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 .

Bill C‑40—Time Allocation Motion

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

moved:

That, 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), not more than five further hours shall be allotted to the consideration at report stage and five hours shall be allotted to the consideration at third reading stage of the bill; and

That, at the expiry of the five hours provided for the consideration at report stage and at the expiry of the five hours provided for the consideration at third reading stage of the said bill, any proceedings before the House shall be interrupted, if required for the purpose of this order, and, in turn, every question necessary for the disposal of the said stage of the bill then under consideration shall be put forthwith and successively, without further debate or amendment.

The Public Complaints and Review Commission Act

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Mr. Speaker, I am very pleased to speak, for the last time I hope, to Bill C‑20, which we have helped to improve over the last few weeks and months.

As I said last week, this was one of the first bills I had the pleasure of working on in the Standing Committee on Public Safety and National Security, and we were indeed able to improve it.

Last week, I talked about the amendments proposed by the Bloc Québécois that were adopted and made this bill more transparent. I will come back to that briefly, but this evening I would like to focus on the amendments that we adopted as a committee.

Amendments were proposed by all the parties, meaning the NDP, the Conservative Party and the government. It always makes me smile or even laugh a bit to see the government proposing amendments to its own bills. It is as though they did not take the time to think bills through properly before introducing them, and when they saw the result, they figured they could have done things differently and therefore decided to propose amendments to their own bills.

Nevertheless, I believe that, when we have an opportunity to make something better, we must do so. The government helped improve its own bill. So much the better. The parties actually did work well together. Last week, I talked about how long it took for the government to make this bill a priority. It was the third attempt. Two bills had been introduced in previous parliaments.

There was also a lot of systematic obstruction by the Conservatives, who wanted to focus on another study instead of Bill C‑20. We got a lot of emails because of that. A lot of people who were keeping a close eye on the work of the Standing Committee on Public Safety and National Security and watching this bill progress reached out to us.

They also contacted the clerk of the committee and to the chair of the committee, saying it made no sense for parliamentarians to talk about anything and everything except Bill C‑20, when people, citizens and Canadian travellers had been victimized by the behaviour of certain Canada Border Services Agency officers and were entitled to some justice. They had a right to be heard, at least, and to have their complaints processed in a timely manner.

We were finally able to study this bill. I hope that it will be passed as soon as possible and that the Senate will complete its work quickly so that this commission can finally get off the ground.

What is more, it has been said many times that the CBSA is still the only Canadian public safety organization that does not have an independent or external public complaints commission. Establishing one is long overdue. In fact, Justice O'Connor recommended this, as has been mentioned here a number of times.

He recommended that 20 years ago. He said back in 2006 that an independent process was needed to manage public complaints. The government finally heeded that call 20 years later, and we are examining that bill today.

This new commission will handle public complaints regarding the CBSA, which does not already have such a process, as well as complaints about the RCMP. The Civilian Review and Complaints Commission for the RCMP, or CRCC, already exists. Representatives from that body appeared before the committee. The government simply decided to combine the two into a single commission.

I heard my government colleague say earlier that combining the two commissions into one seemed quite simply the best thing to do. It is not a bad idea, I admit, but the current chairperson of the CRCC told the parliamentary committee during the hearings that she already does not have sufficient or adequate resources to deal with all the complaints within a reasonable timeframe. We were talking about financial resources, of course, but also human resources.

I am wondering how the government is going to create a single commission to deal with complaints for both the RCMP and the CBSA. I hope that, in creating this new commission, the government will give it the resources it needs to do its job properly so that victims are heard quickly.

This process can already be long and complicated. When a person is the victim of harm caused by a border services officer, they may not decide to file a complaint until a few months or even a year or two later. They may not be ready to file a complaint the day after the harm is done. All of these processes can be extremely long. If the commission does not have the necessary resources to deal with a case in a timely manner, that will obviously make the process even longer. That is not pleasant for those who decide to file a complaint.

In recent years, the media has reported on many cases of misconduct on the part of some CBSA officers. These officers have a lot of power, as we know, because they can detain and search Canadians and they can deport people. It is therefore rather surprising that there is still no commission to review public complaints.

Conducting internal investigations in this type of organization is always an option, but the process is not wholly transparent and some of the information is not available. For the public, being able to turn to an external organization that is independent of these security organizations could help boost confidence in Canada's public safety institutions.

