4. Legislation

Bill C-40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law)

Bill C-40 proposes to reform the miscarriage of justice review process in the Criminal Code and establish an independent Miscarriage of Justice Review Commission to review, investigate and decide which cases should be returned to the justice system due to a potential miscarriage of justice.

Background

The legislative reforms proposed in Bill C-40, which was introduced on February 16, 2023, would allow the Government of Canada to implement its plan to establish a new commission, as an independent administrative body, to review miscarriage of justice applications. Bill C-40 proposes to amend the Criminal Code to, among other things:

  1. establish an independent body to be called the Miscarriage of Justice Review Commission;
  2. replace the review process set out in Part XXI.1 of the Criminal Code 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;
  3. confer on the Commission powers of investigation to carry out its functions;
  4. 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;
  5. 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 require the Commission to make and publish policies and to present and publish annual reports that include demographic and performance measurement data.

Since the Bill was introduced, and particularly since the Standing Committee on Justice and Human Rights started its study on October 31, 2023, many interested stakeholders have expressed concerns about the need for adequate funding in order to ensure that the Commission will have the capacity to handle a higher volume of applications and make decisions faster than the current ministerial review process.

Budget 2023 provided $83.9 million over five years, starting in 2023-24, and $18.7 million ongoing for the independent Miscarriage of Justice Review Commission. The announced funding would allow for the full complement of commissioners to be appointed: a full-time Chief Commissioner and 8 part-time commissioners. The announced funding would also allow for significantly more staff, including case reviewers, compared to currently, as well as for programs such as outreach and supports to applicants in need.

An independent commission dedicated exclusively to miscarriage of justice reviews will help improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed, including for Indigenous people, Black persons, and members of other racialized or marginalized populations. Addressing miscarriages of justice more quickly will help to mitigate the devastating impact they have on the convicted person, their family, victims and the integrity of justice system. The Government of Canada is committed to reforming and improving Canada’s justice system to ensure that all Canadians have access to fair and just treatment before the law. Bill C-40 seeks to make progress on that commitment and, in doing so, increase public confidence in the justice system.

Bill C-63, An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts

Bill C-63 proposes to hold social media services accountable for addressing harmful content on their platforms and for creating a safer online space that protects all people in Canada, especially children.

Background

Bill C-63

On February 26th, you tabled Bill C-63 in Parliament, which will enact the new Online Harms Act and amend the Criminal Code, Canadian Human Rights Act and the Mandatory Reporting Act. The main goal is to make the online environment a more inclusive and safer place for Canadians.

Under the new Online Harms Act, social media services would be required to ensure that tools and processes are in place to make the Internet a safer place for Canadians. It is essential that the most vulnerable Canadians, including children and equity-deserving groups are protected online and have a safe space to express themselves and communicate with others.

The Online Harms Act aims to enhance online safety by reducing the exposure to harmful content on social media services, with a special emphasis on protecting children. This is in line with risk-based or duty of care approaches that jurisdictions like the UK, Australia and the EU have adopted.

The Act would apply to social media services, which includes user-uploaded adult content services and live-streaming services, but does not include private messaging.

The Act defines 7 categories of harmful content, which would be regulated:

  1. Content that sexually victimizes a child or revictimizes a survivor
  2. Content used to bully a child;
  3. Content that induces a child to harm themselves.
  4. Content that incites violent extremism or terrorism
  5. Content that incites violence
  6. Content that foments hatred
  7. Intimate content communicated without consent, which includes deepfakes of intimate images

Obligations for regulated entities

The Act sets out 3 duties that platforms will need to adhere to:

  1. Duty to Act Responsibly
    • Regulated services would need to implement measures that are adequate to mitigate the risk of exposure to harmful content on the service
    • Provide users with user empowerment tools including the ability to flag content or block other users
    • Submitting Digital Safety Plans; disclosing any analysis of new risks or trends related to online safety; and provide anonymized data sets to qualified researchers
  2. Duty to Protect Children
    • Regulated services would need to integrate design features to protect children, such as age-appropriate design features as we have seen in the UK.
  3. Duty to Make Certain Content Inaccessible
    • Regulated services would need to remove two types of content within 24 hours of becoming aware of it, pending final decision - Content that sexually victimizes a child or revictimizes a survivor; and Intimate content communicated without consent

New machinery and subsequent funding implications

The Online Harms Act would create a new Digital Safety Commission of Canada to oversee and enforce the Act; a Digital Safety Ombudsperson of Canada to advocate for and support victims and a Digital Safety Office of Canada which supports both administratively.

