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 .

Justice

[Ben Carr, Liberal, Winnipeg South Centre, MB]

Mr. Speaker, yesterday was International Wrongful Conviction Day. In grade 7, I wrote a paper on David Milgaard, a prairie kid who was in the wrong place at the wrong time. The injustice of his case was appalling. Immortalized through the Tragically Hip song Wheat Kings, it captured the attention of the nation.

Too many innocent people have suffered over the years. In fact, just today again in my hometown of Winnipeg, a wrongfully convicted man was exonerated. As Gord Downie reminded us, we “can't be fond of living in the past”.

Can the Minister of Justice explain how Bill C-40 would help strengthen our legal system to protect against wrongful convictions in the future?

(Bill C-26: On the Order: Government Orders)

April 19, 2024—Consideration at report stage of Bill C-26, An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other Acts, as reported by the Standing Committee on Public Safety and National Security with amendments—Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs.

(Bill concurred in at report stage, read the third time and passed)

(Bill C-40: On the Order: Government Orders)

June 17, 2024—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)—Minister of Justice.

(Bill read the third time and passed)

(Bill S-6: On the Order: Government Orders)

May 3, 2023—Resuming consideration of the motion of Ms. Fortier (President of the Treasury Board), seconded by Ms. Khera (Minister of Seniors),—That Bill S-6, An Act respecting regulatory modernization, be now read a second time and referred to the Standing Committee on Industry and Technology.

(Bill read the second time and referred to a committee)

(Bill S‑9: On the Order: Government Orders:)

December 15, 2023 — Resuming consideration of the motion of Ms. Joly (Minister of Foreign Affairs), seconded by Mr. Beech (Minister of Citizens' Services), — That Bill S‑9, An Act to amend the Chemical Weapons Convention Implementation Act be now read a second time and referred to the Standing Committee on Foreign Affairs and International Development.

(Bill read the second time, considered in committee of the whole, reported, concurred in, read the third time and passed)

(Bill S-16. On the Order: Government Orders)

June 6 2024—Second reading and reference to the Standing Committee on Indigenous and Northern Affairs of Bill S-16, An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation—Minister of Crown-Indigenous Relations.

(Bill read the second time and referred to a committee)

The House resumed 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.

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

[The Speaker, Liberal, Greg Fergus]

It being 3:14 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at report stage of Bill C-40.

Call in the members.

And the bells having rung:

The House resumed from June 14 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.

[Bonita Zarrillo, NDP, Port Moody—Coquitlam, BC]

Madam Speaker, it is absolutely devastating that this happened to a constituent of hers, but again it shows Conservatives do not understand what we are talking about in Bill C-40.

We are talking about, in Bill C-40, the fact that marginalized people in this country, more often indigenous people, indigenous women, and people of colour are being wrongfully convicted in this country, and then they do not have access to appeal because they do not have the funds for it. That is what this bill is about. I understand we need to also fix other injustices and justice in our society, but the Conservatives need to understand that this is about levelling the playing field for those who are under-represented by legal support in the criminal justice system.

[Bonita Zarrillo, NDP, Port Moody—Coquitlam, BC]

Madam Speaker, I rise to speak, on behalf of the residents of Port Moody—Coquitlam, Anmore and Belcarra, in support of Bill C-40, an act to amend the Criminal Code, and to advocate for it being enacted as quickly as possible. I think about the people who were wrongly convicted and who could not afford high-priced lawyers, more often than not women and other marginalized groups, who need reform to the justice system. This miscarriage of justice bill represents a critical step in our ongoing efforts to reform the system and to address the systemic inequities that have plagued it.

For the better part of a decade, New Democrats have called for the establishment of an independent commission to investigate wrongful convictions. In 2021, we supported expediting Bill C-5 in return for the Liberals' promise to create this commission, which Bill C-40 would finally deliver 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 delays and limitations in the current system.

I want to take a moment to recognize and thank my colleagues from Esquimalt—Saanich—Sooke and Winnipeg Centre for their wisdom and compassion in making the Canadian justice system fairer. They work tirelessly to improve the system and, with regard to Bill C-40 at committee stage, the NDP supported amendments that would ensure applicants could 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.

New Democrats also proposed amendments to empower the commission to make recommendations addressing systemic issues that lead to the miscarriage of justice. This proactive approach could 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.

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. This is a critical issue that strikes at the core of justice inequity in our society. I ask why people living in poverty have higher rates of wrongful convictions in Canada? It certainly highlights the disparities in our legal system and challenges our collective commitment to fairness and justice.

To understand this issue, we must first acknowledge that socio-economic status currently influences outcomes in the criminal justice process. From the moment suspects are identified, their financial status begins to shape their journey through the legal system. Unfortunately, for those without adequate funds, this journey often leads to a higher likelihood of wrongful conviction due to several intersecting factors: lack of adequate legal representation, systemic biases and the pressures of plea bargaining.

One of the most significant factors contributing to wrongful conviction is inadequate legal representation. The Canadian Charter of Rights and Freedoms guarantees the right to counsel, but in practice, the quality of legal representation a defendant receives can vary drastically based on their ability to pay. Consequently, poorer defendants frequently find themselves under-represented in court, lacking thorough investigation, expert witnesses and comprehensive legal strategies.

Systemic biases play a crucial role in the higher rates of wrongful convictions among people with limited financial means. The justice system, which should be impartial, is not. It is not immune to the biases and prejudices that permeate society. Socio-economic status can influence the perceptions of judges, jurors and law enforcement officers. Poorer defendants often face these implicit biases, as their lack of resources and lower social standing can be subconsciously associated with criminal behaviour. We have heard it in this very House.

This bias can lead to harsher judgments, weaker defences and, ultimately, wrongful convictions. It is proven in convictions that the intersection of race and poverty affect outcomes. Indigenous peoples and racial minorities, who are disproportionately represented among poorer Canadians, face compounded biases that increase their vulnerability to wrongful convictions. Studies have shown that indigenous and Black Canadians are more likely to be wrongfully convicted than their white counterparts, highlighting a deeply rooted problem of racial and economic inequality in our justice system. I note that the Conservatives do not understand this.

Another critical aspect contributing to wrongful convictions is the pressure to accept plea bargains. Plea bargaining, intended to expedite the judicial process and reduce caseloads, often places an undue burden on poor defendants. Faced with the prospect of prolonged pretrial detention, high bail amounts they cannot afford and the uncertainty of a trial, many low-income defendants feel compelled to plead guilty to crimes they did not commit in exchange for a reduced sentence. This coercive aspect of plea bargaining leads to a troubling reality where innocence is sacrificed for expediency.

Let us add that probation requires admittance of guilt, so the wrongfully convicted are forced to make unjust choices. Furthermore, wrongful convictions have devastating consequences beyond the individual. They erode trust in the legal system, perpetuate cycles of poverty and fail to address the real perpetrators of crime. When an innocent person is convicted, the actual offender remains free, posing a continued threat to society. This failure to deliver true justice undermines public confidence and perpetuates the belief that the system is rigged against the marginalized.

The Conservatives are fine with this reality. They say to just appeal. With all of the barriers I just outlined above, it is obvious that appeal is neither equitable nor just. Expanding access to post-conviction review and innocence projects can provide a safety net for those who have been wrongfully convicted. Organizations such as Innocence Canada work tirelessly to investigate claims of innocence and exonerate the wrongfully accused. By supporting their efforts and facilitating the review of questionable convictions, we can rectify past injustices and prevent future ones. It should not have to be that way.

In conclusion, the higher rates of wrongful convictions among lower-income Canadians highlight profound inequities in Canada's legal system. From inadequate legal representation and systemic biases to the pressure of plea bargaining and resource imbalances, the odds are stacked against those with limited financial means. With respect to Bill C-40, miscarriage of justice, it is incumbent on all of us to have a justice system that functions well and does not put innocent people behind bars.

[Claude DeBellefeuille, Bloc, Salaberry—Suroît, QC]

Madam Speaker, I am pleased to rise today to speak to Bill C‑40. This bill seeks to modernize the Canadian justice system by creating the miscarriage of justice review commission to address shortcomings in the processing of miscarriage of justice applications.

We are all aware of this issue; it has been rather well documented. The minister at the time, David Lametti, commissioned a study in 2021 to examine the issue because the processing times for the applications of people claiming to be the victim of a miscarriage of justice were completely unreasonable. In some cases, people who managed to complete the process had already spent many years behind bars, part of their lives, before being found innocent and released from prison.

The issue clearly needed to be addressed. The Liberal minister at the time, Mr. Lametti, commissioned a study and launched consultations, after which all the experts agreed that the minister needed to be stripped of one of his powers that might be characterized as absolute. Traditionally, under our laws, the minister alone had the fairly significant power to decide whether a person who claimed to be the victim of a miscarriage of justice could have a re-trial. That put a lot of power in the hands of one person, the person holding the position of Minister of Justice.

Although the minister worked with a team, it was still necessary to create a quasi-judicial commission made up of commissioners independent of the government apparatus in order to restore public trust. These commissioners will be able to take over from the minister to expedite the process of analyzing applications from people who believe they have been the victim of a miscarriage of justice. This should also serve to increase public trust in the fact that the people analyzing these applications are neutral.

There is one thing we find hard to understand. The Liberals have been in power since 2015. The Minister of Justice, Mr. Lametti, commissioned this study back in the day, and it had fairly unanimous support, yet he waited until 2023 to introduce his bill. Why is it that today, in June 2024, we are using an expedited legislative process to get this bill adopted? Two years ago, certain people could have benefited from a new miscarriage of justice review commission. We find it hard to comprehend why, all of a sudden, the Liberals are rushing to pass this bill even though it has been in the works since 2021 and has unanimous support.

When the bill was studied in committee, our justice critic, the member for Rivière-du-Nord, said that this commission was necessary and that he supported the bill. Naturally, the Bloc Québécois is going to vote in favour of Bill C‑40. We hope, once the bill is passed, that the government will promptly implement all necessary measures to allow the new commissioners to get on with their work.

Now, there is another question we are asking ourselves. Minister Lametti commissioned this study in 2021, but he also made a big decision in 2021, one that is hard to understand. I read another article today in the investigative section of La Presse. Former justice minister David Lametti is still being asked why, for example, he ordered a second trial in the Jacques Delisle case. Jacques Delisle is a former judge who was found guilty of murdering his wife. It is hard to understand why the minister did that. It is not just me, the member for Salaberry—Suroît, who is saying this.

As of March, Quebec's director of criminal and penal prosecutions still did not understand why the minister had ordered a new trial.

With the powers the justice minister held at the time, Mr. Lametti set in motion an entire legal process to retry Jacques Delisle, which obviously led to further investigations. The minister could only order a new trial if new and relevant information had been brought to his attention, if it could be demonstrated that evidence had not been presented at trial or if new evidence had come to light. To this day, Quebec's director of criminal and penal prosecutions is asking former justice minister and lawyer David Lametti to explain himself. Obviously, certain decisions were made as a result of the minister's decision. The Delisle trial has concluded, but not to the satisfaction of Quebec's director of criminal and penal prosecutions, which is understandable.

Bill C‑40, which we are debating, may rectify what has been a willingness to concentrate power in the hands of a single individual who holds the position of minister of justice. It is hard not to agree with that. We have every reason to question this. To the Bloc Québécois, it is important that the public and the citizens the minister represents have confidence in our system and that the victims also have confidence in the process and trust beyond a doubt that their case will be studied in a neutral, fair and equitable manner, based on the facts and any new evidence they might present.

During study of the bill in committee, there were debates, including one that surprised us in the Bloc Québécois. The member for Rivière-du-Nord, who is our justice critic and a member of the Standing Committee on Justice and Human Rights, introduced a single amendment. To us, that amendment made so much sense that we assumed its adoption was a mere formality.

The purpose of the amendment that the Bloc Québécois introduced in committee was to require judges, who play a quasi-judicial role in this miscarriage of justice review commission, to be bilingual or at least comfortable in both official languages. I would remind the House that Canada's two official languages are English and French. These two languages are governed by Canada's Official Languages Act. To ensure that the cases of francophones and anglophones are assessed fairly, the commissioners assigned to the case must be able to listen, ask questions and analyze evidence in both official languages.

To our great surprise, the amendment was defeated by a vote of six to five. A Liberal member who serves on the Standing Committee on Justice and Human Rights opposed it. Did his party use him as a scapegoat? I have no idea. He is an Ontario MP. We were very disappointed by that because the amendment made a lot of sense. Canada has an Official Languages Act, and it seemed very obvious to us that this was the way to go.

That will not prevent us from voting in favour of Bill C‑40, but once again, we are dealing with a total lack of understanding about the importance of French and the importance of guaranteeing Quebeckers and Canadians access in both official languages to the people who will be assessing their case.

I hope that Bill C‑40 will be passed quickly and that the commissioners can get to work soon.

[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—

[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.

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.

Business of the House

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

Mr. Speaker, for a moment there, I thought, for once, we were going to get away without a preamble, but we had a lot of amble there, a lot of post-amble.

I can assure my hon. friend that the law that is coming this fall would protect every single Canadian who draws their income from a paycheque, and 0.13% of Canadians would pay a modest amount of additional tax on capital gains over a quarter of a million dollars garnered in a single year.

Tax fairness not only will be written into the law, but also will continue to be the thing we talk about in the House.

Tomorrow, we will complete the report stage study of Bill C-40, Miscarriage of Justice Review Commission Act, which is also known as David and Joyce Milgaard's law.

I would like to request that the ordinary hour of daily adjournment of the next sitting be 12 midnight, pursuant to order made Wednesday, February 28.

Our priorities next week will be to complete report stage and third reading of Bill C-69, the budget implementation act, and second reading of Bill C-65, the electoral participation act. We will also give priority to other important bills, namely third reading of the aforementioned Bill C-40 and report stage and third reading of Bill C-26, the critical cyber systems protection act.

Finally, there have been discussions amongst the parties and, if you seek it, I think you will find unanimous consent for the following motion:

That the motion standing on the Order Paper in the name of the Leader of the Government in the House of Commons related to the appointment of Christine Ivory as Parliamentary Librarian, pursuant to Standing Order 111.1(2), be deemed adopted.

Bill C‑40—Time Allocation Motion

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

Mr. Speaker, I was happy to hear the Minister of Justice speak highly of the U.K. experience. A representative from the United Kingdom commission told us about the threshold language that it uses, that there is a real possibility a miscarriage of justice occurred, which is much higher than the wording that is being proposed in Bill C-40. The witness also told us about a large body of jurisprudence that supported that language. I read a lot of those cases and I agree that the United Kingdom got it right.

Why does the Minister of Justice not agree with that and adopt the United Kingdom's language, something that Conservatives could support?

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

Mr. Speaker, my question is not about the substance of Bill C‑40, but about the time allocation motion.

There are times when the Liberals filibuster, for example at the Standing Committee on Official Languages. They have done that at several meetings now because they refuse to accept the majority decision at the Standing Committee on Official Languages.

In this case, they are tabling a time allocation motion for much the same reason. When the Liberals do it, it is good, but when another party does it, it is bad. I would like to know what my colleague thinks.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Speaker, the reality is that, in the House, we have seen Conservatives blocking every good piece of legislation and refusing to let things go through, such as dental care, pharmacare and affordable housing. Conservatives opposed all those pieces of legislation.

With respect to Bill C-40, miscarriage of justice, it would seem to me that it is incumbent on all of us to have a justice system that functions well and does not put innocent people behind bars. That does not seem to be the perspective of the Conservative Party. The Conservatives want to block this legislation. The Conservatives want innocent people to remain behind bars. It is a profound disservice to Parliament that the Conservatives have been blocking this legislation, and they have not really offered any explanation except for the fact that they oppose everything that would benefit people, all measures of justice.

I want to ask my colleague why Conservatives have opposed the bill, tried to block it at every step and filibustered it at committee when it would provide justice in this country and a mechanism to ensure that innocent people are not kept behind bars.

[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?

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

Thank you very much, Madam Chair.

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

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

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

We are definitely in favour of Bill C‑40.

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

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

Justice and Human Rights

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

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

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

Polish Heritage Month

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I believe the amendment is self-explanatory.

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

Thank you, Madam Chair.

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

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

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

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

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

[Rob Moore, Conservative, Fundy Royal, NB]

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

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

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

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

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

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

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

Thank you.

[Julie Besner]

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

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

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

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

I hope that will assist you in your discussions.

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

Thank you.

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

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

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

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

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

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

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

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

Then it would say:

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

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

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

Then it says:

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

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

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

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

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting number 92 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation on miscarriage of justice reviews.

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

I believe we have a new member with us.

Marilyn Gladu, welcome to our committee.

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

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

With us in person today is Madam Anna Dekker.

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

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

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

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

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

(On clause 3)

Fall Economic Statement Implementation Act, 2023

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Speaker, this is a difficult moment for me, not because I had to find a new seat near the exit, not because it took me two tries to get to Ottawa because of the fog and not because I come from an Irish family of criers, but because it is really a moving moment for me.

I want to thank the member for LaSalle—Émard—Verdun for the friendship we have developed in the House. He has a great record of accomplishment, about which he spoke, but I want to point out something someone asked me on the plane last night, and that was how I could go to work in such a negative place. My response was that, unfortunately, all people see is question period, which is theatre, where people have other agendas they are pursuing, but they do not see the hard work that goes on behind the scenes, the co-operation and the friendships that are built. I really meant that, and the member for LaSalle—Émard—Verdun is a great example of this.

I made a quick list, because I had 15-minutes notice that I had this opportunity, on the number of things he and I worked on together and his willingness to take action to ensure we improved the justice system in Canada, in particular for indigenous people and the work he did on Bill C-5 to reduce mandatory minimums, which fall very hard on the most marginalized in our society.

He mentioned the conversion therapy ban. His work with the leader of the Conservatives and all parties meant we were able to pass that ban unanimously, something which I remain very proud of the House for doing.

He worked on Bill C-40, with which we are not quite finished, on the miscarriages of justice commission. Again, miscarriages of justice fall very hard on the most marginalized, particularly indigenous women. My pledge to him is that I will work as hard as I can to get that done, hopefully by the end of this month. We only have a couple of days, but I think we can get that done.

He also helped shepherd medical assistance in dying legislation through the House when I was initially the NDP critic. This was the most difficult issue in my 13 years here because of the very strong feelings on all sides of the issue. The minister always demonstrated his ability to listen, to be empathetic and to try to find solutions that would keep us all together on this very important issue about reducing suffering at the end of life, not just for the person but for the families of people who need that assistance at the end.

One last one is that I approached the minister about the publication ban on survivors of sexual assault and how many of them felt stifled by the publication ban. He asked what we could do to fix it. Eventually he agreed to add the ability to lift the publication ban in Bill S-12, and it came to the House. This was an example of how, when I approached him with an idea and a problem, he always looked for solutions and a way to bring us all together.

I know he will continue to contribute to Canada once he leaves the House, though I am not sure in exactly what way or if he is sure in exactly what way. He is one of the finest members of Parliament I have ever had the privilege to work with, and I thank him for his contributions here.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Speaker, today, I am stepping down. This is my last speech in the House. I would like to begin by thanking the voters in LaSalle—Émard—Verdun for entrusting me, three times, with the responsibility of representing them in the House.

I am also leaving my academic home, the Faculty of Law at McGill University. Leaving both institutions makes this a very emotional day for me.

Serving as a member, as parliamentary secretary and as Minister of Justice was the pinnacle of my professional career and I loved every minute of it.

That is what I want to talk about with friends today in this place. It is a series of moments that are indelibly etched in my brain and my heart, ranging from laughter to tears and everything in between, from Vancouver to St. John's, from Inuvik to Iqaluit to Nain and around the world in Europe, Asia and South America.

I would like to begin in my riding, LaSalle—Émard—Verdun, with Les Bons Débarras bookstore, where I buy my vinyls, on Wellington street.

Then to St. John's where twice I have managed to get to Fred's Records and fill my bags with many good vinyls, which I would then spin in my office. Everybody knows that Justice 306, as Brian Tobin and Anne McLellan have told us, is the best office on the Hill.

At impromptu gatherings with my team, many of whom are here, such as when we passed the MMP's bill, we would spin some vinyl, have some fun and honour and thank each other for the work that we had done to make those moments special.

There are many humorous moments. I sat for two years as the benchmate to Rodger Cuzner, who is now in the other place, including two Christmas speeches. I will not attribute my sense of humour to Cuzner, because his is quite unique, but it was certainly a wonderful experience.

As a member, I learned rather quickly to remove my earpiece when the member for Rosemont—La Petite‑Patrie had the floor.

I will not forget the first Press Gallery dinner sitting at a table with Rona Ambrose and hearing her speech, and those who were there would remember it well; or driving through Rome with our ambassador and watched the havoc being wreaked by the police escort that we had, I do not have hair but I would not have had after that anyway, and then later that evening going to V.I.P. Pizza, not the finest culinary experience in Rome, but still a good one; or throwing my suitcase in the back of a rented Ford F-150 when we were travelling in north.

There were serious moments too, such as the swearing in at Rideau Hall as a cabinet minister and the swearing in as an MP on three occasions. There was signing a proclamation at Rideau Hall proclaiming Charles the King of Canada, a one-time experience.

I listened to the stories of Italian Canadian families whose grandfathers or great-grandfathers were interned during World War II, realizing that I was the minister of justice and that a previous minister of justice had signed the decree to intern those people. There was working with my Italian Canadian colleagues in the House to get that apology done and attending the memorial unveiling in the riding of the former Speaker in North Bay with the indefatigable Joyce Pillarella.

I met David Milgaard in my office with James Lockyer and promised him that we would create an independent commission to review wrongful convictions. David Milgaard signed my album by the Tragically Hip, Fully Completely, which contains the song Wheat Kings that they wrote about him. Also, his sister Susan was present to announce the tabling of Bill C-40, and I will not be smiling fully until that bill receives royal assent.

This summer, at the G7 in Japan, I realized I was the senior justice minister around the table. I had my first conversation with Attorney General Merrick Garland of the United States. We had finished our agenda, and I had a chance to ask him whether the HBO series on the Unabomber was accurate. Attorney General Garland's voice lit up as he went on for 10 minutes about the accuracy and inaccuracy of the portrayal of the Unabomber case, but his view was generally favourable, and he said it was an important moment in his career.

When I was parliamentary secretary to the Minister of International Trade, I went to Namur, in Wallonia, to sell the Canada-Europe free trade agreement.

I was prepared to be the bad cop, as they say. It was fun. The minister was able to arrive a few weeks later to reach an agreement. In the same vein, I was the bad cop with Boeing at the Farnborough International Airshow in England. That was during the time when we had disputes with Boeing. There too, other ministers showed up afterward to make peace.

I had many wonderful moments on the hockey rink. This is Canada, after all, and I still try to lace up my skates, notwithstanding my advanced age. I had a wonderful moment in Gananoque, when a number of us in this House were celebrating the life and memory of our former colleague, the late Gord Brown. I will not forget that, because it was a wonderful non-partisan moment, and I was proud to be part of it.

I took part in a Métis-ITK hockey game, in which my defence partner was 45 years younger than me and one of the best players on the ice. She was fantastic. Another game was our first game in the Ottawa Senators arena against the Conservative Party, when the Liberals got their backsides kicked. There was a game on the ice rink on the Hill for the 150th anniversary celebration against a group of very young and impressive Mohawks from Kahnawake. The result was never in doubt. The only thing I would say that ties those last number of games together was the near complete incompetence of our goaltender, the current Minister of Immigration.

