The Miscarriage of Justice Review Commission changes what appellate work is actually for — and it offers appeals lawyers on both sides of the border a working model of what error correction looks like when it’s designed on purpose.
Every country with a functioning court system convicts innocent people. The harder question is what it builds to find them afterward. On that question, the United States and Canada have just taken sharply different paths, and the difference matters most to the people doing appellate work day to day.
A Patchwork With a Postal Code Problem
In the US, post-appeal review of possible wrongful convictions is scattered by design. Conviction integrity units exist in some prosecutors’ offices and nowhere near all of them. Innocence organizations run on donations and law students, which means capacity, not merit, often decides which cases get a second look. Habeas procedures narrow a little more with each passing decade. Whether a wrongly convicted person gets meaningful review still depends heavily on geography: which county convicted them, which nonprofit has room on its docket, which state’s post-conviction rules happen to apply.
Thirty Exonerations in Fifty Years
Canada’s old system had a different flaw with the same result. For decades, the last resort was an application to the federal Minister of Justice — a politician — asking for mercy in the form of a case review. It was slow, opaque, and vanishingly rare. Across decades, only about thirty people were exonerated through it, nearly all of them white men, in a country whose prisons dramatically overrepresent Indigenous people. The mechanism wasn’t finding the wrongful convictions everyone knew statistically had to exist.
The Milgaard Model
So Canada replaced it. The Miscarriage of Justice Review Commission, created by legislation named for David Milgaard, who served twenty-three years for a murder he didn’t commit, and his mother Joyce, who fought that entire time, is now standing up as an independent body with the power to investigate claims, compel records, and send cases back to the courts. It’s deliberately modeled on the UK’s Criminal Cases Review Commission, which has referred hundreds of convictions back to appellate courts since 1997, alongside similar bodies in Scotland, Norway, and New Zealand. Canada’s Department of Justice lays out the framework, and the design choices are pointed: independence from prosecutors and politicians, a mandate to reach the communities the old system missed, and a lower threshold for referral than the ministerial process ever demanded.
Why the Appeal Record Is the Real Gateway
One design feature matters most for understanding how this will actually work in practice: applicants must generally exhaust their appeals before the commission will look at a case. The commission is a backstop, not a bypass. Stacey Purser, whose practice at Purser Law spans trial and appellate work, says that shift changes what appellate defence actually has to accomplish: criminal lawyers in Edmonton and elsewhere handling post-conviction files are now, in effect, the first quality-control layer in a national error-correction system, since the issues preserved at the appeal stage determine what the commission can find years later. A conviction under-appealed today, she notes, is a harder file to reopen tomorrow, no matter how strong the underlying claim of innocence turns out to be.
What This Means for the Wrongfully Convicted — and Their Lawyers
For defence counsel, that raises the practical stakes of appellate work considerably. An appeal that’s treated as a formality, rather than a full accounting of every preserved issue, closes doors that a client may need opened a decade later. For families of the wrongly convicted, it means the outcome no longer hinges entirely on which nonprofit picks up the phone or which prosecutor’s office happens to run an integrity unit. A national commission’s answer to “what happens to the person convicted in a jurisdiction with no resources for review” is, for the first time, simply: the same thing that happens to everyone else — an independent review on the merits.
A Note of Caution
Healthy skepticism is still warranted. The UK’s commission has faced criticism over the years for underfunding and caution, and a review body is only ever as good as its budget and its appetite for hard cases. Canada’s version could disappoint in the same way. A handful of US states have inched toward similar models; North Carolina’s Innocence Inquiry Commission, the closest American analogue, has operated since 2007 and has actual exonerations to show for it. The Canadian rollout is, in effect, a country-sized pilot of scaling that idea nationally, and appellate lawyers in both countries have reason to watch closely how it performs once the early cases work their way through.
Canada didn’t just debate wrongful convictions — it built an institution to find them. Whether that institution finds the cases the old system couldn’t see will depend heavily on the quality of the appeal record each case arrives with, which means the commission’s success is, in no small part, in the hands of the appellate bar building those records right now.
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