In 1990, the Royal Commission on the Donald Marshall Jr. Prosecution put forward many recommendations after its work to show everything that went wrong in the jailing of a teenager for 11 years for a murder he didn’t commit. The top two called for an overhaul of the review system.
The first sought “an independent review mechanism” for potential cases of wrongful conviction. The second said such a body should be given power to investigate these cases.
It didn’t happen. Successive federal governments, Conservative and Liberal, refused to budge, even as multiple inquiries over the years into wrongful convictions made the same call and Mr. Marshall’s nightmare was followed by those of David Milgaard and others. The only avenue for a last-shot appeal, a difficult and opaque process, remained housed within the federal Justice Department, the same body in charge of overseeing prosecutions.
This space has long advocated for change modelled on an independent review system established in England in the late 1990s. In a 1999 editorial, we argued: “Exonerating the innocent should be as essential to the integrity of the criminal justice system as convicting the guilty.”
There was some minor change in 2002 but the process remained within Ottawa’s grip. There was a mistaken distrust of an independent body outside the direct purview of the Department of Justice. This year, however, reform is finally at hand.
In mid-February, the federal Liberals and Justice Minister David Lametti tabled Bill C-40. It is at second reading in the House of Commons and hasn’t yet been debated or voted on but the NDP have indicated their support, ensuring the bill’s likely passage. The proposed change deserves to draw wider backing in Parliament.
The plan is to create a Miscarriage of Justice Review Commission. The commission, with members appointed by cabinet, would work separately from government, using powers now in the hands of the Justice Minister, including the ability to investigate cases. One important difference is the commission could proactively pursue potential cases of wrongful conviction. The current system requires cases be presented to Ottawa. The commission would also be properly funded. The federal budget in March pledged close to $20-million a year. One key factor doesn’t change: whether Ottawa today or the commission tomorrow finds grounds that a miscarriage of justice occurred, the case is sent back to the courts for a new appeal.
The gap between the two systems in practice is significant, in the cases assessed. In England, Wales and Northern Ireland, the Criminal Cases Review Commission looks at an average of more than 1,000 applications a year and – over the past 26 years – the work led to more than 20 overturned convictions annually. In the same span of time, Canada’s system sent an average of one case a year back to the courts. This is a clear indication there are possible wrongful convictions in Canada that have not been unearthed and could be brought to light by an independent commission with a more expansive eye.
Getting to this moment is the result of years of work by advocates such as the group Innocence Canada. The Liberals promised an independent body in 2019 and a 2021 report considered how to turn the idea into reality. The new bill appears to hew to that framework.
Justice is never flawless. It is messy. Mistakes are made. Police and prosecutors set out to win their cases. Mr. Marshall and Mr. Milgaard’s experiences are especially egregious. But there’s pressure on people accused of crimes to plead guilty, even if they’re innocent. The presence of the new commission may also push police and prosecutors to be less myopically aggressive when evidence is tenuous. Righting a wrongful conviction is good. For it to never happen in the first place is much better.
The cold reality is even the best remedies cannot prevent the miscarriage of justice. Wrongful convictions are gutting stories. Jailed for a crime you didn’t commit, the years of life lost, a life in part ruined, often because of ugly mistakes made by officials throughout the justice system. These cases are rare, but brutal. Canada’s obligation is to do all it can to right wrongs.
Change is decades overdue, and our conclusion today is the same as years ago: exonerating the innocent is as essential to the justice system’s integrity as jailing the guilty.