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 Short title 1 This Act may be cited as the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) . R.S., c. C- 46 Criminal Code 2002, c. 13, s. 66 2 Subsection 679(7) of the Criminal Code is replaced by the following: Release or detention — miscarriage of justice review (7) If the Miscarriage of Justice Review Commission established under subsection 696.71(1) notifies a person under subsection 696.4(5) that their application for review is admissible, this section applies to the release or detention of that person — as though that person were an appellant in an appeal described in paragraph (1)(a) — pending the completion of the review, pending a new trial or hearing directed by the Commission or pending the hearing and determination of a matter referred by the Commission to the court of appeal. 2002, c. 13, s. 71 3 Part XXI.1 of the Act is replaced by the following: PART XXI. 1 Miscarriage of Justice Reviews Definitions Definitions 696. 1 The following definitions apply in this Part. applicant , in relation to a miscarriage of justice review application, means the person who is the subject of the finding or verdict in question. ( demandeur ) Commission  means the Miscarriage of Justice Review Commission established under subsection 696.71(1). ( Commission ) court of appeal  means the court of appeal for the province in which the matter that is the subject of the application was heard. ( cour d’appel ) Application for Review Application for review 696.2 (1) An application for a review on the grounds of miscarriage of justice may be made to the Commission by or on behalf of (a) a person who has been found guilty of an offence under an Act of Parliament or a regulation made under an Act of Parliament, including a person found guilty under the Youth Criminal Justice Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, a person whose plea of guilty has been accepted and a person who has been discharged under section 730; (b) a person who has been found to be a dangerous offender or long-term offender under Part XXIV; or (c) a person who has been the subject of a verdict of not criminally responsible on account of mental disorder under section 672.34. Exhaustion of appeal rights (2) For the purposes of subsection 696.4 (3), the application must include information indicating whether the person’s rights to appeal the finding or verdict have been exhausted and, if they have not been exhausted, information relevant to the factors referred to in subsection 696.4 (4). Review Handling of application 696.3 (1) 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. Applicant representative (2) If a provision of this Part provides that the Commission must notify an applicant or provide them with any information, the notice or information may be provided to a representative of the applicant in addition to or instead of the applicant. Decision on admissibility 696.4 (1) On receipt of an application, the Commission must decide whether it is admissible. Inadmissible application (2) The Commission must dismiss the application as inadmissible if it is made by or on behalf of a person who is not described in subsection 696.2 (1). Inadmissible application — appeal rights (3) The Commission must dismiss the application as inadmissible if (a) the court of appeal has not rendered a final judgment on appeal of the finding or verdict; or (b) an appeal of the finding or verdict lies to the Supreme Court of Canada on a question of law. Exception (4) Despite subsection (3), the Commission may decide that the application is admissible even if the finding or verdict was not appealed to the court of appeal or the Supreme Court of Canada. In making the decision, the Commission must take into account (a) the amount of time that has passed since the final judgment of the trial court; (b) the reasons why the finding or verdict was not appealed to the court of appeal or the Supreme Court of Canada; (c) whether it would serve a useful purpose for an application to be made for an extension of the period within which a notice of appeal or a notice of application for leave to appeal, as the case may be, to the court of appeal or the Supreme Court of Canada may be served and filed; (d) whether the application is supported by a new matter of significance that (i) was not considered by the courts or previously considered by the Commission in an application in relation to the same finding or verdict, (ii) requires investigation, and (iii) does not raise only a question of law; and (e) any other factor that it considers relevant. Notice (5) The Commission must notify the applicant and the relevant Attorney General of its decision regarding the admissibility of the application. Investigation 696.5 (1) If the Commission 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, it may conduct an investigation in relation to an application. Notice (2) The Commission must send a notice to the applicant and to the relevant Attorney General indicating whether an investigation will be conducted. If the notice indicates that no investigation will be conducted, the notice must also specify a reasonable period within which the applicant and the Attorney General may provide further information to the Commission in relation to the application. Decision after notice (3) The Commission may make a decision under section 696.6 without having conducted an investigation only if the period specified in the notice has ended. Powers (4) For the purposes of an investigation, the Commission has the powers of a commissioner under Part I of the Inquiries Act . Authorization (5) The Commission may, on the terms it considers appropriate, authorize any of its employees, or a person under contract to it who has technical or specialized knowledge, to exercise the Commission’s powers referred to in subsection (4). Investigation report (6) The Commission