Research publications

Contents

• 1 Background
• 2 Description and Analysis
  • 2.1 Miscarriage of Justice Reviews (Clauses 3 and 20)
    • 2.1.1 Admissibility for Review
    • 2.1.2 Appeal Rights Exhausted
      • 2.1.2.1 Exception: Appeal to the Supreme Court of Canada
    • 2.1.3 Handling of Application
    • 2.1.4 Investigation
    • 2.1.5 Decision
      • 2.1.5.1 Factors to Take into Account
    • 2.1.6 Reference
    • 2.1.7 Parliamentary Review and Coming into Force
  • 2.2 The Miscarriage of Justice Review Commission (Clauses 4 and 6)
    • 2.2.1 Establishment and Mandate
    • 2.2.2 Commissioners
    • 2.2.3 Powers, Duties and Functions
      • 2.2.3.1 Transparency
      • 2.2.3.2 Powers
    • 2.2.4 Annual Report
  • 2.3 Transitional Provisions (Clauses 7 to 13)
  • 2.4 Consequential Amendments (Clauses 14 to 19)
• Notes

1 Background

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) (short title: Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law)), was introduced in the House of Commons on 16 February 2023 by the Honourable David Lametti, Minister of Justice and Attorney General of Canada.1

Bill C-40 establishes an independent commission to review and investigate alleged miscarriages of justice and, where appropriate, refer cases to a court of appeal or order a new trial. Currently, the Minister of Justice holds the power to review convictions to determine whether a miscarriage of justice likely occurred. The commission replaces the role of the Minister of Justice in the existing ministerial review process.

While definitions vary, the term “miscarriage of justice” or “wrongful conviction” generally refers to when errors occur in the criminal justice system that result in a person receiving an unwarranted sentence. These errors are presumed to be rare but cause profound harm when they occur. Research indicates that at least 83 people have been wrongfully convicted in Canada, though the actual number is likely higher due to barriers people face in proving that they have been wrongfully convicted.2

Several independent commissions have been established over the past four decades in response to high-profile miscarriages of justice. The resulting reports have shone light on the reasons for wrongful convictions, including racial bias, tunnel vision, youth vulnerability and unethical practices employed by police, prosecutors and expert witnesses.3 These reports have also been critical of the process for review of alleged miscarriages of justice, which is currently at the discretion of the federal Minister of Justice. A common recommendation has been to create an independent body to review wrongful convictions that is similar to models in other jurisdictions, such as England, New Zealand, Norway, Scotland and North Carolina.4

In a 2019 mandate letter, the Prime Minister of Canada instructed Minister Lametti to “[e]stablish an independent Criminal Case Review Commission to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed.” 5 In 2021, Minister Lametti asked two retired judges to undertake consultations on the creation of an independent commission to replace the role of the Minister of Justice in the miscarriage of justice review process. The resulting report (the report) concluded that a new process was needed, noting that ministerial review “fails to achieve access to justice as measured by the low number of applications and referrals to the court compared to the independent foreign commissions.” 6 In particular, this report noted that

[t]he Minister’s record of awarding 20 referrals, since 2002, all involving men and only one involving an Indigenous man and one involving a Black man, does not reflect the population at risk for wrongful convictions as measured by the overrepresentation of Indigenous and Black people in Canada’s prisons.7

The report made 51 recommendations, many of which are reflected in Bill C-40.8 For example, the proposed commission is independent of the government, it is not limited to matters of factual innocence and it has many of the recommended powers relating to investigation and remedies.

Some of the recommendations that are not fully reflected in Bill C-40 include several relating to the structure of the commission, such as the number of commissioners, their qualifications and the renewability of their terms. Moreover, the bill does not appear to empower the commission with “jurisdiction to do systemic reform work related to the prevention of miscarriages of justices.” 9 Finally, the report also called for a separate statute to ensure compensation for victims of miscarriages of justice. It is unclear whether such legislation is forthcoming.

2 Description and Analysis

Bill C-40 contains 20 clauses. It creates a new process for the miscarriage of justice reviews that are currently set out in the Criminal Code 10 and the Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice 11 (the regulations) and it establishes a commission for this purpose. Key clauses are discussed below.

