Tuesday, November 26, 2024

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

THIRTIETH REPORT

Your committee, to which was referred 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), has, in obedience to the order of reference of Thursday, October 10, 2024, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

Observations to the Thirtieth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-40)

The committee held 16 hours of meetings from October 23, 2024 to November 21, 2024, and heard testimony from: the Minister of Justice and Attorney General of Canada; former ministers of Justice and attorneys general of Canada; officials from federal government departments; individuals who were wrongfully convicted; legal experts; academics; representatives from law enforcement; representatives from international commissions; representatives of organizations supporting victims and survivors of crimes; and journalists.

Systemic Issues

The committee recommends that the statutory mandate of the Miscarriages of Justice Review Commission should include an explicit authority to make recommendations on systemic issues. Consequently, steps should be taken during the bringing into force of this bill to ensure that the broader mandate for the Commission proposed in clause 4 prevails over that narrower mandate proposed in clause 6.

The committee would like to underscore the fact that its study of Bill C-40 was informed by briefs and witness testimony, including a letter from the Minister of Justice that will inform interpretation of Bill C-40 and guide the mandate of the Miscarriages of Justice Review Commission, particularly with regard to the vital importance of ensuring meaningful and proactive acknowledgement and redress of sexist, racist and other systemic inequalities, in particular for Indigenous women, commencing with the cases identified in the report entitled Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women.

Sentencing and parole decisions

The committee observes that both the Criminal Cases Review Commission of the United Kingdom and the Scottish Criminal Cases Review Commission are empowered to review sentencing and parole decisions. In addition, the Minister testified before the committee in favour of such an expansion of the Canadian Commission’s scope of review, provided that it first be given time to develop its operations. The committee therefore recommends a future expansion of the Commission’s scope of review to include sentencing and parole decisions.

Commissioner reappointment

The committee observes, based on the testimony of expert witnesses before it, and in particular from the Criminal Cases Review Commission of the United Kingdom and the Scottish Criminal Cases Review Commission, that the independence of the Commission — both in public perception and in fact — would be enhanced by removing the possibility of the reappointment of commissioners. Consideration should be given to future legislative amendments that would foreclose the reappointment of commissioners.

Diversity

During the committee’s study of Bill C-40, significant focus and discussion centered on clause 696.73, titled “Diversity.” This section of the bill stipulates that the Minister must seek to reflect the diversity of Canadian society. The verb “to seek” is generally defined as an “attempt to find” or an “attempt or desire to obtain or achieve.” The committee believes that this language is not strong enough. Witnesses emphasized the importance of representation and the need for the composition of Commissioners — and the staff supporting the Commission’s work — to reflect Canadian society.

In creating this new Commission and its processes, it is crucial to avoid amplifying or recreating a colonial system to prevent replicating past mistakes that have disproportionately affected Black, racialized, and Indigenous peoples. The Black Justice Strategy provides a lens through which the justice system can be reviewed to address these systemic issues and offer redress.

For instance, recommendation 8 of the Black Justice Strategy, titled “Education and training”, states that,

Despite ongoing efforts, there remains substantial need for comprehensive education and training on anti-Black racism and cultural competency for criminal justice actors and representatives of adjacent organizations and agencies…

This recommendation, among others, should instruct the process of ensuring diversity and strengthening the fight against anti-Black racism at every level of staffing, each step of implementation, and for the ongoing processes of this Commission.

Your committee also heard from several witnesses about the over-representation of Black and Indigenous Canadians in the criminal justice system. As noted above, while the bill provides for some diversity in s.696.73 by requiring the Minister to “seek to reflect the diversity of Canadian society”, it does not guarantee the inclusion of an Indigenous or Black commissioner. As such, your committee strongly urges the current and future governments to ensure that there is always representation on the Commission from overrepresented groups such as Black, Indigenous and persons of colour.

Languages

Your committee witnessed first-hand the lack of proficiency that some wrongfully accused have in either official language; this should not be a barrier to seeking justice. Given that section 6 of the Indigenous Languages Act recognizes that “the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 include rights related to Indigenous languages,” it is important that the Commission include in their policies and practices accommodation for Indigenous languages. The committee notes that this would require adequate resourcing of the Commission in order to ensure that documents related to the case, correspondence and any other communications with the Commission be available in the Indigenous language of the accused.

The committee also requests that the government respect the spirit and letter of the Official Languages Act as well as the principle of equal access to justice in both of Canada’s official languages by appointing some commissioners who can speak and understand both official languages fluently.