Wrongful Convictions and the Avenues of Redress: The Post-Conviction Review Process in Canada

• Author: Andrea S. Anderson
• Position: PhD Candidate at Osgoode Hall Law School, York University
• Pages: 5-25

APPEAL VOLUME 20

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5

ART ICL E

WRONGFUL CONVICTIONS AND

THEAVENUES OF REDRESS:

THE POSTCONVICTION REVIEW

PROCESS IN CANADA

Andrea S. Anderson*

CITED: (20 15) 2 0 Ap pe al 5

INTRODUCTION

In an ideal crim inal justice sy stem, only the guilty a re punished while the in nocent

remain free. In rea lity, some individuals spend upwa rds of ten years in prison for crimes

they did not commit, or crimes t hat never even took place at all. e C anadian media

has showcased several high-prole cas es of wrongful convic tions, leading to increa sing

public awareness of the fal libility of the criminal justice process. I n Canada, wrong ful

convictions are usua lly addressed and remedied th rough the appellate courts. Once t hese

judicial avenues have been ex hausted, section 696.1 of the Criminal Code of Canada (t he

“Criminal Code”) allows the Minister of Justice to revie w alleged wrongful convictions.1

Canada’s post-conviction review proces s has been heavily criticized for not providing an

adequate mechanism to de al with alleged misca rriages of justice after a ll statutory means

of appeal have been exh austed.2 As such, the public remains unsatis ed that the issue is

being addressed.

is paper presents an over view of the current post-conviction review system in C anada

and examine s the continued calls for improvements. It is crucial for an appropriate

mechanism to detect , review, and rectify errors within the crim inal justice system to

exist, yet the development of such a measure has been neglected i n the discourse on

wrongful convic tions. Since 1986, seven public commissions of inquir y have been

held in Canada followi ng cases of conrmed wrongful convict ions. Most recently, the

Ontario government launched a public inquir y following the revelation that pathologist

Dr. Cha rles Smith’s discrete testi mony had allegedly contributed to a number of

* And rea S. An der so n is a PhD C and ida te at Osg oo de Ha ll Law Sc ho ol, York Un ive rs it y. Sh e w is hes

to t ha nk Pro fes so r D avi d M . Tan ov ich , Un ive rs ity of W ind sor , Fac ul ty of Law , an d P rof es sor Fai sa l

Bha bha , O sgo od e, f or the ir con ti nue d s upp or t. She is pa rt icu lar ly gr ate fu l t o t hos e w ho rea d

mul tip le dr aft s of thi s p ap er and pr ovi de d e xt rem el y i nsi ght fu l c omm en ts.

1 Criminal Code of Canada, RSC 19 85, c C- 46 , s 696 .1 [Criminal Code].

2 See J uli an Ro y & El iza be th Wid ne r, Systemic Submissions of the Assoc iation in Defence of the

Wrongly Convicted (Tor ont o: T he As soc iat io n i n D efe nce o f t he Wro ngl y C onv ic ted , 20 06 );

PB rai de n & J B ro ck man , “R em ed yin g W ron gf ul Con vic ti ons T hro ugh A ppl ica ti ons to th e M in ist er

of Jus tic e U nd er Sec ti on 690 of th e Cri min al Cod e” (199 9) 17 W ind so r Ye arb oo k o f A cce ss to

Jus tic e 3 .

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APPEAL VOLUME 20

miscarria ges of justice relating to infant death s.3 e Smith inquiry has drawn attention

once again to the fa llibility of the criminal justice system and has reignited d iscussion

about post-conviction remedies. e man ner in which causes of wrongfu l convictions are

studied and what recom mendations are presented to eradicate them are l argely dependent

on the eectiveness of the re view process that inve stigates wrongf ul convictions. Wh ile

the power of the Minister of Justice to re view convictions has been amended, it has

failed to chal lenge the status quo and does not increase public con dence in the criminal

justice system. It is imperat ive to question whether there exist s an eective a lternative

to section 696.1 of the Criminal Code for individuals who apply for a conviction review

once they have exhau sted all avenues of appeal.

is paper exam ines the review mechanisms in both the United State s and Britain,

and asks whether t he role of the Minister of Justice in Ca nada should be replaced

with an alternative s ystem to review cla ims of innocence. Furt her, this paper argues

that the Canad ian government should create an independent review body to exami ne

post-conviction claims be cause this approach is t he best way to evaluate and address

miscarria ges of justice. Part I of this paper a nalyzes the ways th at researchers, particu larly

in the United States, have attempted to dene a nd identify cases of wrongfu l conviction.

Part II describes t he origins of the review proce ss used in Canada, with a specic

focus on the process th at an individual who cl aims to have been wrongly c onvicted

must go through when a ll avenues of appeal have been ex hausted. Part III a nalyzes t he

limitations of Canad a’s current post-conviction review system, using c ase illustrat ions

to demonstrate the dicu lties inherent to the review proce ss. e paper then discusses

specic post-conviction revie w mechanisms in t he United States and Britain aime d at

reducing the imprisonment and execut ion of the innocent. In the conclusion, th is paper

addresses whether t he establishment of an independent rev iew process modeled closely

after the United Ki ngdom’s Criminal Ca ses Review Commission is fea sible, and whether

it is a more eective means for addressing miscarriages of justice in C anada, all while

taking into ac count possible implications for Canada’s criminal justice sy stem.

PART I. SETTING THE STAGEDEFINING WRONGFUL

CONVICTIONS

A number of dierent terms are used throughout the literature to describe wrongful

convictions, including ‘miscarriage of justice’, ‘fal se imprisonment’, and ‘malicious

prosecution’. However, there is no universa lly agreed-upon denition for wrong ful

conviction .4 e major studies conducted in the United States5 a nd the United Kingdom6

make distinctions between lega l and factual innocence. Lega l innocence refers to

individuals whose c onvictions are quashed due to errors of law (for example, inadm issible

evidence), and to those acquitted by the cou rts. In the Cana dian legal s ystem, however,

a nding of legal in nocence does not necessarily mean that the individuals are, in f act,

3 See Frank Dobrovnik & Omi Agen cy, “Compensation Means Little to a Wrongf ul

Conviction Victim”, Canoe News (10 May 2010) online:

Canada/2010/05/10/13893366.html>; “Dr. Charles Smith’s Victims to be Compen sated”, CBC News

(10 August 2010) online: <http://www.cbc.ca/news/canada/toronto/dr-charles-smith-s-victims-

to-be-compens ated-1.974472>.

4 For example, see Hugo A Be dau & Michael L Radelet, “Miscar riages of Justice in Potentially

Capital Cases” (1987) 40:1 Stan L Rev 21; C Ronald Hu et al, Convicted But Innocent: Wrongful

Conviction and Public Policy (Thousand Oaks, Cal: S age, 1996).

5 Edwin M Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice (New York:

Garden City Publishing , 1932); Ruth Brandon & Christie Dav ies, Wrongful Imprisonment: Mistaken

Convictions and Their Consequences (London: George Allen and Uwin, 1973); Bedau & Radelet,

supra note 4; Martin Yant, Presumed Gui lty: When Innocent People are Wrongly Convicte d (Bualo,

NY: Prometheus Books, 1991); Hu et al, supra note 4.

6 Brandon & Davies, supra n ote 5.