moved that Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews), be read the second time and referred to a committee.
Mr. Speaker, I am pleased to have the opportunity to stand in this place today and speak to Bill C-40. The title of this bill, the miscarriage of justice review commission act, or David and Joyce Milgaard's law, says a great deal about what the bill intends and why it is so important.
Canada’s justice system is one of the best in the world. However, it is not perfect; mistakes can be made. When that happens, the consequences are enormous, for the accused, the victims and the community in general.
The creation of an independent commission tasked with reviewing applications made on the grounds of miscarriage of justice was included in my mandate letters in 2019 and 2021. This is one of my major priorities as minister, and it is a priority for our government. It is also important to me personally. My mentor, former Supreme Court justice Peter Cory believed that changes needed to be made after reviewing the miscarriage of justice that led to the conviction of Thomas Sophonow in 2001.
In recent years, I have worked hard to develop a new approach that will improve the process for people who claim to have been wrongfully convicted. I have been working a long time to establish an independent miscarriage of justice review commission, as did the two individuals for whom Bill C-40 is named. I sincerely wish they could see us today.
David Milgaard spent 23 years in jail for a murder he did not commit. He maintained his innocence throughout his life, even after exhausting all his appeals. David's mother, Joyce, also believed in David's innocence. She made it her life's work to convince the justice system as well. Joyce advocated tirelessly for David's release, assembling a team of family friends and lawyers, many working for free. Together, they fought to have people listen and to look at David's case again. Through her persistence, she won her son's freedom. When David got out of prison, he became an advocate for the wrongfully convicted, helping others to seek justice. His mother did the same. They were extraordinary people. This bill, Bill C-40, is named the David and Joyce Milgaard act in their honour.
Canada has one of the best justice systems in the world, but David Milgaard's experience reminds us that it is not perfect. While mistakes are rare, they happen. The consequences for the accused, for victims and for the community are enormous. The reality is that, unfortunately, David Milgaard is not the only victim of a miscarriage of justice in Canada. There are several other well-known cases that resulted in commissions of inquiries being held following the discovery of their wrongful convictions. The commission of inquiry reports in the cases of Donald Marshall, Jr. in 1989, Guy Paul Morin in 1998, Thomas Sophonow in 2001, James Driskell in 2007 and David Milgaard in 2008 all recommended the creation of an independent commission to review miscarriage of justice applications in Canada.
Before I describe the proposed reforms, I want to provide a bit of background on this issue and why we need to modernize the existing process. The term “miscarriage of justice” is, perhaps, not well understood, and some may be more familiar with the term “wrongful conviction”. A miscarriage of justice can encompass a broad spectrum of circumstances that call into question the reliability of a conviction or the process that led to it. A miscarriage of justice is one of the grounds of appeal in the Criminal Code.
Miscarriages of justice are often identified and corrected while a case is still making its way through the criminal justice system. However, sometimes, new information or evidence that calls into question the reliability of a conviction only comes to light after an individual has exhausted their rights to appeal. Since the Criminal Code was first enacted in Canada, the Minister of Justice has been empowered to review applications on the grounds of a miscarriage of justice and determine whether a matter should be referred back to the courts for a new trial or an appeal.
It is important to note that the miscarriage of justice review process is not an alternative to the judicial system, nor is it another level of appeal. Rather, it provides a post-appeal mechanism to review and investigate new information or evidence that was not previously considered by the courts.
As Minister of Justice, my priority is to ensure that the justice system is accessible, effective and equitable. Our criminal justice system processes hundreds of thousands of applications every year, resulting in approximately 250,000 convictions.
Considering this huge number, it is important to consider the possibility of wrongful convictions. Its consequences, as I mentioned, are enormous. A person can spend long years in prison before the mistake is found.
