and legislation.

    This has been reinforced in the white paper they put out on the future of paramedicine in Canada, where violence was specifically identified as a health issue in the paramedic community. This has also been captured in the report that Mr. Doherty noted, report 29, which recommends amending the Criminal Code.

    The paramedic community is doing their part. Many services have deployed this novel reporting tool. Many of them have agreed to share their data with my research group, so we are going to have a better idea of what's going on. It's a huge concern for our community, because we already have significantly higher rates of mental health challenges.

    While the evidence base is still emerging within the Canadian context, it has been identified as a correlate to depression, anxiety, stress and burnout in other populations. Also—not specifically with paramedics—exposure to violence has been identified as associated with an intent to leave the profession. Right now, we're struggling to get providers on the roads. We're struggling to staff the trucks. We need to retain every human being that we have to provide the services that Canadians count on.

    The paramedic community needs you. It needs the justice system for so many different reasons. Because violence was so long considered unavoidable and because tolerating it was an expected professional competency, we need everyone to say, “No, that's not true.”

    Paramedics are helpers. They show up. They train. They prepare. They will be there in the night, upside down, in a ditch. They will show up for you when you need them.

    Is it really reasonable that we tell our paramedics that we want them to show up but also to deal with intimidation, racial slurs and sexual harassment? Would you expect that in your workplace? Would that be acceptable for your constituents? I don't think that's true.

    Legislation alone isn't going to solve this problem. It's complex. It's going to require comprehensive approaches. Paramedic services can do their part by putting programs together to keep their paramedics safe. Police organizations can get involved by investigating and laying charges. The Canadian government can do its part by amending the Criminal Code.

     Amending the Criminal Code will do a lot of different things.

    The first thing is it—

    Thank you very much, Ms. Donnelly. We'll get back to you with questions.

    Next is Madam Linda Silas.

    Good afternoon.

    Sorry, Elizabeth. That bell is the worst part of the job.

    Thank you, Madam Chair, and thank you, committee members, for the invitation. It's a privilege to be here.

    As you know, I would like to acknowledge that the land that we are sitting on is the unceded, unsurrendered territory of the Algonquin Anishinabe people. I'm a proud New Brunswicker from the beautiful land of the Mi'kmaq people.

    I'm here as president of the Canadian Federation of Nurses Unions and on behalf of my 250,000 members. I'm proud that Danette, one of our leaders in British Columbia, will be presenting soon.

    We're the working nurses. Like the paramedics, we're there 24-7, taking care of the sick.

    Canada's nurses believe that the language in Bill C-321 complements the existing protections and Criminal Code changes outlined in Bill C-3, which is now two years old. I'll get to that soon.

    The Criminal Code changes found in Bill C-3 aimed to ensure better safeguards for health care workers, including nurses. Now Bill C-321 proposes expanding the language to include first responders. We welcome this proposed change to the Criminal Code. We recognize that violence against any health worker or first responder when they are performing their duties is an aggravating factor to sentences.

    The facts are shocking. You heard Elizabeth talk about the paramedic field. In 2023, a pan-Canadian survey of nurses was done. Two-thirds reported incidents of physical assaults over the past year and 40% of those nurses reported physical abuse more than once a month while engaged in their duties.

    All workers deserve a workplace free of violence and abuse. It should not be tolerated. Sadly, nurses and health care workers experience it routinely. We have to look at these. We have to bring in new measures, such as changing the Criminal Code, but we will also talk about prevention modes.

    Many people in Canada are aware that public safety personnel—peace officers, police officers, firefighters and corrections officers—have high-risk jobs and often face violence. Most would be surprised that the same ratios exist in the health care field. Our health care facilities and our health care system are not safe places to work.

    In addition to physical injury, workplace violence is strongly correlated with negative impacts on workers' mental health and has been seen as an issue facing nurses for many years. Exposure to violence predicts negative mental health outcomes, including PTSD. From our survey of working nurses, three in four, or 78.5%, report symptoms of burnout. Similar data is seen with public safety personnel.

