Hon. Pierre J. Dalphond: Honourable colleagues, allow me to explain why I am in favour of quickly passing Bill C-40, the Miscarriage of Justice Review Commission Act, also known as David and Joyce Milgaard’s Law, which proposes to create an independent commission to handle applications alleging miscarriage of justice.

The need for an independent mechanism for addressing potential miscarriage of justice is an issue I have been interested in since my years at the Quebec Court of Appeal.

I was once seized with a request to overturn a conviction that had been upheld a few years earlier despite appeals that went all the way to the Supreme Court of Canada. Throughout the proceedings, the accused had maintained his innocence and denied writing the incriminating document that contained death threats against his ex-wife, but the judge did not believe him.

Two years later, however, reports by handwriting experts, including one hired by the prosecution, concluded that he could not be the author of the incriminating document and that the alleged victim had written it.

My study of the case led me to conclude that the fact that the accused was an immigrant from the Middle East, without the financial means to hire an expert, was a determining factor in this miscarriage of justice.

Another case that troubled me was Dumont. He was convicted of murder on the basis of circumstantial evidence, the key element of which was the testimony of an unknown woman who said at the trial that she had glimpsed him for a few seconds in a video store near the victim’s home shortly before the time of the crime. Dumont always maintained his innocence, which he backed up with an alibi that turned out to be false.

A few years later, in a television interview, the star witness said that she regretted her testimony and she added that she now believed that it was not Mr. Dumont she had seen on the night of the murder, but someone else.

Honourable senators, I mention these two cases to illustrate the fact that our criminal justice system is essentially based on police work, witness testimony, the gathering of documentary and other evidence and the analysis of the case by the prosecution and the defence. A finding of guilt is made by either a judge or, in the most serious cases, a jury of 12 people with no legal training.

Even if a conviction is only possible when it is determined beyond a reasonable doubt that the accused committed the offence, the fact remains that human factors are omnipresent throughout the process, from the police response to the pronouncement of the guilty verdict.

That could mean prejudice, investigators having tunnel vision with respect to the evidence, overworked prosecutors or legal aid lawyers committing oversights in processing files, an accused being unable to pay for an expert, and other factors.

I would add that the fallibility of the system is compounded by a lack of court resources, the pressure to be more efficient nevertheless, and repeated urgings to plead guilty to a lesser offence to avoid a trial.

Unfortunately, this can result in a higher number of innocent persons being convicted, especially if they are members of a disadvantaged or vulnerable group.

That can even occur in the most serious cases. As the Supreme Court of Canada mentioned in United States v. Burns and Rafay in 2001, the continuing disclosures of wrongful convictions for murder in Canada and the United States in recent years provide tragic testimony to the fallibility of the legal system, despite its elaborate safeguards for the protection of the innocent.

The Canadian Registry of Wrongful Convictions, a website run by the University of Toronto, found 89 cases of wrongful convictions between 1956 and 2015 using newspaper articles and judgments. A disproportionate number of these cases involved members of racialized and Indigenous communities. Unfortunately, this could be just the tip of the iceberg.

Taking my inspiration from the Cotter method, the rest of my speech will be divided into four parts: first, the current system and its shortcomings; second, the Milgaard case; third, the instigator of this bill; and finally, the characteristics of the proposed commission.

I’ll move to the first part. Since 1892, the Minister of Justice has had the power, in one form or another, to review a criminal conviction under federal law to determine whether there may have been a miscarriage of justice.

In 2002, following public consultations, the current regime was introduced as Part XXI.1 of the Criminal Code, entitled Applications for Ministerial Review — Miscarriages of Justice, consisting of six provisions. Together, with the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice, this completes the framework of the current system.

It requires the minister to be satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred before ordering a new trial or an appeal. This standard is higher than the earlier one, which was “to entertain a doubt.” It is also higher than a more open-ended standard, for instance, that the minister be satisfied that a referral back to the courts is in the interest of justice.

The then-Minister of Justice observed that the remedy was meant to be an extraordinary one. In practice, the work is done by a special unit within the Department of Justice called the Criminal Conviction Review Group.