I exchanged puns on Jeopardy and Jeopardy metaphors with Chief Justice Ritu Khullar of Alberta, as well as a previous chief justice, Justice Mary Moreau of Alberta, in our speeches in Edmonton at Chief Justice Khullar's swearing in.

I have a number of memories of walking, such as with the member for Prince Albert and talking about trade, but talking more about our families. I walked with Alex Steinhouse in Yellowknife on a hike. It was absolutely stunning. I walked with Aluki Kotierk and Natan Obed in the hills above Nain. I walked to the Hill every morning from my Ottawa apartment.

I walked across the floor when I first became minister of justice to tell the member for St. Albert—Edmonton that I was going to support his private member's bill on supporting juries. I was proud of that moment, and I still am.

I am proud of some historic moments in this House. For example, we voted unanimously on a bill to outlaw conversion therapy. I will be forever grateful not only to the members of my caucus but also to the member for Esquimalt—Saanich—Sooke, as well as the member for Calgary Nose Hill, the member for Parry Sound—Muskoka and Erin O'Toole for the work they did to make that unanimous vote a reality. We saved lives that day.

I remember when the then minister of public safety, the member for Eglinton—Lawrence, and I sat down with provincial and territorial ministers of justice and public safety ministers to get to a unanimous agreement on bail reform. Not only did we commit to agree on our federal legislation, which is now law, but the provinces also committed to work at their end to make the bail system work better.

There were moments with Black community leadership across Canada on the Black justice strategy. In particular, in Nova Scotia, there was a very real pride in the room from that community because of their leadership on creating the movement toward pre-sentencing reports.

There were many moments with indigenous leaders across Canada, many of whom I now count as close friends. A moment in Williams Lake, at the site of a former residential school, is not something I will ever forget. There, I went into a barn where a number of the children would go, back in the day, and carve their names in the wood.

On the positive side, there is the pride of the Tŝilhqot'in leadership in having established their indigenous title; they used the courts and succeeded. I would meet them annually here in Ottawa and in their offices in the B.C. interior, and I saw the pride.

In Iqaluit, as a guest of President Obed of ITK, I was in the room when Pope Francis heard the stories of sexual abuse directly from survivors or the children of survivors. I saw the reaction of the pope and also, in particular, the reaction of the archbishop who was translating. At a certain point, the pope put his hand on the translator's shoulder because of the difficulty he was having in relaying the words.

There were other momentous moments, such as the House rising for what we thought would be two weeks at the beginning of the pandemic, all the urgent committee work we did during the pandemic, and the occupation and the understanding of the gravity of the Emergencies Act.

These were balanced by lighter moments, such as trying to buy a white suit online so I could represent Canada at the swearing-in of the president of the Dominican Republic. I had to buy two suits and then keep the one that fit. I got on a plane to the Dominican Republic and sat down beside Moises Alou; we talked baseball the whole way down. Another time, I bicycled along the Lachine Canal; I saw the work that we had done as a government on rebuilding the walls of that canal and knew that they were going to be there for my children and my grandchildren. In another moment, I was stopped on Wellington by an older gentleman.

He said to me, “Mr. Lametti, I often see you at Verdun Beach.”

Verdun Beach, in the middle of Wellington Street, is my favourite restaurant with an oyster bar. I had just been outed.

I think of places like Aj's, Shooters, Riccia, Station W, and now Monk Café; of the conversations with my constituents, particularly on Saturday mornings, when I go buy my bread and sandwiches at Bossa; of the statue of Saint Anthony and the time I stood next to it, during the saint's feast day in Ville-Émard with the Italian community.

These are times of a life, and I will cherish them. I thank those people who were involved in making those moments a reality, many of whom are in this room and in the gallery.

I want to underscore that UNDRIP is the future. It will allow us to reset our relationship with indigenous peoples. It is a true road map, a co-developed road map, to reconciliation.

It is a singular moment. Indigenous leaders want to participate in nation building. I have heard this time and time again, that they want to be part of this project Canada and they want their children to have the same opportunities as other non-indigenous kids have had, as I have had.

I am the son of Italian immigrants, who came to this country with no formal education. Because they chose to come to this country, I got to have an outstanding education at Canadian universities and at international universities. Because they made this decision, I got to be a professor at an outstanding law faculty in Canada. I could run to be a member of Parliament and even aspire to be minister of justice.

Indigenous peoples want a share in that dream. UNDRIP is a way for us to make it happen together.

We are many nations in this country. That is a source of strength and understanding as we move forward in the future. This recognition allows us to work on what unites us and to develop and protect languages and culture. This is true for indigenous peoples, as well as for Quebec.

We need to work together. We all understand that protecting and nurturing the French language and culture in North America is very important. We need to work together to ensure they live on and flourish in the future.

That means we need to stop scapegoating the English community in Quebec. People in this community are very bilingual and committed to Quebec; in many cases, they have been there for 300 years.

I have to say that the Charter is not optional, and the preventive use of the Charter suggests that the Charter is optional.

At some point, with everything we have said, we need to understand that constitutional change will be necessary, and we need to prepare for that. We need to be able to disagree with respect, and recent weeks have underscored that. I tried to be only as partisan as I had to be and only as partisan as necessary; I tried not to get personal. I did not always succeed, but I did my best. I think we all need to do our best, especially on social media and in this world where we are moving toward artificial intelligence.

Artificial intelligence does not exempt us from being human. Our human intellect, our emotions and our empathy will become even more important as AI supplements the more routine forms of intelligence. We cannot let it replace those other human qualities. Our survival as a country and as a species depends on nothing less.

It remains to thank people. I want to thank the Prime Minister for naming me parliamentary secretary and minister of justice.

I thank my colleagues here in the House and, especially, my critics, the members for Fundy Royal, Esquimalt—Saanich—Sooke, Rivière-du-Nord, and, for medical assistance in dying, the member for Montcalm.

My chiefs of staff, Rachel Doran and Alex Steinhouse, have been fantastic, and my political teams have been outstanding. None of what we achieved could have been done without them, and I thank them.

I thank my constituency teams for their dedication, hard work and service, oftentimes when I was not around much as a minister. In particular, I want to thank Nicole Picher, who has been with me for eight years.

I want to thank other elected officials in my riding at all political levels, and of all political parties, with whom I worked. I want to thank my political association, my volunteers and my donors, who helped me get elected.

My friends kept me grounded. Here in Ottawa, Mélanie Vadeboncoeur and the La Roma gang made sure I stayed humble. I thank my many friends in this place, such as the member for Eglinton—Lawrence, the current Minister of Immigration, the member for Thunder Bay—Superior North, the member for Oakville, Catherine McKenna and everybody else who has come through this place and with whom I hope to stay friends.

I thank my friends at McGill and the McGill deans for their support. I thank my ex-wife, Geneviève Saumier, who began this journey with me and with whom I share three wonderful kids; she continues to give me good advice. I thank my children. Perhaps the years away have been hardest on them.

I want to tell André, Gabrielle and Dominique that I love them. I thank them for their patience and devotion to their father.

Last, I have two points: First, kindness is not overrated, especially in a world of AI. We could all stand to be kinder, and we would all be better for it.

Second, this place is not overrated. The Right Hon. Paul Martin has said that you can get more done in five minutes in this place than you can in five years anywhere else. Paul has been a mentor to me. I am a successor in his riding, and he is a friend.

I would like us to prove him right every day.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Maloney.

I don't have any speakers, so I'm going to call for the vote on the amendment.

(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])

I am now going to call for the vote on the main motion.

(Motion negatived: nays 6; yeas 5)

Thank you very much, Mr. Clerk.

That concludes the business for which we are here in front of you today.

I will remind you that on Thursday we will continue. My expectation, based on colleagues' representation here in public, is that we will finish Bill C-40 on Thursday.

Do I have a motion for adjournment today, Mr. Maloney?

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

My comments on the amendment are pretty much the same as what I was going to say.

I wasn't going to speak again either, Mr. Van Popta, until I heard some of the comments from that side of the table. Being a lawyer, I feel compelled to respond and set the record straight.

As I said at the outset, this motion is politically charged. If I wasn't right before, I am now, because the amendment makes it clear that it's political. It can be interpreted no other way.

I'm going to address a number of points that my colleagues across the way have made. I think it was Mr. Caputo—or maybe it was Mr. Van Popta—who said it was remarkable that a judge goes public to speak about judicial appointments. There's really nothing remarkable about it at all. I attended the opening of the court ceremony in Toronto for many, many years, and there was a standard line in the speech of the chief justice. Even prior to 2015, because that's when I was going, it was about how there were x number of vacancies in the province of Ontario and how the government of the day needed to make sure those were filled. This is nothing more than judges reminding politicians of all stripes about the importance of making judicial appointments and about making sure they're current. There's nothing new under the sun about that. There's really nothing remarkable at all about that.

Mr. Brock talked about supernumerary judges. Yes, they provide six months' notice when they're going to go supernumerary, but something the general public might not understand is that when a judge goes supernumerary, he or she continues to serve as a Superior Court judge in that province but sitting for fewer weeks. It's about 50% of the time. If you do the math, if a number of people go supernumerary and those people are replaced, you actually have more judicial capacity than you had before.

He quoted the number as going from 100 to 79 currently, but that doesn't factor in the ongoing retirement. It suggests that only 21 appointments have been made, and that couldn't be farther from the truth. Then he quoted the article written by this civil litigator in Toronto—I was a civil litigator in Toronto—and then he went on to talk about the blame being put on the lack of courtrooms. Lawyers who practise in the Superior Court know that the only component of the system that falls on the federal government is the appointment of the judges. As for the lack of courtrooms, when you walk into a Superior Court courtroom in the province of Ontario, the person you're looking at up on the bench was put there by the federal government and paid by the federal government. Everything else—from the light bulbs, the desks and the staff to the number of courtrooms—is the responsibility of the provincial government, which has nothing to do with the reference to judicial vacancies; I'm sorry.

In fact, we all agree on one thing, which is the importance of making sure that judicial vacancies are filled and making sure that access is available to all parties, whether we're talking about criminal, civil or family court. After we were elected in 2015, we introduced legislation that would actually increase the complement of superior court judges, not decrease it. That creates greater access to the courts.

As for the Jordan decision, which keeps getting thrown around, I would remind people that it was based on a set of facts that started in 2009 and ended in 2015. When we use words like “negligence” when talking about appointing judges, how can that do anything but create fear and confusion in the eyes of the public? Using the Jordan decision as an example of anything to do with this current government is factually incorrect. I'm sorry. That was based on a decision, on facts and on the court system under the previous government, if you want to be clear on it. If you want to use it, let's make sure people understand.

One thing we do agree on, as Mr. Brock pointed out, is that the current Minister of Justice has done a very good job of making appointments and making them quickly. That's not going to change. We've seen evidence of that today.

My last point is this, subject to anything else I might hear today. With respect to the delay of Bill C-40, having this discussion right now is already delaying Bill C‑40 further, because had we not been dealing with this motion, I suspect that by 12:30 today, we would have been adjourning the meeting because the bill would have been passed.

Let's get on with it. Thank you.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you very much, Madam Chair.

I'm exceedingly disappointed here today, when we look at the Liberal government once again, after eight years, getting in the way of justice for ordinary Canadians. At the end of the day, there are people who are sitting in bail on remand, there are people who are dealing with the division of significant assets in a marital breakdown and there are people who may have been injured in a serious act of negligence who are not getting their day in court. That falls directly at the feet of this Liberal government, and yet here we are today to investigate this.

Here's the issue. The Prime Minister's Office was meddling in judicial appointments. If there is no reason to study that, then we might as well just pack our bags and get out of here. This was from the former Minister of Justice, who was anything but non-partisan in a number of different facets.

This Liberal government is saying that they don't want to look at this and there's nothing to see here. We know that the Liberals will vote against this. The question for me, really, is whether the NDP will again go along in their act as part of a cover-up coalition and vote with the Liberals to shut this meeting down, or whether they will do what's right for Canadians. Now, this has to occur in the interest of all Canadians, full stop.

I am going to address some of the things Mr. Maloney said. He talked about the integrity of the system. Do you want integrity of the system? Let's look at that. The integrity of the system is brought into disrepute when the Prime Minister's Office isn't appointing judges when judges need to appointed and are recommended to be appointed. I can't think of anything that would have equal impact on the administration of justice, from the point of view of judicial oversight and actually administering justice.

Mr. Maloney also says that this is a political discussion. Well, tell that to the people who are waiting in remand for trial. Tell that to the people who are waiting for a judge in family court and have two, three or four trial dates cancelled. Tell that to the person who was rear-ended eight years ago, has a traumatic brain injury and is waiting for their settlement. I don't think they would think this is a political discussion.

He says Bill C-40 is an issue here. Well, I can dispel that right here, right now. We're saying that we'll study Bill C-40 on Thursday. We're talking about today having meetings. Bill C-40 will be done on Thursday—I promise you that—so this idea that Bill C-40 should get in the way of Canadians getting to the truth is unfounded, in my view.

Now let's see what the NDP does.

Thank you.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

First of all, welcome back, everybody. Happy new year. It's good to see everybody.

I hope this committee can get off on the right foot and get moving forward on the important issues at hand. That is not how I would characterize this motion, if I were asked—to be frank.

First, I would start by saying thank you to former member of Parliament and justice minister David Lametti. As we all know, he has announced that he has decided to retire and move on to private practice.

In my view—and I know this view is shared, certainly by the people on this side of the table and, I believe, around the House—he was a remarkable member of Parliament. He served as the Minister of Justice with integrity and honour. I was very proud to work with him and have nothing but total admiration for the work he's done. I just wanted to say thank you to him.

One of the many problems with this motion is that every time you have a discussion like this, it somehow impugns the integrity of the justice system. I'm looking across the table at five lawyers and one person who had the wisdom not to become a lawyer. It sends the wrong message to the general public, because I think everybody who has practised will agree that Canada has one of the greatest judicial systems. It's the envy of the world. I'm very proud to be a part of it.

Justice Lametti has, as I said, a great track record as justice minister, including judicial appointments. I'm very proud when I look at the people who were appointed under Justice Lametti's watch and at the people who have been appointed under our current Minister of Justice's watch. It's a source of pride, frankly, because they are quality people.

The process by which they're appointed is also something I'm very proud of, because if you look back over the past seven years and you look at the number of women, for example, who have been appointed to the bench since 2016, it's over 50%. This is the first time in Canadian history we've ever seen that. The bench now is more reflective of society as a whole—it's something we should all be very proud of—all while maintaining the integrity and quality of our system.

To proceed with this motion would be unfortunate, because it can only lead to a discussion that will become political and, as I said at the outset, send the wrong message to the general public about why we're having this discussion. This is because it raises questions that aren't real and are about how we may have a problem when we don't.

Just to address Mr. Moore's other point, about legislation, we've been patiently, as a committee, trying to deal with Bill C-40. We left here in December, after not several days but several weeks of filibustering delaying the passage of that bill. We are so close to having it done. There are families and people across this country who are watching us and who have respect for the integrity of our system. If we waste time on this motion and delay dealing with Bill C-40 any further, it will be a complete shame and a display of a total lack of respect for all those who are waiting patiently.

Therefore, I will be voting against this motion, in the hope that we can move on very quickly and get back to Bill C-40.

I should point out, too, that in the last 12 months, there have been 100 judicial appointments filled. In keeping with that accelerated pace, this meeting started at 11 o'clock and eight appointments have been made since we sat down here this morning.

Thank you, Madam Chair.

[Rob Moore, Conservative, Fundy Royal, NB]

Sure. Thank you, Madam Chair.

Also, thank you, everyone, for your consideration of the motion.

I think it is important that this committee study this issue. It's a big issue, and it is fully within our wheelhouse. I'm not proposing that we spend an inordinate amount of time on it, but we should take a look at the impact of these vacancies on our justice system. Also, I don't see this in any way necessitating a delay in our consideration of Bill C-40. We have Thursday's meeting. We could possibly deal with Bill C-40 at that point. However, I do think it's something we should take a look at, for the reasons that are in the motion itself.

Thank you for your consideration.

[Rob Moore, Conservative, Fundy Royal, NB]

That's why I'm moving a motion.

Normally we meet from 3:30 to 5:30. We're heading into Christmas season. At the rate we're going, we're not going to pass Bill C-40 tonight, no matter what. There are just too many clauses to go through.

We're scheduled to meet in the new year on January 29 or 30. I would suggest that we adjourn now and everyone have a merry Christmas. Then we'll get back to work when the House reconvenes.

I move that we adjourn.

[Rob Moore, Conservative, Fundy Royal, NB]

Yes. He had some very interesting testimony.

He was reminding committee members that the landscape around our system of justice has changed remarkably since some of the more high-profile cases around wrongful convictions in this country. There's been the coming into effect of the charter, of legal aid and of DNA evidence. DNA evidence didn't exist at the time of some of these wrongful convictions. DNA evidence can be used to convict and DNA evidence can be used to exonerate.

I need to speak about the North Carolina experience. I wouldn't want anyone to be under any illusion that what's being proposed here is in any way in sync with what North Carolina has done once we've heard that testimony.

North Carolina requires evidence of factual innocence. I asked the witness from North Carolina why they came up with that standard. She said it was the standard that they found would be acceptable to the people in North Carolina. From talking with my constituents about the justice system, which I do, and hearing from other members of Parliament from all parties on what they hear from their constituents, I have to believe that Canadians' expectations around wrongful conviction more closely mirror what North Carolina has proposed versus what is being proposed in Bill C-40, should it be broadened—that is, if there is new evidence to suggest that it is likely that someone who was convicted of an offence was innocent, every single one of us should want that person to be completely exonerated if that person is found, through DNA evidence or other evidence, to have been wrongfully convicted of a crime they didn't commit.

You will remember the case of O.J. Simpson. He immediately said that he would go out and look for the person who actually committed the crime. Well, most people thought they had the person who had committed the crime the first time. That's the kind of response there should be when there is a wrongful conviction found within our system. It should be that strong; Canadians should say, “We need to find the person who really did this.” That is not the standard in Bill C-40.

Why do I mention that? Bill C-40 is tenuous enough, with the.... I would say we need to have a robust system, obviously, for individuals who have been wrongfully convicted. We have a system now. The Minister of Justice is ultimately responsible for that system. We have a threshold now that says, “a miscarriage of justice likely occurred”. We could debate around this table whether that is too high a threshold, but I can tell members that if we were to poll our constituents and ask what the standard should be, they would be much more likely to say the bar should be “when there's a real possibility there was a miscarriage of justice” rather than a convicted individual who doesn't appeal their sentence being able to avail themselves of the commission. What standard does the commission apply? Well, there “may” have been a miscarriage of justice. Is it based on new evidence? Not necessarily; it's based on the whims of the commission at that time. This is where we're heading should Bill C-40 be amended and broadened in its scope.

I'm not going to put anyone on the spot. I'll answer my own question. When the minister and the cabinet considered Bill C-40 before it was tabled, and on the advice they would have received from departmental officials.... There is a reason an individual, except under exceptional circumstances, has to appeal the decision. There's a reason inherent in that. There's a reason that this standard is meshed with that requirement. The ultralow standard that a miscarriage of justice “may” have occurred requires the step of having to appeal. To introduce the possibility of not appealing at all calls the low threshold into question even further,.

It's for those reasons I have concerns about NDP-1.

We did a study recently, as a committee, on the federal government's obligations to victims of crime. I think of that study often when I look at other pieces of legislation. That's a lens—I hope we all agree—we should somewhat look through. That's a lens that should always be on our mind when we look at any piece of legislation. Right now, I'm looking at Bill C-40, and specifically NDP-1. I want to look at Bill C-40 and amendment NDP-1 through the lens, at least, of victims of crime. When someone feels they were wrongfully convicted—even though, under this provision, they may have committed the offence—what does a victim of crime say about a process that's going to involve dredging up their concerns and revictimizing them? I don't throw that out lightly. The process revictimizes victims. That's why we need to get this right.

We heard that testimony at this committee. We heard that from victims who have lost loved ones. They have said that having to go to parole hearings, having to know that their daughter has to go to a parole hearing, that when they pass on, their daughter will go to a parole hearing of the individual who murdered their husband.... We heard the testimony that it revictimizes victims. Victims have been through enough, so when we create a system that could amount to a reopening of these very hurtful cases for victims, we'd better be sure that we're dealing with cases that we ought to be dealing with.

That is why.... We have a system of justice. I think it was Mr. Van Popta who rightly mentioned that some of the fixes that people are trying to incorporate into this catch-all may be better placed in other areas—for example, access to justice, legal aid. The question was put to Minister Virani about making sure that vacancies in the system of judges are filled, making sure that people can get a hearing, making sure that there's timely access to justice—there's the old expression of “justice delayed is justice denied”—and all those things.

This commission cannot be a fix-all for everything that's wrong in the justice system; this commission should be about the wrongfully convicted. With NDP-1, I fear that we are steering away from that principle and into an area that I don't think Canadians would be supportive of: the possibility of opening up a parallel justice system, another avenue to avail yourself of when you've been convicted of a crime. You may choose, “Well, I'm not going to appeal my sentence as I'm supposed to do. I'm convicted. I'm not going to appeal. I'm going to try out this new commission.” What's the standard for that commission? I know that within the criminal system, the standard is “beyond a reasonable doubt”. Within this system, the standard is that “a miscarriage...may have occurred”.

I was speaking a bit about victims. I look at the U.K. treatment of victims, and what “The Wrongful Convictions in Canada” paper says—and I think this is instructive for us—is that:

the CCRC has been criticized for not having objective standards to determine the scope of investigations, with neither a minimum amount of investigation required, nor a logical end point to the open-ended task or proving the absence of error.

The U.K. has its challenges, too, even with its higher standard, but it was clear from the testimony that the U.K. takes that investigative responsibility serious. When it comes to victims, the CCRC says:

The CCRC will not contact a victim just because we are a looking at a case.

Now listen to what they say next:

This is because most of the cases we look at are not sent for an appeal.

Why? It's because the standard is that “there is 'a real possibility' that the conviction would not be upheld.” Their standard is not that the conviction may not be upheld; it's that “there is 'a real possibility'”.

The CCRC goes on:

We know that victims and their families have already had stressful experiences. Finding out their case is under review can make them feel they are having to relive it all again [and] are not believed. We do our best to avoid causing unnecessary distress where we can.

That's the U.K. It's saying that it's not going to put victims through a frivolous.... It's acknowledging that it's not going to hear a lot of the cases, the applications, that come to it because it has a standard. It's saying that it's not going to put victims of crime through this just because someone says, “I didn't get a fair shake. I was wrongfully convicted. I'm going to take a shot at the CCRC.” It's saying that it doesn't even notify the victim right away because it doesn't want to stress out the victim and the victim's family. It knows what this will put them through—to hear that the person who was convicted of maybe murdering a friend or a family member is now going to suggest that they were wrongfully convicted.

The CCRC says:

If the CCRC decides to send a case for an appeal, we will always try our best to tell the victim or their family.

It also says:

If a victim or their family feels we have not acted in accordance with our policy they can complain, using our complaints procedure. Our Customer Service Manager will take an independent look at the issue raised.