The media has reported numerous cases involving searches of travellers' electronic devices and racist and rude remarks made by some officers toward clients and travellers. We also cannot ignore the many other situations that likely occurred but were not reported in the media. Some organizations told the parliamentary committee to imagine all the people who decide not to file a complaint out of fear of harm or consequences. For example, an immigrant or a refugee who would be sent back to their country of origin in the meantime may feel they lack the necessary tools or may fear that complaining could hurt their immigration application, so they choose not to file a complaint. All of these specific cases were worth examining to determine effective ways to change or improve the bill to make it a more transparent piece of legislation.

I touched on why it was important that this commission be created. Obviously, it will allow people to benefit from a truly transparent process. If someone is not satisfied with the results of the internal investigation by the CBSA or the RCMP, they will be able to ask the commission to look into the complaint. The commission will be able to present its findings or recommendations. However, it is important to understand that the commission will not have the power to compel the CBSA or the RCMP to take disciplinary action. Then again, these organizations will have to report to the minister and justify their response to the commission's recommendations. A report will then be tabled in the House and the Senate. This will ensure a certain degree of accountability, even if the commission cannot take any action in response to the acts committed. It will be up to the CBSA or the RCMP to take those measures, for example, with respect to the employees identified.

An interesting aspect of Bill C‑20 is that it aims to reduce the RCMP's existing complaint processing times and make the complaint processing time for the CBSA as reasonable as possible.

Who will sit on this commission? As I said last week, it will not be former members of the RCMP or the CBSA. The proposal that was adopted by the entire Standing Committee on Public Safety and National Security is that the members who sit on this commission should reflect the diversity of society. When I spoke about this last week, my colleague from Rivière-du-Nord asked if we had moved an amendment to ensure that the members of the commission were bilingual. I told him that that was a good question, but that I had not tabled such an amendment because it seemed to be a no-brainer. This is Canada, there are two official languages, and I figured that the members of this commission would obviously be bilingual.

He went through something during the study of Bill C‑40, which seeks to establish the miscarriage of justice review commission. He moved an amendment to ensure that decision-makers under this act will be bilingual. Believe it or not, some committee members rejected it. It is unbelievable. Personally, I thought it was not even worth moving that kind of amendment because those people would definitely be bilingual. Interestingly enough, if this act is reviewed in the near future, I will make sure to move such an amendment. At the very least, when this commission is set up, I will look at it very closely. I want to ensure that the people appointed to the commission are representative of society, obviously, but also bilingual. That is a very important point, and I thank my colleague for bringing it up.

One of the amendments presented during the study seeks to authorize third parties to file complaints on behalf of citizens or travellers. I explained it in this way. For immigrants and refugees, there may be a language barrier. There may be people outside the country who fear reprisals, as I mentioned. Maybe the individual can turn to someone they trust or an organization that takes care of complaints. For example, members of the Quebec Immigration Lawyers Association can do this work on behalf of people who want to file a complaint. It is their job. They have the necessary expertise and they can support these people. Adding this to the bill was essential. To us, third parties have to be able to review specified activities. Fortunately, this was adopted by the committee.

We also removed a paragraph from the bill requiring the commission to be satisfied that it had sufficient resources to review a complaint. There was something vague about the wording. I talked about a lack of financial or human resources earlier. We were afraid the commission might say it could not review a particular complaint because it lacked the necessary resources. There was something unclear or missing there that we wanted to clarify to make sure the commission always gets sufficient resources to examine every complaint it receives. We certainly hope the government will put its money where its mouth is and give the commission the funds it needs to carry out its mandate.

We also added a requirement that copies of the commission's correspondence be sent to the complainant's legal representative. Earlier, I talked about third parties that can be involved in the process. The same thing applies to legal representatives. For example, if an organization is representing the complainant, but correspondence is always sent to the complainant instead of the legal representative, that is a problem, so that has to be fixed in the bill.

Finally, some aspects of the refusal to investigate were amended thanks to the Bloc Québécois. The commission will now be able to refuse a complaint rather than being required to refuse it. Sometimes a few words can make a big difference. This applies to cases where other recourse would be available to an individual. The commission can choose to refuse the complaint, but it will not be required to refuse it. We felt it was important to amend that.

I am going to talk about what I feel are the most important amendments the committee adopted to make this whole complaint process more transparent. Unions were included in establishing standards for handling complaints, and a one-year time limit for handling complaints was also added. One year may seem like a long time, but given the number of complaints filed per year, it was enough to give the commission time to investigate a complaint. Knowing that it will not go on for longer than a year may take some stress off the complainant. If the commission decides that it really needs more than a year to review a complaint, it will be entitled to that, as long as it explains why it needs more time.

