Moved second reading of 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).

He said: Honourable senators, I rise to speak to Bill C-40, the miscarriage of justice review commission act (David and Joyce Milgaard’s law). The goal of this legislation is to create an independent criminal case review commission that makes it easier and faster for potentially wrongly convicted people to have their applications reviewed. Currently, the Minister of Justice is responsible for reviewing miscarriage of justice applications. Through this legislation, an independent commission will take on this role.

This is not a new idea. In fact, the creation of an independent commission was discussed in this chamber years ago — in 2002 — in the context of Bill C-15A. That legislation included amendments to reform the ministerial miscarriage of justice review process, among other reforms.

At that time, the idea of establishing an independent commission, modelled on the one established in the United Kingdom, garnered quite a bit of support here in the chamber and also in the other place. However, the government of the day chose to reform the ministerial review process instead of creating a new body independent of the Department of Justice. It saw a major distinction between the role of the Home Secretary in the United Kingdom in overseeing the police compared to the role of the Attorney General of Canada who is not responsible for law enforcement.

Calls for making the miscarriage of justice review process more independent, efficient and transparent have not stopped, despite the 2002 reforms to this area of the law. Moreover, the number of miscarriages of justice identified and remedied in Canada is significantly smaller when compared to the number of successful remedies granted in the United Kingdom.

The Gender-based Analysis Plus, or GBA Plus, prepared for this bill points out that the Criminal Cases Review Commission received almost 32,000 applications between April 1997 and April 2024 in England, Wales and Northern Ireland. That is 27 years of experience. From these applications, 580 cases were referred back to the court and the conviction was overturned.

The Scottish Criminal Cases Review Commission received over 3,200 applications between 1999 and March 2024, leading to the successful referral of 96 cases back to the courts. That is 25 years of experience.

In Canada, since 2002, when the last reforms to this part of the Criminal Code were made, up until July 2024, approximately 200 applications were submitted for ministerial review. Of those 200 applications, 30 were referred back to the courts, and 24 of those 30 cases resulted in convictions being overturned, acquitted or stayed after referral. Six are still in progress and have not been resolved.

Digging deeper into those 30 applications, only 7 of the ministerial remedies granted in Canada were for racialized applicants and none of them were for women. These statistics do not correspond with the demographics of incarcerated people in Canada.

The report from the public consultations held prior to the development of this legislation highlighted that the current system of review has failed to provide remedies for women, Indigenous peoples and Black persons in the same proportion as they are represented in Canada’s prisons.

According to the GBA Plus report, it appears that these groups in particular have been underserved and their miscarriages of justice not yet identified and remedied.

Here it is important to note the compounding factor of intersectionality. As a reminder, GBA Plus factors are identity factors that go beyond gender. They also include things such as race, ethnicity, religion, age, mental or physical disability, level of income and education. An analysis of these personal characteristics and the way they intersect shows that their presence can contribute to wrongful convictions. These factors could also contribute to the number of potential miscarriages of justice that have yet to be identified and could be anticipated by the new commission.

For example, in terms of gender, female victims of abuse have been found to plead guilty despite self-defence arguments which were available to them.

Similarly, systemic discrimination by means of over-policing has been determined to be one of the factors behind the overrepresentation of Indigenous persons and Black Canadians in Canada’s criminal justice system.

When gender intersects with being Indigenous in the case of incarcerated Indigenous women, the Correctional Investigator reports that half of all federally sentenced women are Indigenous even though Indigenous women make up less than 4% of women in Canada.

Senators, this imbalance is not news to us. In fact, several of our colleagues in this chamber have worked on these issues, specifically Senator Pate, Senator Anderson, Senator Boyer, Senator Audette and Senator Jaffer. They have closely examined the particular circumstances of 12 Indigenous women as injustices and miscarriages of justice that should be reviewed by the Department of Justice, the Law Commission of Canada and/or the new miscarriage of justice review commission.

Bill C-40 includes several features that would enable the new commission to specifically consider the circumstances of Indigenous and Black applicants, as well as other GBA Plus issues generally. The structure of the new commission would consider several factors, including those raised in public consultations.

First, recommendations for the appointment of commissioners must seek to reflect the diversity of Canadian society. These recommendations should take into account considerations such as gender equality, and the recommendation should respond to the overrepresentation of certain groups in the criminal justice system by including Indigenous peoples and Black persons.