I haven't heard from the NDP or the Liberals on how they reconcile. If I had seen a two-part amendment, if I had seen an amendment that said we don't want to require appeals but we do agree with having a higher standard, I might want to take a closer look at the amendment, although there's a reason that the justice minister had the requirement of an appeal.

For those reasons, I would urge extreme caution around both NDP-1 and LIB-1. They do not mesh with the full context of the bill, which has an extremely low access point of “a miscarriage of justice may have occurred”.

I think I'll wrap up my remarks for now on NDP-1. I have some questions that I am going to put to our witnesses who are here. I might save that for a bit.

I just wanted to make some comments early on to everyone and to our committee members about the U.K. experience as we deliberate on NDP-1, because what I mentioned was not part of the testimony that we heard; it is through some deeper digging that I had done on the U.K. experience. I find their concern around victims, their rationale behind their higher threshold, and the fact that even with their higher threshold, they were met with an enormous volume of applicants to be incredibly compelling and instructive.

We have to be prepared for that too. We are going to have an enormous volume of applicants. Unless we want to completely ignore the entire U.K. experience—and they have years of experience on this—and unless we want to completely ignore their rationale and their lived experience in having a commission, we are not only going to face an enormous volume of applicants, but we are also going to cause enormous disruption to victims and their families if we don't get Bill C-40 right. If the threshold is too low, this is going to cause enormous hurt to families of individuals who were killed or injured by those who have been through our justice system and have been convicted, having not even appealed that conviction.

I will conclude my remarks on that note on NDP-1 for now.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I was talking about the U.K. system and their standard as it relates to NDP-1 and LIB-1—that “real possibility” standard. This is seen as a lower bar than Canada's current threshold.

If I were to ask everyone around whether they know what Canada's current threshold is, I don't know if they would know. However, the current threshold requires this: “a conclusion that a miscarriage of justice 'likely occurred.'”

Within our system—and this ties into NDP-1 and LIB-1—we have “beyond a reasonable doubt”. That's the highest standard that we use. That is the standard by which someone needs to be convicted; it has to be “beyond a reasonable doubt” that they committed the offence. It can't be that the person might have done it, that there's a good possibility that the person did it, or that on the balance of probability, fifty-fifty, we think he did it. That's not the standard that we use in Canada. The standard that we use for conviction is “beyond a reasonable doubt”.

A lower standard, applied in civil cases and some other cases, is on a balance of probabilities. That means you weigh the scales and you say that it's more likely scenario A than scenario B. That is a balance of probabilities.

The Canadian standard right now under wrongful conviction—the current law—“requires a conclusion that a miscarriage of justice 'likely occurred.'”

When you consider these different standards, Madam Chair, that's a fairly high bar, to say that it “likely occurred”. The minister has to feel that there was a miscarriage of justice. It's not that there “may have been” and it's not that there's a “real possibility”; this is a somewhat higher standard. It's not as high as the Criminal Code standard of “beyond a reasonable doubt”, but it's that it “likely occurred”.

The U.K. standard is that there's a “'real possibility' that a conviction would not be upheld”. “Real possibility” is a far lower standard than our current standard of “likely occurred”. This different standard helps to explain a much higher volume of cases that are successful in the CCRC—that's the Criminal Cases Review Commission of the United Kingdom—versus those in Canada's criminal conviction review process.

We're talking about—depending on how many we're counting—a minimum of three standards here. One is our current standard that “a miscarriage of justice 'likely occurred.'” The other is the U.K. standard that there's a “real possibility” that a miscarriage of justice occurred, and then there's the new standard in Bill C-40. The new standard in Bill C-40 is “that a miscarriage of justice may have occurred”.

That's why, Madam Chair, I have real concerns about reconciling NDP-1 and LIB-1 and explaining how this wouldn't open up an absolute tsunami of applications. This is a very subjective test, and depending on how the commission chooses to operate, we could have a ridiculous volume of frivolous cases with that standard.

I'm not suggesting, necessarily, that the current standard is the appropriate one. The current standard is that it “likely occurred”, which I take to mean that the minister feels there's at least a 51% chance that there was a miscarriage of justice. To me, the U.K. standard is more reasonable. That's why later on, once we've dealt with NDP-1 and LIB-1—I'm not speaking to it now, but later on—you'll hear us move a Conservative amendment that would change that standard from “may have” occurred to the U.K. standard of “likely” occurred. I think that's completely reasonable. I think that will protect this commission and protect Canadians' perception of our justice system.

I was looking at some polling. I'd encourage all members to look at the polling on how Canadians feel about our justice system. It's pretty dismal. Canadians are really concerned about our system of justice in Canada. A top concern is that the rights of victims are protected and that the individuals who should be behind bars are in fact behind bars. We have to be very careful. In Bill C-40 we have to get it right. At the outset, when I speak to NDP-1, it ties in directly to this standard that a miscarriage of justice “may” have occurred.

Following on the idea of the CCRC, the U.K. commission, the idea of a Canadian CCRC obviously has significant support among experts and stakeholders. Some people argue that it's potentially too costly. Canada has a low number of identified wrongful convictions. You could take that to mean a couple of different things. You could say that we're not finding enough wrongful convictions; you could also say that our system of justice is effective at preventing wrongful convictions. I mentioned some of the safeguards we have in place.

I think it was the individual whom Mr. Caputo had recommended as a witness—a former associate of his who spoke very highly of Mr. Caputo—who brought to the attention of the committee some very interesting testimony.

What was his name?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for your answer.

This ties into these amendments, because we have to look at other countries and how they handle their commissions. That's why we had witnesses from the U.K. as well as from North Carolina.

The U.K. Criminal Cases Review Commission website, under “Our powers and practices”, says:

Our legal powers mean that we can often identify important evidence that would be impossible for others to find.

We can also interview new witnesses and re-interview the original ones. If necessary, we can arrange for new expert evidence such as psychological reports and DNA testing.

We look into all cases thoroughly, independently, and objectively but the legal rules that govern the work of the Commission means that we can only refer a case if we find that there is a “real possibility”

—and this gets to the crux of my point—

that an appeal court would quash the conviction or, in the case of an appeal against sentence, change the sentence in question.

That real possibility already puts our system.... The test that's being proposed in Bill C-40 is that a miscarriage or justice may have occurred. “May have occurred” is an incredibly low bar.

Of course a miscarriage of justice may have occurred in a case, but we have to aspire to something more than the absolute floor. To suggest that someone can avail themselves of a commission, a new commission.... I'm hoping nobody in this room would want to create a parallel justice system or clog up our courts with cases that shouldn't be before them, cases that have already been dealt with. If you've been convicted of a crime and you've appealed your sentence, or not, and you have a chance to have that sentence overturned, why wouldn't you take it?

I should mention that even with this higher threshold in the United Kingdom, when this commission was opened up, they saw a rush of individuals who sought to have their convictions overturned. They have set a standard. We brought them forward as witnesses, but our standard is far lower. The effect of amendments NDP-1 and LIB-1 would be to further lower the threshold whereby someone could avail themselves of this commission.

They say the following:

We can only refer a case if we find that there is a “real possibility” that an appeal court would quash the conviction or, in the case of an appeal against sentence, change the sentence in question.

The CCRC is a prescribed body under the legislation dealing with the making of public interest disclosures (whistleblowing). This means that, quite apart from our statutory responsibility to deal with the applications we receive, we are the body to which individuals can report concerns of actual or potential miscarriages of justice.

What it takes to refer a case for appeal is new information plus a real possibility. Neither of those things is a requirement under the existing Bill C-40, let alone if we were to adopt amendment NDP-1 or LIB-1. Neither new information nor a real possibility is a requirement that would bar someone from availing themselves of this commission, using up the commission's time and perhaps clogging up the justice system when the commission doesn't even have to believe that there is a real possibility that a miscarriage of justice has occurred or that there's a real possibility of an appeal court overturning a conviction.

It's a two-part test, as we've heard. It introduces what I think is a very reasonable test: One, is there a real possibility that a miscarriage of justice occurred? If you accept that, two, is there a real possibility that an appeal court would change the sentence? What they're trying to do there is ensure they're dealing with cases that, based on the evidence before them, number one, they believe involved a miscarriage of justice, and number two, based on the evidence they have, that there's a real possibility of an appeal court overturning a conviction or not offering a conviction when there has already been one.

They go on to say, “We must be able to show the appeal court” some “new” information—again, that's not a requirement of BillC-40—“that was not used at the time of the conviction, or first appeal, and that might have changed the outcome of the case if the jury had known about it.” They say that it will not be of any use to simply apply “to the CCRC...saying the jury” got it “wrong” when they chose “to believe the prosecution case instead of the defence, unless there is “convincing new information to support that idea.”

I want to narrow in on that: It will not be of any use to simply apply to the CCRC saying that the jury got it wrong when they chose to believe the prosecution case instead of the defence. That's how our system works. Unlike what was in place for some of the wrongful convictions that are most famous in this country, we now have the Charter of Rights. We now have an improved legal aid system. We have a justice system that affords incredible rights to those who have been charged.

We've heard testimony on other pieces of legislation, like Bill C-5 and others. The fallout on Bill C-75 said that there are individuals who are being let out who should be in jail, or there are people who are not getting convictions who should get convictions. We've heard from victims saying that we don't have a justice system—we have a legal system. The cards are often stacked against victims in this country, and that's what's lost in some of this debate.

I have to refer back to the U.K. system. Their commission is one that we've chosen to take a strong look at. Simply saying, “I didn't get a fair shake” or “I don't agree”, or “The jury got it wrong”, or “The judge got it wrong and I'm actually innocent”, is not good enough to avail yourself of the commission.

What they go on to say is that for them:

To refer a case for appeal, we must think the new information is convincing enough that it raises a ‘real possibility’ that the appeal court will overturn the conviction. If we refer a sentence for appeal [we must be convinced that there's] a ‘real possibility’ that the court will reduce the sentence.

This goes to something that Mr. Caputo raised about changes in sentencing guidelines for individuals who were convicted of an offence in the past that would not be the same level of offence now. They can, in the U.K., avail themselves of a reduction in their sentence, but the commission has to be convinced that there's a real possibility the court will reduce the sentence.

Madam Chair, they go on to say, “Most people apply to the [commission] because of convictions or sentences they have received in a Crown Court.” They go on to reiterate that standard of, first, “new information”, and, second, “a 'real possibility'”.

I go back to the bill, Bill C-40, that was presented to us by Minister Virani.

Number one, does Bill C-40 say there has to be a real possibility that a wrongful conviction occurred, or a miscarriage? No. Bill C-40 says that it “may have occurred”. Even under our current legislation, which the minister currently exercises control over, there's a higher standard than “may have occurred”. Of course, it would be impossible to have a lower standard than “may have occurred”, so one thing I took some comfort in with Bill C-40 when it was originally presented is that there was this requirement that an individual would have at least availed themselves of an appeal.

Madam Chair, there's a tremendous amount of noise on the other side there.

[Julie Besner]

We're aware that in the U.K., they have a provision in their statute whereby the commission can make exceptions. It's a very short provision. I don't have it with me, so I can't read from it, but it's that exceptions can be made.

I wanted to point out that currently the Criminal Code does require that appeals be exhausted. When I was here with the minister on October 31, I think I might have explained that the way Bill C-40 sets out the exceptions and the considerations is a codification of the relevant law that explains how it's to be considered and applied. In the past, there was some confusion as to what it could include and could not include, so the approach was to just clarify. That is there in Bill C-40 as a list of considerations for whether exceptions can be made for the Supreme Court level.

I would add one more piece of information for the committee. In subsection 3(a) of the provision we're looking at here, it says:

the court of appeal has not rendered a final judgment on appeal of the finding or verdict;

Those terms are lifted from other parts of the code, and it's for drafting reasons that they were used, but I wanted to share with the committee that in the case law, in a decision called “Alvin”, the courts have clarified that if an applicant on an appeal has requested an extension to a file, has requested an appeal and been denied or has filed for leave to appeal and has been denied, that constitutes a final decision of the court of appeal.

It doesn't mean final judgment, when there was actually an appeal heard and a decision rendered on the merits of the appeal itself. It's just that the person attempted to seek an appeal and was unsuccessful.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a number of questions and comments on NDP-1 as well as LIB-1, since we're dealing with them both at the same time.

The first thing I want to point out.... There may be someone on the government side who can speak to this if they want to, but the government, in its wisdom—Mr. Virani was here not long ago on Bill C-40—elected to have a requirement that a person had to have appealed their decision. NDP-1 and LIB-1 both do away with that that requirement. It's no longer a requirement to have appealed your decision.

That's a fundamental change in the bill as it was received by this committee a short time ago and as it was presented to this committee by the Minister of Justice. It's a fundamental change because, in one instance, an individual would have been convicted at trial and then would have appealed their decision and then, presumably having had their conviction upheld, would then avail themselves of of the commission. That would be the bill as proposed. The bill as amended, should NDP-1 or LIB-1 be successful, would eliminate the requirement for an individual to have appealed the decision.

I guess my question, Ms. Besner, is if the department has done an analysis of the international situation.... We had testimony here from the U.K. and from North Carolina. It was interesting. North Carolina is the only state in the U.S. that has a commission like this. Of all the many states, there's only one that has this commission.

It was interesting to hear from an individual from that commission, who gave testimony that “factual innocence” was the bar by which somebody could avail themselves of the commission. There has to be a finding of factual innocence. There's quite a high bar of entry to the commission. One of the bars of entry in our system, as proposed by Bill C-40, is that an individual has to have appealed their decision. That's showing some degree of faith in our system.

I have to agree with what Mr. Van Popta said. We're trying to address, certainly from my perspective, issues around someone who is innocent, someone who was convicted of a crime they did not commit. That shouldn't happen in any country. It shouldn't happen in Canada that someone can be convicted of a crime they didn't commit. However, being human, we fail. Everyone can get it wrong within the system. The police could get it wrong, the prosecutor could get it wrong or the judge could get it wrong, because we're all human. Therefore, when new evidence arises that an individual did not commit the offence, that they were wrongfully convicted, as has happened in many high-profile cases in Canada, there's a process in our country whereby individuals avail themselves of relief.

My question is on the international experience. When the department drafted this legislation and provided advice to the minister, and the minister presented the legislation to us, the minister chose—the government chose—to maintain a requirement that an individual would have appealed the decision. These two amendments fundamentally alter that.

If you don't know, that's fine, but I want to ask this: Has there been a comparison with any international peers on this requirement that an individual has to have appealed?

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

Thank you, Madam Chair.

I just wanted to jump into the debate briefly to say that the Bloc Québécois is in favour of Bill C‑40, as well as the important amendment proposed by the NDP.

I think our witnesses were able to answer most of the outstanding questions about the meaning of the amendment. If no one else has any questions, I propose we vote, so that we can continue clause-by-clause consideration of this very important bill.

Mr. Garrison read letters to the committee from a number of stakeholders who were eager to see Bill C‑40, an extremely important piece of legislation, passed. Out of respect for those people, we should do the work we have been entrusted to do.

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

On this point of order, this committee is a standing committee of this House of Commons. We can meet at our regularly scheduled meeting time until we finish any number of studies or bills. We had a study on wrongful conviction. We had a study on this bill. We had a study on the federal government's obligation to victims of crime. We've passed different pieces of legislation.

My point, Madam Chair, is that there is no obligation on this committee and there is no directive from the House that we would finish Bill C-40 today, so there's no reason to schedule a meeting for eight hours straight. Therefore, if someone has an issue with the meeting being eight hours, they should take it up with you, because this committee is scheduled to meet again in the new year, when we will pick up on Bill C-40, I'm sure.

[Rob Moore, Conservative, Fundy Royal, NB]

On a point of order, Madam Chair, Madame Brière just mentioned the length of time that we're meeting. The normal meeting time for the Standing Committee on Justice and Human Rights is Tuesdays and Thursdays from 3:30 to 5:30. We're currently looking at Bill C-40, which, as I mentioned, creates an entirely new commission, an entirely new body to deal with wrongful conviction.

I don't want anyone to be under any illusion. We're going to take the time necessary to look at this bill. We're going to look at every sentence, every word, of this bill, because it all has meaning. It's going into the Criminal Code. It's part of our duty.

If Madame Brière has an issue with the timing of the meeting or the length of the meeting, I would urge her to raise it not with Mr. Caputo, who did not schedule the meeting and did not set the time, but through you, Madam Chair. She should raise the issue with you, because I received a notice—

[Rob Moore, Conservative, Fundy Royal, NB]

It's on a point that was just raised by one of our colleagues here, Mr. Garrison. He said that there are individuals who suffered a miscarriage of justice or a wrongful conviction who are waiting for this legislation to pass, when in fact it was the testimony of the....

I just want to point out, so that Canadians are not under a wrongful illusion of what the situation is, that there's a robust process that currently exists and has existed over the last eight years of the current Liberal government, and existed prior to that as well under a Conservative government, that someone who has been wrongfully convicted or suffered a miscarriage of justice can avail themselves of. Ultimately the arbiter of the outcome is the Minister of Justice. Minister Virani appeared here and explained the current system.

Bill C-40 seeks to amend that system. It seeks to change it so that it is not the Minister of Justice. We've had a number of ministers of justice who have spoken to us about this. We've had a number who have dealt with cases of wrongful conviction. Minister Virani—possibly, not yet—said that there are some in the hopper, so to speak, with the department. There's a team of individuals at the Department of Justice who are experienced and specifically tasked with dealing with, under our current Criminal Code and laws, miscarriages of justice. They provide advice to the minister. That's the way it has been done.

There are those who feel that this process is inadequate. There's no doubt that laws can always be improved upon, but I wouldn't want anyone to think that unless this bill passes, the wrongfully convicted do not have a process to avail themselves of, because they absolutely do. That should be acknowledged. That's the testimony of the Minister of Justice, who appeared here on this legislation.

I wanted to make that point quickly at the outset, Madam Chair. If individuals are somehow waiting for this legislation to pass, individuals who are wrongfully convicted.... If, for example, DNA evidence subsequently shows that they in fact were not the individual at the scene of the crime, or new evidence comes forward that somehow exonerates this individual who was arrested, prosecuted and convicted with the full benefits of the Charter of Rights and a robust defence.... This individual was convicted of a crime, but subsequently we find out that the system got it wrong and that his individual is not guilty; this individual is innocent. Well, then, there is a process, so nobody in that situation should be waiting for Bill C-40 to pass.

To say that we're waiting for C-40 to pass would be to say that we're somehow opening up our system of justice in this country and opening the doors up to allow individuals who are not innocent to avail themselves of this process. If someone is factually innocent of a crime, there's a process whereby ultimately Minister Virani makes the call under the advice of an entire team within the Department of Justice. There is a process for that.

I wanted at the outset, before we get into this, to state that. I just thought, with the comments from Mr. Garrison, that someone could be led to believe that Canada doesn't have a process, when in fact we have a very robust process.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting 90 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation regarding miscarriage of justice reviews.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. I have two members attending remotely using the Zoom application. They are familiar with the processes of committees.

I would like to let members know that the tests were completed successfully.

Here with us today once again on our clause-by-clause study of Bill C-40, we have officials from the Department of Justice.

Joining us are Julie Besner, senior counsel, and Anna Dekker, senior counsel and deputy director, public law and legislative services sector.

Welcome.

Colleagues, pursuant to the order of reference of Wednesday, June 21, we are resuming debate on Bill C-40.

(On clause 3)

We are on amendment NDP-1. This has already been moved.

If NDP-1 is adopted, LIB-1 cannot be moved due to a line conflict.

House of Commons Procedure and Practice, third edition, states on page 769:

Amendments must be proposed following the order of the text to be amended. Once a line of a clause has been amended by the committee, it cannot be further amended by a subsequent amendment as a given line may be amended only once.

We will resume debate.

Mr. Housefather—

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

No, Mr. Housefather's points are well taken, Madam Chair, because as was just mentioned, and it's important for us to know this....

I have a number of questions about NDP-1, but since you have ruled that if NDP-1 passes LIB-1 drops, it's impossible not to look at them together. Obviously, we would only want to go with one or the other—or neither, depending on our views of the legislation.

Turning now to our departmental officials and focusing on NDP-1, because that's the one we're on, a lot has been said about exhausting appeal. We heard witness testimony on that. There are, I think, significant public policy reasons and interests to not gum up our justice system and to not create a parallel justice system where someone could say, “Oh, I was convicted. Do I go the appeal route? Do I go the 'I was wrongfully convicted' route or 'I had a miscarriage of justice' route?” Lawyers would be advising their clients on which would be the most advantageous route to take.

Could the departmental officials maybe walk us through how NDP-1 would change Bill C-40 and maybe how it compares to LIB-1, if you're prepared to do that? I wouldn't want to think that LIB-1 was better or worse while we're considering NDP-1.

Could you just walk us through first the effect of NDP-1, as you understand it?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

As Bill C-40 stands, it requires applicants to the commission to have exhausted all of their appeals before their applications can be accepted. As we've heard almost universally from witnesses before this committee, this potentially excludes applicants who are the least likely to have been able to have either the resources or the ability to mount such an appeal.

What this amendment proposes to do is what was suggested by the Canadian Bar Association, which is to create an exception. It's not to say that anyone can appeal to the commission, whether or not they've appealed. What it says is that, if the commission takes into account factors that have constrained the ability or the opportunity of the applicant to file an appeal, they may accept the application.

This has not opened the doors wide, but it allows people to make an application when they may not have had adequate legal advice, may not have known the process or may not have known the deadlines for filing appeals and therefore missed their chance to appeal. There are all kinds of factors, and someone who is marginalized, racialized, indigenous or poor is very unlikely to have the skills and abilities to understand how to make that appeal, and legal aid is quite often not available to people in that situation in many provinces.

This says that the purpose of establishing the new commission is to make sure that we catch all of those people who may have suffered a miscarriage of justice, and among those are people who may not have been able to file an appeal. This creates a narrow exception under the authority of the commission to accept an application when they believe that those people who are most marginalized in general may not have had the opportunity to file an appeal.

I know that there have been some references to concerns about opening the door to everyone applying to the commission. This amendment does not do that. It creates a limited exception, and it gives the commission the authority to decide if it feels that the case meets the criteria that they set for this exception.

I believe, as we heard from almost all the witnesses on this bill, that this is an important improvement that we could make to the bill without affecting the ability of the new commission to consider cases and without throwing the doors wide open to those who may not have had a good case at all, those sometimes referred to as the “faint hope people”. It focuses on what we're trying to do here, which is make sure we correct systemic miscarriages of justice where people lacked resources and the ability to defend themselves against the miscarriage of justice.

Thank you, Madam Chair.

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

I said that I had a question for Ms. Besner.

I will get to it shortly. I'm not trying to prolong things at all.

I indeed was quoting Prime Minister Mulroney and not the Milgaard family. He was speaking with a great deal of deference for Mrs. Milgaard, so I don't know how any of this can be offensive. This is what he said: “But in that brief meeting I got a sense of Mrs. Milgaard and her genuineness and her courage.” I don't know what's offensive about that.

Prime Minister Mulroney put the file back to the Minister of Justice, who I believe was Kim Campbell at the time. She reviewed it and found that he had a case, that Milgaard's application was valid, and ordered a new trial. But the Saskatchewan Attorney General decided to simply enter a stay of proceedings. Later on there was DNA evidence and he was exonerated. He actually got a reward of I think $10 million.

