- Robson Crim
Wrongful Convictions: Is Canada’s Justice Broken? - Kirsten Nynych
Part 1: What is a wrongful conviction and how does it occur?
Wrongful convictions occur when a factually innocent person is convicted of a crime they did not commit. Wrongful convictions usually result from miscarriages of justice which are mistakes or miscommunications in the justice system. A miscarriage of justice would occur if an individual was seriously criminally implicated even though they were only minorly involved and received a more serious charge than they were guilty of. Miscarriages of justice are heightened when culturally incompetent legal professionals improperly work on cases with oppressed groups of people that are already over-represented in the criminal justice system. Wrongful convictions have serious psychological consequences for convicted individuals. Convicts face emotional trauma and serious lasting psychological disorders such as post-traumatic stress disorder. Canada’s system for addressing wrongful convictions poses psychological, practical and financial barriers that are too great for many convicts to surmount.
The process for dealing with wrongful convictions in Canada disadvantages the accused by laying the burden of proof on the accused and creating insurmountable financial burdens. The process and decisions are enacted by the Federal Minister of Justice, an elected official, who is not independent of the prosecutorial process. This blog argues that Canada’s process for addressing wrongful conviction applications is ineffective, disadvantages the morally innocent and creates psychological problems for those wrongfully convicted.
Part 2: Why is it so difficult and inaccessible to have a case evaluated for wrongful conviction?
Canada has two methods of addressing wrongful convictions. First, if the convict has not previously appealed to the Supreme Court of Canada (SCC), the SCC can grant an “out of time” appeal and direct the case to the “provincial court of appeal to hear new evidence”. Second, if the convict has exhausted all appeals, they must petition the Federal Minister of Justice to reopen their case. In both instances, the accused must present “new and sufficient” evidence that the applicant was not “aware of until all proceedings were over” for their case to be considered a wrongful conviction. This means that the convicted, incarcerated individual needs to find new evidence and compile all former trial and appeal documentation to submit their petition (or appeal if not exhausted). The convict is incarcerated and therefore requires legal assistance to gather documents, evidence and trial history. Putting the onus of record collection on the accused contradicts the Canadian policy of innocent until proven guilty beyond a reasonable doubt. This process poses insurmountable barriers to justice that perpetuate the wrongful conviction of morally innocent individuals.
The application to petition the Federal Minister of Justice to re-open cases sometimes puts insuperable financial burdens on the convict. The individual must pay their legal representation to gather the required evidence and documents before the case can be re-opened and the incarcerated granted bail. Someone who has been incarcerated for several years does not likely have sufficient savings to pay for this assistance. Legal aid does not exist to help the incarcerated in all provinces, and in the provinces where legal aid operates to help convicts, the requirements to receive it are extremely high. Therefore, if a morally innocent convict does not possess the required financial backing or assistance, they remain wrongfully incarcerated, again punishing the morally innocent.
The Federal Minister of Justice, an elected official, has the sole power to determine which cases are evaluated and the outcome of wrongful conviction applications. This is detrimental to impartiality, a keystone of the justice system. The Federal Minister of Justice is referred to as “the chief lawmaker”, as they also serve as the attorney general. The chief law maker supervises the prosecution of federal statutes in the provinces and offences in the territories, meaning they are highly involved in the prosecution of criminals throughout the country. How can an individual be expected to remain impartial to re-opening a case that they may have already been involved in? The Minister of Justice accepts 1% of applications for case re-evaluations, suggesting that many cases are dismissed or never addressed. This process not only questions the impartiality of the justice system but is also inefficient at addressing miscarriages of justice.
Kent Roach, in his article The Wrongful Conviction of Indigenous People in Australia and Canada, describes that racial bias exists in the justice system and that indigenous people are unequally impacted by wrongful convictions for several reasons, including linguistic barriers. Roach explains that Lawrence Brosseau, accused of murder, primarily spoke Cree and testified through a Cree interpreter. Brosseau pled guilty to non-capital murder, when being charged with capital murder. Brosseau applied for an appeal to the Supreme Court of Canada which was denied on the basis that the trial judge had “no duty to inquire [if] Mr. Brosseau was aware of the nature and consequences of his plea”.This highlights that wrongful convictions result from miscarriages of justice and that these are heightened in cases where the accused is a member of an oppressed group.
Case Study: How the Marquardt case demonstrates the burden of proof and financial barriers impacting the wrongfully accused:
Tammy Marquardt, a 21-year-old single mother, was wrongfully convicted of killing her child in 1995. She was denied legal aid in her attempt to appeal her case to the Supreme Court of Canada. Marquardt was incarcerated for 13 years before new and sufficient evidence became available and her case could be re-opened. Marquardt applied for an “out of time” appeal and the SCC directed the case back to the provincial court. The Ontario Court of Appeal determined that Marquardt’s case was a miscarriage of justice due to a wrongful autopsy. In the original trial, the pathologist claimed that Marquardt’s two-and-a-half-year-old son was “suffocated to death”. The original verdict relied heavily on the autopsy conducted by Dr. Smith. It was later discovered that this doctor had conducted wrongful autopsies in multiple cases and that he lacked impartiality when delivering evidence in court .
