Friday, February 17, 2023

'David and Joyce Milgaard's Law: Government of Canada introduces legislation to establish an independent miscarriage of justice commission...Reaction from Australia. Dr. Bob Moles: "We are delighted to see that the Canadians are now moving to legislate for a new Miscarriage of Justice Review Commission. It now leaves Australia as the only comparable country which has so far failed to show any interest in this important initiative."

PRESS RELEASE: "Minister of Justice introduces legislation - the David and Joyce Milgaard law - to establish an independent miscarriage of justice commission," released on February 16, 2023,  by the Government of Canada.

ESSENCE OF RELEASE: "Today, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced proposed Criminal Code amendments to establish an independent commission dedicated to reviewing miscarriage of justice applications. The new commission would replace the current ministerial review process. Under the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), the new commission would review, investigate, and decide which criminal cases should be returned to the justice system due to a potential miscarriage of justice".,,,,,,,,,"The independent commission would review miscarriage of justice applications and decide whether to grant a remedy, such as ordering a new trial or new appeal. These applications would no longer be decided by the Minister of Justice."

JUSTICE MINISTER DAVID LAMETTI: David Lametti: “Wrongful convictions are a matter of deep concern to me, and to many Canadians. Our government believes that a fair and equitable criminal justice system must guard against potential miscarriages of justice. “David and Joyce Milgaard’s Law is a critical step forward in establishing an independent review process to examine whether a miscarriage of justice may have occurred. An independent commission will help make miscarriage of justice reviews more efficient and make the process truly available to all who want to access it.”

INITIAL REACTION TO JUSTICE MINISTER'S STATEMENT: Doctor Bob Moles: Along with Prof. Bibi  Sangha, he is a major force in the movement to establish independent miscarriages of justice commissions in jurisdictions throughout the world. Reached by The Charles Smith Blog, Dr. Moles said he was delighted to that the Canadians are now moving to legislate for a new Miscarriage of Justice Review Commission and noting that, "It now leaves Australia as the only comparable country which has so far failed to show any interest in this important initiative. "Dr.  Moles points out that  the government  specifically avoided the use of the word 'criminal' in the title of this new body adding that, "Some submissions for those claiming to be wrongly convicted vigorously asserted they were not 'criminals'.  However, he says there is one point in the media statement which he finds confusing and requires clarification:  It states that [the Commission] has the power to order a new trial and then goes on to state that "only court has the power to overturn a conviction." As Dr. Moles puts it: "I have written to the office of the Minister of Justice to suggest that those statements appear to be contradictory.  If the Commission can "order a new trial", then that can only be done if the conviction has been overturned.  If it is the court which has to overturn the conviction then surely it is the court which will order the new trial?  Clearly, a person cannot be ordered to be retried until the conviction has been set aside." 

Dr. Moles and Prof. Sangha publish 'Networked Knowledge' - one of the  most expansive depositories of wrongful conviction materials in the cybersphere. Links to relevant documents can be found at:


DR. MOLE'S LETTER TO THE CANADIAN JUSTICE MINISTRY'S PRESS SECRETARY  (February 17, 2023); "To the Press Secretary, Minister of Justice, Canada;  Dear Ms Ebadi, I am a senior researcher on miscarriages of justice in Australia. We published the book Forensic Investigations and Miscarriages of Justice a few years ago, with Professor Kent Roach, and which was launched by Justice Goudge in Toronto. We provided a submission to your commission inquiring into these issues. [The submission and other details are available here]. In the media release announcing the legislation to establish the Commission, it is stated as follows: "[the commission] will grant a remedy, such as ordering a new trial or new appeal. Only the courts have the power to overturn a conviction." I would like to point out that these two statements are not consistent with each other If the Commission has the power 'to order a new trial' then it is a necessary precondition to the exercise of that power that it has already overturned the conviction. It is not possible for a person to be retried in respect of an alleged offence, if that person remains convicted for that offence. Equally it follows that if the Commission has to await the overturning of the conviction by the court, then it must follow that it is the court which has the power to order the retrial. We are of course delighted to see that you are making such good progress to deal with these issues, and we will follow those developments with considerable interest and encourage the uptake of a similar initiative in Australia."

Dr Bob Moles;



  • The proposed new commission would not be an alternative to the justice system. Applicants would first need to exhaust their rights of appeal before requesting a miscarriage of justice review by the commission.

  • The commission would not decide whether an applicant is guilty or innocent. Rather, if the commission decides if a miscarriage of justice may have occurred and is in the interest of justice, it will grant a remedy, such as ordering a new trial or new appeal. Only the courts have the power to overturn a conviction.

  • Establishing an independent commission responds to calls from stakeholders and advocates for the wrongfully convicted, and follows the establishment of similar independent commissions in other countries, such as England, Wales and Northern Ireland, Scotland, and New Zealand. The creation of independent commissions in those jurisdictions has led to significantly more applications being made and more wrongful convictions being identified and remedied, compared to Canada.

  • In March 2021, the Minister of Justice appointed retired judges Harry LaForme and Juanita Westmoreland-TraorĂ© to hold consultations and provide options on the formation of an independent commission. This included submitting a report to the Minister summarizing the input received during the consultations and providing options on the path forward.

  • The current criminal conviction review process is set out in Part XXI.1 (sections 696.1 to 696.6) of the Criminal Codeand accompanying regulations.

  • The criminal conviction review process was last reformed in 2002 following public consultations, which resulted in changes that clarified the criteria for making an application, provided for subpoena powers, and expanded the reviews to include summary conviction offences.

  • These proposed amendments to the Criminal Code are a key step towards establishing an independent commission. The passage of legislation would need to occur before the commission could be established and begin its important work."

    The entire release can be read at

PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: Please send any comments or information on other cases and issues of interest to the readers of this blog to: Harold Levy: Publisher: The Charles Smith Blog;


FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;


FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;



David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”