Justice Minister David Lametti has introduced legislation to establish a new independent body for reviewing wrongful convictions. The new body would be given powers currently held by the Justice Minister.Adrian Wyld/The Canadian Press
Justice Minister David Lametti has introduced legislation to establish a new independent body for reviewing wrongful convictions, which he says would make it faster and easier to get cases examined, and encourage Black and Indigenous applicants to come forward, even if they have pleaded guilty.
Under the current system, the federal justice minister is responsible for looking into potential miscarriages of justice. That can take years, and has produced just a trickle of findings in favour of prisoners, roughly one a year.
The legislation, which still must be debated and approved by Parliament, would establish a Miscarriage of Justice Review Commission. The new body would be given powers currently held by the Justice Minister, including the ability to require witnesses to testify under oath, and to compel the production of evidence. If it were to find that a miscarriage of justice might have occurred, it would have the authority to order a new trial, or send the case to an appellate court for a hearing.
During a Thursday news conference, Mr. Lametti paid tribute to the late David Milgaard of Manitoba, who served 23 years in prison for a sex killing he did not commit, and his late mother Joyce Milgaard, who pressed the government for years before the ministerial process sent his case to the Supreme Court.
The court set his conviction aside, and DNA evidence ultimately exonerated him and led to the conviction of another man.
Mr. Lametti said he hopes parliamentarians keep Mr. and Ms. Milgaard’s fight for justice in mind, and that lawmakers will join him in swiftly passing the bill. He said the new review body is critical to public confidence in the criminal justice system.
He called wrongful convictions rare. But Harry LaForme, a former appeal court judge who in late 2021 co-wrote a report for Mr. Lametti that recommended the establishment of an independent commission, disagreed.
“There’s hundreds of people in prison right now that didn’t do it, didn’t commit the crime,” he said in an interview.
If the commission is established, he said, he expects more people than in the past will apply for reviews, because the new body would be independent of government.
“It’s a good start,” he said. But, he added, “A lot of things depend on the budget.”
No budget for the commission has been proposed yet. The review body would have a wide mandate. Among other things, it would be responsible for reaching out to inmates, and supporting those who may lack the resources to apply for reviews.
The law would instruct the commission to pay attention to the particular circumstances of Indigenous and Black offenders. Both groups are over-represented in detention.
In England, a similar review body has existed for a quarter-century, leading to 800 convictions being sent back to the courts, according to lawyer James Lockyer, who represented Mr. Milgaard in his attempts to clear his name. Over the same time period, he said, Canada’s ministerial review process has led to just 29 wrongful convictions being referred back to the courts as probable miscarriages of justice.
“It’s a great day,” Mr. Lockyer said in an interview. “Thirty years I’ve been at this. I’m so happy.”
Calls for an independent review body go at least as far back as 1989, when a royal commission of inquiry into the wrongful conviction of Donald Marshall Jr. in Nova Scotia recommended its creation.
Since then, five more inquiries into wrongful convictions have also called for an independent review body, according to Ronald Dalton, co-president of Innocence Canada, an advocacy group.
Mr. Dalton is a former bank manager who spent eight and a half years in prison after a 1989 wrongful murder conviction for his wife’s death in Newfoundland and Labrador.
“I heard a lot of wonderful things said today,” he said, “but of course, what matters is what this will look like when it rolls out.”
Susan Milgaard, Mr. Milgaard’s sister, who joined Mr. Lockyer at Mr. Lametti’s news conference, was effusive. “I wanted to say what my mother would say right now: It’s a glorious day. Hallelujah.”
The review commission would have a full-time chief commissioner and four to eight other commissioners, either full- or part-time, to be appointed by cabinet. At least one-third would have to be lawyers with 10 years or more experience practising criminal law.
Mr. Lametti emphasized that the commission would not be an appeal body. Applicants would need to have exhausted their rights of appeal, though they would not have to have appealed to the Supreme Court of Canada.
The commission would be able conduct an investigation if it had reasonable grounds to believe a miscarriage of justice had occurred, or that the investigation was in the interest of justice. It would need to consider whether a new matter of significance in a particular case had not already been considered by the courts. During or after a review, an applicant would be able to seek bail at a court of appeal.
Mr. Lockyer said that last week the ministerial review process led to a finding of a likely miscarriage of justice involving Robert Sanderson of Manitoba, who has been behind bars more than 20 years for three murders. In December, a similar finding was made in the murder case of Wade Skiffington of Newfoundland and Labrador. Each case took about six years from the time of application, Mr. Lockyer, who represented the men, said.
But even applying for review under the current system is a lengthy process. Currently, although the Justice Minister has investigative powers, prisoners must present thorough dossiers to get reviews started. That process can take years, or even decades, and typically requires the help of lawyers and innocence projects, Mr. Lockyer said. He said he believes a review commission could reduce that burden dramatically.
Mona Duckett, a senior lawyer in Edmonton, said the proposed review commission is “very welcome and long overdue.”
Randall Garrison, an MP and the NDP’s justice critic, also welcomed the prospect of the new commission.
“New Democrats have been pushing to amend the process of how wrongful conviction complaints are reviewed for years, so although this change comes after years of the Liberals delaying, it is a welcomed first step at ensuring fairness and equality,” he said.
The Conservative Party did not respond to a request for comment.