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 .

[Julie Besner]

Thank you.

On the first question, Bill C-40 proposes that the requirement to have exhausted rights of appeal be maintained. There are exceptions that are laid out with respect to whether an appeal was sought subsequently to the Supreme Court of Canada. As I understand it, that's all that's being considered and proposed at this time on that question.

With respect to, “What if the commission does not consider an application to be admissible?”, yes, an applicant could seek a judicial review of that decision based on.... It would be reviewable on the standard of reasonableness in the federal court, following an extensive body of case law that was recently updated in Vavilov. All of that law would apply.

It's unclear which legal test would apply for bail pending review. Section 679 of the code operates as its own...it's a section, so all the subsections within the section apply. In subsection (7), which is being amended, there's a cross-reference to paragraph (1)(a). Paragraph (1)(a) is a conviction appeal that then references what the test is, and that's set out in subsection (3).

I mentioned earlier that the applicant would have to establish that their miscarriage of justice application is not frivolous, that they would surrender into custody when required and that detention is not necessary in the public interest. With respect to the public interest, the case law has evolved quite a bit. It essentially has two components. It has a public safety component and it has a component that deals with confidence in the administration of justice. The courts of appeal apply that. They also apply that the higher the seriousness of the offence and the lower the strength of an appeal, the more the public confidence would be undermined if the applicant were released.

On the flip side of that, the lower the seriousness of an offence and the higher the strength of an appeal, the more the public confidence would be undermined if the person were detained. The courts of appeal.... That is the body of case law that they apply. This would apply in this context as well, because an applicant would be treated just as someone who is appealing their conviction.

A single judge of the court of appeal could hear the application. The notice that has to be provided varies in each different court of appeal, because they set their own procedures for notice. That has to be provided before a hearing will be scheduled. This bill doesn't change that.

You'll have to give me time. I have to go down the list.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Madam Chair.

Ladies, thank you very much for being here.

As my colleague Mr. Moore has indicated, I'm a former Crown prosecutor. I did a fair number of appeals. I'm very familiar with the process, and I know the language. I'm a firm believer in clarity, and I know my colleague Mr. Caputo is a firm believer in clarity when it comes to language in any piece of legislation. In particular, I think the Criminal Code demands clarity.

The concern I have in clause 2 is that it is not clear at all what legal tests are being contemplated here. If I understand it correctly....

I believe the first question that was put to you, Ms. Besner, was to describe generally what this section means, and you gave us a response. Is it fair to say that this is purely a mechanism by which a convicted person—who has received consideration from the review commission that the application they have submitted is admissible—has the ability to seek release from whatever institution they may be in? Is that generally what clause 2 is suggesting here?

That's one question. I'm going against my own suggestions here. I have more. Perhaps you could just jot down my questions.

The lack of clarity is this wording in the third line in the new subsection 679(7) proposed in clause 2. It says:

this section applies to the release or detention of that person—as though that person were an appellant in an appeal described in paragraph (1)‍(a)

That is, in my opinion, extremely ambiguous in terms of the conferring of the rights attributable to the convicted person whose application has been ruled admissible. I need to know why the drafters of Bill C-40 did not see fit to use the exact language that currently exists under subsection 679(7).

You, Ms. Besner, referred to it in terms of establishing that it is not frivolous—I believe you used that language—and that it isn't contrary to the public interest. There was a third aspect. I'm not sure what that third aspect was. I've opened up my Criminal Code here. Just give me a moment. It reads, “he will surrender himself into custody in accordance with the terms of the order”.

The second question is: Why wasn't that language clearly spelled out in clause 2?

The third question is in relation to the adjudicator of the release. In this particular case, the adjudicator would not be a judge, but rather, I believe, someone from the commission. I don't know if that is correct or if that's what's contemplated, but I would like to get that question answered.

I'm going to throw a hypothetical out to you as well. Let's say, for instance, that the convicted person was convicted of a homicide, which generally attracts the most stringent of release conditions if someone qualifies under the circumstances. I would like to know, again, if all of the provisions currently under subsection 679(7) would be available to the adjudicator who is contemplating a release.

The next question I have is, again, about using the language under section 679 of the code, where the first test is that the “application for leave to appeal is not frivolous”. Here's my question to you. Isn't that rather moot—the whole concept of a frivolous application—in light of the fact that the commission itself has deemed the review to be admissible?

I wonder why the drafters of Bill C-40 would use duplicitous language. Clearly, if the commission has ruled the application to be admissible, inherently they have ruled that the application is with merit and is not frivolous. However, the frivolous test is maintained under subsection (7). I'd like clarity on that.

I'd also like to get clarity on that hypothetical in terms of the availability of sureties: how they would present themselves and how they would give evidence to the adjudicator who is making that decision to continue the detention of the convicted person or the release of that convicted person.

