Chapter 10 - At-Risk Populations

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I. Introduction

Miscarriages of justice occur regardless of the gender, race, age, or socio-economic status of the accused. However, the root causes of such injustices can differ, and can relate to the population from which the wrongfully accused person originates, or to other personal characteristics or circumstances. Research suggests some groups may be more vulnerable than the population at large, more vulnerable than other groups, or vulnerable for unique gender-related reasons. At-risk populations can experience wrongful convictions for reasons similar to those experienced by the population at large. Unfortunately tunnel vision, flawed police investigations, faulty eyewitness testimony, evidence from unreliable in-custody informants, and erroneous science are common in wrongful conviction cases generally. Yet there are some causes of miscarriages of justice that may be unique to particular groups.

The purpose of this chapter is to highlight some segments of the population that may experience wrongful convictions for reasons unique to that group. The Subcommittee has not conducted a comprehensive examination of all groups that may be particularly vulnerable to wrongful convictions but rather is focusing in this chapter on certain subsets of the population: women, Indigenous people (First Nations, Inuit, and Metis) and young persons. The Subcommittee recognizes that other groups may also be particularly vulnerable, and that poverty, mental illness and race can also create factors and circumstances that contribute to a person being unjustly accused and convicted.

II. Women

In the United States, there is a considerable amount of data about wrongful convictions generally, and wrongful convictions of women specifically. Between January 1989 and October 2016, the National Registry of Exonerations reports there were 1,900 exonerations in the U.S., and 171 (9 percent) were women. The Registry also keeps a running total of exonerations, which, as of March 6, 2018, reflected 2,180 exonerations, with women remaining approximately nine percent of the total.Footnote 480 Also of note from the Registry, 37 percent of women were exonerated because of false or misleading forensic evidence; DNA evidence plays a role in only 7 percent of women’s exonerations, compared to more than 25 percent of men’s exonerations; 40 percent of female exonerees were convicted of harming children or loved ones in their care; and two thirds of female exonerees were convicted in cases in which no crime occurred. However, there is a lack of similar Canadian research, and the number of known wrongful convictions of women in Canada is small; to date there have been seven known cases of Canadian women identified as wrongfully convicted. According to researcher Kelsey Flanagan, six of the seven were convicted on the basis of flawed expert evidence provided by disgraced pathologist Dr. Charles Smith. She further described that in five of these six cases, no crime occurred. Finally, regarding the seventh wrongful conviction, an actual crime occurred but the wrong person was convicted due to flawed eyewitness testimony, police misconduct, and flawed expert testimony.Footnote 481 As will be discussed later, there are gender-based differences that affect outcomes for women: research over a 10-year period from 1994 to 2004 suggests that when considering both wrongful accusations and convictions, women are disproportionately affected compared to men in Canada.Footnote 482

As discussed earlier, the commonly accepted definition of “wrongful conviction” incorporates situations where the accused is factually innocent as well as situations where an individual is convicted but no crime in fact occurred. The discussion in this chapter will deal with cases using that definition. However, it should be noted that miscarriages of justice occur for women (and men) outside of these bounds.

For example, some argue that women who plead guilty to manslaughter rather than proceeding with the risk of trial on a second-degree murder charge in cases where self-defence can be raised in a domestic violence situation have experienced a miscarriage of justice. Further, it can be argued that women who plead guilty to manslaughter (with a maximum sentence of life imprisonment) rather than to infanticide (with a maximum sentence of five years’ imprisonment) have experienced a wrongful conviction.

The acceptance of a plea arrangement and the decision to plead guilty to a charge that may not be the most appropriate is not unique to any specific population. However the factors that motivate the decision to do so can be very much gender-based, as well as being impacted by race. For example, in a study of 91 Canadian women tried for killing intimate partners where there was a history of abuse by the males, it was determined that 41 percent of the women were Aboriginal, and that they faced “a credibility contest framed by discrimination.”Footnote 483 Although situations such as these are not the focus of this report, the implementation of the recommendations in this chapter could contribute to a reduction of these situations.Footnote 484 Gender-based reasons for guilty pleas are discussed further in the section below.

Because there is so little Canadian research on the prevalence and causes of wrongful convictions specifically against women, it is necessary to turn to the work done in other countries (such as the Women’s Project at the Center for Wrongful Convictions, Northwestern University, Chicago)Footnote 485 to examine the underlying causes of these injustices. Its research indicates that women’s cases are often quite different than those of men. For example, while DNA evidence has played a key role in a significant percentage of exonerations of men, for women, it has been central to less than three percent of cases. This makes sense when one considers that 40 percent of female exonerees were convicted of harming children or other loved ones in their care, in which the presence of their DNA would be expected and therefore of no evidentiary value, and, two-thirds of female exonorees were convicted in cases in which they were determined to be factually innocent because no crime had occurred.Footnote 486 In contrast, only 22 percent of male exonorees had been convicted of offences against children, and they were convicted of crimes that did not occur at one-third the rate of women.Footnote 487

The leading American researchers on wrongful convictions against women, Mitch Ruesink and Marvin Free, have found that the most common factor associated with female wrongful conviction is unethical conduct by police and prosecutors, versus the most common cause overall, which is eyewitness identification, as was identified in the 2011 Report.Footnote 488 (Strengthening the work of police and prosecutors has been addressed in previous Reports and is dealt with elsewhere in this Report.)

The experience of wrongfully convicted women in other jurisdictions is strikingly similar to that of the U.S. and Canada, in that the cases often involve allegations of mothers murdering their children. In the U.S., according to the National Registry of Exonerations, women are wrongfully convicted of killing children at twice the rate of men. Internationally, in Australia, the case of Lindy Chamberlain gained great notoriety when she was convicted of murdering her daughter after claiming she was taken from a campsite by a dingo. Chamberlain was acquitted in 1988 when it was determined her conviction had been a miscarriage of justice.Footnote 489 In the U.K., three women were convicted of killing multiple infants in their families, partially on the basis of the evidence of renowned pediatrician Sir Roy Meadow who testified beyond his expertise that multiple infant deaths from natural causes were “unlikely, if not impossible.”Footnote 490 He elaborated, despite his lack of qualifications, to testify that the odds of two “cot deaths” occurring in one family were one in 73 million (they were actually just one in 77), and that “two deaths is suspicious, three is murder.” Yet in one of the disputed cases it was learned that the accused’s “maternal grandmother lost five children in early infancy, suggesting a genetic disorder could account for the deaths.”Footnote 491 Meadow’s evidence was subsequently discredited and he was struck from the medical registry by a disciplinary tribunal.Footnote 492

Research has suggested that other causes of wrongful convictions against women are gender stereotyping, evidentiary challenges and plea bargaining.

a) Gender Stereotyping

Certain segments of society still appear to expect women to behave in certain ways in certain situations, based on stereotypes.Footnote 493 Visible grief is expected when a child dies, for example, perhaps more so from a mother than a father. Observable emotional turmoil is expected upon the death of a partner, again perhaps more so from women than men. When the expected behavior does not occur, this can falsely be interpreted as an indication of guilty conduct. Expressive grief, or a lack thereof, can be used to infer guilt or innocence.Footnote 494 In one study that examined the impact of gender and race of women wrongfully convicted in the U.S., it was determined that it was “motherhood itself on trial.”Footnote 495 In other words, women from troubled backgrounds who did not meet society’s expectations for maternal behaviour suffered from systemic bias that could contribute to them being disbelieved, which could potentially contribute to a wrongful conviction.

