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 .

[Harry S. LaForme, As an Individual]

Thank you.

Meegwetch for inviting me here to speak to you today and to each of you for your interest in this very important topic.

I am speaking to you virtually from my home in Ancaster, Ontario, located on the treaty territory of the Anishinabe, the Mississaugas of the Credit First Nation, my home.

As an indigenous man who happens to have been a judge for more than two decades, I am painfully familiar with the flaws in the justice system that can lead to miscarriages of justice. Yet the consultations we conducted, as requested by former minister of justice Lametti, revealed a different perspective.

I had the honour to speak with the late David Milgaard four times during this process, where we spoke to 16 other exonerees and 215 people in total. With the assistance of Justice Westmoreland-Traoré and Professor Kent Roach—who, as you indicated, is appearing with me today—we were guided by Mr. Milgaard's experience and wisdom when he told us, “The wrongfully convicted have been failed by the justice system once already. Failing a second time is not negotiable.” He was talking about this.

It was in that spirit that we prepared a detailed 200-page report, which Professor Leonetti of the University of Auckland has praised as a transformative blueprint, that, if implemented, learning from the lessons of other commissions in other countries, could produce the best commission that could proactively investigate miscarriages of justice, play a vital role in their correction and contribute to their prevention.

To say that I am disappointed with Bill C-40 is an understatement. I will summarize my concerns about Bill C-40 into three main themes, which are reflected in our brief.

First, it is critically important that the commission be as independent and as qualified as possible. Bill C-40 as presently written would allow a five-person commission with only a full-time chair, who also has chief executive responsibilities, and without statutorily required indigenous or Black representation. In my view, this is manifestly inadequate to the task. Indigenous and Black people are the population most at risk for wrongful convictions and they have little reason to trust the system. I am also concerned about the slow and non-transparent process of cabinet appointments to the new commission. We have proposed three amendments to expand and strengthen the commission.

Second, Bill C-40 severely restricts the jurisdiction of the commission. That is, the requirement of an adverse decision by a court of appeal would prevent most victims of a miscarriage of justice from even applying to the commission for help. I recommend the submission of UBC's innocence project in this regard. David Milgaard told us not to exclude sentencing from the commission's jurisdiction. We recommended that someone who is still serving a sentence based on wrong and inadequate facts should be able to apply to the commission. I commend the Native Women's Association of Canada brief in this regard. Our proposed amendments four and five also address these concerns.

Finally, I am concerned that Bill C-40 will not produce the type of proactive, systemic and independent commission that the exonerees and many others told us we needed. Commissioners should not have renewable seven-year terms, because the hope of renewal and the spectre of non-renewal may interfere with their independence or reasonable perceptions of it. An independent advisory board should vet candidates for commissioners and assist the commission. The commission's budget, including compensation, should be tied to the judiciary's in order—

[The Chair, Liberal, Lena Metlege Diab]

Good afternoon everyone.

Welcome. Apologies to everyone, but this is kind of what happens in the House of Commons and Parliament. We are commencing late.

All the witnesses who will be speaking have been tested. They all know who they are.

Let me begin by calling the meeting to order. Welcome to meeting number 83 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 Standing Orders. Members are attending in person in the room and remotely using the Zoom application.

I want to make a few comments for the benefit of witnesses and members. 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.

For interpretation, for those on Zoom, you have the choice at the bottom of your screen of floor, English or French. Please make sure that you have it now. For those in the room, you can use the earpiece and select the desired channel.

Just as a reminder, 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 well as we can. We appreciate your patience and understanding in this regard.

I'd now like to welcome the witnesses who will be with us for the first hour of the meeting. Actually, two one-hour periods were planned, but I think that all the witnesses from both groups are here right now.

We have a suggestion that perhaps we combine the witnesses. If it works, we can. If not, let me just proceed with the way it is.

We have, in person, two representatives from the Barreau du Québec, Mr. Nicolas Le Grand Alary, a lawyer for the Secretariat of the Order and Legal Affairs, and Mr. Nicholas St‑Jacques.

We also have, in person, Mr. James Lockyer, counsel and board member at Innocence Canada.

On Zoom, we have the Honourable Harry S. LaForme and Professor Kent Roach, who is from the faculty of law at the University of Toronto. They are both appearing by video conference. Both of them will share the comments together, as will the groups that are in front of us.

Maybe we'll start with the witnesses we have, because not everyone is here.