Here's my question. Under proposed subsection 697(7) of clause 2 of Bill C-40, how would Mr. Milgaard have been dealt with at that time, when he was in this sort of state of suspension, where the Saskatchewan Attorney General just decided to enter a stay of proceedings—not found guilty, not found innocent, not exonerated, or just no more proceedings against Mr. Milgaard?

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Chair, on that point, to be 100% clear—and I don't want Mr. Van Popta to lose his train of thought or his spot; he might even want to back up a few steps—my understanding is that Mr. Van Popta was quoting a former prime minister, the Right Honourable Brian Mulroney. In my mind, this ties back directly to clause 2, which 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) — pending the completion of the review, pending a new trial”.

We're talking about the wrongfully convicted or a situation where there's a miscarriage of justice. Mr. Van Popta is speaking very clearly and solely on those issues. The issues that he's raising relate directly to clause 2 of Bill C-40, which involves the custody of an individual who has made an application under these provisions.

Bill C-40 has not come into effect. We don't know the outcome of these deliberations that we're having. There are several amendments that we're going to get to on Bill C-40, some by the NDP, some by the government and one by us. The Conservatives have moved one amendment.

However, this goes to the core of what we're talking about here. I want to be very—

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

Madam Chair, I will concede the point, but I reserve the right to talk about the Walchuk case when we do get to clause 3.

However, I do have another question for Julie Besner or Shannon Davis-Ermuth.

In preparing for this study, I read up quite a bit about the David and Joyce Milgaard case. I'm not going to belabour it, because I'm assuming that everybody is at least somewhat familiar with this case.

Mr. Milgaard served 23 years for a crime that he didn't commit. This is one of the reasons that we've introduced Bill C-40. It's because the process for seeking justice when one feels that they've been wrongfully convicted is very awkward under the criminal conviction review group process currently in the Criminal Code. Rightly, we are trying to amend that.

This is the way that it finally got to the attention of the minister of justice, who by the way was Kim Campbell at that time.

Credit goes to Joyce Milgaard's persistence, Joyce was the mother. One day in September 1991, she held a vigil in front of the hotel in Manitoba where Prime Minister Mulroney was scheduled to speak. She did not actually expect to speak to the Prime Minister, but he walked over to her to hear what she had to say. Years later, in an interview with the Winnipeg Free Press, the Prime Minister had this to say. I think it is a great quote:

There was something so forlorn...about a woman standing alone on a very cold evening on behalf of her son. But in that brief meeting I got a sense of Mrs. Milgaard and her genuineness and her courage. We all have mothers, but even the most devoted and loving mothers could not continue to crusade for 22 years if there was any doubt in her mind. So I went back to Ottawa I had a much closer look at it.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I am not disputing whether Mr. Van Popta's comments are about Bill C-40—they are.

However, clause 2 is about whether someone should be detained or released while their application is being considered by the commission.

Mr. Van Popta's arguments are about, and quite rightfully, what's in clause 3 of the bill. That is about the standard by which we decide that a miscarriage of justice either may have occurred or may not have occurred.

I'm simply pointing out that the cases he's citing and the things he's talking about have nothing to do with detention or release while awaiting a decision of the commission. They have to do with something further on in the bill.

I'm not arguing that they're irrelevant to the bill. I'm just saying that since what we're facing here is a filibuster, we could at least filibuster under the right clauses.

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

Thank you.

I will talk about clause 2 and subsection 679(7) of the Criminal Code.

At our meeting last week, Ms. Besner, you were very helpful in pointing us to the Vavilov case. I wasn't aware of it. I looked it up and read some summaries of it. It's a recent Supreme Court of Canada case. It's a judicial review case.

In the Vavilov case, the Supreme Court of Canada held that decisions about judicial review—when we're talking about reviewing a decision of either the Minister of Justice, under the current legislation, or the commission that will be established by this legislation—should be presumptively reviewed on a reasonableness basis except in five separate and discrete exceptions. This is the important part of the Vavilov case: one, cases “where the correctness standard is required by law”, the correctness standard being the higher standard; two, cases “where statutory appeal mechanisms are in place”, so, in other words, you can still appeal to the Court of Appeal; three, “Constitutional questions”; four, “General legal questions of central importance to the entire legal system”; and five, “Questions regarding the jurisdictional boundaries between administrative bodies”. For one of those categories, the reasonableness standard applies.

I did a little further digging and found a couple of really interesting cases: one called Walchuk and the other called Bouchard, both predating Vavilov. One was a Federal Court trial decision, and the other was a Federal Court of Appeal decision. They both upheld the reasonableness standard for the criminal conviction review group as it is currently existing under present legislation under the relevant sections of the Criminal Code.

I thought I would take a look at those cases, because clearly they're going to be very important to the way the new commission is going to operate. In each of these cases, the applicant is asking the commission to review their case, their fact situation. They're arguing that there's been a wrongful conviction and a miscarriage of justice, and the remedy that they would be seeking from the commission is that this would be ordered back to a trial or back to the Court of Appeal, whichever is the relevant one.

My question from the other day and that I'm looking at here today is, what happens when the commission makes a decision that the applicant is unhappy with and is turned down?

I looked up a couple of cases. The first one is a Federal Court trial decision of 2018. Jean-Claude Bouchard applied for a review by the Minister of Justice, who at the time was Jody Wilson-Raybould, so it's fairly recent. One of the beautiful things about studying common law is that we get to read stories about people's lives, and that's the way we learn the law.

Mr. Bouchard served 26 years for the murder of Robert O'Brien, the murder having taken place in 1979 in Montreal, but Mr. Bouchard always maintained his innocence. He was convicted by a jury on June 23, 1983. On June 19, 2015, some 22 years later, now on parole, Mr. Bouchard applied for a review of his case pursuant to the existing subsection 696.1(1) of the Criminal Code, on the basis that a miscarriage of justice had occurred in his case. Bouchard submitted two affidavits in support of his application.

The first affidavit was one sworn by Gilles Bénard, who quote-unquote confessed that he was indeed the murderer and that Mr. Bouchard was not. The second affidavit in support of Mr. Bouchard's application before the then minister of justice was one sworn by Gilles' son, Alexandre, who confirmed some of the facts in his father's affidavit. It would seem like a slam dunk case. Somebody else is confessing to the murder: “He didn't do it. I did it”.

However, here's the rest of the story.

Bouchard and Bénard met in a halfway house in 2011, both having served their time, inside and out, transitioning to life on the outside. They discussed their personal lives, their fact situations and the reasons for their imprisonment.

Now—and this is a very important fact—Bénard died of cancer on May 11, 2012. Two days later, Innocence McGill—a group of volunteers working out of McGill's law school—received a package containing the affidavit he had sworn four months earlier. You can immediately see why the minister of justice starts to become a bit suspicious. “Okay, here's an affidavit from somebody who knew he was dying. Clearly, he had given instructions to somebody to 'pop this in the mail the day I die'.” Two days later, the Innocence McGill people received it.

They did their job. They interviewed Bénard Junior, the son of the deceased person. On February 4, 2014, 18 months later, he signed affidavit number two confirming a number of things in his father's affidavit. The Montreal police conducted a new investigation, but this was many years later. The trail had gone cold and not a lot of new evidence was available. The minister of justice rejected the application on the basis that the affidavits didn't meet any exceptions to the hearsay rule. Without new evidence, there was no reasonable basis to conclude that a miscarriage of justice had likely occurred.

Now, the Department of Justice considered whether new evidence was admissible, and the Federal Court trial decision on their judicial review application hearing reviewed the work the minister of justice had done.

I want to read a couple of paragraphs. This is the Federal Court trial division speaking on the judicial review application: “The representative”—that would be the representative of the criminal conviction review group within the Department of Justice—“also considered Palmer v. The Queen“, a 1980 case from the Supreme Court of Canada “which held that new evidence is admissible on appeal when”, and there are four things, “(1) even by due diligence, it could not reasonably had been adduced at trial”—well, obviously the affidavit was sworn many years later—“(2) it is relevant, (3) it is credible in the sense that is reasonably capable of belief, and (4) if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.”

Clearly, the court found that the Department of Justice had given due consideration and had found against Bouchard for review. Bouchard applied, of course, for judicial review, and that's the case we're talking about here today.

This is the way the Federal Court posed the question, or how it was posed for them. “Did the Minister err in finding that Gilles Bénard's statement”—they're not even calling it an affidavit—“constituted unreliable and inadmissible hearsay evidence that offered no reasonable basis to conclude that a miscarriage of justice likely occurred when the applicant was convicted of murdering Mr. O'Brien?” That's the question that is set to be answered.

What is the standard of review? Well, paragraph 34 states, “The standard of reasonableness applies to the issue raised in this application” citing Walchuk—which I'm going to talk about in a minute—which was a 2015 Federal Court of Appeal decision.

Thank you, Madame Besner, for putting us onto the Vavilov case. That is good law, of course. I don't think it overturns the Bouchard case. It only confirms it as being good law. The reasonableness standard is what's going to apply.

The Federal Court looked at the legislative framework within which they were to work, in order to review how they were going to answer that question.

Paragraph 35 states, “It is helpful to recall the legislative framework within which the Minister is to assess an application for review based on an alleged miscarriage of justice."

First, “any remedy available on such an application is an extraordinary remedy.” That is the law today. It may change when Bill C-40 passes, but that is the law today.

In making a decision under the relevant subsection, the minister is to take into account “the relevance and reliability of information that is presented in [connection with] the application”. When the preliminary assessment has been completed, the minister dismisses the application without an investigation if he/she “is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred”. That's how the Federal Court is analyzing the legislative framework within which they are to do their judicial review.

Their finding is this, and it should come as no surprise: “The Minister is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred, since the new evidence adduced by the applicant is not reliable, and does not meet the admissibility criteria for hearsay evidence set out in Khelawon.” I have to admit, I did not read the Khelawon case.

The trial court notes, “I am of the view that the Minister could reasonably reach that conclusion, and that her assessment of the record is among the possible and acceptable outcomes that could be justified on the basis of the facts and law.”

That's the way the reasonable test works. The judicial review judge looks at the work that has been done by the administrative body and asks whether it is reasonable. I might have come to a different conclusion, but I can see that it is not unreasonable that she came to that conclusion.

I have just a couple of other citations.

The minister did exactly what the applicant argues was required of her: consider whether it was more probable than improbable that Gilles Bénard told the truth in his affidavit. The minister's answer to that question was in the negative, and that is a reasonable answer if all facts of the case are taken into account.

I find it interesting. That is really the “balance of probability” test that Mr. Curtis told us about at committee. Mr. Curtis, you'll recall, was the representative from the U.K. Criminal Conviction Review Commission. We asked him what likely or reasonable probability looked like. He said that it had to be more than fanciful but that it was not proof beyond a reasonable doubt either, that it was around the balance of probability, probably a little below the civil standard.

I find it very interesting and I'm going to read it again because I think it—

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

I actually want to speak about clause 2 of the bill for a moment. There's nothing mysterious or controversial in clause 2. Clause 2 simply says that those with an application before the new commission are subject to the same rules about release or detention as those who have an appeal pending.

It's very straightforward, not difficult to understand and not controversial in any way, so why are we spending so much time on clause 2? I want to talk about it just for a moment, because I think it's important that we proceed.

We're spending so much time on clause 2 because one party has said that nothing will pass this Parliament until the carbon tax is removed. This has nothing to do with justice issues. It's the first time since I've been sitting on this committee or previously when I sat on the public safety committee that other political agendas have stopped the work of the committee.

It's quite legitimate, I think, for people to spend hours and hours talking about justice issues, but when they're doing it for a different political purpose, it makes it very difficult for this committee to remain collegial and for people in the public to accept that there's goodwill here to attack what is a very important issue.

Why do I think it's important that we move on quickly? Mr. Moore said that we have a process for miscarriages of justice. We do, and all parties agree that it's faulty. When you look at who has succeeded in getting a successful review of their case under the existing system, there have been something like 20 cases over the past 10 years. One of those people was indigenous. One of those people was Black. None of those were women. When you look at the overrepresentation of those groups in our justice system, there's clearly a need for us to make this reform that Bill C-40 proposes.

The way that's related to clause 2 is that there are people in prison right now who have been unjustly convicted, who are waiting for a release, which this bill and this clause would provide if their application were accepted.

Another political agenda, another statement by the leader of the Conservative Party that nothing will happen here is actually keeping, in particular, indigenous women in jail longer. The sooner we can pass this bill, the sooner we can start to address those systemic injustices in our system.

There's nothing controversial and nothing difficult to understand in clause 2. If people in the clause-by-clause process want to raise general questions, there will be a time for that. At the end, we will say, “Should the bill pass?” You can debate that—I'm from a rural area—until the cows come home. There's breadth in that, but under clause 2, there isn't that breadth.

I'd urge members to stick to the topic at hand, which is the clauses we're going through. When we get to “Should the bill pass?” fill your boots filibustering if that's what you think you need to do, but what you're actually doing is keeping people who have suffered miscarriages of justice in jail longer.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Madam Chair, I rise on a point of order. I appreciate the discussion that has been undertaken here. However, as a duly elected member and as somebody who subbed in at this committee to participate in an important discussion, I would suggest that removing my ability to intervene on the speaking list comes awfully close to a violation of a member's privilege.

I'll leave that for the moment.

On the point of order, I am a little bit concerned on this issue that is larger than that, because what I've been talking about has a direct connection to the historical precedent that has led us to the point we're at in the discussion surrounding Bill C-40.

With all due respect, Madam Chair, if you are making a ruling that would violate my privilege as a member to be able to intervene meaningfully on this subject, I would urge you to be very cautious in that, because I certainly wouldn't want you to inadvertently violate a member's privilege when there is a very close connection, and had it not been for the many interruptions....

Mr. Bittle talks about filibuster. Well, his word count in this committee is certainly not small, just in the course of him taking the time to delay the proceedings on the discussion that we are having. I urge careful consideration because I think it bears both a very clear relevance to the discussion at hand, and I wouldn't want a member's privileges to be violated.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Chair, I rise on a point of order. So far at this committee, I've listened to Mr. Kurek speak about miscarriages of justice, which is exactly the topic of this legislation.

We're starting our study on Bill C-40.

The rules are that a member has a tremendous amount of latitude when speaking at committee. That is well established. There's no doubt about that.

Mr. Kurek is not using that latitude. In my view, he has been narrowly focused on the issue at hand, which is Bill C-40 and miscarriages of justice and wrongful convictions. He's not even using the latitude of which he could avail himself. I commend him for staying on topic—

[Rob Moore, Conservative, Fundy Royal, NB]

On the point of order, Madam Chair, that Mr. Bittle mentioned—and welcome to the committee—indeed, he's in the right committee, and this is a committee that has done a tremendous amount of good work.

As Mr. Bittle is not a regular at this committee, I want to let him know that under the leadership of our chair, we work relatively well together at this committee. We have very fulsome debates sometimes, back and forth, making our points. Sometimes there are compelling arguments one way or the other, but Mr. Bittle would also know, through you, Madam Chair, that we are on Bill C-40.

Not to revisit it, but you brought up the motion that we had to have the minister appear. That was deemed a priority because we set a deadline for that. We did not set a deadline for the completion of Bill C-40, for the awareness of Mr. Bittle.

Bill C-40 is a tremendously complicated piece of legislation—

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Bittle. You definitely are in the right committee although I question myself sometimes whether I am chairing the right committee as well.

Mr. Kurek, for the record, just to be clear, the minister is definitely willing to appear. Bill C-40 needed to be dealt with first. It's something that the Conservatives are obviously taking their sweet time to get us to finish so that we can have the minister here.

[Chris Bittle, Liberal, St. Catharines, ON]

I have a point of order, Madam Chair.

I may have come to the wrong committee meeting. I think this is a meeting on Bill C-40, which, I think, relates to miscarriages of justice, but we're talking about office placements.

This is a bill that the Conservative party supports, so I'm curious why they're filibustering it. When there are wrongfully convicted individuals who seek justice, and there are individuals here who are lawyers and who have sworn oaths with their various law societies to uphold justice and uphold their oaths as members—not only as lawyers, but when they come into the political sphere—to laugh as this is going to be filibustered, Madam Chair, is just disrespectful.

I'm wondering if I made it to the right committee room, because we're not discussing anything about Bill C-40. I was hoping the honourable member could get back to talking about clause 2 of Bill C-40.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a quick point of order, Madam Chair.

I'm not going to belabour this point, because we did discuss it a little bit, but I want to draw the committee's attention to the notice of motion that we had inviting the minister here. We agreed to it on November 28.

It was that the Minister of Justice appear “no fewer than 2 hours regarding the Supplementary Estimates (B) 2023-24, and that this meeting take place as soon as possible, and no later than December 7”.

At this committee, we very rarely have unanimity, and this was a time when we actually all agreed to this. I know we talked about it last Thursday. It's just that here we are again. The notice of meeting came out, and I saw once again that we were on Bill C-40, and the minister was not appearing. I still think there's a compelling reason why we would want to hear from the minister. I know his time was reduced from two hours to one, but maybe we could have a two-hour meeting with the minister. We had said “no later than December 7”. It was scheduled for December 7, and now here we are sometime later and still no minister.

Perhaps you have something to say on that, Madam Chair. I think I know what you're going to say, but I would be remiss if I didn't mention it, because here we are again. The motion said at the earliest possible opportunity, and the minister's not here.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting number 89 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference adopted by the House on June 21, 2023, the committee's continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation regarding miscarriage of justice reviews.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders.

We have with us two returning witnesses from the Department of Justice.

We welcome Ms. Julie Besner, senior counsel, Public Law and Legislative Services Sector, and Ms. Shannon Davis-Ermuth, acting general counsel and director.

I'm going to continue with the clause-by-clause consideration of Bill C-40. We were on clause 2.

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

We made eye contact, so....

I'd like to thank Ms. Besner for a very concise answer to my simple question about judicial review.

I wonder if you could give us two references. Number one is the section number in either Bill C-40 or somewhere else in the Criminal Code that says what the judicial review process is. For number two, I think you referred to a case, but I didn't get the name of it. I would like those two things.

Where do I look for the actual judicial review and what triggers it? What's the case you referred to?

[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—

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Madam Chair.

I would like to apologize to committee for my outburst and provide just a little context.

I had just come from the House, where, when I was asking a question very important to me on hate crimes against the gay community, I was heckled by a member of the Conservative party with, “What about the Jews?”

I found that extremely troubling. People will know around this table that I am among the most collegial and among the most respectful—at least I think that's my reputation. I'm not a heckler in the House.

That was what was behind that, but I also want to say that respect also means respect for the work of the committee and not bringing other political agendas from outside this committee to frustrate the work of the committee. When that happens, it frustrates me greatly.

On the bill we have in front of us, Bill C-40, indigenous people and racialized people, but in particular indigenous women, have been waiting for years for a better way to challenge the miscarriages of justice that have taken place in this country. When we have heard from all the parties that they are, in principle, in favour of this bill, it's very frustrating for some members of the committee to be prevented from getting to the work of the committee, so I am frustrated. I will admit that. I don't believe I'm being disrespectful by being frustrated with not being able to make progress on a bill we all agree on.

I too hope that we can move through this today. I'm prepared to stay here as long as it takes, obviously, to do this, but that wouldn't be about the injustices that people have suffered in our justice system. That would be about another political agenda, and that's what I find frustrating.

Thank you.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Maybe I can shed some light on this.

We all know why we're continuing Bill C-40 today. I agree with everything Mr. Brock said earlier, and I've lived by that code my entire life. I don't know that it was necessary to bring Mr. Garrison into this. That was a comment made off the record, but be that as it may....

We want to get all these things done, and we want to get all these things done as quickly as possible. There have been a number of points of order raised. The chair has ruled on them.

I suggest that the easiest way to move forward and address all of these issues, be it Bill C-40, bringing the minister back at another time or dealing with the meeting tomorrow, which can be avoided if we get Bill C-40 done today.... I suggest we get to the matters at hand, and then get through them as quickly as we possibly can today. There aren't that many amendments that have been put forward.

Another thing I liked to do when I was practising, Mr. Brock, was to be brief and get to the point as quickly as possible. I always found that the adjudicators were very grateful for that, and I think that if we can apply that practice here today, we can accomplish all the things we've raised as concerns today.

Madam Chair, given that you've ruled on the points of order already raised, I suggest that we move on and start dealing with clause-by-clause consideration of Bill C-40.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Caputo, that was the reason we scheduled both Bill C-321, which I reported on yesterday, clause-by-clause having been successfully concluded at this committee, and Bill C-40. Those two needed to be dealt with and were on the order of business to be concluded.

It didn't make any difference to the minister's availability and his appearances as to which date he appeared, because as long as he appears..., and I'm sure he's still willing to appear.

If we can continue with our business and do what we need to do, I am sure we can call him again to appear.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I'm sorry. If I understand you correctly, Madam Chair, your position is that the committee has said we will not be dealing with anything, including the minister, until Bill C-40 is done. Is that your position?

[The Chair, Liberal, Lena Metlege Diab]

The consultations that were made were my consultations, in looking at the schedule, the meetings that we have, the witnesses we have arranged and the order of things I have to have finished. I need to have Bill C-40 concluded before I go to anything else, because that was agreed to before by everyone.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Your view was that.... You mentioned at least three times that the Conservatives had a lot to say. That's fine, but the minister also has a lot to say, and we also have questions for the minister on behalf of Canadians, so my question again is, why was Bill C-40 put ahead of the minister, and what consultations were made in making that decision in your capacity as chair?

[The Chair, Liberal, Lena Metlege Diab]

We hadn't concluded Bill C-40, so that's correct: We had to conclude that first.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

With respect, you said that we had to go on to Bill C-40.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

He has a mean left hook, Madam Chair, but I'm up to the challenge.

My question is this. I get that everybody has an interest in Bill C-40, and we've all heard capable witnesses and we have departmental officials here. I understand that.

The minister was set to be here on the estimates. That, itself, is also quite serious, so what I'm asking is, why don't we have the minister here? Secondly, was there any consultation that was undertaken in that circumstance? I certainly wasn't consulted on that.

[The Chair, Liberal, Lena Metlege Diab]

That's fabulous. Thank you.

We started with Bill C-40. That was what we were reviewing. We did not conclude that.

My role as chair is to call meetings and set a number of administrative tasks, so within my role I decided to continue with what we had not yet started, which was Bill C-40, which we came back to at the last meeting. We didn't do that at the last meeting either, and to be fair to Mr. Garrison, my recollection of the last meeting—and I believe it went on for over two hours—was that members of the Conservative Party had a number of things to address, and we started to address them.

I'm not sure if they're finished or not, and so I am allowing a lot of time to ensure that members of the Conservative Party and anyone else who wishes to has plenty of time to address those. That is why, in my capacity as chair—and I can give you the page number if you like, and I know you will like, so I have it ready—I specifically scheduled meetings tomorrow, just to ensure that the Conservative Party members have enough time to address whatever points they would like to address, in the hope of concluding clause-by-clause on Bill C-40, which, in my recollection, all the parties in the room have pretty much come to an agreement on. That would be the end result of my meetings right now, to ensure that at least, at minimum, I get the clause-by-clause done, so that we can deal with other matters that were scheduled.