Demeanor evidence, or the appearance or attitude of a witness on the stand, has historically been relied upon by Canadian courts as a method of assessing credibility.Footnote 496 The earliest example of the Supreme Court instructing lower courts to rely on this form of evidence can be found in R. v White (1947), when the Court stated:

[Credibility assessment] is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct and demeanour in determining the question of credibility.Footnote 497

This statement is intuitively appealing; however, social science research does not support the Court’s supposition. In fact, a significant body of research demonstrates unequivocally that people are poor at detecting the lies of others - even those who have been specifically trained in lie detection, such as secret service agents.Footnote 498 While there is evidence that judicial education and cautions regarding demeanour evidence are on the rise, including in the Supreme Court, there continues to be a gap between legal research and psychological research when it comes to the treatment of this form of evidence by the justice system.Footnote 499 For examples, in the recent case of R. v. NS, a sexual assault complainant was ordered to remove her niqab while she testified, as the accused argued her facial cues were a form of communication that could be used as an assessment of her credibility.Footnote 500 As witness demeanor has been shown to be an unreliable method of assessing truthfulness and credibility, the admissibility of such evidence in court must be considered carefully. Standard jury instructions should be developed to caution juries about placing undue weight on the demeanour of a witness, as an overreliance on demeanor evidence can have a disproportionately negative effect on women and other at-risk populations, whose behavior does not conform to implicit gender and cultural stereotypes.

b) Evidentiary Challenges

Many convicted men are exonerated on the basis of DNA evidence. However, such evidence may not be useful to exonerate wrongfully convicted women because their DNA may be located for innocent reasons at the location of the alleged crime. It would be expected that a mother’s DNA would be present in close proximity to her child, or that her DNA would be located on or close to her partner. Hence no physical evidence may exist to challenge the conviction,Footnote 501 such as DNA from an unknown person. While it is also true that men are charged with murdering children in their care, as described earlier where DNA would not be useful to exonerate, this occurs at a much lower rate. Women are almost twice as likely as men to be exonerated of crimes against child victims, according to the National Registry of Exonerations. Further, “women are the likely victims of false convictions for violent crimes that are believed to have been committed by care-takers in roles that are overwhelmingly filled by women - as parents and other family care givers, and as day care workers and teachers of young children.”Footnote 502 Notably, in the seven known cases of wrongful convictions of women in Canada, none of them was exonerated by DNA.Footnote 503 As discussed above, in five of the seven Canadian cases, no crime occurred, thus one would not have expected to find DNA evidence from another party in any event. In the U.S., while 27 percent of exonerated men recorded in the wrongful conviction registry relied on DNA evidence, this was true of only 7 percent of wrongfully convicted women.Footnote 504 And because DNA evidence is either unlikely to exist or to be meaningless, the likelihood of a wrongfully convicted woman’s case being selected for review by an Innocence project is low, since many only take cases where the existence of DNA capable of exonerating is available.

Further, when women are convicted in “no crime” scenarios, defence counsel must dismantle the prosecutor’s case rather than seek to identify the real culprit. Women are more likely than men to be wrongly convicted of crimes in which scientific evidence is sparse, uncertain or the expert opinion evidence is wrong.Footnote 505 This was certainly the situation with the cases involving disgraced pathologist Charles Smith, which account for six of the seven known wrongful convictions of women in Canada, five of which involved crimes that in fact did not occur.Footnote 506 At least in cases where a crime has actually occurred, there is the potential for the correct suspect to be identified, but as one exoneree poignantly noted,

How do you prove that you didn’t commit a crime when there were no witnesses against you, just an unexplained dead baby? How do you live with the knowledge that the courts have labeled you a “child murderer,” because someone must have killed the child?Footnote 507

Based on the research available, then, it is important to understand that there is a clear distinction between the crimes with which women and men are charged: men are far more likely to be charged with crimes of violence involving non-family members than women are and thus DNA evidence is a more helpful exoneration tool; the fact that women are commonly charged with offences where DNA evidence is not useful to exonerate has an impact on the potential for a wrongful conviction.

c) Plea Bargaining

As discussed earlier, both men and women plead guilty to crimes they have not committed for a variety of reasons. They may be offered a lower sentence in exchange for the plea, and this is seen as the best option. They may be unable to afford to mount a defence and are ineligible for Legal Aid. The personal and financial cost of a trial may outweigh the consequences of a guilty plea.

There are, however, reasons specific to women as to why they may enter a plea of guilty for a crime they have not committed. The impact of incarceration on childrearing may motivate the decision, given that women generally remain the primary caregivers of children.Footnote 508 For example, research by the Woman Abuse Council of Toronto determined that women charged with domestic violence offences were motivated to plead guilty by wanting to be with their children,Footnote 509 and because the majority of women charged with crimes are mothers, face “exceptional pressure to plead guilty as compared to fathers who are charged.”Footnote 510 Finally, they may be taking responsibility for the crime in order to protect someone else,Footnote 511 and are more likely than men to plead guilty for this purpose.Footnote 512

It is clear that women face unique pressures to plead guilty, which increases the risk that innocent women will plead guilty to crimes for which they are factually innocent, or at least for which they may have a viable defence.

Conclusion

The literature suggests women are more likely than men to be wrongfully convicted of a crime that never occurred, rather than of a crime that occurred but was committed by another person. In fact, according to the National Registry of Exonerations, females are exonerated of crimes that never occurred at three times the rate of men. As a result, DNA evidence is less helpful in such cases due to the nature of the crime, yet crimes where scientific evidence is “sparse and uncertain” are the circumstances in which women may be most likely to be wrongfully convicted.Footnote 513 Further, research also suggests women are more likely to plead guilty, including to crimes of which they are factually innocent, because of gender-related systemic factors. Wrongful convictions against women are not easily remedied or avoided. Measures can be taken, however, to decrease the likelihood of such injustices occurring.