Again, I'm always very much concerned about inherent delay. I know that Jordan's principle under the Supreme Court of Canada doesn't necessarily have the same rigid impact at the appellate level that it does at the trial level—the provincial or territorial level, a superior court or the Court of King's Bench—in terms of the prescribed timelines by which matters need to be completed.

I'm concerned about the inherent delay with this low threshold test, which in my view is going to increase the number of applications presented to the commission. There's a future clause that we are going to study in terms of whether or not to approve it, and the whole concept is to move these applications as expeditiously as possible.

Again, it's not very clear language. Were the drafters of Bill C-40 contemplating something that was reviewable by the commission in terms of taking a look at the progress? I know that the commission is mandated to inform the appellant along the way as to the status. That is not necessarily the case in a true appeal setting, where someone either is on their own or has the assistance of legal counsel.

I'd like to get some clarity on that question.

Thank you, Madam Chair.

[Julie Besner]

Bill C-40—

[Rob Moore, Conservative, Fundy Royal, NB]

I don't want to get ahead of myself on this, because we have other provisions.... We have amendments coming up that would take away the requirement contained in Bill C-40 that the applicant appeal a decision. This is why clause 2 is important.

Someone is convicted of an offence. They've gone before a judge and they've been found guilty and convicted. They're left with a possible decision at that point, in consultation with their lawyer, on whether to appeal their decision or apply under the provisions of Bill C-40 to the commission for a hearing on whether they meet the threshold of wrongful conviction or miscarriage of justice. The threshold that we contemplate setting is that “a miscarriage of justice may have occurred”. These decisions will have to be made by individuals.

Under the current Bill C-40, as presented, there would be no decision. You can't avail yourself of the commission unless you've appealed the decision. How do we reconcile this shift—or does it have to be reconciled?—if we make a subsequent amendment that removes the requirement to appeal?

We hear evidence all the time about delays in the justice system. We have Jordan's principle. We're taking court of appeal time, potentially, to deal with these miscarriage of justice cases. All the evidence we've seen so far is that the applications are going to go up. Some of the evidence we've seen is that our applications are going to skyrocket.

I don't know that Canadians believe there should be a skyrocketing in the number of people alleging that they were wrongfully convicted, but how do we reconcile...? It's not fair to you, really, because we haven't dealt with that clause yet, but there's an interplay between the two. The court of appeal is going to be in a position to have the hearing on release when someone has made application to the commission. Also, it could be that the decision is appealed to the court.

How does the interplay work on that? What if someone goes with a wrongful conviction application and then decides to appeal their decision? Again, I don't want to get ahead of myself, because we haven't dealt with that clause yet, but given that one of the amendments came from the Liberals, the government, and one of the amendments came from the NDP, I have a feeling this bill is going to be substantially changed, possibly removing the requirement that someone appeal their decision. How do those two interact, if that should happen?

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

Yes, it's my pleasure.

Clause 2, as I was explaining the other day, deals with section 679 of the Criminal Code, which is the bail pending appeal provision. It was a recommendation, following the consultations, that the courts of appeal would be better placed to hear applications for release while the commission is considering an application, or after it has made a referral back to the courts, and that those applicants could make applications to the courts of appeal instead of to the superior courts of criminal jurisdictions.

They have been doing that under the common law, even though they've been applying the bail pending appeal test, which is the same test that applies if someone is seeking a conviction appeal. That's what Bill C-40 does.

[Rob Moore, Conservative, Fundy Royal, NB]

On Bill C-40, clause 2, the analysts are here, and the witnesses from the department were here for two hours on Tuesday.

We appreciate your being here.

There aren't that many clauses in this bill, and there aren't that many amendments. However, this bill is a massive shift, I would argue, from the status quo, with the creation of a new commission and moving away some of the discretion held in Canada in the office of the Minister of Justice.

We have a history in Canada with those who have been wrongfully convicted. We have had miscarriages of justice. We also have a justice system that others in the developing world have looked at to emulate, so we certainly have a lot of good to work with.

We have to be careful when we make changes. I know that when we were in government, we made changes to improve the Criminal Code so that victims were protected, for example.

The concern I have with Bill C-40 has come up in the course of our witness testimony. This is specific to clause 2. We heard the U.K. experience. We also heard from North Carolina. I found the testimony of the witness from North Carolina very interesting. She explained to us that factual innocence underpins their system.

The reason I want to speak quickly to that is that it is what most Canadians would understand a miscarriage of justice to be, particularly wrongful conviction. It means that someone was arrested, charged for a crime they did not commit and exonerated some time afterwards. There was indeed a miscarriage of justice. They were convicted for something they did not do. They've been wronged. The system failed them. As well, the actual perpetrator of the crime is somewhere out there and needs to be caught.

I think that when a lot of Canadians hear about wrongful conviction or miscarriage of justice, that is what they imagine.

