Bill C-40, the Justice System Errors Review Commission Act (David and Joyce Milgaard Act) passed third reading on June 19, 2024, in the House of Commons, with support from the NDP and Bloc Québécois but not from the official opposition Conservative Party of Canada, which tried unsuccessfully to gut the bill at its report stage.
The proposed law now awaits study by the Legal and Constitutional Affairs Committee of the Senate, where its sponsor, David Arnot, an ex-human rights commissioner, prosecutor and judge, and a current member of the Independent Senators Group, urged fellow lawmakers during second reading debate on Sept. 19, 2024, “to refer this bill to committee for study so it can continue to progress through Parliament toward royal assent as quickly as possible.”
Passing the bill expeditiously would prevent its demise in the event of a fall election that kills everything on the order paper, its proponents say.
“I’ve emailed … some members [of the Senate committee] and urged them to treat it as a priority,” said criminal lawyer James Lockyer of Toronto’s Lockyer, Zaduk, Zee. “I know that there’s support for it in the Senate, and I’m really hopeful they’re going to deal with it quickly,” he told Law360 Canada. “I’ve urged them not to propose any amendments… because to propose amendments will cause delay. We can’t afford it.”
James Lockyer, Lockyer, Zaduk, Zee
The creation of an independent review mechanism to facilitate the re-investigation of alleged cases of wrongful conviction was first recommended by the Marshall Inquiry in 1989. It has been one of the major goals of Innocence Canada (formerly the Association in Defence of the Wrongly Convicted) since the organization’s inception in 1993, Lockyer said. “We’ve been advocating for 31 years for it,” he said. “Obviously, I think it’s very important they get it done, pronto.”
Lockyer said he feels “very optimistic” that Bill C-40 will become law in 2024. “I would be very surprised if this bill didn’t pass the Senate easily.”
At the same time, he acknowledged he is “very worried” about the prospect that Bill C-40 would die on the order paper if the governing minority Liberal government were to fall on a non-confidence motion in the coming weeks.
“Even if the party elected [subsequently to government] was supportive of the legislation, we’d still have to start all over again, and that’s hopeless,” he said. “We’ve just got to get it done.”
He expressed concern that if a majority Conservative government were elected, without Bill C-40 being enacted, “they wouldn’t put this through, I fear.”
“I fear we’d really be back to square one, and very little hope of getting beyond that,” he said, noting that the predecessor Conservative government under prime minister Stephen Harper “showed no interest at all in enacting such legislation.”
“But the Bloc and the NDP and the Liberals all support it, so let’s get it done now, finally, after all these years,” he urged.
Lockyer said he is not, however, fearful that a Conservative majority government might abolish an existing Justice System Errors Review Commission. “Once it’s there, we’ve got it,” he said. “It’s a new process and I would not believe that any new government would literally … repeal it,” he said. “I’m sure, over years, it will be amended here and there, that there will be changes to its structure … Indeed, there are many changes that I would like to see to its present structure [as proposed in Bill C-40]. But, I don’t think that’s helpful to talk about those now. Let’s get it in there, and we’ll talk about the changes once we got the commission.”
David Lametti, Fasken
“The bill should pass in the Senate this fall,” said Lametti, a McGill University adjunct law professor, who is also counsel with Fasken in Montreal. Lametti disagrees with concerns articulated by the official opposition that Bill C-40 unduly relaxes the threshold at which a case will be sent back to the justice system.
“The fears are completely unfounded,” Lametti told Law360 Canada by email. “The general model we have chosen has been in existence in the U.K. — a common law jurisdiction with similar structures and doctrines — for 25 years,” he explained. “Other jurisdictions such as Australia and New Zealand, and even some U.S. states, are going in the same direction.”
Asked whether he is concerned that the future of the proposed commission is in jeopardy, given that the NDP recently terminated its deal to prop up the minority Liberal government and polls signal a Conservative majority government might be elected, Lametti replied, “I am always concerned about policy decisions based on a lack of evidence, or those decisions which ignore best practices — let alone a policy that hinders correcting mistakes which have put innocent people in jail. What goal can that policy possibly serve?”
In the Commons, at second reading debate on June 12, 2023, the official opposition did not speak against the principle of creating a commission and agreed to send Bill C-40 to the justice committee for study.
The party’s spokesperson on the bill, Conservative MP Tako Van Popta, spoke of police tunnel vision and the resulting “serious miscarriage of justice” in the case of David Milgaard, who spent 23 years in prison for a murder he did not commit and whose mother, Joyce, worked ceaselessly to vindicate her son.
