Honourable senators, I rise today as the critic to speak at the third reading of Bill C-40, the miscarriage of justice review commission act, also known as David and Joyce Milgaard’s law. Although a commission to review wrongful convictions has been suggested many times over the years, this law has still been a long time coming.

It is indeed fitting that this law will forever honour the names of one of Canada’s most egregious wrongful conviction cases — that of David Milgaard — and of his mother, Joyce, who advocated tirelessly to prove his innocence. As a teenager, David Milgaard was convicted and sentenced for the rape and murder of Saskatoon nursing student Gail Miller. He served 23 years in prison for those crimes he didn’t commit. Milgaard’s conviction was overturned, and his name was finally cleared by DNA evidence, proving the crimes had been committed by serial rapist Larry Fisher.

This case loomed large in my home province of Saskatchewan, touching many in some way. I studied the case in my first-year criminal law class in the city where this murder happened. In 2003, the Saskatchewan government initiated a formal inquiry into David Milgaard’s wrongful conviction. Years later, I worked as the chief of staff to Saskatchewan Minister of Justice Don Morgan, and I served in that position in the fall of 2008, when Minister Morgan released the results of the Milgaard inquiry. I even had the honour of meeting Joyce Milgaard before the press conference that day.

You have heard Senator Cotter and Senator Arnot speak about their direct involvement with aspects of the case. Senator Arnot had prosecuted Larry Fisher in an earlier trial, and Senator Cotter, as the Deputy Minister of Justice in Saskatchewan, was involved in initiating the province’s review of the Milgaard case and approving the retesting of evidence that would eventually clear Milgaard’s name and lead police to the real killer, Larry Fisher. Senator Pate, David Milgaard’s friend, shared her personal experiences with him as he struggled to rebuild his life after his wrongful conviction, and she spoke of his steadfast commitment to justice for others who had been similarly mistreated by the legal system.

So many Canadians have been touched by David Milgaard’s story. In the course of our study on Bill C-40 at the Senate Committee on Legal and Constitutional Affairs, we were fortunate to hear from former prime minister Kim Campbell, who had been the federal Minister of Justice at the time Joyce Milgaard was fighting for an appeal of David’s wrongful conviction. Ms. Campbell told us that, in fact, the idea to send David Milgaard’s case in a reference to the Supreme Court of Canada was hers, not then-prime minister Brian Mulroney’s. The reference started the process that ultimately ended in the quashing of Milgaard’s conviction. She said:

The reason I made the reference to the Supreme Court of Canada — and incidentally it went back to the Steven Truscott case. When I was a young woman, my lawyer father had a book by Isabel LeBourdais called The Trial of Steven Truscott, and I was just a young woman when I read it. At that time, Jean Chrétien was Minister of Justice, and he sent the case to the Supreme Court of Canada. He asked them to review it as if they had granted an appeal — I think they turned down an appeal. So I thought, “What could I do?” I sent a reference to the Supreme Court of Canada, asking for an opinion if after reviewing everything that was in front of me and more, they were of the view that there had likely been a miscarriage of justice. What that made possible was the airing in public of all the evidence in front of me, so it wasn’t a question of people wondering why Kim Campbell is not doing this or that. It wasn’t about me. It was about this very difficult case, and that provided that kind of opening.

If a commission has the capacity to have some public airing of evidence and the ability for people to see what is being considered — you have to figure out what the best extent of that is — then that helps create some confidence that nothing is being hidden and that assertions are being answered and responded to. There is a great deal of promise in this process.

Ms. Campbell went on to describe the Milgaard case as “. . . one of the most difficult cases I had ever encountered . . .” due to the “. . . overwhelming circumstantial evidence . . .” that pointed to Milgaard. The former prime minister and former justice minister reflected on the poignancy of the Milgaard story when she said:

It’s a case that has haunted me. I must say, when I was packing up my papers after having had political retirement thrust upon me by the Canadian electorate in the fall of 1993, I discovered a very lovely Christmas card from Joyce Milgaard. I think she understood that I had done what I could. She cared very much. I was glad for her when David was finally clearly exonerated.

Our Senate Legal Committee heard heartbreaking stories from other witnesses who were similarly wrongfully convicted. One of those was Guy Paul Morin, who was convicted of a murder he did not commit, that of his nine-year-old neighbour Christine Jessop. Meeting Guy Paul Morin and hearing his testimony will forever be etched in my memory as a key moment in my time as a senator.

