Bill C-40: Act modifying the Criminal Code, modifying other laws accordingly and repealing a regulation (revision of judicial errors)

The following considerations support the compatibility of the proposed provision on the provisional release with article 7 of the Charter. When he examined the bill, the Minister of Justice has not noted any possible incompatibility between this provision and the fundamental principles of justice set out in article 7. The proposed provision concerning the provisional release would make it possible to put a person in freedom according to the same rules and considerations which apply when a person appeals to his declaration of guilt. These principles are well established and regularly applied by the courts. This process requires the court that it performs a fair and personalized evaluation of the person’s situation when it is determined if it should be released and, if necessary, under what conditions.

The C40 Cities Climate Leadership Group was created by Ken Livingstone in 2006. Its purpose is to federate the initiatives of big cities in order to fight against global warming . The group plans to develop and implement political measures and programs that will reduce the emission of greenhouse gases and limit climate risks.

It is made up of 85 metropolises, including New York, Vancouver, Paris, Rome, Moscow, Milan, San Francisco, Athens, Bombay, Hong Kong or Buenos Aires. These cities alone represent a quarter of the world economy and almost 70 % of greenhouse gas emissions.

The C40 is currently chaired by Anne Hidalgo, mayor of Paris. She works jointly with the mayors of cities belonging to the group to highlight Parisian actions with regard to the fight against global warming . The work carried out on the reduction of traffic in Paris, the prohibition of polluting cars or the pedestrianization of the tracks on the banks of the right bank are part of the actions carried out in agreement with the objectives of the group.

In order to develop its projects, the C40 has several financial partners such as the Bloomberg Philanthropies Foundation and the Clinton Foundation.

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Bill C-40: Law modifying the criminal code, modifying other laws accordingly and repealing a regulation (revision of judicial errors)

Article 4.2 of the law on the Ministry of Justice requires that the Minister of Justice is preparing a “statement concerning the Charter” for each government bill in order to clarify the public and parliamentary debate relating to the bill in question. One of the most important responsibilities of the Minister of Justice is to examine bills to assess whether they are compatible with the Canadian Charter of Rights and Freedoms (the chart). When he files a statement concerning the Charter, the Minister sets out some of the main considerations having guided the examination to verify the compatibility of the bill with the Charter. The statement lists the rights and freedoms guaranteed by the Charter which are likely to be referred to by the bill, and briefly states the nature of these repercussions having regard to the measures proposed.

The statements concerning the Charter also present the reasons that may justify the restrictions that a bill could impose on the rights and freedoms guaranteed by the Charter. Article 1 of the Charter provides that these rights and freedoms may be subject to reasonable limits, provided that they are prescribed by a rule of law and that their justifications can be demonstrated within the framework of a free and democratic society. Thus, Parliament can adopt laws which limit the rights and freedoms guaranteed by the Charter. There will be a violation of the Charter only if the justification of these limits cannot be demonstrated in the context of a free and democratic society.

The statements concerning the Charter aim to present to the public and parliament legal information relating to the possible effects of a bill on rights and freedoms, insofar as these effects are not negligible or too theoretical. This is not a detailed presentation of all the possible considerations linked to the Charter. Other constitutional considerations could also be raised during the parliamentary examination and the modification of a bill. A statement does not constitute a legal opinion as to the constitutionality of the bill.

Considerations relating to the Charter

The Minister of Justice examined Bill C-40, Law modifying the criminal code, modifying other laws accordingly and repealing a regulation (revision of judicial errors) In order to identify any inconsistency with the Charter in accordance with its obligation under article 4.1 of the Law on the Ministry of Justice. In his examination, he notably took into account the objectives and characteristics of the bill.

Here is a non-exhaustive analysis of ways in which bill C-40 could involve the rights and freedoms guaranteed by the Charter. It is presented in order to guide the public and parliamentary debate with regard to the bill. It does not constitute an exhaustive description of the entire bill; It is rather focused on the elements that should be taken into account for the purposes of a statement concerning the charter.

Preview

Bill C-40 would replace the current ministerial revision process relating to legal errors under the regime of part XXI.1 of Criminal code. In its place, the bill would create an independent body whose mandate would be to examine the requests for revision presented to it on the ground that a miscarriage of justice would have been committed in a conclusion or a verdict. By the creation of an independent commission which will be devoted exclusively to the examination of judicial errors, Bill C-40 aims to improve access to justice by facilitating and accelerating the examination of requests presented by persons potentially wrongly condemned. The Commission would eliminate obstacles to access for applicants, especially for natives, blacks and members of marginalized communities. The Commission will be authorized by the law to carry out legal education and awareness activities with potential applicants, and will have access to funds to provide support to applicants in need. A faster treatment of legal errors will contribute to the attenuation of the devastating consequences they have on the condemned person, his family, the victims, as well as the judicial system as a whole.

