OTTAWA – A new independent commission tasked by the federal government with reviewing miscarriages of justice could discover that more people than expected are serving prison sentences for crimes they didn’t commit.
Other countries that launched similar commissions have found that “the degree of wrongful convictions certainly was much more significant than they knew,” said Sen. Kim Pate, a prominent advocate for the wrongfully convicted.
“I suspect we will see much the same.”
Former justice minister David Lametti introduced the legislation to set up the Miscarriage of Justice Review Commission. His successor, Justice Minister Arif Virani, is now in the process of implementing that legislation.
The commission won’t be able to overturn a conviction but will have the power to order a new trial or appeal.
Lametti said we don’t know how common wrongful convictions are in Canada.
“It simply stands to reason statistically that there have to be more wrongful convictions out there,” he said. “We’re hoping that by creating a more accessible commission, a less costly commission and a more efficient commission, that we will get to some of those cases as well.”
But some warn the long-awaited, long-recommended review body won’t be prepared for the influx of applications it’s expected to receive.
Former judge Harry LaForme, who was appointed by the government to co-lead federal consultations on setting up the new commission, predicted the number of applications for conviction reviews could be “far more than they think it is.”
“That has proven to be the case in virtually every commission that started around the world,” he said, citing the commissions in the United Kingdom, New Zealand, Scotland and Norway.
LaForme said the government failed to ensure the new review body has enough commissioners to do the work. He’s calling for at least eight to 11 commissioners, while the law provides for five to nine in total.
He predicted the commission will see “hundreds” of cases from across the country.
Currently, the process for reviewing a possible wrongful conviction goes through the federal justice minister’s office, where a criminal conviction review group investigates applications and makes recommendations to the minister.
Lawyer Tony Paisana, who teaches a course on wrongful convictions at the University of British Columbia, said it takes “far too long for these cases to make their way through the (current) system. Years and years and years.”
Paisana said that if the new commission is “not adequately resourced, the obvious and likely outcome is that we’re going to revert right back to what we were trying to avoid.”
He said the new commission is still long overdue and people who work in this field are “heartened by the change that’s coming.”
“I think there’s a sense of optimism,” he said. “Like anything else, there’s also a sense of unpredictability at this transition phase.”
Lametti said that, under the current process, there “are many wrongful conviction reviews that will never see the light of day, because for whatever reason it moves very slowly in the current process … I saw roughly seven cases, I believe, over four and a half years.”
The United Kingdom’s commission reviews hundreds of cases each year.
The bill setting up the commission was one of the last pieces of legislation to make it through the House of Commons before Parliament rose for the holiday break — and could be one of the last ahead of what’s likely to be a spring election. Funding was already outlined in the 2023 federal budget, which set aside $83.9 million over five years and $18.7 million in ongoing funding.
Getting the legislation passed was a personal goal for Lametti, who introduced the bill in 2023.
“When I was named minister of justice, this was nowhere on anyone’s radar screen and I saw an opportunity to put this on the radar screen,” he said.
The late David Milgaard, who served 23 years behind bars for a murder he didn’t commit, advocated for the wrongfully convicted and supported the bill. Lametti said he promised Milgaard he would “get it done.”
Lametti said that since there already had been a number of reports calling for a commission, he tasked LaForme and former judge Juanita Westmoreland-Traoré with looking at the “architecture” of such a review body. A number of jurisdictions, including the U.K., Australia and New Zealand, show the commission model works, he said.
Lametti acknowledged the new commission will face a backlog at first, but said the hope is that the numbers will stabilize.
Justice Minister Virani’s office said “work is already underway to establish the commission promptly, beginning with the appointment of commissioners,” and the minister is “focused on ensuring the commission is operational as soon as possible.”
With an election expected this spring, the task of establishing the review body could fall to a Conservative government. Asked whether he has any concerns about a party that has pledged a tough-on-crime approach being in charge of implementing the review body, Lametti responded, “God, I hope not.”
“Tough on crime is not stupid on crime, and this isn’t crime. These are wrongful convictions,” he said. “There isn’t any benefit to the system to convicting innocent people.”
The Conservative party did not respond to multiple requests for comment about how a Conservative government might approach setting up a commission.
LaForme agreed the issue isn’t crime but innocent people “languishing in prison.”
“I don’t think that this Conservative government will think that way,” he added.
The Liberal government has said the new system will help racialized and Indigenous Peoples, who are overrepresented in the criminal justice system.
Over the past 20 years, there have been 200 applications arguing wrongful conviction and 30 cases were eventually overturned, Virani said in December.
Speaking at a recent annual general meeting of the Canadian Bar Association, Virani noted that only seven of those cases involved racialized people and called those numbers “fundamentally unfair.”
“We all know, as lawyers, what systemic overrepresentation in the criminal justice system looks like. It is frankly a national shame,” he said.
None of those 30 overturned cases included women. Virani said “the notion that there isn’t a single female person who is an offender in a correctional facility in this country who’s been wrongfully convicted is just statistically improbable.”
Sen. Kim Pate was one of the senators behind a 2022 report arguing for the group review and exoneration of 12 Indigenous women it said suffered miscarriages of justice. The report noted that Indigenous women make up less than four per cent of women in Canada, but account for half of all women in federal prisons.
The report said Indigenous women “disproportionately experience miscarriages of justice: they are charged, prosecuted, convicted and imprisoned following systemic and discriminatory failures of the criminal legal and prison systems to adequately recognize, contextualize or address the inequities, racism, sexism, violence and ongoing trauma of their lives.”
Pate said a lot remains to be seen when it comes to the makeup of the new commission.
“If the same sort of folks are hired who have been involved in these processes up until now, then it’s not evident that we would see a very different reality,” she said.
LaForme said the chair of the commission needs to be an Indigenous or Black individual, to reflect the overrepresentation of those populations in prisons. He also said that if the commission isn’t independent of government, Indigenous individuals won’t want to apply to serve on it.
Sen. Pate said the new commission could “result in a massive change and… a vital movement within the current criminal legal system to rectify and remedy wrongful convictions and other kinds of injustices.”
It “remains to be seen” whether that will happen, she added.
This report by The Canadian Press was first published Feb. 5, 2024.
