Order Fixing the Day on Which this Order is Made as the Day on Which Sections 1 and 4 and 14 to 18 of the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) Come into Force: SI/2025-27

Canada Gazette, Part II, Volume 159, Number 7

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SI/2025-27 March 26, 2025

MISCARRIAGE OF JUSTICE REVIEW COMMISSION ACT (DAVID AND JOYCE MILGAARD’S LAW)

Order Fixing the Day on Which this Order is Made as the Day on Which Sections 1 and 4 and 14 to 18 of the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) Come into Force

P.C. 2025-290 March 6, 2025

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, under section 20 of the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), chapter 33 of the Statutes of Canada, 2024, fixes the day on which this Order is made as the day on which sections 1 and 4 and 14 to 18 of that Act come into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order fixes the day on which it is made as the day on which sections 1 and 4 and 14 to 18 of the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) come into force. The provisions stipulate the short title of the Act, amend the Criminal Code by adding Part XXI.2 and make consequential amendments to other Acts.

Objective

The objective of this Order is to bring into force the new Part XXI.2 of the Criminal Code and related consequential amendments to establish the new Miscarriage of Justice Review Commission and allow other implementation steps to be taken to prepare for the operational launch of the Commission. This advances the establishment of an independent Miscarriage of Justice Review Commission to improve access to justice for potentially wrongly convicted people to have their miscarriage of justice applications considered.

Background

While rare, miscarriages of justice do occur and can be discovered after criminal court processes conclude. Currently, the federal Minister of Justice has the authority to review miscarriage of justice applications and order a new trial or appeal where there is a reasonable basis to conclude that a miscarriage of justice likely occurred. The current process is lengthy and onerous for applicants. Evidence also suggests that it has been failing to identify and address potential wrongful convictions, particularly among Indigenous peoples, women, and racialized or marginalized communities.

To help remove systemic barriers and provide more supports to potentially wrongly convicted people and make it easier and faster to have their applications reviewed, on February 16, 2023, the Minister of Justice and Attorney General of Canada introduced Bill C-40, the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law). The bill proposed to amend the Criminal Code to establish an independent commission to review, investigate, and decide which criminal cases should be returned to the justice system due to a potential miscarriage of justice. Bill C-40 received Royal Assent on December 17, 2024.

The reforms replace the existing ministerial review process in Part XXI.1 of the Criminal Code and add a new Part XXI.2 which establishes an independent commission to review miscarriage of justice applications.

This Order brings into force the new Part XXI.2 of the Criminal Code to establish the new independent commission to administer the miscarriage of justice review process and the consequential amendments to the Access to Information Act, the Financial Administration Act, the Privacy Act and to the Public Service Superannuation Act.

The provisions Part XXI.2 of the Criminal Code provide that the Commission will include one full-time Chief Commissioner and at least four, and up to eight, full- or part-time commissioners, all appointed by the Governor in Council, on the recommendation of the Minister of Justice. Commissioners will reflect Canada’s diversity, considering gender equality and the over-representation of certain groups in the justice system such as Indigenous peoples, Black, and racialized Canadians.

Among other things, the Commission will be authorized to support:

The Commission’s decisions will be made public for greater transparency and to raise awareness about wrongful convictions. Annual reports will be prepared and tabled in Parliament, as well as published on the Commission’s website, as provided by the legislation.

The location of the Commission will be designated by the Governor in Council through a separate process.

The amended Part XXI.1 of the Criminal Code, which contains the powers to review, investigate and decide which matters should be referred back to the courts for a new trial or appeal, will be brought into force separately at a later time, once the Commission is ready to be fully operational and start receiving applications.

Implications

This Order brings into force a new Part XXI.2 of the Criminal Code, along with consequential amendments to other Acts, to establish the new Miscarriage of Justice Review Commission and allow for other necessary implementation steps to be taken before the Commission can be fully operational, such as the appointment of commissioners, the hiring of staff, the development of procedural policies and putting in place financial and operational systems. The consequential amendments to other Acts will ensure the Commission is part of the core public service and subject to applicable laws, policies, and directives.

While rare, miscarriages of justice do occur and can be discovered after criminal court processes conclude. Evidence suggests that the current system has been failing to identify and address potential wrongful convictions, particularly among Indigenous peoples, women, and racialized or marginalized communities. Despite their over-representation in the criminal justice system, there have been few wrongful convictions identified within these groups.

An independent commission dedicated exclusively to miscarriage of justice reviews will help improve access to justice by making it easier and faster for potentially wrongly convicted people to have their applications reviewed, including for Indigenous peoples, Black persons, and members of marginalized communities.

Once operational, the new Commission may receive more applications than the current ministerial review system. The Commission is expected to have a higher workload, which could impact the provinces and territories. Their views and concerns were considered in the drafting of the Act. All criminal justice system partners are committed to ensuring the integrity and proper functioning of the justice system and actively working towards preventing wrongful convictions from occurring.

Until the amended Part XXI.1 of the Criminal Code is brought into force, the existing criminal conviction review process will remain in effect. This means that the Criminal Conviction Review Group in the Department of Justice will continue to review miscarriage of justice applications until the new independent Commission is operational. The appointment of the Chief and other commissioners, the hiring of staff, the development of procedural policies, the set-up of the head office and financial and operational systems will occur during the implementation stage (between the coming into force of Part XXI.2 and the coming into force of Part XXI.1).

Budget 2023 proposed to provide $83.9 million over five years, starting in 2023-24, and $18.7 million ongoing for the new Commission.

Consultations

The Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) resulted from extensive consultations with provinces and territories, stakeholders, organizations, communities, legal practitioners, and existing commissions in other countries.

In March 2021, the Minister of Justice appointed retired judges, the Honourable Harry LaForme and the Honourable Juanita Westmoreland-TraorĂ©, to lead consultations and provide options on forming an independent commission. Consultations were held from June to September 2021 with interested stakeholders, as well as representatives of criminal case review commissions abroad. They submitted a report summarizing the input gathered and outlining options on the path forward.

The creation of an independent commission responds to calls from stakeholders and advocates for the wrongly convicted and follows the establishment of similar independent commissions in other countries, such as England, Wales and Northern Ireland, Scotland, and New Zealand. The creation of such commissions in these jurisdictions has led to significantly more applications being made and a higher number of wrongful convictions being identified and remedied, compared to Canada.

Contact

Julie Besner
Senior Counsel
Public Law and Legislative Services Sector
Justice Canada
Telephone: 343‑571‑7944
Email: julie.besner@justice.gc.ca