Mr. Morin’s case was riddled with errors. The Quebec judge who eventually oversaw the inquiry into the miscarriage of justice called his case “. . . tunnel vision of the most staggering proportions.” Mr. Morin was exonerated by DNA evidence in 1995, but it was not until 2020 that the identity of the real killer was revealed: Calvin Hoover, a family friend of the Jessops who had killed himself five years earlier.

Mr. Morin told the story at committee about the lingering stigma of a criminal conviction, even if that conviction is overturned as a miscarriage of justice. Morin recounted a story about someone commenting on his name as being that of a “killer” long after he had been exonerated. Morin reflected that he had to live with the stigma of his wrongful conviction, but Calvin Hoover, the actual killer, did not. About Hoover, Morin said:

. . . he had one week, maybe, of media coverage. I had ten years of it. To this day, I go to people’s houses, and when some of them talk to me, some say, “I know about your case.” I say, “Did you know that they actually found the real killer for Christine Jessop?” And they say, “Are you kidding me?” They’re so surprised. I say, “So you missed that blurb of news, too, for that short period of time.” To this day, this is a problem for me. I don’t like what has happened.

I love life, but I don’t like what life has given me.

In response, I said:

Mr. Morin, when I hear your name, I think of someone who has persevered. I don’t think of a killer. I think of someone who persevered through enormous challenges, and I hope that you take that away today. . . .

Our committee also heard testimony from two Indigenous men who had been wrongfully convicted who testified to systemic discrimination they suffered in the criminal justice system that contributed to their miscarriage of justice. Brian Anderson and Clarence Woodhouse were two of four Indigenous young people wrongfully convicted for the murder of Ting Fong Chan, a chef in downtown Winnipeg in 1973. The two men, along with a third, Allan Woodhouse, were recently acquitted, more than 50 years later. Clarence’s brother, Russell Woodhouse, the fourth man convicted for the same crime, died in 2011 while incarcerated, before his case could be reviewed.

Brian Anderson told our committee:

The police took advantage of our young age, our unknowing of the criminal justice system and the fact that we were Anishinaabe and did not speak English well. Being questioned by the police, they threatened me and used violence. It was easy for the police to make up confessions. These false confessions are the reason we were convicted. . . .

There is a high population of Indigenous people and Black people in the prison system. I know that from my own experience. Racism and corruption led to my wrongful conviction. Bill C-40 can help be the voice for other innocent people like me who need to be heard when no one is listening.

Governments like to speak about reconciliation. Let’s show it. Show me reconciliation. I have been fighting my whole life for this. I don’t want this to happen to any more people like me.

Clarence Woodhouse came to testify to the Senate Legal Committee, but he was unable to because of translation difficulties. Although our committee had been assured that a Saulteaux interpreter would be available, we discovered shortly before the meeting that they were not. Mr. Woodhouse instead recorded a statement after the meeting, which was translated and distributed to the members of the committee. I feel strongly that his statement deserves greater prominence in this discussion on Bill C-40. Mr. Woodhouse’s voice was stolen from him once; I don’t want to see that happen in the Senate too. So I want to read the translated version of his statement into the record today.

Clarence Woodhouse began:

Boozhoo! My name is Clarence Woodhouse, thank you for the opportunity to address you concerning the importance of the David and Joyce Milgaard Bill for an independent group to review wrongful convictions. This group is necessary because it will be separate from the system that convicted and imprisoned me and a lot of other innocent people across Canada.

I am Anishinaabe from Pinaymootang First Nation, Manitoba.

I along with my brother Russell, now deceased, A. J. Woodhouse, no relation, and my cousin Brian Anderson was wrongfully convicted at 19 years of age for the murder of Mr. Tin Fong Chan, a stranger, who I and my co-accused did not know. We were not responsible for Mr. Chan’s death. All of us were new to Winnipeg and had none to very limited knowledge of English. An interpreter was not provided during our interrogations by the police. I could not understand what was going on and no one explained it to me. I was shell shocked. I didn’t understand my rights but, did the best I could to get through this nightmare.

None of us had been involved before with the criminal justice system so we were easy prey for the police and the prosecutor George Dangerfield.

