'Canada needs a commission that can independently investigate miscarriages of justice,' says Sen. Kim Pate. Photo: Mark Blackburn/APTN.
An amendment to Canada’s Criminal Code to create a new Miscarriage of Justice Review Commission Act has passed second reading in the Senate and could be law by the end of the year, says an Innocence Canada lawyer.
Bill C-40, also known as David and Joyce Milgaard’s Law, has already been approved by a majority of MPs in the House of Commons.
“It’s exciting,” said James Lockyer, who has been exposing miscarriages of justice in murder trials for the past three decades.
“Slowly but surely it’s getting done.”
The bill has been supported by a majority of senators of Independent, Bloc Quebecois and NDP stripes. But Conservative appointees to the Red Chamber have consistently voted against it.
“Hopefully, it’s going to be law by December,” added Lockyer, a Toronto lawyer and founder of the Association in Defence of the Wrongfully Convicted, which is now Innocence Canada.
Lockyer noted he has been invited to speak to senators about the act on Oct. 30.
The act would create an independent body to review wrongful conviction applications.
Proponents and exonerees like David Milgaard, who died suddenly in 2022, say Canada’s present formula for processing miscarriages of justice is too slow.
Milgaard was exonerated in 2005 after serving 23 years in Saskatchewan for the rape and murder of Saskatoon nursing student Gail Fisher.
Kim Pate, an independent senator from Ontario, has championed the bill in Milgaard’s name.
“In our last communication before his death in 2022, David implored me to step up our fight for mutual friends, especially the 12 Indigenous women who are still awaiting exoneration,” Pate said in a speech to the Senate during second reading on Oct. 10.
“Canada needs a commission that can independently investigate miscarriages of justice, so we must ensure that this bill bearing David’s name is worthy of his legacy and capable of delivering justice, including, and especially for, the Indigenous women and others who are most marginalized for whom David Milgaard was still fighting right up until his last days.”
Milgaard’s mother, Joyce, campaigned for his release – approaching then-prime minister Brian Mulroney to intervene.
Pate told the Senate that a publicly funded commission would address the “systemic sexism, racism and colonial violence” that exists in Bill C-40.
“As of July 2024, 200 people have applied for miscarriage of justice reviews. Only 30 were permitted to return to court for a retrial, and a mere 24 were successful,” she said. “Most were White men. Only seven, mostly reviewed in the last few years, were racialized men.
“Not one was a woman.”
Pate said that was wrong given the growing number of women in Canadian prisons and the “experiences of Indigenous women, who represent more than half of those in federal prisons.”
She said the composition of the commission, which is to be staffed by former judges and lawyers, should address this inequity, given the over-representation of Indigenous men and women in Canada’s prisons.
“Challenging a sentence, not only a conviction, as a miscarriage of justice could be particularly important given the sense of responsibility too often pushed onto Indigenous women in particular,” Pate noted in her speech. “Their reasonable responses to unreasonable violence are rarely contextualized, and too many police officers, lawyers and judges fail to inquire further when they hear someone take responsibility, whether for personal, familial, community or cultural reasons.
“Too many consequently face barriers to grounded claims of factual innocence and are thus often rejected by lawyers and organizations, not to mention the Department of Justice, when they seek to challenge a wrongful conviction in the current system.”
Innocence Canada has helped exonerate 30 people convicted of murder so far. The last three acquittals were those of First Nations men in Manitoba.
However, Denise Batters, a lawyer and Conservative senator from Saskatchewan, said the Trudeau government’s explanation of Bill C-40, which is now on its way to committee, is short on details.
“It will require close scrutiny at our #SenCA Legal committee,” she said in a post on X. “I’m on it.”
In a speech during second reading, Batters bashed the Liberal government for failing to provide her information about the bill in a timely manner.
“In many ways, this bill creates a host of new questions,” she said in her speech. “Why, for example, did the Trudeau government opt to lower the threshold required for a finding of a miscarriage of justice? Currently, the minister of Justice may order a remedy if he or she is “. . . satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred . . .
“Bill C-40 contains a much lower standard where the commission will have to determine if they have. . . reasonable grounds to conclude that a miscarriage of justice may have occurred and considers that it is in the interests of justice to do so . . .”
Lockyer said the commission would have “discretionary” powers when it came to making decisions on which cases to accept.
But Batters, deputy chair of the Senate Legal Committee, said she’s still seeing holes in the legislation.
“Again, the bill fails to define the ‘interests of justice,’ nor does it indicate what possible situations might require an appeal due to a possible miscarriage of justice but would not serve the interests of justice,” she said. “Furthermore, Bill C-40 was originally drafted to require that all appeals must be exhausted.
“However, Liberal government MPs at the House of Commons Standing Committee on Justice and Human Rights amended the provision so that, in fact, this commission would no longer be a last resort and that all appeals do not necessarily have to be exhausted. Applicants could apply directly to the commission if they receive a court outcome they don’t like rather than having to apply to the court of appeal — it’s likely a more expensive route for an accused.”
The Liberals have said they expect the commission to receive up to 250 wrongful conviction applications in its first year of operation.
Lockyer puts the number a bit lower – just under 200 – noting that’s what similar commissions in England, Scotland and New Zealand saw when starting up.