    A similar study was done by CFNU in 2019. Nearly one in four nurses screened positive for PTSD symptoms. MP Doherty will remember all the work we did in 2019 on a federal framework on PTSD, which included health care workers, such as nurses and paramedics.

    Sadly, violence and abuse are normal in the health care system. Such a high rate of violence would be unthinkable in any other profession. It needs to be stopped. The health care risks are often accepted.

    The House of Commons committee on health, HESA, tackled the challenge of rampant violence against nurses for the first time in a 2019 study. Bill C-3 came out of this and came into law in 2021, as one of HESA's recommendations. Bill C-321 will expand these protections.

    Nurses are in solidarity with paramedics on this, but we need to go further than this. We need to be clear that this is not enough. We have to make the public and lawmakers aware of the changes in the Criminal Code and work on better protection for our health care workforce in order to work safely in our health care facilities and in our community. Thank you so much.

    While we're encouraged by all this work, we know that many more recommendations of the HESA committee have to be done there.

     We support this piece of legislation, but we encourage all MPs and all committees to look further to make our health care and our community safer for those who take care of the sick and the injured in their work.

    Thank you, Madam Chair.

    I'll answer your questions.

     Thank you very much.

    Next we have Madame Thomsen.

     Good afternoon.

    I'd like to acknowledge that I personally live on the unceded territories of the Lheidli T'enneh, where MP Doherty is from. Today I join you from the lands of the Coast Salish peoples—the Musqueam, Squamish and Tsleil-Waututh.

    It is an absolute privilege to be here with you today speaking on behalf of our members.

    When you consider acts of violence as a cause of workers from all occupations taking time away from work, nurses represent 30% of total claims, the second-highest occupation behind nurse aides, orderlies and patient service associates. Between 2018 and 2022, nurses reported an average of 51 injuries per month caused by acts of violence in B.C. alone. The number of injuries reported over a four-year period between 2013 and 2017 rose by 49%, from 1,653 to 2,458. It's unacceptable.

    BCNU represents approximately 48,000 members in the province of B.C.

    You just have to turn on the news to see the increase in aggression in our society. Wait times in health care facilities due to circumstances outside of nurses' control are increasing, and incidents of violence are increasing along with them. Nurses working short-staffed, trying diligently to give the best care to their patients, are being targeted. They need to be protected. That is our job—your job and my job. We need to do this today.

    Their families need them to return home safe. Can you imagine going home and not being able to hold your young child due to having been assaulted at work? Can you imagine a patient in a waiting room calling 911 to warn that a health care worker is about to get seriously injured, if not killed? This patient then proceeded to attack one of our male nurses and attempted to choke him out. The nurse who was attacked was working a shift his wife was supposed to work. Had he not been there, his month-long recovery could have looked so much different for somebody else.

    What about the nurse in rural B.C. who, last January, entered a female patient's room and was attacked? Can you imagine being held over a chair, receiving punch after punch, with handfuls of your hair being pulled out, while waiting frantically for help to come from the RCMP? In many rural communities at night, there's only one RCMP officer on duty. That nurse was freed by another male patient, who assisted.

    We hear horrifying stories. Many are so horrifying that I can't even tell them. The psychological impacts on our nurse victims and the colleagues who try to assist them last far beyond the physical trauma. This is costing our already crumbling health care system, as nurses are now dealing with their own mental health injuries and time off work, trying to heal. We are losing nurses from our system. This is the first time ever that B.C. is reporting empty seats in nursing programs. There's normally a wait-list to get into our programs, and we're not even filling our seats.

    We have an obligation to protect those who are protecting others. We have an obligation to care for the caregivers.

    I'm excited to be a part of this today. Thank you for having us here as the B.C. Nurses' Union. I look forward to answering any of your questions.

    We fully support Bill C-321.

    Thank you very much.

    We will now begin our round of questioning for six minutes each. We'll start with Mr. Brock.

    Thank you, Madam Chair.

    Thank you, ladies, for your attendance virtually and in person, and for your advocacy in this particular area.

    I'm going to turn matters over to you, Ms. Donnelly.

    Unfortunately, you ran out of time. Five minutes goes by very quickly, so I'll give you an opportunity to finish your thoughts.

