This blog is about 1200 words and takes about 5 minutes to read.
Canada should make a series of changes to laws and criminal justice procedures in order to prevent more people from being convicted of crimes which they did not commit. The recommendations are contained in a 2017 submission from Innocence Canada (a charity that takes on cases of people it believes to have been wrongfully convicted of serious crimes) to the Minister of Justice. A previous post on James Lockyer also featured the work of Innocence Canada.
The full report, which is nearly 120 pages, contains detailed legal arguments for the recommendations, including many quotations from legal decisions by Canadian and other courts. Anyone interested in criminal justice and the problem of wrongful conviction, however, would find the main recommendations interesting.
The problem of wrongful conviction
Nobody knows, of course, how many wrongful convictions occur in Canadian courts, but all indications are that the number is surprisingly high, given how often it happens in very high profile cases which attract a lot of attention and very careful defenses. Moreover, defendants may be poor, uneducated, or troubled while the police are able “to deploy vast state resources in creating an inverted moral universe for the suspect that is filled with frank inducements and implicit threats, but is beyond the reach of the law despite its undermining of the law’s values.” All of this can lead to serious problems. The report quotes Andras Schreck – then a defense lawyer, now a judge of the Ontario Superior Court of Justice – “I would think that it [wrongful conviction] probably happens hundreds of times a day.”
Yet the vast majority of guilty pleas (as many as 90%) happen outside of the court so beyond scrutiny by judges, and may be the result of all kinds of pressures that are never disclosed. Prosecutors may threaten a much harsher sentence if a case is taken to trial. Or there can be other even more serious consequences. For example, people have pleaded guilty to crimes they did not commit to avoid losing access to their children – this happened to several people convicted on the basis of misleading evidence by former pathologist Charles Smith – or to being deported. Many defendants simply can’t afford a full and proper defense. And systemic discrimination is a pervasive factor in guilty plea wrongful convictions which disproportionately afflict the disadvantaged.
The proposals in the report “are addressed mainly to areas of law and practice that carry a particularly acute risk of causing juries and judges to go wrong by reading too much into superficially attractive but deeply flawed forms of evidence.” “These problems identified, it should be stressed, do not come about because of some extraordinary departure from the normal functioning of the legal system. They are built squarely into the routine operation of the prosecutorial process. That makes them especially dangerous and especially hard to detect.”
Confessions should not be automatically accepted as evidence of guilt
Confessions should be treated much more cautiously, since a significant number of people who have been exonerated of crimes actually confessed to those crimes prior to their conviction. While this seems startling, the report points out that there are many reasons, both psychological and as part of the police and court processes, why a person might confess to a crime she or he did not commit. The danger applies particularly to people who are marginalized in some way.
Since there is no simple way to tell if a confession is real, the report recommends that judges should play a more active role in investigating how confessions came to be made and whether they can, in fact, be trusted. It also proposes that video recording of all interviews and confessions be mandatory and there should be less tolerance when reasons are advanced as to why this did not happen in particular cases.
The report argues that people should not be convicted on the basis of a confession only; these should be strongly supported by other evidence. Courts should also be more attentive to the testimony of experts on confessions, who can offer valuable insights on why someone might have made a false confession.
Another recommendation is to eliminate the prerogative of the Crown to use a defendant’s statement to police (or not) as the Crown sees fit. Accused persons should also be able to introduce these statements into evidence should they wish to do so. The current situation discourages accused persons from giving the police any information, since such information can never be to their benefit but can be used against them.
Eyewitness testimony must be treated with caution
Eyewitnesses who made wrong identifications are implicated in a large proportion of exonerated cases. Although there are clear findings from research that eyewitness testimony is unreliable, and especially so for racialized groups, few measures have been taken by police or courts to address this problem.
In particular, the report notes that police are not required to follow best practices for identification (such as not asking people to pick one person from a group of photos and using double-blind identification procedures), courts do not give sufficient warning to juries of the risk of eyewitnesses being wrong, and experts on eyewitness identification are not given a sufficient role by the courts. Identification in court – the classic step in so many movies in which a witness points out a victim in court – should, the report argues, be completely abandoned as having a strong emotional appeal but no evidentiary value.
Appeal courts should be more active
The report notes that appeal courts do not have a good record in finding and correcting wrongful convictions. They recommend a much stronger role for appeal courts, as the Criminal Code seems to imply, in reviewing evidence and findings of jury trials, not just confining themselves to errors in legal procedure. The record of wrongful convictions shows that juries may be swayed by emotional factors rather than evidence ‘beyond a reasonable doubt’, and this is what appeal courts should consider. This is a role that has parallels to that played by Innocence Canada itself. Similarly, appeal courts should be more open to the failures or shortcomings of defense counsel, even when these could not be described as ‘incompetent’. When people’s lives are at stake, justice demands more care on these fronts.
Defendants’ choosing not to testify should not be held against them
Instead of the current situation in which this is a decision of each judge, the report recommends that juries should always be expressly instructed that they are to attach no weight to the fact that the defendant has elected not to give evidence, because there is a natural tendency to regard such failure as related to guilt.
Conclusion
The changes recommended in this report would not eliminate wrongful convictions. “Many of the problems we list under the heading “causes of wrongful conviction” cannot be remedied by new sections of the Criminal Code or the Canada Evidence Act. Some are the product of human nature and almost ineradicable. Some are built into the adversarial system and likely to last as long as we have police and prosecutors on one side of a courtroom and defense counsel and clients on the other side. Some problems are historical and have become embedded in our legal culture. So, the recommendations we make here, even if enacted in total, are not a panacea for the ills of a justice system that all too often is forced to admit its errors.” These proposals would be, however, important steps in the right direction.
So far there has been no public action by the Government of Canada on these proposals.
Source: Innocence Canada, Submissions on Criminal Justice Reform, June 9, 2017. No authors identified. The Innocence Canada website also has further information on these and other issues related to wrongful conviction.
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