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 .

Motions in Amendment

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

Madam Speaker, would the member for Edmonton Strathcona agree that we could pass legislation that would create an independent commission that is fair, open and efficient, but does not necessarily lower the threshold for review? The member for Etobicoke—Lakeshore said it does not lower the threshold at all. That then leaves me asking why we would change the wording.

How is the bill better with the language that we say lowers the threshold unnecessarily?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, I think the member was not listening when I said what we have in Canada has not been updated since 2002. That means that, for 22 years, we have not looked at this judicial process.

It is not working. It is not working for marginalized people, particularly indigenous women in this country. It needs to be updated. It needs to be made more relevant so that justice is not denied to those people who are particularly marginalized.

The work that the committee has done makes this a better piece of legislation. It makes it stronger. I am upset that it has taken us so long to get to the point where we can pass this bill. I hope that we can get it through the House before the parliamentary break.

By all means, we do not need to put more barriers around justice for indigenous women in this country. We need to work to remove those barriers so there is justice for every Canadian equally.

[Soraya Martinez Ferrada, Liberal, Hochelaga, QC]

Madam Speaker, I move that the House do now adjourn.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

Pursuant to order made on Wednesday, February 28, the motion is deemed adopted.

Accordingly, the House stands adjourned until tomorrow at 10 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 8:18 p.m.)

The House resumed from June 6 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, and of the motions in Group No. 1.

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

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, Bill C-40, which we are continuing to debate today, is a very important piece of legislation. This bill would establish an independent commission dedicated to reviewing miscarriage of justice applications.

Specifically, Bill C-40 would amend the Criminal Code by reforming the existing miscarriage of justice review process in two ways.

First, it specifies accessibility criteria. It specifies the investigative process, in particular the legal threshold to conduct investigations, powers of investigation and provisions of investigation reports. The bill also specifies the decision-making process, specifically the legal threshold to refer cases back to the courts for a new trial, hearing or appeal. In addition, on that decision-making process, it would change the relevant decision-making factors.

The second area Bill C-40 addresses is additions to the Criminal Code to establish the commission: mandate, composition, appointment process and qualifications specifically, as well as the powers, duties and functions.

Bill C-40 is named after David and Joyce Milgaard. David Milgaard was convicted of a crime he did not commit and spent 23 years in prison before being released in 1992 and finally exonerated in 1997. Joyce Milgaard, David's mother, spent decades advocating for her son's release and compensation for the injustices he faced. Mr. Milgaard's experience revealed the flaws that can exist in our justice system. Joyce and David Milgaard were forceful advocates for the wrongfully convicted. They called for changes to Canada's wrongful conviction review process, including the establishment of an independent commission. We are all very proud to honour their work and their vision for a more just Canada.

I want to reflect on that last bit for a moment. Just imagine for a second being a parent who has one of their children convicted of a crime, or, first of all, just being accused and charged with a crime and the time they spend. I am reflecting on my own children, if I were in this position. I have a 20-year-old son, and I imagine if something occurred and he was put in a position like this. I just think to myself, from a parent's perspective, what would one do? A parent would go to all ends, especially if they knew their child was innocent, to protect them and to make sure they get the proper justice they deserve.

The inspiration of this bill and who the bill is named after is an example of that incredible deep passion that people bring, in particular, when trying to find justice for their children. We are very fortunate. I know there are many people who have been wrongfully convicted who did not have advocates like their parents fighting for their release. We need to use the example of what happened here, this particular dynamic with the child and their parents fighting for them, and in particular their mother, as a standard for the way we should be treating matters like this.

This is a very important bill. This bill would address the injustices that unfortunately can occur within a justice system that is intended to hold accountable those who have committed crimes.

I know, as a matter of fact, after listening to this debate in the House during the times when the bill has been up for debate, that everybody in the House supports this bill. This is a bill I have heard Conservatives speak in favour of. I have heard the NDP, the Bloc and certainly Liberals speak in favour of it. This is a bill that has unanimous consent. This is a bill that anybody who has children, who knows somebody wrongfully convicted or who fears that one day somebody else could be wrongfully convicted should support.

