Justice experts say proposed federal legislation that would create a new process to review potential wrongful convictions could benefit groups of people overrepresented in the Canadian justice system — if it’s done properly.
Federal Justice Minister David Lametti announced Thursday he’s introducing legislation to create a commission to review miscarriages of justice.
This would replace the current process — which gave the minister final say on handling potential wrongful convictions stemming from federal laws and regulations — and hopefully lead to quicker outcomes. The commission would also be independent of the justice ministry.
Nicole Porter, a criminal consultant with N.A Porter and Associates and a social justice advocate, hopes the new system will help people who are wrongfully convicted transition back into community.
“Some of these people have been institutionalized their entire lives and they’ve known nothing but prison,” Porter said, referencing two Saulteaux sisters who have been in the prison system for almost 30 years but claim they are innocent.
Porter worked on a pro bono independent forensic analysis of the 1994 murder conviction of Odelia Quewezance, 51, and Nerissa Quewezance, 48, from Keeseekoose First Nation, located about 230 kilometres northeast of Regina.
The pair were arrested in 1993 for the murder of Anthony Joseph Dolff, a 70-year-old farmer near Kamsack, Sask., and convicted of second-degree murder along with another person who was a youth at the time and confessed to the killing.
Their defence team is arguing for their conditional release while their cases are investigated by the federal Justice Ministry’s review process as a potential wrongful conviction, which can take years.
“How our world works now is way different in comparison to what it was than it was 30 years ago, so providing necessary supports … is really a necessity,” Porter said.
Option to transfer
Once the new commission is established, “existing applicants would be given the opportunity to consent to the transfer of their application to the new commission,” federal Ministry of Justice spokesperson Geneviève Groulx said in an email.
If they choose not to transfer and their application is already past an assessment stage, then the old process would continue, with the minister making a decision, Groulx wrote.
Porter said in the sisters’ cases, their decision could rely on how long it takes for the commission to become active.
“If they’ve already been involved in the review for a few years, by the time this happens then it might be in their best interest to stick it out.”
LISTEN | Federal Justice Minister David Lametti and a wrongful conviction expert, advocate on proposed review commission:
The Current24:37New legislation to create an independent commission to review wrongful conviction cases
As it’s written now, the Miscarriage of Justice Review Commission Act will have five to nine commissioners to review and investigate criminal cases as potential wrongful convictions with the same authority the minister had: to order a new trial, appeal or application dismissal.
Lametti told Matt Galloway, host of CBC’s The Current, that he hopes the commission is active as soon as possible, but it has to proceed through the House of Commons and the Senate, which could include amendments to the legislation.
A Thursday government news release said the commission would remove barriers for groups like Indigenous peoples and Black people — who are overrepresented in the prison system — to access the process.
“We’re trying to make sure that groups [that are] overrepresented in the criminal justice system see this as a trustworthy institution that they can come forward to,” Lametti said.
Porter said she submitted a report outlining a lack of community support — including wellness, housing and employment — for people transitioning out of the prison system after being wrongfully convicted, or for people released pending a review decision.
Porter said some of those recommendations appear to be included in the legislation but she hopes more are part of the final product.
The legislation is also known as David and Joyce Milgaard’s law, named after David Milgaard — the Winnipeg-born man who was wrongfully imprisoned for 23 years for the rape and murder of Saskatoon nurse Gail Miller — and his mother Joyce, who Milgaard largely credited for securing his freedom.
WATCH | Justice Minister Lametti announces new legislation to start review commission:
After his release, Milgaard continued to advocate for people he believed were wrongfully convicted, including the Quewezance sisters.
According to court documents, both Quewezance sisters assaulted Dolff and were present when he was repeatedly stabbed — which doctors said were likely the cause of his death — but say they are innocent in his death.
The defence argued in January that their confessions were forced and unreliable. The Crown opposed their release, saying there isn’t enough proof the sisters are innocent in Dolff’s death and pointed to their parole violations throughout their incarceration.
“Whether they are on bail pending appeal … or whether it’s that they’ve already been identified as having been wrongfully convicted, there really is currently nothing in place to help them when they transition back into the community,” Porter said.
Porter thinks that given how long it could take for the legislation to come into action, it may be better for the sisters to remain on their current course, but the focus on addressing overrepresentation of Indigenous people in the justice system could benefit their review.
LISTEN | James Lockyer, co-founder of Innocence Canada, on the new legislation and the Quewezance sisters’ case:
The Afternoon Edition – Sask8:50New legislation introduced has been named for David and Joyce Milgaard
James Lockyer, part of the Quewezance sisters’ defence team and co-founder of Innocence Canada, told The Afternoon Edition that he and others from the advocacy group have been pushing for the review commission since the group’s founding in 1993.
He said some aspects of the legislation could be improved but “overall it’s fantastic legislation.”
While the minister’s office has been reactive by examining evidence given to them, Lockyer said, the commission will be proactively investigating.
“The minister has an enormous number of responsibilities and to give him the responsibility to look at individual cases inevitably means considerable delay.”
From over-policed to overrepresented
In 2019, Justice Harry LaForme, an Indigenous retired Ontario Court of Appeal judge, was asked by Justice Minister Lametti to prepare a report alongside former Quebec Court Justice Juanita Westmoreland-Traoré on an independent process to review potential wrongful convictions.
In an interview with CBC, LaForme said the legislation isn’t set up to address the issues of overrepresented populations in prisons, including incarcerated Indigenous people, but wants it to reach that point and also be able to examine that systemic problem.
“The fact of the matter is Indigenous and Black people … don’t commit a disproportionate [amount of] crimes as a result of being Indigenous or Black, they are overrepresented because they’re over-policed,” he said.
“The systemic part of our justice system is unfortunately racist.”
According to the office of the correctional investigator, as of Dec. 25, 2022, 85 per cent of all federally incarcerated women in Saskatchewan were Indigenous.
LaForme said he wants a requirement for at least one of the commissioners to be Black and another to be Indigenous.
“But there’s no guarantee that that will happen and I think there needs to be,” LaForme said.
The proposed process said it would “reflect Canada’s diversity, including Indigenous and Black members.”