Future of wrongful conviction commission far from certain

Opinion

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This article was published 13/12/2024 (298 days ago), so information in it may no longer be current.

One huge hurdle down in the fight to get justice for the wrongfully convicted. One enormous hurdle still to go.

David and Joyce Milgaard’s Law would create a fully independent commission to review claims of wrongful conviction and decide which cases should be returned to the justice system. The bill is named for the Winnipeg-born man who spent 23 years in prison for a rape and murder he did not commit and for his mother, who spent decades fighting for his freedom.

The act passed third reading in the Senate on Wednesday and is slated for royal assent within the next week or so.

However, assent does not guarantee the Miscarriage of Justice Review Commission will become a reality.

Although the act passed both chambers of a minority Parliament, it was opposed at every turn by the Conservatives.

Given the fact the Tories have already tried several times to defeat the Liberal government and trigger an election, Federal Justice Minister Arif Virani finds himself under enormous pressure to get the commission up and running quickly.

In an interview with the Free Press, Virani said he will move as quickly as possible to make the commission functional in “a matter of months.”

Virani said his office will start accepting applications for commissioners in January, with an eye toward ensuring a diversity of perspectives and cultures. Once the commissioners are hired, they will begin the process of developing the commission’s policies and practices, he added. The Liberals have set aside $83.9 million in funding for the first five years of operations.

With an election scheduled no later than Oct. 20, urgency is the order of the day, Virani said.

“It’s a very historic day for Canada because there’s few times when you are able to legislate something that has the prospect of being transformational change,” Virani said.

“And this is really transformational when you’re able to go out into the communities and provide assistance to people in a language they understand, and provide more funding and resources to potentially correct wrongful convictions and miscarriages of justice. That’s a bit of a game changer.”

Notwithstanding Virani’s commitment to urgency, the future of the commission is far from certain.

“It’s a very historic day for Canada because there’s few times when you are able to legislate something that has the prospect of being transformational change.”–Federal Justice Minister Arif Virani

The Liberal government is, by all accounts, on its last legs. The Conservative party leads all public opinion polls with enough support that, if an election were held today, it would almost certainly win a majority mandate.

Would a Tory government support the commission if and when it forms the next government? The initial signals are mixed.

Throughout its long and winding road from the House of Commons to the Senate, Conservative MPs and senators, while expressing support for the general concept, opposed the finer details of Bill C-40 at every turn.

At third reading in the Commons, the last stage before it went before the Senate, 118 of 119 Tory MPs voted against the bill. The ‘nay’ votes would have been unanimous if not for a Tory absence.

Efforts were made to stop progress of the bill in the Senate and return it to the House by introducing a significant number of amendments. The leading critic for the Tories was Sen. Denise Batters, who used her final speech in the Red Chamber to correctly identify a number of shortcomings in the bill.

Critics outside government have raised concerns about the need to appoint a larger number of commissioners to handle what is expected to be an initial flood of applications, and to ensure a diversity of perspectives. There have also been issues raised regarding the power and scope of the commission.

Although Batters’ analysis was thoughtful and detailed, it contained a number of red flags that might suggest the commission would be ideologically incongruent with the Conservative political brand, which leans heavily on being tougher on crime and criminals.

For example, Batters suggested the victims of the crimes at issue be involved in the process. Right now, the commission only has a mandate to keep victims and their families apprised of its work.

Although a wrongful conviction has profound implications for the families of the original victims, it would be inappropriate to allow them to influence the final decisions of the commission.

“…As a dedication to the legacy of David and Joyce Milgaard, I think I need to work with pace, and that’s exactly what I’m going to do.”–Federal Justice Minister Arif Virani

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Initially, and for obvious reasons, the families of victims are among the most skeptical when it comes to claims of innocence. Forcing victims into the commission process as little more than a symbolic gesture could undermine the need to be as objective as possible.

Batters also raised concerns about whether the commission would serve to create a new burden for an overburdened court system. Although the need to hold new trials for those wrongfully convicted does add to the court docket, it is hard to see how the numbers of cases flowing through the commission would be enough to have a sizeable impact on the administration of justice.

Although there might be changes to the commission from a future government, Virani said he will work diligently to see it is up and running, with the knowledge that this kind of institution has been long overdue.

“We certainly waited a long time to get to this point, long enough such that the two people whose names are on this bill aren’t alive to see it. That is unfortunate, but as a dedication to the legacy of David and Joyce Milgaard, I think I need to work with pace, and that’s exactly what I’m going to do.”

dan.lett@winnipegfreepress.com

Dan Lett
Columnist

Dan Lett is a columnist for the Free Press, providing opinion and commentary on politics in Winnipeg and beyond. Born and raised in Toronto, Dan joined the Free Press in 1986.  Read more about Dan.

Dan’s columns are built on facts and reactions, but offer his personal views through arguments and analysis. The Free Press’ editing team reviews Dan’s columns before they are posted online or published in print — part of the our tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.