The new commission for revising the errors of the judicial system would be made up of a chief commissioner, who would exercise his charge full -time, and four to eight other commissioners, who would exercise their full -time or part -time load. Bill C-40 provides that, by making its recommendations for appointment to the posts of commissioners, the Minister of Justice seeks to reflect the diversity of Canadian society and takes into account considerations as gender equality and the overrepresented of Certain groups in the criminal justice system, notably blacks and indigenous peoples.

In accordance with Bill C-40, the Commission would be required to examine revision requests as quickly as possible and to submit regular updates to the status of their requests. Within the framework of its examination process, the Commission must establish the admissibility of the request, conduct surveys relating to requests for revision on the grounds of miscarriage of judicial, and decide whether it is advisable to grant a compensation. The Commission would be authorized to order the holding of a new trial or a new hearing, or to refer the case to a court of appeal, if it has reasonable reasons to believe that a miscarriage and if she concludes that he is in the interest of justice to do so. By making its decisions, the Commission must take into account, among other factors, the specific difficulties encountered by applicants belonging to certain populations to obtain recovery measures in the event of a miscarriage of justice, particularly with regard to the situation of Aboriginal or black applicants.

Provisional release by legal

Paragraph 679 (7) of Criminal code provides for the granting of provisional release in the event that the Minister of Justice orders the holding of a new trial or a new hearing, or refers the case to the Court of Appeal. Bill C-40 would modify this provision in order to take into account the role of the new commission, which would examine, in place of the minister, requests for revision on the grounds that a miscarriage of justice could have been committed. The bill would set out the applicable process to determine the eligibility for release while the Commission ends its examination of a request deemed admissible, pending the holding of a new trial or a new hearing ordered by the Commission, or pending the outcome of a case referred to the Court of Appeal by the Commission. The modified provision would maintain the approach provided for in paragraph 679 (7), according to which eligibility for release under these circumstances is subject to the same rules which apply to a person who appealed to a declaration of guilt, rather than the rules that apply if the person is accused of an offense for the first time.

Article 7 of the Charter guarantees everyone the right to life, freedom and security of their person, and provides that this right can only be undermined with the principles of fundamental justice. As the proposed provision concerning the provisional release states the standard to be applied to determine whether a person who requested a revision will remain incarcerated or will be released, and as he authorizes the Court to impose conditions in the event of release, this provision is likely to involve residual rights to the freedom of incarcerated persons.

The following considerations support the compatibility of the proposed provision on the provisional release with article 7 of the Charter. When he examined the bill, the Minister of Justice has not noted any possible incompatibility between this provision and the fundamental principles of justice set out in article 7. The proposed provision concerning the provisional release would make it possible to put a person in freedom according to the same rules and considerations which apply when a person appeals to his declaration of guilt. These principles are well established and regularly applied by the courts. This process requires the court that it performs a fair and personalized evaluation of the person’s situation when it is determined if it should be released and, if necessary, under what conditions.

Article 11 of the Charter guarantees certain rights to persons accused of an offense, in particular the right not to be deprived without fair cause of a release accompanied by a reasonable deposit, provided for in paragraph). The right to release under bond is a prior right to the trial which applies to any person “charged [e]” within the meaning of article 11, and therefore does not apply in these circumstances. The declaration of guilt towards a person whose request for revision has been deemed admissible by the Commission remains valid even when it orders the holding of a new trial or a new hearing, or returns the Case at the Court of Appeal. This is so because the Commission would not have the power to cancel a conviction. Consequently, a person whose request for revision has been accepted by the Commission would be in a situation similar to that of a person whose declaration of guilt is made on appeal, and would no longer be “charged [e]” in the sense of article 11.

Power to conduct surveys

Bill C-40 would provide that the Commission can conduct a request for a request when it has reasonable reasons for believing that a miscarriage of judicial has been committed or when it considers that it is in the interest of justice to do it. For the purposes of investigation, the commission would have the powers of a commissioner appointed under part I of the Surveys. In particular, it would have the power to convene witnesses and to order them to file elements of evidence orally or in writing, or to produce documents or other relevant documents within the framework of the case being the subject of the ‘exam.

Article 8 of the Charter guarantees protection against excavations, searches or “abusive” seizures. The purpose of this article is to protect anyone from abusive intrusions when there is a reasonable expectation of privacy. A search, search or seizure is reasonable if it is authorized by a law, if the law itself is reasonable (in the sense that it establishes a balance between respect for private life and the interests that the State pursues) And if it is carried out reasonably.

Like the power to conduct surveys that the Commission could have hindered the right to compliance with privacy, it is likely to involve article 8 of the Charter. The following considerations support the compatibility of these powers with article 8. Powers could not be exercised for criminal purposes. Rather, they would aim to support the examination, by the commission, of requests for revision relating to potential judicial errors. Furthermore, they could only be exercised in cases where the Commission has reasonable reasons to believe that a miscarriage of justice may have been committed, or when it judges that it is in the interest of justice to investigate relative to a request. Finally, the Commission would be required to publish its decisions so as to protect confidential information and without harming the good administration of justice in cases where it orders a new hearing or a new trial, or those where it refers the case to A Court of Appeal.