I was brutally assaulted by the police into signing a false confession. The prosecutor said I made the confession in English, a language I could not speak, read, or write. I testified to that at trial, but no one believed me.

I was scared, lost, and felt very alone as the years passed by in prison. A place that no person should have to be made to survive.

My time in prison was a living hell primarily because of corrections staff who were determined to make me admit to a murder I did not commit or had any part in.

By the time I was released from prison, 12 years later in 1983, I was institutionalized and found it extremely difficult to make it in society. I received no help, or direction. It was hard to move on with my life in a world I didn’t recognize or feel comfortable in.

As a young boy I was often kicked out of school because I had a learning disability and because of my lack of education, and still not being able to communicate efficiently in English and being considered a murderer I could not find a permanent job, so I had to do casual labour to make a living.

Since retiring from the workforce, I have been living on welfare to this very day. I can’t make ends meet. Life is a day-to-day struggle with no hope in sight.

I believe that a new independent group to look at wrongful convictions will help other wrongly convicted people not have to suffer the way I and my co-accused did.

If Bill C-40 is passed, there will be a group to hear the cries of help from the innocent and they will not have to wait 50 years for their names to be cleared as we did. It was 50 years of uncertainty, struggle, and unimaginable pain that never seems to end.

Thank you for hearing my voice.

Meegwetch.

The bill we have before us today — Bill C-40 — establishes a wrongful conviction commission to investigate cases like the ones I have just outlined. As the critic of the bill, I am supportive of the establishment of this commission, but I have significant concerns about its implementation. Law professor Kent Roach echoed some of my concerns when he said this:

. . . we believe that Bill C-40 does not do nearly enough to ensure that the proposed commission will be truly independent from government and truly representative of the populations at risk and that it will have adequate powers and funds to do its necessary work.

We had a comprehensive Legal Committee study with many excellent witnesses to examine the current legislative landscape around miscarriages of justice. Some witnesses told us about important amendments that should be made to improve the bill, including Justice LaForme, one of the architects of the original report for the government. He said:

First, the thing that bothers me the most is the independence. I don’t think that this personal structure is going to result in independence. I worry about the chief commissioner having these dual responsibilities, one administrative and the other one as chief commissioner. I have had experience with that, and it simply does not work. The demands of government are just too much for both of those functions to be carried out adequately.

The details of the commission, as outlined in Bill C-40, are also a cause for concern. In the current system, where the minister decides the fate of a case, the committee reviewing and advising the minister on possible miscarriages of justice includes all Department of Justice lawyers. However, Bill C-40 stipulates that the commission would require a minimum of one third but no more than one half of the commissioners to be lawyers with 10 years of experience in criminal law. Because of the quorum requirements, it is therefore possible that only one of the commission’s panellists for a particular matter will be a lawyer.

Witnesses at the Senate Legal Committee said that mandating such an upper maximum is not an ideal composition for the commission, but they feared amending the legislation could sacrifice the entire bill.

The Criminal Lawyers’ Association expressed the view that Bill C-40 should be amended to require that a majority of the commission be lawyers, saying:

The way I see section 696 applications, you have to be well versed in criminal law to understand what you’re looking at. You need to understand the whole process inside and out. You also need to understand the parole process that is followed with this individual. That is the definition of legal training, and I think that the commission would be stronger to have those kinds of individuals at the helm of it.

Many witnesses, including the Canadian Association of Black Lawyers and the Indigenous Bar Association, stated a preference for making Black and Indigenous representation mandatory on the commission, especially given the overrepresentation of those communities in the prison population. A 2021 consultation headed by two retired judges, the Honourable Harry S. LaForme and the Honourable Juanita Westmoreland-Traoré, recommended that at least one position on the commission should be mandated for Black and Indigenous people. One of the witnesses at the Legal Committee who expressed support for mandatory representation was law professor Kent Roach. He said:

. . . a five-person commission without Indigenous and Black representation is manifestly inadequate for Canada. This is especially true when the far smaller country of New Zealand has a seven-person commission with guaranteed Māori representation. This is especially so if we want the commission to be proactive and systemic.

Throughout the study of Bill C-40, many senators on the Legal Committee voiced a desire for the commission to address systemic inequalities. That is why I found it curious that they did not attempt to amend the bill to make the requirement for Black and Indigenous representation to be mandatory on the commission. Bill C-40 only suggests that the minister take factors like overrepresentation “into account” when making appointments to the commission.