The Digital Safety Commission would carry out its mandate by, among other things: enforcing legislative and regulatory obligations and holding online services accountable for their responsibilities under the Online Harms Act through auditing for compliance, issuing compliance orders, and penalizing services that fail to comply; intaking, triaging and administering user complaints and reports about services’ obligations under all three duties; and, enforcing the removal of content that sexually victimizes a child or revictimizes a survivor and intimate content communicated without consent.

The Digital Safety Ombudsperson would act as a point of contact and a resource for users and victims and would advocate for users’ needs and interests on systemic issues regarding online safety. Appointed on a five-year term, the Ombudsperson would: gather information from users on an ongoing basis, and issue calls for written submissions to solicit views on specific issues; conduct consultations with users and victims; direct users to proper resources such as law enforcement or help lines; and develop advice, publish public reports and advocate for users to the Commission, the Government, and social media services calling attention to frequent, severe, or systemic issues from a user perspective.

The Digital Safety Office’s mandate would be to support the operations of both the Commission and the Ombudsperson.

The Department of Canadian Heritage would be responsible for supporting the standing up of this new machinery. Funding would be required for the new regulatory machinery once the new legislation comes into force and the Chief Executive Officer of the Office is appointed and receives its financial authorities from Treasury Board.

Amendments to other legislation

This Bill also makes important changes to three other Acts, which contributes to the goal of protecting of people in Canada, including the most vulnerable:

  1. Amendments to the Criminal Code
    • Creating a new standalone hate crime that would apply to every offence in the Criminal Code and in any other Act of Parliament; increasing the penalties for the four existing hate propaganda offences; creating a new peace bond designed to prevent hate propaganda offences and hate crimes; and a definition of hatred based on the existing Canadian case law (focusing on “detestation or vilification”) would be added.
  2. Canadian Human Rights Act
    • Amendments would define a new discriminatory practice of communicating hate speech online; empower people to file complaints against the person posting the hate speech to the Canadian Human Rights Commission.
  3. Amendments to the Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service
    • Clarifying that the Act applies to all types of Internet services, including social media services and other application-based services; improving coordination of reporting by creating authority to centralize mandatory reporting of child pornography offences to the police; assisting law enforcement and prosecutors by extending data preservation; providing authority for annual reports; and requiring that services send transmission data to police with respect to content that is manifestly child pornography.

Bill S-11, A Fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law (Harmonization)

The Fourth omnibus harmonization bill, passed by the Senate and introduced in the House of Commons on February 7, 2023, aims to harmonize federal legislation with the private law of the provinces and territories in order for each linguistic version to take into account civil law and common law.

Background

Bill S-11, the fourth harmonization bill, is a result of the harmonization initiative established by the Department of Justice (DOJ) following the coming into force of the Civil Code of Québec (C.c.Q.) in 1994. In 1995, the DOJ adopted the Policy on Legislative Bijuralism. This policy aims to provide Canadians with access to federal legislative texts that, when dealing with private law issues, reflect, in both official languages, the legal system that applies to them. Since 1998, the DOJ has harmonized federal legislation with the private law of the provinces and territories, in particular with the civil law of Quebec. To date, three harmonization bills have been adopted (2001, 2004 and 2011).

Harmonization has its basis in Canadian bijuralism. Bijuralism is one of the manifestations of Canadian pluralism and the expression of the coexistence of the civil law and common law in Canada. Subsection 92(13) of the Constitution Act, 1867 gives rise to this co-existence by giving the provinces a broad residuary power over property and civil rights. Federal legislation also grants this power over property and civil rights to the territories.

Bill S-11 would amend 51 statutes that fall under the responsibility of the following nine departments: Agriculture and Agri-Food Canada, National Defence, Finance Canada, Innovation, Science and Economic Development Canada, Justice Canada, Canadian Heritage, Health Canada, Treasury Board Secretariat and Public Services and Procurement Canada.

The Bill would make a number of harmonization amendments to the following four statutes that govern financial institutions: the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act and the Trust and Loan Companies Act. It would also harmonize a number of other statutes, including the Access to Information Act, the Canada Evidence Act, the Financial Administration Act, the Canadian Human Rights Act, the Interpretation Act, the Privacy Act and the Official Languages Act.

