Liberals move to create independent commission to probe miscarriage of justice claims

Justice Minister David Lametti is introducing legislation to create a commission independent of government tasked with reviewing miscarriage of justice claims.

The Miscarriage of Justice Review Commission Act, otherwise known as David and Joyce Milgaard's Law, was tabled in Parliament Thursday morning.

The legislation would create a commission to review and investigate criminal cases and decide which ones should be sent back into the system to address possible wrongful convictions.

"Our government believes that a fair and equitable criminal justice system must guard against potential miscarriages of justice," said Lametti in a media statement.

"David and Joyce Milgaard's Law is a critical step forward in establishing an independent review process to examine whether a miscarriage of justice may have occurred."

David Milgaard spent 23 years in prison for a rape and murder he did not commit. He was incarcerated at the age of 16.

Right now, those who believe they were wrongly convicted must apply to the minister of justice's office for a review. 

If the minister feels there is a reasonable basis to conclude that a miscarriage of justice occurred, they can refer the case to a provincial court of appeal or order a new trial. This process dates back to 1892. 

In 1989, the commission looking into the false murder conviction of 17-year-old Donald Marshall called for an independent commission to probe possible miscarriages of justice.

In 2002, the federal government responded to that call by creating the Criminal Conviction Review Group within the justice department.

The group's job is to review applications and make recommendations to the minister of justice.

Between 1989 and the 2008 commission of inquiry into David Milgaard's wrongful commission, seven public inquiries into miscarriages of justice asked for an independent commission, according to the Wrongful Conviction Law Review (WCLR).

On Wednesday in Ottawa, Milgaard's sister Susan welcomed the news and urged Canadians to keep pushing for justice.

"What my mother would say right now — it's a glorious day. Hallelujah," she said. "[My mother] fought so long and so hard along with David for this day … I know she would be very proud to say that she is a Canadian and all of Canada has done this."

The WCLR says the current system is flawed because it's not independent and it requires an applicant, who may not understand the law or have enough investigative expertise to file an application to the review group.

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"For people who have been wrongfully convicted...or come from a racialized community...they will feel - we hope - more confident going into an independent body, than something that would come from the Justice Department," says Justice Minister David Lametti.

Independent, equitable 

Lametti said the commission will also help visible minorities and women who need a better way to redress miscarriages of justice.

"When I look at the files that come to me, I see a clear pattern. The applicants are overwhelmingly white men. The prison population does not look like that," Lametti said.

The government says the new commission will remove barriers to access for Indigenous people, Black people and members of marginalized communities.

"More people will apply with lesser offences. We've seen a number of very high profile homicide cases which eventually get to me," Lametti said. 

"There's a whole swath of other people, many of whom statistically must be Indigenous or Black, who may have been asked, convinced to plead guilty even though they weren't and this is meant to be accessible to them."

Watch:  'You cannot get past it': Susan Milgaard on the cost of her brother's imprisonment"

‘You cannot get past it': Susan Milgaard discusses the cost of her brother's imprisonment

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David Milgaard's sister Susan talks about the emotional and personal loss caused by her brother's wrongful conviction.

NDP MP Randall Garrison said his caucus welcomed the legislation. He said he hopes it addresses the disadvantages faced by Black and Indigenous people applying to overturn wrongful convictions.

"Too often our system has failed Indigenous and racialized Canadians," Garrison said Wednesday. "We're glad to see that legislation move forward but we're going to be looking very closely to make sure that the commission has the powers it needs."

A release from the Department of Justice says the new Miscarriage of Justice Review Commission will be completely independent. Once it's established, the government says, "applications would no longer be decided by the minister of justice."

The commission will consist of five to nine commissioners. Like the previous review group, it will have the power to compel the production of documents and to have witnesses testify under oath.

The commission will not have the power to decide innocence or guilt. If it feels a miscarriage of justice may have occurred, it can order a new trial or send the case to provincial appeal courts.

The commission is not an alternative to the justice system. Applicants must first exhaust their rights of appeal through the courts before requesting a review by the commission.

Once the new commission is up and running, applicants who currently have an application before the minister can ask to have it transferred to the new commission.