Recommendations

Just as prosecutors are cautioned to be attuned to the risk of tunnel vision in themselves and in the police investigators involved in a case, they should also be strongly warned to be on guard for signs of gender stereotyping and other forms of discrimination in the thought processes and analyses, in relation to all charges, investigations and prosecutions. Prosecution services should also develop and include in their policies specific strategies and approaches to assist prosecutors in identifying discriminatory thinking and conduct that can impact decision-making on a file.

For example, the policies could identify examples of stereotypes that may impact a prosecutor’s assessment of a file generally, their review of specific types of evidence, and the reasonable prospect of a conviction. The policies could also involve discussion of stereotypes about gender-based expectations of post-offence behaviour, as well as other forms of stereotypes and discrimination that could impact a prosecution and result in a wrongful conviction, with references to Canadian case law and academic literature. For example, the policies could highlight the risks of biases held by police and Crowns that relate to non-mainstream lifestyles, parenting behaviour, or entrenched stereotypical views of how a woman and a mother is expected to behave in certain situations, the potential for women to admit to, or plead guilty to, conduct that did not occur, or for which there is a legitimate defence, for gender-based reasons or because of gender bias in society and in the criminal justice system. Such policies could include a recommendation to consult with experts in women’s issues as appropriate throughout the case.

  1. A review should be undertaken of the admissibility and proper use of demeanor evidence, specifically in cases where the accused are women and/or members of other vulnerable, at-risk groups.
  2. All prosecution services should review their relevant policies to ensure they alert prosecutors to the risk of falling victim to gender stereotypes, as well as other forms of discrimination, during the course of their prosecutions, from the initial file assessment to the resolution of the case.
  3. A standard jury instruction should be developed to caution juries about placing undue weight on the demeanor presentation of a witness, particularly in cases which involve female and other at-risk accused, whose emotional reaction may have been noted by the court as “unusual” or “unexpected”, and not in compliance with typical gender and cultural stereotypes.
  4. All prosecution services should review their policies regarding resolution discussions to ensure that the policies require that:
    • the offender is admitting all elements of the offence to which a plea is being entered;
    • that the facts and evidence against the accused support the offence for which a plea is being entered;
    • the Crown is satisfied there is a reasonable prospect of conviction;
    • the prosecution service policy states clearly that the Crown cannot accept a guilty plea from an accused where the Crown has knowledge or concerns that the accused is factually innocent, and that
    • the Crown is particularly sensitive to guilty pleas being entered by accused persons from identified groups who are recognized as being at particular risk of wrongful convictions.

III. First Nations, Inuit, or Métis Persons

a) First Nations, Métis and Inuit People in Canada

According to the 2016 census, approximately 1.7 million people in Canada (or about 4.9 percent of the total population) identified themselves as an Indigenous person (i.e., First Nations, Métis or Inuit). While only a small percentage of the Canadian population is comprised of Indigenous persons, it is growing rapidly with a 42.5 percent increase between 1996 and 2016 and a 20.1 percent increase between 2006 and 2011, compared to 5.2 percent for the non-Indigenous population between 2006 and 2011. Finally, the Indigenous population is much younger than the non-Indigenous population, with 28 percent being age 14 or younger, compared to 16.5 percent of the non-Indigenous population,Footnote 514 and with an average age of 32.1 years, almost ten years younger than the non-Indigenous population in Canada.

Compared to non-Indigenous persons, Indigenous persons are more likely to live in poverty and substandard housing;Footnote 515 have lower levels of educational achievement;Footnote 516 Footnote 517 have poorer health, including much higher rates of diabetes, HIV/ AIDS and tuberculosis;Footnote 518 have higher rates of mental health problems;Footnote 519 have higher rates of alcohol and drug dependency;Footnote 520 suffer higher rates of victimization by crime, particularly relationship violence;Footnote 521 have higher youth suicide rates;Footnote 522 and are more likely to have negative contact with the criminal justice system, including significant over-representation in federal and provincial prisons.Footnote 523 Notably, the homicide rate for Indigenous persons is almost seven times higher than the rate for non-Indigenous persons, and they are accused of homicide at a rate 10 times that of non-Indigenous persons.Footnote 524

The reasons for Indigenous persons’ overrepresentation in these negative contexts are many and complex, but certainly include a history of institutionalized racism and discrimination. Though there are many examples of this throughout history, the most visible manifestation of such discrimination was the federal government’s emphasis on assimilation and the residential school system it implemented in the 1870s to “kill the Indian in the child.”Footnote 525 It took until the 1990s for this system to be completely dismantledFootnote 526 and the impacts of it will be felt for many generations to come.

b) First Nations, Inuit and Métis People in the Criminal Justice System

Indigenous persons are significantly over-represented in the Canadian criminal justice system as both victims and offenders. They are more likely to be arrested, charged, detained in custody without bail, convicted, and imprisoned.Footnote 527 Footnote 528 Footnote 529 As concluded in the 1995 Report of the Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide:

The Canadian criminal justice system has failed the Aboriginal peoples of Canada—First Nations, Inuit and Metis people, on-reserve and off-, urban and rural—in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.Footnote 530

The Royal Commission also concluded that, “[r]epeated assaults on the culture and collective identity of aboriginal people have weakened the foundations of aboriginal society and contributed to the alienation that drives some to self-destruction and antisocial behaviour.”Footnote 531

Over-representation in the criminal justice system is one of the natural consequences of the system’s failures regarding Indigenous persons. The reasons for their over-representation in the criminal justice system generally are complex, but are not unknown. Many reports and court decisions have explored these reasons and have made recommendations to ameliorate the challenges to Indigenous persons being treated justly. These include the Royal Commission report referenced above, as well as other Inquiry reports,Footnote 532 academic analyses,Footnote 533 and appellate court decisions:Footnote 534

In R. v Gladue and R. v. Ipeelee, the Supreme Court of Canada recognized the gross overrepresentation of Aboriginal people in Canada’s prisons and criminal justice system constituted a “crisis.” The Court found that systemic bias and discrimination throughout the criminal justice system had combined with “[y]ears of dislocation and economic development and have translated, for many Aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation” to propel over-incarceration.Footnote 535

c) Wrongful Convictions of First Nations, Inuit and Métis People

Research suggests Indigenous persons also suffer a disproportionate number of wrongful convictions.Footnote 536 It is important to recognize that Indigenous persons’ significant over-representation in the criminal justice system contributes to their risk of wrongful convictions (for reasons that will be discussed in more detail later). It is unknown how many wrongful convictions of Indigenous persons have occurred in Canada, and as discussed earlier, there is no comprehensive Canadian list of wrongful convictions. According to Professor Kent Roach of the University of Toronto, Innocence Canada has an incomplete list of 21 wrongful convictions, of which four are Indigenous persons, far higher than the 4.3% of the population who are Indigenous persons.

