Right way to tackle cases of wrongful conviction By: Dan Lett Posted: 7:00 PM CST Friday, Dec. 10, 2021

Hey there, time traveller!
This article was published 10/12/2021 (1751 days ago), so information in it may no longer be current.

On Thursday, two former judges delivered a report to the federal government calling for a fully independent, fully funded and fully empowered commission to investigate wrongful convictions. The Liberals promised to create such a body, pending these recommendations.

In short, this is an idea that has been decades in the making.

The current and completely dysfunctional system of reviewing miscarriages of justice is utterly insufficient. To date, however, no federal government has had the will to remedy the situation.

Harry LaForme, formerly with the Ontario Court of Appeal, and Juanita Westmoreland-Traoré, who sat on the Court of Quebec, were surgical in the precision of their recommendations, and forceful in urging Ottawa to move forward without delay in establishing a commission. They noted not only is the current conviction review ineffective and time-consuming, it is discriminatory.

The Criminal Code of Canada allows people who have exhausted other avenues of appeal to go directly to the federal justice minister for a review of their cases. A small and poorly resourced unit within the justice department vets and, in some cases, investigates these claims.

If there is a reasonable likelihood a miscarriage of justice occurred, the unit makes a recommendation to the minister to reject the claim, quash the conviction or ask a court to review the findings of the federal file. The minister alone has final say on what happens.

Although it is technically an avenue of appeal, few people are able to take advantage.

Applicants need a lawyer and, given that many of them are in prison, they may not have any money. That requires them to convince someone to work for free on their case. Legal aid schemes do, sometimes, provide a modest support but that is the exception, not the rule.

The process can go on for years, even decades. And there is no guarantee the government of the day will not use these applicants as political footballs, delaying or denying remedies even when there is clear evidence of a miscarriage.

The result is a very uneven process. The people who are able to overturn their convictions are overwhelmingly male and white even though the prison population in this country is not. LaForme and Westmoreland-Traoré note women, along with Indigenous and Black people, are rarely able to tap into the existing system.

The solution provided by the two judges is simple and morally and ethically defensible.

First, create a fully independent commission to not only review cases brought by individual applicants, but go out and seek cases from under-represented groups. Second, give the commission the financial resources to investigate all cases where a wrongful conviction may have occurred, and not just those involving DNA evidence or the prospect of factual innocence.

Finally, give the commission the legal power to compel and collect evidence, even that which is considered privileged, and treat it as a form of independent judiciary. In other words, do not require the decisions of this commission to be sent on to another court for additional review.

As sensible, sound and just as the recommendations are, they will also be politically unpopular.

As sensible, sound and just as the recommendations are, they will also be politically unpopular.

Even though Ottawa has the authority to review wrongful convictions, criminal prosecutions are the jurisdiction of provincial governments — and provincial prosecution services are deeply committed to fighting claims of wrongful conviction.

I have had the honour to help two men prove they were the victims of wrongful conviction: David Milgaard, originally convicted of a 1969 Saskatoon murder, and James Driskell, originally convicted of a 1991 murder in Winnipeg.

I have written stories about several others trying to prove their innocence, including Deveryn Ross, a former lawyer and a contributor to the Free Press.

Ross was convicted of fraud in 1995, but uncovered new evidence in 2003 that showed he was wrongfully convicted. However, Ottawa deliberated for a remarkable 11 years before referring the case to the Manitoba Court of Appeal.

For the past seven years, a lawyer representing Manitoba Justice has used every procedural trick in the book to prevent the appellate court from hearing the case.

The case may not be well-known but it is an excellent example of how, even when new and exculpatory evidence is revealed and misconduct by the original police and prosecutors is confirmed, provincial justice departments continue to fight to preserve the conviction.

An independent federal commission with the power to assess claims on its own will be viewed by the provinces as a threat. However, if you look at the lack of true justice in this one part of the justice system, it is a necessary threat.

dan.lett@freepress.mb.ca