Those who have suffered miscarriages of justice have waited too long for half-measures. Unfortunately, a government bill before Parliament does just that.
Seven public inquiries since 1989 recommended a permanent and independent commission patterned after one in England to investigate refer suspected miscarriages of justice back to the courts. In 2021, the federal government asked us to conduct consultations and make recommendations on the design of such a commission.
We spoke to exonerees and more than 200 other people. We then prepared a detailed report. We fear that, like so many reports before, ours has largely been ignored.
We recommended a commission of nine to 11 people, chosen through an independent committee and with non-renewable terms. At least one commissioner would be Indigenous and another Black to reflect the populations most at risk for wrongful convictions.
What the bill provides is a commission with as little as five people, appointed through cabinet’s nontransparent and slow system of appointments, with a nod to diversity. Commissioners can serve renewable seven year terms, perhaps compromising their independence.
The chief commissioner could be the only full time appointment and would also have to be chief executive officer in charge of negotiating with the federal bureaucracy.
We recommended a commission with powers to determine who can apply to it and powers to access material, even if police and prosecutors claimed legal privilege. The English commission operating since 1997 has such powers.
What the bill delivers is a commission that cannot hear any claims involving sentences and only can hear applications from those who have lost at a Court of Appeal. If this is not changed, the commission will be irrelevant to the vast majority of those caught in our criminal justice. The Commission’s investigations could be thwarted by claims of privilege.
Almost 20 per cent of the 87 people on the Canadian Registry of Wrongful Convictions originally pled guilty, including five women and three racialized men who were victims of Charles Smith’s flawed expert evidence. None of them would be able to apply to the proposed commission because they did not appeal until others discovered evidence that they were not guilty.
After speaking with representatives of five foreign commissions, we concluded that a Canadian commission could also be subject to underfunding. To prevent this, we recommended that the new commission be treated on financial matters more like the independent judiciary than a small federal agency in Ottawa.
The bill ignores this recommendation. The commission’s budget and pay will depend on the cabinet’s discretion with commissioners deemed to be civil servants. A serious problem with the present system is that civil servants advise the minister of justice whether to order a new trial or appeal.
We recommended a proactive commission that could engage on systemic and disciplinary matters. Bill C-40, in contrast, defines the mandate of the new commission as processing applications.
We recommended that the new commission not be able to deny an application on the vague basis that it was “not in the interests of justice.” Bill C-40 instead gives the commission a discretion to reject an application on such a basis, even when it finds that there may be a miscarriage of justice.
To be sure, there are some good features in the bill, but its ability to provide legal representation and supports for applicants will depend on the adequacy of its budget.
Given the lack of substantive engagement with our report — which the committee may not have yet reviewed — and its unimpressive first day of hearings, we are not optimistic that necessary amendments will emerged from this process.
During our work on the report, we talked to and were guided by the late David Milgaard. In our respectful view, this bill needs a complete overhaul before it merits having David’s and his mother Joyce’s name attached to it.
Harry LaForme, is an Anishinabe from Mississaugas of the Credit First Nation and was the first Indigenous person to sit as an appellate court judge in Canada. He currently serves as senior counsel with the law firm of Olthuis Kleer Townshend LLP.
Source: Toronto Star