     Thank you so, so much.

    One question that was asked when my colleague was testifying was, why does this matter and what is this going to change?

    It's going to change a ton, because it's going to communicate to paramedics that they're valued and that the Government of Canada supports them. It's going to raise public awareness and say, “Hey, this issue of assault against our helpers is unacceptable. It's a serious offence and will be treated as such.” It's going to communicate to law enforcement and to the Crown that these assaults aren't just assaults; they are threats to public safety because we are losing our helpers. When we lose our helpers, we're going to lose safety for our whole community.

    I think the other thing that's really important to understand is that just because the criminal justice system gets involved doesn't necessarily mean that everything is going to result in conviction. There are lots of avenues—diversion, mental health court—that can be used to get folks who may have health concerns the right kinds of support. The goal of this is restorative justice, not necessarily punishment.

    Thank you so much for the extra few minutes to get my final thoughts out. I appreciate it.

     You're welcome.

    The next question can be answered by anyone on the panel.

    I'd like to make an observation that it's probably no small wonder that we have a crisis in the nursing profession in light of everything you shared with us in terms of the historical nature of the profession and the abuse that the profession receives. This is nursing, and this is also first-line responders as well.

    I understand that under-reporting is commonplace in the nursing industry and in the paramedic and first responders field. I am married to a nurse. You represent my wife. For the last 20 years, I have heard example after example of how she has been personally tormented, that the administration is not doing anything about it, that there is a lack of security within the hospital setting itself and that the security is not acting as a deterrent.

    The question I am bringing to your attention right now is on the whole issue of public knowledge, information sharing and making sure that the police understand they have tools available to them to charge.

    The concern I have is on deterrence. One of the central features of sentencing on any particular case, from shoplifting all the way to murder, is that there is an element of deterrence—personal, specific deterrence to the offender to learn that there are consequences for their behaviour, and general deterrence to the community to learn that if one engages in similar behaviour, there are going to be consequences.

    I am hearing from all of you that is the message you want to share.

    We know that for many, many decades, there have been numerous cases of offences in the Criminal Code that have had aggravating features attached to them. When you have committed an offence against a certain individual in certain circumstances, it is an aggravating feature in sentencing.

    In light of that, do you have any evidence to suggest that the Criminal Code will have some impact on the community at large, and on your profession, by making this an aggravating feature when you assault a health care worker or a first responder?

    That is to anyone on the panel, please.

    I'll start. Thank your wife and give her hope, because I do have hope.

    I've been on many committees, on either violence or the nursing shortage, and we have a crisis in this country. The crisis goes further than nursing. It goes in all respects to our other health care workers.

    On why it's important to change a criminal act, Elizabeth said it: It's a question of respect. It's a question of acknowledging that there is a problem.

    As citizens, if we get stopped by the police and we spit on the police officer, we know exactly where we're going. In health care, patients, the community and parents do not understand that. We have to change the culture. Changing the culture starts with laws and prevention programs. It starts by MPs like you talking about it and saying that this is not okay.

    My occupational health and safety experts from Alberta are going to Windsor the week of the 5th to look at the metal detectors at the Windsor hospital. That is discouraging. Health care dollars should be going to provide more nurses, more doctors, more health care professionals and workers, not metal detectors—but that's where we're going, and you're going to see it across the country.

     Does anyone else on the panel wish to respond?

    I agree with Linda that we need to actually show value to the people who are caring for our members out there and for the public. We need to tell them and to show them that this is not okay and that we don't expect them to go to work and be beat up every day.

    Thank you, ladies.

    Thank you.

    We'll now go to Mr. Maloney.

     Thank you.

    I'm going to pick up on what Mr. Brock was asking, because I was going to go down the same path.

    Ms. Silas, you said something along the lines that we need to look further, but you talked about prevention versus the Criminal Code.

    Correct me if I'm wrong, because I'm just pontificating here a little bit.

    When police are encountering somebody, it's probably that someone is engaging in a criminal act. However, when people are dealing with health professionals, like nurses or paramedics, those may be people who are in circumstances that don't involve a criminal act or criminal behaviour, but those are still the ones who are involved in some of the conduct we're talking about.