As a further indication of the seriousness of the problem, according to Innocence Canada, the organization is currently reviewing 81 cases involving first degree murders (34), second degree murders (33), manslaughters (10), and other serious crimes (4). Of those cases, at least 19 involve First Nations persons, close to 25 percent of the total, far exceeding the proportion of First Nations persons in Canadian society.

Description of the image
Active IC Cases Broken Down by the Demographic of the Applicant
Race Results
White 40 (50 %)
Black 12 (15 %)
First Nations 20 (25 %)
Asian 3 (4 %)
South American 2 (2 %)
Other/Did not Identify 3 (4 %)

One of the earliest Inquiries into a wrongful conviction in Canada was that of Donald Marshall Jr., a 17-year-old Mi’kmaw man from Nova Scotia convicted of a murder for which he was factually innocent. Marshall was eventually exonerated and a Royal Commission later determined that the case demonstrated a litany of examples of institutional and individual racism.Footnote 537 The Inquiry into his wrongful conviction concluded that the police investigation was incompetent; that had Marshall been white, police would have been far more careful; and that both Crown and defence lawyers did not “discharge their professional obligations.”Footnote 538 Unfortunately, Marshall’s case was not a catalyst for research into the specific vulnerabilities of Indigenous persons. In fact, until the mid-2000s when some such research began to emerge, there was virtually no research in Canada focused on this particular issue.Footnote 539

Of particular concern is that Indigenous persons are more likely to plead guilty to offences, including offences of which they are factually innocent, or for which they have a valid defence. Recent Canadian research concludes that aspects of the justice system that provide incentives for guilty pleas disproportionately affect Indigenous people compared to the population at large, and there are several other factors that influence Indigenous people to confess and/or plead guilty:

These include delays/adjournments, “unreasonable” bail conditions, remand, plea bargains, and legal representation. Some of these issues disproportionately affect Indigenous people, as evidenced by a greater likelihood of being denied bail and held in remand. Second, like other socially vulnerable groups, Indigenous people may be at greater risk of justice system contact and guilty pleas because of their income, housing, addictions, or mental health status. Finally, there are unique aspects of Indigenous culture that contribute to guilty pleas, including language barriers, a distrust in the justice system, and a “cultural premium” placed on taking responsibility, agreement, and cooperation. These cultural values can lead Indigenous accused to plead guilty even if they are not legally guilty, to provide full confessions to police, and to agree in court whether or not they agree or even understand.Footnote 540

Professor Roach has written extensively about criminal justice system issues, and in 2015 authored an article titled The Wrongful Conviction of Indigenous People in Australia and Canada. He identified that Indigenous people fall victim to wrongful convictions for the commonly understood causes of wrongful convictions generally, including mistaken eyewitness identification, lying witnesses, lack of disclosure, forensic errors, and false confessions. He also identified that Indigenous people have additional disadvantages, including language and translation challenges, defence lawyers who are inadequate and insensitive, and racist stereotyping. Finally, he noted that Indigenous people are subject to various pressures to plead guilty, particularly because of their higher likelihood to be detained without bail.

Research indicates that:

Indigenous people sometimes plead guilty even if they are innocent (or “innocent to a degree”), have a valid defence, or have grounds to raise Charter issues. Despite lawyers and judges conducting a plea inquiry (e.g., whether the accused understands and is not merely pleading guilty to get it over with), it happens because of disadvantages in the justice system, other vulnerabilities, or a cultural sense of responsibility that conflicts with the legal notion of guilt.Footnote 541

This section will focus on just two reasons - the vulnerability of Indigenous persons to making inculpatory but untrue statements, and to entering guilty pleas to avoid remaining in custody until trial. These are significant problems that may be more pronounced with Indigenous persons, and both lend themselves to recommendations to mitigate their influence.

d) Problems Associated with Police Interviews of First Nations, Inuit and Métis People

Kerry Watkins is an expert police interviewer with many years’ experience in Canada. He has provided very helpful analysis on the issue of interviews of Indigenous persons in an article setting out the reasons for their vulnerability and strategies to mitigate the risks.Footnote 542 Watkins notes that Indigenous persons are more likely to be misinterpreted when being interviewed by police, because of their vulnerabilities, which produces unjust outcomes, including:

In Oickle, the Supreme Court of Canada noted that special care must be taken when police interview vulnerable persons. Writing for the Court, Justice Iacobucci stated:

False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics or situation, suspects who have compliant personalities, and, in rare circumstances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation.Footnote 544

Watkins has identified several reasons for Indigenous persons’ vulnerability, including the differences between Indigenous and non-Indigenous culture, which makes them more likely to waive their right to silence under police questioning. Further, police officers may misunderstand certain behaviours common to Indigenous persons, such as being non-confrontational, displaying little emotion, or not making eye contact, when accused of a crime. This can lead to inferences of guilt, when the behaviour may simply reflect their cultural norms.

Other vulnerabilities described by Watkins include those associated with language and comprehension. He points out that the solution is not just to ensure adequate translation services, but also to recognize that some Indigenous persons may not comprehend the concepts behind terms used in the justice system, which can be challenging to anyone who isn’t a criminal justice system player. Further, Watkins identifies that Indigenous persons, for cultural reasons, may not be accurate regarding measurements, such as time and distance, but may acquiesce to the suggestions of an authority figure, to their detriment. Moreover, he notes that when Indigenous persons under investigation have mental health challenges or cognitive impairment, these factors may result in incorrect statements and false confessions. Given that Indigenous persons may suffer from such challenges at a higher rate than Canadians generally,Footnote 545 their vulnerability is heightened. Finally, Watkins recognized that stereotypical beliefs about Indigenous persons may result in police officers being more likely to believe an allegation made against them, and less likely to believe their denial.

