Canada takes long-overdue steps to address injustices in the criminal justice system

National Post, 26 February 2023

Decades after it was first proposed, the government is looking to set up an independent commission to review wrongful convictions

The timing was surely not accidental. The day before the judicial inquiry into the Emergencies Act reported on whether the government was justified in suspending some of the rights and liberties of Canadians, the federal government finally announced something about the deprivation of same for those who were wrongfully convicted.

It was long delayed, but credit should not be denied. Attorney General and Minister of Justice David Lametti did what so many of his predecessors failed to do: he tabled the proposed “miscarriage of justice review commission act.”

It will be called “David and Joyce Milgaard’s law,” after one of Canada’s most famous wrongfully convicted murderers and the mother who never ceased to seek justice for her son — or, more precisely, sought to cease the injustice perpetrated against him.

If passed, the act would 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.”

The minister of justice already has the authority to review convictions and order a new trial or appeal if there is a reasonable basis to conclude that a miscarriage of justice may have occurred. Such reviews are rare, and Department of Justice officials are institutionally disinclined to check the work of their prosecutorial colleagues for errors. The Milgaard law would create a commission independent of the minister and the department.

The proposed commission will have the power to thoroughly examine the work of police and prosecutors. It would have “the mandate to review, investigate and decide which cases should be returned to the justice system due to a potential miscarriage of justice.” Further, it will have the power “to require witnesses to testify under oath, and the power to compel the production of information and evidence, for example from law enforcement.”

It is just a proposal, and even if it becomes law, how effective it will be remains to be seen. But it is a major development. There is cause for two cheers here, if not three just yet.

In 1989, the inquiry into the wrongful conviction of Donald Marshall recommended an independent commission to remove the burden on the wrongfully convicted to establish their innocence against the sheer weight of the massive justice bureaucracy.

Twelve years later, in 2001, the inquiry into Thomas Sophonow’s wrongful conviction, led by Supreme Court Justice Peter Cory, repeated the recommendation. Seven years after that, in 2008, the Milgaard inquiry recommended the same. Seven public inquiries in all have made the recommendation.

In 2002, the federal government established a review commission, but within the Department of Justice. Not being independent, it could only advise the minister, who retained the final decision — subject to all the political pressures faced by any senior minister.

Now, 33 years after that initial recommendation, there is proposed legislation to correct the abuses known to exist in the criminal justice system. The government seems to have been moved by the racial composition of those who are wrongfully convicted.

The justice department explained that the commission would consider “the specific personal factors of the applicant as well as the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention to the circumstances of Indigenous and Black applicants.”

A wrong to any race still smells as sour, but if the added stench of prejudice moved this government to act, then so be it.

The reality is that Canadians do not seem greatly bothered by wrongful convictions. That’s especially true of small-c conservatives. I have banged the drum on abuse in the criminal justice system for years upon years.

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