Chapter 1 - Introduction
“Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them.”
Justice Michael Moldaver in R. v. HartFootnote 1
We have known for decades that factually innocent people in Canada have been convicted of crimes they did not commit. High-profile cases have led to public inquiries stretching back decades. We have learned valuable lessons from these inquiries about the causes of wrongful convictions. Yet we still do not know the magnitude of the phenomenon in Canada, or how frequently wrongful convictions are going undetected in this country.
While no recent case of a proven wrongful conviction is dominating the headlines as this report goes to print, we should not allow that to lessen our resolve to remain ever vigilant. Despite the broad and varied efforts since the early 2000s to reduce the likelihood of wrongful convictions, we simply do not know when the next case will be discovered, but we can reasonably expect that miscarriages of justice will continue to occur.
In the fall of 2002, the Federal/Provincial/Territorial Heads of Prosecutions Committee (HOP) established a Working Group on the Prevention of Miscarriages of Justice in response to a number of wrongful convictions that had been identified and studied across the country. The Working Group was given the mandate to assist police and prosecutors to better understand the causes of wrongful convictions and how to prevent them by recommending proactive policies, protocols and educational processes, and by developing a list of best practices.
Two years later, the Working Group, composed of senior prosecutors as well as several police officers from across the country, completed and presented the Report on the Prevention of Miscarriages of Justice.Footnote 2 It was released to the public by Federal, Provincial and Territorial Ministers Responsible for Justice at their annual meeting on January 25, 2005.
The 165-page Report comprehensively explored common causes of wrongful conviction, including tunnel vision, faulty eyewitness identification and testimony, the phenomenon of false confessions, the use of in-custody informers, challenges in the use of forensic evidence, and the frailties of “expert” testimony. The findings and recommendations from commissions of inquiries into wrongful convictions throughout Canada and internationally were collected and examined. Most importantly, the Report provided clear, comprehensive and practical recommendations for improvements to the criminal justice system that were designed to reduce the likelihood of wrongful convictions.
That landmark Report has been well received, both in Canada and internationally. It has been cited at all levels of court in Canada, including by the Supreme Court of Canada. It has been studied at conferences in various countries, is cited by scholars in the academic literature, is consulted by professionals in the development of training materials for police and Crowns, and is part of the curriculum of several law school courses in Canada dedicated to the study of wrongful convictions. In short, the Report has had a significant influence and has been an important catalyst for shedding light on the causes and circumstances leading to wrongful convictions in Canada.
Even before the Report was released by Ministers, the HOP established this permanent Subcommittee on the Prevention of Wrongful Convictions. A key element of its mandate is to assist police and prosecutors in Canada to take measures to prevent the occurrence of wrongful convictions. In particular, it is to:
- Make recommendations to the HOP on how to implement the recommendations of the Working Group on the Prevention of Miscarriages of Justice and how to keep them up to date, in light of legal and technological developments;
- Review any developments in Canada and abroad related to wrongful convictions, including emerging case law, technology, legislation and commissions of inquiry, and report to Heads on any changes in policies, practices and directions that should be implemented, either by individual prosecution services or Heads as a whole;
- Work with individual prosecution services and police forces to develop best practices and educational training to prevent wrongful convictions;
- Report periodically to Heads on its activities and any developments in the area of wrongful convictions; and
- Undertake any work related to wrongful convictions as directed by Heads.
Although its membership has evolved as members assumed different jobs (including several appointments to the bench), the Subcommittee continues to be composed of senior police and Crown representatives with many years of experience in all aspects of the criminal justice system. It has consistently had police representatives, including from the Canadian Association of Chiefs of Police Law Amendments Committee and the RCMP. Currently, its membership includes prosecution representatives from British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Newfoundland and Labrador, the Public Prosecution Service of Canada and policy advisors from the Department of Justice Canada. There are currently police representatives from the RCMP and several municipal police departments and one representing both the CACP and the Metro Vancouver Transit Police (formerly Deputy Chief of the Vancouver Police Department.)
The Subcommittee generally meets in person once a year and communicates regularly by teleconference to share information and best practices. It also exchanges a great deal of information via email throughout the year about the latest developments, educational activities, cases and emerging issues. It reports to the HOP Committee at each of its twice-yearly meetings.
In 2011, the Working Group released a comprehensive update to the 2005 Report entitled The Path to Justice: Preventing Wrongful Convictions. It provided a summary of developments in the law and reported on efforts to implement the 2005 recommendations. Those recommendations were re-examined in light of events over the previous six years and, where appropriate, modifications were suggested.