2.1 Miscarriage of Justice Reviews (Clauses 3 and 20)

Clause 3 of Bill C-40 replaces the existing scheme of ministerial reviews of miscarriages of justice in the Criminal Code with a new process administered by a Miscarriage of Justice Review Commission (the commission).

2.1.1 Admissibility for Review

The existing scheme and the new process apply very similar criteria to making an application for a conviction review on the ground of miscarriage of justice. An application can be made either by or on behalf of a person (existing section 696.1 and new section 696.2(1))

• who has been found guilty of an offence under an Act of Parliament or regulation made under such Act; or
• who has been found to be a dangerous offender or long-term offender.12

Bill C-40 also clarifies additional groups of persons who are eligible to apply for a review, including persons found guilty under the Youth Criminal Justice Act or the Young Offenders Act, persons who have pleaded guilty, persons who have been discharged under section 730 of the Criminal Code 13 and persons found not criminally responsible on account of a mental disorder pursuant to section 672.34 of the Criminal Code (new section 696.2(1)).

New section 696.2(1) implements recommendations 20 and 21 of the report.14

2.1.2 Appeal Rights Exhausted

Mirroring the existing scheme, the new process requires an applicant to first exhaust their appeal rights with respect to the finding to be reviewed (existing section 696.1 and new sections 696.2(2), 696.4(2) and 696.4(3)), which includes an appeal to a court of appeal and to the Supreme Court of Canada (SCC).

2.1.2.1 Exception: Appeal to the Supreme Court of Canada

However, the new process carves out an exception to this requirement regarding an appeal to the SCC. Under new section 696.4(4), the commission may determine that an application for review is admissible even if the finding in issue was not appealed to the SCC. In making its decision, the commission must consider the following factors (new section 696.4(4)):

• how much time has passed since the court of appeal’s judgment;
• the reasons why the court of appeal’s judgment was not appealed to the SCC;
• whether it would be useful for the applicant to ask the SCC for an extension to request leave to appeal or to file an appeal;
• whether the application is supported by a new matter of significance that was not considered previously, requires investigation and does not raise only a question of law; and
• any other relevant factor.

The criteria and deadlines for appeals to the SCC are set out in sections 56 to 64 of the Supreme Court Act.15

New section 696.4(4) of the Criminal Code codifies and regulates this exception already established in case law.16 It also implements the report’s 31^st recommendation, that there should not be a “rigid exhaustion of appeal requirement” and that the commission should avoid “an overly bureaucratic, harsh and unkind ‘tick box’ mentality that mechanically denies applications because there has been no appeal and then offers no assistance to rejected applicants.” 17

2.1.3 Handling of Application

Under new section 696.3, the commission must deal with applications “as expeditiously as possible” and provide updates on a “regular basis” to applicants on the status of their application. These procedural requirements are not present in the existing scheme. Neither “as expeditiously as possible” nor “regular basis” are defined terms in Bill C‑40.

The commission decides whether applications received are admissible for review, as outlined above (new section 696.4(1)). The commission must notify the applicant and the relevant attorney general of its decision (new section 696.4(5)).

2.1.4 Investigation

Pursuant to new section 696.5(1), the commission may conduct an investigation in relation to an application if it has “reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so.” The inclusion of this threshold in the legislation runs counter to the report’s 34^th recommendation that it be set by commission policy instead.

This new test is significantly less stringent than the test under the existing scheme, where the minister conducts an investigation only after determining that there is “a reasonable basis to conclude that a miscarriage of justice likely occurred” [authors’ emphasis] (existing section 4(1)(a) of the regulations).

Regardless of whether the commission conducts an investigation, it must notify the applicant and the relevant attorney general. The notice must indicate whether or not the commission will conduct an investigation, and, if there will not be an investigation, specify a reasonable period during which the applicant and the attorney general can provide further information (new section 696.5(2)). This new section is substantially similar to existing sections 4(2) and 4(3) of the regulations but includes the attorney general as a party to be notified. However, existing section 4(3) specifies that the applicant may provide new information within a year of the date the notice was sent. It is unclear whether the “reasonable period” in new section 696.5(2) will provide for a similar amount of time.

