Action needed on wrongful convictions in Canada, law prof, ex-judge urge at U of T webinar

By Amanda Jerome

Law360 Canada (May 23, 2023, 9:18 AM EDT) -- Faulty eyewitness identification, the innocent pleading guilty and little to no reform for wrongful convictions were issues highlighted by University of Toronto’s (U of T) Faculty of Law professor, Kent Roach, and former justice of the Ontario Court of Appeal, Harry LaForme, in a webinar held on May 17.

In the webinar, titled “Canada’s Wrongful Convictions: What lawyers and leaders can do to safeguard justice,” Roach spoke about the importance of addressing wrongful convictions and the need for urgent remedies.

“To borrow the words of the Tragically Hip, wrongful convictions are not ‘late breaking news on the CBC,’ ” Roach said, noting that even as “DNA exonerations have dried up in Canada,” it “doesn't mean that wrongful convictions do not happen.”

Roach noted that the Supreme Court of Canada affirmed in R. v. Yebes, [1987] 2 S.C.R. 168 the “idea that appellate courts should not second guess jury verdicts.”

Kent Roach, University of Toronto

Kent Roach, University of Toronto

“Mr. Yebe’s murder conviction was overturned in 2020 but was only reported in one article that we could find in The Globe and Mail,” he said, noting that he recently wrote an op-ed in the Vancouver Sun about recent cases where “prosecutors have used stays, despite recommendations by three public inquiries between 2006 and 2008, that in a case where there’s a wrongful conviction … prosecutors should only use prosecutorial stays under section 507 of the Criminal Code if there is a real prospect that the person will be prosecuted again.”

“And of course, using a stay for someone who has endured the stigma and suffering of a wrongful conviction, puts them in legal limbo and allows suspicions to gather over them,” he stressed.

The effects of wrongful convictions inspired him to write his book, Wrongfully Convicted: Guilty Pleas, Imagined Crimes, and What Canada Must Do to Safeguard Justice, which “would not have been possible without” the Canadian Registry of Wrongful Convictions.

Roach, along with four alumni of the JD program – Amanda Carling, Jessie Stirling, Joel Voss and Sarah Harland-Logan – launched the Canadian Registry of Wrongful Convictions. The registry, which was started in 2018, 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,” a U of T release explained.

Roach explained that when they “stood back after collecting data on 83 remedied wrongful convictions,” there were some “patterns” that he’d “never seen before.”

He explained that 16 of the 83 were “actually guilty pleas.”

“The issue, from an ethical perspective, is how do we make sure that we don’t pressure and essentially coerce people into accepting a plea and sentencing discount?” he asked, adding that this is also “not really contemplated in available Rules of Professional Conduct about: what is the role of the defence?”

“Should the defence plead someone guilty, who is maybe making a rational decision in their benefit, but actually has told them that they are innocent? What is the role of the prosecutor?” he wondered.

Roach noted that the federal, provincial and territorial (FPT) heads of prosecutions committee released a report which said, “prosecutors should not accept guilty pleas from those that they know to be factually innocent.”

“Is that the appropriate standard?” he pushed, noting that “under Bill C-75 the Criminal Code has been amended so that the judge is supposed to determine whether there is a factual basis to the plea.”

“But of course, it is very difficult to reopen pleas once they have been made. The wrongfully convicted told me and Justice  LaForme many times [that] it can take literally only minutes for a wrongful conviction to occur, especially in a guilty plea case, and it can take decades to undo that wrong,” he emphasized.

Roach warned that “perhaps one of the costs of increased denial of bail will be that some people will make rational, or perhaps irrational decisions, to plead guilty even though they are innocent, and they may well have a valid defence.”

“So, what must be done? Well, first, obviously, it’s better to prevent wrongful convictions than to remedy them,” Roach said, noting that Canada has “done relatively little.”

“There’s been seven provincial public inquiries into wrongful convictions. They’ve all recommended various reforms to the Criminal Code and … none of those reforms have been enacted,” he said, noting that the “Donald Marshall Jr. Commission said we should have statutory disclosure rights to the accused in the Criminal Code,” but the “government did nothing.”

“We still have no legislated standards, or do not routinely allow expert evidence on eyewitness identification. Faulty eyewitness identification is one of the leading causes of wrongful convictions,” he emphasized, noting that a person can “honestly believe that that is the person” they saw.

“We’re just really bad at recognizing people and then retrieving it in our memory. That retrieval process is often tainted by the fact that we’ve gone through identification procedures with the police and then subsequently at trial,” he explained.

“We also have the false promise of judicial regulation of interrogation in Mr. Big [cases],” he added, as well as the “false promise of performing forensic science.”

Roach noted that the legal philosopher, Ronald Dworkin, “argued, you have no absolute right to the most accurate criminal justice system.”

“But professor Dworkin, I think, to his credit, said there’s an important caveat: if the risk of wrongful conviction falls disproportionately on disadvantaged groups, then you would have a right to the most accurate criminal justice system,” added Roach, noting that “Dworkin’s philosophical caveat is a sociological reality.”

“Whether it is the Canadian registry, or the American Registry, or the British registry, we know that the disadvantaged, who are of course also overrepresented in our prison population, are most at risk of wrongful convictions. So, we need to improve and quicken remedies,” he concluded, noting that while Bill C-40 proposes replacing “the role of the federal minister of justice with the new Miscarriage of Justice Review Commission,” there are “concerns about how people will be appointed to that commission, whether they’ll have the necessary budget powers and jurisdiction, especially in wrongful guilty plea cases and in sentencing cases.”

LaForme, who authored A Miscarriages of Justice Commission with former justice Juanita Westmoreland-Traoré, hopes Roach’s book is a “wake-up call to all Canadians.”

LaForme hopes that “people will realize that there’s a lot” they can do to inspire reform in this area.

Citizens, he noted, can’t “just sit back and allow this to happen.”

“You have to get out, and you have to do something. Even if it’s a letter to your member of Parliament,” he added, stressing that it’s an “important subject” and “troubling” how often wrongful convictions occur in Canada.

“One of the things I learned about being a judge is that finality is really important to our system of justice and finding finality is critical. And we don’t like to be told we’re wrong, and we don’t like to be told we made a mistake. But we do. We’re humans,” he said, stressing the importance of knowing when a mistake has been made.

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