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)

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.

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?

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.