The research and experience of a noted expert in Indigenous justice issues, Amanda Carling, supports Watkins’ findings. She has also noted that in addition to not making eye contact when dealing with police, Indigenous persons may often pause during responses to police questioning, which may be inferred as a sign of deceit. In addition, Carling has described the phenomenon of “gratuitous concurrence,” which occurs when an Indigenous person may appear to acquiesce to a suggestion from police even though they do not agree with it. Carling also notes that inferences can be drawn about Indigenous persons’ intelligence or sobriety, or what they intend to say, because they speak “Aboriginal English,” a dialect characterized in part by different pronunciations (e.g., replacing “they” with “dey”), which can easily be misinterpreted by police. Carling notes the communication challenges for Indigenous persons are exacerbated by a significant lack of interpreters capable of properly interpreting Indigenous dialects.Footnote 546 Further, Watkins notes that even where an interpreter is used, there may be a “lie bias” that results in a tendency to find those speaking in a second language as untruthful, possibly because of cues associated with deception that are actually simply reflective of different cultural norms.

Watkins describes strategies to address each of the identified vulnerabilities of First Nations, Inuit and Métis People, including:

Recommendations

  1. Police agencies should consider adopting a policy that would provide for the presence of a support person when interviewing vulnerable Indigenous persons. In several jurisdictions in Australia, police are required to provide adult Aboriginal detainees with an appropriate support person during interviews.Footnote 550 This is not dissimilar to the requirement in Canada under the Youth Criminal Justice Act that police are required to give a young person who has been arrested or detained or is otherwise a suspect a reasonable opportunity to consult a parent, or adult relative or other appropriate adult, prior to giving a statement to the police, unless the young person has waived that right. Police agencies should likewise consider adopting policy that would obligate police to offer the opportunity of a support person to be present when interviewing vulnerable Indigenous persons;Footnote 551
  2. All police agencies in Canada should review their interviewing techniques to ensure they are consistent with current best practices, which include gathering information in a non-confrontational manner, particularly for vulnerable persons, including Indigenous persons; and
  3. More effort should be made to develop increased capacity for interpreters who speak Indigenous languages and dialects to assist in police investigations and in trials.

e) False Guilty Pleas by First Nations, Inuit and Métis People

The problem of false guilty pleas is discussed in detail in Chapter 8. According to Roach, “there is mounting evidence even in non-capital cases innocent [Indigenous persons] are making rational and irrational decisions to plead guilty to crimes that they did not commit.”Footnote 552 He suggests Indigenous persons in Canada are more likely to plead guilty for several reasons. First, because Indigenous persons are significantly over-represented in the criminal justice system, they are more likely to have a criminal record than other Canadians. This puts them at a disadvantage in terms of testifying in their own defence, because of the impact their criminal record may have on their credibility.Footnote 553 Indigenous persons are also more likely to have “substance abuse issues, poverty, lower educational attainment, social isolation, and other forms of marginalization,”Footnote 554 as well as convictions for failing to appear in court or for breaching bail conditions. As a result, they are more likely to be detained without bail.

The number of adults overall in remand custody has been increasing year over year for over a decade,Footnote 555 and according to the Canadian Civil Liberties Association, has tripled since the early 1980s.Footnote 556 Indigenous persons have disproportionately suffered the impact of this trend. Statistics Canada reports that in 2008/2009, those who self-identified as Indigenous persons represented 21 percent of all adults held on remand, despite only being about 3 percent of the Canadian population.Footnote 557 Further, according to one report, “the number of Indigenous people denied bail jumped 92 percent in the 15 years leading up to 2009…”Footnote 558 The result of the likelihood of being held without bail is that Indigenous persons are more likely to plead guilty:

Many plead out, even when they’re innocent, because they can’t make bail, putting them at risk of losing jobs, housing, and custody of their children, defence lawyers told Maclean’s. The simple act of having an Indigenous lawyer, meanwhile, can almost double the number of “not guilty” pleas at first appearance to 49 percent, according to one federal study.
Eddy Cobiness, a 49-year-old member of the Buffalo Point First Nation in Manitoba, told Maclean’s he pleads guilty every time he’s charged, even when he didn’t commit the crime he is accused of: “I just say: ‘Okay, yeah’—just to get out. Every day away from your kids is another day of making memories you lose.”
Denied bail and faced with the prospect of a lengthy stay in an overcrowded jail, more and more are pushed into perverse choices in this era of mandatory minimums. “What would you do?” says Winnipeg criminal lawyer Greg Brodsky. “Do you want to lose your kids? Your job? Or do you [take the plea, and] just go home?” Increasingly, he says, justice resembles a “rush to resolve cases by the best bargain you can make.”

An additional compounding factor is the trend to give “deep discounts” for guilty pleas, which may further disadvantage Indigenous persons, most dramatically exemplified in the case of R. v. Brosseau:

I wish to appeal my conviction and sentence on the grounds that I only have a grade 2 education and my lawyer told me that if I didn’t plead guilty to the charge that they would sentence me to hang. When he told me this I was scared and pleaded guilty.Footnote 559

Researchers suggest the likelihood of an Indigenous person pleading guilty to an offence of which they are factually innocent is greater than for non-Indigenous persons, because they are more likely to have a criminal record and suffer the other disadvantages described earlier. Former Supreme Court justice Frank Iacobucci noted (in an independent review regarding First Nations representation on juries) additional systemic reasons factually innocent Indigenous people may plead guilty:

Many [First Nations] persons accused of crimes plead guilty to their offences, rather than electing trial, in order to have their charge resolved quickly but without appreciating the consequences of their decision. In fact, many First Nations individuals explained that they have never known a friend or family member who, when charged, proceeded to trial. Many of these accused persons believe they will not receive a fair trial owing to racist attitudes prevalent in the justice system, including those of jury members.Footnote 560

Further, Carling has noted that lawyers may work less diligently for Indigenous clients,Footnote 561 and Roach has described how lawyers may not believe their clients’ claims of innocence. Roach also notes other factors, such as “defence lawyers not understanding Indigenous accused for reasons relating to language and culture,” and points out the problems created by the alienation of Indigenous persons from the criminal justice system, causing a lack of trust.Footnote 562 Finally, it is clear that because of their vulnerabilities, Indigenous persons may plead guilty even when factually innocent, and/or without understanding the foreseeable consequences of a plea.Footnote 563

With respect to First Nations accused being more likely to be detained - which may lead to guilty pleas of factually innocent persons - the federal government has taken a positive step with the introduction of Bill C-75, on March 29, 2018. If passed, this legislation will amend s. 493 of the Criminal Code as follows:Footnote 564

Principle of restraint

493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in 5 subsection 498(1.1) or 515(10), as the case may be.

