Wrongful convictions plan mostly right

Canada’s wrongful conviction movement finally glimpsed its Holy Grail last month when the federal government introduced legislation to create an independent commission endowed with broad powers to investigate and correct miscarriages of justice.

With luck, Bill C-40, otherwise known as the Miscarriage of Justice Review Commission Act, is likely to receive all-party support and become law in short order.

And all it took was over 80 known wrongful convictions; urgent recommendations from seven public inquiries; decades of lobbying by volunteer advocacy groups; and repeated pleas from exonerees. The battle for an independent commission has been more a demonstration of molasses flowing uphill in January than an exercise in timely reform. In Justice Minister David Lametti, we found someone who finally both listened and acted. While imperfect in some ways, the commission represents a giant leap forward.

Bill C-40 was introduced the same week the University of Toronto’s Canadian Registry of Wrongful Convictions was unveiled.

Sifting through decades of musty court records and media reports, the registry contains information on 83 Canadian miscarriages of justice — no doubt, a number that only hints at the magnitude of the problem. Most of these cases were homicides. Undoubtedly, a far greater number of forgotten yet innocent defendants never acquired a public profile or simply served out their jail sentences before vanishing into their long-delayed freedom.

Canada’s Miscarriages of Justice Commission will operate separately from the federal Department of Justice. Applicants will at last be able to seek exoneration from a body that is independent of the very government they hold responsible for engineering their wrongful imprisonment.

The proposed commission will be empowered to reconsider any criminal conviction, not just homicides, and thoroughly investigate wrongful conviction claims using robust powers to compel testimony and documents.

Until now, the work of overturning wrongful convictions in Canada has been left to an overwhelmed patchwork of volunteer organizations hobbled by meagre funding, frequent turnover of personnel, and a lack of legal resources.

The greatest threat facing the proposed Miscarriages of Justice Commission is almost certain to be financial. With no built-in mechanism to guarantee its continued fiscal well-being, the commission could all too easily be reduced to a shell by future governments bent on budget slashing.

Lametti’s blueprint also stops short of allowing the Miscarriages of Justice Commission to proactively research, identify and make recommendations that could help reduce systemic problems that lead to wrongful convictions, including junk science, police tunnel vision, false confessions, and suppressing evidence.

In addition, the five to nine commissioners proposed for the commission are markedly less than the complement of nine to 11 recommended by a working group that studied and proposed a commission design. Worse still, each commissioner will be chosen by the federal cabinet, rather than a non-partisan committee of experts, leaving open the possibility of underqualified, patronage appointees.

So, with much to commend it but a few notable gaps, the proposed commission is close to becoming reality and Lametti has ensured himself a worthy legacy project. Should he see fit to add some final tweaks, the Miscarriages of Justice Commission could become a model and a beacon for countries around the globe.