Case of Indigenous sisters serving life sentence underscores need to reform review process for miscarriages of justice, lawyer says

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The case of two sisters from Keeseekoose First Nation in Saskatchewan who spent nearly three decades in prison for a murder they say they did not commit underscores the need to change how miscarriages of justice are reviewed in Canada, their lawyer says.

James Lockyer, the founding director of Innocence Canada, an organization that advocates for and exonerates people who have been wrongfully convicted of crimes, said the claims of his clients, Odelia and Nerissa Quewezance, have “huge merit.” He added that he is counting on federal Justice Minister Arif Virani, who is currently reviewing their case, to remedy the injustice they have faced.

But Mr. Lockyer also said he is hoping that in the future the Justice Minister will no longer be the authority in charge of reviewing potential wrongful convictions. Legislation known as Bill C-40 would replace the existing ministerial review regime with a new process led by an independent commission.

Under the current regime, the Justice Minister has the authority to review convictions and order new trials or appeals where there is a reasonable basis to conclude that a miscarriage of justice likely occurred. The Department of Justice told Mr. Lockyer in June, 2022, that the sisters’ case was proceeding to the investigative stage of the review process.

Mr. Lockyer and other advocates for people who have experienced miscarriages of justice say the proposed commission-based process could be faster and more accessible. Bill C-40 is being studied at the House of Commons justice and human rights committee.

If a commission were established in Canada, it would eventually become an integral part of the justice system, which has never been the case with ministerial reviews, Mr. Lockyer said. Most criminal lawyers do not know the current process exists, he added. Or if they do, they know little about how it works.

“How can you expect people in prison to know?” Mr. Lockyer continued. “But if you get a commission set up, you’re quickly going to get a lot of expertise in the field developing. And we need that.”

Bill C-40, also known as David and Joyce Milgaard’s Law, was named to recognize Mr. Milgaard and his mother. Mr. Milgaard was convicted of a rape and murder he did not commit and spent 23 years in prison. He was released in 1992 and exonerated in 1997.

Mr. Milgaard would have been delighted to have seen the introduction of Bill C-40, Mr. Lockyer said. He added that Innocence Canada hopes the legislation becomes law under the current government, and that there is every reason to believe the process would move more quickly under a commission.

“The whole floor plan, if you will, for the wrongly convicted would be hugely enhanced by the creation of an independent commission,” he said.

Mr. Lockyer’s clients, the Quewezance sisters, both survivors of residential schools, have been serving life sentences since they were found guilty of second-degree murder in 1994.

They were charged in 1993 in connection with the stabbing death of 70-year-old Anthony Joseph Dolff. The killing took place at his farmhouse, near Kamsack, Sask. Nerissa was 18 at the time, and Odelia was 21.

Mr. Dolff worked as a maintenance man at the St. Philip’s Residential School, in Saskatchewan. The sisters attended the institution and were abused there.

Their teenage cousin, whose identity is protected under what was then known as the Young Offenders Act, pleaded guilty to the murder a few months later. He said he had wrapped a telephone cord around Mr. Dolff’s neck, dropped a television on his head and stabbed him to death. But an all-white jury wasn’t convinced the confession cleared the sisters, and they were sentenced to life, with no chance of parole for 10 years.

The cousin was sentenced to four years, which was the maximum sentence that could be handed to a young offender at the time.

The sisters are currently out of prison on bail. In March, a Saskatchewan judge ordered them to be released from custody while they await the outcome of the review of their convictions. They are required to adhere to a number of conditions, including a curfew.

Mr. Lockyer said both sisters are finding the bail conditions difficult to live with, and that they need a chance to be free of all restraints and carry on with their lives.

Kim Beaudin, the national vice-chief of the Congress of Aboriginal Peoples, which represents Indigenous people who live off-reserve, is acting as Nerissa’s surety. With respect to the curfew, Mr. Beaudin said the sisters are adults and not “renegade teenagers.”

The conditions, he said, mean the sisters are not free. He noted that the review of their case could take years. “That’s a long time to leave somebody’s life in limbo,” he said.

The Quewezance sisters caught Mr. Milgaard’s attention before his death in May, 2022. This resulted in Mr. Lockyer taking up their case.

“It’s only because they thought to call David Milgaard 28 years into their sentences that they got any kind of ability to go forward,” Mr. Lockyer said.

Ontario Senator Kim Pate, a long-time advocate for women in the legal system, first met Odelia and Nerissa after they were convicted. She said it is incumbent upon the Justice Minister to make a decision as quickly as possible.

In 2022, Ms. Pate, along with two other senators, released a report titled “Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women.” The cases of Odelia and Nerissa are among those included.

There should be immediate action to release them from their sentences, Ms. Pate said.

“Right now, Odelia and Nerissa are still serving life sentences,” she said. “They’re out on bail, as the conviction review process is happening, but they are still subject to being rejailed.”

The Justice Minister’s office said he can’t comment on continuing criminal conviction reviews.

Former justice minister David Lametti, who put forward Bill C-40 months before he was shuffled out of cabinet in July, said he also can’t comment on the sisters’ review process.

Mr. Lametti said in a statement that one of the reasons he pressed for the independent review mechanism contained in Bill C-40 was to speed up the decision-making process. He noted that jurisdictions such as Britain already have this mechanism.

“I hope for its timely passage,” Mr. Lametti said of the bill.

With reports from Jana Pruden and Patrick White