The Liberals want to set up an independent commission to investigate allegations of miscarriage of justice

Attorney General David Lametti has introduced legislation establishing a Miscarriage of Justice Review Commission to review and investigate possible miscarriages of justice.  (Justin Tang/The Canadian Press - photo credit)

Attorney General David Lametti has introduced legislation establishing a Miscarriage of Justice Review Commission to review and investigate possible miscarriages of justice. (Justin Tang/The Canadian Press – photo credit)

Attorney General David Lametti introduces legislation to set up a commission independent of the government to investigate legal errors.

The Miscarriage of Justice Review Bill, also known as the David and Joyce Milgaard Bill, was introduced in Parliament Thursday morning.

The legislation would set up a commission to review and investigate criminal cases and decide which cases should be returned to the system to address possible wrongful convictions.

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

“David and Joyce Milgaard’s law is a crucial step forward in establishing an independent review process to determine whether there may have been a miscarriage of justice.”

David Milgaard spent 23 years in prison for a rape and murder he did not commit. He was imprisoned when he was 16.

Anyone who believes they have been wrongly convicted must now apply to the Justice Department for a review.

If the minister believes there is reasonable basis for concluding that there has been a miscarriage of justice, he can refer the case to a provincial appeals court or order a new trial. This process dates back to 1892.

In 1989, the commission investigating the wrongful conviction of 17-year-old Donald Marshall for murder called for an independent commission to investigate possible miscarriages of justice.

In 2002, the federal government responded to this call by establishing the Criminal Conviction Review Group within the Department of Justice.

The task of the group is to examine applications and make recommendations to the Minister of Justice.

Meghan Grant/CBC

Meghan Grant/CBC

According to the Wrongful Conviction Law Review (WCLR), between 1989 and 2008, seven public inquiries into miscarriages of justice called for an independent commission.

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

“What my mother would say now – it’s a lovely day. Hallelujah,” she said. “[My mother] fought so long and so hard with David for this day… I know she would be very proud to say she is Canadian and all of Canada did so.

According to WCLR, the current system is flawed because it is not independent and requires an applicant who may not understand the law or lack investigative experience to submit an application to the Review Group.

Independent, fair

Lametti said the commission will also help visible minorities and women who need a better way to remedy wrongdoings.

“When I look at the files that come to me, I see a clear pattern. Applicants are predominantly white males. Prison inmates don’t look like that,” Lametti said.

The government says the new commission will remove barriers to entry for indigenous peoples, black people and members of marginalized communities.

“More people will apply with lower offenses. We’ve seen a number of high profile murder cases finally get to me,” Lametti said.

“There are quite a number of other people, many of whom must be statistically Indigenous or Black, who may have been asked to plead guilty when they weren’t, and this should be accessible to them.”

Watch: ‘You Can’t Get Over It’: Susan Milgaard on the Cost of Her Brother’s Incarceration

NDP MP Randall Garrison said his caucus welcomed the legislation. He said he hopes it will address the disadvantages faced by Black and Indigenous people running to have wrongful convictions overturned.

“Too often, our system has failed Indigenous and racialized Canadians,” Garrison said Wednesday. “We are pleased that the legislation is moving forward, but we will be watching very closely to ensure the Commission has the powers it needs.”

A press release from the Justice Department says the new Commission to Review Miscarriages of Justice will be fully independent. According to the government, once they have been set up, “the Minister of Justice would no longer decide on applications”.

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

The commission will not have the power to rule on innocence or guilt. If it believes there has been a miscarriage of justice, it can order a new trial or refer the case to the provincial courts of appeal.

The Commission is not an alternative to the justice system. Applicants must first exhaust their legal remedies before requesting a review by the Commission.

Once the new commission is up and running, applicants who currently have an application with the Minister can request that it be transferred to the new commission.


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