OTTAWA, Ont. – Forty-one years ago Joyce Milgaard appealed to thousands of Saskatoon residents during Christmas 1980 for clues to prove her 28-year-old son David Milgaard was innocent of a 1969 murder.
A Dec. 26, 1980, Regina Leader-Post story reported that Joyce Milgaard had put up a $10,000 reward to back her belief that her son David - who was in prison already for 11 years - didn’t rape and murder a Saskatoon nurse.
Joyce Milgaard distributed leaflets all over Saskatoon telling residents about the reward offer and her appeal for new information about the crime. That move would help her decades-long fight to exonerate her son and push for an independent criminal case review commission.
Now, decades later, two judges - appointed by federal Justice Minister David Lametti to head the creation of an independent Criminal Case Review Commission to look into wrongful convictions - have released their final report with 51 recommendations to Lametti, who will take his proposed Miscarriages of Justice Commission to the federal cabinet.
Retired judges Harry LaForme and Juanita Westmoreland-Traoré, released their roadmap earlier this month to create the new Criminal Case Review Commission and the judges often referenced the David Milgaard case. In fact, in a statement the judges began their findings referring to the lyrics from the song Wheat Kings, which rock band The Tragically Hip wrote about David Milgaard.
“Twenty years for nothing, well, that's nothing new. Besides, no one's interested in something you didn't do.” – Wheat Kings, The Tragically Hip.
Milgaard was the victim of Canada's most notorious miscarriage of justice.
In 1969 he was arrested when he was only 16. In 1970, at the age of 17, he was wrongfully convicted of raping and murdering Saskatoon nurse Gail Miller and sent to prison for life.
He spent almost 23 years behind bars before he was released in 1992 and exonerated by DNA evidence in 1997. That same DNA evidence linked serial rapist Larry Fisher from North Battleford to Miller’s brutal murder. Fisher was convicted for that crime November 1999.
Milgaards' fight for independent commission
Justices LaForme and Westmoreland-Traoré said they began their consultations with a group of wrongfully convicted individuals, including David Milgaard, because they said it was important to hear about their first-hand experiences with the Canadian criminal justice system.
“We were profoundly saddened by what they told us,” said the judges.
“We were also extremely moved by their generosity in sharing with us, and their passion in ensuring that what happened to them does not happen to others. We are deeply grateful to each of them for their contributions, and we believe this country owes them a debt of gratitude.”
David Milgaard told SASKTODAY.ca that it was therapeutic to speak with the two judges.
“It felt good to talk to both of those judges, it was a healing experience for me.”
Since being released, Milgaard has pushed for an independent Criminal Case Review Commission to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed. He, and his group, met with Canada’s Justice Minister David Lametti to discuss the commission and earlier this year Lametti launched public consultations on the creation of the commission and he appointed the former justices to head the commission.
David Milgaard, however, told SASKTODAY.ca that his mother deserves the credit and not him.
“Really the most important person who has fought for this new Commission is my Mother who never gave up on me in her fight for justice,” said Milgaard.
“We need to see these recommendations adopted quickly. I miss my Mom but she started this and we need to see it finished. Joyce Milgaard is always my ‘hero,'" said David Milgaard.
A mother’s fight to free her son
Thirty-two years ago it was first recommended that an independent commission be created to look into wrongful convictions after Donald Marshall Jr.’s wrongful conviction. Joyce Milgaard took up the torch for an independent commission after she hit wall after wall in her unending decades-long fight to prove her son’s innocence.
She never gave up the fight to exonerate him. She recruited criminal lawyers to help. She handed out leaflets during Christmas offering a reward for new information. She interviewed witnesses. She sold possessions to continue her fight. She hired private investigators. She threatened to camp on the lawn of the Saskatchewan legislature. She even confronted the federal justice minister and prime minister of Canada.
In 1987 Joyce Milgaard convinced top criminal lawyer Hersh Wolch to look into David Milgaard’s case. Wolch and junior lawyer David Asper poured over transcripts, evidence, and statements.
They became convinced of David Milgaard’s innocence and hired Dr. James Ferris, a well-known forensic pathologist from British Columbia. Ferris reviewed the case and concluded there was little or no evidence tying Milgaard to the crime and that several aspects of the Crown’s case actually excluded him as a suspect.
