Bill C-40

Miscarriage of Justice Review Commission Act (David and Joyce Milgaard's Law)

An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews)

This enactment amends the Criminal Code to, among other things,
(a) establish an independent body to be called the Miscarriage of Justice Review Commission;
(b) replace the review process set out in Part XXI.1 with a process in which applications for reviews of findings and verdicts on the grounds of miscarriage of justice are made to the Commission instead of to the Minister of Justice;
(c) confer on the Commission powers of investigation to carry out its functions;
(d) provide that the Commission may direct a new trial or hearing or refer a matter to the court of appeal if it has reasonable grounds to conclude that a miscarriage of justice may have occurred and considers that it is in the interests of justice to do so;
(e) authorize the Commission to provide supports to applicants in need and to provide the public, including potential applicants, with information about its mandate and miscarriages of justice; and
(f) require the Commission to make and publish policies and to present and publish annual reports that include demographic and performance measurement data.
The enactment also makes consequential amendments to other Acts and repeals the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice .

Business of the House

[Steven MacKinnon, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, my daily attempts to reach out to opposition members and improve the efficiency of the business of the House are always rebuffed out of hand. The Conservatives would rather filibuster, raise totally fake questions of privilege, and use all sorts of delay tactics in the House to prevent the government from passing measures that are going to help Canadians in their daily lives.

Despite it all, I will continue to reach out to opposition members to make sure that the business of the House takes place efficiently.

This evening, we will deal with report stage of Bill C-64 respecting pharmacare. Tomorrow, we will commence second reading of Bill C-65, the electoral participation act. On Monday, we will call Bill C-64 again, this time at third reading stage.

I would also like to inform the House that next Tuesday and Thursday shall be allotted days. On Wednesday, we will consider second reading of Bill C‑61, an act respecting water, source water, drinking water, wastewater and related infrastructure on first nation lands.

Next week, we will also give priority to Bill C‑20, an act establishing the public complaints and review commission and amending certain acts and statutory instruments, and Bill C‑40, the miscarriage of justice review commission act, also known as David and Joyce Milgaard's law.

Department of Justice—Main Estimates, 2024-25

[Arif Virani, Liberal, Parkdale—High Park, ON]

Mr. Speaker, Mr. Lametti, whom I worked with as parliamentary secretary, did extraordinary work during his more than four years in the position. I can note that the context we are discussing now illustrates the need to completely change the process with Bill C‑40—

[Arif Virani, Liberal, Parkdale—High Park, ON]

Mr. Speaker, Bill C-40 represents a staggering change in the way we envisage wrongful convictions in this country. It would provide a new mechanism, a review commission, which would have the tools and resources to go out and find the cases. In the same time period, in the U.K., within a 20-year time frame, about 500 cases were unearthed that dealt with wrongful convictions. In the same time period in Canada, 27 cases were found.

I know the member to be a strong advocate of the indigenous community in this country. Among those 27 cases in Canada, five involved Black or indigenous men. Given the severe overrepresentation of Black and indigenous people in our justice system, that is a completely disproportionate statistic that is statistically improbable. Does it mean that, in the U.K., they are wrongfully convicting more people than we are in Canada? No, I think it means that we are not finding the cases here in Canada.

The bill, unfortunately, was obstructed at the justice committee, but it has now finally left the justice committee. Through it, we have the ability to make a fundamental change in how we deal with wrongful convictions in this country, providing the resources and the outreach capability to find the cases and bring innocent men and women to justice in this country, something that is long overdue.

[Vance Badawey, Liberal, Niagara Centre, ON]

Madam Chair, one of the limits on access to justice is that many people do not know that there is a wrongful convictions review process in the first place. Often they do not have the resources to apply in the current process. Can the minister please discuss the proactive outreach measures in Bill C-40 to help ensure that those in need can in fact apply?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you very much, Madam Chair.

Minister, with all due respect, you didn't have time to answer my question earlier. I'll just ask it again. I'd like a quick answer, ideally yes or no, because we only have two and a half minutes.

Are you for or against a bilingualism requirement for the nine commissioners to be appointed to the miscarriage of justice review commission under Bill C‑40, that this committee has just passed?

[Arif Virani, Liberal, Parkdale—High Park, ON]

We are definitely in favour of Bill C‑40.

We were disappointed by the Conservatives' filibustering tactics during consideration of this bill, in terms of how cases or files are handled for persons who speak French. Of course, translation will still be part of this new commission's procedures. That will be helpful to complainants or people who want to request a review.

With respect to Bill S‑210, I would like to point out something that is not true—

Justice and Human Rights

[Lena Metlege Diab, Liberal, Halifax West, NS]

Mr. Speaker, I have the honour to present, in both official languages, the 19th report of the Standing Committee on Justice and Human Rights in relation to Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews).