It looks like we have a few hands up.

Mr. Fortin, the floor is yours.

[Anthony Housefather, Liberal, Mount Royal, QC]

I'll be taking it, Mr. Chair.

Minister, it's nice to have you here. Based on what I've seen before, I could probably ask you about the federal child support guidelines under the Divorce Act, but I will try to stick to Bill C-40.

I want to follow on from what Ms. Gazan was saying. This bill is supposedly aimed at giving the poorest, most vulnerable defendants a better chance of reaching out to a commission and having an opportunity to have their grievances heard about the verdict in court. My concern is the exhaustion of appeal provision. If I'm the poorest of defendants, how often am I going to be appealing to the court of appeal if I don't have the money to pay a good lawyer to be able to do that?

If this happened years later, after I'm time-barred from appealing to the court of appeals, wouldn't I then be locked out of this process? Wouldn't it be better to reconsider that exhaustion of remedies approach to allow the opportunity for the new commission to consider all factors as to whether or not it could consider a case?

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Mr. Chair.

Thank you, Minister, for being here, and to the other witnesses.

Today we're talking about Bill C-40, the proposed miscarriage of justice review commission act, also called the David and Joyce Milgaard law. I want to talk a little about the facts in the Milgaard case. You referred to them already, Minister.

He served 23 years in prison for a crime he did not commit. That was definitely a miscarriage of justice. It was a tragic story, but he and his mother Joyce stuck to their guns. It wasn't until new evidence became available that there was a review. Without that new evidence, there likely never would have been a review.

Under this new regime of having a commission instead of applications managed through your ministry, Minister, how would the Milgaard case have been treated differently? Today, is there still a requirement that there be new evidence presented that wasn't available at trial?

[Leah Gazan, NDP, Winnipeg Centre, MB]

What percentage or portion of applications, through the process provided in Bill C-40, are expected to be from indigenous women?

[Leah Gazan, NDP, Winnipeg Centre, MB]

I have questions about the commission.

I'm wondering what portion of applications, through the process provided in Bill C-40, are expected to be from indigenous women.

[Julie Besner]

Well, the way it's written in Bill C-40 is that it's the attorney general who was responsible for the prosecution or the jurisdiction in which the prosecution occurred. Something along those lines is how it's spelled out in Bill C-40 for the amendments to the code.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Chair.

Welcome, Minister. Thank you to your officials.

I am going to try to focus my questions on Bill C-40.

I will begin by asking you, Minister, to expand a little on the interplay between your statutory responsibilities when it comes to potential miscarriages of justice and what this bill would do—if and when it is passed—in the creation of a new commission that would take on that responsibility. You mentioned in your remarks that you would retain some of the existing statutory responsibilities in this regard, but you also alluded to the commission.

In cases where, for example, in the territories where there are no provincial attorneys general and you still are the presiding attorney general with responsibilities can you clarify what the role of the commission is in initiating a process or a preliminary review step by step, and what your responsibilities are? Help us understand the sequence of how that process will play out between your office and the new commission when it's set up?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you.

It's good to see you in the chair, Mr. Moore.

Hello, colleagues. I hope you're all well. At the outset, I want to say thank you for the quick work on Bill S-12 and making sure that we met a court deadline and maintain the sex offender registry going forward.

Thank you very much for inviting me to speak to you about Bill C‑40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard's Law).

Bill C-40 proposes necessary and long overdue change to our criminal justice system, and it will indeed change lives. I'm grateful for the important work of my predecessor David Lametti in developing Bill C-40. I have every intention of fulfilling the promise that David Lametti made to David Milgaard and his mother Joyce to pass this important legislation.

I think we all, as parliamentarians, owe it to those people who have been wrongfully convicted, like David Milgaard and others. These errors cost them their freedom, their livelihood, their reputation and their time with loved ones. The errors are devastating to victims of crime and to their families.

This bill responds to long-standing calls from wrongfully convicted Canadians and their advocates. This issue has been studied extensively. Over decades, numerous commissions of inquiry have delivered one consistent recommendation to government: the creation of an independent commission dedicated to the review and investigation of cases when a miscarriage of justice that may have occurred is warranted.

Other countries have done this already, so we're not charting new territory here. Independent criminal case review commissions have been established in the jurisdictions of England, Wales and Northern Ireland; in the jurisdiction of Scotland; and in the jurisdiction of New Zealand.

