Justice committee  In the Milgaard case, the Minister of Justice initially dismissed his application and then his mother approached the Prime Minister. After that a reference was sent to the Supreme Court of Canada. The Supreme Court looked at the evidence and heard from a lot of witnesses. In its decision, it recommended to the minister that it could be referred back to Saskatchewan for a new trial.

Justice committee  I'm not familiar with Baker, but it's relatively recent. It was a federal court decision, then it went to the Supreme Court in 2019.

Justice committee  I don't think they could, because of the way it's proposed in the bill regarding what the trigger is to make an application to the court of appeal for bail. A judicial review is not referenced.

Justice committee  The commission has to first determine that the application is admissible and provide a notice. That creates the trigger to be able to apply for bail pending.

Justice committee  On the hypothetical...of someone who has been convicted of a homicide, if that's the nature of the review that will be undertaken.... As I outlined a moment ago, the more serious the offence is.... If the strength of the appeal is low and the seriousness of the offence is high, the court of appeal would look at how greatly the public's confidence would be undermined if that person were released.

Justice committee  There's no incorporation of Jordan's principle, specifically. There's the overarching requirement that the commission deal with applications “as expeditiously as possible” and provide notices and regular status updates to applicants. It's been one of the main observations that the existing regime is very lengthy.

Justice committee  I referred to the case of Vavilov. The statute is the Federal Courts Act. That's the body that will consider judicial review of federal administrative tribunals, bodies and commissions.

Justice committee  Thank you. On the first question, Bill C-40 proposes that the requirement to have exhausted rights of appeal be maintained. There are exceptions that are laid out with respect to whether an appeal was sought subsequently to the Supreme Court of Canada. As I understand it, that's all that's being considered and proposed at this time on that question.

Justice committee  With respect to a proposed release plan, consideration of sureties and other conditions, it would apply as it would in the court of appeal. That is just the standard. It would apply as if it were a conviction appeal. I just outlined the considerations.

Justice committee  I'm listening.

Justice committee  Bill C-40—

Justice committee  I mentioned that this recommendation came out of the consultations that occurred. The two retired judges who were responsible for conducting the consultations consulted with around 200 individuals and organizations. This is something that came out of those consultations. There was quite a bit of support and not too much opposition to it.

Justice committee  Yes, it's my pleasure. Clause 2, as I was explaining the other day, deals with section 679 of the Criminal Code, which is the bail pending appeal provision. It was a recommendation, following the consultations, that the courts of appeal would be better placed to hear applications for release while the commission is considering an application, or after it has made a referral back to the courts, and that those applicants could make applications to the courts of appeal instead of to the superior courts of criminal jurisdictions.

Justice committee  The general rule is that the hearing will be held very shortly after the notice is received. I think that in some jurisdictions, like Ontario...I think I heard it was maybe even five days. When an adjournment is requested, it could be perhaps 30 days, but the general rule is that the hearing will be held very shortly after the notice is provided.

Justice committee  There would be probably even a motion for an extension. The courts have their own authorities and their own rules about the notice and when a hearing will be held after a notice. I can't really speak to more than that. It would be for the courts to determine.