Lametti plans public consultation on promised criminal conviction review commission

OTTAWA — The Trudeau government is poised to consult Canadians on how to go about creating an independent commission to review possible wrongful convictions for criminal offences.

The coming move will be the latest step on a long road toward such a body — a goal Ron Dalton and his colleagues have been keenly awaiting for years.

Dalton, co-president of Innocence Canada, toils with a dedicated team to help people who insist they have experienced a miscarriage of justice gather and present the crucial evidence that can exonerate them.

But he would be happy to see a federally created review commission — with ample budget and resources — take over much of the work of what he calls Innocence Canada’s “ragtag bunch of volunteer do-gooders.”

The group, formerly known as the Association in Defence of the Wrongly Convicted, was founded in 1993 and has helped exonerate about two dozen people who collectively spent more than 200 years behind bars.

Some, including Steven Truscott, David Milgaard, Guy Paul Morin and Glen Assoun, have become familiar names to those following their cases in the headlines.

Innocence Canada has submitted 10 new cases for federal examination, and the group’s pro bono lawyers are reviewing another 80 or so claims of innocence.

“But we’re painfully aware of our limitations. We’re spending half of our time trying to raise money to exist, the other half addressing some of the cases,” Dalton said.

“With our limited resources, we can only address the most serious cases. But we know that there’s literally thousands of cases out there.”

Dalton is intimately familiar with the nightmare of a wrongful conviction, having waged a successful 12-year fight to clear his name in his wife’s 1988 death. The heart-wrenching experience made him want to help others.

The uphill struggle could become less arduous if Justice Minister David Lametti fulfils a commitment in his mandate letter to establish an independent criminal case review commission that would make it easier and faster for potentially wrongfully convicted people to have their cases examined.

Under the current system, when someone has exhausted avenues of appeal in the courts, they can submit an application under Section 696 of the Criminal Code for ministerial review of their case. Applicants might seek the help of a lawyer or a group such as Innocence Canada.

If the justice minister is satisfied a miscarriage of justice likely occurred, he or she may refer the case to a court of appeal to be heard anew or direct that a fresh trial be held.

Advocates of a new commission say it would revamp the review process for the better by ensuring independence from the justice minister — who, as attorney general, is the chief law officer of the Crown — and opening the door to more money and staff to scrutinize applications.

Calls for such a body have come from several public inquiries dating back to the 1989 royal commission into Donald Marshall Jr.’s wrongful conviction for murder.

Lametti became justice minister in January 2019, reviewed Assoun’s case within weeks and determined there was reason to conclude that a miscarriage of justice had occurred.

However, that was more than five years after submission of Innocence Canada’s memorandum and multi-volume application detailing flaws in Assoun’s case.

The Justice Department’s annual report on miscarriages of justice for 2019-20 says the federal Criminal Conviction Review Group had 51 active files as of March 31. Ten investigations were underway during the period, though there were no ministerial decisions on remedy.

An independent commission would bolster public confidence, said Kent Roach, a law professor at the University of Toronto.

The adversarial court process that pits prosecutor against defence lawyer “works until it doesn’t work,” Roach said. 

“Particularly with Indigenous and racialized accused, there are concerns that they don’t always get the best defence.”

The forensic science that can contribute to a conviction is “sometimes dodgy” and continues to evolve, he added.

“When I started teaching criminal law back in 1989, people were just kind of waking up to the fact that wrongful convictions happen, because of the Marshall inquiry,” Roach said. “Now, we’re getting closer to saying, ‘Look, this regrettably happens,’ and we have to build in some safeguards.”

Lametti has been discussing a commission with interested parties, including Milgaard. 

“The next step in the process will be the launch of public-facing consultations, which will aim to capture a wide array of perspectives and considerations,” Lametti said in a statement to The Canadian Press. “I look forward to having more details to share on this shortly.”

The government is likely to look closely at the long-established criminal case review commission for England, Wales and Northern Ireland as well as a newly created one in New Zealand.

Roach would like to see a Canadian commission examine not only individual applications but also carry out systemic reviews to help prevent miscarriages of justice.

The Liberal promise to create a review commission could evaporate should the minority government of Justin Trudeau fall, testing the patience of those who see a need for reform.

Dalton is confident there will one day be a commission, though he acknowledges the timing is uncertain.

While he looks forward to a new review body taking on cases that might now come to Innocence Canada, Dalton sees a continuing role for the group — helping people with applications and pointing out cases that fall through the cracks of an imperfect justice system.

“We as an organization might still want to get involved and say, ‘No, you missed one here.'”

This report by The Canadian Press was first published Dec. 9, 2020.

Jim Bronskill, The Canadian Press