Aboriginal accused or vulnerable populations

493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of

  1. Aboriginal accused; and
  2. accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

This legislation has the benefit of addressing systemic biases faced not only by First Nations accused, but other vulnerable groups as well; if they are less likely to be detained, and if they are less likely to be “set up for failure” by release on conditions that are unreasonably difficult for vulnerable accused to comply with, then these factors may lead to a reduction in wrongful guilty pleas.

Summary and Recommendations

Indigenous persons are wrongfully convicted for the same reasons as others in Canada, as has been well-documented in the literature. Indigenous persons, however, are particularly vulnerable to wrongful convictions for specific reasons that have been identified.

Two significant themes in the available research are cited as contributing to the wrongful convictions of Indigenous persons. The first is that Indigenous persons are disadvantaged when being interviewed by police, which can cause mistaken inferences of guilt. The second is that there are a variety of factors that contribute to Indigenous persons who are factually innocent (or who at least have valid defences) pleading guilty. This occurs because the alternative for many Indigenous persons is that they will be detained pending trial, an outcome that occurs at a dramatically higher rate than for non-Indigenous persons.

There are a variety of strategies that should be explored to address the factors that contribute to the wrongful convictions of Indigenous persons. These include new rules for police interviews of Indigenous persons (whether achieved through legislation, standards, or police policies); improving the capacity of defence lawyers to competently advocate for Indigenous persons, including increasing the availability of culturally and linguistically suitable support persons and interpreters; and committing to actions to reduce the rate at which Indigenous persons are detained without bail, given the rate of guilty pleas among factually innocent Indigenous persons who are denied bail. Further research into guilty pleas among Indigenous persons, such as that which began in 2017 by the Department of Justice Canada’s Research and Statistics Division, should be strongly supported.

  1. More resources should be allocated to develop increased capacity for interpreters who speak languages and dialects spoken by Indigenous persons to assist them and their defence counsel immediately after arrest, at bail hearings, in deciding on whether to plead guilty or go to trial, and any other discussions where understanding both language and concepts is important;
  2. There should be better training available for defence lawyers who represent Indigenous persons to address cross-cultural issues that may create barriers to effective communication;
  3. In recognition of the disproportionate impact of detention orders against Indigenous persons and to reduce the potential for a factually innocent Indigenous person to plead guilty to avoid time in detention, Gladue factors, as is contemplated in s. 515(10) of the Criminal Code, may be a relevant consideration at the bail stage of a prosecution.Footnote 565
  4. When Indigenous persons are released on bail, care should be taken to avoid imposing conditions where there is an insufficient nexus to public safety and which are likely to be breached, creating problems in the future for Indigenous persons qualifying for bail;Footnote 566
  5. There should be further study into problems created by offering significant sentence reductions to those who plead guilty, given that an unintended consequence has been the wrongful convictions of factually innocent persons, including Indigenous persons. Not only is this an unacceptable outcome, it also creates barriers in the future to seeking legal redress, given the prejudicial impact of a guilty plea;
  6. As recommended earlier for female accused persons, a review of Crown policies across the country should be conducted to ensure all require an admission of all elements of an offence prior to a plea being accepted; and
  7. The research that began in early 2017 by the the Department of Justice Canada’s Research and Statistics Division (RSD) on the issue of guilty pleas among Indigenous people should be strongly supported and its eventual recommendations carefully considered and appropriately resourced.
  8. Consideration should be given to amending s. 606 of the Criminal Code to ensure that Indigenous persons (and other vulnerable individuals) understand and consider all reasonably foreseeable consequences of a guilty plea.

IV. Young Persons

Ample research now suggests that young personsFootnote 567 are also more vulnerable to wrongful convictions, as compared to adults, for a variety of age-related reasons.Footnote 568 The nature of the young developing brain is considered a key factor. In essence, youthful brains are wired differently, and those underdeveloped brains result in young persons being poor decision-makers, in contrast to adults. Experts across disciplines point to a trilogy of judgments by the United States Supreme Court, including Roper v SimmonsFootnote 569 where the Court acknowledged the scientific evidence that young persons are less mature, less able to assess risks and long-term consequences of their conduct, more vulnerable to external pressures and more compliant to authority.Footnote 570 As a result, the traits that make young persons different from adults cognitively, socially and emotionally, may also make them particularly susceptible to the recognized systemic factors that contribute to wrongful convictions.Footnote 571

For example, experts contend that young persons are at increased risk of falsely confessing to crimes they did not commit, compared to adults.Footnote 572 The Supreme Court of Canada recognized the particular vulnerability of certain categories of accused persons, including young persons, to falsely confess to crimes in R. v Hart. Justice Moldaver, for the majority, said the following:

Special note should be taken of the mental health and age of the accused. In the United States, where empirical data on false confessions is more plentiful, researchers have found that those with mental illnesses or disabilities, and youth, present a much greater risk of falsely confessing (Garrett, at p. 1064).7 …Footnote 573

While there is a lack of Canadian research regarding the pervasiveness of false confessions among young persons, some Canadian academics contend that false confessions are “a serious and underestimated problem” generally in the Canadian criminal justice system, and that certain categories of people, including youth, may be particularly vulnerable in part because young persons are more suggestible. Canadian Professor Christopher Sherrin points to research suggesting that young persons “may be unusually prone to giving false statements” under pressure from authority figures.Footnote 574

There is considerably more research regarding young persons and the risk of false confessions in the United States, which is typical of the subject of wrongful convictions generally. The International Association of Chiefs of Police recognizes false confessions as a leading cause of wrongful convictions of youth.Footnote 575 The New York-based Innocence Project, which seeks to exonerate the factually innocent based on DNA evidence, states that confessions obtained from juveniles are “often unreliable.”Footnote 576 A spate of American studies suggests just how unreliable. Experts there say that studies of proven false confessions show that juveniles (defined as those under 18) are over-represented in false confession cases.Footnote 577 The research shows that young persons are actually about two to three times more likely to falsely confess than adults,Footnote 578 and that between 30 to almost 40 percent of those who falsely confess are young persons. For example, data from the National Registry of Exonerations shows that 38 percent of exonerees who falsely confessed were under 18.Footnote 579 A study by US law professor Brandon Garrett of the first 250 wrongfully convicted persons exonerated through DNA testing in the U.S. found that 33 percent of those who falsely confessed were juveniles.Footnote 580 A study by known American experts Steven Drizin and Richard Leo of 125 cases of proven interrogation-induced false confessions found that 33 percent of them involved young persons under 18 (63 percent were under 25).Footnote 581