We then adopted an amendment that forces the minister to provide a copy of the commission's report to the organization in question, either the RCMP or the CBSA, on the same day the minister receives it. Previously, in the bill as originally drafted, the minister would only do so if the minister considered it appropriate. In terms of accountability, we thought it would be a good idea for the agencies concerned to receive the reports as quickly as possible, so we amended that.

The government also made a suggestion that the number of national security-related complaints be stated in the annual report. We thought that was an interesting suggestion. We adopted it, again for transparency. Next, the chairperson of the commission has to publish the memorandum of understanding respecting access to protected information on the website. I am obviously getting into the more specific details of the bill, but we adopted this amendment, once again to ensure more transparency. This enhances the availability of certain information on the commission's web site.

We also added a two-year deadline for filing a complaint. As I was explaining earlier, a person will have up to two years after the harm to file a complaint. Sometimes people hesitate out of confusion, then realize that the deadline has passed and they cannot file a complaint because the incident happened too long ago. We extended the deadline to give complainants some flexibility. The commission will have the option of extending the deadline for filing a complaint and, if it chooses not to, it will be required to provide the reason it is not extending the deadline.

The NDP proposed a very worthwhile amendment. I will give the NDP credit where credit is due. The complaints that are filed cannot be subject to non-disclosure agreements. Members will recall the case of Janet Merlot and the class action lawsuit filed by hundreds of women who were the victims of sexual harassment, intimidation and discrimination during their career with the RCMP. Under the act governing the RCMP's Civilian Review and Complaints Commission, complaints could be dealt with out of court and non-disclosure agreements could be signed. We made sure that this legislation banned non-disclosure agreements outright in order to keep things as transparent as possible.

The second-last amendment that I want to mention is this: If a complainant decides to withdraw their complaint, they have to explain to the commission why they are doing so. That is for feedback purposes and to help the commission understand why a complainant would want to withdraw their complaint. Is it because the process is taking too long, for example? That would enable the commission to improve how it deals with complaints. We thought it was a good idea to add that. Finally, the union representatives of an RCMP or CBSA employee will have the opportunity to make representations to the commission, which was not the case before. The unions were somewhat neglected in this bill, so we found a way to include them because it is important to get their opinion.

Overall, Bill C‑20 was an interesting, well-crafted, long-awaited bill, but I think all the parties helped improve it in the best possible way, making it as transparent as possible. As I have mentioned before, we already have ideas on how to improve it even more once the act is reviewed. The goal is to pass it as quickly as possible so that complainants, the people harmed by border services officers, can receive a hearing, get their complaints processed as quickly as possible, and gain trust, especially in Canada's public safety institutions.

I hope this bill will be passed as soon as possible.

Bill C‑40—Notice of Time Allocation Motion

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

Mr. Speaker, an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to report stage and third reading of 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).

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stages of the bill.

Motions in Amendment

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, I apologize to my friend. I do not speak French very well, so it is hard for me to express myself on this issue. I will therefore speak in English. I am sorry.

The importance of the French language is vital. The riding of Edmonton Strathcona, which I am so happy to represent, has the French Quarter in it. In fact, 20% of our population identify as francophone in our communities.

When I spoke today of Bill C-40, one of the things I addressed is that there is a disproportionate impact on indigenous women. For me, it is important that every Canadian, whether they are francophone, indigenous or whatever region of the country they are from, is able to be represented adequately. I would need to ensure that there were services available in both official languages.

I would also want to make sure that all of those people who are on the commission adequately represent the population of Canada, particularly those who are marginalized and who are deeply impacted by our criminal justice system.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Madam Speaker, I appreciate my colleague from Edmonton Strathcona so much. We work together on several files involving international injustices and human rights. We work together amazingly well.

Now, however, we may have a disagreement over Bill C‑40. As we have mentioned throughout this debate this evening, we were very disappointed with the way the NDP members voted on a Bloc Québécois amendment that simply called for the commissioners of this future commission to be proficient in English and French, the two official languages.

Since we have spent all evening talking about justice, equity and equality, does my colleague not believe that, unfortunately, there may be an injustice when some francophones apply to this commission to defend their rights and are faced with commissioners who do not speak their language?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, I rise this evening to speak in support of Bill C-40, an act to amend the Criminal Code. This miscarriage of justice bill represents a critical step in our ongoing efforts to reform the criminal justice system and to address the systemic inequities that have long plagued it, particularly for indigenous people, racialized communities and marginalized Canadians.

For the better part of a decade, the New Democrats have called for the establishment of an independent commission to investigate wrongful convictions. In late 2021, we supported expediting Bill C-5 in return for the Liberals' promise to create this commission, which Bill C-40 finally delivers on. Justice delayed is justice denied, so we must act swiftly to ensure that those who are wrongfully convicted have a pathway to justice free from the delays and limitations of the current system.