The work of this group is governed by regulations that I referred to that prescribe a review process in four stages: a preliminary assessment, which could lead to an investigation, followed by a draft investigation report to be shared with the applicant for further information and, once the report is finalized, a recommendation to the minister for a decision. The minister may return the case to the courts either by referring it to a court of appeal to be heard as a new appeal or by directing that a new trial be held.

In practice, the special group conducts preliminary assessments, taking into account all relevant matters, including whether the application is supported by new matters of significance, which is usually important new information or evidence that was not previously considered by the courts. Only if the group is satisfied that such is the case will an investigation be initiated.

As shown in the 2022-23 annual report tabled by the Minister of Justice in October 2023, most files won’t make it to the second stage. In other words, no investigation is initiated. As Senator Arnot observed, since 2002, only 200-odd applications have been reviewed by the special group. Of these, only 30 resulted in referrals to the courts, and 24 of them have resulted in an acquittal or the quashing or suspension of a conviction. In other words, less than two referrals were made to the courts per year. And, notably, only 7 of these 30 referrals to the courts involved racialized applicants, and none involved a woman.

Obviously, these numbers do not reflect the demographics of Canada’s prison population. In my view, this incredibly small number of wrongful convictions uncovered and rectified in Canada is a sign that the current system doesn’t work.

This conclusion is buttressed by the experience of like-minded jurisdictions such as England, Scotland and New Zealand, which have independent commissions. As we heard from Senator Arnot, the Scottish Criminal Cases Review Commission received over 3,200 applications between 1999 and March 2024, leading to the referral of 96 cases back to the courts. In other words, Scotland — a jurisdiction with a population less than one seventh the size of Canada’s population — has referred more than three times as many cases within a comparable time frame.

Data from the U.K. Criminal Cases Review Commission, which covers England, Wales and Northern Ireland, shows that it has received more than 32,000 applications since opening in 1997. It has referred 848 cases to appeal courts, of which 828 have been heard so far, leading to the correction of 587 wrongful convictions.

The British commission processes many hundreds of cases per year and identified more than 300 wrongful convictions in just two years, between 2016 and 2018. Compare that with our fewer than two cases per year in Canada.

Between its opening in 2020 and the latest public data in 2024, the New Zealand commission has received a total of 471 applications, completed 221 reviews and referred three cases so far to an appellate court following investigations. Please note that the population of Canada is about eight times that of New Zealand.

I will end this review of the current system by telling you about a case that has been extensively written about in Quebec. It was the Daniel Jolivet case. He received a life sentence in 1994 for a quadruple murder on the strength of an informant’s testimony. The informant claimed that Jolivet had confessed to the murders the next day. Jolivet has always denied that he had committed these four murders, a claim that was backed up by a lie detector test he passed a few years ago.

As soon as the Supreme Court overturned the Court of Appeal’s order for a new trial due to irregularities during his first trial, Jolivet began making requests under Quebec’s Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information. In doing so, he discovered new evidence that had never been disclosed and witnesses whose existence had been unknown to his lawyers prior to his trial in 1994.

One of these statements contradicted the statement given by the main witness at his trial, who said he had seen him at the same moment that the informant claimed he was being given Jolivet’s alleged confession. Another piece of evidence put Jolivet at a jewelry store relatively far from the restaurant where the informer had allegedly heard the confession, which seemed to exonerate Jolivet. Various items of evidence exonerated Jolivet or at least cast a serious doubt on his guilt. Moreover, Jolivet found out that the police had terminated the contract with the informant, suggesting that the Crown no longer believed him.

On the strength of these discoveries, Jolivet submitted an application for review to the special group. Two years later, the group informed him that there would not be an investigation because the new facts were neither sufficiently reliable nor sufficiently significant to call the verdict into question. It should be noted that the report of the Criminal Conviction Review Group, or CCRG, contained factual errors. More specifically, it indicated that the murder weapon had been found at the home of Jolivet’s father, whereas it was established at the trial that the murder weapon had never been found, which is still the case today.

Jolivet believed that the CCRG’s decision was unreasonable, so, with the help of his lawyers, he took his case to the Federal Court. Jolivet also believed that the CCRG could not have reached the finding that it did unless it had had access to all of the evidence that had been withheld from him, so he asked the CCRG to provide him with, among other things, the documents that it had obtained from the Sûreté du Québec and that it had taken into account before rejecting his application for review.