My concern is that this bill goes significantly beyond what those Canadians would imagine. It is trying to address, with a broad stroke, some issues within the justice system that could be addressed, but it should not be in a way that undermines our system and creates a parallel justice system. There's a danger of that.

I don't want to get ahead of myself, but as we look down the road at some of the amendments being proposed on Bill C-40, there's a significant broadening of the role of this commission. Underpinning even Bill C-40 itself, as it was originally presented to this committee, was a requirement that a person had at least appealed his or her decision. With some of the amendments that are coming, we are almost creating a parallel system. If you feel that you could be eligible, by some factor, for the wrongful conviction route, then, rather than appealing your decision, you would claim that there was a miscarriage of justice and go this other route. That creates major concerns.

At this very committee, in our study on the federal government's obligations to victims of crime, we had a witness who appeared. Many of you will remember her. What she said had an impact on me. You've probably heard me say it before. She was a victim of crime. She said that we do not have a justice system in Canada; we have a legal system. In her mind, those were two different things. She had been through our legal system. She had been victimized, number one, but then, going through the system, she felt she had been revictimized.

We have to be absolutely on guard, with Bill C-40, that nothing we do would add to that sense of revictimization for victims of crime in this country. They already have it tough enough. We've already studied and we've heard from them about how going to parole hearings revictimizes them, about how the way they're treated by the system revictimizes them, and about how the fear they have from appearing in court to provide testimony against the person who committed a crime against them revictimizes them. Victims of crime and their families are incredibly brave just to go through the process.

I know there are a couple of gentlemen here who have served as Crown prosecutors and have had to work with victims as they navigate the system and seek justice.

How many individuals, at the end of the day, say, “I don't feel justice has been served”?

With Bill C-40, there is a real danger that, if we don't get it absolutely right, we're going to have more of those stories and not fewer. Individuals who have been rightfully arrested, charged and convicted are going to avail themselves of this parallel system. This parallel system will involve further trauma to victims, which is why we have a threshold whereby commissions, whereby ministers....

We've seen examples of thresholds that would say that there is a reasonable likelihood that a miscarriage of justice occurred and that there is a strong possibility that a miscarriage of justice has occurred. Neither of those even come to the civil level of balance of probabilities, let alone the criminal level of beyond a reasonable doubt.

In this legislation—this goes to the root of the whole thing, and that's why I'm mentioning it at the outset—there is a requirement that a miscarriage of justice “may have occurred”. What kind of threshold is that? That threshold is embarrassingly low.

Of course, in any given situation, something may or may not have occurred. That is not a reasonable threshold. It's not a threshold that's used in North Carolina. It's not a threshold that's used in the United Kingdom. It's not even a threshold that's used in Canada. Our Minister of Justice has a threshold whereby he considers these miscarriages of justice, and the team within the Department of Justice considers them, and “may have occurred” falls far below that level.

Those are some of the concerns I have at the outset, as we look at clause 2.

I want to ask our witnesses if they could walk us through clause 2 in terms of how it amends the status quo, certainly where we are now, and how clause 2 frames what follows with Bill C-40.

[The Chair, Liberal, Lena Metlege Diab]

Yes. That's right. That's part of my administrative duty as the chair. It was done on the basis of the understanding we had that we needed to deal with Bill C-40 and not get any other witnesses.

Would you like to proceed, or do you have orders that you don't want to deal with Bill C-40?

[The Chair, Liberal, Lena Metlege Diab]

There was no discussion from the chair or from the clerk on that. There was no discussion. What we understood in this committee, me included, and other members who have spoken—obviously, not you—is that we need to finish Bill C-40 before the minister appears.

[The Chair, Liberal, Lena Metlege Diab]

There will be no more clarification: I have responded to every single point of order. I will not take any points of order. I will now move to Bill C-40.

If you don't like my decision, challenge it.

[The Chair, Liberal, Lena Metlege Diab]

I call this meeting back to order, please.

With respect to all colleagues, there was a motion. We voted on it and it is clear.

We will now proceed with clause-by-clause on Bill C-40. If you don't like what I've ruled on already and you wish to challenge the chair, please go ahead.

[The Chair, Liberal, Lena Metlege Diab]

We will let you know once we contact the minister's office, after we deal with Bill C-40.

[The Chair, Liberal, Lena Metlege Diab]

The modified notice of motion was sent to all members and clearly indicates that we are doing Bill C-40.

We will be issuing an invitation to the minister to appear as soon as this committee can arrive at a point where we can have someone appear.

[The Chair, Liberal, Lena Metlege Diab]

The motion is that we proceed with clause-by-clause for Bill C-40.

(Motion agreed to: yeas 7; nays 4)

The motion is adopted.

