First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023 |
HOUSE OF COMMONS OF CANADA |
An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews)
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FIRST READING, February 16, 2023
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MINISTER OF JUSTICE |
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews)”.
This enactment amends the Criminal Code to, among other things,
(a) establish an independent body to be called the Miscarriage of Justice Review Commission;
(b) replace the review process set out in Part XXI.1 with a process in which applications for reviews of findings and verdicts on the grounds of miscarriage of justice are made to the Commission instead of to the Minister of Justice;
(c) confer on the Commission powers of investigation to carry out its functions;
(d) provide that the Commission may direct a new trial or hearing or refer a matter to the court of appeal if it 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;
(e) authorize the Commission to provide supports to applicants in need and to provide the public, including potential applicants, with information about its mandate and miscarriages of justice; and
(f) require the Commission to make and publish policies and to present and publish annual reports that include demographic and performance measurement data.
The enactment also makes consequential amendments to other Acts and repeals the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice.
Available on the House of Commons website at the following address:
www.ourcommons.ca
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1st Session, 44th Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023 |
HOUSE OF COMMONS OF CANADA |
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) |
His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
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
2002, c. 13, s. 66
2002, c. 13, s. 71
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)
End of inserted block Start of inserted block(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.
End of inserted block(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.
End of inserted block(a) the amount of time that has passed since the final judgment of the court of appeal;
(b) the reasons why the finding or verdict was not appealed to 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 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.
End of inserted block(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.
End of inserted block(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.
End of inserted blockapplicant 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)
End of inserted block Start of inserted block(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.
End of inserted block(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.
End of inserted block(a) direct employees to provide applicants and potential applicants with general information and guidance on applications and each stage of the review process;
(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.
End of inserted block(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.
End of inserted block(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), disagreggated, 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.
End of inserted blockapplicant has the same meaning as in section 696.1. (demandeur)
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)
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.
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.
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.
(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.
(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.
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.
12 Consent that is given in accordance with section 9 or 11 is irrevocable.
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.
R.S., c. A-1
Miscarriage of Justice Review Commission
Commission d’examen des erreurs du système judiciaire
R.S., c. F-11
Miscarriage of Justice Review Commission
Commission d’examen des erreurs du système judiciaire
and a corresponding reference in column II to “Minister of Justice”.
Miscarriage of Justice Review Commission
Commission d’examen des erreurs du système judiciaire
R.S., c. P-21
Miscarriage of Justice Review Commission
Commission d’examen des erreurs du système judiciaire
R.S., c. P-36
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
SOR/2002-416
20 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
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(7) If, with respect to any person, the Minister of Justice gives a direction or makes a reference under section 696.3, this section applies to the release or detention of that person pending the hearing and determination of the reference as though that person were an appellant in an appeal described in paragraph (1)(a).
696.1 (1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament or has been found to be a dangerous offender or a long-term offender under Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted.
(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.
696.2 (1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations.
(2) For the purpose of any investigation in relation to an application under this Part, the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.
(3) Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2).
696.3 (1) In this section, the court of appeal means the court of appeal, as defined by the definition court of appeal in section 2, for the province in which the person to whom an application under this Part relates was tried.
(2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly.
(3) On an application under this Part, the Minister of Justice may
(a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,
(i) direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV, a new hearing under that Part, or
(ii) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person found to be a dangerous offender or a long-term offender under Part XXIV, as the case may be; or
(b) dismiss the application.
(4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal.
696.4 In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including
(a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV;
(b) the relevance and reliability of information that is presented in connection with the application; and
(c) the fact that an application under this Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.
696.5 The Minister of Justice shall within six months after the end of each financial year submit an annual report to Parliament in relation to applications under this Part.
696.6 The Governor in Council may make regulations
(a) prescribing the form of, the information required to be contained in and any documents that must accompany an application under this Part;
(b) prescribing the process of review in relation to applications under this Part, which may include the following stages, namely, preliminary assessment, investigation, reporting on investigation and decision; and
(c) respecting the form and content of the annual report under section 696.5.