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Wrongful Convictions In Canada
Wrongful Convictions in the Canadian Criminal Justice System
Introduction to Canadian Legal System
The Canadian criminal justice system is meant to protect the rights and freedoms of the innocent, while punishing those who are guilty of crimes against society. However, no system of governance is perfect and as a result, the innocent sometimes become the victim of the exact justice system that is designed to protect them. This paper will explore the topic of wrongful convictions in Canada by analyzing some elements of the Canadian justice system (CJS), reviewing and discussing the wrongful conviction case of David Milgaard.
The suspicion of guilt will most likely lead investigators to charge the suspected criminal. The legal rights in the Canadian Charter of Rights and Freedoms provide persons with the right to be “presumed innocent until proven guilty according to the law”. It is the responsibility of law enforcement officials to keep the peace in society and lay charges on those who disrupt the peace. Therefore, it can be argued that society will think the police only press charges against guilty people. It can also be argued that the desire to catch the criminal and the initial suspicion of guilt will focus investigators to gather evidence on a guilty suspect (Kennedy, 2004). This evidence will either include or eliminate the person as a suspect. However, commissions of inquiry into wrongful convictions have shown that the presumption of guilt is a precursor to ‘tunnel vision'. Tunnel vision is defined to be the single minded and overly narrow focus on an investigation. This leads to a biased evaluation of the information received and biased actions in response to the information (FPT Heads of Prosecutions Committee, 2004). It is claimed that the desire to secure a conviction arises from increased pressure from the community and justice professionals to catch the criminal. Similarly, this desire may result in unprofessional behaviour against a suspect that investigators are convinced is guilty. This may cause officials to lose, suppress, misinterpret, and overlook evidence that may otherwise prove the suspect's innocence (Denov & Campbell, 2005). In addition, tunnel vision on a suspect may also reduce their search for other suspects to the crime. As a result, the lack of potential suspects to a crime may reduce the likelihood of a jury to acquit the accused on the basis of reasonable doubt. In summary, a suspicion of guilt may lead investigators to potential suspects; however, it may also lead to tunnel vision which may cause officials to influence evidence against a potential suspect.
In R v. Milgaard the polygraph officer coerced Ron Wilson into providing a testimony which he believed was true. As a result, the officer did not perform a polygraph on Ron Wilson's new statement assuming it true. Had he performed the polygraph, it would have been discovered the statement was false and inadmissible as evidence (MacCallum, 2008).
Eye Witness Testimony
It is claimed that eyewitnesses provide the most unreliable type of evidence in criminal proceedings. Law enforcement officials maintain that the eyewitness's firsthand knowledge about the crime is crucial in determining the truth. Therefore, it could be argued that eyewitness evidence is the most reliable to convict a suspected criminal (Technical Working Group for Eyewitness Evidence, 1999). It is the assertion of the criminal justice system that a positive identification is a main feature of any offence and is an essential part of the process. It is further said that a prosecution witness who can confidently, under oath, identify the suspect committing the crime is most likely telling the truth (FPT Heads of Prosecutions Committee, 2004). However, psychological studies show eyewitness identifications to be unreliable due to the normal deficiencies in the human memory process. There are three main reasons for these deficiencies. Firstly, the witness may be subject to unconscious transference where they confuse the suspect with another person seen at another event. Secondly, the witness may be subject to suggestive police interviewing where information is passed to the eyewitness that may contaminate their testimony. Due to tunnel vision, police investigators may also coerce the witness into providing evidence that is contrary to what they saw. Finally, the witness is more confident about their identification if given positive feedback from law officials. The studies further indicate that most jurors are unaware of the potential problems with eye witness testimony. Accordingly, they have too much faith in its accuracy (Denov & Campbell, 2005). Overall, eyewitness's firsthand evidence of the crime can be very valuable in catching criminals; however, their evidence is subject to human error and contamination by law officials who are prone to tunnel vision.
Of particular importance is the alibi witness who can prove the innocence of the accused. In R v. Milgaard, John and Wilson were initially Milgaard's alibi witnesses. However, once Milgaard was mistakenly identified as a potential suspect, investigators assumed John and Wilson were lying. They conducted a second interview with the intention to obtain evidence against Milgaard which eventually led to his wrongful conviction. The Milgaard Inquiry later discovered that John and Wilson were pressured into providing contradictory evidence by the polygraph officer who believed Milgaard was guilty (MacCallum, 2008).