With this information, in December 1988, Wolch and Asper filed the first of two applications for a new trial under Section 690 of the Criminal Code, which is a provision that permits the Minister of Justice to review new evidence and order a review of the conviction or a new trial.
In 1989, the publicity Joyce Milgaard generated about the case - as she rallied reporters - resulted in the discovery of police statements from key crown witnesses that contradicted court testimony. The lawyers also located several witnesses who were never interviewed by the police and whose evidence contradicted parts of the Crown’s case.
In 1990, an anonymous phone call was made to David Asper saying they should look into Larry Fisher. Joyce Milgaard tracked down Fisher’s wife Linda who said her husband could have committed the crime. Fisher had lived in the basement apartment of the house that Milgaard visited in January 1969. Fisher was convicted of several sexual assaults in the same area where Miller’s body was found.
SASKTODAY.ca obtained a letter Joyce Milgaard wrote on March 20, 1990, to federal Justice Minister Kim Campbell asking the minister to listen to her plea for help.
“I have spent the past 21 years enduring the grief of my wrongfully convicted son, David Milgaard. I have tried for 21 years to be David’s voice on the ‘outside’ and to get someone in a position of authority to lend a sympathetic ear. It seems that our system of justice is so cynical that no one is prepared to accept that mistakes can be and are made.
“The bias against a convicted person is most frustrating.
"A well-respected forensic pathologist has interpreted the evidence in my son’s case and concluded that the same evidence used to convict him, in fact, disproves his guilt.
“The officials in your department who are handling this case have not given me the slightest glimmer of hope,” continued Joyce Milgaard in her letter.
“I cannot stand by in the hope that the system, which condemned my son, will secretly help to free him. I’m afraid I have lost faith in the justice system.”
In her letter to Campbell, Joyce Milgaard also provided the justice minister with proof of David Milgaard’s innocence.
But the proof of his innocence seemed to fall on deaf ears. So, on May 14, 1990, Joyce Milgaard confronted federal Justice Minister Kim Campbell in person in Winnipeg. As TV cameras rolled, the country watched in disbelief as the federal justice minister snubbed a desperate mother as she tried to hand her a report from a forensic pathologist that could clear her son David Milgaard.
On Feb. 27, 1991, Justice Minister Kim Campbell formally dismissed David Milgard’s application to have his case reviewed.
Mother won't give up fight
Devastated and stressed by endless disappointments, David Milgaard told his mom to give up the fight but she refused to quit, reported Dan Lett in the Winnipeg Free Press in 1991.
“When the decision came down and it was bad, he said, ‘Mom you better go on now and start to live your life. You’ve spent all your years working on this and you’ve got to let it go.”
Instead of giving up, Joyce Milgaard dug in her heels and continued her fight. She sold off family possessions to fund her battle to prove her son’s innocence.
In March 1991, Joyce Milgaard convinced private investigators Jim McCloskey and Paul Henderson from Centurion Ministries in the United States to investigate. They dug up evidence that linked convicted rapist Larry Fisher to Gail Miller’s rape and murder. They also found evidence that authorities hid Fisher’s rape conviction from his victims.
On Aug. 14, 1991, six months after Campbell rejected Milgaard’s application, his lawyers filed a second application to the court, which focused on the potential guilt of Larry Fisher, a convicted rapist. A key piece of evidence was a 1970 confession by sex offender Larry Fisher who admitted to committing six sexual assaults, including four in the same area in Saskatoon where Gail Miller was killed. This raised the possibility that she was another of Fisher’s victims.
The new evidence also included a recantation by witness Ron Wilson who said he was coming down from a high off drugs at the time of his second police interview, and, wanting more drugs, thought police would release him if he were to give them what they wanted.
Joyce Milgaard takes her fight to the Prime Minister
Joyce Milgaard didn’t stop at just confronting the federal justice minister. On Sept. 6, 1991, she waited for Prime Minister Brian Mulroney outside a Winnipeg hotel during his visit to the city. In front of dozens of reporters, Mulroney promised Joyce Milgaard that he would personally look into the case.
Six years after that meeting, Mulroney told Free Press reporter Gordon Sinclair Jr. why he agreed to help Joyce Milgaard.