Bill C-40 is shaped by a broad public consultation process that took place during summer 2021, involving more than 200 individuals and groups with experience and expertise in the area of criminal justice. That process was followed by further consultations with the provinces and territories, judicial organizations, national indigenous organizations, organizations from Black and other equity-seeking communities, and various bar associations.

One of the key findings of the consultations is that commissions in other countries are able to process applications far faster than in Canada's current system. This means that countries with an independent commission have fewer people spending time behind bars for crimes they didn't commit. That in and of itself is incredibly significant.

In Canada, our wrongful conviction regime was last amended in 2002.

I'll just note parenthetically that this power has existed in one shape or form in the hands of people, who were my predecessors going back to 1892. We're talking about a change to the executive prerogative in this area that dates back to the time when the first Stanley Cup was awarded over 100 years ago.

Since 2002—I was just referencing the last time this was amended—just over 200 applications for review have been submitted. You've heard Ms. Gazan mention that there have only been 26 successful referrals back to the courts through the ministerial review process.

Let's compare that for a moment with a country that has an independent commission. The United Kingdom is a great comparator. They have referred 822 cases in the same time period, with 559 appeals successfully overturned. With a population that is just about half of the U.K.'s, I think that contrast is very powerful. Further, I would note that in all but five of the 26 successful Canadian applications that Ms. Gazan mentioned, the individuals were white and not racialized. In every single one of the 26 successful applications the individuals were male.

That bears no resemblance whatsoever to our prison populations. Black and indigenous persons, who we all know are overrepresented in our criminal justice system, need equal access to this process, as do women.

An independent commission devoted exclusively to reviewing potential miscarriages of justice will both increase trust in the review process and improve access to justice by facilitating and accelerating the review of applications from persons who may have been wrongfully convicted.

A commission with five to nine full-time or part-time commissioners, in addition to staff, will be able to review applications more quickly. Recommendations for the appointment of commissioners will have to reflect the diversity of Canadian society and also consider gender equality and the overrepresentation of certain groups in the criminal justice system, specifically indigenous and Black individuals.

The bill requires the commission to deal with applications as expeditiously as possible—this was mentioned by Ms. Besner—to provide regular status updates, and to provide notice to the parties, as well as to provide them with a reasonable period of time in which to respond. The bill also requires the commission be accessible and transparent.

It will adopt and publish on its website procedural policies to guide its work. It will have a dedicated victim services coordinator to support victims and assist with the development of procedural policies, especially as they relate to victim notification and participation.

These are essential measures to facilitate the proper support for victims, which I know is a keen concern of yours, Mr. Chair, in terms of the work you and I did on this committee previously.

I think it's important to understand that, obviously, victims can be doubly traumatized by the notion of a miscarriage of justice having occurred and the fact that the actual perpetrator of the crime against their families remains at large.

To help address systemic issues and prevent miscarriages of justice from occurring, the bill directs the commission to carry out outreach activities, such as the ones I mentioned to Ms. Gazan; provide information about its mandate on the miscarriage of justice to the public and potential applicants; and publish its decisions. Commission staff will be empowered to provide applicants with information guidance. The commission will be able to provide reintegration supports to applicants in need. The commission will be able to provide applicants with translation and interpretation services, and to help applicants obtain legal assistance and the necessities of life, such as housing and medical care.

All of these elements are essential. A commission that conducts outreach and assists with applications recognizes the systemic barriers faced by applicants in the current system. It is in everyone's best interest that wrongful convictions be remedied. Indeed, I would posit that there isn't a single one of us, among the 338 occupying the House of Commons, who would advocate for a wrong conviction in any context. Therefore, the proactive nature of Bill C‑40's commission will ensure that no applicant is excluded from accessing this process because of a lack of resources or the inability to apply.

My officials have been briefing you on the technical changes this law reform proposes, but there are a couple that I would like to highlight in particular.

One is with respect to investigative powers. The commission will have the same powers of investigation as I do as Minister of Justice under the existing regime. These powers are found in part I of the Inquiries Act and can be used to compel the production of information or evidence relevant to an application, and to examine witnesses under oath. These authorities will ensure the commission can gather the information it needs to complete a thorough case review.