The current process, where the Minister of Justice reviews applications for miscarriages of justice, has proven inadequate. Each year, dozens of applications are filed, yet only a handful proceed to investigation. Bill C-40 would address this by shifting the review power to an independent miscarriage of justice review commission, which would have the authority to direct new trials or hearings, or refer matters to a court of appeal. This independent body would not be an alternative to the criminal justice system, but an essential adjunct that would create a fair and impartial review process.

The commission would consist of a chief commissioner and four to eight other commissioners appointed to reflect the diversity of Canadian society, considering gender equality and the overrepresentation of indigenous and Black persons in the criminal justice system. This diverse composition is crucial for building a commission that understands the unique challenges faced by marginalized communities.

Indigenous women in particular have disproportionately suffered miscarriages of justice. They are often charged, prosecuted, convicted and imprisoned due to systemic failures within the criminal justice system and the broader societal failure to protect them from racism, sexism and violence. According to the Senate report on the injustices experienced by indigenous women, expert witnesses have repeatedly highlighted these systemic issues. Bill C-40 is a necessary step toward addressing these deeply rooted injustices.

New Democrats worked tirelessly to improve Bill C-40 at the committee stage. We supported amendments that would ensure applicants can apply to the commission without having to receive a verdict from a court of appeal or the Supreme Court of Canada. This would remove a significant barrier for those who are wrongfully convicted but lacking the resources to continue lengthy legal battles. We also proposed amendments to empower the commission to make recommendations addressing systemic issues that lead to miscarriages of justice. This proactive approach can help prevent future injustices. Additionally, we ensured that Correctional Service Canada and the Parole Board of Canada would be informed of the importance of not obstructing applicants from accessing programs and services due to their review applications.

It is important to note that the last significant reform to Canada's conviction review process was in 2002. Since then, we have seen the establishment of similar independent commissions in the U.K. and New Zealand, demonstrating the efficacy of such bodies in addressing wrongful convictions. Canada must follow suit and ensure timely justice for those who are wrongly convicted.

Bill C-40 has received support from various stakeholders, including the Canadian Association of Elizabeth Fry Societies, the University of British Columbia's innocence project, and Innocence Canada. These organizations, along with experts like Dr. Kathryn Campbell from the University of Ottawa, have been instrumental in advocating for this crucial reform.

While we commend the Liberals for bringing this bill forward, it is long overdue. The delays in tabling and debating this bill are unjustifiable, particularly given the urgency of addressing wrongful convictions. Many individuals continue to serve lengthy sentences due to miscarriages of justice, and every day of delay is a day too long for them.

The Conservatives have obstructed this process at every turn with filibusters and threats of further delays. We urge all parties to put aside partisan differences and work together to ensure the swift passage of Bill C-40. Time is of the essence, and we must ensure that this bill receives royal assent before the summer parliamentary recess.

Bill C-40 offers a long overdue pathway for those wrongfully convicted to seek justice. It represents a significant step in addressing the historic and systematic injustices within our criminal justice system. New Democrats are in support of this bill and call on all members of the House to do the same. Let us move forward with a shared commitment to justice, equity and the rule of law.

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, I rise in the House today to speak to a very important topic. I am referring to the creation of an independent commission to review miscarriages of justice under Bill C‑40. The bill is concrete and positive, a fact that deserves mention, considering it is not always a Liberal Party specialty. That is a rare occurrence indeed, as we know.

In 2021, the Minister of Justice commissioned a report on the current criminal conviction system. The findings of this report showed that awareness about the danger of wrongful convictions has increased in Canada and the world. None of the many people consulted for this report opposed the creation of a new independent body at arm's length from the government to replace the federal Minister of Justice in hearing applications for remedies for wrongful convictions.

This bill demonstrates a willingness to ensure that decisions about people who have been convicted are more independent and to strengthen public confidence in institutions. The reform proposed by Bill C‑40 is a very good initiative, and the Bloc Québécois believes that creating this commission will have several positive effects.

First of all, it will allow for greater independence between the legal and political branches. The bill takes the discretion away from the justice minister and gives it to the commission. This is a step in the right direction, although it comes a little late, given that the Liberal government waited until after the media had reported on shocking cases of prisoners waiting months, even years, to have a miscarriage of justice reviewed. In the United Kingdom, for example, this system of having an independent commission review miscarriages of justice was set up 25 years ago. We are 25 years behind. This is not exactly a reason to pat ourselves on the back and break out the champagne.

