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]

Thank you, Madam Chair.

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

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

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

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

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

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

Thank you.

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

Maybe I can shed some light on this.

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

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

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

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

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

[The Chair, Liberal, Lena Metlege Diab]

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

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

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

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

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

[The Chair, Liberal, Lena Metlege Diab]

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

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

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

[The Chair, Liberal, Lena Metlege Diab]

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

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

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

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

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

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

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

[The Chair, Liberal, Lena Metlege Diab]

That's fabulous. Thank you.

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

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

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

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

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

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

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

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

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

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

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

Welcome.

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

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

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

Thank you, Madam Chair.

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

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

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

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

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

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

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

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

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

[The Chair, Liberal, Lena Metlege Diab]

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

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

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

Thank you, Madam Chair.

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

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

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

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

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