Wrongful conviction in Canada stokes judicial review

The largest compensation award to a victim of a miscarriage of justice in Canadian history has been made in the case of David Milgaard, who spent 23 years in prison for a rape-murder he did not commit. But if his "benchmark case," as it has been described, is one of the highest-profile wrongful convictions in Canada, it is by no means unique.

There are "hundreds of wrongful convictions" in this country, says his mother, Joyce, who has been described as "the most famous mother in Canada" for her tireless efforts first to free her son and then clear his name. She and family lawyers express hope that the inquiry to be launched into her son's case will identify ways to ensure no other family endures what theirs did. "Our purpose is to change the justice system."

Miscarriages of justice in Canada are "more frequent than one would imagine," Hersh Wolch, the Milgaards' soft-spoken attorney, concurs. "That has to be addressed."

Mrs. Milgaard, Mr. Wolch, and others are calling for an independent board to review possible miscarriages of justice, as has been instituted in recent years in Australia and in Britain, where a number of high-profile cases of wrongful conviction had shaken public faith in police, prosecutors, and courts.

Under current Canadian law, it is harder to get a new trial than in the United States. And the appeal of last resort here is the so-called "690 review" by the federal justice minister, Anne McLellan. Critics see this as an inherent conflict of interest: The justice minister, as Canada's attorney general, has ultimate authority over prosecutors across the country. This puts her on the same team, so to speak, as those whose incompetence or malice is at issue. "I find that prosecutors tend to stick together," Wolch says.

The 690 process is under review, according to Richard Mosley, assistant deputy justice minister in Ottawa. "A report is to be prepared and presented to the minister in the coming weeks," he says.

Five years after his conviction was overturned and nearly two years after DNA testing cleared Mr. Milgaard definitively of all suspicion in the crime, he and his family were awarded $10 million (Canadian; $US6.85 million) last week. This is the first case in which a wrongfully convicted prisoner's family has been so compensated.

Mrs. Milgaard's campaign for her son has included personally pleading with provincial and federal officials, all the way up to Prime Minister Jean Chrtien, who invited her to his home last month for a meeting.

The Saskatchewan inquiry into the case must wait until another man, Larry Fisher, is tried for the murder police and prosecutors long ascribed to Milgaard: that of Gail Miller, a nurse's aide, in Saskatoon, in 1969.

Mr. Fisher - who in 1970 confessed to several rapes in Saskatoon, including some in Ms. Miller's neighborhood - is the man who many close to the case feel should have been charged in the first place. (Milgaard was passing through the area at the time of the crime and was portrayed in the case as a longhaired stranger.)

Fisher's trial is set to start Oct. 12. If there are appeals in the case, it could be years before the inquiry into the Milgaard case is held. "It's important that the Larry Fishers of the world get a fair trial too," Mrs. Milgaard says.

"Accountability" was her one-word answer when she was asked what she hopes the inquiry will provide. Other "system fixes" she and Wolch would like to see come out of the inquiry:

*For those relying on court-appointed lawyers for their defense, funding for investigators as well, so that defendants get a well-prepared defense.

*Provision for individual police officers and prosecutors to be sued personally for malfeasance if circumstances warrant, "so that if people are not doing their job correctly they will not be protected by the government," as Mrs. Milgaard puts it.