As under the existing scheme, the commission may make a decision regarding an application, without having conducted an investigation, once the period to provide additional information has elapsed (new section 696.5(3) and existing section 5(2) of the regulations).

When the commission completes an investigation, it must prepare a report and provide a copy of it to the applicant and the attorney general (new section 696.5(6)). A similar obligation exists under the existing scheme, except that the minister is not required to provide the attorney general with a copy of the report (existing section 5(1) of the regulations).

Similarly to the existing scheme, the applicant may provide the commission with a written response to the investigation report. Under the new process, the attorney general may also do so (existing section 5(1) of the regulations and new section 696.5(7)).

The commission may make a decision on the application once the investigation is completed and the responses have been received, the parties have confirmed that no responses will be provided or the time period provided for this in the report has elapsed (new section 696.5(8)).

2.1.5 Decision

As under the existing scheme, the commission’s decision is limited to three options (existing section 696.3(3) and new sections 696.6(2) and 696.6(3)).

If the commission “has 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” [authors’ emphasis] (new section 696.6(2)), it must direct a new trial or new hearing, or refer the matter to the appropriate court of appeal. In contrast, a remedy may be ordered under the existing scheme if the Minister of Justice is “satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred” (existing section 696.3(3)(a)).

It is unclear whether the new threshold for ordering a remedy will be less stringent. The existing scheme places a higher onus on the applicant to show that “a miscarriage of justice likely occurred,” versus the new standard of “may have occurred.” However, the new process introduces a second part to the test, namely that the commission must also believe that granting a remedy will be “in the interests of justice.” 18 This is not a requirement under the existing scheme. It is unclear when it would not be in the interests of justice to order a remedy for a potential miscarriage of justice. The report expressed concern that this two-step approach “could potentially work to the disadvantage of Indigenous, Black, and other marginalized applicants, and applicants that may appear unsympathetic and perhaps dangerous.” 19

With new section 696.6(2) of the Criminal Code, Bill C-40 partially implements recommendations 42 and 43 of the report, including that the commission should consider whether a miscarriage of justice “may have occurred” rather than whether it “likely occurred.” However, the report also recommended that the commission have the power to refer a matter for a pardon or record suspension, in addition to directing it to a new trial or hearing, or referring it to a court of appeal.20 These options are not included in Bill C-40.

As under the existing scheme, if the commission does not grant one of the two possible remedies, it must dismiss the application (existing section 696.3(3 (b) and new section 696.6(3)).

The commission must notify the applicant of its decision, and unlike under the existing scheme, it must also notify the attorney general (new section 696.6(7) and existing section 6 of the regulations).

2.1.5.1 Factors to Take into Account

In making its decision, the commission must take into account the following factors (new section 696.6(5)):

1. whether the application is supported by a new matter of significance that was not considered by the courts or previously considered by the Commission in an application in relation to the same finding or verdict;
2. the relevance and reliability of the information that is presented in connection with the application;
3. the fact that an application is not intended to serve as a further appeal and that the remedies set out in [section 696.6(2)] are extraordinary remedies;
4. the personal circumstances of the applicant;
5. the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention to the circumstances of Indigenous or Black applicants; and
6. any other factor that it considers relevant.

The factors enumerated in (a) to (c) and (f) above were already considerations made by the Minister of Justice under the existing scheme (existing section 696.4). Those described in (d) and (e) are new.

Of note, Bill C-40 is explicit that the commission may grant a remedy to the applicant even if the evidence does not establish their innocence (new section 696.6(6)). This is also the case under the existing scheme; however, it is not explicitly stated in the Criminal Code or the regulations. This new section reflects the report’s finding that to “impose a factual innocence requirement in Canada would … be a step backward. It would create a new commission with a more limited error correction mandate than the Minister of Justice currently has.” 21

2.1.6 Reference

Under new section 696.61, the commission may refer to a court of appeal any question in relation to an application, and the court of appeal is required to provide its opinion on the matter. Bill C-40 does not provide details of how this referral will unfold. It is unclear whether the court of appeal will hear arguments on the question, if its decision will be public and what, if anything, the commission must do with the court’s opinion.

