Minister of Justice introduces legislation (David and Joyce Milgaard’s Law) to establish an independent Miscarriage of Justice Review Commission
February 16, 2023 – Ottawa, Ontario – Department of Justice Canada
Today, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced proposed Criminal Code amendments to establish an independent commission dedicated to reviewing miscarriage of justice applications. The new commission would replace the current ministerial review process. Under the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), the new commission would review, investigate, and decide which criminal cases should be returned to the justice system due to a potential miscarriage of justice.
All people in Canada must have confidence that the justice system is there to protect them and that it can be trusted. While rare, miscarriages of justices sometimes occur and can be discovered long after the criminal court process has concluded. In addition, Indigenous peoples, Black persons, and members of marginalized communities are overrepresented in the criminal justice system and can face greater challenges in navigating it.
Establishing an independent commission would make it easier and faster for potentially wrongfully convicted individuals to have their cases reviewed. The commission would remove barriers to access, for Indigenous peoples, Black persons, and members of marginalized communities. Addressing miscarriages of justice more quickly will help mitigate the devastating impact they have on the potentially wrongfully convicted person, their family, victims, and improve access to the justice system.
The independent commission would review miscarriage of justice applications and decide whether to grant a remedy, such as ordering a new trial or new appeal. These applications would no longer be decided by the Minister of Justice.
“Wrongful convictions are a matter of deep concern to me, and to many Canadians. Our government believes that a fair and equitable criminal justice system must guard against potential miscarriages of justice. “David and Joyce Milgaard’s Law” is a critical step forward in establishing an independent review process to examine whether a miscarriage of justice may have occurred. An independent commission will help make miscarriage of justice reviews more efficient and make the process truly available to all who want to access it.”
The Honourable David Lametti, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada
The proposed new commission would not be an alternative to the justice system. Applicants would first need to exhaust their rights of appeal before requesting a miscarriage of justice review by the commission.
The commission would not decide whether an applicant is guilty or innocent. Rather, if the commission decides if a miscarriage of justice may have occurred and is in the interest of justice, it will grant a remedy, such as ordering a new trial or new appeal. Only the courts have the power to overturn a conviction.
Establishing an independent commission responds to calls from stakeholders and advocates for the wrongfully convicted, and follows the establishment of similar independent commissions in other countries, such as England, Wales and Northern Ireland, Scotland, and New Zealand. The creation of independent commissions in those jurisdictions has led to significantly more applications being made and more wrongful convictions being identified and remedied, compared to Canada.
In March 2021, the Minister of Justice appointed retired judges Harry LaForme and Juanita Westmoreland-Traoré to hold consultations and provide options on the formation of an independent commission. This included submitting a report to the Minister summarizing the input received during the consultations and providing options on the path forward.
The current criminal conviction review process is set out in Part XXI.1 (sections 696.1 to 696.6) of the Criminal Code and accompanying regulations.
The criminal conviction review process was last reformed in 2002 following public consultations, which resulted in changes that clarified the criteria for making an application, provided for subpoena powers, and expanded the reviews to include summary conviction offences.
These proposed amendments to the Criminal Code are a key step towards establishing an independent commission. The passage of legislation would need to occur before the commission could be established and begin its important work.
For more information, media may contact:
Office of the Minister of Justice
Department of Justice Canada
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