‘Milgaard’s Law’ a step in the right direction
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The federal government’s decision to create an independent commission to review wrongful convictions is a historic and long overdue innovation for the criminal justice system.
However, Ottawa’s gesture may only address half of the challenge the wrongfully convicted face in this country.
Federal Justice Minister David Lametti has dubbed the legislation required to create the commission the “David and Joyce Milgaard’s Law,” to honour one of Canada’s most famous wrongfully convicted men and the mother who championed his cause.
The name for the law is poignantly appropriate: the painful lessons from Mr. Milgaard’s case point directly to the critical need for this commission.
Mr. Milgaard, who died in May 2022 at age 69, was originally convicted of murdering a Saskatoon nursing assistant in 1969. Over the years, Mrs. Milgaard, who died in 2020 at age 89, waged a courageous campaign to uncover new evidence. It wasn’t until 1992 that he was finally released from prison after the Supreme Court of Canada reviewed his case — and profound new evidence that had been withheld from the original trial — and ordered Saskatchewan to hold a new trial, which it declined to do.
DNA tests in 1997 exonerated Milgaard and helped convict another man, Larry Fisher, of the 1969 murder.
The current process for obtaining ministerial intervention for a wrongful conviction, which is embedded in the Criminal Code of Canada, is tortuously slow and bureaucratically cruel. There is no time limit for reviews to occur, and few resources are available to support investigatory and legal representation.
The lack of resources leads to interminable delays in the processing of applications. The whole concept of “justice delayed is justice denied” has never been properly acknowledged by this process. On that issue, Mr. Lametti’s proposed commission should make significant strides in returning some fairness to the process of reviewing wrongful convictions.
The bill he has introduced — which already has the support of the Liberal government along with the Green party and the NDP, assuring its passage — would add resources for investigations to speed applications. Mr. Lametti has also promised resources to help applicants hire lawyers if they cannot afford one.
Investigations by the new commission would still have to be referred back to a provincial appellate court for a final determination.
As positive as Milgaard’s Law appears, it does not address the problematic role played by provincial prosecution services.
Although federal Parliament makes criminal law, the provinces enforce it and prosecute criminal acts. As a direct result, wrongful convictions are the work product of provincial and municipal law enforcement and provincial prosecutors. And when someone tries to prove a wrongful conviction, they must contend with provincial justice officials who seem, in many cases, to be more interested in defending their original conviction than fairly assessing new evidence.
In particular, the adversarial role provincial prosecutors appear to play in these cases is completely at odds with their true roles in the criminal justice system. Crown prosecutors are supposed to be, first and foremost, dedicated to a just verdict, not winning or losing a case. Provincial opposition that often borders on obstruction is one of the main reasons it takes so long to get a case through the current convictions review process.
Mr. Lametti and his government should be applauded for introducing Milgaard’s Law, and committing resources to getting a review body up and running as soon as possible. However, there are many other systemic issues that remain to be addressed.
Following the creation of the commission, the minister must turn his attention to those issues in order to ensure true justice is brought to this new process.