Commissioners must also have knowledge and experience related to the commission’s mandate.

A commission comprised of commissioners from different backgrounds and life experiences, specifically reflecting the diversity of Canadian society, will strengthen inclusiveness and broaden perspectives in the decision-making process. It will also help to instill greater trust in the review body among applicants, the general population and racialized communities in particular.

The commission will have the duty to conduct outreach activities to the general public and to potential applicants, including those who are difficult to reach or have been underserved in the past. In order to proactively remove barriers to access, this outreach could consist of commission staff visiting prisons and other correctional facilities.

The commission’s outreach duties are intended to raise greater awareness among diverse audiences about miscarriages of justice and the availability of a review.

Ultimately, greater outreach efforts should increase applications and, in turn, increase the identification of miscarriages of justice that should be remedied.

The duty to provide information to the public and potential applicants about miscarriages of justice in general is also intended to address systemic issues that cause miscarriages of justice and to help prevent future incidents from occurring. Importantly, the commission has an obligation to publish its decisions with information on the causes and consequences of miscarriages of justice.

Of particular note, the commissioners’ obligation to publish is intended to engage all participants in the justice system who have a role to play in helping to prevent future miscarriages of justice.

The legislation also clarifies the scope of admissible applications to ensure that youth are eligible for a review, as well as persons who were found guilty following a guilty plea.

The scope of admissible applications is also being expanded to include persons who were found to be not criminally responsible on account of a mental disorder. The commission will also have the flexibility to make exceptions to the requirement that appeal rights have to be exhausted. This is based on factors specified in the legislation.

Bill C-40 will repeal the existing regulations under the current scheme which have been found to be onerous to meet, especially for applicants who are self-represented, are incarcerated, have lower levels of education, low income, mental health issues and so on.

The repeal of the regulations will also alter the existing stages of the review. It will simplify them and reduce the time needed to assess applications, particularly those that are less complex.

A key feature is that the legal test for referral has been changed in two important ways in order to provide greater access to justice by having the courts re-examine meritorious cases.

First, the threshold has been lowered from the minister being satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred to, in this model, the commission having reasonable grounds to conclude that a miscarriage of justice may have occurred.

Second, “the interests of justice” in the new test for referral requires the consideration of circumstances that are relevant to the applicant specifically and not just limited to considerations relevant to the administration of justice.

In making decisions, the legislation directs the commission to take into account, among other factors, the personal circumstances of the applicant and the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice.

Particular attention is given to the circumstances of Indigenous or Black applicants. Examples of personal circumstances and distinct challenges faced by certain populations could include Indigenous identity, the impacts of colonialism and residential schools, systemic racism, racial profiling, the effects of intimate partner violence, as well as underlying issues such as poverty, homelessness, addictions, mental health, age, gender and disability.

The commission will have the power and funding to support applicants in need, including by providing services in the community such as translation and interpretation services, food, housing and legal assistance in relation to making an application through this new process.

The commission will also have employees to provide information and guidance to applicants throughout the review process.

The support component of the commission’s mandate is intended to provide greater access to justice and meet the particular needs of applicants, many of whom, after years of imprisonment, face unique challenges in reintegrating into society.

The commission will be able to deliver culturally appropriate and accessible services in a decentralized way and not necessarily by electronic means.

The commission will also be required to notify victims. It will have a dedicated victim services coordination position to support victims. The victim services coordinator will offer, as much as possible, information and support as the victims need, taking into account GBA Plus factors that may be in play.

The commission will also be required to adopt specific policies relating to victim notification and participation in a manner consistent with the Canadian Victims Bill of Rights.

The commission will be required to gather GBA Plus statistics on applicants to monitor trends and for its annual report to Parliament. The content of the commission’s annual reports will provide greater transparency, oversight and accountability with respect to the commission’s work to make improvements where needed.

Colleagues, I believe that Bill C-40 will vastly improve the miscarriage of justice review process. I could speak about this at length, drawing from my experience as a Crown prosecutor, a provincial court judge, a treaty commissioner and a human rights commissioner, to go deeper.

For today, and in the interest of moving this legislation forward, I urge you to refer this bill to committee for study so it can continue to progress through Parliament toward Royal Assent as quickly as possible.

This bill is aimed at dealing with long-standing issues around wrongful convictions to produce a much better mechanism to deal with these issues and, ultimately, enhance the administration of justice in Canada.

