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Ottawa introduces bill to create independent wrongful conviction review body

Thursday, February 16, 2023 @ 5:16 PM | By Cristin Schmitz

Last Updated: Thursday, February 16, 2023 @ 7:03 PM

Criminal defence lawyer James Lockyer, a founding director of Innocence Canada who has spent his career fighting miscarriages of justice, hailed the Liberal government’s bill to create an independent body to review wrongful conviction claims.

On Feb. 16, federal Justice Minister David Lametti introduced into the Commons Bill C-40, the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) — named in honour of a man who spent 23 years in prison for murder before being exonerated based on DNA evidence, and his mother who fought tenaciously for years to overturn his wrongful conviction.

“Finally, we have a [proposed] tribunal that’s independent of government, independent of the Department of Justice, that is going to review claims of wrongful conviction, something that we have been advocating for ... 30 years,” Lockyer told reporters at a Parliament Hill press conference, standing alongside Lametti and David’s sister, Susan Milgaard.

James Lockyer, Lockyer Zaduk Zeeh

James Lockyer, Lockyer Zaduk Zeeh

“It’s a sea change for the justice system,” said Lockyer, who has helped successfully challenge more than 30 miscarriages of justice, including wrongful murder convictions in the high-profile cases of Milgaard, Guy Paul Morin and Steven Truscott. “There is no doubt at all in my mind that this is the biggest change to the justice system, and the best change one could imagine for the justice system, to create a ‘back end’, so to speak, for those who have been wrongly convicted who did not manage to establish that in the appeal procedure but now will have a chance to establish that with this new commission.”

Lockyer, of Toronto’s Lockyer Zaduk Zeeh, said he believes the independent commission will speed up miscarriage of justice reviews (a DOJ official said the timing from application to decision under the present ministerial review process has ranged from 20 months to some six years).   

The commission is “going to do it a lot quicker,” with five to nine commissioners who are dedicated to the task, Lockyer said. Moreover, “the ministerial system has always suffered from the problem that it’s not an investigative body,” he said. “It has accepted applications and essentially requires the applicant to do the work upfront to show that he or she has been wrongly convicted. The new system is going to be more of an evidence-gathering system where the commission will have to play the role of the investigator as well as the decision-maker. So it means that there’s much greater access … [and] a person making an application isn’t going to be rejected out of hand, because he or she has nothing to support their claim. But rather, there’ll be a duty on the commission to undertake an investigation into the validity of the claim, including the searching for new evidence.”

Lockyer first outlined Innocence Canada’s proposal for an independent wrongful conviction review body to Lametti, soon after the McGill University law professor became justice minister in 2019. “If this commission had existed back in the early 1970s, it can safely be said it would have saved David Milgaard ... at least two decades of those 23 years that he spent in prison,” Lockyer said. “And that alone is reason to be so grateful to the [justice] minister, for bringing forward this legislation today, and keeping faith with David Milgaard.”

Justice Minister David Lametti

Justice Minister David Lametti

A beaming Lametti, who clerked for former Supreme Court of Canada justice Peter Cory, author of the Sophonow Inquiry report on wrongful convictions, previously told Law360 Canada he pushed hard for the creation of an independent criminal conviction review commission.

“When I met David in 2019, I committed to him personally that I would work to make the system better — I promised him,” Lametti told the press conference. “I hope I did not break faith with him with this bill.” (Milgaard died last year.)

The justice minister expressed gratitude to Lockyer “and to all the lawyers, law students and paralegals who have put hundreds of thousands of hours for free into this work” for the wrongly convicted. “When I look at the files that come to me, I see a clear pattern,” Lametti remarked. “The applicants are overwhelmingly white men and our prison population does not look like that. This tells me that the [wrongful conviction review] system is not as accessible to women, or to Indigenous peoples or Black or racialized people, who are disproportionately represented in our criminal justice system.”

The Liberal government’s move was welcomed by the Congress of Aboriginal Peoples, which advocates for the 80 per cent of Indigenous people who do not live on reserves. “Indigenous Peoples are vastly overrepresented in the justice system already,” the group said in a statement. “Many of those convicted have little knowledge of the Canadian justice system and can be pressured into false confessions.”

