We saw this past week our centuries-old constitutional machinery at work, the Governor General swearing in a new first minister and his cabinet. Perhaps the most mellifluous phrase in that long history of law and custom is the “Royal Prerogative of Mercy.” A constitution without mercy is a cold thing, unworthy of the aspirations of a noble people.
“The Royal Prerogative of Mercy originates in the ancient power vested in the British monarch who had the absolute right to exercise mercy on any subject,” explains Canada’s parole board, “based on the understanding that the Canadian justice system is not infallible.”
“Given its exceptional and discretionary nature, the exercise of the Royal Prerogative of Mercy must not be bound by rigid criteria,” it continues. “Discretion must not be fettered, and the remedy itself may take any form and be tailored to suit the uniqueness of each situation … including, but not limited to: free pardons, conditional pardons, respites from the execution of a sentence, remission of sentences, fines, forfeitures, estreated bails or any type of pecuniary penalty payable to the King in right of Canada.”
The scope of mercy must be expansive. Father Frederick Faber got it right in his hymn, that “there is a wideness in God’s mercy like the wideness of the sea.” It was an earlier Englishman who applied that theological reality to the exercise of royal power. Mercy “is not strained,” Shakespeare’s Portia pleaded with Shylock in lines that, astonishingly, made mercy even more mellifluous.
“(Mercy) droppeth as the gentle rain from heaven upon the place beneath. It is twice blest; it blesseth him that gives and him that takes,” Shakespeare wrote. “It is mightiest in the mightiest; it becomes the throned monarch better than his crown. His sceptre shows the force of temporal power/ The attribute to awe and majesty, wherein doth sit the dread and fear of kings. But mercy is above this sceptred sway; it is enthroned in the hearts of kings. It is an attribute to God himself; And earthly power doth then show likest God’s when mercy seasons justice.”
The pardon power has recently descended into ill repute, given the abuse of it by Presidents Joe Biden and Donald Trump. The correction for abuse is proper use, and Canada has made a great advance in that regard. In December — thankfully just weeks ahead of Parliament’s prorogation — royal assent was given to the Miscarriage of Justice Review Commission Act, known as David and Joyce Milgaard’s Law. It is named after one of Canada’s most famous wrongfully convicted murderers and the mother who never ceased to seek justice for her son.
The establishment of an independent commission to review potentially wrongful convictions was first recommended more than 30 years ago, after the exoneration of Donald Marshall, falsely convicted of murder. In 2008, a commission examining the similar wrongful conviction of David Milgaard repeated the recommendation. Finally, in 2023, then-Justice Minister David Lametti introduced the legislation, which the Senate passed in December 2024.
The former process for exercising the prerogative of mercy depended upon the justice minister being persuaded that a “miscarriage of justice likely occurred.” The process was stacked against the wrongfully accused, as the process was reviewed by the head of the same department that had wrongfully convicted them. Vesting that power in a cabinet minister brought political considerations into the mix, and politics is rarely on the side of those in prison, even unjustly.
The new commission does not replace the appellate courts, but allows representations to be made to a commission operating outside the prosecutorial-judicial guild, and provides critical resources to make that representation. The commission, not the minister, will make the decision and has a lower threshold to meet. It will be sufficient that the commission believes a wrongful conviction “may have occurred.” If so, it can direct a new trial or refer the case back the court of appeal.
All democracies profess that it is better that 10 guilty men go free rather than one innocent man be convicted, but it is not the case in practice. The criminal justice system is quite content to let the dubiously convicted languish for decades. The new commission will not end wrongful convictions, but it will offer better alternatives for correcting them. Just as important, it is an institutional expression that, “the justice system is not infallible,” and that miscarriages of justice are not rare.
How determined is the system to resist revisiting its errors? Consider that one of the most spectacular American cases of a wrongful conviction was only resolved last month.
In Oklahoma, Richard Glossip was convicted in 2001 of paying a hitman to commit a 1997 murder. He got the death penalty. He was convicted on the testimony of the actual murderer, a mentally ill man who later recanted his story, which he had fabricated to get a plea deal from Oklahoma prosecutors. The prosecutors knew at the trial that part of his testimony was false but did not inform the court. They withheld for decades exculpatory documents from the defence.
By 2023, after two independent reviews, the attorney general — Oklahoma’s chief prosecutor — agreed that the conviction should be set aside and a new trial ordered. The Oklahoma courts still refused, even though by now no one was arguing that Glossip had had a fair trial.
The whole matter went to the United States Supreme Court last year. The question was whether, despite the unsafe verdict, Glossip should be executed anyway given the jurisdiction of the obstinate Oklahoma court.
Last month, a bare majority of five justices agreed to set aside the obviously wrongful conviction. That it was not unanimous is ominous.
Canada’s wrongful conviction problem is not as grave as in the United States, where the decades-long bipartisan consensus on mass incarceration is more entrenched than even the decades-long bipartisan consensus on massive deficits.
There are few wrongful convictions, like those of Marshall, Milgaard and Glossip, that attract sufficient attention and resources to work their way through the painfully slow and stubborn appellate system. The new Canadian commission will remedy that in part.
To be precise, it is not really mercy. The act itself states that it is about correcting miscarriages of justice. But without the desire for justice, there can be no mercy.
National Post