Tammy Marquardt’s case highlights that Canada’s process of dealing with wrongful conviction applications poses insurmountable financial barriers and puts the responsibility of the burden of proof on the accused. Marquardt was unable to apply for an original appeal due to the financial burden and was faced with providing the burden of proof in her application, despite the doctor having many cases of wrongfully reporting evidence.
Part 3: Why has Canada not adopted an independent board like the CCRC (Criminal Cases Review Commission) in the UK?
Canada would benefit from having an independent body to evaluate wrongful conviction applications because it would take the burden of proof off the accused, eliminate the need for legal representation at the application level, and remove the chief law maker from the decision-making process. The United Kingdom created an independent board, known as the CCRC, to determine if an application for a wrongful conviction needs to be investigated and should be referred to an appeal court. This model should be an example to Canada because it deals with many of the issues that face convicted individuals attempting to apply for a wrongful conviction appeal. The board has an easy application process that does not require legal representation, as it is comprehensible to non-legally educated individuals. This has a two-fold benefit to the convicted: firstly, it lowers the burden of proof required to present in the application, secondly it lowers the financial costs to the applicant. The CCRC also reviews more applications than the Minister of Justice can, which reduces the access to justice issue recognized in wrongful convictions. Moreover, Canada should implement a process that improves access to justice and impartiality in the criminal justice system.
Part 4: What are the psychological impacts on individuals who are wrongfully convicted?
Incarcerated individuals feel psychological effects long after being released, these feelings are exacerbated when the individual is wrongly convicted. Adrian Grounds, in his study Psychological Consequences of Wrongful Conviction and Imprisonment, outlines deep psychological issues experienced by wrongfully convicted prisoners. Ground’s study looked at 18 wrongfully convicted men and 14 of these 18 men endured a diagnosable change of personality. These individuals presented with mistrustful attitudes, social withdrawal and chronic feelings of threat. Grounds found that many individuals suffered from post-traumatic stress disorder, which was exacerbated in wrongful convictions because miscarriages of justice result in a “psychological trauma” from the time of arrest. Most applications for wrongful convictions take years to process, only deepening the detrimental effects on the applicants and increasing their distrust in the criminal justice system.
Myriam Denov and Kathryn Campbell, in their article Criminal Injustice, interviewed five wrongfully convicted men in Canada. They found that while all prisoners are stripped of their rights to “liberty, goods and services […] autonomy and security” wrongfully convicted prisoners have these negative effects “exacerbated by their victimization”. The respondents experienced intense feelings of loss, anger, and aggression resulting from their incarceration. Many of these individuals also continued to feel stigmatized by society after release and exoneration. This study demonstrates that there needs to be greater attention paid to wrongful conviction applications to prevent further harm being done to morally innocent individuals.
Part 5: In an age of immense access to justice problems, why make it more difficult for the already convicted to seek justice if they feel wrongfully convicted?
If Canada could impose an impartial body akin to the United Kingdom’s CCRC, the justice system may see better advocacy for the accused. Prisoners experience intense emotional trauma, including feelings of isolation which are exasperated when the individual is wrongly accused, they also feel a greater sense of loneliness because people do not believe their innocence. Most of these individuals cannot afford to appeal to the Federal Minister of Justice and therefore remain incarcerated despite being innocent. Even if an individual could afford to send their application and required documents to the Federal Minister of Justice, the Minister intervenes in very few applications. Therefore, the Canadian system for re-evaluating wrongful convictions should be revised to improve impartiality and access to justice to avoid the continual incarceration of the morally innocent.
 Andrea S. Anderson, "Wrongful Convictions and the Avenues of Redress: The Post-Conviction Review Process in Canada" (2015) 20 Appeal: Rev Current L & L Reform 5.  Adrian Grounds, "Psychological Consequences of Wrongful Conviction and Imprisonment" (2004) 46:2 Canadian J Criminology & Criminal Justice 165.  Roach, Kent. "Wrongful Convictions in Canada." University of Cincinnati Law Review, vol. 80, no. 4, Summer 2012, pp. 1465-1526.  Ibid.  Anderson, supra note 1.  Ibid.  Ibid.  Ibid.  Roach, Kent. "The Wrongful Conviction of Indigenous People in Australia and Canada." Flinders Law Journal, vol. 17, no. 2, December 2015, pp. 203-262.  Ibid.  Ibid.  Roach, supra note 3.  Ibid.  Ibid.  Ibid.  Ibid.  Ibid.  Anderson, supra note 1.  Ibid.  Grounds, supra note 2. Ibid.  Ibid.  Myriam S. Denov & Kathryn M. Campbell, "Criminal Injustice: Understanding the Causes, Effects, and Responses to Wrongful Conviction in Canada" (2005) 21:3 J Contemporary Criminal Justice 224.  Ibid.  Ibid.  Ibid.