3. Questions and Answers

Bill C-40, the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law)

General

Admissibility

Investigation

Decision-making

The Commission

General

Q1 How will the new commission-led process improve upon the current ministerial review process?

A1 Establishing an independent commission dedicated exclusively to miscarriage of justice reviews will help improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed.

With 5 to 9 commissioners and more staff, the new commission would have a greater capacity to review miscarriage of justice claims more quickly, which would help mitigate the devastating impact they have on the convicted person, their family, victims, and the justice system as a whole. The goal in creating a commission as an independent decision-making body is also intended to increase confidence in the review process.

Unlike the current process where the Minister of Justice decides whether a miscarriage of justice likely occurred, the commission would decide whether a miscarriage of justice may have occurred and whether it is in the interest of justice to direct a new trial or refer the case back to the relevant Court of Appeal. 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 to the circumstances of Indigenous and Black applicants.

Similar bodies have been established abroad, including in England, Wales and Northern Ireland, in Scotland and in New Zealand. The creation of the independent commissions in those jurisdictions has led to significantly more applications being made. As a result, more wrongful convictions are being identified and remedied, compared to Canada.

Q2 Countries that have established independent commissions have seen an increase in applications. How are you ensuring that the creation of a new commission won’t lead to increased workload, including for the provinces and territories?

A2 The Government of Canada is aware that where independent commissions have been created in other jurisdictions, it has led to an initial increase in applications. We are also aware that a new commission may lead to additional obligations for the provinces and territories. During the consultations, provinces and territories were consulted and their views and concerns were taken into consideration in drafting this proposed legislation. All criminal justice system partners are committed to ensuring the integrity and proper functioning of the system and actively working towards preventing wrongful convictions from occurring.

The Government of Canada’s aim is to ensure that the new commission has the resources it needs to do its job effectively and efficiently.

Q3 How will establishing an independent commission address systemic racism and discrimination of Indigenous peoples, Black persons and members of racialized communities?

A3 The current system has failed to provide remedies for women, Indigenous peoples or Black persons in the same proportion as they are represented in Canada’s prisons.

An independent commission dedicated exclusively to miscarriage of justice reviews will help improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed, including for Indigenous people, Black persons, and members of marginalized communities.

The commission would have funding for programs to help support applicants, such as: outreach activities; access to legal assistance for applicants who need help navigating the application process; and responding to investigation reports; translation and interpretation services in the language of the applicant when needed; and reintegration supports for applicants during the review process (e.g., for the necessities of life, such as housing and food).

In addition to this, the selection process of the commissioners would reflect Canada’s diversity and take into account the overrepresentation of certain groups in the criminal justice system, such as Black and Indigenous peoples.

Q4 Would an applicant under the current system have a different outcome under the new commission?

A4 The Commission will have independent decision-making capacity and will apply different legal tests and considerations than the Minister under the current scheme.

The fact that the Minister dismissed an application under the old scheme does not prevent an applicant from applying under the new scheme.

If a final decision has not been made by the Minister under the current scheme, the transition provisions in the Bill provide that once the new Commission is in operation, existing applicants will be asked whether they wish to consent to the transfer of their application to the Commission to be processed under the new scheme.

Q5 How are you ensuring that victims of crime aren’t adversely affected?

A5 The Government is committed to supporting projects and activities that promote access to justice and give victims of crime a more effective voice in the criminal justice system.

A fair justice system must be compassionate, accessible, and prioritize the safety and well-being of both victims and accused or convicted persons.

Under the new scheme, the Commission would have a dedicated victim services coordinator position to support victims and assist with the development of procedural policies, especially as it relates to victim notification and participation in a manner consistent with the Canadian Victims Bill of Rights.

Admissibility

Q6 Will the superior courts still be able to make interim release (bail) decisions?

A6 Bill C-40 provides that if the Commission has determined that a miscarriage of justice application is admissible, the court of appeal of the province will determine the issue of release or detention pending the review by the Commission. The same test and rules that apply when a person appeals their conviction would apply in the context of a miscarriage of justice review. Therefore, the court of appeal would consider:

After the completion of the miscarriage of justice review, the relevant court of appeal would determine the issue of release or detention pending a new trial, and pending a hearing and determination of a new appeal. After a new trial is recommenced, the superior courts would have concurrent jurisdiction under the common law to determine the issue of release or detention during the new trial.

