Moved third 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 in support 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), also known as “David and Joyce Milgaard’s Law.”

Colleagues, my speech this afternoon has three themes. This is the first theme: I want to be able to tell you what I believe you need to know about Bill C-40 — the nuts and bolts of information that you may have already heard, at least in part, during second reading in the chamber — but also what I believe you fundamentally need to know to assess the validity of this legislation. The second theme is the outcomes of the Standing Senate Committee on Legal and Constitutional Affairs that led to a report without amendment but with a number of observations, brought forward yesterday by the chair, Senator Cotter. Finally, the third theme is a personal narrative of mine — a thread, if you will — describing the history, events and rationale that led me to be the Senate sponsor of this legislation.

On the nuts and bolts, Bill C-40 seeks to create an independent commission to replace the current role of the Minister of Justice in reviewing miscarriage of justice applications. The goal in creating a commission as an independent decision-making body is to increase confidence in the review process for those who may have been wrongly convicted and for the general public. This legislation responds to calls from commissions of inquiry into wrongful convictions, prominent stakeholders and advocates for the wrongly convicted.

It also follows the establishment of similar independent commissions in other countries, including England, Wales, Northern Ireland, Scotland and New Zealand. The creation of 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 those in Canada.

The Supreme Court of Canada described wrongful convictions as a blight on our justice system. All those who are involved in the criminal justice system must take responsibility and take reasonable steps to prevent those kinds of things from occurring. As the justice system is not infallible, it is also crucial that we have an efficient and effective system in place to identify and correct miscarriages of justice when they occur.

Miscarriages of justice are often identified and remedied by appellate courts while a case is still in the justice system. A miscarriage of justice is a ground of appeal, and an appellate court has the jurisdiction and power to overturn a conviction or quash a verdict and order a new trial. Therefore, those who believe they may have been wrongfully convicted generally have to first exhaust their rights of appeal. However, sometimes new information or evidence that calls into question the reliability of a verdict, or the process that led to it, only comes to light after a case is no longer in the justice system. Also, sometimes the nature of the potential miscarriage of justice requires a review and an investigation.

That is the role of this new commission. It is an investigative process — one that gathers information and evidence on whether a miscarriage of justice may have occurred and, in appropriate cases, refers the matter back to a court for a final determination on the issue of the verdict. As such, the commission-led process will not be a parallel or alternative appellate court process.

Bill C-40 provides that the commission will be able to make exceptions to accept applications when no appeal was sought. The legislation sets out the relevant factors that the commission will consider to determine whether it can admit the application and conduct an investigation on whether a miscarriage of justice may have occurred in exceptional circumstances. In all cases, the commission will have the same powers as a commission of inquiry under the Inquiries Act to compel the production of information and evidence and require witnesses to testify under oath.

Establishing an independent commission dedicated exclusively to miscarriage of justice reviews is intended to help improve access to justice by making it easier and faster for potentially wrongly convicted people to have their applications reviewed, especially for Indigenous peoples, Black persons and members of marginalized communities.

Bill C-40 proposes that there should be at least five and up to nine full-time or part-time commissioners. This means that the new commission would have a greater capacity to review miscarriage of justice claims more quickly, which would help mitigate the devastating impact that they have on the convicted person, their family, victims and the justice system as a whole.

Bill C-40 authorizes the appointment of commissioners who must reflect Canada’s diversity and take into account the overrepresentation of certain groups in the criminal justice system, such as Black and Indigenous peoples. The commissioners must have knowledge and experience that is related to the commission’s mandate. Not all of these commissioners will be lawyers, although at least one third will be required to have at least 10 years of experience in the practice of criminal law.

The commission’s broad mandate will allow it to identify and refer potential miscarriages of justice back to the courts and also address systemic issues to help prevent miscarriages of justice. As part of its powers, duties and functions, the legislation directs the commission to carry out outreach activities, provide information about its mandate and miscarriages of justice in general to the public and potential applicants, and publish its decisions. The commission would also provide supports to applicants in need, such as access to legal assistance, reintegration supports — for example, with housing and food — translation and interpretation services, and help in general to navigate the application process. The commission will also support victims with information, notification and participation in a manner consistent with the Canadian Victims Bill of Rights.

In terms of substantive legal reforms, Bill C-40 proposes to change the threshold for the referral of matters back to the courts in the following ways: First, the legal threshold would be lowered. Under the current law, the Minister of Justice must be satisfied that a miscarriage of justice likely occurred. Under the proposed law, the commission could refer matters back to the courts if it has reasonable grounds to conclude that a miscarriage of justice may have occurred.

