David and Joyce Milgaard’s Law, named after the late David Milgaard, who served 23 years in jail for a crime he did not commit, and his late mother Joyce, who fought to have his conviction overturned, received royal assent on Dec. 17.
“The creation of an independent commission to review possible miscarriages of justice will build greater trust in our justice system and help right historic wrongs,” said Minister of Justice and Attorney General of Canada Arif Virani, according to the release.
Virani added that the law would also broaden access to justice for people who the existing process did not reach, particularly Indigenous people and Black Canadians.
The law provides for the establishment of the Miscarriage of Justice Review Commission, which will be empowered to grant a remedy such as ordering a new trial or new appeal if it decides that a miscarriage of justice may have occurred.
The application process to the commission will replace the existing process under which such applications for miscarriages of justice are sent to the Minister of Justice, who has the authority to order a new trial or new appeal.
The law empowers the commission to conduct an investigation in relation to an application where 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 represents a significant shift from the previous process, which required applications to be based on new and substantial information not examined during the trial or unknown to the applicant until after court proceedings.
In reaching decisions on ordering new trials or hearings, the commission will be required to consider, among other factors, challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, and in particular, challenges faced by Black and Indigenous applicants.
The commission will have the powers to summon any witness and to require them to give evidence orally or in writing or to produce documents or other material considered relevant to the matter under examination.
Innocence Canada welcomed the enactment of the new law, calling it “ground-breaking legislation that will make for an enormous improvement to our criminal justice system.”
The new commission would be composed of a full-time chief commissioner and four to eight other full-time or part-time commissioners.
The law requires the minister of justice to take into account gender equality and the over-representation of certain groups in the criminal justice system, including Indigenous peoples and Black persons, when making recommendations for commissioner appointments.
“We need this commission up and running as soon as possible to help the wrongfully convicted people who are unfairly in prison right now and who need your help,” said Susan Milgaard, sister of David Milgaard and daughter of Joyce Milgaard, according to the release.
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