Representatives from the Canadian Police Association, or CPA, told the Senate Legal Committee that for the non-lawyer members on the commission, they would like to see the inclusion of a police representative among the commission’s membership. CPA President Tom Stamatakis suggested that a police representative could provide valuable insight to the work of the commission. He said:

Given that many of the cases under review will hinge on the specifics of investigative practices and techniques, it would be beneficial to ensure that law enforcement professionals are included as commissioners. This perspective can provide valuable insights into the practical aspects of investigations, from the handling of evidence to the complexities involved in interviewing witnesses and suspects.

Having members with a professional understanding of investigatory techniques will help ensure that reviews are comprehensive and that any recommendations made are grounded in the realities of front-line police work. Such representation would enhance the commission’s credibility and help foster a balanced approach to this important mandate.

Mr. Stamatakis also expressed concerns about a lack of clear timelines for the process employed by the commission, indicating delays could have a potential impact on investigations and evidence. He explained:

As you all know, investigations rely heavily on the detailed records kept and on the specific recollections of the investigators involved. Over time, records may become incomplete or difficult to locate, and witnesses’ memories fade. Many of our members carry large caseloads and may have retired or moved on to other positions by the time an old case is revisited. It is critical that this commission functions with clear timelines wherever possible to ensure cases are reviewed promptly, limiting the impact of time on evidence and enabling justice to be achieved effectively.

Unfortunately, many details have been left out of Bill C-40, only to be decided by regulation or cabinet or after the implementation of the commission. This is especially concerning because less than half, and maybe only one third, of the commissioners dealing with the complex investigations and cases will be experienced lawyers. Leaving details to cabinet means leaving power in the hands of the executive branch, which contradicts the proposed intent of the legislation: to remove the decisions on wrongful convictions from one person — the Minister of Justice — and give that authority to a commission.

Bill C-40 gives cabinet the power to set the pay for the chief commissioner and the other commissioners. When I asked a government official what the pay for these new commissioners would be, she replied only with an extremely wide salary range of between $180,000 and $464,800, saying the government anticipated remuneration for the commissioners to be in the mid to high end of that band, which is roughly $300,000 to $500,000. The government should be able to answer these details now, not only for clarity, but also for the independence of the commission.

It became evident at committee that many of the details in Bill C-40 are being overlooked in the interests of the Trudeau government’s political expediency.

As I outlined in my speech on Bill C-26 last week, this practice has become all too common with this Trudeau government — leaving the details of a vague or complex bill undetermined or outside of legislation, then pushing the Senate to hurry up and adopt the bill without amendment. This advantages the government, as it is a way for them to avoid parliamentary scrutiny and accountability, yet it shortchanges Canadians.

Because the government was trying to rush Bill C-40 to the Senate Legal Committee, the bill’s sponsor, Senator Arnot, was encouraged to give his abridged 15-minute second reading speech before he had the opportunity to receive a briefing on the bill from government officials. This is inappropriate and unfair to the bill’s sponsor. In addition, it also left him unable to answer many of my questions after his speech that day.

I’ve said it before, and I’ll say it again: The Trudeau government needs to step up and do its job in the Senate. Once again, the government leader, Senator Gold, has failed to give a speech at second reading and third reading of Bill C-40, denying senators the opportunity to ask the government questions about the bill in this chamber.

Senator Gold says that he has nothing to say on legislation when it can be said by sponsors of bills with “. . . greater understanding and background in the subject matter of the bills than I could possibly muster.” That’s a cop-out. As a former law professor, Senator Gold will know that the government leader’s speeches on legislation can be important for judicial interpretation of the government’s intention on a bill in court cases.

Senator Gold also pointed to ministers appearing before committee as sufficient for explanation of the government’s viewpoint on a bill. Ministers usually give a five-minute opening statement and are at the committee for maybe one hour to answer questions. As many as fifteen senators around the table have to split that time to ask their questions. It is insufficient.

One of these days, Senator Gold, I sure wish you’d prove me wrong and actually deliver a speech on government legislation, but here you go again with the same old same old. This is not leadership, it is not accountability and, honourable senators, this is not good parliament.