Q7 Has the preliminary assessment stage been entirely removed in the new miscarriage of justice review process?

A7 The preliminary assessment stage under the current miscarriage of justice review process is set out in the Regulations that would be repealed under Bill C-40. Given that one of the primary goals of the legislation is to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed, Bill C-40 proposes a simplified admissibility screening process. The two admissibility requirements focus on the types of findings or verdicts that could be reviewed by the Commission and whether the applicant has exhausted their rights of appeal. This simplified admissibility determination follows the practice of other similar commissions abroad.

Q8 Are the factors related to the exhaustion of appeals requirement merely a codification of the applicable case law?

A8 The new statutory factors are indeed grounded in the applicable case law, namely in the 2012 decision of McArthur v. Ontario, which was upheld on appeal, and leave to appeal to the Supreme Court of Canada was not granted. These amendments are intended to help clarify misunderstandings about this admissibility requirement. Mostly, they seek to make it clear that an appeal to the court of the appeal is essential, however exceptions can be made when it comes to a further appeal to the Supreme Court of Canada not having been made.

Although it can be frustrating from the perspective of potential applicants to first have to exhaust their rights of appeal, this requirement is a crucial element to prevent the executive branch of government from usurping the role of the courts. The Commission is an administrative body, not a court. It cannot operate in parallel or as an alternative to the judicial system.

In the McArthur decision, the superior court judge aptly pointed out that: “just as the Minister is ill-equipped to hear appeals, the Supreme Court of Canada is ill-equipped to conduct ministerial reviews”. The Commission-lead process will replace the ministerial review process. It will be there to review and investigate potential miscarriages of justice after a person has exhausted their rights of appeal.

Q9 How will the exhaustion of appeals requirement apply when the miscarriage of justice application is based on a false guilty plea?

A9 A person who alleges that they offered a false guilty plea that resulted in a wrongful conviction are able to apply to the court of appeal to have their guilty plea withdrawn and to seek an extension of time to appeal their conviction. They would be required to undertake those steps in order to exhaust their rights of appeal before applying to the Commission for a miscarriage of justice review. The Commission cannot operate in parallel or as an alternative to the judicial system.

Investigation

Q10 What does “the interests of justice” mean in the investigative threshold provision?

A10 The “interests of justice” has been added as a second ground to trigger the use of the investigative powers to address a “catch 22” problem with the existing threshold to proceed to an investigation. In some instances, an application lacks evidence to support that a miscarriage of justice may have occurred and yet the Minister cannot conduct an investigation if not already satisfied that there may have been a miscarriage of justice. The new “interests of justice” ground has been added to provide greater flexibility to retain an application for investigation and not overlook a potential wrongful conviction.

The interests of justice encompasses both administration of justice considerations and individual circumstances. Therefore, investigative powers will be available to the Commission to seek out relevant information and evidence on a material or decisive issue in a case, and not to indulge mere speculation.

Q11 Under what circumstances will the Commission not conduct an investigation?

A11 The Commission will be afforded some discretion in determining whether it will conduct an investigation. Depending on the particular circumstances in each case, if the Commission does not have reasonable grounds to believe that a miscarriage of justice may have occurred and it does not consider that it is in the interests of justice to conduct an investigation, the Commission will notify the applicant and the relevant Attorney General that it will not investigate. The Commission can also decide that no investigation is needed if there is already sufficient information or evidence available to support making a final decision to refer the case back to the justice system. For example, perhaps newly discovered DNA evidence matching another person is already available, or perhaps there is new information or evidence proving that an offence was never committed in the first place. Those are just two possible examples of where it may not be an appropriate use of resources and would cause further delay to conduct an investigation.

Q12 Could the Commission proactively conduct an investigation, absent an application?

A12 The Commission could not conduct an investigation without having received an application. Nevertheless, the Commission could reach out to potential applicants and provide them with information about its mandate and guidance on the miscarriage of justice review process. Bill C-40 confers on the Commission the same powers of investigation as under Part I of the Inquiries Act, and as the Minister of Justice has under the current law. These powers are made available when conducting a genuine and serious inquiry into a specific claim of miscarriage of justice. Reasonable grounds are needed in order to lawfully require the production of information and evidence that may be relevant to a material issue in a specific case.

