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)

Tabled in the House of Commons, March 21, 2023

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined 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 review), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-40 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire Bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.


Bill C-40 would replace the existing ministerial review process for miscarriages of justice under Part XXI.1 of the Criminal Code. In its place, it would establish an independent body with a mandate to review applications that are brought before it for reviews of findings and verdicts on the grounds of miscarriage of justice. In establishing an independent commission dedicated exclusively to miscarriage of justice reviews, Bill C-40 seeks to improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed. The commission would remove barriers to access for potential applicants, including Indigenous peoples, Black persons, and members of marginalized communities. The commission would be statutorily empowered to undertake general public legal education and outreach to potential applicants, and would have funding to provide various supports for applicants in need. Addressing miscarriages of justice more quickly will help to mitigate the devastating impact they have on the convicted person, their family, victims and the justice system as a whole.

The new Miscarriage of Justice Review Commission would be composed of a full-time Chief Commissioner and 4 to 8 other full-time or part-time commissioners. Bill C-40 would require the Minister of Justice, in making recommendations for commissioner appointments, to seek to reflect the diversity of Canadian society and to take into account considerations such as gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous peoples and Black persons.

Bill C-40 would require the Commission to deal with review applications as expeditiously as possible and provide the applicant with an update concerning the status of their application on a regular basis. The Commission’s review process would include determining the admissibility of the application, conducting investigations in relation to miscarriage of justice applications and deciding whether to grant a remedy. The Commission would be authorized to direct a new trial or hearing or to 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. In reaching decisions, the commission would take into account, among other factors, the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention to the circumstances of Indigenous or Black applicants.

Judicial interim release

Subsection 679(7) of the Criminal Code provides for the granting of interim release where the Minister of Justice directs a new trial or hearing or refers a matter to the court of appeal. Bill C-40 would amend this provision to reflect the role of the new Commission, rather than the Minister, in reviewing miscarriage of justice applications. It would set out the process that applies to determine eligibility for release while the Commission is completing its review of an application that is accepted as admissible, pending a new trial or hearing directed by the Commission or pending the determination of any matter referred by the Commission to the court of appeal. The amended provision would maintain the approach under the existing subsection 679(7), under which eligibility for release in these circumstances is subject to the same rules that apply to a person who has appealed a conviction, as opposed to the rules that apply when a person is first charged with an offence.

Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. Because the proposed provision sets out the standard for whether a person who has applied for review will remain incarcerated or be released, and allows the court to impose conditions if they are released, it has the potential to engage the residual liberty interests of incarcerated persons.

The following considerations support the consistency of the proposed bail provision with sections 7 of the Charter. In reviewing the bill, the Minister of Justice has not identified any potential inconsistencies between this provision and the principles of fundamental justice under section 7. The proposed provision would allow the person to be released based on the same considerations and following the same rules that apply where a person appeals their conviction. These principles are well established and regularly applied by the courts. This process requires a court to perform a fair and individualized assessment of the person’s circumstances in determining whether they should be released, and if so on what conditions.

Section 11 of the Charter guarantees certain rights to persons who have been charged with an offence, including the right not to be denied reasonable bail without just cause under section 11(e). The right to bail under section 11(e) is a pre-trial right that applies to accused persons who are “charged with an offence” in the meaning of s. 11 and therefore does not apply in these circumstances. A person whose application for review has been accepted as admissible by the Commission remains a convicted person, even where the Commission directs that a new trial or hearing be held or refers the matter to the court of appeal. This is because the Commission would not have the power to set aside a conviction. As such, a person whose application for review has been accepted by the Commission would be in a comparable situation to a person whose conviction is under appeal, and would no longer be a person “charged with an offence” within the meaning of section 11.

Power to conduct investigations

Bill C-40 would provide that the Commission may conduct an investigation in relation to an application where 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. For the purposes of an investigation, the Commission would have the powers of a commissioner under Part I of the Inquiries Act. Specifically, this would include the power to summon any witness and to require them to give evidence orally or in writing or to produce documents or things that are relevant to the matter under examination.

Section 8 of the Charter protects against “unreasonable” searches and seizures. The purpose of section 8 is to protect individuals against unreasonable intrusions upon their privacy. A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and it is carried out in a reasonable manner.

Because the proposed Commission’s powers to conduct investigations would have the potential to interfere with privacy interests, they may engage section 8. The following considerations support the consistency of these powers with section 8 of the Charter. The powers would not be available for penal purposes. Rather, they would be available to support the Commission’s consideration of applications for review of potential miscarriages of justice. The powers would only be available in circumstances where the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred or where the Commission considers that an investigation in relation to an application is in the interests of justice. Finally, the Commission would be required to publish its decisions in a manner that protects confidential information and that is not likely to interfere with the proper administration of justice in relation to a new trial or hearing directed by the Commission or a matter that the Commission refers to a court of appeal for a hearing and determination.