    We're all in agreement, I think, on this bill, frankly, and I want to thank Mr. Doherty for bringing it forward. It's further to Bill C-3, as you pointed out quite rightly. Is this going to be enough? There seems to be a much bigger problem, so I'm not sure that amending the Criminal Code to say that if you spit on a nurse, as the example you used, the amendment is going to act as a deterrent.

    What else needs to be done? As parliamentarians, what else can we do to create an environment where we can prevent that type of behaviour? I'm asking because the numbers I'm hearing are staggering.

    I would go back and read the HESA report of 2019. The HESA report on violence in health care gave strict recommendations, and prevention was number one. I couldn't have written the report better myself. We have to talk about prevention. We have to talk about a culture change, and it goes from safe staffing to proper occupational health and safety.

    Look at the past pandemic. Health care workers had to fight to get the proper PPE. We would never have seen that in a construction zone, because we do not look at health care the same way as any other workforce. That's why we're in a mess today.

    I have a follow-up on that. Does anybody else have a comment on the general proposition? Ms. Donnelly, I was hoping you might. I'm a graduate of the University of Windsor, by the way, so I'm glad you're here.

    I congratulate you on your excellent taste. Well done.

    I would say that it's not either-or. Changing legislation is prevention. There have been a number of examples of success stories, such as in Peel Region, where if they're getting multiple violence reports, they can reach out to that person and say, “If you continue to do this, these are the possible consequences. If you continue to do this, these are the ways in which we may respond.”

    Creating the legislation changes police attitudes and changes police responses to the violence. It changes the lens with which the Crown looks at those incidents, so it's definitely not an either-or.

    I said before in my comments that this has to be comprehensive. Changing legislation is a critical piece, but it is just a piece, and those other elements that I mentioned earlier are still so needed.

    Thank you.

    Thank you.

    That's where I was going, because we can amend the Criminal Code and introduce other legislation at the federal level, but much of what you're talking about falls to the provinces and industry? What can we do to encourage better conduct, or conduct that's going to help with other levels of government?

    I'm asking because I suspect funding is a big part of this. You talked about PPE during the pandemic. One of the big issues that the health care profession faced was a shortage of funding from provincial governments. I live in Ontario, and the federal government had to step in and to fill that gap.

    What should other levels of government do to address some of those issues?

    To change a culture, every level of government needs to speak about it and to take it as a priority. That's what we're seeing now.

    We talk about hope. Last September, for the first time in history, a police alert went out in Ottawa for a man driving a red truck. He had assaulted health care workers and nurses in a facility. It was the first time in history. That was the success of Bill C-3. Now we need to go further than that; that's the only one we ever heard.

    For the first time in history, a man in New Brunswick went to jail for two years for assaulting a nurse. She will never work again, but for the first time in history there was criminal justice. That created a ripple effect to cause more prevention, more occupational health and safety methods to prevent violence, by tagging family members and by tagging patients. When I say “tagging”, it means that if they have a past behaviour of violence, there are special rules the team needs to know.

     I'd like to answer that.

     Yes, okay, please. I was going to ask you to. I thought I had five minutes.

    We've had some good work happening here in B.C. Recently, the Ministry of Health announced that we have 26 relational security officers hired. It's just a new project. We know that there are going to be glitches, but these are security officers who are trained and who will be working as part of the team at our high-risk sites. However, they need to be everywhere.

    They also need to be able to actually take down somebody who needs to be taken down or remove from facilities people who are behaving inappropriately. That is not the job of a nurse, and oftentimes police take too long to get there because their slates are full too, and that's no judgment.

    We're excited about this new program, but it's just so minute. We need so much more to happen.

    Thank you very much.

    We will now go to Monsieur Fortin for six minutes, please.

    Thank you to the witnesses for being here today. This is an important topic, and we can never have enough insights.

    Ms. Donnelly, in 2021, Parliament passed provisions amending paragraph 718.2(a) of the Criminal Code. Subparagraph 718.2(a)(iii.2) was added to make an offence committed against a person providing health services, including personal care services, an aggravating circumstance for sentencing.