Crown's Disclosure Of Evidence
In prosecutorial proceedings, the non-disclosure of irrelevant evidence by the Crown may disadvantage the defence. In criminal proceedings, the Crown prosecution must prove that the offence committed by the accused contained the elements of actus reus and mens rea (Kelly, 2008). This provides the accused with the benefit where the onus is on the Crown to prove that beyond a reasonable doubt, the accused is guilty. It is also the responsibility of the Crown, under the Canadian Charter of Rights and Freedoms, that the accused receive a fair trial by an independent and impartial tribunal. For this reason, the Crown has the duty to make a full and timely disclosure to the defence of all relevant information that is known to the investigator and the Crown Attorney. However, the determination of irrelevance may lead to an unfair trial. The Crown's determination of ‘relevancy' is based on the whether the information is reasonably favourable for the defence. One of the arguments opposing this claim is that the Crown may be subject to tunnel vision and pose a bias towards the accused based on existing evidence (FPT Heads of Prosecutions Committee, 2004). In addition, the Crown may also be unaware of the potential arguments that could be formed by the defence. The information deemed irrelevant, may preclude the defence in forming a potential argument of ‘reasonable doubt'. Therefore, the disclosure of relevant information may allow a fair trial; however, the determination of relevancy is subject interpretation and its preclusion may prejudice the defence from forming potential arguments to prove innocence.
In R v. Milgaard, the Crown withheld evidence it deemed irrelevant which included information of an indecent assault near the murder scene. If disclosed, the defence could have formed an argument of a third party involvement in the crime. Accordingly, this would have created reasonable doubt that Milgaard committed the crime and may potentially have resulted in an innocent verdict (MacCallum, 2008).
Safeguards In The CJS And Legal System
Wrongful convictions are commonly the result of errors in the investigative and prosecutorial stage due to unprofessional behaviour. The Canadian Police College has developed a major case management model (MCM) for managing serious investigations. It is a highly organized and systematic model that is set out to ensure investigations are handled in a professional manner. In particular, the model minimizes the errors that emerge from tunnel vision and eyewitness testimony in the investigative stage (Campbell & Lepard, 2007).
Based on recommendations from the Department of Justice and the MCM, the following safeguards are in place to increase the reliability of eyewitness testimony. Firstly, interviews with alibi witnesses are video/audio taped and transcribed. This allows the court to judge if the evidence provided is genuine and is free from contamination. Secondly, interviews of alibi witnesses are conducted by police officers that are independent to the investigation. This is to prevent any biases against the accused in contaminating the eyewitness' testimony. Thirdly, alibi witnesses are not to be influenced or interrogated when interviewed. This protects the integrity of their testimony. Finally, the jury is to be cautioned on the on the reliability and frailties of eyewitness identifications. This may reduce the likelihood of a wrongful conviction based solely on eyewitness evidence.
In order to minimize errors from tunnel vision, the following safeguards are in place in the CJS. Firstly, all officers are educated on how to detect and avoid tunnel vision. Secondly, cases discussed with prosecutors before any charges are laid against a suspect. Thirdly, independent reviews of a police department's investigative practices. Finally, with respect to the disclosure of irrelevant information, the Crown prosecutors are encouraged to consider the defence perspective (Campbell & Lepard, 2007; FPT Heads of Prosecutions Committee, 2004).
The future of the Canadian justice system in terms of wrongful convictions will be dependent on the lessons learned from previous mistakes. Through commissions of inquiry, justice professionals are aware that an error in their duty may send an innocent person to prison. As long as professionals check and independently review their practices, they will prevent future miscarriages of justice.
Remedy - Criminal Conviction Review Process
One possible remedy to a wrongful conviction is the Criminal Conviction Review Process (CCRP) that is pursuant to Section 696.1 of the Criminal Code. The sections 696.1 - 696.6 of the Criminal Code outline the special review powers of the Minister of Justice to correct a wrongful conviction. The individual must submit an application to the Minister. The application must present new and significant information which doubts the validity of the conviction. Next, a lawyer from the Department of Justice investigates the reliability and relevance of the new information. If it is discovered that a miscarriage of justice has occurred, the Minister can order a new trial, order a new hearing, or refer the case to a provincial Court of Appeal as an appeal (Scullion, 2004). However, the CCRP is reactive and places a heavy burden on the convicted to prove that justice was miscarried. The Minister does not decide guilt or innocence. The onus is on the convicted to prove that the new information might have affected the outcome of their verdict at the original trial (Denov & Campbell, 2005). Some criminal defence lawyers argue that the wrongfully convicted do not have the resources to search for new evidence or the money to have it analyzed. They also claim that the investigative lawyers from the Department of Justice may have a bias towards the applicant's innocence. This arises from the belief that it was the same department that allowed the wrongful conviction. In addition, bias may also exist due to political pressure from within the government and public lobbying groups (Kennedy, 2004). Overall, the CCRP does offer a potential remedy to the miscarriage of justice; however, the process is limited to the resources available to the applicant and to the potential biases within the government.