We started a speaking order. Thank you, Mr. Clerk, for writing it down.

I believe Mr. Moore is on that list, so Mr. Moore, I go over to you.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome, colleagues. This is meeting number 88 of the House of Commons Standing Committee on Justice and Human Rights.

We are here today to continue our study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation on miscarriage of justice reviews.

I think you all know the rules by now, but I'm happy to read them at some point, if need be.

With us today we have two witnesses from the Department of Justice.

They are Julie Besner, senior counsel, public law and legislative services sector, and Shannon Davis‑Ermuth, acting general counsel and director.

Welcome.

I'm ready to start the clause-by-clause.

Before I do so, I will recognize Monsieur Fortin on a point of order.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you, Madam Chair.

Let me first say that it's been interesting as I dove into some details about this, in the context of the larger conversation about the justice system in Canada. I have concerns, as do many members around this table, and I would think all parties as well, about the erosion of trust that has taken place within our justice system.

Certainly, one of the contributing factors in this is when a miscarriage of justice takes place. This bill is referred to as “David and Joyce Milgaard's Law”. From some of the research I've done, according to that and from a host of additional examples, there have in fact been miscarriages of justice. That is a contributing factor.

We see violent crime rates increasing in this country and a host of concerns related to the proliferation of violence, and the justice system seems to be unable to.... Certainly, from the perspective of the last eight years, there are contributions to that from the actions of now three successive Parliaments, where the Liberals passed bills that have contributed to it. That has added to the erosion of trust.

This is the other side of that same coin. Canadians have to, first, trust that the justice system does, in fact, ensure that people end up behind bars when they've committed crimes, to ensure that there is a full understanding of the consequences when someone does not uphold their obligations under the law.

The other side of that is what we're talking about here. It is that Canadians also have to trust the justice system and the idea of a unique and pivotal factor in the development of our modern society, which is the presumption of innocence and the ability for somebody to have a just and due process that lends towards allowing people to err, at least as little as is humanly possible.

I wish we could look back in our history at a record of perfection, but we know, as evidenced by Bill C-40 before us—

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

This application is being considered by the minister. Currently, the superior courts of criminal jurisdiction have been hearing those applications for release, pending the review. Bill C-40 proposes that it should be the court of appeal that does this.

The test would be the same. Currently, it's the same test when someone is appealing a conviction that the superior courts have been applying, so that part isn't changing. It's just the forum, if you will.

[The Chair, Liberal, Lena Metlege Diab]

I suppose it's up to the committee to decide. It's only 5:19 p.m.

We're going to vote on whether you would like to adjourn, or whether you want to proceed with Bill C-40, I guess. We have 10 minutes left.

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

Thank you, Madam Chair.

As I've said before, I may be alone on this. I, too, am very concerned about the situation we're seeing around the world, particularly the acts of antisemitism committed in recent weeks. In fact, such acts have been going on for a long time. I personally find them abhorrent. The same goes for acts against Muslims or any other religion. Religions should encourage us to unite and work together in harmony. I don't want to use clichés, but I would say that they should encourage us to love one another rather than seek to harm, hurt or kill one another. It all seems abhorrent to me, and I agree that we should do everything in our power to fight against such acts.

That said, I think we need to proceed rationally. As I said earlier, I'm sympathetic to the arguments raised by Mr. Moore, but I think they're a bit hasty. There are a lot of things in there that aren't even within the purview of our committee. Unless I'm mistaken, I believe the list of terrorist entities is the responsibility of the Minister of Public Safety. There's also the financing of infrastructure projects. There are various items that don't fall under the purview of our committee.

On the other hand, we have not received any witnesses on this subject. But even if we are sensitive to these issues, we must be rigorous in our work, in my opinion. Before adopting a motion that makes or supports allegations, we would have to call witnesses. If we didn't do this, all our studies would be useless. All we'd have to do is ask ourselves if we're sensitive to a situation and then produce a report.

For my part, I think it's too quick and that witnesses should be called. What's more, I'm not sure that all this falls within the remit of our committee. I'm aware that, for all sorts of reasons that I don't understand or that perhaps don't concern me, the Liberals and Conservatives will support this motion. It will therefore be adopted. I'd like to say that I'm very sensitive to these arguments, but that it's hasty, in my opinion, and that we'd be better off hearing from witnesses over the course of one or two sessions before making a decision.

We're here to look at Bill C‑40. Now, this isn't a motion we can easily make a decision on in two minutes. There's substance here. We're talking about 700 Iranian agents. Who are these agents? There are many questions we need to consider seriously. In my opinion, it's not serious to make a decision after simply hearing our respective states of mind.

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

Thank you, Madam Chair.

I'd be inclined to agree with our colleague Mr. Garrison from the NDP. We're here to work on Bill C‑40, and that's what we should be doing. This is an important bill. I see no reason, partisan or otherwise, not to proceed with it. I think all citizens in Quebec as well as in Canada will be pleased that we are moving forward with Bill C-40.

I understand that we're here to talk about the adjournment proposed by Mr. Garrison, but this is somewhat along the same lines as our colleague Mr. Moore's motion. I think we have a problem here. No study has been done. The problem raised by Mr. Moore seems to me to be quite valid. It's a major, important problem that concerns me personally and all members of the Bloc Québécois.

That said, I find that we're not really equipped to deal with it now. Witnesses should have been called to testify on this subject, or we should plan to do so. We'd also have to go a little further before deciding on the exact wording of the motion. Therefore, Mr. Moore's motion seems a little premature to me, even if I agree with the substance.

It seems to me that we should do the work for which we were convened, as Mr. Garrison proposes. I intend to second his motion.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

This is a bill—C-40—that people have waited many years for, and I personally have been working on it for many years. We're in a minority Parliament. Given the schedule of the committee and sittings, if we do not deal with this bill in committee, either at this sitting or the next, we risk putting this off well into the new year, and we risk losing the legislation, because we're in a minority Parliament.

That's my reason for wishing to proceed before the motion. It's not saying that there's anything unimportant about Mr. Moore's motion or that we should not deal with it. I'm not saying that at all, but I have a genuine worry, and if we defeat my motion and go to speakers, we will run out the time today. We will not get this today. We have other business of the committee already scheduled, such as the minister on estimates. We risk losing the opportunity to complete what is a very important bill.

That's my reason for the motion. I am just restating it. I believe that we can deal with it very quickly and be back on this motion very soon.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Yes, it's better to get it right than wrong, Madam Chair.

I'm speaking to Mr. Garrison's motion. What I'm going to say is this: We, on this side, would like to vote on Mr. Moore's motion today, as soon as possible, and then we can move on to Bill C-40, which is the reason we're here today. We can not only accomplish what's on the agenda, but also address the issues that Mr. Moore has rightly raised in his motion.

Since I'm speaking to Mr. Garrison's motion, I suppose that would require defeating his motion, and then I hope we can move, without any further debate, to vote on Mr. Moore's motion.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

I have a point of order, Madam Chair, just so I can understand exactly what's being moved. The motion was to adjourn debate and move to Bill C-40, the discussion that was originally planned for this, but then to return to this...?

[The Chair, Liberal, Lena Metlege Diab]

You're now subbing. I see. Thank you very much for that.

We have a motion on the floor to adjourn this particular debate and return back to it after we deal with Bill C-40. I'm going to deal with that.

[The Chair, Liberal, Lena Metlege Diab]

The meeting is called to order.

Welcome to meeting number 87 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation.

Today's meeting is taking place in a hybrid format pursuant to the Standing Orders. We have one member with us online, and the rest are here in the room in person.

I think you're all very well informed of the procedures, so I will not read them all. If I need to go back to them, I will.

I would like to inform you that the sound tests have been carried out.

Monsieur Lametti has tested fine. I'm not going to say “positive”.

Here with us today to help us on our clause-by-clause study of Bill C-40, we have two witnesses from the Department of Justice. With us is Julie Besner, senior counsel, public law and legislative services sector; and Madam Shannon Davis-Ermuth, acting general counsel and director.

Welcome.

We will commence with the clause-by-clause.

Yes, Mr. Moore.

[The Chair, Liberal, Lena Metlege Diab]

That's fabulous, team. Thank you very much.

Before you leave, I need a motion that, in relation to the clause-by-clause study of Bill C-40 on Thursday, December 7, the deadline to submit amendments is tomorrow, Friday, December 1, at noon.

Can I please have a mover for that motion?

Mr. Van Popta, thank you very much.

Are all in agreement?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Yes, we're fine with proceeding as planned with Bill C-40 on Tuesday and then having the minister appear next Thursday.

[The Chair, Liberal, Lena Metlege Diab]

Perfect. Thank you very much.

Clause-by-clause is done, but please do not leave.

Colleagues, we've been informed that the minister is available on Thursday, December 7 for our study of the supplementary estimates. Is this agreeable? I guess it's agreeable; that was the motion.

That would leave us with having the clause-by-clause study of Bill C-40 next meeting, Tuesday, December 5.

Here's the question. If we go with this date, we would have to adopt a motion to establish the deadline to submit amendments to the clerk of the committee as tomorrow at noon. Are committee members okay with that notice? If you are, we leave things as they are. If you are not, there is an alternative—just so that you know what the alternative is. There's an A and a B and one of the two must be picked.

If you would prefer to have more time for submitting amendments for Bill C-40, the alternative is the following. On December 5, we would deal with some motions that have been on our motions log for a while. We would then do the study on supplementary estimates on December 7 and push the clause-by-clause study of Bill C-40 to Tuesday, December 12, which would give us a deadline for amendments of Friday, December 8 at noon for Bill C-40.

I am in the hands of committee members to all unanimously agree on one of the two options.

Mr. Moore.

[Kathryn M. Campbell, Professor, Criminology, Faculty of Social Sciences, University of Ottawa, As an Individual]

Thank you.

First of all, I want to thank you very much for the invitation to be here today. It's a real honour.

As an academic, I've published extensively in the area of miscarriages of justice in Canada and other common law countries for the last 20 years. My research has focused on a number of areas, including examining the factors that contribute to miscarriages of justice and prison and post-release experiences of the wrongly convicted, amongst many other things.

I also took part in the consultations held by Justices LaForme and Westmoreland-Traoré around the proposed reform in 2021. I've met, spoken to and interviewed many wrongly convicted people over the years, and I'm well aware of the devastation that a wrongful conviction can wreak on individuals and their families.

In 2012, I started Innocence Ottawa, which is, through the Department of Criminology, an innocence project that's run by criminology and law students. Our aim is to help the wrongly convicted who are seeking exoneration.

We've come a long way. When we started in 2012, we had bake sales and sold T-shirts to fund our work, whereas in 2023 we've just received an access to justice grant from the Ontario law foundation for an outreach to indigenous prisoners program, so we've really moved quite far.

It's clear—as I've heard through these hearings these past few weeks and as I think we all accept—that indigenous and Black prisoners are overrepresented in federal and provincial and territorial institutions, but they're strangely absent in the numbers of exonerees or even amongst those seeking conviction review.

Thus far, Innocence Ottawa has filed one application for conviction review through the CCRG on behalf of one of our applicants, so I'm well aware of the difficulties in the current system. In fact, we submitted his application in 2019. Four years later, it's still at the preliminary investigation stage. Just as an aside, he also happens to be a person of colour.

My frustration over the last 20 years of the difficulties and challenges of innocence work is that it just shouldn't be this hard to overturn a conviction, to correct an error, because the stakes are just too high. Thus, I greatly anticipated the new legislation, and I feel it's a very important first step.

In the next half of my short talk, I'll briefly comment first on what I see as the strengths of the bill and then on the areas that I believe are in need of improvement.

The independence of the conviction review process now I think is an excellent step forward, but I feel there are some constraints on this as well. The commissioners should not be considered as government employees. The commission itself I believe should be viewed more as a court rather than a small government agency, and it should be located outside of Ottawa, with possible regional offices. Otherwise, that may detract from the perception of it as being independent.

On accessibility, the bill proposes to enhance access to previously marginalized groups, those who are overrepresented in the criminal justice system—particularly indigenous and Black prisoners—and I think that being an altogether new entity may help address this matter with a new conviction.

On the change in the threshold test, as was discussed in the previous hour, I think this change from a “miscarriage of justice likely occurred” to a “miscarriage of justice may have occurred”, or to if the commission “considers that it is in the interests of justice to do so” they can conduct an investigation, I think is an important step. It sounds far more expansive, but at the same time, I wonder to what extent this is going to change things, because it is also somewhat vague. My experience thus far with the CCRG itself, the criminal conviction review group, is that it's unclear as to what it actually takes to recommend reviewing a conviction.

Three other important additions are the examination of the personal circumstances of an application, enhancement of investigative powers and greater victim involvement.

On areas that need improvement, I believe the number of commissioners is far too low. The LaForme and Westmoreland-Traoré report advocated for nine to 11 commissioners. That seems reasonable and necessary, in my view. The number suggested by Bill C-40 is clearly not adequate, because if the commission isn't properly staffed with both commissioners and investigators, it's going to incur huge delays, and that's an ongoing issue with the CCRG.

I have a couple of other things. I believe the mandate should include sentences, as a sentence can also represent a miscarriage of justice, and also those whose cases have not yet been before a court of appeal. Otherwise, it may severely limit the number of applicants.

Finally, I think as an academic that we have a really great opportunity here with this new commission to get it right, to have a proactive and systemic approach to miscarriages of justice, to collect data from cases, derive policy lessons and discern patterns. I think it would be a shame to miss that opportunity with this new commission.

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting back to order, please.

For the second hour, we're going to continue our study of Bill C-40.

With us today we have two witnesses, one in person.

Good afternoon to Madam Kathryn Campbell, who is appearing as an individual. She is a professor in criminology, Faculty of Social Sciences, University of Ottawa.

As well, on the screen we have Madam Lindsey Guice Smith, executive director, The North Carolina Innocence Inquiry Commission.

I have Mr. Moore.

[Tony Paisana]

It's impossible to tell because of the outreach challenge that we have at this stage. This is a new system.

How well it will be rolled out in prisons to people who will be aware of it and how they apply will be, I think, the driving force to how difficult of a problem it will be to weed out the poor applications.

I think an intake screening process is necessary, and the one thing in Bill C-40 that is fairly robust is there are a number of criteria here that you see that should serve the tool of screening out some of those applications.

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

Thank you, Mr. Paisana.

I have a question on the same topic. We know that, currently, it takes between 20 months and six years to process an application. That's a very long time. I'm not sure that what's proposed in Bill C‑40 will shorten that. It could even take longer since all that has to be established is that a miscarriage of justice may have occurred, as opposed to likely occurred, before a recommendation is made.

What do you think of the time frames? Should there be a time limit for reviewing an application? The current wait time is 20 months to six years. Do you think that's reasonable?

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

I agree: the sooner, the better.

Should the new commission have five to nine commissioners, as Bill C‑40 proposes, or should it have more, say nine to 11? Which would be better?

[Nyki Kish]

Thank you. That's an excellent question.

We spend a lot of time in our organization speaking about wrongful convictions, over-convictions, systemic discrimination, and of course all the broad societal factors that lead people into pathways of incarceration where we believe the viable alternative is a community response to whatever has happened.

Speaking to this bill, in Bill C-40 we see a tremendous number of women and gender-diverse people. I mean, we're talking about a population with an average education level, at the point of sentencing, of grade 8. People are very unaware of the legal processes they're becoming swept up in. In combination with the conditions that people experience in pretrial incarceration, we see this resulting in individuals just pleading guilty, or, at the base, not understanding the processes they're going through. We see a lot of people who we believe are factually innocent, and then we see many more who we believe are over-convicted and overincarcerated.

[Rob Moore, Conservative, Fundy Royal, NB]

He'll like everything you said, for sure.

I want to ask if you have any thoughts on the threshold that's being proposed in Bill C-40, moving from reasonable grounds to conclude that a miscarriage of justice “likely” occurred to reasonable grounds to conclude that a miscarriage of justice “may have” occurred.

One would think that many individuals who are convicted feel that they shouldn't be there and that it's unfair that they're there, but when we get to factual innocence, as you touched on in some of your commentary, there are some tools available now that were not available even 10 years ago, and certainly not 20 or 30 years ago.

Do you have any thoughts on that threshold? It is a threshold that's considerably lower than the current existing one as well as in the United Kingdom.

[Tony Paisana, Past Chair, Criminal Justice Section, The Canadian Bar Association]

Thank you for the invitation to present the CBA's views on Bill C-40. I'm the past chair of the national criminal section. I've worked with the UBC innocence project for the past 10 years, and I teach, at the University of British Columbia Law School, a course on preventing wrongful convictions.

As you know, the CBA is a national association of over 37,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. That is what brings us here today. Our submission was prepared by the national criminal justice section, which comprises both Crown and defence lawyers.

The CBA supports Bill C-40 and offers some suggestions for improvement, two of which I'll highlight in my remarks. Before doing so, however, I wish to express our clear support for some aspects of Bill C-40.

For decades, lawyers and others have laboured under a slow, difficult-to-navigate system for post-conviction review. Bill C-40 represents a sea change in how post-conviction review work will be done in this country. It is a welcome change, one that we hope means that miscarriages of justice will be rectified and, more importantly, rectified more quickly.

The creation of an independent commission we hope will improve the transparency and efficiency of post-conviction review. In particular, we support the new standard of review contained in Bill C-40. The existing standard that a reasonable basis to conclude a miscarriage of justice likely occurred is cumbersome, difficult to apply and leaves many potential wrongful convictions outside the ambit of review. The new “reasonable grounds to conclude” standard solves these issues and is a welcome development.

In addition, we applaud the federal government's explicit inclusion of posthumous cases in the commission's mandate. Wrongful convictions affect not only the accused but their family, friends and the wider community. Allowing for posthumous review provides an avenue for those affected by wrongful convictions to seek redress.

In terms of improvements, our brief lays out some of those areas. We support some suggestions made by other witnesses who have already testified, and I'll highlight two points, as I mentioned. First, as set out in our brief, we support the inclusion of a new unsafe ground of appeal in the Criminal Code. The most important and immediate step of rectifying a wrongful conviction exists in the Court of Appeal. Indeed, for the vast majority of accused persons, it is the forum of last resort; however, the Court of Appeal is a statutory court, meaning that it is specifically constrained by the Criminal Code. Where the court is faced with a case that does not meet the exceptionally high threshold of unreasonable verdict, it cannot intervene even if a lurking doubt exists as to the accused's guilt.

Unsurprisingly, given this landscape, many of Canada's most infamous wrongful convictions were unsuccessfully appealed, sometimes more than once. Indeed, there is a strange history of some of Canada's appellate cases being connected to wrongful convictions. The leading case on unreasonable verdict, in fact, was the Yebes case, a recent B.C. miscarriage of justice, a murder conviction that was overturned nearly 40 years after the fact.

One of the leading decisions on confronting hostile witnesses, Milgaard bears the name of the namesake of this legislation. In dismissing Mr. Milgaard's appeal in 1971, the Saskatchewan Court of Appeal said that the evidence could properly be found to support the verdict, that is, it “could have” as opposed to it “must have”. As you see, the “could” standard is a low one on appellate review, and there is a duty to prevent wrongful convictions at every stage of the process, including specifically on appeal, and changing the Criminal Code to add an unsafe verdict would address this issue.

Our second area of improvement relates to the eligibility criteria for the commission. We echo the concerns raised by others that the mandatory requirement of appellate final decision will potentially create a significant barrier to wrongful convictions becoming uncovered. Those who enter a false guilty plea, for example, will have to go through the complicated and awkward process of trying to overturn a guilty plea. Having falsely plead guilty, there is a strong likelihood that these individuals are unsophisticated, intimidated by court process and are otherwise at a disadvantage in navigating the appellate regime. Make no mistake, bringing an appeal is complex and requires expertise.

Ivan Henry's wrongful conviction is a poignant example of what this barrier might do. He was convicted in 1982 and designated a dangerous offender. Unrepresented, he filed numerous applications and failed at various courts and ministers reviewing his conviction. In 1984 his appeal was dismissed for want of prosecution, because he had not filed transcripts. He never had an appeal and never had a final judgment. He would therefore be ineligible for the current regime.

This, I say, is a problem and should be rectified by a simple amendment treating an accused who has not had an appeal the same as one who has had an appeal but has not appealed to the Supreme Court of Canada, that is, a factored analysis where it is just one factor to determine the eligibility, the fact that they have not filed an appeal.

The legislation currently contemplates that very process with someone who has not filed leave to the Supreme Court of Canada, and there is no reason this cannot be extended to accused persons who have not had an appeal.

Those are my comments.

Thank you.

[Nyki Kish, Associate Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you, honourable members, for inviting me to be here today.

Since 1978, CAEFS has been the leading national organization supporting women and gender-diverse people at all stages of legal system involvement. We conduct monthly visits into Canada's federal penitentiaries for women. Our 22 Elizabeth Fry Societies nationally provide a range of services in prison and the community, including operating halfway houses, providing court support and diversion programs, and beyond.

Through this work, we come to know closely the people whom this bill impacts. We welcome Bill C-40, but caution that amendments are needed to ensure the act can meaningfully respond to miscarriages of justice.

Most women and gender-diverse people who become incarcerated are critically disadvantaged. The system is in crisis, with half of the people in prisons designated for women being indigenous. Much attention has been called to the systemic and social factors that lead women and gender-diverse people to be wrongfully convicted. The justice system rests upon its ability to be just, yet we posit that, presently, miscarriages of justice for the populations we serve are systemic. This is in part because conditions in our provincial jails are deplorable, characterized by frequent lockdowns, isolation, poor food sources, dismal health care, very expensive, restrictive access to family, and beyond.

Many disclose to us that, up against losing their children, employment and housing, they plead guilty, regardless of whether or not they are, in order to get out faster. From our perspective, pleading out is a very common experience. Individuals make the best decisions they can within a forced choice, where no outcome is a good one. We receive almost constant requests to help people redress their convictions. Many share how their previous lawyers discouraged them from filing appeals and often encouraged them to plead guilty in the first place. We direct people toward innocence projects and watch the lengthy process unfold. Often, we see them give up.

The pressure to be guilty doesn't stop at a verdict for the wrongfully convicted. Once sentenced, women and gender-diverse people who maintain their innocence experience a number of punishments and exclusions, because they are not seen to be taking responsibility. This begins with being denied access to core correctional programming, which is a precursor for access to a host of additional programs and services, and a requirement to move to less restrictive security classifications.

Much of what it takes to survive incarceration—visiting family, accessing work and education, and accessing the legislated process of gradual release—is significantly restricted for people who maintain innocence, due to their being kept in higher-security classifications. Also, as most supportive processes are only conditionally approved, prison officials must complete assessments for each decision. Primary considerations are the level of responsibility and institutional adjustment a person demonstrates. It's very difficult to be assessed as “adjusting well” in an institution whose programs you cannot participate in. Doing well in prison and reintegrating into the community via parole becomes next to impossible. People become pressured to indicate guilt in order to successfully navigate the system, or they maintain their innocence and face a harsher version of incarceration, which elevates the risk of chronic adverse mental and physical health outcomes and institutionalization.