Q13 Could the Commission compel legally privileged information or material?

A13 The Commission could request the production of information or evidence that it considers to be relevant to a material issue in an application. Given that all participants in the criminal justice system have a role to play in preventing and addressing potential miscarriages of justice, all participants should cooperate in good faith with the new Commission. Information that is privileged or highly confidential could be protected by the Commission undertaking to not further disclose it.

However, if a person or entity refuses to comply with a production order on the grounds that the information or evidence sought is subject to a legal privilege, a hearing before a competent court would be needed to determine whether the objection to disclosure is grounded, or whether disclosure may be permitted with appropriate measures to protect it. There are several different forms of legal privileges. Each form generally has a specific legal framework to allow access or exceptions, and some are more inviolable than others; for example, judicial privilege cannot be breached.

Decision-Making

Q14 What is meant by “the fact that an application is not intended to serve as a further appeal and that the remedies… are extraordinary remedies” in the provision on the factors to consider?

A14 The Commission will be an administrative body under the executive branch of government, and not a court of criminal jurisdiction under the judicial branch. Like the Minister of Justice under the current regime, the Commission will not determine the issue of guilt or innocence, which only a court can determine. Nor should the Commission simply reconsider all the same evidence and arguments already considered by the courts.

The legislation, currently and as proposed, describes the remedies that can be granted as being “extraordinary”, in the sense that they authorize the executive branch to refer cases back to the justice system after a case has already been finally decided by the courts. The post-appeal miscarriage of justice review process, therefore, operates as a “safety valve”. It ensures that a mechanism is available to review and investigate a new matter of significance that is discovered after a case is no longer in the justice system, so that a potential miscarriage of justice can be addressed and rectified.

Q15 What considerations would lead to an order for a new trial versus a new appeal?

A15 The legislation does not stipulate the considerations that would guide the decision on which type of remedy to grant, whether a new trial or a new appeal. Retaining the existing discretion was preferred over a more rigid set of rules in the event there is a consensus between the applicant and the Attorney General on an efficient remedy. The nature of the particular issues in some cases may point to the need for a new trial, for example if witnesses need to be examined and cross-examined. Other cases may more appropriately be dealt with by the court of appeal, for example when new evidence needs to be considered in the context of the entire body of evidence.

Q16 What will be the status of the person or the conviction when a new trial is directed?

A16 Bill C-40 clarifies that evidence of innocence is not required in order for the Commission to grant a remedy. Given that the Commission is not a court, it will not have the power to determine the issue of guilt or innocence of applicants. Nor will it have the power to overturn a conviction. 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 be held or new appeal heard.

The Commission

Q17 Why not make it a firm requirement to appoint as commissioners an Indigenous and a Black person?

A17 Bill C-40 states that the Minister’s appointment recommendations must seek to reflect the diversity of Canadian society and must take into account the overrepresentation of Indigenous and Black persons in the justice system. The intent of the legislation in seeking to ensure the representation of Indigenous and Black persons on the Commission is, therefore, clearly stated. As well, the legislation is flexible enough to allow for the appointment of qualified candidates from diverse populations while avoiding some of the challenges that could arise in confirming Indigenous identity or in situations involving mixed racial status.

Q18 Will each commissioner need to be fluent in English and French?

A18 Regardless of the location of the Commission’s head office, the Commission, as a federal administrative body, will need to provide bilingual services to all applicants and interested parties. Also, the experience with the existing ministerial review process has shown that there is a significant demand for reviews in French as well as in English. Therefore, the Commission will have the capacity to provide services in both official languages. However, it may not be necessary for each commissioner to be fluent in English and in French.

Q19 Where might the Commission’s head office be located?

A19 Our focus for the present time is on the legislation. The Commission’s head office will be determined at a later date during the implementation stage and will be designated by the Governor in Council.

Q20 Will the Commission hold hearings or be open to the public?