I want to correct something before we go to clause 2. I have two members of Parliament here virtually today, and both are females, so I'm not alone. Both have considerable legal and litigation experience. I want to ensure that we have that on record.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair. I think Canadians would like to know why the minister is not here. Not to belabour the point, but violent crime has gone up by 39% in the last eight years. Gang homicides are up by 108%. Gun crimes are up by 101%. That's all in the last eight years.

We have an accountability mechanism here whereby the minister appears. We made a decision as a committee that the minister would appear today. Initially it was going to be for two hours. Then that was reduced to an hour. Now, it is no time at all. That decision was made unilaterally.

I think we need to revisit that, Madam Chair. We do need to have the minister appear here. It's our job to hold the government accountable for these and other things, and it's the minister's job to appear before us.

Madam Chair, Mr. Brock actually covered quite a bit of what I was going to say, believe it or not. We debate our agenda, and we make decisions, usually, on a consensus basis. I had moved that the minister should appear. There's nothing out of the ordinary with that motion. Every committee would have a similar motion, that a minister appear on the supplementary estimates. We agreed, and there wasn't much debate at the time, I recall. There was pretty quick agreement that the minister would appear no later than December 7, today.

We also had the opportunity to deal with Bill C-40. We briefly dealt with Bill C-40 on Tuesday. We didn't get through it. It was slow going. It was very slow going on Bill C-40, but we do have next week to deal with it. We try to do a best guess on how long something's going to take, but when it comes to clause-by-clause, I have often seen bills go over the course of an entire meeting or two meetings. I've seen clause-by-clause go for three full meetings.

In this case, I would never have presumed that we'd be done Bill C-40 on Tuesday and then have the minister on the 7th. The agreement that was made by this committee was that, whatever happens on Tuesday, the minister's going to be here on the 7th, today, to be accountable.

The minister has appeared in the past. He should be here now. On a going-forward basis, when the committee makes a decision, I think we need to....

Nothing in my view warranted a change in the schedule. I know a change in the schedule was made. We've moved from scheduling the minister to Bill C-40. I don't see what warranted that, particularly when we are here next week. Unless there's something happening that I don't know about, we're here next Tuesday and Thursday.

On that point, Madam Chair, I'll leave it at that.

I want to reiterate that in my experience it's quite rare that a change in schedule would happen like that with such short notice. Also, to Mr. Fortin's point, I'm sure the very short-notice plan to meet all day tomorrow, Friday, on Bill C-40 probably took a number of people by surprise. It certainly took me by surprise. I don't mind.

I think Bill C-40 is interesting. It deals with a topic, and our witnesses were extremely interesting. I think there's a lot for us to flesh out. I think the government's proposal on Bill C-40 as it was drafted is wanting. I think we have amendments that we have put forward. There are other amendments that other parties have put forward to make changes to Bill C-40 as it was tabled. We'll get to all of that, but I think today we should have been dealing with the minister.

I can't ask the witnesses this, Madam Chair, so I guess I will ask you. When do we expect to have the minister here on the supplementary estimates?

Thank you.

[Larry Brock, Conservative, Brantford—Brant, ON]

Madam Chair, on a point of order, I want to thank Mr. Garrison for that. I apologize to you as well, sir, if you in any way took my comments the wrong way. I wasn't aware of what you experienced in the House, so I do apologize for that.

I'm really confused, Chair. I know ministerial time is very precious. For the last two years I have been frustrated in my ability to speak with various ministers, so we always look for opportunities to have ministers appear at committee. We agreed, I believe as a committee, if not at the subcommittee level, to have Minister Virani appear on or before today's date, December 7.

Obviously a unilateral decision was made, without consultation with committee members, which bypassed his appearance. I'm confused as to why Bill C-40 and clause-by-clause have taken priority over the minister, when we probably agreed at the subcommittee level that both should be priorities for this committee.

I want to draw everyone's attention to the first page of Bill C-40, which I copied off the computer earlier today. There's a recommendation under Bill C-40 that is as follows:

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation”

This requires the allocation of taxpayer money, and the allocation of taxpayer money is at the root of what appearances and discussions on the supplementary estimates flow from. Again, I could be the only one who's confused on this issue—and if I am, I apologize—but I thought that, given the circumstances and given the recommendation in this bill, as in other bills where there's an allocation of taxpayer money, a priority should be given to the minister. That concerns me.

What also concerns me, Madam Chair, is your statement that the supplementary estimates process has been completed without any input from any committee member at the justice level. I'd like to know how that happened, because I had a number of questions for Minister Virani on the allocation of money for Bill C-40, among other issues, in relation to the content of Bill C-40 clause-by-clause, and I'm missing out on this opportunity.

As I said, I've always had great difficulty.... I will throw a recommendation for consideration to Marco Mendicino, a colleague of ours, a former minister, who always had an open door policy. I never had any difficulty speaking with former minister Mendicino on any particular issue then—