We submitted an associated brief that emphasizes amendments that ensure incarcerated applicants aren't punished as a result of pursuing redress. It endorses the UBC innocence project's key amendment to legislate the possibility of exceptional review where appeals have not been exhausted, and to legislate defined timelines associated with the commission. Perhaps nothing could be underscored more than the irreversible impacts on the life course of wrongfully convicted people.

At present, wrongful convictions take years or, more generally, decades to overturn, and life is simply not that long. We witness the cumulative loss experienced, especially for those with long or life sentences—loss of mental and physical health, and loss of family and social connections. Time is an irreturnable resource to take from people, and we don't often contemplate its associated costs: the loss of milestones and rites of passage—

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order. Welcome to meeting number 85 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation on miscarriage of justice reviews.

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

I note that the witnesses we have for the first hour are all attending by Zoom, so I will make a few comments. Please wait until I recognize you by name before speaking. Click on the microphone icon to activate your mic, and please mute yourself when you are not speaking. With regard to interpretation, for those on Zoom, you have the choice at the bottom of your screen of the floor, English or French.

For those in the room, you can use the earpiece and select the desired channel. I will remind you that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand.

I have these cue cards. I know it's difficult when somebody is on a roll and speaking, but I will raise the 30-seconds card when 30 seconds is left and the time-is-up card when the time has elapsed. If the speaker has a couple of seconds left, I will let them proceed; otherwise, I will need to interrupt them. Don't take it personally. Unfortunately, that's how things work around here.

I want to advise the committee members that all the witnesses who are with us this afternoon have successfully completed the necessary audio tests.

Thank you everyone.

Now, without further ado, I would like to welcome the witnesses participating in our study on Bill C‑40.

With us are Neil Wiberg, lawyer, who is joining us by video conference and appearing as an individual; Nyki Kish, associate executive director of the Canadian Association of Elizabeth Fry Societies; and Tony Paisana, past chair of the Canadian Bar Association.

You have up to five minutes for opening remarks. After that, we will go to questions by members.

I will ask Mr. Wiberg to please commence.

The floor is yours.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

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

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

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

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

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

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

[Jessyca Greenwood, Executive Member, Criminal Lawyers' Association]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Simon Roy, Vice-Dean and Full Professor, University of Sherbrooke, Faculty of Law, As an Individual]

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

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

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

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

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

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

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

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

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

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

He was cleared by DNA tests.

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

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

I'd like to issue two reminders.

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

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

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

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

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

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

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

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

The tests have been successfully performed.

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

I have just two housekeeping items.

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

That, in relation to the Clause-by-Clause study of Bill C-321, on Thursday, November 30, 2023, the deadline to submit amendments be Tuesday, November 28, 2023, at noon.

Can I please have someone move that motion?

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

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

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

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

Madame Brière, thank you.

Does anyone have any objection to that?

Okay. It is so moved.

(Motion agreed to)

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

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

Thank you so much, Mr. Moore.

Are there any objections?

(Motion agreed to)

Thank you.

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

Today, we are welcoming—

I'm sorry. It's Bill C-40.

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

Welcome, Mr. Roy.

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

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

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

Mr. Roy, you have the floor.

[Dr. Myles Frederick McLellan]

As James Lockyer said earlier, there's no doubt that once this commission is put into place—whether it's in its current form, Bill C-40, or amended as requested—there are going to be a lot of applications. There will be a lot of people who are going to go through the process of trying to see what this commission can do that a section 696.1 application to the Minister of Justice couldn't do, and I think that's great.

Again, the opportunity to have these applications is going to give this commission, going forward, the opportunity to remedy wrongs that never should have taken place at all.

[Dr. Myles Frederick McLellan, Chair, Policy Review Committee, Canadian Criminal Justice Association]

Thank you, Madam Chair and members of the committee. It's truly an honour and a privilege to be here with you.

Our position deals with compensation for wrongful convictions.

Before we get into that, our first position is quite clear. We absolutely endorse the recommendations in the report by Justice LaForme and Justice Westmoreland-Traoré, with the exception of recommendation 51. We'll talk about that shortly.

Having said that, basically we're going to deal with compensation. The first thing I'm going to do is give you a quote from the late David Milgaard: “Fighting the Canadian government for compensation long after being released from prison after exoneration feels like being in prison all over again”.

Our position is clear. As important and fundamental as it is to get those who are wrongly convicted or victims of the scourges of justice out of prison, it is also incredibly important to make arrangements for compensation for those persons so that they can in fact rebuild a life.

The centrepiece of compensation in most nations around the world is a function of the United Nations international obligation in that regard. Following the Universal Declaration of Human Rights in 1948, two multilateral treaties were entered into in 1966 by all nations, including Canada and its provinces and territories in 1976, called the International Covenant on Civil and Political Rights. What article 14.6 said, for all those nations that acceded to it, including Canada, was that they had an obligation to put a compensation scheme into place for miscarriages of justice.

Most countries in the world have in fact done that. Canada really has not. We tried to do that, and we still have in place federal, provincial and territorial guidelines, the part that the jurisdictions can enter into, which is ostensibly following the tenet of article 14.6, but it really doesn't. It doesn't follow what in fact article article 14.6 asks for.

These guidelines have provided large amounts of compensation over the years: $10 million to David Milgaard and $6 million to Steven Truscott, etc. Apart from those very large awards, there has only been, on average, one award per year since 1988. It really doesn't provide access for those who, for the most part, are in that field of wrongful convictions and miscarriages of justice.

In fact, in 2006, Michel Dumont, who is widely recognized as one of Canada's wrongly convicted, went to the United Nations, using the optional protocol to get the United Nations Human Rights Committee to force Canada to abide by its international rights obligation. The committee agreed with him. The committee, in fact, did find that Canada did not subscribe and did not live up to the terms of the covenant. It issued a directive to Canada to make arrangements for compensation for Mr. Dumont. Canada quite simply ignored it and refused to do so.

Having said that, the other things that are available for compensation are items that deal with litigation, for the most part, such as malicious prosecution, negligent investigation, charter damages and what have you. The prospect for those who are released from prison of having the funds available to pursue litigation is negligible and, for the most part, most of those remedies are highly ineffectual.

The relatively broad accepted method of approaching this issue is by way of statute. What we're asking the committee to do with respect to Bill C-40 is to add a provision in this statute allowing for compensation based upon model statutes that have been prepared in that regard.

We have two commonwealth jurisdictions that have statutes. We have the United Kingdom. In 1988, it enacted the Criminal Justice Act, which very much aligned with article 14.6 of the international covenant. In fact, it was a very strong proponent of compensation until it was amended in 2014. The other jurisdiction is the United States. There are 38 jurisdictions that have statutory provisions for compensation. They vary widely from state to state, but in fact they do provide those seeking compensation with an accessible and transparent opportunity to rebuild a life.

[Harry S. LaForme]

Thank you.

I mentioned that the commissioners should not have these renewable terms. I think that's important.

The commission's budget, including compensation, should be tied to the judiciary. I mentioned that. That should be independent. I'm not saying that they should be the same as the judiciary or anything, but they should have the same independent process whereby they determine the budgets for commissioners and salaries and whatnot

I think the five-year parliamentary review should be independent of the commission's work. The commission should have a separate employer status. One of the problems with the status quo is the role of the civil service in advising the Minister of Justice. We advised against “interests of justice”. I don't think that should be a requirement, because as a judge I can tell you that “interests of justice” can mean many things or it can mean nothing. It's a term that I don't think assists us.

We recommend a proactive commission that could engage with systemic and disciplinary matters, as James Lockyer pointed out. We agree with that.

On Bill C-40, we recommend that, as in England, the commission should be able to have access to documents—and this is very important—even if the police, prosecutors and others claim privilege. We've been advised and our experience was that the police, etc. would claim privilege as often as they can. We say that the commission should be able to be the guardian of that privilege, and they should be the determining factor of what they get and what they don't get.

There are some features in the bill that we do like, as we said. We agree with that.

However, the most obvious is the status of the commissioners themselves and of the chief commissioner particularly. He's going to be a civil servant, first and foremost, and the independence of the commission is in doubt, I think, with that alone.

Those are my submissions.

[Nicholas St-Jacques]

That's an important distinction indeed. That's actually one of the important aspects of Bill C‑40 compared to what we had before.

Currently, in order for a miscarriage of justice to be recognized and for a remedy to be ordered by the Minister of Justice, there must be a certain likelihood of miscarriage of justice. Earlier, we were talking about a threshold of 50% plus one, that is, a balance of probabilities.

In its current form, the bill actually seeks to lower the test to the level of a possibility. In the French version, proposed section 696.6 talks about cases where “une erreur judiciaire a pu être commise”, whereas in the English version, the word “may” is used. In a way, the French version talks of a reasonable possibility, which is a much lower test.

The reason the test was lowered is that it's not always easy to establish a miscarriage of justice occurred with a sufficient degree of probability. We often talk about cases that are so old that certain documents are difficult to trace, where witnesses can be hard to track down or have an imperfect recollection of events after all that time.

That explains the change somewhat.

[Nicholas St-Jacques]

In Bill C‑40's current form, proposed subsection 696.5(1) states, “If the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so, it may conduct an investigation in relation to an application.” We're not yet at the stage here where it has to be determined if remedies are appropriate or not. The point is rather to determine if, from the way it was processed, the file needs to get to the investigation stage and if the commission should look into it further.

What the Barreau du Québec is proposing is to make the investigation mandatory if the commission has already concluded that it “has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so”. At this stage, the commission already has to do some kind of assessment and it still has the discretionary power to determine if an investigation is warranted. In our opinion, the commission shouldn't also have the discretionary power to determine if an investigation should be conducted or not.

Furthermore, having read several of the Criminal Conviction Review Group's investigation reports, I can tell you that some investigations are more detailed than others. So in our opinion, making investigations mandatory shouldn't be a significant burden on the commission. Some investigations will be more straightforward, and others will be more involved, but when there are reasonable grounds to believe that a miscarriage of justice may have occurred, we need to go forward.

[Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Hello, my name is Nicolas Le Grand Alary, I'm a lawyer with the Barreau du Québec's Secretariat of the Order and Legal Affairs. I'm joined by Nicholas St‑Jacques, who represents the Barreau du Québec.

Thank you for inviting us to testify before the committee on Bill C‑40.

First off, the Barreau du Québec wants to emphasize that it supports the bill's objective of replacing the current miscarriage of justice review process by establishing an independent body. However, based on its experience in the area of criminal justice administration, the Barreau du Québec has certain observations to make to improve it. Primarily, we want the new processes introduced by the bill to achieve their objective of correcting miscarriages of justice in an effective and efficient manner.

The Barreau du Québec therefore welcomes the creation of the independent miscarriage of justice review commission. We have always insisted on the creation of an independent body to analyze cases and gather information in order to increase the real and perceived independence of the post-conviction review.

I'd now like to move on to the particulars.

The bill provides that the commission must provide the applicant with an update concerning the status of their application on a regular basis. The commission may notify an applicant or their representative or provide them with information.

Applicants who apply for judicial review on the basis of miscarriage of justice are often in a vulnerable situation and may be incarcerated. Timely access to notices and information from the commission is important. In addition, applicants may require further context or an explanation of these documents. We are of the opinion that the commission's communications shouldn't be transmitted solely to the applicants, in order to avoid causing them additional harm. This approach would address an inconsistency between the English and French versions of the bill.

In addition, the bill states, “If the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so, it may conduct an investigation in relation to an application.” The current wording says that the commission may do so, but it doesn't require it to do so. We're proposing an amendment to the section that the bill seeks to add to the criminal code specifying that the commission “must” conduct an investigation if it has reasonable grounds to believe that a miscarriage of justice may have occurred. This would allow the bill to meet its objective of facilitating and accelerating case reviews.

The bill also provides that when the commission provides notice that no investigation will be conducted, the notice must also specify the reasonable time within which the applicant and the attorney general may provide additional information. In the interest of procedural fairness, we recommend that the notices include the reasons why the commission decided not to investigate. Applicants should be aware of the deficiencies in their application for review and have the opportunity to rectify the situation.

I'll give the floor to Mr. St‑Jacques for further comments.

[Harry S. LaForme, As an Individual]

Thank you.

Meegwetch for inviting me here to speak to you today and to each of you for your interest in this very important topic.

I am speaking to you virtually from my home in Ancaster, Ontario, located on the treaty territory of the Anishinabe, the Mississaugas of the Credit First Nation, my home.

As an indigenous man who happens to have been a judge for more than two decades, I am painfully familiar with the flaws in the justice system that can lead to miscarriages of justice. Yet the consultations we conducted, as requested by former minister of justice Lametti, revealed a different perspective.

I had the honour to speak with the late David Milgaard four times during this process, where we spoke to 16 other exonerees and 215 people in total. With the assistance of Justice Westmoreland-Traoré and Professor Kent Roach—who, as you indicated, is appearing with me today—we were guided by Mr. Milgaard's experience and wisdom when he told us, “The wrongfully convicted have been failed by the justice system once already. Failing a second time is not negotiable.” He was talking about this.

It was in that spirit that we prepared a detailed 200-page report, which Professor Leonetti of the University of Auckland has praised as a transformative blueprint, that, if implemented, learning from the lessons of other commissions in other countries, could produce the best commission that could proactively investigate miscarriages of justice, play a vital role in their correction and contribute to their prevention.

To say that I am disappointed with Bill C-40 is an understatement. I will summarize my concerns about Bill C-40 into three main themes, which are reflected in our brief.

First, it is critically important that the commission be as independent and as qualified as possible. Bill C-40 as presently written would allow a five-person commission with only a full-time chair, who also has chief executive responsibilities, and without statutorily required indigenous or Black representation. In my view, this is manifestly inadequate to the task. Indigenous and Black people are the population most at risk for wrongful convictions and they have little reason to trust the system. I am also concerned about the slow and non-transparent process of cabinet appointments to the new commission. We have proposed three amendments to expand and strengthen the commission.

Second, Bill C-40 severely restricts the jurisdiction of the commission. That is, the requirement of an adverse decision by a court of appeal would prevent most victims of a miscarriage of justice from even applying to the commission for help. I recommend the submission of UBC's innocence project in this regard. David Milgaard told us not to exclude sentencing from the commission's jurisdiction. We recommended that someone who is still serving a sentence based on wrong and inadequate facts should be able to apply to the commission. I commend the Native Women's Association of Canada brief in this regard. Our proposed amendments four and five also address these concerns.

Finally, I am concerned that Bill C-40 will not produce the type of proactive, systemic and independent commission that the exonerees and many others told us we needed. Commissioners should not have renewable seven-year terms, because the hope of renewal and the spectre of non-renewal may interfere with their independence or reasonable perceptions of it. An independent advisory board should vet candidates for commissioners and assist the commission. The commission's budget, including compensation, should be tied to the judiciary's in order—

[The Chair, Liberal, Lena Metlege Diab]

Good afternoon everyone.

Welcome. Apologies to everyone, but this is kind of what happens in the House of Commons and Parliament. We are commencing late.

All the witnesses who will be speaking have been tested. They all know who they are.

Let me begin by calling the meeting to order. Welcome to meeting number 83 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference adopted by the House on June 21, 2023, the committee is continuing its study of Bill C-40, an act to amend the Criminal Code, to make consequential amendments to other acts and to repeal a regulation on miscarriage of justice reviews.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely using the Zoom application.

I want to make a few comments for the benefit of witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike. Please mute yourself when you are not speaking.

For interpretation, for those on Zoom, you have the choice at the bottom of your screen of floor, English or French. Please make sure that you have it now. For those in the room, you can use the earpiece and select the desired channel.

Just as a reminder, all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as well as we can. We appreciate your patience and understanding in this regard.

I'd now like to welcome the witnesses who will be with us for the first hour of the meeting. Actually, two one-hour periods were planned, but I think that all the witnesses from both groups are here right now.

We have a suggestion that perhaps we combine the witnesses. If it works, we can. If not, let me just proceed with the way it is.

We have, in person, two representatives from the Barreau du Québec, Mr. Nicolas Le Grand Alary, a lawyer for the Secretariat of the Order and Legal Affairs, and Mr. Nicholas St‑Jacques.

We also have, in person, Mr. James Lockyer, counsel and board member at Innocence Canada.

On Zoom, we have the Honourable Harry S. LaForme and Professor Kent Roach, who is from the faculty of law at the University of Toronto. They are both appearing by video conference. Both of them will share the comments together, as will the groups that are in front of us.

Maybe we'll start with the witnesses we have, because not everyone is here.

It looks like we have a few hands up.

Mr. Fortin, the floor is yours.

[Anthony Housefather, Liberal, Mount Royal, QC]

I'll be taking it, Mr. Chair.

Minister, it's nice to have you here. Based on what I've seen before, I could probably ask you about the federal child support guidelines under the Divorce Act, but I will try to stick to Bill C-40.

I want to follow on from what Ms. Gazan was saying. This bill is supposedly aimed at giving the poorest, most vulnerable defendants a better chance of reaching out to a commission and having an opportunity to have their grievances heard about the verdict in court. My concern is the exhaustion of appeal provision. If I'm the poorest of defendants, how often am I going to be appealing to the court of appeal if I don't have the money to pay a good lawyer to be able to do that?

If this happened years later, after I'm time-barred from appealing to the court of appeals, wouldn't I then be locked out of this process? Wouldn't it be better to reconsider that exhaustion of remedies approach to allow the opportunity for the new commission to consider all factors as to whether or not it could consider a case?

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

Thank you, Mr. Chair.

Thank you, Minister, for being here, and to the other witnesses.

Today we're talking about Bill C-40, the proposed miscarriage of justice review commission act, also called the David and Joyce Milgaard law. I want to talk a little about the facts in the Milgaard case. You referred to them already, Minister.

He served 23 years in prison for a crime he did not commit. That was definitely a miscarriage of justice. It was a tragic story, but he and his mother Joyce stuck to their guns. It wasn't until new evidence became available that there was a review. Without that new evidence, there likely never would have been a review.

Under this new regime of having a commission instead of applications managed through your ministry, Minister, how would the Milgaard case have been treated differently? Today, is there still a requirement that there be new evidence presented that wasn't available at trial?

[Leah Gazan, NDP, Winnipeg Centre, MB]

What percentage or portion of applications, through the process provided in Bill C-40, are expected to be from indigenous women?

[Leah Gazan, NDP, Winnipeg Centre, MB]

I have questions about the commission.

I'm wondering what portion of applications, through the process provided in Bill C-40, are expected to be from indigenous women.

[Julie Besner]

Well, the way it's written in Bill C-40 is that it's the attorney general who was responsible for the prosecution or the jurisdiction in which the prosecution occurred. Something along those lines is how it's spelled out in Bill C-40 for the amendments to the code.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Chair.

Welcome, Minister. Thank you to your officials.

I am going to try to focus my questions on Bill C-40.

I will begin by asking you, Minister, to expand a little on the interplay between your statutory responsibilities when it comes to potential miscarriages of justice and what this bill would do—if and when it is passed—in the creation of a new commission that would take on that responsibility. You mentioned in your remarks that you would retain some of the existing statutory responsibilities in this regard, but you also alluded to the commission.

In cases where, for example, in the territories where there are no provincial attorneys general and you still are the presiding attorney general with responsibilities can you clarify what the role of the commission is in initiating a process or a preliminary review step by step, and what your responsibilities are? Help us understand the sequence of how that process will play out between your office and the new commission when it's set up?

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

Thank you.

It's good to see you in the chair, Mr. Moore.

Hello, colleagues. I hope you're all well. At the outset, I want to say thank you for the quick work on Bill S-12 and making sure that we met a court deadline and maintain the sex offender registry going forward.

Thank you very much for inviting me to speak to you about Bill C‑40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard's Law).

Bill C-40 proposes necessary and long overdue change to our criminal justice system, and it will indeed change lives. I'm grateful for the important work of my predecessor David Lametti in developing Bill C-40. I have every intention of fulfilling the promise that David Lametti made to David Milgaard and his mother Joyce to pass this important legislation.

I think we all, as parliamentarians, owe it to those people who have been wrongfully convicted, like David Milgaard and others. These errors cost them their freedom, their livelihood, their reputation and their time with loved ones. The errors are devastating to victims of crime and to their families.

This bill responds to long-standing calls from wrongfully convicted Canadians and their advocates. This issue has been studied extensively. Over decades, numerous commissions of inquiry have delivered one consistent recommendation to government: the creation of an independent commission dedicated to the review and investigation of cases when a miscarriage of justice that may have occurred is warranted.

Other countries have done this already, so we're not charting new territory here. Independent criminal case review commissions have been established in the jurisdictions of England, Wales and Northern Ireland; in the jurisdiction of Scotland; and in the jurisdiction of New Zealand.

Bill C-40 is shaped by a broad public consultation process that took place during summer 2021, involving more than 200 individuals and groups with experience and expertise in the area of criminal justice. That process was followed by further consultations with the provinces and territories, judicial organizations, national indigenous organizations, organizations from Black and other equity-seeking communities, and various bar associations.

One of the key findings of the consultations is that commissions in other countries are able to process applications far faster than in Canada's current system. This means that countries with an independent commission have fewer people spending time behind bars for crimes they didn't commit. That in and of itself is incredibly significant.

In Canada, our wrongful conviction regime was last amended in 2002.

I'll just note parenthetically that this power has existed in one shape or form in the hands of people, who were my predecessors going back to 1892. We're talking about a change to the executive prerogative in this area that dates back to the time when the first Stanley Cup was awarded over 100 years ago.

Since 2002—I was just referencing the last time this was amended—just over 200 applications for review have been submitted. You've heard Ms. Gazan mention that there have only been 26 successful referrals back to the courts through the ministerial review process.

Let's compare that for a moment with a country that has an independent commission. The United Kingdom is a great comparator. They have referred 822 cases in the same time period, with 559 appeals successfully overturned. With a population that is just about half of the U.K.'s, I think that contrast is very powerful. Further, I would note that in all but five of the 26 successful Canadian applications that Ms. Gazan mentioned, the individuals were white and not racialized. In every single one of the 26 successful applications the individuals were male.

That bears no resemblance whatsoever to our prison populations. Black and indigenous persons, who we all know are overrepresented in our criminal justice system, need equal access to this process, as do women.

An independent commission devoted exclusively to reviewing potential miscarriages of justice will both increase trust in the review process and improve access to justice by facilitating and accelerating the review of applications from persons who may have been wrongfully convicted.

A commission with five to nine full-time or part-time commissioners, in addition to staff, will be able to review applications more quickly. Recommendations for the appointment of commissioners will have to reflect the diversity of Canadian society and also consider gender equality and the overrepresentation of certain groups in the criminal justice system, specifically indigenous and Black individuals.

The bill requires the commission to deal with applications as expeditiously as possible—this was mentioned by Ms. Besner—to provide regular status updates, and to provide notice to the parties, as well as to provide them with a reasonable period of time in which to respond. The bill also requires the commission be accessible and transparent.

It will adopt and publish on its website procedural policies to guide its work. It will have a dedicated victim services coordinator to support victims and assist with the development of procedural policies, especially as they relate to victim notification and participation.

These are essential measures to facilitate the proper support for victims, which I know is a keen concern of yours, Mr. Chair, in terms of the work you and I did on this committee previously.

I think it's important to understand that, obviously, victims can be doubly traumatized by the notion of a miscarriage of justice having occurred and the fact that the actual perpetrator of the crime against their families remains at large.

