Justice and Australian women & children trapped overseas by domestic violence & systemic & judicial failures & discrimination

Relevant Information from the Milgaard Inquiry Judge’s Summary of Findings and Recommendations

Inquiry Report available at www.milgaardinquiry.ca

Chapter 7 Summary Findings and Recommendations

61. The combination of legal error respecting the application of s. 9(2) of the Canada Evidence Act and Chief Justice Bence’s impatience respecting the evidence given by Nichol John at trial probably contributed to the wrongful conviction of David Milgaard. (One example of judicial or legal error in our case was that the judge knew evidence from the justice department misrepresented evidence from a counselor, so the judge decided that the counselor was not sufficiently expert regarding domestic violence -despite thirty plus years as a counselor and co-authoring a book on abusive relationships - instead of dealing with the discrepancies between what the justice department employee quoted the counselor as saying and the counselors own testimony of what she said she told him and the information she had shared and her concerns the judge made a choice to ignore/disregard the counselors evidence in preference for the justice department employee’s evidence which contradicted what the judge heard directly from the counselor .)

70. Linda Fisher’s 1980 statement to the Saskatoon Police did not receive the attention it deserved. (The provincial and federal justice departments and governments did not investigate or respond appropriately to information received in writing directly from a doctor, social worker with a justice department funded domestic violence program, counselor, pre-school teacher or myself that information used at the trial and presented by the justice department’s family law division employee misrepresented information that had been shared regarding the violence my children and I had experienced and these professionals concerns for our safety and well-being.)

96. The criminal justice system failed David Milgaard because his wrongful conviction was not detected and remedied as early as it should have been. (Despite overwhelming evidence of problems and lack of adherence to protocol and standards of practice in our case that we presented to the justice system they refused to appropriately investigate, deal with or remedy this situation and the problems.)

97. The conviction review system in Canada is reactive and places too heavy an onus on the wrongfully convicted. The successful remedying of a wrongful conviction depends upon the wrongfully convicted person being able to identify credible grounds to challenge the safety of the conviction and convince the federal Minister of Justice that the conviction warrants a further review by the Court. In practice, only those grounds advanced by an applicant are investigated. (I did not have the necessary resources, knowledge, safety or support to identify all the grounds to challenge the process and problems.)

98. The conviction review system in Canada is premised on the belief that wrongful convictions are rare and that any remedy granted by the federal Minister is extraordinary. Change is needed to reflect the inevitability of wrongful convictions and the responsibility of the criminal justice system to detect and correct its own errors. (There is no provision by the justice department to deal with any problems with a custody and access report prepared by their staff – it is assumed it would be accurate, correct, follow their protocols and standards of practice and be credible, so there is no process for review, discussion or bringing evidence to the contrary.)

99. A wrongfully convicted person should not bear the responsibility of investigating his own conviction in order to identify all grounds needed to support a remedy. It is beyond the means and abilities of most wrongfully convicted persons to do so, because they are usually not in the best position to identify credible grounds in a timely manner. (Despite the fact that the justice departments own employee had caused the problem I had the sole responsibility of using my own resources and whatever support and assistance I could obtain to investigate this and try and bring the necessary information to the justice department in a way they deemed acceptable. I did not have the means or ability or safety to do this and the justice department did not facilitate this.)

100. In the case of David Milgaard, the onus of identifying credible grounds in a timely manner was a heavy one that was simply beyond the means and abilities of Milgaard and his supporters. They investigated his conviction for eight years before they filed an application for review with the federal Minister, relying on two grounds that were quickly determined to have no merit. (“Justice delayed is justice denied”.)

101. If an independent agency such as the United Kingdom’s Criminal Cases Review Commission had been in place to investigate David Milgaard’s case, it is likely, with its proactive methods and expertise, that credible grounds would have been identified much earlier than they were, even though Milgaard had not raised them. (As there was no independent organisation to hold the justice department accountable the department did as they wished – which was to not deal with or appropriately investigate the situation.)

102. The federal Minister of Justice should not be the gatekeeper to determine whether an alleged wrongful conviction should be returned to the Court for further review. The involvement of a federal politician in the review of individual cases of alleged wrongful conviction invites public advocacy and accusations of political influence. The office of the federal Minister, identified as it is by the public with prosecutions, and being occupied by a political figure, does not lend itself well to the adjudication of issues which arise in the judicial system and are to be returned there. (People who were a part of the justice department and government and had a vested interest in not dealing with these issues were the gate-keepers and refused to deal with these issues. Public advocacy is not safe for women and children who have experienced domestic violence.)

103. As long as responsibility for conviction review remains with the federal Minister of Justice, there will be the potential for political pressure and public advocacy to play a role in the decision making process, or, at the very least, for the perception to exist that the decision can be so influenced. The conviction review process must not only be truly independent, it must be seen to be independent. (Dealing with the justice department to try and get a credible review was not an independent or accountable process nor could it have ever appeared to be independent, when we asked for out of province and Australian experts to be involved the provincial justice department refused to have them involved.)

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The five women mentioned in the Family Service Bureau letter (quoted in “Situation Synopsis” on the online resource/blog I created www.womenwhowant2gohome.blogspot.com ), “Jane” and I all had supposedly good lawyers who we paid many thousands of dollars to for legal assistance and advice (I spent over $100,000 on lawyers, experts for court etc). None of us could find a lawyer who would speak up about the injustice of having an assessor – in our case a Justice Department employee- misrepresent information in court about the abuse we experienced -unlike David Milgaard whose lawyer at times worked pro bono for him and spoke up publicly about the problems in the justice system. We will never experience justice if the Australian government, legal experts and others won’t immediately assist and advocate for us, as the provincial and Canadian governments and justice departments have shown their commitment to supporting and keeping secret these human rights and justice violations against Australian women and their children.

It is impossible for us to hold the Canadian and provincial government and justice systems accountable (as can be seen from the findings from the Milgaard Inquiry) and everyone is aware of this. For the Australian government to continue to tell us, and I don’t know how many other Australian children and women in similar traumatic, unjust and unsafe circumstances, that it has no ability to “intervene” is to condone violence and human rights abuses against Australian children and women and is deliberately discriminatory when the media, politicians and advocates have made us all aware of the many Australians overseas experiencing difficulties and legal or justice problems that the government has intervened for and provided legal assistance, consular assistance and other resources to ensure their safe and prompt return to Australia. Why should we deserve the same or be expected to accept any less?

The theme for International Women’s Day, March 8th 2009 was “Women and men united to end violence against women and girls”. “The only thing necessary for evil to prevail is for (supposedly) good men to do nothing” Edmund Burke

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