The committee has studied the bill and has decided to report the bill back to the House with amendments.

Polish Heritage Month

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Madam Speaker, it is a great pleasure for me to speak to Motion No. 75. It is also a great pleasure to see you back in the chair and to see your smiling face again.

It is only right for us to adopt this motion. There is just one question we should be asking ourselves. Given how long the Polish people and Polish culture have been contributing strength and vitality to our societies, and given that they originated many of the institutions that exist in our society, why has this not been done before? It is never too late to do the right thing, so let us get to it. We will vote in favour of the motion to recognize the outstanding contributions the Polish nation has made to the Canadian and Quebec nations.

As members know, a lot of people in Poland speak French, which creates a special bond between Quebeckers and the Polish people. It draws us closer together. A total of 79,000 people in Quebec, 55,000 of whom were born there, claim Polish ancestry. That is a lot of people, and we share a history, because they have been here for a long time.

I know that sometimes my colleagues in the House get tired of hearing us talk about the history of Quebec and the important milestones, but we talk about it all the time because we know that, deep down, our colleagues really like hearing it. When we talk about the milestones associated with the Quiet Revolution, the Charter of the French Language, and so on, it should be noted that people of Polish descent were there with us. They have been living in Quebec since 1752.

At that time, in 1752, this land was still New France, not Canada. Dominique Debartzch, a fur trader, arrived in 1752. Charles Blaskowitz followed soon after in 1757. These people began contributing to our collective wealth in the New France era. That is amazing.

My colleague also mentioned one of the most remarkable individuals who founded the Polish Institute of Arts and Sciences in Canada, an important institution in Quebec, in 1943. I am talking about Wanda Stachiewicz. Before arriving in Quebec, she was a member of the resistance. I would also point out that she was a mother of three. I would like the members present, and anyone else who is tuning in, especially anyone who is a parent, to take a few seconds to imagine what that might be like. Even those who are not parents can still imagine what it must have been like to be a member of the resistance during the Second World War, while at the same time having three children to care for.

These people left their homeland to come here, not always by choice. We are pleased that they stayed, obviously, but it is important to understand the sacrifice, the burden, and to recognize this value. I do not think I am wrong to say today that the Polish people probably understand the value of independence better than any other people, because they have lost it several times, because it was threatened with violence, with occupation. It takes a lot of resilience to withstand that. I commend them for their strength, their courage and their tenacity. I tip my hat to them and thank them for participating in building a better society here and now.

The people of Poland are such a big part of Quebec culture that they are also part of our literature. I want to mention a famous novel by Arlette Cousture, Ces enfants d'ailleurs, which tells the story of a family who flee their homeland to come live here, near a wide river, in the colourful and inviting city of Montreal. Some of that colour is supplied by the Polish community. At the end of the day, it makes for a beautiful mosaic.

I am very happy to contribute to making May 3 “Polish Constitution Day” and the month of May every year “Polish Heritage Month”.

I willingly promise to participate in the celebrations, and I invite everyone to join in. Obviously, they will commemorate May 3, 1791, the date on which the Polish constitution was adopted, some 20 years after the disgraceful partition of the Polish territory by Russia and Germany. The Polish constitution was inspired by the French Revolution and the Enlightenment, which is based on the values of reason, freedom and the rule of law. I mentioned it earlier, but I want to reiterate that these people really know the meaning of independence.

Of course, at the same time, in Quebec, we were following a very different path. Far be it from me to compare Quebeckers' experience with that of the Polish people. What we experienced was not as intense, but we share a common pursuit of growing, thriving and becoming independent as a nation. I am sure that when that day comes, we will get there with the help of Quebec's Polish community, which will continue to enrich our history and our lives.

We are going to vote in favour of the motion, but there is one small concern. It is about the wording, which I think has a Canadian slant. It refers to the idea of multiculturalism, as if we are drowning in it. Quebec's vision is not in opposition to that, it is just different. Our vision is interculturalism. We know that the people of Poland have contributed plenty of richness to Quebec, and there are aspects that we need to integrate into our values. They are generous and hard-working. We are happy to live alongside them, and I am very grateful to them.

Our respective societies, as Canadians and Quebeckers, who share this Parliament for the time being, are more than happy to celebrate the Polish nation. The Bloc Québécois will be enthusiastically voting in favour of this motion and celebrating the richness of this culture. It is important to recognize other peoples.

Certain members may have been offended by my talk of Quebec's political independence this evening. It bothers some people, but others are used to it. Those of us hoping things might be different someday might have to talk to each other. Just today, in fact, a federal commission was struck pursuant to Bill C‑40, and there is no requirement for its judges to be bilingual. I do not think that should happen in a country with two official languages, French and English, yet it does. I saw it on my news feed, and I could not help but talk about the words of my colleague from Rivière‑du‑Nord, who represents the Bloc Québécois at the Standing Committee on Justice and Human Rights and who spoke out against that.