A20 The Commission will not be an adjudicative body like a court or tribunal where the parties participate in an adversarial system of examination and cross-examination of witnesses and oral submissions. Rather, the Commission will be an investigative administrative body, tasked with gathering information and evidence that would be relevant to support its inquiry into a matter and decision-making. Some of that work would be conducted in person and could include interviews and could also include testimony that would be provided under oath. Bill C-40 authorizes the Commission to adopt and publish policies for carrying out of its work, including respecting its procedures and practices. There are also other elements of Bill C-40 that seek to make the miscarriage of justice review process more transparent. Some examples of this include the publication of its decisions, notices to the applicant and the relevant Attorney General throughout the different stages of review and the opportunity to provide a response before a final decision is made. Victims, as well, would be provided with information, notice and needed support services.

Q21 Will there still be some involvement from the Minister of Justice or Justice Canada in the Commission’s operations?

A21 The Minister of Justice and Department of Justice will not be involved in any aspect of the administration of the miscarriage of justice review process or decision-making. The Minister’s role will be limited to making recommendations to the Governor in Council for the appointment of commissioners and for receiving and transmitting to Parliament the Commission’s annual reports. The Minister will also remain responsible for criminal law policy and legislation, including for Parts XXI.1 and XXI.2 of the Criminal Code that govern this process.

The Department of Justice might provide some back office support of a corporate nature, such as with human resources, technology and security, should it be more cost-effective than having those capacities in-house. This approach is occasionally followed with other independent agencies and commissions where the Minister of Justice is the responsible minister under the Financial Administration Act.

Q22 What will be the Commission’s budget compared to the current budget for the CCRG?

A22 The Government will ensure that the Commission has the resources that it needs to operate effectively and efficiently. Budget 2023 proposes to provide $83.9 million over five years, starting in 2023-24, and $18.7 million ongoing for the independent Miscarriage of Justice Review Commission.

Q23 Why are there two mandate provisions in the bill (one in clause 4 and one in clause 6)?

A23 The amendments in Bill C-40 will be brought into force in separate stages. The new Part XXI.2 will be brought into force first so that commissioners may be appointed, staff hired and the head office prepared before the official launch into operation. The mandate provision in clause 4 of the bill is a temporary mandate during the implementation phase to prepare for the launch into operation. Once the Commission is ready to start its work, the reformed Part XXI.1 of the Criminal Code will be brought into force, along with the Commission’s permanent mandate provision in clause 6 of the bill.

Q24 In French, why is the expression “erreur du système judiciaire” sometimes used and other times just the words “erreur judiciaire” are used?

A24 In French, the word “judiciaire” can sometimes refer to the judiciary and sometimes it qualifies the justice system more broadly. We wanted to ensure that the name of the Commission did not refer to the judicial branch and create confusion in suggesting that the reviews would pertain specifically to the conduct of judges. In reality, a broad range of causes have been found to contribute to miscarriages of justice, including, just to name a few:

In almost all of the provisions in Bill C-40, the expression “erreur judiciaire” appropriately encompasses the intended broad notion of miscarriage of justice. This is the case not only in these amendments, but in several other existing provisions in the Criminal Code that use that expression.

Q25 Will existing Criminal Conviction Review Group (CCRG) staff be transferred to the Commission?

A25 There will not be an automatic transfer of CCRG staff to the new Commission, but employees at the CCRG could apply for a position at the Commission.

Q26 How many employees will there be and what types of positions will be filled?

A26 The Chief Commissioner, who is the chief executive officer of the Commission, will determine the number of positions. The current plan is to have a variety of different positions, such as case reviewers (legal counsel and paralegals), outreach and support coordinators, registry officers, communications staff, an executive director, a business manager and administrative support staff, just to name a few. Bill C-40 also authorizes the Commission to hire external experts on an as-needed basis, for example forensic experts and investigators.

Q27 How will the Commission be more proactive in preventing miscarriages of justice from happening in the first place and in assisting potentially wrongfully convicted people?

A27 The Commission’s mandate to conduct outreach and public legal education activities, as well as publishing its decisions and information on miscarriages of justice in general, will help to inform the public and justice system participants on the causes of wrongful convictions and how to prevent them.

The Commission will also have funding for programs to reach out to potential applicants and to provide applicants with guidance on the review process. If applicants are without means, the Commission could also fund legal assistance to help with the application form and in responding to the Commission’s investigation reports. Reintegration supports could also be provided to applicants in need during the review process, for example with housing and food.