The proposed Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law)

On February 16, 2023, the Minister of Justice and Attorney General of Canada introduced a bill to amend to the Criminal Code to establish an independent commission to review, investigate, and decide which criminal cases should be returned to the justice system due to a potential miscarriage of justice.

Currently, the federal Minister of Justice has the authority to review convictions and order a new trial or appeal where there is a reasonable basis to conclude that a miscarriage of justice likely occurred. The proposed changes will replace the existing ministerial review process with a new commission-led process.

The current Part XXI.1 of the Criminal Code will be completely reformed and a new Part XXI.2 will be added to create the new independent commission to administer the miscarriage of justice review process.

The bill is named after David and Joyce Milgaard. David Milgaard was wrongfully convicted of a crime he did not commit and spent 23 years in prison before being released in 1992 and finally exonerated in 1997. Joyce Milgaard, his mother, spent decades advocating for her son’s release and compensation for the injustices he faced. Mr. Milgaard’s experience revealed the flaws that can exist in our justice system. Joyce and David Milgaard were forceful advocates for the wrongfully convicted. They called for changes to be made to Canada’s wrongful conviction review process, including the establishment of an independent commission.

Proposed new independent commission-led process

The new commission would have the mandate to review, investigate, and decide which cases should be returned to the justice system due to a potential miscarriage of justice. The commission will be established under the Criminal Code, in a new Part XXI.2. It will be an independent, stand-alone entity outside the Department of Justice.

As an investigative body, the commission will be granted the same powers of investigation the Minister of Justice currently has and the same powers as a commission of inquiry. These include the power to require witnesses to testify under oath, and the power to compel the production of information and evidence, for example from law enforcement.

The commission will not be an alternative to the courts. Appeals will continue to be heard on the grounds of a miscarriage of justice and applicants would first need to appeal their conviction before requesting a review by the commission.

Unlike the current process where the Minister of Justice decides whether a miscarriage of justice likely occurred, the commission would decide whether a miscarriage of justice may have occurred and whether it is in the interest of justice to direct a new trial or refer the case back to the Court of Appeal. This would include considering the specific personal factors of the applicant as well as 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 and Black applicants.

The commission will consist of one full-time Chief Commissioner, and at least four and up to eight commissioners, all appointed by the Governor in Council, on the recommendation of the Minister of Justice. The commissioners will reflect Canada’s diversity and take into account the overrepresentation of certain groups in the criminal justice system, such as Indigenous peoples, Black, and racialized Canadians.

The commission will be authorized by statute and have funding for the following programs and supports:

• General public legal education and outreach to potential applicants about the commission’s role and the application process.
• Access to legal assistance for applicants who need help with the application form and responding to investigation report of the commission.
• Translation and interpretation services in the language of the applicant when needed. The Official Languages Act would otherwise apply.
• Notice and information for victims through a dedicated victim services coordinator.
• Reintegration supports to applicants in need during the review process (e.g., for the necessities of life such as housing and food). This support would be funded by the commission, but delivered by external service providers.
• The commission’s decisions would be made public as another means of raising awareness about the causes and consequences of wrongful convictions.
  • The commission would be required to prepare annual reports that would be tabled in Parliament and published on the Commission’s website.

Existing ministerial review process

The current criminal conviction review process is handled by the Criminal Conviction Review Group (CCRG) within the Department of Justice Canada. Individuals who have exhausted their rights of appeal can apply to have their convictions reviewed. The CCRG conducts a review on behalf of the Minister of Justice and advises the Minister on the appropriate remedy, if any. The Minister will then review relevant material and decide, on the basis of the facts and the law, whether a review application should be dismissed or allowed.

The Minister of Justice has the power under Part XXI.1 of the Criminal Code to review a conviction under a federal law and to order a new trial or appeal where there is a reasonable basis to conclude that a miscarriage of justice likely occurred.

The CCRG will continue to review applications from potentially wrongfully convicted people until an independent commission begins operating. Existing applicants would have the option to have their application transferred to the new commission.

More information about how the review process currently works can be found on the Criminal Conviction Review page.