This independence was called into question by the recent revelations about former justice minister David Lametti, reinforcing the need for the power to order a new trial to be taken out of the hands of ministers and given to an independent body, specifically the new miscarriage of justice review commission.

Let me refresh my colleagues' memories. The former justice minister ordered a new trial in the case of Justice Delisle, contrary to the recommendations of the Criminal Conviction Review Group, which said that no miscarriage of justice had occurred. This finding was also corroborated by Quebec's director of criminal and penal prosecutions.

This decision also came as a surprise to Quebec's director of criminal and penal prosecutions, Patrick Michel, who suspects that the minister's use of power was arbitrary rather than discretionary. To add insult to injury, the sponsor of this bill is none other than the former minister of justice and former member for LaSalle—Émard—Verdun, which proves the importance of the bill's existence because of his actions.

The Bloc Québécois would like to mention that the passage of Bill C-40 will not do anything to change its desire to investigate this matter at the Standing Committee on Justice and Human Rights. This is about maintaining the public's confidence in our justice system. Favouritism has no place in our courts.

Since Bill C‑40 seeks to take away the minister's power to order a new trial and instead give that power to commissioners, we think that decisions like the one made by former minister Lametti will not happen again and that this will help increase the public's confidence in the justice system.

The bill will also guarantee everyone access to the commission and a referral to legal services so that everyone, particularly the most vulnerable, will have true access to justice. The history of our courts and the recent revelations regarding the former justice minister remind us that we need to improve the judicial review process. Once again, this is about the public's confidence in our courts and our justice system.

Let us remember that this bill is named after the late David Milgaard. The Milgaard case is important because it reminds us that our courts, like any institution, are sometimes fallible. We need mechanisms to ensure that, when mistakes are made, they can be corrected. Just as a reminder, Milgaard was a young man who was convicted and sentenced to 23 years in prison for the murder of Gail Miller, a crime he never committed.

Because Milgaard and his mother, Joyce, defended David's innocence so tirelessly, we now understand the need for a judicial review mechanism. It is thanks to their campaign and the efforts of people like Donald Marshall, Guy Paul Morin, Thomas Sophonow and James Driskell that we are now working to improve our justice system. Every one of their stories is one more reason motivating us to create this commission. We thank them for fighting for a better justice system.

Finally, even though the Bloc Québécois is voting in favour of the bill, we must point out the hypocrisy of the Liberals and the NDP when it comes to the French language. My colleague, the member for Rivière-du-Nord, moved an amendment during clause-by-clause review of the bill to require the commissioners who are appointed to be fluent in both official languages. That was too much to ask. For the Liberals, the Conservatives and the NDP, the official languages are good for speeches and campaign days, but within the Canadian government, the Canadian public service or our courts, they are optional.

The NDP boast about defending the idea of bilingual judges since 2008, but they rejected the idea of requiring the commissioners heading this independent commission to be bilingual, and they voted against their convictions. The Liberals boast about being the first government to recognize the decline in French, but they voted against the idea of bilingual judges. We saw the same thing happen with the appointment of the unilingual anglophone Lieutenant Governor of New Brunswick, which is the only bilingual province in Canada. That is not to mention the appointment of the Governor General, who does not speak a word of French. To be fair, she knows how to say “bonjour”, and I think her French has improved. Now she knows how to say, “Comment ça va?”

Anyone who believes that the Liberals are making French a priority must be dreaming. Quebec's motto, however, is Je me souviens, which means “I remember”. On some level, it came as no surprise to see the Conservatives' contempt for French. After all, this was the party that once appointed a unilingual anglophone auditor general and unilingual anglophone Supreme Court judges. What comes next remains to be seen.

Although this great party claims to be a champion of French, once again, it does not walk the talk. That is what we call geography-dependent bilingualism. It adjusts to voter opinion like a weather vane adjusts to the wind. Moments like this reveal, or perhaps remind us, how incidental the French language is in Canada and how utopian it is to believe that the two official languages could ever truly be equal. If anyone is unfamiliar with the word “utopian”, I encourage them to look up the definition in the dictionary.

Although we are choosing to support this bill, I feel compelled to point out once again the hypocrisy of certain parties and members when it comes to defending and supporting the French language. It is interesting when the government repeats over and over, on the campaign trail, in the Speech from the Throne and in the House of Commons, that it is the first party to recognize the decline of French, but—surprise, surprise—it will not be the last to worsen that decline.

In closing, I hope this bill will be passed for all the reasons I outlined throughout my speech. It will foster greater public confidence in our justice system, greater independence in our justice system and, above all, greater access to justice. I also hope that, once the bill is passed, the government will make an effort to appoint commissioners who are proficient in both official languages. Why not do more to ensure that francophones have the same access to justice as anglophones? That is what substantive equality should be all about. It is not just a matter of obtaining services in French on a part-time basis. It is also about access to services in both official languages in Canada's justice system.