Thank you.

I can’t answer that question in any definitive way at the moment, but I would be happy to look into that.

I hope this bill goes to committee as soon as possible. It is important that it be dealt with. This is an important piece that needs remedy in Canadian society.

I don’t have the exact remuneration suggested for the chief commissioner or other commissioners. There has been $83.9 million set aside, or $18.7 million per year, to operate the commission. I can find out the exact numbers.

I hope that when I ask that question on your behalf, it will demonstrate that the salary is commensurate with the responsibilities that these commissioners will hold, which are a heavy burden.

I can say this: I think this organization should be independent. The commissioners should be independent, as close to what judicial independence is understood as in Canada, because it is so important to maintain trust in the impartiality of the process.

I don’t have an answer to that. I hope it would be as soon as possible. It is a daunting task with the ability to do in-depth investigations. It has a lot of responsibility and will have to engage a number of players to meet its mandate.

I don’t know if there is an anticipated time from the passing of legislation to implementation. One would think it would be as soon as possible. Delay is only going to deny people a right to a review.

The foundation for this bill was created by a report in 2021 by former justice Harry LaForme and Juanita Westmoreland-Traoré, which outlined the need to adjust that threshold.

Even though the threshold has changed and could be seen as a little lower, it is still a very high threshold that must be met. Professor Kent Roach has been in front of the Legal and Constitutional Affairs Committee a number of times. He has described this bill as a very good start.

We will see that in the Canadian experience, we can’t answer all these questions because we must have good, responsible professionals as the commissioners.

We will only gain that understanding and an answer to some of the questions you have raised with the experience which is built into the bill because there is an automatic 5-year review and, thereafter, at 10 years as well. That’s about all I can say in response to that question at the moment.

Will Senator Arnot take a question?

Certainly. Will you like my answer?

I don’t know yet.

I would like to begin with an observation that this is structured around and reflective of the wrongful conviction of David Milgaard, but there have been others before. In fact, Senator Cuzner talked about Donald Marshall Jr. eloquently today, and it is a reminder that this is a national challenge and that a national solution is intended here.

You will also be familiar with the association of lawyers for the wrongfully convicted led by the distinguished Toronto lawyer James Lockyer, recently renamed Innocence Canada, and a number of those cases are in the pipeline. I’m interested if you’re able to know at this time whether those cases will continue in the pipeline under the old regime, or if there will be a transition to the new model that has this independence to it. Are you able to speak to that at this time?

I can’t really speak to that in detail. I believe there will be a transition available for some who are already in the process. That would be the intent. This is going to be a better, more independent review.

Would Senator Cotter take another question?

Yes.

Oh, I’m sorry, Senator Arnot. Look, you both have snow on the roof.

Senator Arnot, let me get to my question. You highlighted in your speech the overrepresentation of Indigenous and Black people in prisons, and we know that for many, for some, it’s about the miscarriage of justice. Senator Cuzner reminded us today of the wrongful conviction of Donald Marshall Jr., and the review of that certainly highlighted the role that systemic racism played.

As we know, systemic racism is very nuanced. Does the bill speak to the issue of training around these issues for the commissioners?

That’s a very good question. I don’t think the bill speaks to that kind of training, but it does speak strongly to ensuring that the commissioners have a diversity of backgrounds. I expect that we’ll see Black Canadians and Indigenous Canadians on this commission, people with those kinds of experiences who can relate to the issues and ensure that fair treatment will occur in the review process.

Certainly, misogyny and racism show up in a number of wrongful convictions, and Senator Pate’s review of the Quewezance sisters’ case is a classic example of that.

I can’t be sure that these commissioners, who have criteria which are specific to this, and they would be because Black Canadians and Indigenous Canadians have great experience or a lot of experience — not great — on racism and know it personally and can identify it and, therefore, will see it when it comes before them from an applicant. So I am confident of that, but I can’t say that there’s any specific training for those commissioners in advance of their employment. One would hope that they’re going to be of a high quality. I’m sure they will have great experience on these issues to be effective and ensure that Canadians seeking a review get a fair hearing.

I would like this to be a question that the committee explores when this bill goes to committee. Thank you.

I’ll be a participant. I think my colleague Senator Cotter will be the chair, and we’ll look into that. One would hope that people would have a good understanding of racism prior to their appointment.