Anyway, we think celebrating people of Polish origin is absolutely fantastic. We are happy to live with them and grow with them because, now that we live together, we have shared lives, shared experiences. That is how we build a just and equitable society. I also want to comment on their recognition of the principle of independence, which we believe in, too, of course, and we hope for that same experience in a sovereign Quebec.

With the bit of time I have left, I am going to take a risk. I hope, if people can hear me, that they will excuse my accent. Dobry wieczor pozdrawiam i dziekuje.

I will translate what I just said to make sure it was understood. I just said, “Good evening, best regards and thank you”.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

The purpose of amendment BQ‑1 is to correct a defect in Bill C‑40, which fortunately prescribes certain requirements for the commissioners who would be appointed to the commission but unfortunately omits the requirement to ensure that those commissioners are clearly able to speak and understand both official languages.

The Barreau du Québec raised this point in the brief it submitted to the committee. I think this is an important argument that must be taken into consideration. We propose that it be included in the bill.

I believe the amendment is self-explanatory.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

I have to admit that Ms. Besner's answer has convinced me. I wouldn't have raised my hand if I had heard her earlier.

I understand the argument that a real possibility may be interpreted as being less restrictive than reasonable grounds. However—and I say this respectfully—I don't agree with Mr. Housefather or Mr. Garrison on this point. I think the requirement of having reasonable grounds to believe that a miscarriage of justice may have occurred could result in more investigations than what amendment CPC‑1 proposes.

What Ms. Besner's telling us is really interesting. At the stage where you decide whether to conduct an investigation, you ask yourself whether there are reasonable grounds to believe that a miscarriage may have occurred or whether it's in the interests of justice to conduct an investigation. Those are the two conditions that must be considered before looking into the case.

However, that doesn't mean you order a new trial. Proposed paragraph 696.6(2) provides that both conditions must be met for the commission to remedy the situation following an investigation. It's not “or in the interests of justice”, but rather “in the interests of justice”. Furthermore, the first condition is then that there must be reasonable grounds to conclude, not to believe, that there has been a miscarriage, which is also more restrictive. Consequently, it seems to me that the objective of our Conservative colleagues' amendment CPC‑1 is already met by proposed paragraph 696.6(2), which would help prevent abuses.

If we retain the present wording of Bill C‑40, we will hear more cases in which miscarriages of justice may have occurred, which I think is wise. Consequently, I'm going to vote against CPC‑1.

[Rob Moore, Conservative, Fundy Royal, NB]

Believe it or not, Madam Chair, I'm not going to belabour the point on this because I've had the opportunity to speak to CPC-1 in the context of some of the other bills.

I think it's important. Some mention has been made of other systems, and I would quickly like to talk about our own system. The current system deals with scenarios where the Minister of Justice evaluates applications and can move forward with remedies if he or she feels that a miscarriage of justice likely occurred.

The United Kingdom has had a commission for some time now and, as I mentioned, experienced a flood of applications once the commission opened its doors. They have the threshold of a real possibility that a wrongful conviction or miscarriage of justice occurred.

In North Carolina, from where we heard testimony, factual innocence plays a part in the application and remedy. In this legislation, Bill C-40, factual innocence is not required. What is the threshold being proposed in Bill C-40? It's that a miscarriage of justice or wrongful conviction may have occurred. In my opinion, one, that threshold is too low, and two, it's a fact that it's lower than any other threshold in any jurisdiction we looked at, including our own.

CPC-1 would change the threshold in Bill C-40 at the investigative phase from “that a miscarriage of justice may have occurred” to “a real possibility that a miscarriage of justice has occurred”. We're replicating a peer country's wording, the United Kingdom's standard phrasing of “real possibility”.

Why do I suggest this? We want to have a system where a miscarriage of justice application would be exceptional. The process we have is strenuous. The accused can avail themselves of legal aid and all the charter rights to which they're afforded. I've mentioned before that I look at everything we do at this committee through the lens of the victims who have appeared before our committee. The victims and their families who have appeared at this committee have said that the judicial process itself revictimizes them. I remember one of them very clearly saying that we do not have a justice system in Canada; we have a legal system. That's how she felt coming out of the other end of the process.

In light of what we've recently heard from former minister Lametti about judicial vacancies, in light of what the chief justice of the Supreme Court has said about judicial vacancies, in light of the Jordan principle, in light of what all of us are hearing from our constituents about delays in the system and in light of the extreme stress that's put on victims and their families going through the process, the threshold whereby we say that someone is going to get another crack at the whole thing, they're going to get a new trial or they're going to go to the court of appeal has to be higher than a miscarriage of justice. That is why CPC-1 mirrors the U.K. standard that there's a real possibility that a miscarriage of justice occurred.