    In your view, has that provision affected the prevalence of assaults against health workers?

    I'm afraid I don't have enough familiarity with that legislation and its impact to comment with any sort of specificity.

    I'm hoping that perhaps my colleagues might have some thoughts. I'm very sorry.

    Does that mean you didn't hear about the provision when it came into force in 2021?

    I haven't seen it being operationalized yet in any of the interactions I've seen in trying to have charges laid against folks who assault paramedics. However, as I mentioned earlier, we have a lot of organizational hurdles, such as paramedics reporting, police feeling like something may warrant charges, and the Crown deciding to lay charges, so whether or not that previous legislation has affected it, we still have a lot of work to do around organizational culture to—

    Thank you, Ms. Donnelly. I understand what you're saying. I don't mean to be disrespectful, but I have a limited amount of time.

    I'd like to ask Ms. Silas the same question.

    Ms. Silas, in your role at the Canadian Federation of Nurses Unions, have you heard of the provision, and if so, has it had any impact?

    Just to clarify, are you referring to the change that was made through Bill C‑3?

    Yes, I think it was Bill C‑3.

    Yes, I've heard of it.

    As I said, in September, we received a news release alerting us that a man driving a red truck had assaulted nurses and health care workers in Ottawa. That was the first time in history we had received such an alert. It was the only time we were ever informed of an incident like that.

    What Bill C‑3 was missing was an education component, and we talked about that with the former justice minister. If you talk to a police officer or a lawyer in your region, you will see that they have no idea the provision exists.

    Thank you.

    Subparagraph 718.2(a)(iii.2) is similar to what's being proposed now in Bill C-321. The provision refers to an offence committed against a person who is providing health services, including personal care services.

    Aren't you concerned that the provision in this bill duplicates that? If not, how do the two provisions complement one another, in your view?

    We aren't at all concerned about that, because we are talking about a group of workers who work outside the health care system. They are part of it, but they work primarily in the community. That group of workers identified a need, and as an organization representing nurses unions, we want to support them. As a society, we should protect all health workers.

    There is no disagreement there.

    Sorry to cut you off, but I have just about a minute left.

    The existing provision in the Criminal Code refers to a person providing health services. The bill currently before the committee, Bill C‑321, captures health care professionals and first responders. The Criminal Code already covers people who provide health services, including personal care services.

    They seem to do the same thing. I could be wrong, but I'd really like to hear your thoughts on that.

    The difference is that this bill captures first responders as well. First responders don't work in the same settings as health care workers. That's why we were fine with it.

    We met with people from MP Doherty's team. I'm having a hard time saying his name in French.

    Your French is excellent.

    I should hope so. I'm from New Brunswick, but saying his name in French is a bit tough.

    During those meetings, we asked the same thing you're asking, Mr. Fortin, and we were all in agreement on that. This group of health workers is really different from other health care professionals.

    Aren't first responders people who provide health services? It seems to me that they are.

    They are, but those workers are saying that's not the case. Out of respect for their work, that's what we did.

    Thank you, Ms. Silas.

    Thank you, Madam Chair.

    Thank you, Mr. Fortin.

    We now go to Mr. Garrison.

     Thank you very much, Madam Chair. I want to thank all the witnesses for being here today.

    I hope this process is part of that beginning to change the culture and that your appearances here today really do help to get that message across.

    Ms. Donnelly, I'm particularly glad to see you here today, because of the technical problems we had before. I know you were quite frustrated in the attempt to appear. We are in a different room, and it appears to be working well.

    Sending the message of respect to the workers is particularly important, and sending a message to the public is also important. What I want to talk a bit more about, because everyone will always say that the other things cost money, is what we're seeing and what I'm hearing from the witnesses, which is that the current situation costs the system money.

    I am going to go first to Ms. Donnelly regarding paramedics. Can you say a bit more about the costs to the system of the prevalence of violence in terms of time off and in terms of retention of employees? How is this impacting the spending costs for paramedics?

