Chapter 11 - Conclusion

Canada has become a leader in trying to understand the causes of wrongful convictions and what can be done to prevent them. Seven commissions of inquiry in Canada have highlighted, among other factors, investigative and prosecutorial conduct that can contribute to wrongful convictions. Further, the recommendations from these inquiries, coupled with the commitment of police forces and prosecution services in Canada to make systemic improvements to reduce the likelihood of wrongful convictions, have led to the work of this Subcommittee. That work has inspired extensive changes in policy, practice and procedure in Canada, as described in this Report and its two predecessors. The findings of Canada’s inquiries, as well as the work and recommendations of this Subcommittee in its two previous reports, have also attracted national and international attention, and been cited in the case law and extensive academic literature. In fact, the important learning and sharing of information in this field over the decades among countries, including Canada, has led to increased awareness on an international scale, as well as ongoing improvements to police and prosecutorial training and best practices.

Canadian Research Centre

That said, a consistent theme in this Report and its recommendations is the need for more research into the causes of wrongful convictions in Canada and what can be done by criminal justice system participants to reduce the risk of miscarriages of justice. To that end, the Subcommittee strongly supports more systemic research into the causes of wrongful convictions in Canada and effective strategies to prevent them, perhaps through the creation of a research centre, at a university law school or elsewhere.

Canada has several prolific legal academic writers on the subject of wrongful convictions, such as Professor Kent Roach from the University of Toronto^{Footnote 613}, Christopher Sherrin from Western University^{Footnote 614} and former Manitoba Deputy Attorney General Bruce MacFarlane.^{Footnote 615} There is also a great deal of social science research on issues such as eyewitness identification and false confessions. But, unlike the United States, the research in Canada is far less extensive, and appears sporadic rather than systemic and sustained, with the exception of several special issues of the Criminal Law Quarterly^{Footnote 616} devoted to wrongful convictions. The last national conference on the topic was in 2005^{Footnote 617} and there is no centre in Canada devoted to the study of wrongful convictions as exists in the United States.

In addition to a national research centre dedicated to the prevention of wrongful convictions in Canada, the Subcommittee suggests there are two developments in the United States that are worth identifying and examining in terms of their possible application and adaptation to the Canadian context. While the Canadian criminal justice system differs from the American system in various ways, federal and provincial governments, as well as prosecution services in Canada, may wish to consider studying these developments with a view to determining to what degree, if at all, they could be useful in the Canadian context.

A National Registry

Many times throughout this Report, reference has been made to the National Registry of Exonerations (“the Registry”) in the U.S.^{Footnote 618} The Registry is a project of the Newkirk Center for Science & Society at University of California Irvine, the University of Michigan Law School and Michigan State University College of Law. The Registry was founded in 2012 in conjunction with the Center on Wrongful Convictions at Northwestern University School of Law. The Registry provides detailed information about every known exoneration in the United States since 1989 - cases in which a person was wrongly convicted of a crime and later cleared of all the charges based on new evidence of innocence. Recently, it added a new database with stories and data about 369 earlier exonerations, from 1820 through 1988. Unlike the exonerations recognized by the New-York based Innocence Project, the National Registry does not restrict itself to recognizing exonerations only where DNA evidence eliminates the accused as the offender.

The Registry’s stated mission is to provide comprehensive information on exonerations of innocent criminal defendants in order to prevent future false convictions by learning from past errors.

The Registry collects, analyzes and disseminates information about all known exonerations of innocent criminal defendants in the United States, from 1989 to the present. We publish their stories and we provide accessible, searchable online statistical data about their cases. We also conduct empirical studies of the process of exoneration and of factors that lead to the underlying wrongful convictions.

We study false convictions—their frequency, distribution, causes, costs and consequences—in order to educate policy makers and the general public about convictions of innocent defendants. We focus on exonerations because the only false convictions that we know about are those that end in exoneration.

We rely entirely on publicly available information. We do not practice law or investigate cases of possible innocence. We do not collect, maintain or use confidential information of any sort, or work on behalf of any individuals. We do not make our own judgments about the guilt or innocence of convicted defendants. Our criteria for classifying cases as exonerations are based on official actions by courts and other government agencies.^{Footnote 619}

As this Report has illustrated, the Registry is a highly valuable tool - one which Canada might wish to consider emulating. While there is often disagreement over what constitutes a wrongful conviction or how innocence should be defined, and whether a particular case, absent a definitive court ruling, constitutes a miscarriage of justice, it would be useful both for research and the public discourse to create a central database of cases in Canada based on a clear definition of wrongful conviction. Innocence Canada had begun work on such a registry but the work was put on hold due to the organization’s caseload priorities and financial pressures. Recently, a working group at the University of Toronto, Faculty of Law, supported by Innocence Canada, has picked up work on what will be a Canadian Registry of Exonerations. The working group is led by Professor and Prichard Wilson Chair in Law and Public Policy, Kent Roach, and Amanda Carling, Manager of Indigenous Initiatives and former Legal Education Counsel for Innocence Canada. The group hopes to launch the Registry in late 2019. The Subcommittee supports this initiative.

