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Canadian Criminal Code: In an attempt to provide justice to those innocents who are found guilty of a crime they did not commit, Canada’s Federal Minister of Justice plans to introduce a bill to amend the Canadian Criminal Code. The aim is to set up an independent commission to review cases where the convicted are innocent but are proven guilty and are spending time in prison.

The main function of the commission would be to not only review but also investigate and then decide the criminal cases that ought to go back to the court for yet another trial. No, the commission will not replace the courts but will give those wrongfully confined, yet another chance at life.

What is the Canadian Criminal Code amendment?

So, what was the need for an amendment in law when there is already a system in place where the wrongfully convicted can seek it? As of now, there exists within the Department of Justice, a Criminal Conviction Group, in which individuals who have exhausted all their avenues can seek justice. Once the group has investigated the case, they then seek the Minister of Justice’s approval to either dismiss or allow the case to proceed further. So instead of the Minister deciding each case on the basis of fact and law, the new proposed law will give that power to the commission.

According to Federal Corrections Services Canada, the percentage of white people in prisons is 53.7%, Indigenous is 26.1%, Black 8.1% and Asians 5.9%. Justice Minister David Lametti, while addressing a news conference expressed regret that most files that he has seen for review come from white people.
He is hoping the change will ensure reviews are accessible to women, Indigenous people and racialized Canadians. “When I look at the files that come to me, I see a clear pattern. The applicants are overwhelmingly white men, and our prison populations do not look like that. This tells me that the system is not as accessible to women or to Indigenous peoples or Black or racialized people who are disproportionately represented in our criminal justice system. We have to change that, some of these files go back decades”, he said.

Miscarriage of Justice review

The new bill that is aimed at creating an independent commission to administer the miscarriage of justice review process will be called David and Joyce Milgaard Law. Who are these people? David Milgaard was just an average guy who was in the wrong place at the wrong time, way back on January 31, 1969. He was just 16 years old then. A nurse, Gail Miller was raped and killed when David and his friends were passing by the area. Two months later, David’s friend went to the police claiming that he had seen David behaving suspiciously on the morning of Gail’s murder and also remembering having seen blood on his clothes, leading him to suspect that his friend committed that murder. Years later, it was divulged that the friend had received a $2000 reward for providing that evidence.

Relief for inmates of “wrongful conviction”

As was common during that time, David and his friends were hallucinogenic drug users. Based on that evidence, David was put behind bars for 23 years while his family refused to believe that he committed that crime. He along with his mother Joyce Milgaard spent decades running from pillar to post trying to prove that it was not him who had committed the crime. He was finally released in 1992 and exonerated in 1997. Larry Fisher was caught and convicted of similar crimes later. In 1980, Larry’s ex-wife had gone to the police trying to tell the police that she suspected her husband, of killing Gail.

Despite the inspector finding that the second story credible, yet did not follow up with a report. According to Innocence Canada, David applied to the Minister of Justice to review his conviction but was turned down. When he applied the second time, the media picked up his story of wrongful conviction and finally the Minister asked the Supreme Court of Canada for its opinion. Eventually, in 1992, the court concluded that a new trial should be ordered and David’s conviction was squashed. It was later concluded that David’s conviction was a result of improper interviews of witnesses.

A new lease of life through the Canadian Criminal Code amendment

Whatever the case, the issue is that this man had to spend most of his adult life in prison. And when he got out, things had changed. People had moved on while his life had frozen in time. In an interview, he said, “Coping with being free after 22 years is hard. When I first came out I was a bit lost. Everything seemed so much faster, everybody was bouncing around. People seemed so busy. People didn’t seem to find time to just be kind of quiet, to take it easy. And I still find it like that, but I do take the time. Sometimes I just go camping and fishing or swimming and find my own time and pace. I hope that as time goes on I’ll feel a bit more comfortable.” Milgaard died of pneumonia last year, without having lived a life he was entitled to.
David Milgaard is just one of the many stories, rotting behind bars, with no avenue to redress or freedom.

Second trial after spending decades in jail

Yet another story that made headlines is of Tomas Yebes. He was found guilty of killing his two adopted sons, on the basis of circumstantial evidence. A fire expert had testified that the fire, which killed the two boys, had been deliberately set. All his friends had rallied around him telling the court that Tomas was a loving dad and a very kind and gentle soul but all pleadings did not register with the jury. Justice Wallace who sentenced him to life in prison with no chance of parole attributed the murders to “domestic problems and discord” that had been going on in his family and speculated Tomas “murdered these young boys and deprived them of their lives, presumably to remove an obstacle or impediment to your domestic happiness. One can only feel revulsion for the senseless deprivation of the lives of these two young men,” he said. Tomas begged the court not to close the case and pleaded he was innocent. Even his ex-wife said that Tomas was not the kind of a person to lay a hand on anyone but she was not called as a witness at trial. He appealed but to no avail as the higher courts upheld the conviction.

Tomas was convicted in 1983 and spent 37 years in jail for a crime he did not commit. It was in 2019 that federal Justice Minister David Lametti, who believed that Tomas should get another trial or appeal, accepted his application for a review. Tomas was finally acquitted of the murders. There are many such stories, which are yet to be told. Will their ordeal ever see the light of day or will they carry them to their graves? How many families have the willpower and resources to see them through as Joyce Milgaard? After all, trying to get your case heard once again in court or filing an appeal, certainly is an expensive affair and not for everyone to pursue. With the new commission, funding would be provided to applicants who need it. According to reports, one out of every twenty people found guilty of a crime is innocent and wrongfully confined.

Canadian Criminal Code amendment likely to be passed in the Canadian parliament

According to Innocence Canada, a group that is trying to highlight such stories, there are at least 90 cases under review and it has helped exonerate at least 24 people since its inception in 1993. The proposed Miscarriage of Justice Review Commission Act or David and Joyce Milgaard’s Law is likely to be passed in Parliament without any issue. After all, no political party or politician would oppose such a bill that is likely to help the innocent or they would be labelled as siding with the criminals and not good for their political careers.

The aim of the new Bill-C40 is to create confidence in the justice system and to give access to those who are wrongfully convicted, another chance to get their time in court, removing all barriers. This would be especially helpful for those who belong to marginalized sections of society like the Indigenous, Black or others. It is high time miscarriage of justice is addressed as quickly as possible to mitigate the impact it has on the convicted and their families. Reforms in the justice system have long been on the table; wheels of justice have finally started to roll. Certainly, everyone needs a second chance in life and the new bill certainly will give hope to not only the innocents but also their families.