    I wish I could give you all the numbers, but we don't have enough research. This area is just emerging. As such, we have a lot of anecdotal evidence that people are leaving. They are burning out. They are choosing to leave because there is a lot of moral injury, which is this idea that I am here to help and I'm being abused because I'm showing up to help. We don't have clear data that says this is the cost of violence, differentiating it from the different kinds of stresses paramedics are currently experiencing.

    I did point out, in my earlier statements, to evidence that is correlational between exposure to violence and intent to leave the profession in other disciplines. Hopefully, in the next couple of years, I should be able to provide that data for you.

    Would you essentially agree that it is a factor that adds extra costs into providing this service?

    Yes, it is, 100%.

     I will go next to Ms. Silas in terms of the costs to the system on nursing.

    I personally didn't bring it up, but Danette did talk about it. About 30% of workers' compensation claims deal with violence, and that's just for B.C. We see the same thing across the country. Numbers regarding violence and injury more than doubled in the last two years. Again, that's from B.C.

    It is a big cost, but the biggest cost is what Danette was saying, which is that people don't want to go into health care. We just spent a day on a centre for health care human resources, and our biggest challenge is how to make health care jobs attractive again. When they hear all of us talk about violence in health care, it is not very attractive.

    Ms. Thomsen, you were the one who brought the most specific things to us, so maybe I can turn back to you and allow you to say a bit more about this.

    Stats Canada's most recent data showed that by the end of the third quarter of 2023, there were 5,825 nurse vacancies in B.C. That's an increase from 5,300 last year. That in itself, the fact that we're at 5,825 nurses....

    I'm telling you, you can just look at our rates of casual employees. Nurses don't want to work full time. When things are getting ugly, they need to be able to pull off, so it's costing us in many, many ways that are not even measured.

     In terms of support services being made available to employees, such as counselling or therapy, are you finding that the increase in violence is accepted as a reason for receiving those support services?

    Those support services in B.C. are so overused that sometimes it's taking our members six weeks to get help after they have witnessed a violent incident. We're pushing for critical-incident stress debriefing and all those things that the employer is supposed to be providing, but even that is taking time because of the increase of the need for those services.

    The services aren't keeping up with the need for those services.

    Ms. Silas, maybe you can comment on that as well.

    Exactly—there are not enough services. We not only have to heal these health care workers; we also have to prevent. That's the biggest thing we have to do. We have to prevent. That's with safe staffing and with appropriate security mechanisms in all of our facilities—and community, Elizabeth.

    Ms. Silas, would you say that the general understaffing that we see in terms of nursing jobs then makes nurses more vulnerable to the violence on the job?

    Have you been in an ER lately, Mr. Garrison? You know, when you wait 18 hours or 12 hours and you're sick, you lose patience, so yes, of course there's more backlash.

    Right.

    Thank you, Madam Chair.

    Thank you very much.

    We'll now begin our second round.

    Mr. Doherty, you have five minutes, please.

    Thank you, Madam Chair.

    Thank you to my colleagues for allowing me to sit in on this, and thank you to our guests.

    Ms. Silas and Danette, Bill C-321 came out of conversations we had, very honest and very frank conversations, earlier on when we were dealing with my bill, Bill C-211, on PTSD.

    I have the questions and I have the backgrounder that Mr. Fortin was looking for. I will send that information to the committee.

    I don't want to take up any more time trying to answer your question, Mr. Fortin. I will get you the information that I have. I'll send it through my colleague here.

    I think what we need to hear more of is the voices of our guests who are here. I spoke to a group of nurses in northern B.C. two years ago at the invitation of Ms. Thomsen. When I mentioned the proposal of this bill, it brought tears to nurses around the room. It was a very emotional time.

    Through you, Madam Chair, I would like to ask our guests this question: Why does just talking about the proposal of this bill evoke so much emotion with your membership?

    It's recognizing that there's a problem. It's a question of respect. You know, to change the Criminal Code, the first one with Bill C-3 and even the framework on PTSD, we had to talk to our own colleagues. They actually didn't believe that a sick patient or an angry patient should be charged or that a nurse should be calling the police. There was a lot of education to be done there. They really thought it was part of our job.