I can assure the House that we will take a closer look at this and make sure that this genuine concern is heard.

[James Maloney, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker. I am very pleased to speak tonight to Bill C-40 , the miscarriage of justice review commission act, David and Joyce Milgaard's law. This legislation would transform the process for identifying and remedying wrongful convictions in Canada. This change is overdue and would be a monumental improvement to justice in our country.

As a member of the Standing Committee on Justice and Human Rights, I participated in a study of Bill C-40. We heard from numerous witnesses, including the minister and his officials. We also heard from retired justice Harry LaForme and Professor Kent Roach, who were instrumental in the public consultation process that preceded the development of this legislation.

We heard from James Lockyer, a founding member of Innocence Canada, which has been at the forefront of the issue of wrongful convictions for over 30 years. Mr. Lockyer was also involved in David Milgaard's infamous case, and he is the namesake of this legislation. After being released from prison, where he served 23 years for a murder he did not commit, David Milgaard dedicated his life to advocating for legal reforms to make the miscarriage of justice review process more fair, open and efficient. I hope to do right by David Milgaard, as well as his mother and fierce advocate, Joyce Milgaard, and their family and get this legislation passed promptly.

I also want to take a moment to express my sincere thanks to the former minister of justice, the Hon. David Lametti. He demonstrated extraordinary dedication to the issue of wrongful convictions and was a fierce advocate for the creation of an independent commission in Canada. This bill is a testament to his hard work and careful consideration. Our justice system will be better for David's commitment to this cause, and I thank him.

Unfortunately, this critical legislation has faced opposition at every turn from the Conservative members. At the committee, the Conservative members filibustered for over 30 hours. This delay meant that the valuable work of our committee ground to a halt. It was also a slap in the face to everyone in Canada who is suffering because of a potential miscarriage of justice. Rather than do good work and change our justice system for the better, Conservatives decided to stall and play games.

At the start of this current parliamentary stage, Conservatives put on notice amendments to delete every single clause in the bill. This was a ridiculous attempt to slow down the work we do as parliamentarians, to the detriment of all of our constituents. It is also, once again, offensive to the people who are waiting desperately for access to justice. Playing games with people's freedom and their lives is beneath all of us. I am very disappointed to have seen the Conservatives' total disregard for this important work.

I would now like to speak to the importance of this legislation and the amendments made at committee. The idea of establishing an independent miscarriage of justice review commission has been recommended in several commissions of inquiry reports in Canada, including in the case of Donald Marshall, Jr. in 1989; Guy Paul Morin in 1998; Thomas Sophonow in 2001; James Driskell in 2008; and David Milgaard in 2008.

Similar independent commissions have been established elsewhere in the world. We are not the first to reach this important step. In 1997, a commission was created for England, Wales and Northern Ireland. Scotland created its commission in 1997. The State of North Carolina established a commission in 2006, and New Zealand created theirs in 2020.

At the justice and human rights committee, we had the benefit of hearing from lawyers who worked in the commissions in North Carolina, and in England, Wales and Northern Ireland. It was very helpful to hear from them, given the years of experience their commissions have had in this area. It was particularly helpful to hear that the commission in England, Wales and Northern Ireland allows, in exceptional cases, applications from people who did not seek appeal.

The witnesses mentioned at committee that the mental health and marginalization of an applicant are issues they consider in admitting applications in such cases. They also consider whether the nature of the miscarriage of justice is something that requires an investigation using the commission's special powers to access evidence. A witness also highlighted that one in three of the referrals for new appeals made by the commission in the U.K. is a case that was not appealed. Therefore, a significant proportion of the claims the commissions consider to be worth pursuing are of convictions that were never appealed. This information motivated the committee to amend the bill to provide greater flexibility for our commission.

As amended, the commission would allow applications in respect of cases that were not appealed, but only in exceptional cases. I am pleased that the committee made this important improvement to the legislation. The vast majority, if not all, of the witnesses who appeared in the committee agreed with this important discretionary element, including The Canadian Bar Association, the Criminal Lawyers Association, the dean of law at the University of Sherbrooke, and the Innocence projects in Quebec, at the University of British Columbia and at the University of Ottawa.

Several witnesses also raised the importance of preventing miscarriages of justice and the commission's role in addressing systemic issues. When he appeared before the committee, the minister explained that there were many proactive elements included elsewhere in the bill. Nonetheless, there was interest among committee members to include a specific power in the commission's mandate provision to address systemic causes of wrongful convictions.