must, after completing an investigation, prepare a report and provide a copy of it to the applicant and the relevant Attorney General. Deadline to respond (7) The report must specify a reasonable period within which a written response may be provided to the Commission. Decision after investigation (8) After completing the investigation, the Commission may make a decision under section 696.6 only if, within the period specified in the report, it has received either written responses or written confirmation that no responses will be provided by or on behalf of the applicant and by the relevant Attorney General or if that period has ended. Decision 696.6 (1) On completion of a review, the Commission must make, under this section, a decision on the application. Remedies (2) 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, it must (a) direct a new trial before any court that the Commission thinks proper or, in the case of an applicant who was found to be a dangerous offender or long-term offender under Part XXIV, a new hearing under that Part; or (b) refer the matter to the court of appeal for a hearing and determination by that court as if it were an appeal by the applicant. Dismissal of application (3) If the Commission does not grant a remedy under subsection (2), it must dismiss the application. Deceased applicant (4) If the applicant is deceased, the Commission may only refer the matter to the court of appeal under paragraph (2)(b) or dismiss the application. Factors (5) In making its decision, the Commission must take into account (a) 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; (b) the relevance and reliability of the information that is presented in connection with the application; (c) the fact that an application is not intended to serve as a further appeal and that the remedies set out in subsection (2) are extraordinary remedies; (d) the personal circumstances of the applicant; (e) 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 (f) any other factor that it considers relevant. Innocence (6) For greater certainty, the Commission may grant a remedy under subsection (2) even if the evidence does not establish the innocence of the applicant. Notice (7) The Commission must notify the applicant and the relevant Attorney General of its decision. Court of Appeal Opinion Reference 696. 61 The Commission may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application on which the Commission desires the assistance of that court, and the court must provide its opinion accordingly. Parliamentary Review Review of this Part and Part XXI.2 696. 62 As soon as feasible after the fifth anniversary of the day on which this section comes into force and every ten years after that, a review of this Part and Part XXI.2 and of their administration and operation is to be commenced by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose. 4 The Act is amended by adding the following after Part XXI.1: PART XXI. 2 Miscarriage of Justice Review Commission Definitions Definitions 696. 7 The following definitions apply in this Part. applicant  in relation to a miscarriage of justice review application made to the Commission, means the person who is the subject of the finding or verdict in question. ( demandeur ) Commission  means the Miscarriage of Justice Review Commission established under subsection 696.71(1). ( Commission ) Minister  means the Minister of Justice. ( ministre ) Establishment and Mandate Commission established 696.71 (1) The Miscarriage of Justice Review Commission is established. Composition (2) The Commission consists of a Chief Commissioner and four to eight other commissioners, all of whom are appointed to hold office during good behaviour by the Governor in Council on the recommendation of the Minister. Head office (3) The head office of the Commission must be in a place in Canada that is designated by the Governor in Council. Mandate 696. 72 The Commission’s mandate is to (a) review applications made under Part XXI.1 on the grounds of miscarriage of justice after section 3 of the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) comes into force; (b) make recommendations to address systemic issues that may lead to miscarriages of justice to relevant public authorities and bodies, including the Law Commission of Canada, federal-provincial-territorial committees and working groups, federal departments and agencies and parliamentary committees. Commissioners Diversity 696. 73 In making recommendations for commissioner appointments, the Minister must seek to reflect the diversity of Canadian society and must 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. Full- or part-time commissioners 696. 74 The Chief Commissioner is a full-time commissioner. The other commissioners may be appointed as full-time or part-time commissioners. Knowledge and experience 696.75 (1) The commissioners must have, in the opinion of the Governor in Council, knowledge and experience that is related to the Commission’s mandate. Legal qualifications (2) At least one third of the commissioners, including the Chief Commissioner, must be members in good standing of the bar of a province and have at least ten years’ experience in the practice of criminal law at the time of their appointment. Diversity of qualifications (3) At least one half of the commissioners must not, if possible, be persons described in subsection (2). Role of Chief Commissioner 696.76 (1) The Chief Commissioner is the chief executive officer of the Commission and has supervision over and direction of the work and employees of the Commission. Absence, incapacity or vacancy (2) If the Chief Commissioner is absent or incapacitated or if their office is vacant, the Commission may authorize another commissioner who is a person described in subsection 696.75(2) to act as Chief Commissioner. The authorized commissioner is not, however, authorized to act