    We changed that. With the work with MPs, like all of you, we were able to change that. Now we need to do the education on it.

    Go ahead, Danette.

    Yes, that is so true. I'm going to say that around that table, they're desperate. They're desperate for help. Our nurses are out there and they are giving all they can. They're working sometimes in unthinkable circumstances, but they're there because they care. They're there because they want to make a difference.

    It's about being recognized for what they're doing and what's happening. It's about how desperate they are for help. That the government would actually say, “Oh, my gosh, we see you, and this is not okay”—that's what sparks the emotion. It sparks the emotion in me. I mean, it's unthinkable. I have a beautiful granddaughter who I think will be a nurse one day. She's just going to be remarkable, but I don't even want her to be a nurse in these situations and in these circumstances.

    That needs to change. That needs to change.

     Go ahead, Ms. Donnelly.

    I want to echo what my colleague said. It's acknowledgement. If you spend so long feeling like this is the way it is, this is what I should expect and this is the level of violence that I should habituate to, it becomes background noise. It becomes just part of the business of doing your work.

    For someone to say, “Hey, maybe tolerating abuse isn't an expectation. Maybe you can go to work and not have someone sexually assault you” is identifying. It's saying, “Hey, we see that this is a problem and we want to talk about it.” That then allows nurses and paramedics to say, “Yes, it is a problem and these are the ways in which this violence has impacted me.”

    Asking that question is so incredibly powerful. Thank you for asking.

    I have 30 seconds.

    I just want to again thank our guests who are here today. Your membership, and the firefighters, the paramedics and all of those who have shared their very emotional stories with me.... You can't help but be impacted by these stories.

    I hope we'll do you right by passing Bill C-321—hopefully soon. I know the industry will share that message. It provides another vehicle to share the message that violence against our health care workers and first responders is not okay and it's not part of the job description.

    Thank you very much.

    Go ahead, Madam Dhillon.

    Thank you, Madam Chair.

    Thank you to all our witnesses for being here and sharing what everyone working in the health care system goes through. Thank you for representing pretty much all health care workers across Canada.

    My question is for all three of you. I'll put all the questions out there, and then you can take your turn one by one.

    We've heard your testimony. It's very painful to hear. Especially when you're serving people at their most vulnerable, you too are at your most vulnerable.

    Could you tell us, please, if the increase in violence started prepandemic or after the pandemic? Please explain to us why you think there is this surge of violence and how COVID exposed this vulnerability of health care workers.

    I'll let you start with that. If there's anything else, I'll follow up.

    Thank you to all of you.

    I'll try to be very quick.

    The first campaign against violence in health care was done in 1991 by the British Columbia Nurses' Union with posters reading “No to Violence”.

    We've come a long way with regard to changing the Criminal Code. We've come a long way in trying to change the culture, and we still have a long way to go. That's key. It's a long process, because the culture of health care is an interesting one, to be polite.

    The question goes to our other witnesses on Zoom.

    I'm going to be a little wonky. I hope you'll forgive me.

    When you ask if the violence is increasing, in the paramedic community we don't know because we don't have the data. We have lots of anecdotal evidence and there are lots of news reports around it.

    Is violence increasing? Maybe. Are our systems increasingly stretched and are we trying to do more and more with less and less? Absolutely. Are paramedics willing to talk about it more? One of my colleagues, Mandy Johnston, stood up and said “It's not okay. Violence is not okay”, and developed this entire program of research and this entire intervention strategy that has been able to bring these data to you.

    Is violence increasing? We don't know right now. What we know is that it's unacceptably high.

    It's definitely increasing, but it was a problem long before COVID.

    I think that since COVID, we've all seen changes in society that none of us really know.... We all have our theories of what's causing them, but honestly, the health care system is so stretched. The wait times, as Linda spoke to, and all of those things are adding to it.

    There's just a change in society, period. People are walking down the street and assaulting one another. Those things we see outside are also being reflected inside.

     Can you please tell us, with the already existing Criminal Code provisions when it comes to violence against health care workers being an aggravating factor, how this legislation will build upon that, and if any of the three of you see any distinction with this legislation?