2.1.7 Parliamentary Review and Coming into Force

Under new section 696.62, Parliament must review the amendments made by Bill C‑40 as soon as possible after the fifth anniversary of the coming into force of that section and every 10 years thereafter. The report recommended that such a review take place every three to five years.22

Provisions of the bill may come into force on separate days as fixed by the Governor in Council (clause 20). It is therefore possible that the deadline for review of the legislation will not correspond to the date when most of the legislation comes into force.23

2.2 The Miscarriage of Justice Review Commission (Clauses 4 and 6)

2.2.1 Establishment and Mandate

Clause 4 of Bill C-40 creates the commission (new section 696.71(1)). The commission consists of a chief commissioner and four to eight additional commissioners.24 While the chief commissioner must be appointed on a full-time basis, the other commissioners can serve on a part-time basis (new section 696.74). The chief commissioner and other commissioners are to be appointed by the Governor in Council on the recommendation of the Minister of Justice (new section 696.71(2)). Recommendation 8 of the report stated that appointments should be based on the recommendation of an independent committee.

The commission’s mandate is to review applications made under the new process once it comes into force (clause 6).

2.2.2 Commissioners

New section 696.73 requires the Minister of Justice, when recommending individuals to be appointed as commissioners, to “seek to reflect the diversity of Canadian society” and to “take into account considerations such as gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous peoples and Black persons.”

Other than setting mandatory considerations for the Minister of Justice’s recommendations, Bill C-40 does not require particular outcomes in terms of the diversity of commissioners. The fifth recommendation of the report was that one‑third of the commissioners reflect groups overrepresented in prison and disadvantaged in seeking relief, and that there be at least one Indigenous and one Black commissioner.

Bill C-40 requires that all commissioners have “knowledge and experience that is related to the Commission’s mandate” (new section 696.75(1)). It also requires that the chief commissioner and at least one-third, but not more than one-half, of commissioners must be lawyers with at least 10 years’ experience in criminal law (new sections 696.75(2) and 696.75(3)). The report warned that a requirement of 10 years’ experience “could be a potential barrier to the representation of disadvantaged groups among commissioners.” 25

Commissioners are appointed for a term of not more than seven years. Commissioners should be appointed in a way that ensures that no more than half of the commissioners’ terms end in any one calendar year (new section 696.77(1)). Commissioners may be reappointed (new section 696.77(2)). The possibility for a renewable term contradicts the seventh recommendation of the report that the commissioners’ terms be non‑renewable to ensure that the commission is “independent and [at] arm’s-length from government.” 26 Finally, commissioners may also be removed for cause.

2.2.3 Powers, Duties and Functions

Bill C-40 places the onus on the commission to ensure that applicants and potential applicants can communicate easily with the commission from anywhere in Canada (new section 696.8). The bill does not specify how the commission should accomplish this or whether it must take additional measures for more remote and isolated locations in Canada, such as the North or penitentiaries and prisons.

Additionally, the commission must publish information about its mandate on its website. The bill also requires the commission to inform the public and potential applicants about its mandate and about miscarriages of justice (new section 696.81).

2.2.3.1 Transparency

The commission must be transparent in carrying out its mandate. Bill C-40 requires the commission to publish its decisions online (new section 696.82) as recommended in the report (recommendation 41). The existing scheme does not require the Minister of Justice to publish conviction review decisions.

When publishing decisions, the commission must protect confidential information, presumably of all individuals involved in a matter, including potential victims and the applicants.

Additionally, if the commission directs a matter for a new trial or hearing or refers it to a court of appeal, it must ensure that the decision published on its website is unlikely to interfere with the proper administration of justice.