After the bill’s sponsor’s third reading speech, I asked Senator Arnot about his reaction as a former judge to the Senate Legal Committee’s report on this bill. In the report, the committee appended an observation with a link to Senator Pate’s report regarding 12 women the document suggests have been wrongfully accused. This may well be, but the committee’s direction to the commission was, I submit, overly instructive and inappropriate. The committee report reads:

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.

This directive states the mandate of the miscarriage of justice review commission is to “. . . [commence] with the cases identified . . .” in the Pate report. I submit that this kind of prescriptive guidance is not appropriate for the Legal Committee to provide, but again, I was voted down on the motion at committee.

I asked Senator Arnot for his perspective on the matter given his past as a former judge. I am quite certain he would not have accepted such directives in his role as an independent judge. I am dismayed that he tried to justify this, calling the Senate Legal Committee’s directive only a “suggestion.”

The committee’s report contained other lengthy observations — as they now so often do — that propose lofty philosophy but not much action. Some of these observations are essentially the same, repeated on every report of every study we do. The government hasn’t listened to them before, so why would they now? Senators need to realize that if they want the government to take notice and respond, they should be proposing amendments, not observations, on a bill.

But this Trudeau government has scared independent senators into thinking that if they amend a bill and send it back to the House of Commons, it will essentially kill the bill, like it seems to have with Bill C-234. That was a private member’s bill, though. There is a difference between that and government legislation. The government is in complete control of government legislation. It holds the balance of seats in the House of Commons, it determines the legislative agenda and the government alone decides which amendments it will accept or not when bills return to the House amended. The Trudeau government tries to hoodwink senators, insisting they need to just pass legislation as fast as possible with no amendments. The Senate government leader makes sure to attend committee clause-by-clause meetings to send the signal to independent senators that they dare not make amendments.

The House of Commons had Bill C-40 for two years. It has only been before the Senate for less than three months. Even if the bill is passed now, the Minister of Justice estimates it will likely be another year, potentially more, before the commission will even be established. We absolutely have time for amendments to be passed to improve the bill, but this Trudeau government keeps trying to scare independent senators into rushing the legislation through the Senate.

The House of Commons committee made many amendments to Bill C-40 during their examination of the bill. The Senate should do the same to make the legislation stronger. Why does the House get to amend this bill, but we can’t? And why are senators accepting this dictate from the government? Honourable senators, if we keep acting like a rubber stamp, the Trudeau government will continue to treat us like a rubber stamp. This is not sober second thought.

I proposed a serious and thoughtful amendment for Bill C-40 at committee. It would have prevented the reappointment of commissioners to ensure the independence of the commission. My amendment was backed by testimony we heard during the study and based on information in the report written by Justice LaForme and Justice Westmoreland-Traoré, which stated that reappointment of commissioners by the government could undermine the independence of the commission. Their report suggested that the commission should be “. . . subject to the same arm’s-length treatment from government as the Judiciary.”

This view was echoed by law professor Kent Roach, who presented a joint brief with Justice LaForme before our committee. He said:

. . . the renewable terms for commissioners are, in our view, a bad idea that undermines independence from government. We would not accept renewable terms for judges. . . .

In the brief Justice LaForme and Professor Roach submitted to the committee, they wrote:

 . . . Canadians would rightly never accept such arrangements for judges. We should not accept it for a commission.

We recommended non-renewable terms for Commissioners. This was to ensure independence from the government. We would also direct the committee to troubles that the English CCRC had when the government refused to re-appoint a commissioner who had opposed government attempts to make the CCRC more efficient given what many have concluded is its inadequate budget . . . .

The renewable nature of the appointments and the English dispute over government interference in a re-appointment have the potential to undermine the independence of the new Commission that is essential if applicants are to have confidence in the commission. No one would accept renewable 7 year terms for judges and they should not be acceptable for a Commission with the power effectively to overturn judicial decisions and require new trials and appeals to be held before the courts.

Mark Knox of the Canadian Council of Defence Lawyers similarly supported the idea. He said:

 . . . I drew my position from the report that you referred to by Justice LaForme, Justice Westmoreland-Traoré and Mr. Roach. Yes, I think, as they put it, these commissioners should be independent of government. They should be in a quasi-judicial position, and, therefore, they should not be subject to government review. . . .