“There was just something so forlorn but very loving about a woman standing alone on a very cold evening in Manitoba on behalf of her son.
“But in that brief meeting I got a sense of Mrs. Milgaard and her genuineness and her courage,” said Mulroney, adding that she reminded him of his own mother.
On Nov. 29, 1991, two months after Joyce Milgaard confronted Prime Minister Mulroney, federal Justice Minister Kim Campbell directed the Supreme Court of Canada to review David Milgaard’s conviction.
On April 14, 1992, the Supreme Court of Canada said David Milgaard should have a new trial. He was freed soon after Saskatchewan decided not to prosecute him again.
On July 18, 1997, DNA evidence proved without a doubt that David Milgaard didn’t commit the rape and murder of Gail Miller.
That same day, on July 18, 1997, the Saskatchewan government apologized to David Milgaard for his wrongful conviction.
On Nov. 22, 1999, Larry Fisher was sentenced to life in prison for the rape and murder of Gail Miller after DNA proved that it was his semen left on her clothing.
During an interview with the Winnipeg Free Press in the 1991, Joyce Milgaard, while fighting for her son’s freedom, told reporter Dan Lett, “Of course I don’t like the publicity. It’s a chapter that I would like to push under the carpet. But that would mean pushing my son under the carpet and I could never do that.
“I know in my heart that he’s innocent,” she said. “He was never a violent person and to think that he could go and attack someone like this is incredible.”
Blueprint for an independent Criminal Case Review Commission
The judges held consultations from June to September 2021 and heard from justice advocates and wrongfully convicted people who were eventually exonerated during 45 virtual meetings.
The judges suggested the new independent body be called A Miscarriages of Justice Commission and say it must be a new independent body at arm’s-length from the government. The body should adopt a systemic approach and be concerned about both the correction of miscarriages of justice and their prevention, recommend the judges.
Like New Zealand’s commission, Canada’s independent Miscarriages of Justice Commission should make its decisions public and have a mandate to examine and research general matters, say the judges in their report. The commission should have unique powers and take over the justice minister's powers to direct new trials and appeals. The appointed commissioners should have broad investigative powers to search for and compel the production of evidence. In cases where there may be a miscarriage of justice, the Miscarriages of Justice Commission could refer the case directly back to a provincial court of appeal for review.
“If it is to have the power to require the independent judiciary to re-hear cases, it should be treated by government as far as possible in the same manner as the independent judiciary.”
Canada’s current system
In Canada’s current system, the wrongfully convicted must apply to the justice minister to consider their wrongful convictions and send them back to the courts for new trials.
From 2003 to 2015, the Minister of Justice received on average five completed applications for review each year. The Minister has provided 20 remedies in the form of orders of new trials or appeals, said the judges.
The victims of miscarriages of justice wait too long and a new independent commission should be created immediately, say the judges.
The lengthy delays and the frustration it causes for the wrongfully convicted is depicted in a letter to the editor to the Saskatoon Star-Phoenix on Feb. 7, 1990, where David Milgaard wrote from prison, “I am shocked that everyone at the time was very eager to convict me but now, in the face of scientific evidence, there does not seem to be any public will to correct something so terrible.”
Apologies to the Milgaards
On July 18, 1997, Anne McLellan federal Minister of Justice and Attorney General of Canada issued a news release saying, “The results of the DNA testing in the tragic rape and murder of Gail Miller of Saskatoon, in 1969, have now been received. The results show that a terrible wrong was done to David Milgaard by his wrongful conviction. To David Milgaard and his family, who courageously supported him throughout this ordeal, I express my deepest sympathies and regret.
“I would like to express my admiration and compassion for David Milgaard’s mother, Joyce Milgaard, without whose tenacity and unwavering belief in her son’s innocence, this result would not have been achieved,” said Justice Minister McLellan.
On March 21, 2020, at the age of 89, Joyce Milgaard passed away with her family at her side.
Earlier this month, Justices LaForme and Westmoreland-Traoré, said the new independent Criminal Case Review Commission must recognize that applicants and potential applicants have good reason not to trust the justice system.
“As David Milgaard told us, when the justice system has failed and harmed people, it should be 'non-negotiable' that it not harm the same people again."