The CCRG refused to hand over the documents obtained from the Sûreté du Québec on the grounds that they were not relevant for the purposes of ruling on the legality of its decision. The CCRG added that some of the documents had been returned to the Sûreté du Québec and that no photocopies had been made. Finally, the CCRG argued that Jolivet should instead invoke Quebec’s Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information.

Some might say that these arguments clearly illustrate the attitude of the CCRG, which is not used to helping applicants prove their innocence.

In 2011, a Federal Court judge ordered the minister and the person in charge of the CCRG to hand over the documents that were before the CCRG when it made its decisions on September 24, 2007, and November 13, 2008, except for those that were subject to solicitor-client privilege. He also ordered them to identify the documents that were before the group when it made its decisions but that were no longer in its possession. It took a judge’s intervention to get some cooperation.

In September 2016, Jolivet submitted a second application for review supported by new evidence to the CCRG. It made no difference and, again, in 2018, or two years later, the CCRG dismissed his new application without even sending it to the second stage, namely an investigation by the group or by a person designated to that effect.

In 2021, Jolivet presented a third application for review to the CCRG. Before submitting his application, his lawyer, who is now a judge, and a person who believes in Jolivet’s innocence contacted me.

After spending several days studying the voluminous case file, I was disturbed by the prosecution’s failure to hand over to Jolivet’s lawyer, prior to the trial, the entire investigation file, which contained information that could have influenced the outcome of the trial.

Since Jolivet was no angel and has a lengthy criminal record, I asked him to take a lie detector test, which he agreed to do.

The results of the test confirmed that he is telling the truth when he says that he did not commit those four murders.

I also noted that although he could apply to the Parole Board for parole, he wasn’t doing so because he refused to acknowledge that his conviction was well-founded.

That’s when I volunteered to help his lawyer draft a new application for review by the Criminal Conviction Review Group, or CCRG.

In addition, a well-known Montreal criminal lawyer, who was convinced that a new trial was necessary, agreed, also pro bono, to help draft the third application for review.

Two years later, the third application, which seemed to me to require that the case be referred to the courts, was rejected without even going to the second stage, the investigation.

To this day, Jolivet remains in custody, even though it has been over 25 years and the Corrections and Conditional Release Act does not require the prisoner to admit responsibility.

Jolivet wants only one thing: a new trial or a referral to the Court of Appeal.

His situation is similar to that described in a 2019 judgment of the Supreme Court of British Columbia, in the Skiffington case, where the judge wrote the following:

. . . a strong case can be made that the sole or at least primary reason the applicant is not currently in the community on structured release is his continued assertion of innocence, and desire to have his conviction reviewed.

I move now to part 2 of my speech.

David Milgaard was charged in 1969 for the rape and murder of a nursing student in Saskatoon. He was 16 years old at the time. In January 1970, following a trial by judge and jury, he was found guilty of murder and sentenced to life imprisonment, despite his young age. His conviction was affirmed by the Saskatchewan Court of Appeal, and his leave to appeal to the Supreme Court was denied.

Assisted by his mother, Joyce, David started to publicly claim his innocence in 1980. Unbeknownst to him and his mother, the ex-wife of a man called Larry Fisher visited the Saskatoon police department to report that she believed her former husband had likely killed the student. The Saskatoon police department did not follow up on her statement.

An application for review was completed in December 1988. It was denied by the then Minister of Justice on February 27, 1991.

By a letter dated August 14, 1991, a second application was made based on different grounds, with a copy to the then Prime Minister, Mr. Mulroney. It led to a meeting between David’s mother and the Right Honourable Brian Mulroney.

After this meeting, the Governor-in-Council submitted a reference to the Supreme Court in which it was stated:

. . . WHEREAS there exists widespread concern whether there was a miscarriage of justice in the conviction of David Milgaard and it is in the public interest that the matter be inquired into . . . .

The Supreme Court heard several witnesses over a few days — very rare in the Supreme Court — including Milgaard, who had not testified at his trial, and fresh evidence was presented, including reference to Larry Fisher.

