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 .

[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?