as Chief Commissioner for more than 90 days without the Governor in Council’s approval. Term of office 696.77 (1) A commissioner is to be appointed to hold office for a term not exceeding seven years such that, to the extent possible, the terms of office of more than one half of the commissioners do not end in any one calendar year. Reappointment (2) A commissioner may be reappointed. Removal (3) A commissioner may be removed for cause by the Governor in Council. Remuneration 696.78 (1) A commissioner is to receive the remuneration that is fixed by the Governor in Council. Expenses (2) A commissioner is entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred while absent in the course of their duties and functions from, in the case of a full-time commissioner, their ordinary place of work and, in the case of a part-time commissioner, their ordinary place of residence. Compensation (3) A commissioner is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act . Meetings 696.79 (1) The Chief Commissioner convenes and presides at meetings of the Commission. Quorum (2) One half of the commissioners holding office constitutes a quorum. Decisions (3) A decision of a majority of the commissioners at a meeting is a decision of the Commission. Powers, Duties and Functions Accessibility 696. 8 The Commission must ensure that applicants and potential applicants are able to communicate readily with the Commission from any place in Canada. Outreach 696. 81 The Commission must publish information about its mandate on its website and must provide the public, including potential applicants, with information about its mandate and about miscarriages of justice. Transparency 696.82 (1) The Commission must carry out its mandate in a transparent manner. Publication of decisions (2) The Commission must publish its decisions on its website in a manner that (a) protects confidential information; and (b) is not likely to interfere with the proper administration of justice in relation to a matter that the Commission directs to a court for a new trial or hearing or a matter that the Commission refers to a court of appeal for a hearing and determination. Policies 696.83 (1) The Commission may adopt policies generally for the carrying out of its work and the management of its affairs, including policies respecting its procedures and practices. Duty to adopt certain policies (2) The Commission must adopt policies respecting (a) the making of applications; (b) each stage of the review process; (c) applications that are made on behalf of persons; (d) the provision of notices and other information to applicants, to their representatives, to attorneys general and to other interested persons, including victims; and (e) meetings of the Commission. Publication (3) The Commission must publish its policies on its website. Statutory Instruments Act (4) The Statutory Instruments Act does not apply to policies adopted by the Commission. Powers 696.84 (1) The Commission may, in carrying out its mandate, (a) direct employees to provide applicants and potential applicants with general information and guidance on applications and each stage of the review process; (a.1) direct employees to notify the Correctional Service of Canada and the Parole Board of Canada of the importance of ensuring that applicants and potential applicants do not experience barriers to or exclusion from programs, services or conditional release processes as a result of making an application for a review on the grounds of a miscarriage of justice; (b) enter into contracts in its own name; (c) provide supports to applicants in need, including by entering into contracts with service providers for the provision of those supports; and (d) enter into contracts with persons who have technical or specialized knowledge to assist in the Commission’s work. Supports to applicants in need (2) For the purposes of paragraph (1)(c), supports to applicants in need include (a) directing them to services in their communities for persons in need or helping them access those services; (b) providing them with translation and interpretation services; (c) assisting them, if they are without means, in relation to necessities such as food and housing; and (d) assisting them, if they are without means, in obtaining legal assistance in relation to making an application or providing a written response to an investigation report prepared by the Commission. Security requirements 696. 85 The Commission and its employees must follow established procedures and practices, including any requirement found in a Treasury Board policy or directive, for the secure handling, storage, transportation and transmission of information or documents. Staff Public Service Employment Act 696. 86 The employees necessary for the proper conduct of the work of the Commission are to be appointed in accordance with the Public Service Employment Act . Annual Report Annual report 696.87 (1) The Chief Commissioner must, within five months after the end of each fiscal year, submit to the Minister a report that contains the following information for that fiscal year: (a) the number of applications received; (b) statistics on applicants that, to the extent possible, are disaggregated 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; (c) the number of investigations started and the number of investigations completed; (d) the number of matters that the Commission directed to courts for new trials or hearings; (e) the number of matters that the Commission referred to courts of appeal for hearings and determinations; (f) the number of applications dismissed; (g) the outcomes of matters that the Commission directed to courts for new trials or hearings; (h) the outcomes of matters that the Commission referred to courts of appeal for hearings and determinations; (i) the average length of time between the receipt of an application and the Commission’s final decision; (j) the number of applicants in need who received supports; (k) the amounts paid to service providers under paragraph 696.84(1)(c), disaggregated, to the extent possible, by the nature of the supports provided by the service providers; and (l) any other information on the Commission’s activities that the Chief Commissioner considers relevant. Tabling (2) The Minister must cause the report to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the day on which the report is received. Publication (3) The Commission must publish the annual report on its website after it has been tabled. 