Odelia and Nerissa Quewezance, who the group said each served 30 years in prison for a crime someone else confessed to, are awaiting the results of applications under s. 696.1 of the Criminal Code, which allows a person who has been convicted of an offence and who has exhausted all rights of appeal to apply to the justice minister for a review of their conviction. “This move to create an independent review commission could represent a seismic shift in the justice landscape for Indigenous people who have always struggled under a one-way colonial system,” the Congress of Aboriginal Peoples said.

Lametti said he believes the minority Liberals’ Bill C-40 will garner opposition support, including from at least some NDP, Bloc Quebecois and Green MPs. “There isn't a good reason to want to keep people ... who’ve been found guilty, but are innocent, in jail,” he said.

A key change in the proposed legislation is that it would create a more liberal test for referring suspected wrongful convictions back to the courts for a remedy: i.e. that a miscarriage of justice “may have occurred and it is in the interest of justice.”

This contrasts with the present more stringent test that a miscarriage of justice “likely occurred.”

Existing applicants for ministerial review under part XX1.1 of the Criminal Code would have the option to have their application transferred to the new commission. The DOJ told Law360 Canada its criminal conviction review group currently has 63 applications filed with it: 51 are at the preliminary assessment stage and 12 are at the investigation stage of review.

The proposed independent commission would comprise five to nine full or part-time commissioners, including a full-time chief commissioner, appointed by the governor-in-council.

At least one-third, but no more than half, would have to be lawyers with at least 10 years’ experience practising criminal law.  All commissioners would have to have knowledge and experience “that is related to the commission’s mandate.”

Appointments must also “reflect Canada’s diversity,” including Indigenous and Black members. The independent commission would not be part of the Department of Justice and would be supported by its own staff and, as needed, external experts.

Its investigative powers would be the same as commissions of inquiry, including the power to require witnesses to testify under oath, and to compel the production of information and evidence, for example, from law enforcement.

Verdicts of not criminally responsible on account of mental disorder would be added to the conviction review process. The proposed legislation also clarifies that guilty pleas, absolute and conditional discharges, and findings of guilt under the Youth Criminal Justice Act are included, a backgrounder from the Department of Justice states. “The existing requirement to first exhaust rights of appeal would be clarified to explain that applicants must have at least appealed their conviction or finding to the court of appeal and exceptions can be made if an appeal was not made.”

As is currently the case for ministerial review, the commission could refer convictions for a new trial or appeal. However, the proposed legislation clarifies that if the applicant is deceased, only a referral for a new appeal could be made. As is the case now, the commission would not decide on guilt or innocence; this would be decided by the courts.

The bill states, “if the Commission has 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, it must (a) direct a new trial before any court that the Commission thinks proper or, in the case of an applicant who was found to be a dangerous offender or long-term offender under Part XXIV [of the Code], a new hearing under that Part; or ... refer the matter to the court of appeal for a hearing and determination by that court as if it were an appeal by the applicant.”

Factors the commission “must take into account” in making its decisions are: (a) whether the application is supported by a new matter of significance that was not considered by the courts or previously considered by the commission in an application in relation to the same finding or verdict; (b) the relevance and reliability of the information that is presented in connection with the application; (c) the fact that an application is not intended to serve as a further appeal and that the remedies set out in subsection (2) are extraordinary remedies; (d) the personal circumstances of the applicant; (e) 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 or Black applicants; and (f) any other factor that it considers relevant.

Bill C-40’s summary states it amends the Criminal Code, among other thing, to: establish an independent Miscarriage of Justice Review Commission; replace the review process currently in Part XXI.‍1 (ss. 696.1 to 696.6) of the Code with a process in which applications for reviews of findings and verdicts on the grounds of miscarriage of justice are made to the independent commission instead of to the minister of justice; confer on the commission powers of investigation to carry out its functions; provide that the commission may direct a new trial or hearing or refer a matter to the court of appeal if it has 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”; authorize the commission “to provide supports to applicants in need and to provide the public, including potential applicants, with information about its mandate and miscarriages of justice”; and require the commission to make and publish policies and to present and publish annual reports that include demographic and performance measurement data.

The bill also proposes to make consequential amendments to other statutes and to repeal the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice.

If you have any information, story ideas or news tips for Law360 Canada please contact Cristin Schmitz or at 613-820-2794.