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 .

[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?