2. Minister’s Opening Remarks

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

House of Commons Standing Committee on Justice and Human Rights

October 2023

Thank you for inviting me to come speak to you about Bill C-40, the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law). I am accompanied by two officials from my Department who could answer technical questions you may have concerning this Bill.

This legislative initiative responds to longstanding calls from interested stakeholder groups and advocates for the wrongfully convicted. Recommendations to create an independent commission have been a consistent call of the various commissions of inquiry into wrongful convictions that have occurred in Canada over the past several decades. Bill C-40 follows the establishment of similar independent commissions abroad. In Commonwealth jurisdictions, independent Criminal Case Review Commissions were established in:

In my predecessor’s mandate letter from the Prime Minister was a commitment to establish an independent criminal case review commission to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed. Following up on that commitment a broad public consultation process took place during the summer of 2021 involving more than 200 individuals and groups. Subsequent to that process there were further consultations with the provinces and territories, judicial organizations, National Indigenous Organizations, organizations in Black and other equity-seeking communities and various bar associations.

What was heard loud and clear is that not only was an independent commission necessary, but also a more efficient and timely process for dealing with potential wrongful convictions. One of the principal things which came out in the course of the public consultations is that the commissions abroad are generally able to process applications far more quickly than has been the experience here in Canada. In order to speed up the process, Bill C-40 seeks to follow some of the approaches used in those jurisdictions, while taking into account our own legal and governance systems.

In Canada, since the last reforms to this Part of the Criminal Code were made in 2002, a little more than 200 applications for review have been submitted, resulting in 26 successful referrals [up until October 30, 2023]. All but five of those applicants were white and all were male.

The 2021 consultation report highlighted that 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 both increase confidence in the review process and help improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed. With five to nine full or part-time commissioners and more staff, the new commission will have the capacity to review miscarriage of justice claims more quickly. Uniquely, the recommendations for the appointment of commissioners must seek to reflect the diversity of Canadian society and in particular take into account gender equality and the over-representation of certain groups in the criminal justice system, including Indigenous peoples and Black persons.

As an overarching requirement, the Bill requires the Commission to deal with applications as expeditiously as possible, to provide regular status updates and notices to the parties, as well as provide them with a reasonable period of time to respond.

The Bill requires that the Commission be accessible and transparent. The Commission will be required to adopt, and publish on its website, procedural policies to guide its work. It 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.

To help address systemic issues and prevent miscarriages of justice, the Bill directs the Commission to carry out outreach activities, to provide information about its mandate and miscarriages of justice to the public and potential applicants, and to publish its decisions.

Commission staff will be empowered to provide applicants with information and guidance, and the Commission will be able to provide reintegration supports to applicants in need. It will be able to provide them with translation and interpretation services, helping them obtain legal assistance, and help them obtain necessities of life.

Turning now to the substantive law reform amendments in Bill C-40, in the admissibility criteria the word “conviction” is being replaced with the term “finding of guilt” to make it clearer that findings of guilt under the Youth Criminal Justice Act, and the former Young Offenders Act, are admissible for a review. It would also capture absolute and conditional discharges, and perhaps more importantly, guilty pleas. Bill C-40 also adds verdicts of Not Criminally Responsible on Account of Mental Disorder to the list of findings that would be admissible for a miscarriage of justice review.

The exhaustion of appeals remains an admissibility requirement. However, Bill C-40 clarifies how that criterion is to be applied, consistent with the relevant caselaw on this issue. In a nutshell, an appeal to the court of appeal is essential in all cases, but not necessarily a subsequent appeal to the Supreme Court of Canada.

Therefore, 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 screening process follows the practice of other similar commissions abroad and should make it easier and faster for potentially wrongfully convicted people to have their applications reviewed.

With respect to investigative powers, the Commission will have the same powers of investigation as I, Minister of Justice currently have 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.

Bill C-40 will modify the threshold to proceed to 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 that a miscarriage of justice may have occurred. However, the Commission will also be able to conduct an investigation if it considers that it is in the interests of justice to do so. This is the approach that is used in Scotland and New Zealand.

With respect to final decision-making, the Bill provides that the Commission can refer a matter to the relevant Court of Appeal for a new appeal, or direct a new trial or hearing, when there are reasonable grounds to conclude that a miscarriage of justice “may have occurred”, instead of “likely occurred” which is the current legal test, but only if it is in the interests of justice to do so. If the proposed legal test is not met, the Commission must dismiss the application. Therefore, 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, which is a decision that must rest with the courts.

Bill C-40 sets out specific factors that the Commission must take into account in making its decision. The existing factors relating to administration of justice considerations are being retained, along with the addition of two new factors that focus on the individual circumstances of applicants.

In order to ensure oversight and accountability, the Commission will be required to provide a detailed annual report to Parliament via the Minister of Justice. The Bill also provides for a Parliamentary review after the first five years and every ten years thereafter.

In closing, I would just add that we know that miscarriages of justice do occur. And, often, they are only discovered long after the criminal court process has concluded. These experiences steadily erode the public’s trust in a justice system that is meant to protect them, and this Bill is a significant step forward in restoring that trust. I look forward to your questions.