Finally, the Bill contains consequential harmonization amendments to three statutes, which are necessary in order to ensure consistency with the harmonization proposals to the four statutes that govern financial institutions.

The proposed amendments are technical in nature and are non-controversial. The resulting changes are terminological. These changes are not intended to alter the legislative policy underlying the provisions in question. Rather, they ensure that the policy behind these provisions is implemented in light of both the common law and the civil law, in both official languages.

A public consultation was held from February 1st to May 1st, 2017. A consultation document which included harmonization proposals was posted on the DOJ’s public consultations internet site for the duration of the consultation period. Interested Canadians were invited to comment. In accordance with the established practice, the consultation document was also sent to more than four hundred key stakeholders and members of the legal community, including: provincial and territorial Justice Ministers and their Deputy Ministers; Canadian associations of provincial and superior court judges; Canadian Judicial Council; provincial and territorial law societies; la Chambre des notaires du Québec; the Canadian Bar Association; associations of French language jurists outside Quebec; law professors and experts on civil law and comparative law; interested law practitioners; and, financial institutions sector stakeholders.

Results from the public consultation have shown that the harmonization initiative continues to be favourably received by the legal community stakeholders and has confirmed that stakeholders support the proposed amendments included in the consultation document.

Bill S-11 was passed without amendment by the Senate on December 15, 2022. The Bill was read a first time in the House of Commons on February 7, 2023.

Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts

Bill S-13 proposes to add a section 35 related non-derogation clause to the Interpretation Act, repeal most existing non-derogation clauses in other acts, and make coordinating amendments.

Background

Key dates in the parliamentary process so far include:

Miscellaneous Statute Law Amendment Bill

Bill to correct certain anomalies, inconsistencies, outdated terminology and errors and to deal with other matters of a noncontroversial and uncomplicated nature in the Statutes and Regulations of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect.

Background

The current proposals document is part of the thirteenth Miscellaneous Statute Law Amendment Program (MSLA) process. This initiative was established by the Department of Justice, with the approval of Cabinet in 1975 as a way to accelerate the adoption of minor amendments of a non-controversial nature to be made to federal legislation. Since the MSLA program was established, 12 MSLA Acts have been passed; the most recent in 2017.

The MSLA program is a periodic legislative exercise used to correct anomalies, inconsistencies, outdated terminology or errors in federal statutes in one bill, instead of making such amendments in the context of a separate legislative initiative. To qualify, a proposed amendment must meet the following criteria:

[Redacted]

The parliamentary process for introducing an MSLA bill is different from the usual process. A document containing proposed amendments is tabled for review by a committee of each House. The document containing the proposed amendments referred to the Standing Committee on Justice and Human Rights (LCJC) and to the Standing Committee on Legal and Constitutional Affairs (JUST). Those committees review the proposed amendments and present a report of their findings to their respective Houses. Since a proposed amendment must not be controversial, approval of a proposed amendment requires the consensus of the committee. Therefore, if a committee member objects to a proposed amendment, it will not be included in the MSLA bill. The bill is then drafted based on the reports of the committees.

The thirteenth MSLA process would amend 58 statutes that fall under the responsibility of 19 departments. The proposals document suggests amendments to modernize outdated terminology in many acts including: the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act and the Trust and Loan Companies Act and the Aeronautics Act. It would also correct the name of courts and tribunals in other statutes, including the Administrative Monetary Penalties Act, the Canadian Human Rights Act, the Criminal Code, the Divorce Act, the Interpretation Act, and the Official Languages Act. Finally, the proposals document contains proposed amendments to address issues identified by the Standing Joint Committee for the Scrutiny of Regulations, to align the French and English text, to modernize language and to correct errors.

The Proposals document was tabled in the Senate on June 20, 2023 and has been studied by the LCJC. The LCJC tabled its Twenty-First Report on December 12, 2023 in which, it excluded one proposal as it did not meet the non-controversial criteria for the MSLA, and three others were withdrawn from the process as they were included in other legislative initiatives.

The Proposals document was also tabled in the House of Commons on June 16, 2023 and was studied by the JUST Committee. The Committee’s Twenty-First report tabled on February 12, 2024 also rejected four proposals.