Knowing that we have unanimous consent for a bill like this, that we all believe that this is so important, that we all know that people who have been wrongfully convicted continue to sit in prison today, knowing all of this, and knowing that we all support it and that we all believe that justice is just as important for the wrongfully convicted as it is for the rightfully convicted, one would think that a bill like this could pass through the House very quickly, that it could get to the Senate and the Senate could do its thing with this and adopt this bill just as quickly. This should be a completely non-partisan issue. There should be no need for anybody in the House to try to slow down the process and the speed at which this bill moves through the House, especially when we hear and we know that everybody supports it.

Unfortunately, that is not what happened. Despite the fact that Conservatives said they support this, and they get up in their speeches and talk about how much they support this, they have intentionally slowed the passage of this bill through the House. The member for Langley—Aldergrove put forward 20 amendments to the bill, a bill that he supports, a bill that Conservatives will vote in favour of. Does one think these were meaningful amendments that he brought forward? They were not.

The first amendment that he brought forward was that we delete the short title. He then went on to bring forward amendments that would consecutively delete each clause of the bill, one by one. What he is doing is putting forward these amendments and, by the way, as soon as one puts forward an amendment to a bill, it resets the speaking order and everybody can speak again. He will effectively, unless the Conservatives change course and decide to apply the votes or do something at the last minute, make 20 votes out of this simple bill that everybody supports and just absolutely slow down the process.

I understand that there are issues we disagree on. I understand that the main tool of an opposition party, His Majesty's loyal opposition party, is to affect the amount of time it takes to do things in the House. I respect that. I understand that. It makes sense that, from time to time, Conservatives want to use those tools for issues that they passionately disagree with. I get it. On contentious issues, it makes sense.

However, on a bill like this, which everybody supports, which literally will allow justice to be served for those who have been wrongfully convicted, the Conservative Party played games with the bill and continues to play games with the bill now. We had to bring in a motion of closure to force the Conservatives to vote on this bill and to stop delaying it. That is where we are now. We are on the final few hours of this, because we had to force the Conservatives into this position. It is absolutely shameful that Conservatives would act in this manner with respect to a bill like this. This bill deserves the unanimous support that the House has already said it gives it. This bill deserves to be passed as quickly as possible. It is extremely unfortunate that Conservatives continue to play their games with such an important piece of legislation.

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

Madam Speaker, indeed, at second reading, we thought it was a pretty good bill. There were some drafting errors that we were pretty convinced we were going to be able to convince other committee members to amend. They disagreed with that, and what happened to the bill is that it came back worse than it went in, unfortunately, because, originally, an applicant for a judicial review of what they thought was a wrongful conviction would have to have exhausted all the appeal procedures that were available to them. The Liberals unfortunately took that out. We are saying that it is creating a competing criminal justice system, which is just not necessary. David Milgaard's problem was never that the appeal process was not there, but that the system was too cumbersome. Fix that and we would agree with it.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, does that warrant deleting the short title? Does that warrant putting a separate amendment on the floor just to delete the short title? It is the short title of the bill. It is not even the full title of the bill. It is literally the short version of what we refer to the bill as.

If the member is genuine and genuinely says there is a concern about the bill, then he should explain to Canadians why he wants to delete the short title of the bill.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, we live in a society where the justice system is based on rehabilitation. We also have a justice system and society that believes, as Voltaire did, that “It is better to risk saving a guilty person than to condemn an innocent one”.

However, we are dealing with heartbreaking cases of miscarriages of justice. One example is the case we have been talking about, that of Mr. Milgaard. There are also cases in Quebec. Take, for example, the Jolivet case, which was also highly publicized.

If this is one of our values, why did the government wait so long to react and to create something that will make it possible to correct miscarriages of justice within a much more reasonable time frame?

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, this bill attempts to correct that. I agree with the member in that Liberals believe, and I believe the Bloc and the NDP also believe, in the rehabilitative process. It is called Corrections Canada. It is not “lock them up and throw away the key” Canada. The Conservatives do not believe in corrections. They do not believe in rehabilitation. They believe in locking people up and throwing away the key.

With all due respect, I know this very well, coming from a riding that has six prisons in the area. Kingston is known as the prison capital of Canada. I have heard stories from when the Conservatives were in power, about the double bunking that was going on and the absolute catastrophe of what was happening in the prisons. The Conservatives are not interested in rehabilitation. They just want to lock people up and throw away the key.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Madam Speaker, I certainly agree with the speaker across that there is a fundamental difference in terms of how we treat people in this world and how we truly see them as people.