My amendment was reasonable, measured and non-partisan. It even covered the same topic as an observation later appended to the committee report by Senator Simons. But once again, the committee voted overwhelmingly along government affiliation lines: nine senators against, only two Conservative senators in favour and two abstentions, including Senator Simons.

If commissioners are reappointed and those appointments are made by cabinet, as is stipulated in Bill C-40, independence is infringed. Senator Arnot and Senator Dalphond, both former judges and sticklers for judicial independence, would never have accepted this method of thwarting judicial independence for themselves. I note that the newest member of the Senate Legal Committee, Senator Moreau, just this week introduced his Senate public bill to recognize judicial independence day. I hope he will speak to his colleagues on the committee to get them to recognize judicial independence not only on the calendar but also in practice.

I decided to bring only what I viewed as the one most important amendment forward at committee. It was solidly backed with key witness testimony, and yet the committee vote wasn’t even close. Why do we bother to bring all these great witnesses to committee who tell us how to improve important bills if we don’t listen to them?

Sadly, this isn’t my first experience with this situation and the Trudeau government. Last year, I proposed and passed two significant amendments on Bill C-9, An Act to amend the Judges Act, solidly backed by committee evidence and key witness testimony, through both the Senate Legal Committee and the chamber. Once they returned to the House of Commons, then Minister of Justice David Lametti refused to accept them, forcing the bill through, flaws and all, without my amendments right before the summer recess.

So why do we do all this work when it’s ultimately rejected by the government anyway? For this reason, I have decided against bringing my amendment back at third reading.

The Trudeau-appointed independent senators on the Legal Committee also voted against victims five times in one meeting when they rejected Senator Carignan’s amendments that would have respected the rights of victims of crimes where a miscarriage of justice is alleged to have occurred. We heard from several witnesses at the committee study who testified about the negative impact the miscarriage of justice review commission process could have on victims of crime under this bill.

Sometimes the impacts on victims of crime are lost during this discussion. I was taken aback during Senator Arnot’s second reading speech when he downplayed the rights of victims of crime under this bill. He said:

This legislation, Bill C-40, is created to respond to the victims of wrongful convictions; that’s the fundamental object of this bill. . . . Without a doubt, the victims of crime are unimaginably let down by a wrongful conviction. . . .

We should all fully support the need for more and better supports for the victims of crime. Those are desperately needed, but that need is the subject of another bill, possibly, and not this particular one.

I don’t agree. Wrongful convictions create many victims — not only the person whose life and freedom were severely limited by that conviction and its ensuing stigma, but also the victims of the original crime who may now be left once again not knowing who or where the perpetrator of their suffering is. There is also the horror of reopening old wounds and revictimization by a cold, uncaring criminal justice system.

Sarah Crawford, the Executive Director of the Canadian Resource Centre for Victims of Crime told our committee:

This bill takes a significant step in addressing wrongful convictions. However, for survivors of crime and their families, justice is not simply about punishment but about accountability, validation and a sense of closure. Knowing that the wrong person may have been held accountable can undermine the faith that survivors place in the criminal justice system. It can create a sense of betrayal and unease.

The reality is that, while Bill C-40 is designed to prevent injustices for the wrongfully convicted, it also holds the potential to reopen deep emotional wounds for victims and survivors of crime. Having a conviction overturned means that survivors, who believed their case was resolved, may face re-traumatization as they relive painful memories. It is crucial that this bill not only safeguards against wrongful convictions but also safeguards the mental and emotional well-being of survivors and families affected by these decisions.

The CRCVC believes this bill must prioritize resources to support victims throughout these reviews, ensure access to counselling, case updates, and additional resources that may be needed to help them navigate such challenging processes.

Benjamin Roebuck, the Federal Ombudsperson for Victims of Crime, said Bill C-40 falls short on the protection of victims and their right to access information about their cases. He submitted that these obligations should be set out in the legislation, for clarity. Ombudsperson Roebuck said:

Bill C-40 requires the commission to establish policies to communicate with victims but falls short on the rights to protection and participation.

Under the Canadian Victims Bill of Rights, the commission should be required to have a complaints process for victims of crime, as all criminal justice organizations are required to have at the federal level, and if a victim is not satisfied with the response, they can file a complaint with our office. These should be set out in legislation so that it’s clear.