Bill C-40 has, therefore, been amended to allow the commission to make recommendations to address systemic issues that may lead to miscarriages of justice. These recommendations will be directed toward relevant public bodies, including the Law Commission of Canada; federal departments and agencies; federal, provincial and territorial working groups; and parliamentary committees. The member for Esquimalt—Saanich—Sooke proposed that amendment, and I would like to thank him for that. He has supported this bill, as always, and has been a strong advocate for improving our justice system. This member also proposed the bill's final amendment.

We heard at committee that people who profess their innocence may face challenges before, during and after they seek a review of their case as a potential miscarriage of justice. To reduce stigma and exclusion to programs, while they continue to serve their sentences, the bill now provides that the commission will be able to raise with Correctional Service Canada and the Parole Board of Canada the importance of not excluding applicants to their programs as a result of them having made an application for review on the grounds of miscarriage of justice.

Bill C-40 is very important legislation that is widely supported by external stakeholders and by many members of the House. Many people have been waiting for decades to have an independent miscarriage of justice review commission and for the review process to be more transparent and efficient. I hope that we can pass this legislation at third reading as quickly as possible so that it can be referred to the other place and can continue to make progress through both Houses toward royal assent.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

moved:

Motion No. 1

That Bill C-40 be amended by deleting the short title.

Motion No. 2

That Bill C-40 be amended by deleting Clause 2.

Motion No. 3

That Bill C-40 be amended by deleting Clause 3.

Motion No. 4

That Bill C-40 be amended by deleting Clause 4.

Motion No. 5

That Bill C-40 be amended by deleting Clause 5.

Motion No. 6

That Bill C-40 be amended by deleting Clause 6.

Motion No. 7

That Bill C-40 be amended by deleting Clause 7.

Motion No. 8

That Bill C-40 be amended by deleting Clause 8.

Motion No. 9

That Bill C-40 be amended by deleting Clause 9.

Motion No. 10

That Bill C-40 be amended by deleting Clause 10.

Motion No. 11

That Bill C-40 be amended by deleting Clause 11.

Motion No. 12

That Bill C-40 be amended by deleting Clause 12.

Motion No. 13

That Bill C-40 be amended by deleting Clause 13.

Motion No. 14

That Bill C-40 be amended by deleting Clause 14.

Motion No. 15

That Bill C-40 be amended by deleting Clause 15.

Motion No. 16

That Bill C-40 be amended by deleting Clause 16.

Motion No. 17

That Bill C-40 be amended by deleting Clause 17.

Motion No. 18

That Bill C-40 be amended by deleting Clause 18.

Motion No. 19

That Bill C-40 be amended by deleting Clause 19.

Motion No. 20

That Bill C-40 be amended by deleting Clause 20.

Mr. Speaker. I am pleased to rise to speak about Bill C-40, the miscarriage of justice review commission act, at report stage.

Public confidence in our criminal justice system is central to a functioning democracy, to a free and democratic society. We must have confidence that our courts get it right if not all the time then at least most of the time. We do not want innocent people in jail. We do not want guilty people on our streets. However, we do not always get it right, as in the David Milgaard case.

Mr. Milgaard was wrongfully convicted of a murder that he did not commit and spent 23 years in jail, consistently maintaining his innocence. His case went through the whole process, from trial to the Saskatchewan Court of Appeal to the Supreme Court of Canada, and he was guilty at every stage.

He stayed in jail for 23 years, but David and his mother Joyce never gave up faith. Finally, after two decades, there was a breakthrough made possible by advances in DNA forensic technology, which pointed to another man who had been known to the police all along. With all the appeals used up, there was still one more course of action, and that was an application to the minister of justice under the criminal conviction review rules. She read the Milgaard file and, with the new evidence available, ordered a new trial.

By then, the Saskatchewan prosecution office realized that they had the wrong man and David Milgaard was allowed to go free. It was a serious miscarriage of justice, and it was appropriate that we named the bill after David and Joyce Milgaard. We could have named the bill after any other number of wrongfully convicted men: Donald Marshall Jr., Guy Paul Morin, Steven Truscott or Thomas Sophonow, just to name a few. Our courts do not always get it right and that is why we need a criminal conviction review process.

The Milgaard case showed us the flaws in our system. Why should the last appeal be to an elected official? Would Milgaard have seen justice sooner if the process had not been political and if the Criminal Conviction Review Group was better resourced with finances and investigative powers? The answer, I think, is probably.