Van Popta also asked Lametti, however, whether the justice minister would be open to modifying Bill C-40’s new two-pronged legal test for referring wrongful conviction claims back to the courts.
Under Bill C-40 — instead of requiring that the reviewing decision-maker is satisfied that a miscarriage of justice “likely” occurred (the standard used in the current ministerial review regime for wrongful conviction claims) — the new commission could refer a matter back to the courts if it had reasonable grounds to conclude that a miscarriage of justice “may” have occurred and that it is in the interests of justice to do so.
“Would he be open to having the lower standard, where miscarriage of justice may have occurred, for the first step, but the higher standard, where it was likely to have occurred, for the second step, before the commissioner sends it back into the judicial system?” Van Popta asked.
“Having the word ‘likely’ in there is not something I would like to continue with,” Lametti replied.
“The experience we have seen is that ‘likely’ is too high a standard,” Lametti said. The current “likely” standard was identified by Justices Westmoreland-Traoré and LaForme in their 2021 report on the creation of an independent commission to consider wrongful conviction applications “as one of the likely factors of why we get so few cases in our system,” he explained.
“Our cognate jurisdictions, England, Northern Ireland, Wales and Scotland, have systems that are not unknown to us,” he said. “We are in the same family of criminal law systems, and I think we should be comforted using the standards they are using because they have had such a positive impact.”
“This is the test used by the commission in Scotland, and we think it strikes the right balance to allow the courts to consider and correct miscarriages of justice when they occur,” Lametti said, noting wrongful convictions are identified in a far greater number in the U.K. experience than in Canada.
“That tells us that there is something amiss with our current process, in terms of accessibility to people who believe they have been wrongfully convicted,” Lametti remarked. “The U.K. and Scotland have a lower standard. In some places, it is simply in the interest of justice.”
Lametti said Canada’s criminal justice system processes hundreds of thousands of criminal cases every year, resulting in approximately 250,000 convictions.
There are likely “many more” wrongful convictions in Canada than those that are submitted for a ministerial review under the current process, he pointed out. “Some studies conducted in the United States have estimated that it may fall in the range of three per cent to six per cent in that country. An error rate in Canada of only 0.05 per cent of people sentenced to custody would result in approximately 450 wrongful convictions per year.”
Yet in the two decades since 2003, only 187 applications for review, in total, have been submitted for ministerial review, Lametti said. “This tells us that there are many more cases out there.”
At the report stage of Bill C-40, the Conservatives tried unsuccessfully to amend the proposed legislation, objecting, for example, to a change made at the justice committee that eliminated a provision requiring the person seeking judicial review of their conviction to have exhausted all available appeal mechanisms. “In our view, that creates a competitive criminal justice system, which is simply unnecessary,” Van Popta said. “David Milgaard’s problem was never the lack of an appeal mechanism; it was the cumbersome system. Let us fix that and we will happily support the bill.”
The Conservatives also objected to the lowering of the threshold for sending a case back to the courts.
Lockyer said a future Conservative or government of another political stripe “could well” try to raise the threshold applied by the commission. “I think it would be unfortunate if the test were made a harder test or a higher test than it is in the present Bill C-40,” he said.
But even if the threshold was raised, “we’d still be better off than we are now,” he said, given that the independent expert commission is expected to provide a more timely and effective route for addressing wrongful conviction claims than the very slow ministerial review process.
“At the end of the day, the most important thing is that we have a proper process to address claims of wrongful conviction,” Lockyer stressed. “That’s what we need, and the wrongly convicted need it forthwith, as soon as possible!”
Innocence Canada has a number of miscarriage of justice claims “ready to go,” he remarked.
“We have some applications that we’re reluctant to put through the ministerial review process … We’d rather put [them] through this new commission process because the commissioners are required [in Bill C-40] to have a particular expertise in addressing wrongful conviction claims.”
Bill C-40, as passed by the Commons, would:
- establish an independent body, called the Commission for the Review of Errors in the Justice System;
- replace the review process in Part XXI.1 of the Criminal Code with a process whereby applications for review of declarations or verdicts on the grounds of miscarriage of justice are made to the commission, rather than to the minister of justice;
- confer powers of investigation on the commission;
- provide that the commission may, if it has reasonable grounds to conclude that a miscarriage of justice may have occurred and if it considers that it is in the interests of justice to do so, order a new trial or hearing or refer the matter back to the Court of Appeal;
- authorize the commission to provide support to applicants in need and to inform the public, including potential applicants, about its mission and miscarriages of justice; and
- require the commission to adopt and publish policies and to submit and publish annual reports containing demographic and performance measurement data.
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.