Destroyed by a conservative-led filibuster, the ‘Milgaard Law’ will reach the Senate in the coming months

delayed in a filibuster led by Pierre Poilievre in DecemberProposed legislation hoping to improve Canada’s ability to eradicate wrongful convictions is expected to reach the Senate in the coming months.

Bill C-40, introduced by the Liberal government in February 2023seeks to speed up the process of reviewing claims of wrongful convictions by diverting responsibilities from the Ministry of Justice to an independent committee.

The bill is named after the late David and Joyce Milgaard. David MilgaardA Winnipeg, MB., man was wrongly convicted of the 1970 rape and murder of Gail Miller.

Twenty-seven years later, after Toronto lawyer James Lockyer took on the case under the organization Innocence Canada, Milgaard was exonerated. Results of tests performed on Miller’s clothing ordered by Lockyer showed another man’s DNA.

David’s mother, Joyce, spent the nearly three decades her son was imprisoned advocating for his release.

“When you were in David’s presence, you felt an innate goodness in him,” Lockyer recalled to CTV News Toronto in an interview. milgaard died in 2022, two years after his mother. “He [Bill C-40] It is a remarkable testimony of them. Assuming it has passed, it will help keep them forever in our memories.”

David Milgaard, who spent 23 years in prison after being wrongly convicted of murder, is photographed after a news conference held by Innocence Canada in Toronto on October 9, 2019. THE CANADIAN PRESS/Chris Young

The bill was one of many bills subject to Conservatives’ marathon attempt to repeal the federal carbon tax on December 8.; “There will be no rest until the tax is gone,” Poilievre told the House that day.

“It wasn’t getting anywhere,” said Lockyer, who helped draft the bill. “Conservation’s actions seemed quite childish, but that’s what they did.”

When contacted for comment, Justice Ministry spokesperson Chantalle Aubertin called the move a “useless obstruction of important work.”

“We are disappointed that the Conservatives have played politics on the committee stage with the fundamental rights and lives of Canadians and their families, while women and men are detained awaiting reviews of their cases that could offer them the opportunity to recover their lives and return to their homes. “Aubertin said. “Overturning a wrongful conviction should be a priority for every parliamentarian and never a partisan issue.”

After 30 hours of tactics, the filibuster came to an end, but the day’s events paralyzed progress on the proposed legislation for nearly a month; It did not pass the review stage until February 7, when it was reported to the House. with amendments.

Pending a third reading, “they expect it to come to the Senate in the next few months,” Lockyer said.

As is, Requests for the federal government to review a conviction. They are examined and investigated by the Criminal Conviction Review Group, which then presents its findings to the Minister of Justice. If the minister has reason to believe that a miscarriage of justice has been made, he may order a new trial or hearing for the applicant directly, or may refer their case back to the court of appeal.

It is a slow process, taking, on average, between two and six years to complete.

In 2023, the review group completed a total of two investigations. Fourteen of them were carried out and remained uncompleted, according to ministry data.

“In the last 35 years, there have only been about 34 successful ministerial reviews,” Lockyer said.

Lockyer also believes the process should be free of politicization.

“There is not always much confidence in the decisions because the minister has to respond politically for them, and giving reparation to murderers convicted for having been victims or for a judicial error is not always the popular thing to do.”

If passed, Bill C40 would include case review work. redirected to an independent commissionmade up of five to nine people with experience in the criminal justice system.

The commission must process applications “as expeditiously as possible” and provide “regular” updates to applicants on the status of their application.

If they have reasonable grounds to believe that a miscarriage of justice has occurred, they can refer the case back to trial or hearing directly or, like their current counterpart, to the appeals courts.

Unlike the ministerial review process, they are not required to launch a full investigation if the review of the case provides the basis for making a decision.

It is a system that has been successful in England, Scotland and Northern Ireland.

“In the United Kingdom, for example, in 27 years, more than 800 cases have been determined to be miscarriages of justice,” Lockyer said. The Scottish commission has captured 90 in 24 years.

“Therefore, it can be seen that the creation of a court will increase the number of applications and the number of successful applications,” he said.

James Lockyer speaks to the media outside the Toronto Superior Court of Justice in January after securing the acquittal of Toronto mother Cindy Ali. (Abby O’Brien)

But the proposed legislation still has some glaring loopholes, according to Kent Roach, professor of law at the University of Torontowho sits alongside Lockyer on the Standing Committee on Justice and Human Rights and also helped draft the bill.

Many of the recommendations that informed the bill, prepared by Judge Harry LaForme and Judge Juanita Westmoreland-TraoreThey were rejected by the government before being proposed.

“The lack of guaranteed Black and Indigenous representation among commissioners, coupled with the potential smallness of the Commission, is a real concern,” Roach said in email correspondence with CTV News Toronto.

The commission in Scotland, a country of less than six million people, has eight members, which could be more than Canada if C-40 is approved.

The bill also does not seek jurisdiction over convicted people who want to challenge their sentences, Roach said.

“Without changes to include sentencing, the new commission would have a more limited jurisdiction than the English and Scottish commissions,” he said.

While it may not be perfect, it is a much-needed start to Lockyer’s books.

“The justice system is a human system, so it’s always going to do things wrong – and cases go wrong – but the support we have right now just doesn’t catch enough cases.”

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