He continued, saying:

I have some recommendations. Number one, ensure the commission has legislated authority to disclose information to victims. So Bill C-40 may require a coordinating amendment with section 26 of the Corrections and Conditional Release Act to authorize Correctional Service Canada, or CSC, to release information to victims about the work of the commission itself.

The Trudeau government has tried to assure us that a victim services coordinator position will be created once the miscarriage of justice review commission is established. However, there is zero clarity on whether it would be a full-time, part-time or contract position. Government officials told me that would be determined by the chief commissioner. The victims services coordinator position is not even mentioned in the bill. Once again, this Trudeau government is more about the performative show of support for victims than it is any concrete action to back it up.

Even the Trudeau government’s own Gender-based Analysis Plus document of Bill C-40 didn’t mention female victims. Of course, it didn’t say much about women in general either, but that seems par for the course for this Trudeau government lately. I asked the Minister of Justice why the GBA Plus analysis contained almost nothing about female victims of violent crime, as many of the wrongful convictions that will be evaluated by this commission probably involve that type of crime. There was a lot of talking and hand-waving, but not a whole lot by way of an actual response from the minister — that’s a shocker.

This government’s unwillingness to give straight answers is evident throughout Bill C-40, which leaves much open to interpretation because of its lack of clarity. Take, for example, clause 696.3(1) of the bill. It states:

The Commission must deal with an application as expeditiously as possible and provide the applicant with an update concerning the status of their application on a regular basis.

The bill neither defines nor clarifies the phrase “as expeditiously as possible,” nor does it specify what is considered “a regular basis” for updates on application status. Currently, the processing of applications can take 20 months to six years. This commission deals with the possible wrongful convictions of people who may have already spent years of their lives in jail, deprived of their liberty for a crime they did not commit. Why wouldn’t the government spell out in legislation the specific parameters of what “as expeditiously as possible” means? The obfuscation around these terms seems to indicate a government not serious about addressing this issue.

The lack of clarity throughout Bill C-40 also extends to the very criteria for admissibility of applications. The threshold for applications to be considered by the commission will be that they have:

. . . 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 . . .

This is very vague language. What does “in the interests of justice” mean in this context? How does a miscarriage of justice occur that is not in the interests of justice?

I asked this question repeatedly, but never got a satisfactory answer — not from the Minister of Justice at committee and not from the sponsor of the bill in the chamber. We did hear testimony at the committee from several witnesses who agreed the phrase was meaningless and should be removed, including Justice LaForme. He said:

The last thing I would say is that I was a judge for 25 years and for 15 of them, an appellate court judge. The one thing I remember as a judge was that the thing that was the most mysterious to me were the words “in the interest of justice.” I still do not know what that means. I know what I can use it for, and I have used it in decisions, but I don’t know what it means, and I dare say none of my colleagues do either.

He continued, saying:

I knew when I wanted to use it to support a judgment or something like that, I would say it. It’s a catch-all phrase, and no judge likes to admit this, but we don’t know what it means. It can mean pretty much anything you’d like.

It can also do harm, I would say, and that’s what worries me, and I don’t think it should be part of the test.

I said, “Thank you. Would you suggest just merely deleting it from that clause?” He replied, “Yes, I would.”

Le Barreau du Québec also expressed concern about the inclusion of the phrase. A representative from that organization said:

Le Barreau du Québec also questions the appropriateness of using the criterion of the interests of justice to justify a remedy. We are concerned that that criterion could place certain applicants at a disadvantage, specifically Indigenous and Black applicants and other marginalized applicants. At the same time, applicants who are found guilty of serious crimes or whom the public simply consider to be dangerous would not be able to obtain justice, even if there had been a miscarriage of justice. The Barreau du Québec is of the opinion that the criterion of the interests of justice should actually be available to applicants as an additional ground when the commission does not conclude that there may have been a miscarriage of justice, but that the circumstances warrant a remedy.

One of the key issues with Bill C-40 is that it lowers the threshold for applications, which could result in a deluge the commission is neither prepared nor adequately resourced to handle. The current standard is that the Minister of Justice may order a remedy if he or she is “. . . satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred . . .” In Bill C-40, that standard has been lowered. As I mentioned, the bill now reads that the commission will have to determine if they have:

. . . 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;

The Criminal Cases Review Commission, or CCRC, in the United Kingdom applies a “real possibility” threshold for referring a case, meaning that the possibility of a judicial error is reasonable and not merely possible. I asked John Curtis, in-house counsel for the CCRC, whether he thought Canada’s lower standard in Bill C-40 would lead to a high number of applications. He replied:

The short answer to that question is yes. . . .