Young persons are less mature than adults and have less life experience, say experts, and may thus be more easily intimidated by police power and more vulnerable to persuasion and coercion. They tend to be more suggestible and impulsive, exhibit a particular eagerness to obey or agree with those in authority, and generally appear at greater risk of falsely confessing in the face of psychological interrogation techniques.Footnote 582 “They are thus less equipped to cope with stressful police interrogation and less likely to possess the psychological resources to resist the pressures of accusatorial police questioning.”Footnote 583 In both Canada and the United States, the highest courts have recognized that young persons are more susceptible to the pressures of police interrogation.Footnote 584

The exact manner in which a young person reacts during a police interrogation and the ultimate breaking point or catalyst for a false confession or admission will vary from case to case. In the American study by Drizin and Leo, one of the most common reasons cited by teenagers for falsely confessing during police interrogations was that they believed that, by doing so, they could end the questioning and be allowed to go home.Footnote 585 In other cases, young persons, faced with what appears to be overwhelming evidence that they committed the crime, despite their factual innocence (such as false evidence presented to them by the police that the victim’s blood was found in their bedroom, a false suggestion that the police lifted their fingerprints from the crime scene, etc…), falsely confess to secure more lenient treatment. In some cases, they actually become convinced during the interrogation, at least temporarily, that they must have committed the crime based on the false evidence against them that the police say they have, even though they say they have no memory of committing the crime.Footnote 586

It is important to emphasize that most of the research in this area is American and based on American law, practices and experience. Canadian police interrogation techniques are guided by the Canadian Charter of Rights and Freedoms, as well as the Canadian statutory and common law. There are clear differences between the interrogation techniques used by Canadian police and those employed by their American counterparts, particularly regarding the interrogation of young persons. As discussed in Chapter 4, among other things, Canadian police must comply strictly with the requirements of section 146 of the Youth Criminal Justice Act when interviewing young persons who are suspects. Otherwise the statement made to the police officer by the young person is unlikely to be admissible against him or her. That section provides that a person in authority, generally a police officer, cannot take a statement from a young person who is detained, under arrest, or otherwise suspected of having committed a crime, unless the young person has first been given a reasonable opportunity to consult with a lawyer, and also with a parent or adult relative or other appropriate adult person. If the young person chooses to consult with a lawyer and/or with a parent or other adult, the young person must also be given a reasonable opportunity to make the statement in the presence of that person. The young person can waive these rights but any such waiver must be recorded electronically or be in writing and signed by the young person.Footnote 587 The Supreme Court of Canada said clearly in R. v LTH that in order for this waiver to be valid, it must be established by clear and unequivocal evidence that the young person waived the procedural safeguard with full knowledge of the rights the procedure was designed to protect and the effect the waiver will have on those rights.Footnote 588 In a case where defence challenges the validity of the waiver of a young person, the Crown must prove beyond a reasonable doubt the validity of the waiver. The judge must be satisfied that the waiver is based “on a true understanding of the rights involved and the consequences of giving them up.”Footnote 589

The Canadian common law imposes additional obligations on the police. That said, the common law by which Canadian police officers are bound permits the police to engage in trickery against an accused, including deception, so long as police do not use tactics that would shock the conscience of the community.Footnote 590 Nevertheless, Justice Iacobucci, for the majority of the Supreme Court in Oickle, pointed out the danger of the police presenting entirely fabricated evidence to the suspect because it “has the potential either to persuade the susceptible suspect that he did indeed commit the crime, or at least to convince the suspect that any protestations of innocence are futile.”Footnote 591 But Justice Iaocobucci did not go so far as to say that fabricated evidence can never be presented to an accused. The Supreme Court of Canada has also established clear rules regarding undercover operations such as Mr. Big regarding when evidence derived from such operations will be admissible in court.Footnote 592

Similar to the concerns that young persons may be at particular risk of false confessions, academics are also asking to what degree young persons are also more vulnerable than adults to entering false guilty pleas.Footnote 593 The research on this question is relatively sparse and conflicting. Experts acknowledge that only some, but not all, of the current research indicates that young persons, particularly the younger ones, are more likely to plead guilty than adults.Footnote 594 For example, at least one study found that young persons are entering false guilty pleas at a slightly lower rate than adults, 6.8 percent compared to 7.9 percent for adults.Footnote 595 Some experts explain this by suggesting that young persons, being inherent risk-takers, may be more willing than adults to tolerate the risks of going to trial rather than pleading guilty when innocent.Footnote 596 Other American scholars suggest false guilty pleas are higher among youths for a multitude of reasons: heavy caseloads, juvenile court culture in the U.S. that disapproves of lawyers who advocate zealously for their young clients rather than co-operating with the prosecution and the judge in focusing on a child’s best interests, lawyers who do not spend adequate time investigating cases and preparing their youthful clients, which leads to situations where youths do not understand the plea system, including the fact that they are waiving their right to trial and admitting guilt. Some also argue that false guilty pleas, like false confessions, may be higher for young persons for the various developmental reasons already cited: Young persons tend to focus on the short term, they are more likely to acquiesce to adult authority and they are less mature in their decision-making and judgment.Footnote 597 Nevertheless some experts who have studied the question carefully suggest that we simply do not know whether young persons are more or less likely than adults to plead guilty to crimes they did not commit, that there are arguments on both sides of the question, and that this subject requires greater attention and more research.Footnote 598

Young persons may be more vulnerable to being wrongfully convicted as compared to adults for other reasons as well, the research suggests. The same traits mentioned above that relate to the youthful brain, such as poor judgment, immaturity, challenges assessing risks, sensitivity to peer pressure and an inability to see long-term consequences of their conduct, can also make them less capable trial defendants, some experts say.Footnote 599 Young persons are also more likely to have ineffective counsel, particularly in juvenile court (the American term for what in Canada is called youth justice court), in contrast to adult accused, American academics contend.Footnote 600 Again, this observation regarding ineffective legal representation is based on American research and the nature of juvenile court in the U.S.Footnote 601 American researchers found in a study of 103 youth exonerations cases that the court ruled in 13 (or 13.6 percent) of the cases that the defence counsel provided ineffective assistance whereas the same ruling was made in only seven (or 3.3 percent) of the 214 adult DNA exoneree cases.Footnote 602 While researchers qualified the difference by saying that the exculpatory DNA results in the adult sample provided enough basis for overturning the conviction that the court did not need to find ineffective legal representation, they also made the point that it would be hard to deny that inadequate legal representation may affect young persons more than adults.Footnote 603

Some scholars also argue that young persons are less capable of understanding their rights, such as the right to silence, and the consequences of giving it up, and that they also frequently waive their right to counsel, both of which can make them more vulnerable to wrongful convictions.Footnote 604

…[I]t is difficult for a waiver to be either knowing or voluntary when children often relinquish their right to counsel without any explanation of what the right means or how they may choose to exercise it. When children appear in juvenile court without counsel, they will almost undoubtedly plea to a crime that they may or may not have committed.Footnote 605

The U.S. government has recognized that in some jurisdictions up to 80 to 90 percent of youth waive their right to a lawyer because they do not know the meaning of the word “waive” or understand its consequences.Footnote 606 The Canadian courts have raised similar concerns that young persons in Canada are less able than adults to understand their legal rights and thus the consequences of waiving themFootnote 607 but there is no data regarding the rates at which young persons in Canada waive their right to counsel under s 146 of the YCJA.

