The Criminal Justice Section of the Canadian Bar Association, in a letter to the House of Commons Justice and Human Rights Committee, offers comments on Bill C-40, Miscarriages of Justice Review Commission Act (David and Joyce Milgaard’s Law).
The Section strongly supports both the Bill, which “fundamentally alters the post-conviction review process in Canada,” and the creation of the Miscarriages of Justice Review Commission, in keeping with earlier recommendations on the subject. The Bill and Commission make the Canadian justice system fairer, more just and more humane. The letter offers a few areas for improvement which in no way detract from the overall support of the Bill and the government’s efforts to create an arm’s length process for post-conviction review and clarify the standard for remedies.
Bill C-40 should expand the grounds of appeal permitted under the Criminal Code to include “unsafe” verdicts. “This ground would allow the Court of Appeal to intervene in cases that may not meet the high standard for ‘unreasonable verdict,’ but nonetheless leave the court with a lurking doubt as to the guilt of the accused.” The CBA letter notes that this standard exists in the United Kingdom and offers a wealth of jurisprudence to draw from in interpreting a section of this nature.
The CBA Section strongly supports post-conviction review in posthumous cases. “Wrongful convictions have a significant impact on not only the accused, but also their families and extended communities,” the letter explains. “Family members of the wrongfully convicted report stigmatization, marginalization and shame, among a myriad of other impacts. Allowing these individuals to seek a post-conviction review on behalf of a relative contributes to the overall fairness of our system and recognizes the collateral effects of miscarriages of justice.”
The Section also recommends adding a right of appeal to provincial superior courts when an applicant’s request to the Commission is dismissed. “Specifying a robust avenue of review of decisions demonstrates Canada’s commitment to substantive justice for the wrongfully convicted,” the letter says.