Wrongful convictions registry may prevent future injustices
Wrongful convictions are an unfair consequence of the Canadian criminal justice system that I work in every day.
Every judge or jury strives to uphold the principle that if someone is to be found guilty, the court must be convinced the prosecution has proven the elements of the offence beyond a reasonable doubt. If the Crown attorney cannot reach that high bar, the accused must be acquitted.
The classic example of a Canadian wrongful conviction is David Milgaard. In 1969 at the age of 17, he was found guilty of raping and murdering a female nursing student. He spent 23 years in prison before being released in 1992. Milgaard was finally exonerated in 1997 after DNA testing showed that semen samples on the victim's clothing did not originate from him.
His case shows why those of us who work in courts would rather have 10 guilty people walk free after being declared not guilty than have someone convicted of a crime they did not commit.
I am encouraged to read a University of Toronto report that Kent Roach, a professor in their Faculty of Law, and four alumni of the Juris Doctor program have launched the Canadian Registry of Wrongful Convictions (CRWC). An introduction on the CRWC website explains its role.
“This site was created to draw attention to known wrongful convictions in Canada and to those who have received remedies,” it reads.
83 cases of wrongful conviction
The registry includes 83 publicly documented cases where a criminal conviction was overturned based on new matters of significance related to guilt not considered when the accused was convicted or pled guilty.
The CRWC introduction explains the criterion for being included on the site.
“A wrongful conviction occurs when a criminal conviction is overturned based on new matters of significance related to guilt not considered when the accused was convicted or pled guilty … a wrongful conviction also includes cases where a state official, through a free pardon or other decision, including the payment of compensation, recognizes that a person ought not to have been convicted.”
Some accused plead guilty to avoid a trial
As a criminal defence lawyer practising across the Ottawa region, I regularly see people who fall into the wrongfully convicted category. It includes those who plead guilty to a charge because going to trial is too expensive, especially if they don't qualify for legal aid. It also includes people who want to avoid the stress of a trial and who just want the criminal process to end.
We also have those who have one or two previous convictions for minor crimes. They may not be granted bail unless they can find someone to act as their surety or guardian. If no one steps up for the role, they face being remanded in custody for months as they await trial and a chance to clear their name.
But then the Crown offers them a deal. “Plead guilty today and you will get just a two-month jail sentence. Or take your chances and go to trial, but the hearing may be in six months or more.”
In those cases, some accused will just plead guilty.
The registry shows that vulnerable people are often forced into a situation when they admit to a crime they did not commit.
“We weren’t surprised that 18 per cent of the cases that met our definition were the result of false guilty pleas,” says Roach in the University of Toronto report. “What was surprising, however, was that almost all the people who pled falsely were Indigenous, racialized, female or living with a disability.”
Most miscarriages of justice occur when vulnerable people without proper legal representation plead guilty to move on, adds one of the alumni students associated with the project.
No crime occurred in one-third of wrongful convictions
“From our current dataset, approximately one-third of the wrongful convictions stem from an instance in which no crime occurred,” adds another alumni student. “Invariably, the wrongfully convicted person lost a loved one and then on top of that had to suffer through a justice system that got it wrong. This is a problem in Canada, and we need to do some work to uncover the full extent of this problem.”
People with a criminal record already find it difficult to find secure work. If they now have two convictions because they did not want to wait to go to trial, finding work will be even more difficult, which may lead them back into a life of crime.
The next time they are convicted, their sentence will be even harsher than the one they receive for a crime they did not commit.
Registry can help defence lawyers
As a society, we should try to prevent these situations from occurring as much as possible. I am hopeful the CRWC will help criminal defence lawyers in their work. Looking at past wrongful convictions, we may be able to see similar issues or patterns for the client we are now defending, in terms of the evidence the Crown brings forward.
The more we look back at wrongful convictions, the more we will see how certain types of evidence are not useful or can be misused to convict the innocent.
It should also be noted that just days before the registry’s launch, the federal government introduced legislation to create a commission to review potential cases of wrongful conviction.
According to federal background material, the new commission would have the “mandate to review, investigate, and decide which cases should be returned to the justice system due to a potential miscarriage of justice. The commission … will be an independent, stand-alone entity outside the Department of Justice.”
Contact me for assistance
Everyone deserves a fair trial and should only be convicted if the Crown can prove guilt beyond a reasonable doubt. Contact me for more information if you have been charged with a crime and we can discuss what is the best way to proceed.