“Lack of Justice: Why Canada’s System Fails to Review Miscarriages of Justice Like England’s”

The countries forming the United Kingdom have each had, for 25 years, a commission on miscarriages of justice much more effective than the Canadian system, which has freed only one person a year since 2003.

One could claim that Canadian justice is so perfect that there are never any miscarriages of justice.

This is obviously not the case. English justice works according to the same general principles. However, since 1997, 750 cases of possibly erroneous convictions have been sent to court by this commission. A total of 538 resulted in a new trial or release. These files had nevertheless followed all the rigorous stages of police investigation, trial, appeal. They were final sentences. But new facts were presented to the commission, which retained this impressive number of files.

England taken in isolation has 56 million inhabitants, against 38 million for Canada. The population gap of one and a half times does not justify the fact that in 20 years, only 20 errors have been found in Canada, while 538 were flushed out in 26 years among the English.

This is also the opinion of the Federal Minister of Justice, David Lametti.

In 2021, he commissioned Justices Harry LaForme and Juanita Westmoreland-Traoré to report on the current criminal conviction review system.

Conclusion: the current system is too complicated, too long, too inefficient, too arbitrary and unfair. In a nutshell: it doesn’t do the job.

Currently, the power to correct a miscarriage of justice rests with the Minister of Justice – a hangover from the ancient prerogative of royal clemency. For 20 years, a “Criminal Convictions Review Group” (CRCG) has been formed at the Ministry. Lawyers analyze the cases of people sentenced at last instance. Convicts must bring new evidence not available at trial. The GRCC then wonders if there are “reasonable grounds to conclude that a miscarriage of justice probably occurred”.

He then sends the file to a lawyer-investigator who will meet with witnesses and make a final report to the Minister. The minister can then voluntarily order a new trial or send the case to a court of appeal.

“Almost all of the 20 cases referred by the minister since 2003 ended in an acquittal,” writes the LaForme–Westmoreland-Traoré commission. In four of these cases (Steven Truscott, William Mullins-Johnson, Erin Walsh and D.S.), the Provincial Court of Appeal entered an acquittal and in another (Frank Ostrowski) it stayed the proceedings. In six cases (Daniel Wood, André Tremblay, Roméo Phillion, LGP, Eric Biddle and Yves Plamondon), the provincial Court of Appeal ordered a new trial after hearing the appeal, but the prosecutor decided not to prosecute. »

We can now add to this list the case of Judge Jacques Delisle, sentenced at last instance for the murder of his wife, but whose file was successfully re-examined by the GRCC. He has been waiting for nearly six months for the Quebec Court of Appeal to say whether he should have a new trial or not.

Since the creation of the GRCC, 186 people have sent a file. Of the lot, 132 did so without a lawyer; all these files were rejected.

It takes a lot of time and expertise to build such a case. More often than not, those convicted unjustly are marginalized people, without means. There are “innocence projects” in many places in Canada, where lawyers, more or less voluntarily, set up such cases. This is colossal work, which sometimes requires the intervention of outside experts – and therefore entails costs. In short, not everyone can build a solid case. Justice Delisle’s case is the exception among all.

In the case of Daniel Jolivet, it took the exceptional volunteer involvement of his lawyers, Dominique Larochelle (now a judge) and Lida Sara Nouraie. Despite everything, the GRCC did not judge that the file passed the test of the first stage (the appointment of a lawyer-investigator).

The GRCC made a number of factual errors in its analysis and dismissed each new fact brought to its attention as insignificant.

However, the GRCC has the mandate to review cases “where there are substantial grounds to doubt the validity of a conviction even if it is impossible to establish factual innocence”.

This is the very definition of the Jolivet dossier. Two major witnesses, including Jolivet’s supposed accomplice, were not brought to the stand. Evidence was hidden (including the fact that Jolivet was in a jewelry store when he was supposed to make a confession to informer Claude Riendeau in a restaurant). The erroneous use of telephone records to geolocate Jolivet at trial. The “jug” from the crime scene, linked by witnesses to the informer – indicating his involvement. Witness statements and wiretaps never disclosed. The hasty destruction of the prosecution file, even before the hearing in the Supreme Court.

The RCMPC itself was blamed by the Federal Court in the Jolivet case for its lack of transparency.

This winter, Minister Lametti relied on the LaForme–Westmoreland-Traoré report to introduce a bill creating an “independent commission” to review miscarriages of justice. Lametti began his career as a “clerk” to Supreme Court Justice Peter Cory, who recommended the creation of such a commission 20 years ago after the Thomas Sophonow case – wrongly convicted of murder. The subject is dear to him.

The bill is named after another famous victim of miscarriage of justice, David Milgaard, and his mother Joyce, who fought for 23 years to get her son out of jail.

This commission, if it is created, will make binding decisions. The minister will no longer have to be involved at the end.

The organization, made up of five to nine commissioners, will no longer wonder if there are grounds to believe that an error “probably” could have been made.

The commissioners will rather ask themselves “whether an error of justice has pu occur et whether it is in the interests of justice to order a new trial or refer the matter to the Court of Appeal”.

Like those of England, Scotland or New Zealand, this commission will be able to compel people to testify under oath.

For Daniel Jolivet, it’s a glimmer of hope. But how long will it take for this commission to be set up?

In the meantime, he still hopes that the GRCC will eventually open a door, and send his file for investigation to a lawyer…