With that in mind, the NDP is concerned about the fact that robust financial supports need to be provided to the commission to ensure it gets running quickly, considering a lot of these cases are so urgent. Could the member speak to the need to ensure funding for the commission?

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, if we do not give the commission the tools that it needs to do its work, then we are basically setting it up for failure. What those supports are exactly and how much it needs, in terms of resources, is to be determined.

I would agree with the member that the supports and resources, financial resources in particular, to do the work the commission needs to do, to do the investigative work, and to ensure that people have access to the appeals process, need to be properly funded.

[Tracy Gray, Conservative, Kelowna—Lake Country, BC]

Madam Speaker, it is always an honour to rise on behalf of the residents of Kelowna—Lake Country.

Before I begin my speech today, I would like to mention that we will be rising soon, in this place, for the summer. I want to wish everyone a safe summer for travelling. I also want to thank all responders who might be out there, helping to save lives and keeping our communities safe.

I am rising today to speak to Bill C-40, the miscarriage of justice review commission act, David and Joyce Milgaard's law. This is an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation, miscarriage of justice reviews, which will establish a commission dedicated to reviewing miscarriage of justice applications.

The current criminal conviction process is handled by the Criminal Conviction Review Group within the Department of Justice Canada, which then advises the justice minister on cases with grounds for review.

The justice minister was mandated, in 2019 and 2021, to work toward the establishment of an independent criminal case review commission to improve access to justice for people who have potentially been wrongfully convicted to have their applications reviewed. Of course, myself and the Conservatives are very sympathetic to people who have been wrongfully convicted, like David Milgaard, whom this bill has been named after. No one wants innocent people to be convicted and to be in jail. We also do not want guilty people on our streets.

It is important to have a wrongful conviction review procedure, which Canada has had for a very long time. The problem with the current system is that there is political intervention. It is cumbersome and bureaucratic. We were very optimistic that Bill C-40 could be the answer to addressing some of these issues. As is on the record, at second reading, Conservatives were in favour of this legislation, and it was sent to committee to look at potential amendments. There was one part in the legislation where we genuinely thought there was a drafting error, which can happen on occasion, and it was looked into at committee. I want to thank my Conservative colleagues who sit on the justice committee for their detailed work and their expertise on this.

The threshold for getting a review is very low. Right now, it is worded as if it has “likely occurred”, referring to a miscarriage of justice. This bill would change that to “may have occurred”. Conservatives on the committee thought that they could convince the other members of the committee to keep the higher threshold, which did not happen, so now, it has come back to the House at third reading.

One of the good parts of the bill is that it would take the political realm out of the process, which Conservatives like, to make it purely administrative. If that was all the legislation did, then we could very easily support it here in its present form. However, we believe that the lower threshold would open the door to all kinds of cases. We know that the court system is already very clogged and backlogged, but we were unable to convince members at committee to make the changes. The legislation that has come back to the House from committee is more problematic than what had been sent to committee. We think there are genuinely some clerical administrative errors with respect to the writing of the legislation. The original Bill C-40 application for review would use all available appeal avenues, such as a provincial court of appeal.

I do want to bring up a couple of quotes that I think are relevant to what we are talking about here today. David Lametti's speech, at second reading, on the miscarriage of justice review commission act, was on June 12, 2023, so it was almost exactly a year ago.

He stated, “It is important to note that the miscarriage of justice review process is not an alternative to the judicial system, nor is it another level of appeal. Rather, it provides a post-appeal mechanism to review and investigate new information or evidence that was not previously considered by the courts.” We agree with this.

As well, in the press release entitled, “Minister of Justice introduces legislation (David and Joyce Milgaard’s Law) to establish an independent Miscarriage of Justice Review Commission”, it stated, “The proposed new commission would not be an alternative to the justice system. Applicants would first need to exhaust their rights of appeal before requesting a miscarriage of justice review by the commission.”

We also agree with this. However, this is not what the legislation does. In addition, Minister Virani, at committee, in October of 2023—

[Some hon. members]

Oh, oh.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

The hon. member knows that she cannot mention current members' names.