Second, the commission must also consider that it is in the interests of justice to make the referral. The interests of justice encompass both administration of justice considerations but also, importantly, individual circumstances. Given that, the specific factors that the commission must consider in making decisions on whether a matter should be referred back to the courts are also being amended.

Third, the personal factors of the applicant are added in the legislation, as well as distinct challenges that applicants who belong to certain populations face in obtaining a miscarriage of justice remedy, with particular attention to the circumstances of Indigenous and Black applicants.

These new factors must be considered by the commission along with factors already found in the current ministerial process and then reproduced in the new legislation, which are the following: whether there is a new matter of significance not previously considered; the relevance and reliability of the information presented; and the fact that an application is not intended to serve as a further appeal and any remedy that is extraordinary.

This last factor is intended to reflect that referrals by the executive branch of government on matters that may have already been decided by the courts is an exceptional remedy. In general, the executive branch doesn’t interfere with matters that fall under the judicial branch, and, as mentioned earlier, appellate courts have the power to address and remedy miscarriages of justice, and they should do so generally.

The miscarriage of justice review process appropriately 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 potential miscarriages of justice are not overlooked and can be remedied.

With that, I conclude my first theme. My second theme is the deliberations of the Standing Senate Committee on Legal and Constitutional Affairs.

Colleagues, if my tally is correct, 37 witnesses spoke at eight hearings in front of the committee, including the Minister of Justice, leading Canadian experts, leading international experts, advocates for the wrongly convicted, advocates for victims of crime and those who have been wrongly convicted themselves.

I will begin, first, with the powerful and compelling words of a witness, Mr. Guy Paul Morin, one of Canada’s most well-known wrongfully convicted citizens. At committee he said:

What this bill can offer to others in my situation in the future is hope. We would not have to rely on the Minister of Justice to review cases when, to begin with, they are part of the system that failed me. A new and independent commission that is open-minded to the reality of wrongful convictions and is dedicated to truth and fairness would go a long way in shedding light on these injustices.

Despite my exoneration in 1995, the stigma remains. It has affected my family and my children. As recently as this summer, I had a phone conversation with a potential client who commented my name is not a good one to have. When I asked why, she replied, “Because he’s a killer.” Wow. I said, ”Really?” This is 29 years after my exoneration and 4 years after the announcement of the real killer.

When someone is wrongfully convicted, it will taint their lives forever, and the least we owe them is to help identify such cases as quickly as possible and get them out of the prison system and courts so they can begin to repair their lives. The longer they are in the system, the heavier the stigma to their name and reputation.

After such compelling testimony, the committee considered nine well-argued amendments put forward by our colleague Senator Batters — the critic of the bill — and Senator Carignan. Senator Carignan asked the committee to consider the possibility that the new commission should review applicants who assert they were wrongfully convicted under the National Defence Act — military personnel, in other words. In considering this amendment, the committee recognized that there was no evidence in front of it that indicated there have been wrongful convictions; however, that is not to say that they have not occurred in the military justice system. I also know that officials at the Department of National Defence are aware of the absence of specific measures in both the current ministerial review process and in Bill C-40.

Certainly, the idea of incorporating the military justice system into the general miscarriage-of-justice review process, including by a new commission, could be examined in the future. However, this would require a detailed assessment of policy and statutory considerations and considering not only the Criminal Code but also the National Defence Act. This work would have to be done in consultation with the Department of National Defence and the Judge Advocate General.

Amending Bill C-40 to incorporate this military justice system at this time is, in my opinion, beyond the scope of the legislation.

That said, the committee also heard from experts such as Professor Kent Roach that the commission is empowered to deal with all Canadian laws that result in a wrongful conviction. As an alternative, the committee also considered that Bill C-66, the review of the military justice system currently in the other place, might be better suited to incorporate this issue. That was an idea of some merit put forward by Senator Dalphond.

There were five additional well-considered amendments put forward by our colleague Senator Carignan who argued that the committee needs to respond to the needs of victims, and this bill does not. It was argued at committee that with respect to the amendments incorporating victims, the proposed legislation already requires the commission to inform and respond to victims, including the individuals harmed by the crime and their families. According to a briefing from the Department of Justice, they may receive as much or as little correspondence from the commission as they desire. Further, the commission will be subject to the Canadian Victims Bill of Rights, which has primacy in Canada. Victims of crime have rights to information, protection and participation that must be upheld.

A commission on the miscarriages of justice should also address the ways the justice system has failed victims. Bill C-40 in its current form does this, as it requires the commission to establish policies to communicate with the victims of crime. The commission is obligated under Bill C-40 to set policies and practices that respond to the needs of victims of crime. This committee heard from the Federal Ombudsperson for Victims of Crime, Benjamin Roebuck, that he’s fully prepared to work with this new commission to develop these policies and practices. The government has noted there is money attached to this bill for a victim services coordinator.

