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Preventing miscarriages of justice

CBA Sections comment on recommendations from the LaForme/Westmoreland-Traoré report on the proposed creation of a Miscarriage of Justice Commission.

Unlocked handcuffs

Three Sections of the Canadian Bar Association, in a letter to Justice Minister David Lametti, express their support for a strong and independent commission to rectify wrongful convictions and offer further comments on a select number of recommendations from the LaForme/Westmoreland-Traoré report on the proposed creation of a Miscarriage of Justice Commission.

This letter, by the Criminal Justice, Child and Youth Law and Sexual Orientation and Gender Identity Community Sections, should be read along with an earlier submission on the same subject, which offered comments on all the recommendations.

Commission Recommendation 5

This recommendation would mandate that a third of commissioners have expertise in the causes and consequences of miscarriages of justice, another third be qualified as lawyers and the last third represent groups that are overrepresented in prison and disadvantaged in seeking relief. In addition, there should be at least one Indigenous commissioner and one Black commissioner. The CBA Sections mostly agree and add that the lawyers be criminal law lawyers and that the non-lawyers on the commission be experts in wrongful convictions.

On diversity, the CBA Sections say it is necessary but have concerns that a particular quota may be seen as counter productive. “Rather than a strict number, it would be better that the Commission reflect the diversity of Canadian society. In making appointments, traditionally disadvantaged groups that have suffered historically from miscarriages of justice, as well as socially disadvantaged groups, should be represented.”

Commission Recommendation 18

This recommendation asks that substantive equality, combatting discrimination and colonialism be built into the commission’s statutory DNA, with clear and comprehensive reporting obligations. The CBA Sections agree with this commitment to substantive equality and caution that adequate resources must be available to accommodate linguistic diversity and all constitutional rights.

This is critical to “ensure that no person suffers a miscarriage of justice based on an inability to communicate. A reasonable attempt is not an acceptable standard when dealing with a miscarriage of justice.” Constitutional rights should drive resource allocation, the Sections add. “It is unacceptable for Canadian society to allow wrongful convictions to stand because the government is not prepared to commit sufficient resources to ensure justice is done.”

Commission Recommendation 25

This recommendation would give the commission jurisdiction to do systemic work to prevent miscarriages of justice from occurring in the first place. The CBA Sections fully support the commission having this jurisdiction. By definition systemic problems are difficult to identify and fix in individual cases. Given that the commission will evaluate the causes of wrongful convictions across cases, “allowing it to form an expertise and knowledge base that could be critical to law reform work in this area.”

Commission Recommendation 26

This recommendation would see the commission be proactive and provide outreach and support to applicants and potential applicants. The CBA Sections fully support that approach, which will “allow the Commission to reach those truly in need. It will also offer a mechanism to discover miscarriages of justice that would not otherwise come to the Commission’s attention.”

Commission Recommendation 50

This recommendation would enable the commission to provide support for the reintegration of applicants during the process and after they have been released or had their conviction overturned. This support should be in the statute and it should be properly funded.

“Serious criminal convictions typically have a stigmatizing and isolating effect,” the CBA Sections say. Reintegration can be a significant challenge, especially for those who have been incarcerated for many years. Additionally, wrongful convictions have a broad impact not just on the applicants but on their family and community. That’s why the commission “should play a proactive role in reintegrating applicants and exonerees so they can begin to reassemble their lives,” the CBA Sections conclude.