Although that 2011 Report did not recommend a third report after a full five-year review, the members of the Subcommittee later decided that an update would be useful to assess efforts by police and prosecutors in Canada to make changes aimed at reducing the risks of wrongful convictions. The Subcommittee also wished to bring to the attention of police and prosecutors as well as other criminal justice system participants relevant developments in the law and research since 2011. This decision was supported by the HOP.
One of the difficulties in this area of research is that while most agree that wrongful convictions are a fundamental failure of justice, there is no universally agreed upon definition of a wrongful conviction. This makes it difficult to compare cases and to reach definitive conclusions about the situation in different jurisdictions. For the purposes of this Report, the Subcommittee adopts the following definition: the conviction of a person who is factually innocent of the crime for which he or she was convicted (i.e., a person who is convicted of a crime they did not commit or there was no crime) and whose conviction is not remedied through the ordinary court processes within a reasonable time.
The format of this 2018 update largely mirrors the 2011 version and updates and enhances those recommendations where necessary. However, three chapters from the 2011 Report have been eliminated: Chapter 2 - International Review (there have simply been so many developments in this area around the globe it is impossible to summarize them in one chapter); Chapter 3 - Canadian Commissions of Inquiry (there have been no such inquiries since 2011); Chapter 8 - DNA Evidence (the very few developments in this area are discussed in Chapter 6 Forensic Evidence).
As well, the Subcommittee has added three new chapters to highlight emerging issues that it believes are deserving of greater attention. Charter 9 discusses the perils of Crown advocacy and common errors that may lead to wrongful convictions. Chapter 8 examines the issue of false guilty pleas in Canada. Chapter 10 discusses the vulnerability of particular groups in society - women, Indigenous Canadians, young persons - to wrongful convictions. The goal of that chapter is not to provide an exhaustive examination of all of these groups but rather to highlight growing research that suggests that certain populations may be particularly vulnerable to wrongful convictions. It is acknowledged that poverty, mental illness and race are also factors that can contribute to a person being unjustly accused and convicted. By focusing on certain at-risk populations in this chapter, the Subcommittee is attempting to acknowledge that certain segments of the population experience wrongful conviction for reasons unique to that specific group and that more research is required in this area.
It is important to emphasize that, given the mandate of this Subcommittee, the main purpose of these reports is to highlight what police and prosecutors can do to prevent wrongful convictions. However, some of the issues identified in the research as playing a role in wrongful convictions are systemic, broad and interconnected, and implicate other criminal justice system participants, including federal and provincial governments. For example, in some cases, the research points to action that could be taken by governments (such as legislative change) or by other criminal justice system participants to reduce the risks of wrongful convictions. The Subcommittee considers it in the public interest not to ignore these observations from experts in the field despite the focus of its mandate.
In 2018, 13 years after the first report was released publicly, there is a high level of awareness within the police and Crown communities in Canada about the causes of wrongful convictions and what can be done to prevent them. There is a great deal of ongoing activity to reform past and current practices, particularly in the areas of false confessions and forensic science. But it can be difficult to maintain that momentum, especially when there are no galvanizing events that draw everyone together in the common cause.
Since the 2011 Report, there have been fewer high-profile cases of wrongful conviction in Canada and no attention-grabbing commissions of inquiry. This can be interpreted in different ways - some would suggest that perhaps the lessons of past wrongful convictions are beginning to be heeded, unlike in the United States where wrongful conviction cases are routinely being discovered and reported by agencies monitoring this phenomenon. Others would posit that there are issues with the way Canada detects and remedies such miscarriages of justice.
The Subcommittee believes strongly that the lack of a recent commission of inquiry in Canada or even a high-profile wrongful conviction should not instil complacency or be interpreted as a sign that wrongful convictions are no longer occurring in Canada, or are merely relics of distant historical convictions.
In these difficult times for the criminal justice system in Canada, in the competition for scarce public resources, the Subcommittee fears that concern for wrongful convictions may receive less priority and attention as other issues - notably trial delay following the Supreme Court of Canada’s landmark ruling in Jordan - come to the fore.
Subcommittee members believe strongly that we have a duty to ensure that concern about wrongful convictions remains part of the public discourse concerning the criminal justice system.
Therefore, we end where we began 13 years ago, by highlighting a central theme from the 2005 Report: the importance of all criminal justice system participants remaining vigilant in seeking to prevent wrongful convictions:
Everyone involved in the criminal justice system must be constantly on guard against the factors that can contribute to miscarriages of justice and must be provided with appropriate resources and training to reduce the risk of wrongful convictions. Indeed, the Working Group believes that individual police officers and prosecutors, individual police forces and prosecution services, and indeed the entire police and prosecution communities, must make the prevention of wrongful convictions a constant priority.Footnote 3
As the title of this current Report emphasizes, innocence is at stake.
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