2.2.3.2 Powers

In carrying out its mandate, the commission has the power to provide applicants and potential applicants with information and guidance at each step of the review process (new section 696.84). The commission is also authorized to provide supports to applicants in need, such as:

• directing applicants to community services or helping applicants access services;
• supplying translation and interpretation services;
• if applicants are in need, assisting them with necessities (like food and housing); and
• if applicants do not have the means, helping them obtain legal assistance in relation to their application.

This new section partly implements the report’s recommendation 50 that the commission provide necessary support to applicants during the application process. That recommendation also urged that the commission have a legislated mandate to provide support for the reintegration of applicants both through the application process and appellate process and after they have been released or had their conviction overturned. Bill C-40 appears to allow the commission to provide support during the application process but not beyond.

2.2.4 Annual Report

Like the Minister of Justice under the existing scheme, the commission must submit an annual report at the end of each fiscal year. Under Bill C-40, the commission submits the report to the minister, who tables it in Parliament (new section 696.87).

The annual report must contain essentially the same elements as the report currently prepared by the Minister of Justice (section 7 of the regulations), including information on the number of applications received, the number of investigations started and completed, the number of applications dismissed, and the number of applications directed for new trials or hearings or referred to a court of appeal.

The commission’s annual report must also provide disaggregated statistics on applicants presented by “gender identity, age, race, ethnic origin, language, disability, income and any other identity factor that is considered in the course of a gender-based analysis” (new section 696.87(1)(b)) as set out in the report’s 18^th recommendation. The annual report must also include the outcomes of the matters the commission directed to a new trial or hearing or referred to a court of appeal, the average time elapsed between the commission’s receipt of an application and its final decision, how many applicants in need received supports, and the amounts paid to service providers to provide applicants with such supports, disaggregated by type of support.

The commission’s annual report must be submitted to the Minister of Justice within five months after the end of the fiscal year. The minister then has 30 days to table the report before the Senate and the House of Commons.

Once the commission’s report has been tabled in Parliament, the commission must publish the report online.

2.3 Transitional Provisions (Clauses 7 to 13)

Bill C-40 outlines how to deal with applications for review submitted before the coming into force of the new process (clause 7).

If the minister has not yet made a decision on an application, the applicant must consent to the transfer of their application to the commission to be dealt with under the new process (clause 8).

If the applicant consents within the deadline set by the minister, or after the deadline but before the minister has made a decision on the application, the application is deemed to have been made to the commission (clauses 9 and 11). Applicants cannot withdraw their consent after the fact (clause 12).

If the applicant refuses or does not consent to the transfer of the application to the commission, Bill C-40 sets out two options. If the minister has completed the preliminary assessment of the application before the coming into force of the bill, the existing scheme continues to apply. However, if the minister has not completed the preliminary assessment of the application, the application is deemed to not have been made, and the applicant may submit a new application to the commission (clause 10).

Bill C-40 does not set out a mechanism for informing applicants under the existing scheme whether their application is deemed to not have been made. Under the existing scheme, applicants must be informed once the minister decides whether to conduct an investigation. However, there is no obligation to inform applicants of the conclusion of the preliminary assessment under the existing scheme.

According to the 2022 annual report of the Minister of Justice on applications for ministerial reviews of miscarriages of justice,27 during the 2021–2022 fiscal year, there were 53 applications at the preliminary assessment stage. Of these, 13 applications had yet to be assessed, 32 were in the process of being assessed, and the assessment was completed for eight applications.28 By way of example, if Bill C‑40 came into force at the end of the 2021–2022 fiscal year, 45 applications could be deemed not to have been made, should the applicants not consent to transfer their application to the commission.

Finally, the bill provides that if the minister dismisses an application for review under the existing scheme, the applicant may submit a new application under the new process (clause 13).

2.4 Consequential Amendments (Clauses 14 to 19)

Bill C-40 makes consequential amendments to the Access to Information Act, the Financial Administration Act, the Privacy Act and the Public Service Superannuation Act (clauses 14 to 18). These amendments add references to the commission.

Clause 19 repeals the regulations, which set out the requirements for applications, the review of applications and annual reports under the existing scheme. These are replaced by new sections under Bill C-40 as described above.

Notes