Conviction Integrity Units

The second U.S. development worthy of mention concerns the recent phenomenon of conviction integrity units (CIUs) in various U.S. states, sometimes described as in-house innocence projects or post-conviction review programs. These are special divisions of prosecutorial offices that are dedicated to preventing, identifying, and correcting wrongful convictions, post-conviction. They investigate allegations of wrongful convictions among cases that the office has already successfully prosecuted. The Registry reported that there were 33 CIUs in the United States in 2017, more than double the number in 2013 and more than six times the number in 2011 (although there are 2,300 prosecutor’s offices in the U.S.) Forty-two CIU-exonerations took place in 2017. Overall, CIUs have helped secure 269 exonerations from 2003 through 2017; more than 80 percent occurred since 2014. CIU’s worked with innocence organizations to varying degrees.^{Footnote 620}

When Michael Dougherty, Boulder County, Colorado’s new District Attorney announced recently that his office has created a Conviction Integrity Unit, he stated: “A prosecutor’s mission is to do justice in every single case, and not to rack up convictions like notches in a gun belt. If there is reason to believe someone is wrongfully convicted, prosecutors should have an open mind and a process to examine those cases.”^{Footnote 621}

Observers suggest not all CIU’s are created equal and keys to success include a close working relationship with the defence bar, independence, flexibility and transparency.^{Footnote 622}

Conviction Integrity Units are a positive development, but they are not a panacea. Prosecutors who take on the task of reviewing convictions won by their own colleagues and predecessors may find it difficult to be objective and thorough. Particular units have been criticized as mere window dressing or public relations ploys. These criticisms may be fair when a prosecutor’s office benefits from the positive publicity it gets from announcing the creation of a unit that ultimately produces no exonerations and is difficult even to access.

The variability in the performance of CIUs reflects the fact that they are internal organizational choices of the elected prosecutors who create them. The prosecutor may choose to create a unit with the resources and authority to conduct rigorous reexaminations of questionable convictions, or they may be satisfied with something more passive.

A few CIUs have been highly active; several show no real signs of life. Some are just getting underway; the rest have been involved in one exoneration, or a couple, over a period of years. Some CIUs are accessible and transparent; some are inaccessible and opaque. The structure and the operating procedures of the units, to the extent that we have been able to determine, are extremely variable. The short history of CIUs reflects the extraordinary and largely unreviewable power vested in elected prosecutors. CIUs have proliferated rapidly because local prosecutors have the authority to create such units as a matter of administrative discretion. They are as variable as the circumstances and preferences of the prosecutors who founded them, and change over time as priorities and administrations change. Their future will turn on the policies of the prosecutors who lead those offices in the years to come, and on the political contexts in which they operate.^{Footnote 623}

MacFarlane comments on the applicability of the new U.S. model to Canada;

In the fullness of time, prosecution services in Canada may wish to consider the establishment of permanent conviction review mechanisms within each Ministry to ensure the continued integrity of guilty verdicts in contentious cases. Indeed, “Conviction Integrity Units” embedded within prosecution offices have recently been established in several jurisdictions in the US. In the meantime, what Canadians can expect now is a prosecution service that is willing, on an ongoing basis, to root around and do a principled and credible double check on cases where there is a reasonable basis to believe that miscarriages of justice may have occurred, and Crown action could uncover the truth of what happened. After all, truth-seeking does form a critical objective of the criminal justice system, and everyone in the legal profession has a special duty to ensure that the public has and continues to have confidence in our legal system.^{Footnote 624}

In Canada, much of the innocence work - researching and investigating cases and filing applications to the federal Minister of Justice - is done by largely volunteer or university-based innocence projects. Though these projects do valiant work, they are all financially challenged and the university-based programs are hamstrung by turnover among students and the length of time the cases take.

Of course, as discussed earlier, the Canadian context is vastly different. Our prosecutors are not elected and indeed enjoy a great deal of independence from elected officials. Nonetheless, the Subcommittee believes the CIU model, with appropriate alterations to meet the Canadian reality, may be worth examining for Canada. The Subcommittee believes Canadian prosecution services should study the CIU’s to determine whether they are suitable for Canada, not as a replacement for existing processes, but rather as a supplement to them. There is no reason innocence projects alone should bear the burden of this important work.

Need for Continued Vigilance

Finally, as this Report has illustrated, and as its title suggests, continued vigilance is crucial on the part of all criminal justice participants, but especially police and prosecutors, to reduce the risks of wrongful convictions in this country.

For this reason, this Subcommittee cannot lapse into complacency; its work remains ever important. Therefore, this Subcommittee will continue to monitor the cases and the research in this area to provide ongoing information to police and prosecutors, and to the public at large, and continue to harness the passion and knowledge of its members to advance this important criminal justice imperative.

To do less would be a disservice to those individuals at risk of being wrongfully convicted of a crime of which they are factually innocent. Equally important, to do less would be a disservice to Canadian society for when the wrongfully convicted person languishes in prison, the true perpetrator may be free, committing further crimes.