These are the questions that Bill C-40 seeks to answer and the flaws that it seeks to correct. I spoke in favour of the bill at second reading, and the Conservative caucus voted to send it to committee. We saw some of what we thought were drafting errors, but we felt confident that with our reasoned arguments, we would convince the other committee members to make these few changes. We were wrong. We got some changes, all right, but not for the better. Coming out of committee, Bill C-40 is worse than it was when it went in, in my opinion.

Let me explain. The main point of disagreement is about the threshold for opening a review. How hard should it be for a convicted person who maintains their innocence to get in front of the miscarriage of justice review commission to convince it to open up a case for a new trial? Currently, with the existing legislation, that person must convince the group working in the AG's office that “there is a reasonable basis to conclude that a miscarriage of justice likely occurred”. I underline “likely occurred”. Milgaard met that threshold easily with new forensic evidence. What was key was the “new matters of significance” language of the Criminal Conviction Review Group.

Conservative MPs support maintaining the existing “likely occurred” language. We argued to maintain it, but the other committee members insisted on a lower “may have occurred” language, clearly a much lower hurdle to overcome. We fear that, with a lower threshold, we will have a flood of applications for review.

We are supported in that concern. One of the witnesses in the Bill C-40 study at committee was John Curtis from the United Kingdom review commission. This review commission, which has been around for about 20 years, uses the language of “a real possibility” that there has been a miscarriage of justice. Clearly that is a much higher threshold than what is being proposed in the current form of Bill C-40. Mr. Curtis pointed us to a body of jurisprudence in the United Kingdom that has arisen out of its legislation. I have read many of those cases, because I take this very seriously, and I form the opinion that they got it right.

The Milgaard case would have met the test, and so would all the other Canadian cases that I had read. Therefore, we propose sticking with the current wording of “likely occurred” or accepting the United Kingdom's wording of “real possibility” and benefiting from its 20 years of jurisprudence.

Why would we change the words to a lower standard? I would suggest that Parliament is sending a clear message to criminal defence lawyers and to judges that we intend to make things easier for convicted criminals to get their cases opened again. If I were acting for a person who maintained their innocence and wanted to get a review, I would argue, “Well, clearly, Parliament intended something different”. Why reject the old language and adopt new language? Certainly, something new is intended. Certainly, it was the intent of Parliament to lower the standard of review and not accept the U.K. language either, because that possibility is open.

This is typical Liberal overreach. Why not change the things that are actually broken in our system, take the politics out of the equation, fund the commission properly and give the commission broader legislative power? We agree with all those initiatives, just not lowering the threshold. That part is not broken. That has actually been functioning well. To suggest otherwise tells the public that we do not actually have confidence in our courts to get it right most of the time.

However, there is another problem with Bill C-40 after committee. If the bill passes in its present form, a person convicted at trial does not even have to exhaust the regular appeal process before applying for a review before the commission. If one does not like the trial court's findings, one need not bother appealing but can go straight to the review commission, with its investigative powers. It is cheaper than getting one's lawyer to take it through the court of appeal.

We say to stick with the current requirement that an applicant must first exhaust all the available tools in the regular court system through all the appeals that are available. Yes, we need a review commission, and the Milgaard case showed us that; however, a review after conviction must remain an extraordinary remedy. To say otherwise would further undermine the confidence that the public has in our court system.

With these significant flaws, the unnecessary lowering of the review threshold and the ability to sidestep the regular appeal process, we cannot support Bill C-40 in its current form.

The House proceeded to the consideration of 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), as reported (with amendments) from the committee.

Business of the House

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

Mr. Speaker, there is indeed a secret in the House, and that is the Conservative Party's true intentions when it comes to cuts. “Chop, chop, chop,” as my colleague from Gaspésie—Les Îles-de-la-Madeleine so aptly puts it. That party wants to cut social programs and the programs that are so dear to Quebeckers and Canadians: women's rights, the right to abortion, the right to contraception. The Conservatives want to scrap our government's dental care and pharmacare plans. The secret is the Conservative Party's hidden agenda, which will do great harm to all Canadians.

With our government's usual transparency, this evening we will proceed to report stage consideration of Bill C-20, an act establishing the public complaints and review commission and amending certain acts and statutory instruments, and Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation regarding miscarriage of justice reviews, also known as David and Joyce Milgaard's law.

Tomorrow, we will begin second reading of Bill C-63, an act to enact the online harms act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other acts.

I would like to inform the House that next Monday and Thursday shall be allotted days. On Tuesday, we will start report stage of Bill C-69, the budget implementation act. On Wednesday, we will deal with Bill C-70, concerning foreign interference, as per the special order adopted last Thursday. I wish all members and the House staff a good weekend.

[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?