5 The definition applicant in section 696.7 of the Act is replaced by the following: applicant  has the same meaning as in section 696.1. ( demandeur ) 6 Section 696.72 of the Act is replaced by the following: Mandate 696. 72 The Commission’s mandate is to review applications made under Part XXI.1 on the grounds of miscarriage of justice. Transitional Provisions Definitions 7 The following definitions apply in this section and sections 8 to 13 . applicant  means the person who is the subject of the finding or verdict in question or their representative. ( demandeur ) commencement day  means the day on which section 3 comes into force. ( date de référence ) Commission  means the Miscarriage of Justice Review Commission established under subsection 696.71(1) of the Criminal Code . ( Commission ) Minister  means the Minister of Justice. ( ministre ) new scheme  means Part XXI.1 of the Criminal Code as it reads on or after the commencement day. ( nouveau régime ) old scheme  means Part XXI.1 of the Criminal Code and the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice as they read immediately before the commencement day. ( ancien régime ) Duty of Minister 8 If an application was made under the old scheme and the Minister has not, before the commencement day, made a decision under subsection 696.3(3) of the Criminal Code , as it read immediately before that day, the Minister must ask the applicant whether they consent to having the application transferred to the Commission to be dealt with in accordance with the new scheme. Consent within deadline 9 If the applicant gives, within the time limit fixed by the Minister, written consent to transfer the application, the application is deemed to have been made to the Commission under the new scheme and the Minister is authorized to disclose to the Commission all information pertaining to the application that is under the Minister’s control. No consent 10 (1) If the applicant, within the time limit fixed by the Minister, does not reply in writing to the Minister or gives a written refusal of consent to transfer the application, subsection (2) or (3) applies. Preliminary assessment completed (2) If, before the commencement day, the Minister completed the preliminary assessment of the application required under paragraph 3(b) of the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice , the old scheme continues to apply in respect of the application. Preliminary assessment not completed (3) If the Minister did not complete the preliminary assessment before the commencement day, the application is deemed not to have been made and the applicant may apply to the Commission under the new scheme. Late consent 11 An application is deemed to have been made to the Commission under the new scheme and the Minister is authorized to disclose to the Commission all information pertaining to the application that is under the Minister’s control if (a) the applicant gives, after the time limit fixed by the Minister, written consent to transfer the application; (b) the Minister completed the preliminary assessment required under paragraph 3(b) of the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice before the commencement day; and (c) the Minister receives the consent before having made, under subsection 10 (2) of this Act, a decision under subsection 696.3(3) of the Criminal Code , as it read immediately before the commencement day. Consent irrevocable 12 Consent that is given in accordance with section 9 or 11 is irrevocable. Application dismissed by Minister 13 For greater certainty, the fact that the Minister dismissed an application under the old scheme does not prevent the applicant from applying under the new scheme. Consequential Amendments R.S., c. A- 1 Access to Information Act 14 Schedule I to the Access to Information Act is amended by adding the following, in alphabetical order, under the heading “Other Government Institutions”: Miscarriage of Justice Review Commission Commission d’examen des erreurs du système judiciaire R.S., c. F- 11 Financial Administration Act 15 Schedule I.1 to the Financial Administration Act is amended by adding, in alphabetical order in column I, a reference to Miscarriage of Justice Review Commission Commission d’examen des erreurs du système judiciaire and a corresponding reference in column II to “Minister of Justice”. 16 Schedule IV to the Act is amended by adding the following in alphabetical order: Miscarriage of Justice Review Commission Commission d’examen des erreurs du système judiciaire R.S., c. P- 21 Privacy Act 17 The schedule to the Privacy Act is amended by adding the following, in alphabetical order, under the heading “Other Government Institutions”: Miscarriage of Justice Review Commission Commission d’examen des erreurs du système judiciaire R.S., c. P- 36 Public Service Superannuation Act 18 Part I of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order: Full-time commissioners of the Miscarriage of Justice Review Commission and the Commission’s employees Commissaires à temps plein et personnel de la Commission d’examen des erreurs du système judiciaire Repeal SOR/2002-416 19 The Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice are repealed. Coming into Force Order in council 20 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.