Recommendations Particular to Young Persons

  1. The federal government should consider conducting research regarding the rate at which young persons in Canada waive their right to consult counsel under s 146 of the Youth Criminal Justice Act;
  2. The federal government should consider conducting research regarding the extent to which young persons, particularly those between the ages of 12 and 14, who are under arrest or detention or otherwise suspects, understand the meaning and implications of waiving their rights to counsel and their right to silence before giving a statement to police.

V. Updated Recommendations

General RecommendationsFootnote 608

  1. When an accused is giving a recorded statement to police regarding an alleged offence, the entire interview should be recorded, from beginning to end, not just the portion where the accused confesses to the crime;
  2. Police forces should review their policies to determine if it is ever appropriate for the police to lie during interrogations to particularly vulnerable persons about the strength of the evidence against them, for example, by informing the accused that the police discovered their fingerprints or DNA evidence at the crime scene, when no such evidence exists;
  3. The federal government should consider conducting research regarding whether certain segments of the population are at increased risk of wrongful convictions, and if so, why, and what can be done to reduce the risks of wrongful convictions within these at-risk groups;
  4. There should be further study into problems created by offering significant sentence reductions to those who plead guilty, given that an unintended consequence has been the wrongful convictions of factually innocent persons, including Indigenous persons. Not only is this an unacceptable outcome, it also creates barriers in the future to seeking legal redress, given the prejudicial impact of a guilty plea;
  5. All Prosecution Services should review their policies regarding resolution discussions to ensure that the policies require that :
    1. the offender is admitting all elements of the offence to which a plea is being entered;
    2. the facts and evidence against the accused support the offence for which a plea is being entered;
    3. the Crown is satisfied there is a reasonable prospect of conviction;
    4. the prosecution service policy states clearly that the Crown cannot accept a guilty plea from an accused where the Crown has knowledge or concerns that the accused is factually innocent, and
    5. the Crown is particularly sensitive to guilty pleas being entered by accused persons from identified groups who are recognized as being at particular risk of wrongful convictions;
  6. Greater training should be provided for police, Crowns and judges generally regarding why certain populations may be at particular risk of wrongful convictions; and
  7. In particular, police officers across Canada should receive special training regarding best practices in relation to the interrogation of accused persons from at-risk populations.

Recommendations Particular to Women

  1. A review should be undertaken of the admissibility and proper use of demeanor evidence, specifically in cases where the accused are women and/or members of other vulnerable, at-risk groups.
  2. All prosecution services should review their relevant policies to ensure they alert prosecutors to the risk of falling victim to gender stereotypes, as well as other forms of discrimination, during the course of their prosecutions, from the initial file assessment to the resolution of the case.
  3. A standard jury instruction should be developed to caution juries about placing undue weight on the demeanor presentation of a witness, particularly in cases which involve female and other at-risk accused, whose emotional reaction may have been noted by the court as “unusual” or “unexpected”, and not incompliance with typical gender and cultural stereotypes.

Recommendations Particular to First Nations, Inuit and Metis People

  1. Police agencies should consider adopting a policy that would provide for the presence of a support person when interviewing vulnerable Indigenous persons. In several jurisdictions in Australia, police are required to provide adult Aboriginal detainees with an appropriate support person during interviews.Footnote 609 This is not dissimilar to the requirement in Canada under the Youth Criminal Justice Act that police are required to give a young person who has been arrested or detained or is otherwise a suspect a reasonable opportunity to consult a parent, or adult relative or other appropriate adult, prior to giving a statement to the police, unless the young person has waived that right. Police agencies should likewise consider adopting policy that would obligate police to offer the opportunity of a support person to be present when interviewing vulnerable Indigenous persons;Footnote 610
  2. All police agencies in Canada should review their interviewing techniques to ensure they are consistent with current best practices, which include gathering information in a non-confrontational manner, particularly for vulnerable persons, including Indigenous persons;
  3. More effort should be made to develop increased capacity for interpreters who speak Indigenous languages and dialects to assist in police investigations and in trials.
  4. More resources should be allocated to develop increased capacity for interpreters who speak languages and dialects spoken by Indigenous persons to assist them and their defence counsel immediately after arrest, at bail hearings, in deciding on whether to plead guilty or go to trial, and any other discussions where understanding both language and concepts is important;
  5. There should be better training available for defence lawyers who represent Indigenous persons to address cross-cultural issues that may create barriers to effective communication;
  6. In recognition of the disproportionate impact of detention orders against Indigenous persons and to reduce the potential for a factually innocent Indigenous person to plead guilty to avoid time in detention, Gladue factors, as is contemplated in s. 515(10) of the Criminal Code, may be a relevant consideration at the bail stage of a prosecution.Footnote 611
  7. When Indigenous persons are released on bail, care should be taken to avoid imposing conditions where there is an insufficient nexus to public safety and which are likely to be breached, creating problems in the future for Indigenous persons qualifying for bail;Footnote 612
  8. The research that began in early 2017 by the the Department of Justice Canada’s Research and Statistics Division (RSD) on the issue of guilty pleas among Indigenous people should be strongly supported and its eventual recommendations carefully considered and appropriately resourced.
  9. Consideration should be given to amending s. 606 of the Criminal Code to ensure that Indigenous persons (and other vulnerable individuals) understand and consider all reasonably foreseeable consequences of a guilty plea.

Recommendations Particular to Young Persons

  1. The federal government should consider conducting research regarding the rate at which young persons in Canada waive their right to consult counsel under s 146 of the Youth Criminal Justice Act;
  2. The federal government should consider conducting research regarding the extent to which young persons, particularly those between the ages of 12 and 14, who are under arrest or detention or otherwise suspects, understand the meaning and implications of waiving their rights to counsel and their right to silence before giving a statement to police.

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