In its judgment released on April 14, 1992, the Supreme Court stated:

. . . we are satisfied that there has been new evidence placed before us which is reasonably capable of belief and which taken together with the evidence adduced at trial could reasonably be expected to have affected the verdict. We will therefore be advising the Minister to quash the conviction and to direct a new trial . . . .

In other words, the then process was not working, and it needed the Supreme Court to direct the minister to refer the matter to the courts.

The Minister of Justice then ordered a new trial, but the Saskatchewan Crown chose to enter a stay of proceedings, depriving Milgaard of a possible judgment dismissing the charge.

Milgaard was released from prison on April 16, 1992, but his innocence was still in doubt. He was still claiming his innocence.

Five years later, on July 18, 1997, a DNA laboratory in the United Kingdom released a report confirming that semen samples on the victim’s clothing did not originate from Milgaard, but rather from Fisher. Fisher was arrested and convicted two years later for the murder.

On May 17, 1999, the governments of Canada and Saskatchewan announced a settlement with Milgaard in which he was paid $10 million in compensation for pain and suffering, lost wages and legal fees.

Four years later, on September 30, 2003, the Saskatchewan government announced that a royal commission would investigate Milgaard’s wrongful conviction. Five years later, this commission reported that the police, under pressure to solve the crime, focused its attention on Milgaard and his two friends, almost coerced the friends into giving false statements and relied on a false testimony made by the person whom Milgaard and his two friends were visiting, who was, incidentally, subletting his basement to the murderer.

That’s what we call tunnel vision. When the police starts in a line of thinking and everything is put in place to fit the line, we call it tunnel vision.

The commissioner, a judge, concluded:

. . . The conviction review system in Canada is premised on the belief that wrongful convictions are rare and that any remedy granted by the federal Minister is extraordinary. Change is needed to reflect the current understanding of the inevitability of wrongful convictions and the responsibility of the criminal justice system to correct its own errors . . . . It is my recommendation that the investigation of claims of wrongful conviction be handled by a review agency independent of government . . . .

In fact, the case for this bill can be made in only 183 words. This is the length of the song “Wheat Kings” by the Canadian rock band The Tragically Hip, which tells the story of David Milgaard. The song was released on the album Fully Completely in October 1992, six months after David’s release from prison.

Of course, there are other cases of grave miscarriage of justice, including Donald Marshall Jr. in Nova Scotia, to which my colleague Senator Cuzner referred to recently.

I move on to part 3.

The initiator of the bill is the Honourable David Lametti. During the 2019 general election, Minister Lametti announced that, if re-elected, the Liberal Party will push for the creation of an independent commission. When asked to resume the position of Minister of Justice, he insisted that the Prime Minister include in his mandate letter the creation of an independent commission.

In March 2021, he appointed a special committee made of two retired judges: Harry LaForme, the first Indigenous person appointed to a Court of Appeal, and Juanita Westmoreland-Traoré, the first Black Canadian appointed to the bench in Quebec.

This committee held 45 round tables involving 215 people, heard from 17 exonerees who suffered miscarriages of justice and spoke to representatives of foreign miscarriage-of-justice commissions. They also spoke with crime victims and representatives of police, prosecutors, defence lawyers, legal aid officials, judges and forensic scientists.

The report of that committee, submitted to the justice minister in November 2021, concluded there was urgency to establish an independent review commission and made 51 proposals about its functions and composition. It observed that the current system has failed to provide remedies for women, Indigenous and Black people.

This led to the drafting of Bill C-40, which was introduced on February 16, 2023, in the other place, and was passed, on division, by the House on June 19 of this year.

Today, I want to thank David Lametti for proposing a bill that fulfills the wish of David Milgaard and his family and that can serve to prevent a repeat of his ordeal. To quote Milgaard, “The wrongfully convicted have been failed by the justice system once already. Failing a second time is not negotiable.”

I turn now to the salient features of the proposed process. An independent commission would review and investigate alleged miscarriages of justice and, where appropriate, refer cases to a Court of Appeal or order a new trial.

Bill C-40 expands the groups of persons who are eligible to apply for a review, including persons found guilty under the Youth Criminal Justice Act or the Young Offenders Act, persons who have pleaded guilty, persons who have been discharged under section 730 of the Criminal Code and persons found not criminally responsible on account of a mental disorder. This implements recommendations 20 and 21 of the report.