Solutions For Persons Who Suffered A Wrongful Conviction
In situations where the Minister has ordered for a new trial, the Crown may opt for a stay of proceedings. This simply means the crown is not going to proceed with prosecuting the convicted. As a result, the individual is free to return to society. However, this will not provide closure to the wrongfully convicted since it does mean that they are factually innocent. This is neither a fair nor appropriate solution for these individuals. Firstly, if the Crown believes that there is reasonable doubt, then all charges should be dropped. It can be argued that if the same information was presented at the original trial, the jury would have likely come to an innocent verdict based on the same grounds of reasonable doubt. Secondly, the state should issue a formal apology and admit they made a mistake in punishing an innocent individual. Thirdly, the individual should be entitled to a mandatory compensation package for the time lost and the suffering incurred by being branded a criminal to society. Finally, the state should commission an inquiry into the causes of the individual's wrongful conviction. In the eyes of the public and the wrongfully convicted, the criminal justice system failed in some way. They are entitled to know how the system failed and what should be done to prevent it from failing in the future.
The criminal justice system is a fundamental part of society that protects the innocent and punishes the guilty. However, it is only effective if justice professionals are aware of the potential errors in the system. During the investigative stage, the desire to catch the criminal may lead to tunnel vision and mishandling of evidence against the accused. Coincidently, tunnel vision may also impact eyewitness evidence which is already subject to human error. In criminal proceedings, the accused's right to a fair trial can be compromised by a prosecutor that suffers from tunnel vision and withholds irrelevant information. To prevent future wrongful convictions, the justice system has implemented safeguards that detect and prevent systematic errors in the system. As remedy, the wrongfully convicted may apply to have his case reviewed by the Minister; however, only if they have the resources to search and provide new information that doubts the validity of their conviction. As demonstrated in R v. Milgaard, the wrongful conviction is in its own accord a major failure in the Canadian criminal justice system; however, their discovery indicate that the system is prone to errors which may lead to the miscarriage of justice.
Campbell, E., & Lepard, D. (2007). How police departments can reduce the risk of wrongful convictions. Wrongful convictions in Canada (pp. 12-39). Vancouver, Canada: International Society for the Reform of Criminal Law.
Denov, M. S., & Campbell, K. M. (2005). Criminal injustice: Understanding the causes, effects, and responses to wrongful conviction in Canada. Journal of Contemporary Criminal Justice, 21(3), 224-249.
FPT Heads of Prosecutions Committee. (2004). In Canada Department of Justice (Ed.), Report on the prevention of miscarriages of justice. Ottawa, Canada: Federal Prosecution Service.
Kelly, M. A. (2008). Chapter 13: Criminal law. In L. Olivo (Ed.), Introduction to law in Canada (pp. 284-300). Concord, Ontario: Captus Press Inc.
Kennedy, J. P. (2004). Writing the wrongs: The role of defence counsel in wrongful convictions - A commentary. Canadian Journal of Criminology and Criminal Justice, 46(2), 197-208.
MacCallum, E. P. (2008). Summary of findings and recommendations. Report of the commission of inquiry into the wrongful conviction of David Milgaard (pp. 398-414). Saskatoon: Saskatchewan Department of Justice.
Scullion, K. (2004). Wrongful convictions and the criminal conviction review process pursuant to section 696.1 of the criminal code of Canada. Canadian Journal of Criminology and Criminal Justice.Special Issue: Wrongful Conviction: Perspectives, Experiences, and Implications for Justice, 46(2), 189-195.
Technical Working Group for Eyewitness Evidence. (1999). Eyewitness evidence: A guide for law enforcement. Washington, DC: U.S. Department of Justice.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
Criminal Code, R.S.C. 1985, c. C-46, s.691.1 - 691.6
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