How Canada’s Record of Wrongful Imprisonment Has Changed Since ‘Wheat Kings’

The Tragically Hip song highlighted the tragic story of David Milgaard, but has much changed since he went free?

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Aug 16 2016, 2:16pm


David Milgaard speaks with reporters at the Calgary Courts Centre in November 2011. Photo by CP/Bill Graveland

"Twenty years for nothing, well, that's nothing new—besides, no one's interested in something you didn't do," Gord Downie sings on the Tragically Hip's Canadiana classic, "Wheat Kings," which put the issue of wrongful convictions on top 40 radio way back in 1992.

Those lyrics are specifcally about David Milgaard, a former Winnipeg man who was wrongfully imprisoned for 23 years for the rape and murder of Saskatoon nurse Gail Miller in 1969.

Ten Tragically Hip albums later, "Wheat Kings" remains a painful reminder of Canada's long history of imprisoning innocent people. But on the eve of the band's (unofficially) final tour with Downie, following the front man's terminal brain cancer diagnosis, has Canada improved on its record of wrongful convictions since the debut of "Wheat Kings"?

From Milgaard, to James Driskell, Donald Marshall Jr., Erin Walsh, and hosts of others who were wrongly convicted and imprisoned, Canada has a long, painful history of putting the wrong people behind bars.

Every year, eyewitness misidentification, false confessions, jailhouse informant testimony, police and prosecutorial misconduct, and other contributing factors continue to send countless innocent people to prison.

"The issue of wrongful convictions is still a serious problem," Hersh Wolch, Milgaard's Calgary-based lawyer who helped exonerate the formerly accused murderer and rapist, told VICE.

Wolch, who has since made a name for himself overturning high-profile wrongful convictions in Canada, has represented the likes of Steven Truscott, Kyle Unger, Steven Kaminski, among others.

But long before Wolch gained notriety as Canada's go-to exoneration lawyer, Milgaard was a 16-year-old teenager facing life behind bars.


When Miller, a Saskatoon nurse, was discovered partially nude in a back alley near her home, stabbed 14 times, her throat slit, Milgaard was passing through Saskatchewan on a road trip. Saskatoon police interviewed hundreds of potential suspects but eventually pinned the crime on Milgaard after one of his friends reported him to police for acting strangely on the day of Miller's murder.

The accusation was baseless, yet in 1970, Milgaard was sentenced to life in prison, despite no real evidence linking Milgaard to the crime.

Milgaard always maintained his innocence, but despite this, spent decades behind bars. He was finally freed in 1992 after Ron Wilson, Milgaard's former friend, recanted his witness testimony forcing the Crown to enter a stay of proceedings. DNA forensics fully exonerated Milgaard in 1997 and the government awarded him $10 million in compensation two years later.

Forensics revealed that Larry Fisher, a serial rapist, and former neighbor of Gail Miller, was the killer. Fisher had been questioned by Saskatoon police at the time of Miller's slaying, but wasn't on their radar as a suspect. Fisher was convicted in Milgaard's place and died in an Abbotsford, BC federal prison in 2015.

"We often hear the comment that we have the greatest justice system in the world. I don't know where we get that from or why we say that when in actual fact there are innocent people behind bars," Wolch said.

There are currently at least 70 recorded instances of wrongful convictions, and 12 suspected cases in Canada according to Kathryn Campbell, author of forthcoming book, Miscarriages of Justice in Canada: Causes, Responses, Remedies.

Campbell, an associate professor of criminology at the University of Ottawa and director of Innocence Ottawa, a student-run non-profit that investigates wrongful convictions (similar to the Innocence Project in the US), said these cases account for crimes dating back to 1959.

But it's difficult, if not impossible, she said, to quantify if Canada's rate of wrongful convictions has increased or decreased since the 90s.

"This is a very rough estimate and these are only the known cases," said Campbell. "There are likely hundreds or even thousands more we don't know about."

What has changed, though, in the decades since Milgaard's exoneration and the release of "Wheat Kings," is the Canadian public's perception of wrongful convictions.

"The authorities and the public were not used to [wrongful convictions]," said Wolch, who explained that bringing a wrongful conviction before the courts mere decades ago was almost unheard of.

Today, though, Wolch said, the idea that someone could be wrongly convicted is much more accepted than it was in Milgaard's heyday.

The DNA forensic profiling boom of the 1980s and 90s helped change that, and brought more cases like Milgaard's to light. This advance, coupled with widespread media coverage of other high profile cases helped foster a sense of acceptance amongst the courts and public that wrongful convictions do happen.

But "Wheat Kings," too, might have played a role in facilitating this ideological shift towards wrongful convictions—at least amongst Hip fans, especially younger generations, many of whom might never have heard of Milgaard otherwise.

"It's undeniable that the narrative and the moral drawn in 'Wheat Kings' by the Tragically Hip served to educate and consequently raise consciousness amongst a significant number of their fans with regards to the justice system, the potential errors it can make, and the travesty of human rights that can result," Rob Bowman, a popular music scholar at York University, told VICE.

Wolch, Milgaard's lawyer, agreed that "Wheat Kings" had a seismic impact in that regard, too.

"It's very difficult to speak out on things like that," said Wolch. "It was very assuring when a group that popular would actually go out and do something like that. I think it's brought the message home to a lot of people—the message that people can be wrongfully convicted and when you are, don't give up—fight on."

READ MORE: How I Learned to Love the Tragically Hip and Still Be Punk

"Wheat Kings" even struck a chord in Milgaard himself.

"David [Milgaard] and his family were really touched by it at the time and it gave him hope, and spirit, cheered him up, and showed them the public was behind [them]," said Wolch.

Yet, despite a shift in public attitude towards wrongful imprisonment and advances in DNA forensic technology that have helped exonerate dozens of people, Canada's track record on wrongful convictions is still far from perfect, which is why "Wheat Kings" is as enduring—and vital—as when it was released, nearly 25 years ago.

"There's no end in sight, certainly," said Ronald Dalton, who spent more than a decade in prison after he had been wrongfully convicted for killing his wife in Newfoundland in the 1980s.

Dalton, who is also vice president of Innocence Canada, an organization devoted to rectifying and exposing wrongful convictions in Canada said his group has helped exonerate 21 people and is currently reviewing roughly 90 more cases of suspected wrongful conviction.

"As long as we have a system comprised of humans who make mistakes, I think there's always going to be wrongful convictions," he added.

The sentiment is echoed by Milgaard's lawyer.

"We still overlook quite a few [wrongful convictions] and people sit in jail who are innocent. It's a very difficult problem," Wolch said. "We are far from perfect."

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