Many countries have independent criminal case review commissions, including England, Wales, Northern Ireland, Scotland, Norway and, more recently, New Zealand in 2020. In these countries, the creation of an independent miscarriage of justice review commission led to a significant increase in the number of wrongful convictions identified. Also, since the commissioners appointed to make these decisions focus solely on this task, applications are processed far more efficiently, which means that people who believe they have been wrongfully convicted can have their file reviewed sooner. It is also essential to mention that the commissions take the decision-making process out of the hands of politicians.
There are likely many more wrongful convictions in Canada than those that are submitted for a ministerial review under the current process. No studies to date have identified an accurate proportion, in large part because it entails measuring the unknown. Some studies conducted in the United States have estimated that it may fall in the range of 3% to 6% in that country. An error rate in Canada of only 0.05% of people sentenced to custody would result in approximately 450 wrongful convictions per year. Since 2003, after the last reforms to this part of the Criminal Code were made, only 187 applications for review have been submitted. That is 187 total, not per year. This tell us that there are many more cases out there.
Given the disproportionate representation of certain populations in the criminal justice system, including Black, indigenous and racialized people, the impact of wrongful convictions is very likely more widespread in these groups. The consequences for the wrongfully convicted are huge: a loss of liberty, including years of incarceration and separation from family and friends, and negative impacts on reputation and employment prospects, just to name a few. Addressing miscarriages of justice more quickly would help mitigate the devastating impact they have not only on the convicted person and their family but also on victims and the justice system as a whole.
I would now like to describe the content of Bill C-40.
First, the new part XXI.2, which the bill proposes adding to the Criminal Code, groups together all of the provisions concerning the creation of the new commission, namely its mandate, its composition, the commissioner appointment process, the duration of a commissioner’s term of office, and the qualifications required for a commissioner, as well as the commission’s powers, duties and functions.
The new commission, called the miscarriage of justice review commission, would be a fully independent administrative body. It would not be part of the Department of Justice. It would completely take over the role I currently play in reviews, investigations and the identification of cases to be referred to the justice system on the grounds of miscarriage of justice.
The commission would be headed by a full-time chief commissioner who would be its chief executive officer. In addition, there would be between four and eight commissioners appointed on a full-time or part-time basis. The legislation would require that appointment recommendations reflect the diversity of Canadian society and take into account gender equality and the overrepresentation of certain groups in the criminal justice system, including indigenous peoples and Black persons. This is the first time in Canadian history that a requirement of this nature would be legislated. The commissioners would have to have knowledge and experience related to the commission's mandate, and, in order to ensure the diversity of lived experience, at least one-third, including the chief commissioner, but no more than half would have to be lawyers with at least 10 years of experience in the practice of criminal law. Others could be experts in various other disciplines, such as criminology or wrongful convictions.
The commission would also have a victim services coordinator to support it and make sure that the process complies with the Canadian Charter of Rights and Freedoms.
Victims of the original crime are also significantly affected by miscarriages of justice. The review of a conviction can lead to shock and feelings of guilt, and prevent victims from moving on with their lives. Victims can therefore choose how they are notified and supported during the process.
Several measures in the bill would make the miscarriage of justice review process more accessible, transparent and open. Bill C‑40 requires that applicants be able to contact the commission from anywhere in Canada. The commission will also have to inform the public about its mission and about miscarriages of justice in general on its website. It will have to make its decisions public while ensuring confidentiality and making sure not to interfere with the administration of justice. Obviously, it is essential that the commission process applications as efficiently as possible and that it provide applicants with regular updates.
When I was in Prince Edward Island a few weeks ago, I met with Ron Dalton, the co-founder of Innocence Canada. I was with my colleague, the MP for Egmont. In 2000, Mr. Dalton was found to have been wrongfully convicted. He told me how important the support of his sister and brother-in-law had been as he fought to have his name cleared for a crime he did not commit.