While the bill requires the commission to adopt policies related to the notification of victims, there’s a need for nuance and sensitivity here. I think we all understand that some victims would not want the amount of mandatory notification that those amendments would require.

The really fundamental and critical factor here, however — and one that witness after witness stated — is that wrongfully convicted persons are victims specifically under consideration by the proposed legislation. They are Canadian citizens who have become victims of the justice system. To be wrongfully convicted is to be victimized by one or more aspects of the justice system such that an individual’s Charter rights, particularly their freedom, are violated by the state. When a Canadian citizen is accused, blamed and found guilty of a crime they did not commit, the state, in effect, creates a victim that is solely the creation of the justice system to solve a crime and the tragedy and horror experienced by the victim of the initial or catalyst crime.

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 — and their families, friends and communities — of the primary crime will be profoundly impacted by the possibility that the wrong person was convicted and sent to jail. Without a doubt, the victims of crime are unimaginably let down by a wrongful conviction. Bill C-40 does not lose sight of the fact that the victims of crime, their families and their communities are impacted 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.

Bill C-40 is saying that the primary crime must not be a catalyst for another injustice. That is why this bill addresses the needs of those who have been wrongfully convicted. It addresses the needs of those victims — victims like Guy Paul Morin, Brian Anderson, Clarence Woodhouse, Donald Marshall, Jr. and David Milgaard. These are the victims of wrongful convictions that this bill is going to address.

The truth of the matter is that Bill C-40 was needed decades ago, and that was put forward by James Lockyer. This is the first meaningful legislation to come forward in this regard. James Lockyer is a lawyer and an expert in wrongful convictions in this country. With power and passion, he stated the following at committee:

I believe that if David Milgaard were with us today, he would be saying to you, “Get it done now; no amendments. I spent 23 years in prison for a murder someone else committed. It was 28 years before DNA proved once and for all that I wasn’t the person who did it, that someone else did. Those in prison for crimes they did not commit should not have to wait any longer, like I had to. They need help now.”

I started the second theme of my speech with the words of Guy Paul Morin, and I will conclude my remarks on this theme with the words of one of the namesakes of the short title of this bill the late Mr. David Milgaard, who said, “The wrongfully convicted have been failed by the justice system once already. Failing a second time is not negotiable.”

Colleagues, you will note that the report Senator Cotter tabled the other day contains several observations. I thank my colleagues in the Senate who considered the issues of language and the disproportionate impact on Black and Indigenous persons and on women in these observations they made.

I urge you to read those observations. They’re compelling messages to the commission that is created by this legislation. They’re also a message to those of us who will be here when the work of the commission is considered five years from now as required by the legislation. With that, I conclude the second theme of my speech.

Theme three, the personal narrative that compelled me to sponsor this bill, Bill C-40. I find myself reflecting on how my career path has come full circle with this bill. The short title for this bill — the miscarriage of justice review commission act — is, as we are all aware, known as David and Joyce Milgaard’s law. The wrongful conviction of David Milgaard for the 1969 murder of nursing student Gail Miller is well studied by the legal community in Canada, including the judiciary and lawyers. Canadians more broadly are also aware of Mr. Milgaard’s story, the 23 years he spent in prison and the indefatigable efforts of his mother, Joyce Milgaard, to exonerate him.

In discussions about this bill, references have been made to the song “Wheat Kings” written and performed by The Tragically Hip. The song mentions the “Paris of the Prairies,” referring to the city of Saskatoon. At the time of Miller’s murder, the “Paris of the Prairies” was my hometown. I recall the shock felt at the time across the province of Saskatchewan over the horrific act against a young nursing student. That safety and security were precarious in Saskatoon, a city where thousands of young adults obtained post-secondary education. Only a short number of years later, I myself was a young law student frequenting the same streets and sights that would have been familiar to Ms. Miller.

As a young lawyer and a Crown prosecutor, I prosecuted Larry Fisher only 12 years after the murder of Ms. Miller. Mr. Fisher was jailed at the time, he refused to take any programming, and he was released from the federal penitentiary because of mandatory release provisions. Following his release from prison, he returned to his hometown of North Battleford, Saskatchewan. Late one night, he stalked, raped and slashed the throat of a 50-year-old woman as she was walking home after she had been participating in a Scrabble tournament at her church. That woman, thankfully, was not murdered, but she had definitely been left for dead. That was his intent.

