The Milgaard Story’s Importance for the Presumption of Innocence

David Milgaard is reported to have passed away this weekend at the age of 69. He spent 23 years in prison for a rape and murder he did not commit.

Milgaard was convicted in 1970, and spent the ages of 16 to 39 in prison, following the discovery of a nurse’s body in the snowbank. His appeal to the Saskatchewan Court of Appeal was dismissed the following year, and the Supreme Court of Canada refused him leave to appeal. That same year, a pattern of sexual assaults committed by Larry Fisher came to light, which matched the offence in question.

His mother staunchly believed his innocence, but as many people say, what mother wouldn’t? It was only because of her persistence that he was ultimately acquitted.

The conditions in prison were so horrible, especially given the reputation Milgaard had gained for these charges, that he managed to escape briefly in 1980 for 77 days. The RCMP eventually shot and recaptured him, returning him to prison.

Milgaard even attempted to obtain help from the federal government, applying for a a review of his conviction under s. 690 of the Criminal Code (now repealed, but found under s. 696.1) to the Minister of Justice in 1988, but it was dismissed.

As unfortunate as this wrongful conviction was, it had a deep and lasting impression on Canadians and our notion of the presumption of innocence. The Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard, published in 2008, helps provide a recap of the highlights of his ordeal.

On Milgaard’s second application to the Minister of Justice in 1991, the Minister of Justice (Kim Campbell) referred it to the Supreme Court of Canada. The Court heard a Reference re Milgaard in 1992, finding that his continued conviction constituted a miscarriage of justice. Even at that time, there was fresh evidence that a key witness at trial had recanted parts of his testimony.

The Court recommended to the Minister that the conviction be set aside, and a new trial be held. instead, the Crown entered a stay, which lead to his release, but not any finding of his innocence.

New DNA was found in 1997, which exonerated him, and linked the murder to Larry Fisher. Milgaard was provided a compensation package by the federal government for his wrongful conviction in 1999.

The Report highlighted the improper questioning by the polygrapher of witnesses which lead to the wrongful conviction. The tactics used resulted in one witness claiming to see Milgaard stab a woman. The Report states,

…I do not find that she
deliberately lied, and I do not find that Roberts induced her to lie, although both must be acknowledged as possibilities. We know, however, that Roberts interrogated her in the belief that Milgaard was the killer, and that he showed her the victim’s bloody garment, asking what if this had been your sister? The tactic produced the desired result, by his own account in testimony before the Supreme Court of Canada. That
Court, in view of what was known in 1992, was entitled to think that Roberts might have gotten the truth. I, on the other hand, must conclude that he somehow pressured John into telling him what he thought to be the truth.
Although the details of the pressure exerted are unknown, there can be no doubt that the Roberts
interrogation of John led to a sworn statement which provided the basis for charging David Milgaard with murder….

Although the Report found that the investigation was conducted in good faith, there was a “critical failure” in recording the circumstances around the witness statements.

Despite meeting all disclosure obligations, a competent and fair trial, and meeting all of the standards of justice at the time, the court system still came to the wrong outcome.

However, the Commission was not able to look at Milgaard’s s. 690 applications, because the Minister of Justice set limits on questioning around the s. 690 applications. This direction was upheld by the Queen’s Bench for Saskatchewan on a constitutional basis, when challenged by the Commissioner, in Canada (Attorney General) v. Saskatchewan (Milgaard Inquiry Commission). This is a power that the Minister has had since 1892, and the origins in the common law was found in the Royal Prerogative of Mercy.

The inherent tensions of the system at the time was summarized by the Canadian Bar Association’s submission on Wrongful Conviction Review in 1999,

The profound institutional resistance within the current system to open up matters for review must be recognized and addressed. This resistance is inevitable, given that the Minister of Justice is asked to simultaneously fulfill the role of chief law officer of the Crown for Canada and the person charged with exposing errors in the prosecutorial process. The structural problem goes beyond the fact that the Minister of Justice and her officials are responsible for the current review scheme. As cases move through the justice system, the validation of convictions from stage to stage tends to invest the various participants, including prosecutors, police officers, judges and even defence counsel, with a stake in maintaining the conviction. For anyone whose working career is devoted to achieving justice, it is difficult to recognize and accept that one’s efforts have, in fact, produced an injustice. This investment tends to add to the institutional inertia which cements convictions and obscures attempts to re-open them. For all these reasons, a review mechanism must have an independent structure situated outside the usual processes and offices of the administration of justice.
[emphasis added]

While the CBA’s recommendation to repeal s. 690 was adopted, there was not any independent commission put in place to review these applications. Instead, in 2002 the new provisions create a system to improve transparency and specify criteria for when the remedy should be granted.

The process starts with lawyers with the Criminal Conviction Review Group (CCRG), a separate unit of the Department of Justice, typically assess the review application through a preliminary assessment, to provide advice to the Minister about whether a remedy is warranted. The CCRG can also undertake their own independent review and hire experts.

From April 1, 2020 to March 31, 2021, the CCRG received 50 new completed applications. There was only 1 decision by the Minister on a remedy for this period, which granted the remedy.

Andrea Anderson notes in the Appeal Publishing Society that despite the 2002 amendments there are still several shortcomings of the current process under s. 696.1, including the time involved to reach a decision.

Many of the challenges of independence and transparency under the previous system may still be present today. The process itself is cost prohibitive for most individuals who are criminally convicted, as applications require copies of all proceedings. Instead, most of these matters are left to public interest organizations, or the goodwill of members of the bar.

While nothing can actually restore David Milgaard’s deprivation of liberty, including any compensation provided by the government, his legacy can continue to serve as an important lesson that mistakes can and do happen, despite all good intentions. Calls to improve the justice system or get tough on crime necessarily also need this reminder.