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Botting pens open letter on remedying wrongful convictions

published July 14, 2017

British Columbia criminal lawyer Gary Botting has written an open letter to David Milgaard to support changes to the way wrongful conviction claims are reviewed.

Botting, the principal of Gary N.A. Botting, Barristers and Solicitors, urges Milgaard to continue his campaign for the establishment of an independent review body.

Milgaard received a $10-million settlement from the Saskatchewan government after DNA testing proved he was innocent of the murder of a nurse for which he served 23 years in prison before being exonerated. DNA profiling proved that Larry Fisher had sexually assaulted and murdered the nurse. Fisher later died in jail.

Botting says Milgaard is currently on a lecture circuit of law schools and support groups such as the Innocence Project to urge Parliament to adopt a new approach to addressing miscarriages of justice.

Milgaard wrote the forward in Botting's book Wrongful Conviction in Canadian Law (Markham: LexisNexis, 2010), calling for the establishment of an independent review board to determine which wrongful conviction applications have merit. Under the current system, all such application must be made to the minister of justice.

“Canada’s system of investigating and reviewing miscarriages of justice is way too slow,” wrote Milgaard.

“We need a system where an independent Board that is not part of the criminal justice system or the government looks at all cases where anyone claims he or she has been wrongfully convicted. When this Board finds that the person is innocent, the government should quickly free them and give them compensation.”

Botting, in his open letter, says Milgaard has been actively campaigning for such an independent board of review since 2010.

“It is disheartening to learn that despite your efforts and sacrifice, and despite the strong recommendations of successive Commissions of Inquiry into Wrongful Conviction, the Government of Canada remains intransigent,” Botting writes.

He says the application process isn't user friendly and "requires full documentation beyond the ken of ordinary men.

“Furthermore, the decision-making process remains top-heavy with brass, including the minister of justice and deputy minister.”

Botting points to the 2002 amendments to the Criminal Code that add sections 696.1 - 696.6, which now determine how the minister is to conduct a ministerial review. The related Regulations Respecting Applications for Ministerial Review—Miscarriages of Justice (SOR/2002-416) were approved that same year. The regulations set up a Criminal Conviction Review Group (CCRG), which directs the Department of Justice how to apply its published policy governing wrongful conviction reviews.

Botting maintains these changes are “largely cosmetic.”

“Despite the complexity of the review apparatus and procedure, and the apparent independence of its lawyers, the CCRG can only make recommendations,” he says in the letter. “Thus, the minister of justice remains directly responsible for any ‘decision’ with respect to applications made under sections 696.1- 696.6 of the Code.

“Only rarely does the minister provide the requested relief.”

Botting says the CCRG is quite different from the “criminal case review board” contemplated in 1998 by Commissioner Fred Kaufman in Recommendation 117 of the Morin Inquiry in Ontario.

He notes the amendments to the Criminal Code ignored the first two recommendations of the Royal Commission on the Donald Marshall, Jr., Prosecution in Nova Scotia in 1990. That commission suggested “establishing a permanent review body” independent of the minister of justice or the Department of Justice.

A permanent, independent review body has yet to be established, Botting says.

“The final recommendation of Commissioner Peter Cory in the Sophonow Inquiry in Manitoba in 2001 also emphasized the importance of establishing a ‘completely independent entity’ which ‘can effectively, efficiently and quickly review cases in which wrongful conviction is alleged’ — a recommendation repeated verbatim in 2007 by Commissioner Patrick LeSage in the Driskell Inquiry, also in Manitoba,” Botting writes in his letter to Milgaard.

In an interview with AdvocateDaily, Botting points to how seven of eight commissions have recommended that an independent body similar to the United Kingdom model should be emulated here in Canada.

“So far, that has not happened,” he says. “Independence is key. The British model for review of alleged miscarriages of justice is workable, economic and effective, and it comes well recommended.”