    Thank you.

    Personally, I think it's enhancing Bill C-3. Bill C-3 is only two years old. We have to do education on it. We've been working with the justice department on how we can promote it. It has to be talked about.

    Could I hear from the other two witnesses on Zoom, please?

    I agree, Linda. Let's have a big campaign and promote the realization that violence to our nurses in this country will not be tolerated by the Government of Canada. Those are the types of things we need to see.

    I think it is enhancing this. I'm so glad to see our paramedics, our first responders, being included. We are a team. You can walk into an emergency room in northern B.C. and see that the paramedics are assisting in the emergency room because there's such a shortage. This needs to include everyone.

    For the last 30 seconds, Dr. Donnelly, you can take as long as you want.

    I would just say that paramedicine specifically sits at this really interesting nexus, because we're identified as public safety personnel and first responders, and we're also sort of identified as health care professionals. When we try to say whether this applies to paramedics, it isn't clear, because sometimes we hang out with fire and police and sometimes we hang out in the ED because we're helping our very worthy colleagues.

    When we think about the enhancement of this—

    I'm sorry to interrupt. Thank you so much.

    We're going to go for the final two minutes each.

    Go ahead, Mr. Fortin.

    Then we'll have Mr. Garrison.

    Thank you, Madam Chair.

    Again, thank you to all three witnesses.

    You talked about the increase in violence since the pandemic, despite the amendments to the Criminal Code in 2021. The level of violence has continued to increase over the past two years. I stand wholeheartedly behind you. My spouse is a teacher, and every week, she comes home with horror stories. She works in an elementary school. Social workers and teachers are being bitten and hit. There seems to be a real problem in our society. You all mentioned the need to educate people or perhaps do a better job of supporting them and making them aware of the problem. That's what I want to discuss with you.

    What can we do? What are the root causes of the problem? Why are people becoming more violent towards health workers, whatever their job, and teachers? In hospitals, is the problem due to the wait times? Is the issue that people are waiting too long? Is it access to care? Is it a lack of doctors and nurses? Is mental health to blame? You work in the field, so I'm interested in hearing your views. You can go first, Ms. Silas.

    What is the root cause of the increase in violence?

    Poor staffing is to blame. We are short-staffed everywhere. Even before the pandemic, we didn't have enough staff in high-demand units. The patient-to-nurse ratio has to be improved. We need a ratio that keeps people safe.

    The other witnesses may want to answer the question, so they can go ahead.

    One of the things we found in our research is that a significant number of the violence reports and a significant number of the assaults do involve people who have primarily mental health or substance use concerns identified as their primary problem code. That points to inadequate services for folks in those situations. That's leading them into crisis, which leads them into interaction with our public safety personnel and our nurses. We need to spend more time and energy focusing on taking care of those human beings.

    Thank you.

     Thank you.

    Our final round goes to Mr. Garrison.

    Thank you very much.

    I guess I need to make sure that Ms. Thomsen gets in on that last round here, because I think that's an important question, and we had some important suggestions.

    I think it's also the facilities themselves. We have mental health patients being placed sometimes for days on stretchers underneath busy ER counters with the lights on. We don't even have enough beds or enough staff. We have mental health patients who are being held longer than is actually even legal, in seclusion, because there are no beds to move them to. I think there's a whole system review that needs to be done.

     We need safe staffing in B.C. We just landed patient ratios, but they cannot come fast enough. I think the government needs to look at how we're going to incentivize people to come into the health care system. How are we going to help build our own and fix our own, whether it's nursing, paramedics or doctors? How are we going to create those within Canada?

     I know we're just about out of time.

    Let me just thank the witnesses again for their really strong representation of their members, both paramedics and nurses, and for making sure that they have our attention on this. I know you've been working on it for a long time. It's not new, but we certainly do appreciate the work you're doing.

    Thank you very much to all of our witnesses this afternoon.

    Colleagues, thank you very much.

    That wraps up the afternoon. I wish everybody a wonderful Thursday. We'll see you again next Tuesday. Thank you so much.

    The meeting is adjourned.