The second change I want to highlight is this: Bill C‑40 will modify the threshold to proceed with carrying out an investigation. Similar to the existing regime, the commission will be able to conduct an investigation if there are reasonable grounds to believe a miscarriage of justice may have occurred. The commission will also be able to conduct an investigation if it considers that it is in the interest of justice to do so. This is the precise approach used in Scotland and New Zealand.

With respect to the final decision—not the investigation entry point, but the final decision—Bill C‑40 introduces a new test. The commission will be able to refer matter to the relevant court of appeal, either for a new appeal or to direct a new trial or hearing when there are reasonable grounds to conclude a miscarriage of justice may have occurred, when the test is conjunctive, and when it is in the interest of justice to do so. It is a test with two criteria, not one. This test replaces the current standard, which is that a miscarriage of justice likely occurred.

If the proposed new legal test is not met, the commission must dismiss the application. The remedies in the bill are the same as those currently available in the existing process: a referral for a new appeal or a direction for a new trial or hearing. The commission will not have the power to quash a conviction or determine the issue of guilt. Those are decisions that will always remain with the courts.

Bill C‑40 sets out the factors the commission will have to consider in making its decisions. The factors currently stipulated in the Criminal Code that relate to the administration of justice are reproduced in Bill C‑40, and two new factors are added relating to the particular circumstances of applicants.

That is, it's specifically looking at the personal circumstances of the applicant and distinct challenges they may have faced, with particular attention to the circumstances of Black and indigenous accused.

I believe firmly in our justice system. Its quality is the best in the world. However, we also know that miscarriages of justice occur. Often they are only discovered long after the criminal court process has concluded. These experiences erode the public's trust in a justice system that is meant to protect them. This bill is a significant step forward in restoring that trust and confidence in the system. It is named after David Milgaard, who spent 23 years of his life serving time for a crime he did not commit, and for his mother, Joyce, who never gave up the fight for his freedom.

Bill C-40 honours David and Joyce's legacy by creating a system that will lead to more exonerations of the innocent.

Thank you.

[The Vice-Chair, Conservative, Rob Moore]

Thank you.

Minister, welcome. You're already here, so it's a belated welcome. Thank you for joining the committee today on Bill C-40.

I'll turn it over to you for your opening comments.

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

In terms of efficiency, you said that you expected there would be more applications for review on the grounds of miscarriage of justice. I understand that this is expected, since the system will probably be more efficient. My question is more about the execution of the decision.

Suppose someone files an application for review on the basis of a miscarriage of justice and the commission comes to the conclusion that there was indeed a miscarriage of justice. What is the process under Bill C‑40 to implement that decision? I know of cases where it was not acted on. A miscarriage of justice was acknowledged, but nothing came of it.

So what about the execution of the decision if a miscarriage of justice is recognized?

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

I can answer those questions.

The eligibility criteria are being amended in Bill C‑40.

First of all, the terminology has changed in some respects. Under the current provisions of the Criminal Code, individuals who have been convicted of an offence under an act of Parliament may apply for a review. The bill changes that terminology to refer to people who have been convicted. This clarifies that it includes people who have pleaded guilty as well as people who have been granted a conditional or absolute discharge.

As another eligibility criterion, a provision is being added to allow for an application for review in the case of people who have been found not criminally responsible on account of mental disorder. If there was a misdiagnosis, for example, that could be reviewed.

In terms of improving the review process, during the consultations, we heard a lot about the fact that it is quite onerous for applicants to gather all the trial transcripts and provide the many documents required. Applicants are often still in prison, so it's a fairly onerous process for them. So they have difficulty meeting the admissibility criteria.

If the bill is passed, the first step for applying will be greatly simplified. The Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice will be repealed, and the new commission will instead develop policies to describe what people must submit. The form to fill out will likely be quite simple. This is what we have heard from other countries that have greatly simplified the form that applicants have to fill out. After that, we hope that the preliminary assessment to determine the admissibility of a request for review will be a little quicker and that, once a request has been declared admissible, we will be able to move fairly quickly to an investigation or a decision.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Good morning to all the witnesses. Thank you for giving us your valuable time today.

I would like to know whether the eligibility criteria will change under the new system set out in Bill C‑40. I would also like to know how the process for determining the admissibility of a request for review will be improved.

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

Mr. Chair, with all due respect, the only time that Bill C-40 has been mentioned is in a point of order, which just confirms how absurd this is.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I have a point of order, Mr. Chair.

We were called here to talk about Bill C‑40. I don't see the connection at all between the questions being asked and the notice of meeting I received.