Susan Milgaard at the announcement of Bill C-40.
Susan Milgaard at the announcement of Bill C-40. Credit: David Lametti / Twitter Credit: David Lametti / Twitter

David Milgaard lost 23 years of his life when he was wrongfully convicted of a murder someone else committed.

But even a generation of incarceration could not stop David from fighting for his innocence.

While David fought from behind bars, his mother, Joyce Milgaard, tirelessly advocated for her son’s release.

It was the shared persistence from a son and his mother that helped David get out of prison. He would go on to become a criminal justice advocate, helping others falsely convicted of crimes regain their freedom.

David and Joyce have since passed, but their legacy is as alive as ever.

Earlier this month, federal Justice Minister David Lametti introduced Bill C-40, known as David and Joyce Milgaard’s Law.

Independent tribunal to review cases

The legislation would take the responsibility to weigh judicial reviews from the minister of justice’s portfolio, and instead, assign an independent tribunal to review cases through their own criteria.

It would mark the first criminal conviction review process reform in Canada since 2002.

According to Lametti, an independent commission will help improve access to justice by “making it easier and faster for potentially wrongfully convicted people to have their applications reviewed.”

The commission would be responsible for determining whether miscarriages of justice have occurred in individual convictions, with the power to direct a new trial or hearing to the appropriate court or granting a new appeal.

Speaking to reporters on February 16, Lametti made clear there exists “a clear pattern” showing white men make up an overwhelming majority of appeal applicants. 

“This tells me that the system is not as accessible to women or to Indigenous peoples or Black or racialized people who are disproportionately represented in our criminal justice system,” Lametti said. “We have to change that.”

Lametti indicated it is time to take the responsibility for deciding which convictions away from public servants and into the hands of an independent body that reflects Canada’s diversity while also taking into account the overrepresentation of women and racialized people in the criminal justice system.

“When I met David in 2019, I committed to him personally that I would work to make the system better. I promised him,” Lametti said. “I hope I did not break faith with him with this bill.”

Lametti was joined by Susan Milgaard, the sister of David and daughter of Joyce.

Thanking those who helped work to free David and support those who have been wrongfully convicted, Susan had a clear message: “Don’t let that go.”

“Two generations have gone already, let’s stop it now in its tracks,” Susan said. “And please keep pushing forward for the people who are still there and need your help.”

Wrongful convictions like Milgaard’s deny justice for everyone

James Lockyer, co-founder of Innocence Canada and a lawyer who helped overturn David’s conviction, made a crucial yet often overlooked point at the press conference:

“We should always remember that one of the most important aspects of freeing the wrongly convicted is that it also means we might discover who actually committed the crime,” he said.

That is exactly what happened when Lockyer helped exonerate David in 1997. Not only did DNA testing prove David’s innocence, it also proved who the real perpetrator was.

Marking its 30th anniversary, Lockyer noted the Association of Defense of the Wrongly Convicted was formed on two objectives: Help those convicted for crimes they did not commit, and advocate for the creation of an independent review commission like that of Bill C-40.

“I’ve been in the justice system for 46 years now, starting in 1977, and there is no doubt at all in my mind that this is the biggest change to the justice system, and the best change one could imagine,” he said.

Asked by a reporter why it’s taken 30 years to create an independent commission, Lametti answered candidly: “I don’t know.”

“It has certainly been a personal mission of mine since I was named minister in 2019,” he said, noting he lobbied to have the move included in his mandate letter.

Lametti indicated only “a little over one case a year” has come across his desk since becoming Canada’s justice minister, with a total of just five or six cases that he added had “taken a long time to get there.”

“We’re really hoping that the commission will be more proactive and move more quickly,” he said.

What would the commission be responsible for?

While Lametti pointed out that the commission will have between five and nine members, it’s unclear whether decisions will be made unanimously or by a majority vote.

The commission will be required to take a number of factors into account when deciding whether to send a case back to the court system. These include whether there is new information that has not been considered, the reliability and relevance of past information presented and the personal circumstances of the applicant.

One factor that is not required for a judicial review is evidence establishing innocence, in line with the court’s practice of requiring prosecutors to prove guilt rather than a defendant proving they are innocent.

As introduced, Bill C-40 would also give additional powers to the commission, like the ability to refer a question to the court of appeal for its opinion.

While the commission’s decisions would be subject to judicial review by the federal court, the tribunal’s decisions are not subject to appeal.

At least one-third of the commission, including the Chief Commissioner, but not more than half, must be lawyers with at least 10 years of experience practicing criminal law. Commissioners can serve up to seven-year terms which would be both staggered and renewable.

In addition to their work with prospective wrongfully convicted individuals, the commission will also have a dedicated victims services coordinator to support victims, allowing them to decide how much or how little they wish to be notified and supported through the review process.

The commission will be required to submit an annual report to Parliament that includes statistics on applicants, average processing times, and the number of applications received.

Image: Gilad Cohen

Stephen Wentzell

Stephen Wentzell is‘s national politics reporter, a cat-dad to Benson, and a Real Housewives fanatic. Based in Halifax, he writes solutions-based, people-centred...