To help address systemic issues and prevent miscarriages of justice from occurring, the bill directs the commission to carry out outreach activities, such as the ones I mentioned to Ms. Gazan; provide information about its mandate on the miscarriage of justice to the public and potential applicants; and publish its decisions. Commission staff will be empowered to provide applicants with information guidance. The commission will be able to provide reintegration supports to applicants in need. The commission will be able to provide applicants with translation and interpretation services, and to help applicants obtain legal assistance and the necessities of life, such as housing and medical care.

All of these elements are essential. A commission that conducts outreach and assists with applications recognizes the systemic barriers faced by applicants in the current system. It is in everyone's best interest that wrongful convictions be remedied. Indeed, I would posit that there isn't a single one of us, among the 338 occupying the House of Commons, who would advocate for a wrong conviction in any context. Therefore, the proactive nature of Bill C‑40's commission will ensure that no applicant is excluded from accessing this process because of a lack of resources or the inability to apply.

My officials have been briefing you on the technical changes this law reform proposes, but there are a couple that I would like to highlight in particular.

One is with respect to investigative powers. The commission will have the same powers of investigation as I do as Minister of Justice under the existing regime. These powers are found in part I of the Inquiries Act and can be used to compel the production of information or evidence relevant to an application, and to examine witnesses under oath. These authorities will ensure the commission can gather the information it needs to complete a thorough case review.

The second change I want to highlight is this: Bill C‑40 will modify the threshold to proceed with carrying out an investigation. Similar to the existing regime, the commission will be able to conduct an investigation if there are reasonable grounds to believe a miscarriage of justice may have occurred. The commission will also be able to conduct an investigation if it considers that it is in the interest of justice to do so. This is the precise approach used in Scotland and New Zealand.

With respect to the final decision—not the investigation entry point, but the final decision—Bill C‑40 introduces a new test. The commission will be able to refer matter to the relevant court of appeal, either for a new appeal or to direct a new trial or hearing when there are reasonable grounds to conclude a miscarriage of justice may have occurred, when the test is conjunctive, and when it is in the interest of justice to do so. It is a test with two criteria, not one. This test replaces the current standard, which is that a miscarriage of justice likely occurred.

If the proposed new legal test is not met, the commission must dismiss the application. The remedies in the bill are the same as those currently available in the existing process: a referral for a new appeal or a direction for a new trial or hearing. The commission will not have the power to quash a conviction or determine the issue of guilt. Those are decisions that will always remain with the courts.

Bill C‑40 sets out the factors the commission will have to consider in making its decisions. The factors currently stipulated in the Criminal Code that relate to the administration of justice are reproduced in Bill C‑40, and two new factors are added relating to the particular circumstances of applicants.

That is, it's specifically looking at the personal circumstances of the applicant and distinct challenges they may have faced, with particular attention to the circumstances of Black and indigenous accused.

I believe firmly in our justice system. Its quality is the best in the world. However, we also know that miscarriages of justice occur. Often they are only discovered long after the criminal court process has concluded. These experiences erode the public's trust in a justice system that is meant to protect them. This bill is a significant step forward in restoring that trust and confidence in the system. It is named after David Milgaard, who spent 23 years of his life serving time for a crime he did not commit, and for his mother, Joyce, who never gave up the fight for his freedom.

Bill C-40 honours David and Joyce's legacy by creating a system that will lead to more exonerations of the innocent.

Thank you.

[The Vice-Chair, Conservative, Rob Moore]

Thank you.

Minister, welcome. You're already here, so it's a belated welcome. Thank you for joining the committee today on Bill C-40.

I'll turn it over to you for your opening comments.

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

In terms of efficiency, you said that you expected there would be more applications for review on the grounds of miscarriage of justice. I understand that this is expected, since the system will probably be more efficient. My question is more about the execution of the decision.

Suppose someone files an application for review on the basis of a miscarriage of justice and the commission comes to the conclusion that there was indeed a miscarriage of justice. What is the process under Bill C‑40 to implement that decision? I know of cases where it was not acted on. A miscarriage of justice was acknowledged, but nothing came of it.

So what about the execution of the decision if a miscarriage of justice is recognized?

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

I can answer those questions.

The eligibility criteria are being amended in Bill C‑40.

First of all, the terminology has changed in some respects. Under the current provisions of the Criminal Code, individuals who have been convicted of an offence under an act of Parliament may apply for a review. The bill changes that terminology to refer to people who have been convicted. This clarifies that it includes people who have pleaded guilty as well as people who have been granted a conditional or absolute discharge.

As another eligibility criterion, a provision is being added to allow for an application for review in the case of people who have been found not criminally responsible on account of mental disorder. If there was a misdiagnosis, for example, that could be reviewed.

In terms of improving the review process, during the consultations, we heard a lot about the fact that it is quite onerous for applicants to gather all the trial transcripts and provide the many documents required. Applicants are often still in prison, so it's a fairly onerous process for them. So they have difficulty meeting the admissibility criteria.

If the bill is passed, the first step for applying will be greatly simplified. The Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice will be repealed, and the new commission will instead develop policies to describe what people must submit. The form to fill out will likely be quite simple. This is what we have heard from other countries that have greatly simplified the form that applicants have to fill out. After that, we hope that the preliminary assessment to determine the admissibility of a request for review will be a little quicker and that, once a request has been declared admissible, we will be able to move fairly quickly to an investigation or a decision.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Good morning to all the witnesses. Thank you for giving us your valuable time today.

I would like to know whether the eligibility criteria will change under the new system set out in Bill C‑40. I would also like to know how the process for determining the admissibility of a request for review will be improved.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Mr. Chair, with all due respect, the only time that Bill C-40 has been mentioned is in a point of order, which just confirms how absurd this is.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I have a point of order, Mr. Chair.

We were called here to talk about Bill C‑40. I don't see the connection at all between the questions being asked and the notice of meeting I received.

[Anthony Housefather, Liberal, Mount Royal, QC]

I think there's always a time and a place for questions and it's reasonable to ask questions, Mr. Chair, but the agenda of the meeting was Bill C-40, an act to amend the Criminal Code and to make consequential amendments to other acts and to repeal a regulation regarding miscarriage of justice reviews.

In the normal course, when witnesses are invited here, they are invited to speak to the issue that is on the agenda of the meeting. Now, of course, there's always flexibility. If somebody were invited here on a sports study and questions were posed to them on medical assistance in dying, I think it would be relevant to ask the question of relevance.

Here, I fail to see the correlation or the relevance between that question and the subject in the meeting. That's what I want to understand, Mr. Chair, what the relevance is.

[The Vice-Chair, Conservative, Rob Moore]

I call this meeting to order.

Welcome to meeting number 81 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant the House order of June 21, 2023, the committee is meeting in public to study Bill C-40, an act to amend the Criminal Code and to make consequential amendments to other acts.

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

I would like to make a couple of comments for the benefit of the witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

For interpretation for those on Zoom, you have the choice at the bottom of your screen of either the floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

All comments should be addressed through the Chair.

For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience.

I should also note that you will receive a notice that our meeting for the morning of Thursday from 11:00 to 12:30 with Minister Virani and the chair of the selection process for the new Supreme Court judge has been confirmed.

I understand that our witnesses do not have opening remarks, so we'll move right into our time of questions and answers. I will begin with Mr. Brock for six minutes.

[Randall Koops]

Thank you, Mr. Chair.

I think the amendment clarifies the roles between the minister and the Governor in Council. Inserting new text establishes an obligation on an individual actor—that is, the minister—to make a recommendation that would then be considered for appointment by the Governor in Council in the clause before that. This recognizes the role of the minister, and that a minister can be answerable for that. It is also consistent with other legislation, including the RCMP Act and Bill C-40. I recognize that these are fairly new types of clauses. It's only in the last few years that Parliament has been adopting these.

There may be some benefit in consistency around the duties of a given minister.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

In the new subamendment, in the first line before the comma, I would change it to “in making recommendations for appointments of members of the Commission”.

This language also mirrors what's found in Bill C-40, which deals with the miscarriage of justice reviews. This way we can ensure consistency amongst federal review agencies.

[Randall Koops]

I think the committee may wish to consider that.

It may choose to adopt an amendment like this, in the sense that it is consistent with what we find elsewhere regarding this minister's responsibilities, including for the RCMP, and consistent with government practice. We are seeing other bills—for example Bill C-40—in which that obligation is placed directly on the Minister of Justice, rather than on the Governor in Council. It provides the committee with an individual who can be called to discuss it if it's necessary to inquire about what was considered in making the appointments.

[Randall Koops]

It would be a consideration among the many others the Governor in Council would bring to bear to ensure representation.

Similar provisions, both those in Bill C-40 and the ones that exist now in the RCMP Act in relation to the management advisory board, place that onus on the minister rather than on the Governor in Council. That may be something the committee wishes to consider the desirability of. Placing that onus on the minister allows the House or the minister to question the minister about how those considerations were taken into account, which is, of course, more difficult if the obligation is placed on the Governor in Council directly.

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

Thank you, Mr. Chair.

As I was saying a few moments ago, this amendment is similar to the one that Mr. Julian just proposed with respect to the diversity of commission members. There will be no need for me to give further explanations, because it is so explicit:

(1.1) In appointing members of the Commmission, the Governor in Council must seek to reflect the diversity of Canadian society and must take into account considerations such as gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous peoples and Black persons.

This definition is based on the legislative wording of the bill, which appears to have been largely accepted. It strikes me that this wording is better than the wording proposed in the previous amendment. I would therefore ask my colleagues to vote in favour of my amendment.C-40

[Randall Koops, Director General, International Border Policy, Department of Public Safety and Emergency Preparedness]

I think the concern around the amendment is that it would propose that the appointees of the commission named by the Governor in Council include four specific communities. The entire commission is quite small. It would consist of only five Governor in Council appointees: the chair and four members. If all four members of the commission are allocated in the statute to a specific community, the Governor in Council may over time have less leeway in appointing representatives of other communities who, through time and circumstance, may emerge as warranting representation on the commission.

In that regard, as the parliamentary secretary pointed out and as the chair of the Civilian Review and Complaints Commission has submitted to this committee, an amendment along the lines of BQ-0.1, closer to what exists now in Bill C-40—which is before another committee at the moment—may be desirable from that perspective.

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

Thank you, Mr. Chair.

I fully agree with Ms. O'Connell. The next amendment on the list, which I intend to put forward, covers approximately the same thing, but uses different wording based on the wording of the bill with respect to representation and diversity within the commission it aims to establish. This request comes directly from the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.C-40

I am accordingly not going to vote for Mr. Julian's amendment, but rather for the amendment I will be presenting afterwards. I would recommend that members of the committee do likewise.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair. I'd certainly like to welcome you to your role as chair in our first public meeting.

Of course, I'll echo the comments about welcoming the minister here today. With his previous experience on the committee, I'm sure he'll be willing to come back and speak to us many more times. As he's a new minister, there are several things I'd like to talk to him about, such as decriminalizing HIV non-disclosure, decriminalizing sex work, reforming our extradition laws and the bill that's before the House, Bill C-40, on the miscarriage of justice. However, I do accept the urgency with which we're dealing with Bill S-12, so I will limit my comments and questions to Bill S-12 today.

I fully accept the urgency of maintaining the sex offender registry, but I thank you, Minister, for emphasizing that Bill S-12 not only preserves the registry but also improves the registry. We have had some cases in my riding where people have been added to the sex offender registry and no one in the community would reasonably believe that they should have been added. Sometimes those are people who are neurodiverse or who have intellectual disabilities and have ended up in the sex offender registry. I have spoken with advocates and those people. This bill will provide an opportunity, or that's the way I see it, for a judge to decide whether all those people should automatically be added.

I just wondered if you were aware of those kinds of cases.

(Bill C-9. On the Order: Government Orders)

June 21, 2023—Third reading of Bill C-9, An Act to amend the Judges Act.

(Motion respecting Senate amendments agreed to)

(Bill S-8: On the Order: Government Orders)

June 21, 2023—Third reading of Bill S-8, An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other Acts and to amend the Immigration and Refugee Protection Regulations.

(Bill read the third time and passed)

(Bill C-40: On the Order: Government Orders)

June 21, 2023—Second 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).

(Bill read the second time and referred to a committee)

(Bill C-53: On the Order: Government Orders)

June 21, 2023—Second reading of Bill C-53, An Act respecting the recognition of certain Métis governments in Alberta, Ontario and Saskatchewan, to give effect to treaties with those governments and to make consequential amendments to other Acts

(Bill read the second time and referred to a committee)

Business of the House

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I move that notwithstanding any standing order, special order or usual practice of the House:

(a) on the last allotted day in the supply period ending June 23, 2023, the proceedings on the opposition day motion shall conclude no later than 10:30 p.m., the House shall then proceed to the putting of the question on the motion and then, if required, the taking of any division or divisions necessary to dispose of the motion, and the Speaker shall then put forthwith and successively, without further debate or amendment, every question necessary to dispose of the motions to concur in the Main Estimates for the fiscal year ending March 31, 2024, and to the Supplementary Estimates (A) for the fiscal year ending March 31, 2024, and for the passage at all stages of any bill based on the said estimates;

(b) notices of opposed items in relation to the Main Estimates for the fiscal year ending March 31, 2024, and to the Supplementary Estimates (A) for the fiscal year ending March 31, 2024, listed on the Notice Paper be deemed withdrawn;

(c) the recorded divisions on government legislation currently deferred to the expiry of the time provided for Oral Questions today be deemed further deferred to the conclusion of all proceedings in relation to the estimates tonight;

(d) the motion standing on the Order Paper in the name of the Leader of the Government in the House of Commons related to the appointment of Harriet Solloway as Public Sector Integrity Commissioner pursuant to Standing Order 111.1(2) be deemed moved, a recorded vote be deemed requested and deferred after the recorded division on the motion for third reading of Bill C-42, An Act to amend the Canada Business Corporations Act and to make consequential and related amendments to other Acts;

(e) in relation to Bill C-9, An Act to amend the Judges Act, the amendment to the motion respecting Senate amendments made to the bill be deemed withdrawn and the motion respecting Senate amendments made to the bill, standing on the Notice Paper, be deemed adopted;

(f) Bill S-8, An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other Acts and to amend the Immigration and Refugee Protection Regulations, be deemed read a third time and passed;

(g) 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), be deemed read a second time and referred to the Standing Committee on Justice and Human Rights;

(h) Ways and Means Motion No. 18, notice of which was tabled on June 16, 2023, be deemed concurred in, a bill based thereon standing on the Order Paper in the name of the Minister of Crown-Indigenous Relations, entitled “An Act respecting the recognition of certain Métis governments in Alberta, Ontario and Saskatchewan, to give effect to treaties with those governments and to make consequential amendments to other Acts”, be deemed to have been introduced and read a first time, deemed read a second time and referred to the Standing Committee on Indigenous and Northern Affairs; and

(i) the written questions dated June 20, 2023, standing on the Notice Paper, be deemed to have been transferred to the Order Paper on Wednesday, June 21, 2023, for the purposes of Standing Order 39.

Bill C-42—Time Allocation Motion

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Speaker, I thank the hon. member for sharing the stories and narratives from people in her riding. It is very important that we remind ourselves exactly what the impact of obstructionism does in this place.

I have a constituent who constantly texts me about the progress of Bill C-22. It is a bill that I have supported from the beginning. She is living with a disability. She too is waiting for us to get the job done. I have supported the minister proposing that bill in every way I possibly can, formally and informally. It would wipe out a swath of poverty. I am hoping the letter that goes to the Senate will be accepted by the other place so we can put that in place.

I mentioned the example of Glen Assoun a moment ago and Bill C-40, another important bill that I have put forward to correct miscarriages of justice in the Canadian system. They exist; mistakes happen. However, this is a way to correct them more efficiently, more effectively and with greater access. I am sad that Glen Assoun, who worked for this result, did not live to see this bill get through Parliament.

I am hoping that we can eliminate all of these various delays so we can debate, as the member for Mission—Matsqui—Fraser Canyon wants us to do, the substance without all the other tactics that just grind this place to a halt.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Speaker, I thank the member for his wise leadership in the House.

I agree with the member's comment. It is not just the dilatory tactics and the wasting of time. It is that the Leader of the Opposition is relishing in that in front of the media, being proud of the fact he is trying to grind Parliament down to a stop to prevent good pieces of legislation from moving forward. These are bills such as this one, Bill C-42, and Bill C-40, which I mentioned an hour ago. Over the last month, we have witnessed, time and time again, the misuse of time, the use of delay tactics and the real negativity these bring to the House of Commons.

We want to move forward with this bill because it is a positive bill for Canadians. We want to move forward with this bill because it would help us fight organized crime, money laundering and terrorist financing, and would give us better principles of corporate governance. We rely on the market to do many things in our country and in our economy. For that market to function properly, we need corporate governance structures that are transparent and that allow proper corporate decisions to be made, for the purposes of not only shareholders but also the Canadian public, to the extent that we allow the market to regulate these kinds of issues.

It is an important bill, and we need to pass it.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you, Mr. Speaker. As I said, we just heard a point of order with no point. The point of it was simply to delay time. This happens time and time again. We, as a government, need to do this because the majority of people in the House of Commons would like things to go forward.

We saw last week an important second debate on Bill C-40, which would establish a commission to correct wrongful convictions in Canada. It is something long overdue. We saw that delayed by a number of dilatory motions and procedures on the part of the other side. It is sad and it is tragic.

The Deputy Speaker will know, because he is from Nova Scotia, that Glen Assoun of Nova Scotia died without seeing this bill get to second reading. This is precisely why we need to use these kinds of motions. It is to combat the dilatory tactics being used by the other side.

Business of the House

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I am very glad to respond on behalf of the government.

This afternoon we will continue debate on Government Business No. 26, concerning amendments to the Standing Orders. When debate concludes later this evening, we will consider Bill C-35, respecting early learning and child care, followed by Senate amendments to Bill C-9, concerning the Judges Act.

Tomorrow we will consider Bill C-42, respecting the Canada Business Corporations Act, at report stage and third reading, and Bill S-8, respecting sanctions.

The priorities for next week shall include Bill S-8, on sanctions; Senate amendments to Bill C-18, respecting online news; Bill C-40, concerning the miscarriage of justice review commission act, also known as David and Joyce Milgaard's Law; and Bill C-33, which strengthens the port system and railway safety.

Thursday shall be an allotted day.

Finally, I request that the ordinary hour of daily adjournment for the next sitting be 12 midnight, pursuant to order made Tuesday, November 15, 2022.

Justice and Human Rights

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, I have enjoyed working with my hon. colleague on a number of different things and I want to echo his concerns. I was prepared to debate Bill C-40 today. I think it is very important legislation and something that we really should be discussing at this point.

I also want to go back to some of the discussions the member brought forward with regard to Bill C-41. The member would know that I did not vote in support of this bill for the simple reason that I find that there are some real challenges to this legislation. As much as we were able to work together with members of his party and members of other parties to fix parts of this bill, there are still some really outstanding challenges within the bill that I think make it difficult for civil society organizations and non-profit organizations to work within. It is overly bureaucratic, of course, and has some big challenges on definitions.

One of my big concerns is around the potential for politicization, knowing that a future government could use this legislation to act punitively towards the charitable sector and the international development sector. Does the member have those same concerns? Would he like to comment on that?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Speaker, let me conclude by saying that it is quite important for this House to debate Bill C-40. I know the Minister of Justice and Attorney General of Canada started the debate today. We would have preferred constructive debate from the Conservatives, which we saw at the outset. I know that both the Bloc and the NDP would also constructively contribute to this very important discussion. It is one I believe we have consensus on and can build on to better the bill as we move it forward. It is paramount that those who are languishing in prisons right now who may be wrongfully convicted have the possibility of a review process that would enable them to have an independent arbiter who can speak to the original case itself.

With that, with the disappointment I expressed for the delay, I want to reiterate my support for this motion and also ask that we move to other business at some point, as soon as possible.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I am here to speak on the concurrence report with respect to the Taliban.

This afternoon I was very pleased to see Bill C-41 pass in this House. It is a very important bill, one that many people have been working on for several months. Most notably, it is something that the justice committee has been working on for the last several weeks.

I believe Bill C-41 is a very important step toward ensuring that those in Afghanistan are supported through the many incredible aid agencies that work in the region, including organizations that have an international span as well as those that are regional. I think it is an important step toward supporting Afghanistan in this moment.

With respect to the Taliban, I think it is very clear that it is an organization that offends many aspects of human rights. I can enumerate the various challenges the Taliban poses, not just to the people of Afghanistan but also to the world. It is an organization that is brutal in its force. It is one that has summarily killed so many people. It is one that limits access to education for women. It certainly limits dissent of any sort, and by no means is it democratic. For it to form government in Afghanistan is deeply troubling and deeply problematic.

The reasons that the Taliban are there today are historical. In part, it is because the west just left overnight. I think history will judge that as a failure of the western world. In many ways, we can go back in history and say that the region of Afghanistan is one that has been impacted by colonialism over the centuries. In the last 50 or 60 years, it has been impacted by the Cold War. In this particular case, the departure of the United States in August 2021 certainly enabled the Taliban to take hold of Afghanistan and cause it to regress back into an autocratic state that violates the human rights of its citizens.

Canada's response, it is fair to say, has been quite challenging, in part because of the complexity of the government structure in Afghanistan, which limited our ability to bring people out, but I am very pleased to see that the number of Afghans who have been resettled in Canada over time is in excess of 35,000 people. I think it is a remarkable number, given that this is probably the second-highest number of resettlements we have ever done, the first one being the Syrians right after we formed government in 2015.

I would say Canada is among the top countries in the world to resettle so many Afghans. Of course, there are good reasons for that. Apart from the presence of many family members here and the needs of those Afghans who were directly supporting the Government of Canada, there is a humanitarian reason that this type of resettlement is so critical. Resettling 35,000 within a period of under two years is a remarkable achievement. It may not seem fair to those who may be languishing in different parts of the world or those who are struggling to get out and rightfully should be able to come to Canada. It may seem frustrating that we took two years to do that.

I can give some examples. This morning, I had a call with my office. We do a weekly meeting at 9:00 a.m. every Monday to talk about casework. One of the cases approved today was a resettlement of a group of five Tamil refugees. They had been in India for the last 13 years. This application took 13 years to process. That is the nature of many cases in the resettlement process, although Canada is the number one resettlement country in the world for refugees.

Notwithstanding that, it was a 13-year process, and we can understand how difficult it is for people like that to resettle, especially those who are fleeing conflict. While the two-year mark may seem long, in the broader sense, it is important for Canada and our government to achieve. There is no doubt that we will achieve the 40,000 mark as set out by the Minister of Immigration, as he enumerated a number of different times. We have seen people arrive at our airports and planes full of Afghan refugees who have come here and are settled. I have met many over the last two years and I have met family members of my friends who have come here as part of the resettlement. It is fair to say that Canada is doing its part and is doing its part disproportionate to our involvement in Afghanistan. It is the right thing to do, and I certainly support the government's efforts. I want to reiterate that I am deeply offended by the Taliban and all that it stands for.

Having said all of this, this is a concurrence motion that forms part of a report from the justice and human rights committee, one that is five lines and is quite simple. It basically denounces the Taliban regime, the Taliban administration and the Taliban itself. As such, we generally have unanimous consent from all parties on this language that was passed by committee. I certainly hope it does not take us a full four hours to have the debate here. I would suggest at this point that we go on to what was in the Order Paper and debate Bill C-40.

