After justice advocate David Milgaard’s recent death, experts are hopeful that a commission for the wrongfully convicted will be a part of his legacy.
Milgaard, the victim of one of Canada’s most notorious miscarriages of justice, was 17 when he was convicted of a crime he did not commit. After 23 years in prison, the Supreme Court overturned his conviction in 1992 and he was fully exonerated in 1997 through DNA evidence.
Milgaard turned to advocacy after his ordeal and maintained a public figure to bring attention to wrongful convictions.
Doug King, a justice studies professor at Mount Royal University, remembers when Milgaard was taking classes at the university and would occasionally visit his office to talk about the justice system.
“When people say in the media that he did not seem to be bitter about what happened to him, I think that’s pretty accurate,” King says. “I mean, externally he wasn’t bitter and he wanted to change how the criminal justice system needs to be more sensitive to the issues of wrongful conviction.”
A new commission
King says one of the changes Milgaard advocated for was setting up a commission for people who believe they have been wrongfully convicted to petition for their case to be reviewed. If the commission feels there is a reasonable likelihood of a mistake, then they would make a recommendation to the federal government.
Harry LaForme, one of two former judges asked by Justice Minister David Lametti to deliver a report to help develop an independent criminal case review commission, says such a commission is necessary to examine disproportionate incarceration, noting while Indigenous people only make up five per cent of the Canadian population, Indigenous men account for 35 per cent of the prison population.
“As a retired judge, as a retired Indigenous judge, as the retired first Indigenous judge to ever sit on a court of appeal in Canada, that’s an issue that I couldn’t leave alone after I retired,” LaForme says.
LaForme cites the department of justice’s admission that Indigenous and Black people are not prone to committing more crimes, but are arrested and charged more than anyone else.
“In Indigenous offenders, what happens is they enter pleas of guilt in northern communities as a matter of course,” LaForme says. “And they might plead guilty to 12 or 13 different offences, and maybe only half of them are offences that they are actually guilty of.”
LaForme believes the commission is needed to address systemic racism and that wrongful convictions are a societal issue.
“Lawyers make mistakes, police make mistakes, judges make mistakes and mistakes happen, and innocent people suffer for it,” LaForme says. “Well, that’s worth caring about.”
Impact of incarceration
Wrongful convictions are more common than we think, says King.
“We’d be foolish not to acknowledge that there are people who’ve been wrongfully convicted ranging from murder down to something as simple as mischief or property damage or something like that.”
LaForme says Milgaard made it clear prison is a bad place, whether wrongfully convicted or not.
“And when you put people in there, whatever their crime has been, doesn’t matter, they’re still in a really bad place and bad things happen when you’re in prison,” he says.
LaForme’s findings in the report reinforced the negative impacts a wrongful conviction has on incarcerated people and their families.
“As much as people might think prison rehabilitates people, it doesn’t,” LaForme says. “We’re not very successful at that, so all we do is warehouse these people, and some of them haven’t done anything wrong.”
Government perspective
While LaForme hopes every recommendation is implemented, he recognizes it is unlikely as the government will also be considering costs and opinions from policing and prosecution services.
“They’re gonna have to hear from all of them and they may have an influence, but I think our report tells the government the best way to do it,” LaForme says.
King, meanwhile, is optimistic the wrongful conviction commission will be established in the next two or three years, but acknowledges it’s a difficult process to pass legislation.
“The current minister of justice is behind it, but you know, politics is politics.”
King adds that with Milgaard no longer here to share his story, it becomes more difficult to amplify this message.
“The world moves on and this is where those of us who cared about what David was advocating for have to keep the pressure up on the federal government of Canada.”
He hopes the commission can be part of Milgaard’s lasting legacy.
“We’ll just have to push for it and pick it up for him.”