The inclusion of accused persons who pleaded guilty is a most welcome modification. In fact, 18% of the wrongful convictions in the Canadian Registry of Wrongful Convictions were the result of guilty pleas, often under pressure to negotiate, for fear of receiving a harsher sentence or because of inadequate legal advice. Almost all those who pleaded falsely that they were guilty were Indigenous, racialized, female or living with a disability.

Like the existing scheme, the new process requires an applicant to first exhaust their appeal rights, while allowing the commission discretion to waive this requirement.

The bill also states that the commission will be required to deal with applications “. . . as expeditiously as possible and provide the applicant with an update . . . on a regular basis.” That would be quite a reversal of the current process, I can tell you.

In terms of the applicable threshold, the commission may conduct an investigation in relation to an application if it has:

. . . reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so . . . .

This threshold for an investigation is far less stringent than under the existing regime, and this is a critical improvement, as we know that miscarriages of justice occur.

On completion of a review, the commission must make a decision on the application. If the commission has reasonable grounds to conclude that a miscarriage of justice may have occurred and considers that it is in the interests of justice to do so, it could refer the matter to a court.

Notably, the bill describes factors that the commission must take into consideration in making its decision in the interests of justice, including the following two: first, the personal circumstances of the applicant; and second, the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention to the circumstances of Indigenous or Black applicants. This is clearly in response to systemic discrimination associated with the criminal process when applied to these groups.

In terms of composition, the commission will consist of a chief commissioner and four to eight additional commissioners. When recommending commissioners, the Minister of Justice must:

. . . seek to reflect the diversity of Canadian society and must take into account considerations such as gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous peoples and Black persons.

Furthermore, all commissioners will need to possess “. . . knowledge and experience that is related to the Commission’s mandate.”

However, only the chief commissioner and at least one third but not more than half of the commissioners will be lawyers with at least 10 years’ experience in criminal law. The other half would be people having no legal training but familiar with the system.

The commission will have to publish its decisions online, in contrast to the opacity of the existing scheme, which does not require the Minister of Justice to publish conviction review decisions.

Finally, the commission will be empowered to provide applicants and potential applicants with information and guidance at each step of the review process, as well as with supports to applicants in need, such as directing applicants to community services or helping applicants access services, supplying translation and interpretation services and helping them to obtain legal assistance in relation to their application. Mind you, many of these applicants are in jail, and it’s difficult for them to even get access to a photocopier.

This is a very positive development when one considers that many wrongfully convicted persons are then serving time in prison with limited access to resources, as I said, and poor ability to speak to a lawyer.

Finally, before concluding, I wish to salute the work of Innocence Canada, formerly called the Association in Defence of the Wrongly Convicted. A non-profit organization founded in 1993, the association focuses on factually innocent persons, an impactful reminder that in conversations about miscarriages of justice, we are talking not only about those who should not have been convicted in the legal sense but also about those who truly did not commit the crimes for which they were convicted.

Since its inception, Innocence Canada has helped exonerate 29 innocent people, including Guy Paul Morin.

In conclusion, colleagues, an entirely error-free criminal justice system is not possible. However, to recall the words of Mr. Milgaard, it is within our power to ensure that the justice system does not fail the wrongfully convicted a second time.

This bill gives us an avenue to achieve this crucial imperative, and I invite us to complete our second reading as soon as possible, considering the prevailing conditions in the Ottawa bubble.

Thank you. Meegwetch.

The Hon. the Speaker: Senator Batters, do you have a question? Is it a quick question? Because I’ll have to see the clock.

Hon. Denise Batters: It is. Two brief questions. First of all, Senator Dalphond, thank you for that speech. One of my questions is this: Currently, the reviews go to the justice minister through the — you referred to it in your speech — the Criminal Conviction Review Group. You noted that’s within the Justice Department. Who is in that group? Are they all lawyers?

Senator Dalphond: Thank you very much. That’s an excellent question. They are lawyers. They are under the supervision of a director, who is also a lawyer, and they are working separately from the minister’s office. They don’t report to the minister except at the end, when they come out with an investigation report and some suggestions about what type of decisions will be made, including legal opinions.