Our court of appeal has made it clear that it’s virtually impossible to be sure that when you have something it might not have made some difference to a jury verdict. That is why this qualifies a mere fanciful, theoretical, bare possibility as not being sufficient to warrant a successful appeal. The court has made it clear that it needs a firmer basis and real possibility. “Reasonable prospects” is the preferred term. There is a corresponding provision in civil law. If you draft a contract, whether the word “reasonable” appears in the contract or not, the obligation for parties to behave reasonably exists. In practice, the court in Canada would want to deal in reasonable and meaningful occurrences rather than very remote and fantastical possibilities.

Mr. Curtis told the committee that, in 27 years, the U.K. Commission has reviewed over 32,000 cases and made 850 references. He estimated their annual intake is around 1,500 applications.

When I asked government officials here what Canada anticipated the number of annual applications would be for the Canadian miscarriage of justice review commission, I was told they expected about 250 applications a year. However, in a lengthy, detailed report, Dr. Myles Frederick McLellan of the Canadian Criminal Justice Association extrapolated international commission numbers to what he anticipates for the Canadian experience. He estimated the applicants per year for the newly created miscarriage of justice review commission will be in the neighbourhood of 1,333, including probably about 400 convicted Indigenous individuals. Given that the government has based resourcing for the commission on such a radically lower annual number, it may well be that the lower threshold for application may result in a crush of applications that will overwhelm the system.

We already have a crisis of court delays in this country. Can you imagine the state of it once there is an influx of orders to hold new trials or wrongful conviction appeals for hundreds of cases per year? When combined with the Trudeau government’s paltry record for filling judicial appointments, with still dozens of court appointment vacancies as of December 1, it is easy to imagine chaos resulting. Of course, this is particularly grave when you consider that, because of the Supreme Court of Canada’s Jordan decision, many cases are being thrown out of court because they have not proceeded to trial within the concise, mandated time frames. This could result in the undermining of public confidence in the criminal justice system as court delays increase, dangerous criminals walk free and the crisis deepens.

Further to the overall lower threshold for acceptability in Bill C-40, another complicating factor will be that the bill now drops the requirement for all appeals to have been exhausted before application. This requirement was deleted by amendment during the House of Commons Justice Committee study on the bill.

When he first introduced Bill C-40, then-Justice Minister Lametti said:

It is important to note that the miscarriage of justice review process is not an alternative to the judicial system, nor is it another level of appeal. Rather, it provides a post-appeal mechanism to review and investigate new information or evidence that was not previously considered by the courts.

The requirement to exhaust appeals served as a safeguard against frivolous or baseless applications. Now that obstacle has been removed, which may further exacerbate the court delay crisis.

Several senators and witnesses called for additional remedies to be available to the commission, beyond recommending overturning a conviction or launching a new appeal. An option to be able to order a pardon or record suspension was suggested as one alternative remedy. This was one of the recommendations made in the LaForme/Westmoreland-Traoré report. When he testified before our committee, Mr. Justice LaForme indicated he was not aware why the Trudeau government chose not to follow this recommendation in Bill C-40. Where the circumstances of a wrongful conviction case weigh against conducting a new trial or appeal, it would give the commission flexibility to still deliver justice.

Honourable senators, the establishment of a miscarriage of justice review commission is long overdue. For people who have been wrongfully convicted, the stakes couldn’t be higher. But that’s what also makes it crucial that we get it right — people’s lives, their freedoms and the safety of society hang in the balance.

Our role here in the Senate is to make bills more perfect, and Bill C-40 is far from it. This bill is definitely flawed. It risks infringing the critical principle of independence, it lacks clarity, and I fear it will make an already unmanageable court delay crisis worse in this country.

I wish the Trudeau government and those of you who vote with them would be open to the necessary amendments this legislation requires in order to provide proper justice for the wrongfully convicted and for all Canadians. But I also recognize that this is not going to happen here tonight.

As the critic of this legislation, I tried to make it better, but to no avail. We should demand better because we can do better, colleagues, and I hope one day soon we in this place will return to doing so. Thank you.