The case against Fisher was, unfortunately, purely circumstantial. It was a dark night, the survivor did not get a good look at her assailant and there were no other witnesses. She was unable to identify the accused, who was in the courtroom at his preliminary hearing, as she said she had never seen his face. Thankfully, an RCMP officer, Staff Sergeant Bob Young, knowing of Mr. Fisher’s background and character, tracked him down just as Fisher was pulling out a pair of blue jeans from a washing machine at his residence.

In the Court of Queen’s Bench, Morris Bodnar, a top lawyer in criminal law in Saskatchewan, represented Mr. Fisher. In 1981, as one of my last acts as a senior Crown prosecutor, I made a joint submission with Mr. Bodnar and asked the court to sentence Mr. Fisher to a total of ten years consecutive to the remaining three years he automatically had to serve — so in other words, an additional 13 years.

Only months later, in that same year, as I was a newly appointed provincial court judge, I visited a number of justice facilities in Saskatchewan including the federal penitentiary as part of my new judge’s training. It so happened that when I walked into the federal prison where Mr. Fisher was held, he purposely stayed in a location where he could see me and stare me down. He did see me and I saw him, proving in effect the power of the telegraph system in prison culture.

It was another decade later, in 1991, that I watched the far-too-long-in-coming unravelling of Mr. Milgaard’s conviction in the Supreme Court of Canada with particular interest. I had prosecuted Fisher, and I knew of his troubled and violent history. I also followed the proceedings from the perspective of being a judge in the province of Saskatchewan. It was found there that only circumstantial evidence existed against Mr. Milgaard, and in effect, he was in the wrong place at the wrong time as a 16-year-old kid who was looked upon as a hippie by the police detectives.

He was railroaded by overzealous detectives and then condemned by the false statement of a young woman who tried to renege on her statement as she was pressured by the police to say what they wanted to hear. Mr. Milgaard was released from prison in 1992 and received financial compensation in 1999.

As it happens, it was thanks to the efforts of one of our colleagues and my good friend Senator Brent Cotter. He was the deputy minister of justice at the time, and the DNA evidence, in fact, did exonerate Mr. Milgaard. Mr. Cotter was instrumental in producing an award — a monetary award and compensation — for the wrongful conviction of a significant amount, $10 million.

That’s an example of one public servant in the justice system acting in good conscience and with integrity, showing that one person can make a difference. However, that’s not my story to tell, I’m hopeful he will relay that story to you later this week. With that, I conclude my third theme.

So where do we go from here? Colleagues, it was only in 2008 that an inquiry into this particular miscarriage of justice recommended that the federal government create an independent body to review allegations such as these failures. As we stand here, 16 years — 16 long years — later for a wrongfully convicted Canadian citizen, debating on this bill, The Tragically Hip song that I and others have quoted in this chamber also speaks to Mr. Milgaard’s time in jail, the apathy of the justice system and that, “. . . no one’s interested in something you didn’t do.”

To rephrase those song lyrics, this legislation supports those who are wrongfully convicted, and, indeed, that the system of justice is actually interested in something you didn’t do.

As I and many others have said, this legislation is a long time in coming. The independent commission it creates to review and investigate miscarriages of justice will be adequately funded with an $83.5-million budget over the course of five years or $16.7 million per year. The commission will be adequately staffed, including both lawyers and others with expertise and diverse backgrounds. These personnel will be responsive to the inquiries and to the overrepresentation of Black and Indigenous peoples in the justice system. The commission will be further empowered, should this legislation proceed, to refer cases to a court of appeal or to order a new trial including those that have not been referred to the Supreme Court of Canada.

Many will say — and rightfully so — that we need to prevent this from happening in the first place, that, in effect, we need more upstream measures. While I would not disagree, the justice system requires an effective downstream response as a safety valve as I’ve already said. While I can assure you in my experience that the judiciary is not cavalier when making decisions, that prosecutors meticulously prepare their cases, that counsel strive to put forward cogent arguments and that the police are alive to public scrutiny, the justice system is not without fault, prejudice or bias. This does not excuse or absolve wrongful convictions in any way, far from it. This legislation reminds us that the justice system requires of all those involved the highest level of vigilance and professionalism.

Colleagues, ensuring fairness in the justice system requires our vigilance. Our focus must be particularly acute when the stakes involve questions of incarceration. This legislation will help restore the faith of Canadians in the justice system.

Systems are not perfect because people are not perfect because mistakes and errors do happen. These are not excuses. They are simply facts, facts relevant to a justice system that will and must forever strive to adhere to the precepts of fundamental justice and the rule of law through measures that actively improve and safeguard against wrongful conviction.

You should have started me earlier.