Holly Cooper and Margareth Giron

Preventing wrongful convictions and its associated consequences present enormous challenges for law enforcement and criminal justice systems worldwide. Nevertheless, the problem does not always receive the attention it requires. The Nexus Conference on Wrongful Convictions, held on September 26-29, 2022, was co-organized by the International Center for Criminal Law Reform & Criminal Justice Policy, the UBC Innocence Project, the Innocence Project London, and the Griffith University Innocence Project with participation from Innocence Canada.

The Nexus Conference on Wrongful Convictions brought together policymakers, practitioners, and stakeholders within the criminal justice system from a number of commonwealth countries to share experiences and research. Various systemic issues within the criminal justice system were emphasized, such as inadequate legal representation and improper police investigations regarding their use of tainted witnesses, jailhouse informants, and false confessions. Special consideration was placed on the appeal process of wrongful convictions, and issues surrounding the culture of blame and non-disclosure were also brought to the forefront of discussions.

A common struggle of participating commonwealth countries is the inadequacy of appellant systems and police procedures for wrongful convictions. Canadian exonerees shared their lived experience going through the criminal justice system as innocent people. Tammy Marqaurdt, Sherry Sherret-Robinson, and Maria Shepherd, the co-director of Innocence Canada, were three of the many wrongful conviction victims that spoke of their injustices in Canada. Few resources exist for Canadian exonerees who have voiced their concerns for more services in terms of medical care, trauma-informed services, counseling, housing, education services, and compensation. The Criminal Case Review Commission was established in response to S.696.1 of the Criminal Code regarding applications miscarriages of justice under Ministerial review. In November 2021, the Honourable Harry LaForme and the Honourable Junita Westmoreland-Traore submitted to the Minister of Justice a report on the creation of an independent commission to consider wrongful convictions applications, a Miscarriages of Justice Commission. The report recommended that the new commission not be limited to the cases in which factual innocence can be established but should be concerned about all miscarriages of justice. The new commission should be concerned about both the correction of miscarriages of justice and their prevention. An adequately funded independent review commission would transfer the ultimate power of decision from the Minister of Justice to an independent body at arm’s length from the government. It would also have the authority to engage in culturally and linguistically competent outreach to potential applicants while being aware that applicants may distrust the criminal justice system.

Miscarriages of justice is not the unique experience of one commonwealth country. It affects all. From a Canadian perspective, the following conclusions can be drawn:

(1) The current appeal system is inadequate in investigating wrongful convictions due to a lack of accessibility and transparency, the disproportionate impacts on particular groups, and compensation barriers (Mason, 2020).

(2) Issues regarding legal representation, inappropriate investigations, and appeal processes are not specific to Canada but are present in other commonwealth countries.

(3) Sections 17, and 18 of the Criminal Appeal Act (Mason, 2022) provide the Commission with broad powers to obtain, retain, catalog, and copy all relevant documents and materials to investigate wrongful convictions.

(4) Along with the commission’s implementation, specific services mentioned above should be provided for victims of a miscarriage of justice. Moving forward, a well-functioning system must anticipate errors and engage in self-correction of those errors by updating investigation models, addressing the dangers of Crown overreach, and the culture of non-disclosure. Special care must be taken in regards to interrogation techniques, which can result in false confessions. Those working in the criminal justice system must be alive to the culture towards conviction and the value in collaborating openly and willingly among prosecutors, law enforcement, defense council among other key stakeholders.

The Nexus Conference on Wrongful Convictions is an eye-opening experience with a focus on the lived experiences of exonerees, their lawyers, and key stakeholders in the criminal justice system. If you would like to watch the online conference or learn more about the Criminal Case Review Commission, the links are included below:

The Nexus Conference on Wrongful Convictions: https://app.hopin.com/events/nexus-conference-on-wrongful-convictions-2022/replay

The Criminal Case Review Commission: https://can-ccrc-consult.ca/who-we-are-ccrc

References

Mason, R. (2020). Wrongful Convictions In Canada. Library of Parliament. Available at: https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/BackgroundPapers/PDF/2020-77-e.pdf [accessed on 7 October 2022]

Photo by Mitchel Lensink on Unsplash.