Thank you.

[Julie Besner]

I believe I mentioned at a previous meeting that Mr. Housefather had described the amendment very accurately. Consequently, I have nothing to correct on that score. What he describes is an exception to the general obligation for applicants to have exhausted their appeal rights. That will still be a requirement, but the amendment provides that exceptions may be contemplated if the commission takes into consideration the factors enumerated in subsection 696.4(4) of the bill. They are the relevant factors that, according to the case law, are to be considered on this specific issue.

I would add two more factors in response to the comments made and questions asked by other members of the committee.

As regards frivolous applications filed with the commission, the bill contains two provisions that include the concept of the interests of justice. This measure must be applied in order to enable the commission to refrain from using its resources to conduct an investigation or to refer cases for new appeals if it isn't really in the interests of justice to do so. Scotland has included this idea in its act and uses it for that purpose. It should be considered.

Similarly, one of the factors that the commission must take into consideration in reaching its final decision and that appear further on in the bill, on page 6, already exists in the present statute. It has been carried over to Bill C‑40: the application must not be intended to serve as a further appeal and the remedies set forth must be extraordinary remedies. That's already in the present act, and will remain so, to reflect the fact that the concept of miscarriage of justice review must be limited to cases in which new evidence calls into question the reliability of a verdict rendered by a court. It's a safety valve, an extraordinary remedy. The idea is not to question all the evidence considered or issues decided by the courts.

I hope that will assist you in your discussions.

[Julie Besner, Senior Counsel, Public Law and Legislative Services Sector, Department of Justice]

Thank you.

If my understanding of the question is correct, the member wants to know whether it's possible to provide in Bill C‑40 for the commission to take into consideration the amount of time that has elapsed since the deadline prescribed by the court for filing an appeal has expired. That could definitely be taken into consideration, and if the committee wished to adopt such a provision, paragraph 696.4(4)(a) would be the best place to insert it.

I'm going to switch to English because that's the language I use to frame this in my mind.

It could say, “the amount of time that has passed since the time within which to file an appeal has expired.” A different formulation to get at that point might be possible.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

I entirely agree with Mr. Fortin, but I believe that what he's proposing is already in Bill C‑40. As I told Mr. Caputo, I agree with him too, but no one can file an application with the Miscarriage of Justice Review Commission the day after a superior court renders a decision.

I encourage you to consider the exception provided for in the new paragraph 696.4(4) proposed in clause 3 of the bill.

If you don't mind, Madam Chair, I'll read it out so everybody has it. Right now it says:

Despite paragraph (3)(b), the Commission may decide that the application is admissible even if the finding or verdict was not appealed to the Supreme Court of Canada.

Then it would say:

...was not appealed to the court of appeal or the Supreme Court of Canada. In making the decision, the Commission must take into account

(a) the amount of time that has passed since the final judgment of the trial court..."

Basically, the day after would not.... Nobody's going to say that it just happened yesterday, so now they should take it. It should be that you should appeal.

Then it says:

(b) the reasons why the finding or verdict was not appealed...

(c) whether it would serve a useful purpose for an application to be made for an extension of the period within which a notice of appeal or a notice of application for leave to appeal...may be served and filed...

To me, it already says the intention is that you should have exhausted your appeals if you still could have done so. It would only be a matter of the appeal no longer being permissible. That's when they would even look at this. They would generally say to go back and appeal. I think it's taken care of.

The issue Mr. Moore raised is different. It's what the threshold should be overall. However, on the question of whether or not you should be allowed to hear a case that, let's say, happened 15 years ago and there are no appeal rights, I don't think it should matter whether you appeal to the court of appeal or the Supreme Court if you believe that whatever standard the law has has been met. That's my feeling.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting number 92 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 on miscarriage of justice reviews.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. We have members on Zoom and others are in person.

I believe we have a new member with us.

Marilyn Gladu, welcome to our committee.

I believe all members are knowledgeable about the technology and how it works and about interpretation. Just as a reminder, all comments are to be addressed through the chair, please. We have members in the room. For those on Zoom, with the help of the clerk and the Table, we will watch for hands going up on the screen to ensure that we don't miss anyone.

I wish to inform you that all the sound tests were completed successfully.

With us in person today is Madam Anna Dekker.

Ms. Anna Dekker is Senior Counsel and Deputy Director of the Public Law and Legislative Services Sector.

We may be joined by someone else, but right now we will continue with our study.

We will resume consideration of Bill C-40 and resume debate on clause 3.

NDP-1 was withdrawn by unanimous consent on December 14, 2023.

I will ask Mr. Housefather if he wants to move LIB-1.

(On clause 3)