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 .

[Rob Moore, Conservative, Fundy Royal, NB]

He'll like everything you said, for sure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Those are my comments.

Thank you.

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

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

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

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

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

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

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

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

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

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

[The Chair, Liberal, Lena Metlege Diab]

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

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

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

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

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

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

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

Thank you everyone.

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

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

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

I will ask Mr. Wiberg to please commence.

The floor is yours.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

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

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

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He was cleared by DNA tests.

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

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

I'd like to issue two reminders.

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

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

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

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

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

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

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

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

The tests have been successfully performed.

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

I have just two housekeeping items.

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

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

Can I please have someone move that motion?

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

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

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

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

Madame Brière, thank you.

Does anyone have any objection to that?

Okay. It is so moved.

(Motion agreed to)

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

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

Thank you so much, Mr. Moore.

Are there any objections?

(Motion agreed to)

Thank you.

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

Today, we are welcoming—

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

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

Welcome, Mr. Roy.

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

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

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

Mr. Roy, you have the floor.

[Dr. Myles Frederick McLellan]

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

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

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

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

Our position deals with compensation for wrongful convictions.

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

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

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

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

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

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

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

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

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

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

[Harry S. LaForme]

Thank you.

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

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

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

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

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

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

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

Those are my submissions.

[Nicholas St-Jacques]

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

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

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

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

That explains the change somewhat.

[Nicholas St-Jacques]

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

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

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

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

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

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

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

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

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

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

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

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

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

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