Not everyone is able to receive this kind of support, and Bill C-40 recognizes this. The commission would be required to adopt a user-friendly and supportive approach when dealing with applicants, in particular those who are vulnerable and face particular needs. Commission staff would provide individuals with information and guidance on applications at each stage of review. The commission would also have the ability to provide supports to applicants in need by directing them to services in the community, assisting them in relation to necessities such as food and housing, and by providing translation and interpretation services. If applicants are without means, the commission could also assist applicants with obtaining legal assistance, with making an application or with responding to the commission's investigation report before a final decision is made.
In addition to the provisions regarding the creation of the new commission per se, Bill C‑40 proposes a complete overhaul of part XXI.1 of the Criminal Code, which contains the substantive provisions governing the miscarriage of justice review process.
In this part of my speech, I will focus on the elements that reflect a policy change.
With respect to the types of applications the commission might review, such as the current provision respecting admissibility in the Criminal Code, it will be able to review any convictions under a federal law or regulation. The text was slightly revised to clarify that this includes guilty pleas, conditional and absolute discharges, as well as convictions under the Youth Criminal Justice Act or the former Young Offenders Act. Verdicts of not criminally responsible on account of a mental disorder would also be added.
Investigative powers are an integral part of the postappeal miscarriage-of-justice review process. This aspect of the current scheme has generated a certain amount of confusion as to when the investigative powers may be used. Bill C-40 seeks to address what has sometimes been described as a catch-22 problem: In some instances, an application may appear to have merit but lacks the new evidence to support that a miscarriage of justice may have occurred, which is the existing basis to invoke the investigative powers. Bill C-40 seeks to resolve this problem by adding that the commission may conduct an investigation if it is in the interests of justice to do so. This would include considering the specific personal factors of the applicant as well as the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention paid to the circumstances of indigenous and Black applicants. This approach is used elsewhere: in Scotland, for example. This approach also dovetails with a new legal test for making referrals back to the courts. The existing test requires that the minister be satisfied a miscarriage of justice likely occurred, before referring the matter back for a new trial or a new appeal.
With Bill C-40, we are proposing to adjust the legal test for a referral, making it a two-prong test. Instead of requiring that the decision-maker be satisfied a miscarriage of justice likely occurred, the government proposes that the commission be able to refer a matter back to the courts if it has reasonable grounds to conclude that a miscarriage of justice may have occurred and that it is in the interests of justice to do so. Again, this is the test used by the commission in Scotland, and we think it strikes the right balance to allow the courts to consider and correct miscarriages of justice when they occur.
The existing factors to support decision-making would be retained and expanded in Bill C-40. Legislation would require that, in making decisions, the commission take into account any relevant factor, including whether there is a new matter of significance not previously considered; the reliability of the information presented; the fact that an application is not intended to serve as a further appeal and that any remedy is extraordinary; the “interests of justice” factors I noted previously, including the personal circumstances of the applicants; and finally, the distinct challenges applicants from certain populations face, again with particular attention to the circumstances of indigenous or Black applicants.
I sincerely hope that the commission will play a legal role, but I also hope that it will play a social role by raising awareness among Canadians. I have asked my parliamentary secretary, the superb member for Scarborough—Rouge Park, to talk in more detail about the educational programs we will be rolling out, because I wanted my speech to focus on the social impact of what we are proposing. We cannot claim that miscarriages of justice never happen. The toll they take on the wrongfully convicted, their loved ones, the community and society in general is far too high.
It is my sincere hope that members will hear directly from several people who have been wrongfully convicted in Canada. Their stories are tragic and troubling. They illustrate why it is so important we have a better understanding of the causes and consequences of wrongful convictions, how the justice system needs to be improved in order to address miscarriages of justice more efficiently and effectively, and, most importantly, how to prevent them from happening in the first place.
I think we can all agree that innocent people do not belong in prison. That is why I hope to have the support of all of my colleagues across party lines in both the House and the Senate so that Bill C-40 is quickly passed. Let us seize this opportunity to show Canadians what we can accomplish by working together.