If I may, I will highlight why it is so important that Bill C-40 be debated and passed. It is a priority bill for the government. Over the past 30 years or so, it is an issue that has offended Canadians, which is that those who may be wrongfully convicted are spending time in jail and unfortunately have no recourse, or the recourse that is available through the process of ministerial relief is quite arduous. We know the Minister of Justice and Attorney General of Canada has outlined the frustration he has faced during his tenure as minister in reviewing those cases.

It is important that we debate this bill and ensure the justice and fairness for which Canada is known and ought to be known. One of the reasons that people of all backgrounds come to Canada would be reiterated through the passage of this bill and would ensure that there is an outlet available for people to seek redress when they are wrongfully convicted. This is not about opening the doors—

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I want to ask the member a procedural question because I know that he is quite active in the legislative process.

We were supposed to debate Bill C-40, which is an important bill. We call it David and Joyce Milgaard's law as it is meant to review convictions for those who were wrongly convicted. I am wondering what kind of an impact a motion like this, at this late hour, would have on this bill.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I note that Bill C-41 passed in this place this afternoon. It is a very important piece of legislation ensuring that aid goes from Canadian sources and agencies to Afghanistan. I want to acknowledge the work of the member opposite on this file.

I also want to question something. Today, when we have the passage of Bill C-41, when I think we are all quite united in condemning the Taliban and all that it stands for, why are we taking valuable House resources away from Bill C-40, an act to amend the Criminal Code with respect to the miscarriage of justice? It is an act that has been sought by many victims, who have come forward to ask the justice system to respond to their needs.

Why are we spending so much time on something that we all agree on?

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

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

moved that 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), be read the second time and referred to a committee.

Mr. Speaker, I am pleased to have the opportunity to stand in this place today and speak to Bill C-40. The title of this bill, the miscarriage of justice review commission act, or David and Joyce Milgaard's law, says a great deal about what the bill intends and why it is so important.

Canada’s justice system is one of the best in the world. However, it is not perfect; mistakes can be made. When that happens, the consequences are enormous, for the accused, the victims and the community in general.

The creation of an independent commission tasked with reviewing applications made on the grounds of miscarriage of justice was included in my mandate letters in 2019 and 2021. This is one of my major priorities as minister, and it is a priority for our government. It is also important to me personally. My mentor, former Supreme Court justice Peter Cory believed that changes needed to be made after reviewing the miscarriage of justice that led to the conviction of Thomas Sophonow in 2001.

In recent years, I have worked hard to develop a new approach that will improve the process for people who claim to have been wrongfully convicted. I have been working a long time to establish an independent miscarriage of justice review commission, as did the two individuals for whom Bill C-40 is named. I sincerely wish they could see us today.

David Milgaard spent 23 years in jail for a murder he did not commit. He maintained his innocence throughout his life, even after exhausting all his appeals. David's mother, Joyce, also believed in David's innocence. She made it her life's work to convince the justice system as well. Joyce advocated tirelessly for David's release, assembling a team of family friends and lawyers, many working for free. Together, they fought to have people listen and to look at David's case again. Through her persistence, she won her son's freedom. When David got out of prison, he became an advocate for the wrongfully convicted, helping others to seek justice. His mother did the same. They were extraordinary people. This bill, Bill C-40, is named the David and Joyce Milgaard act in their honour.

Canada has one of the best justice systems in the world, but David Milgaard's experience reminds us that it is not perfect. While mistakes are rare, they happen. The consequences for the accused, for victims and for the community are enormous. The reality is that, unfortunately, David Milgaard is not the only victim of a miscarriage of justice in Canada. There are several other well-known cases that resulted in commissions of inquiries being held following the discovery of their wrongful convictions. The commission of inquiry reports in the cases of Donald Marshall, Jr. in 1989, Guy Paul Morin in 1998, Thomas Sophonow in 2001, James Driskell in 2007 and David Milgaard in 2008 all recommended the creation of an independent commission to review miscarriage of justice applications in Canada.

Before I describe the proposed reforms, I want to provide a bit of background on this issue and why we need to modernize the existing process. The term “miscarriage of justice” is, perhaps, not well understood, and some may be more familiar with the term “wrongful conviction”. A miscarriage of justice can encompass a broad spectrum of circumstances that call into question the reliability of a conviction or the process that led to it. A miscarriage of justice is one of the grounds of appeal in the Criminal Code.

Miscarriages of justice are often identified and corrected while a case is still making its way through the criminal justice system. However, sometimes, new information or evidence that calls into question the reliability of a conviction only comes to light after an individual has exhausted their rights to appeal. Since the Criminal Code was first enacted in Canada, the Minister of Justice has been empowered to review applications on the grounds of a miscarriage of justice and determine whether a matter should be referred back to the courts for a new trial or an appeal.

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.

As Minister of Justice, my priority is to ensure that the justice system is accessible, effective and equitable. Our criminal justice system processes hundreds of thousands of applications every year, resulting in approximately 250,000 convictions.

Considering this huge number, it is important to consider the possibility of wrongful convictions. Its consequences, as I mentioned, are enormous. A person can spend long years in prison before the mistake is found.

Many countries have independent criminal case review commissions, including England, Wales, Northern Ireland, Scotland, Norway and, more recently, New Zealand in 2020. In these countries, the creation of an independent miscarriage of justice review commission led to a significant increase in the number of wrongful convictions identified. Also, since the commissioners appointed to make these decisions focus solely on this task, applications are processed far more efficiently, which means that people who believe they have been wrongfully convicted can have their file reviewed sooner. It is also essential to mention that the commissions take the decision-making process out of the hands of politicians.

There are likely many more wrongful convictions in Canada than those that are submitted for a ministerial review under the current process. No studies to date have identified an accurate proportion, in large part because it entails measuring the unknown. Some studies conducted in the United States have estimated that it may fall in the range of 3% to 6% in that country. An error rate in Canada of only 0.05% of people sentenced to custody would result in approximately 450 wrongful convictions per year. Since 2003, after the last reforms to this part of the Criminal Code were made, only 187 applications for review have been submitted. That is 187 total, not per year. This tell us that there are many more cases out there.

Given the disproportionate representation of certain populations in the criminal justice system, including Black, indigenous and racialized people, the impact of wrongful convictions is very likely more widespread in these groups. The consequences for the wrongfully convicted are huge: a loss of liberty, including years of incarceration and separation from family and friends, and negative impacts on reputation and employment prospects, just to name a few. Addressing miscarriages of justice more quickly would help mitigate the devastating impact they have not only on the convicted person and their family but also on victims and the justice system as a whole.

I would now like to describe the content of Bill C-40.

First, the new part XXI.2, which the bill proposes adding to the Criminal Code, groups together all of the provisions concerning the creation of the new commission, namely its mandate, its composition, the commissioner appointment process, the duration of a commissioner’s term of office, and the qualifications required for a commissioner, as well as the commission’s powers, duties and functions.

The new commission, called the miscarriage of justice review commission, would be a fully independent administrative body. It would not be part of the Department of Justice. It would completely take over the role I currently play in reviews, investigations and the identification of cases to be referred to the justice system on the grounds of miscarriage of justice.

The commission would be headed by a full-time chief commissioner who would be its chief executive officer. In addition, there would be between four and eight commissioners appointed on a full-time or part-time basis. The legislation would require that appointment recommendations reflect the diversity of Canadian society and take into account gender equality and the overrepresentation of certain groups in the criminal justice system, including indigenous peoples and Black persons. This is the first time in Canadian history that a requirement of this nature would be legislated. The commissioners would have to have knowledge and experience related to the commission's mandate, and, in order to ensure the diversity of lived experience, at least one-third, including the chief commissioner, but no more than half would have to be lawyers with at least 10 years of experience in the practice of criminal law. Others could be experts in various other disciplines, such as criminology or wrongful convictions.

The commission would also have a victim services coordinator to support it and make sure that the process complies with the Canadian Charter of Rights and Freedoms.

Victims of the original crime are also significantly affected by miscarriages of justice. The review of a conviction can lead to shock and feelings of guilt, and prevent victims from moving on with their lives. Victims can therefore choose how they are notified and supported during the process.

Several measures in the bill would make the miscarriage of justice review process more accessible, transparent and open. Bill C‑40 requires that applicants be able to contact the commission from anywhere in Canada. The commission will also have to inform the public about its mission and about miscarriages of justice in general on its website. It will have to make its decisions public while ensuring confidentiality and making sure not to interfere with the administration of justice. Obviously, it is essential that the commission process applications as efficiently as possible and that it provide applicants with regular updates.

When I was in Prince Edward Island a few weeks ago, I met with Ron Dalton, the co-founder of Innocence Canada. I was with my colleague, the MP for Egmont. In 2000, Mr. Dalton was found to have been wrongfully convicted. He told me how important the support of his sister and brother-in-law had been as he fought to have his name cleared for a crime he did not commit.

Not everyone is able to receive this kind of support, and Bill C-40 recognizes this. The commission would be required to adopt a user-friendly and supportive approach when dealing with applicants, in particular those who are vulnerable and face particular needs. Commission staff would provide individuals with information and guidance on applications at each stage of review. The commission would also have the ability to provide supports to applicants in need by directing them to services in the community, assisting them in relation to necessities such as food and housing, and by providing translation and interpretation services. If applicants are without means, the commission could also assist applicants with obtaining legal assistance, with making an application or with responding to the commission's investigation report before a final decision is made.

In addition to the provisions regarding the creation of the new commission per se, Bill C‑40 proposes a complete overhaul of part XXI.1 of the Criminal Code, which contains the substantive provisions governing the miscarriage of justice review process.

In this part of my speech, I will focus on the elements that reflect a policy change.

With respect to the types of applications the commission might review, such as the current provision respecting admissibility in the Criminal Code, it will be able to review any convictions under a federal law or regulation. The text was slightly revised to clarify that this includes guilty pleas, conditional and absolute discharges, as well as convictions under the Youth Criminal Justice Act or the former Young Offenders Act. Verdicts of not criminally responsible on account of a mental disorder would also be added.

Investigative powers are an integral part of the postappeal miscarriage-of-justice review process. This aspect of the current scheme has generated a certain amount of confusion as to when the investigative powers may be used. Bill C-40 seeks to address what has sometimes been described as a catch-22 problem: In some instances, an application may appear to have merit but lacks the new evidence to support that a miscarriage of justice may have occurred, which is the existing basis to invoke the investigative powers. Bill C-40 seeks to resolve this problem by adding that the commission may conduct an investigation if it is in the interests of justice to do so. This would include considering the specific personal factors of the applicant as well as the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention paid to the circumstances of indigenous and Black applicants. This approach is used elsewhere: in Scotland, for example. This approach also dovetails with a new legal test for making referrals back to the courts. The existing test requires that the minister be satisfied a miscarriage of justice likely occurred, before referring the matter back for a new trial or a new appeal.

With Bill C-40, we are proposing to adjust the legal test for a referral, making it a two-prong test. Instead of requiring that the decision-maker be satisfied a miscarriage of justice likely occurred, the government proposes that the commission be able to refer a matter back to the courts if it has reasonable grounds to conclude that a miscarriage of justice may have occurred and that it is in the interests of justice to do so. Again, this is the test used by the commission in Scotland, and we think it strikes the right balance to allow the courts to consider and correct miscarriages of justice when they occur.

The existing factors to support decision-making would be retained and expanded in Bill C-40. Legislation would require that, in making decisions, the commission take into account any relevant factor, including whether there is a new matter of significance not previously considered; the reliability of the information presented; the fact that an application is not intended to serve as a further appeal and that any remedy is extraordinary; the “interests of justice” factors I noted previously, including the personal circumstances of the applicants; and finally, the distinct challenges applicants from certain populations face, again with particular attention to the circumstances of indigenous or Black applicants.

I sincerely hope that the commission will play a legal role, but I also hope that it will play a social role by raising awareness among Canadians. I have asked my parliamentary secretary, the superb member for Scarborough—Rouge Park, to talk in more detail about the educational programs we will be rolling out, because I wanted my speech to focus on the social impact of what we are proposing. We cannot claim that miscarriages of justice never happen. The toll they take on the wrongfully convicted, their loved ones, the community and society in general is far too high.

It is my sincere hope that members will hear directly from several people who have been wrongfully convicted in Canada. Their stories are tragic and troubling. They illustrate why it is so important we have a better understanding of the causes and consequences of wrongful convictions, how the justice system needs to be improved in order to address miscarriages of justice more efficiently and effectively, and, most importantly, how to prevent them from happening in the first place.

I think we can all agree that innocent people do not belong in prison. That is why I hope to have the support of all of my colleagues across party lines in both the House and the Senate so that Bill C-40 is quickly passed. Let us seize this opportunity to show Canadians what we can accomplish by working together.

Business of the House

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, inflation is a global phenomenon. It is good that Canada is below the OECD average. It is also below the G7 average, the G20 average, the U.S., the U.K., Spain, Germany and many other countries. Of course, that is not good enough. We have to continue to lead and do everything we can. That is why I am so proud that this House just adopted a budget with critical measures to help Canadians in every corner of this country with affordability, because we are not going to fix the problem of global inflation by slashing support to the most vulnerable.

After passing the budget, this House has important work to do over the next two weeks.

It will start this evening as we resume debate on Bill C-35, on early learning and child care, at report stage. Once that debate is done, we will resume debate on Bill C-33, on railway safety. Tomorrow, we will debate Bill C-41, on humanitarian aid. On Monday at noon, we will begin second reading debate of Bill C-48 concerning bail reform, and then we will go to Bill C-35 at third reading after question period. On Tuesday we will call Bill S-8, on sanctions, at report stage and third reading.

On top of this, priority will be given to Bill C-22, the disability benefit, and Bill C-40 regarding miscarriage of justice reviews, as well as our proposal to implement changes to the Standing Orders, which were tabled earlier today, to render provisions with respect to hybrid Parliament permanent in this House.

Furthermore, I have a unanimous consent motion that I would like to propose in relation to the debate tomorrow.

I move:

That, notwithstanding any standing order, special order or usual practice of the House, in relation to Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts:

(a) the amendment in Clause 1 adopted by the Standing Committee on Justice and Human Rights, which reads as follows:

“(a) by adding after line 26 on page 1 the following:

(4) Subsections (1) and (2) do not apply to a person who carries out any of the acts referred to in those subsections for the sole purpose of carrying out humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations in accordance with international law while using reasonable efforts to minimize any benefit to terrorist groups.

“(b) by deleting lines 15 to 19 on page 2.”

be deemed within the principle of the bill; and

(b) when the bill is taken up at report stage:

(i) it be deemed concurred in, as amended, on division, after which the bill shall be immediately ordered for consideration at the third reading stage,

(ii) not more than one sitting day or five hours of debate, whichever is the shortest, shall be allotted for consideration at the third reading stage,

(iii) five minutes before the expiry of the time provided for government orders that day, at the conclusion of the five hours allocated for the debate, or when no member rises to speak, whichever is earlier, all questions necessary to dispose of the said stage of the bill shall be put forthwith without further debate or amendment, provided that, if a recorded division is requested, it shall be deferred pursuant to order made Thursday, June 23, 2022.

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

Thank you for that. I'm certainly familiar with your work with Black leadership across the country and the great things that have been done and will continue to be done there.

Can you please tell us about the goal of creating an independent justice review commission and your recent introduction of Bill C-40?

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Thank you, colleagues.

Thank you for the invitation to be here today. I'm pleased to be here as the committee studies the 2023-24 main estimates for the Department of Justice.

I would like to begin, as I always do, and importantly, by acknowledging that we're located on the traditional territory of the Algonquin Anishinabe Nation.

I am joined, as you mentioned, Mr. Chair, by my officials: the deputy minister of justice, Shalene Curtis-Micallef; the chief financial officer, Bill Kroll; and the senior assistant deputy minister, Mike Sousa. Thanks to all of you for being here today in support.

Committee members will note that Justice Canada is seeking a total of $987.6 million in the 2023-24 main estimates, an increase of $65.8 million over the previous fiscal year.

We need a justice system that is accessible, efficient and, above all, fair. Canadians deserve to feel and be safe. Our justice system must live up to their trust. Our government is committed to ensuring that this is the case, and we will continue to honour our Charter, which is the pride of all Canadians.

Reconciliation with Aboriginal peoples is a crucial part of my mandate, in particular the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act.

We are currently working—very hard, I might add—in consultation and co-operation with first nations, Inuit and Métis, including national indigenous organizations, rights holders, modern treaty signatories and self-governing nations, to release an action plan and an annual report this month, as mandated in the act.

The work to ensure that the federal laws of Canada are consistent with the UN declaration is ongoing. This declaration represents transformational change and has the potential to progressively and positively transform the relationship between the Crown and first nations, Inuit and Métis.

In budget 2022, our government announced additional funding to implement the UN declaration act in the amount of $64 million over five years—from 2022-23 to 2026-27—and $11 million ongoing. In the 2023-24 main estimates, we're seeking $17.5 million as part of this commitment.

The Main Estimates also include an additional $7 million for new drug treatment court supervised programs, as well as the expansion of existing programs. These investments are part of our efforts to help those suffering from addiction, especially the most marginalized and vulnerable. Our government believes in an approach based on prevention and addiction treatment to tackle the causes of crime. We will continue to implement evidence- and science-based policies, including drug courts.

Access to justice is a fundamental Canadian value and an integral part of a just society. We know that too many Canadians face systemic barriers when trying to obtain legal services or interact with the courts. Aboriginal, Black and racialized Canadians are over-represented in our criminal justice system. That's why it's particularly important to invest in measures that facilitate access to justice, whether by providing information or support, through renewed funding for legal aid in criminal matters.

Our commitment to fighting discrimination and systemic racism in our institutions goes further. As I mentioned earlier, our justice system is not immune to the insidious mechanisms that stand between our system and truly just justice.

That's why I'm proud to have passed Bill C-5 last November, repealing mandatory minimums that have contributed to the overincarceration of indigenous people, Black persons and members of marginalized communities.

I've also introduced David and Joyce Milgaard's law to advance our work to build a more equitable justice system. It would establish an independent miscarriage of justice review commission to make it simpler and more efficient for potentially wrongfully convicted people to have their applications reviewed. I hope this committee has the opportunity to study this legislation soon. Budget 2023 announced $83.9 million over five years, starting in 2023-24, and $18.7 million ongoing for the commission.

I've also proposed targeted reforms to bail to make our communities safer and build trust in our justice system. Bill C-48 is designed to focus on violent repeat offenders and gun and knife violence, as well as intimate partner violence. This targeted reform to our bail laws is the product of collaboration with the provinces and territories. It has also benefited from input from mayors, police and parliamentarians, as well as indigenous leadership and the legal community.

Everyone in Canada expects us to tackle crime, as well as the causes of crime. Bill C-48 is part of our broader strategy to ensure the safety of all Canadians, and it is an example of what we can achieve when we work together. The bill is charter-compliant, and I'm proud to be a member of the party of the charter. It has been endorsed by provincial and territorial governments, as well as various police organizations across Canada. I look forward to working in particular with my colleagues around this table to advance this legislation quickly to protect Canadians.

The main estimates also seek funding to support other key initiatives to help build a fairer and more accessible justice system and advance the national action plan to end gender-based violence, supporting victims of intimate partner violence. The Mass Casualty Commission in Nova Scotia laid out the importance of addressing gender-based violence, and this action plan will help support our government's work going forward.

I'm pleased to say that budget 2023 announced $95.8 million over five years, starting in 2023-24, and $20.4 million ongoing per year thereafter to support indigenous families in accessing information about their missing or murdered loved ones. These include funding for FILUs, as well as the community support and healing for families initiative and more indigenous-led victim services and supports, which I was proud to announce last week. This investment represents an end to the cycle of temporary funding for these services and ensures that sustainable support is available for these critical resources.

On that note, Mr. Chair, I will wrap up my remarks. Thank you for the opportunity to talk about how we are making our justice system stronger, more accessible and more inclusive for all people.

[Randy Boissonnault, Liberal, Minister of Tourism and Associate Minister of Finance]

Mr. Speaker, this is the first time that I have had the honour to share with our very dear colleagues in the House the message concerning the Thursday question. I am very pleased to answer my colleague.

As members know, Bill C-47, the budget implementation act, was reported from committee yesterday, so we will call it for the final stages of debate starting tomorrow and then continue early next week on Monday and Tuesday.

We will also give priority to Bill C-40, the miscarriage of justice review commission act, also known as David and Joyce Milgaard's law; Bill C-48, bail reform; and Bill C-41, humanitarian assistance.

Finally, I would like to inform the House that next Thursday will be an opposition day.

[Ginette Petitpas Taylor, Liberal, Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency]

Mr. Speaker, when we return the Monday after the week in our ridings, the agenda will include debate at third reading of Bill S‑5, an act to amend the Canadian Environmental Protection Act.

Tuesday and Thursday will be opposition days. On Wednesday, we will resume debate at second reading of Bill C‑42, an act to amend the Canada Business Corporations Act.

On Friday, we will begin debate on Bill C‑40, miscarriage of justice review commission act, also known as David and Joyce Milgaard's law.

I would also like to take this opportunity to inform members that we have posted the position of law clerk and parliamentary counsel in the House of Commons. I encourage members to share that job posting so that we can be sure to find a permanent law clerk as soon as possible to support the important work that we do as parliamentarians.

Again, we have done the process in French and English.

With that, I would like to wish all parliamentarians a wonderful constituency week. I know that we are going to be busy in our ridings.

Public Safety

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I can assure my colleague that our government has been working on very smart criminal justice reforms that are meant to keep our communities safe.

We brought forward Bill C-5, which will essentially address issues with systemic racism within the criminal justice system. We introduced Bill C-40 yesterday, which is for a criminal conviction review commission that is meant to ensure those who are wrongfully accused and convicted have a way out.

We will continue to work on smart criminal justice policy.

Justice

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Speaker, Susan is the sister of David Milgaard, and the daughter of Joyce, after whom the bill is named.

Bill C-40 would create a miscarriage-of-justice review commission to examine wrongful convictions fairly and efficiently—

Miscarriage of Justice Review Commission Act

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce 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).

(Motions deemed adopted, bill read the first time and printed)

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Part of it is the right to innovate...or the safety concerns. A lot of that comes down to enforcement in other jurisdictions. It's not copyright that would be the enforcement mechanism for a lot of those things. Safety isn't copyright. When you're talking about motor vehicle safety acts or environmental protection, that's not the Copyright Act.

Both Bill C-244 and my bill, Bill C-294, which we're talking about today, are not going to allow people to alter or make substantive changes to an already existing piece of equipment. When you look at the very definitions of “diagnose”, “maintenance” or “repair”, you're maintaining it to what the original state was or you're repairing it to the original state. In order to do that safely, you have to be able to access information to restore it to the original state.

What we're trying to do with my bill is to make more products available to the consumer to use, to have the choice and the options for what they want. Again, that's not going to violate environmental protection laws. It's not going to alter motor vehicle safety. There are standards in place that still have to be respected.

All of these companies are certified companies; they're making good products. Are there going to be some bad actors or other people who are black market or whatever? Yes. With or without this, that's going to exist.