The example of Dr. Smith illustrates many of the risks associated with expert evidence, including that purported expertise can be difficult for non-experts to challenge, or even to understand.
The inquiry emphasized the importance of expert witnesses understanding their role in the criminal justice system. In particular, in order to reduce the risk of wrongful convictions, expert witnesses need to avoid advocating for one side, and must ensure that their evidence is understandable, reasonable, balanced and not speculative. The Dr. Smith cases remain an important example of the risks associated with expert witnesses. The inquiry into these cases led to significant changes to the practice and oversight of forensic pathology in Ontario.
However, the cases discussed above show that there are exceptions to this assumption, including cases in which innocent people are pressured into pleading guilty.
For these reasons, after all other avenues for judicial review and appeal have been exhausted, a person who alleges that they have been wrongfully convicted can apply to the federal Minister of Justice for a review of the conviction. The process for such applications is set out in part XXI. In exceptional cases, the minister may propose that the Governor in Council seek an opinion from the Supreme Court of Canada.
In making criminal conviction review decisions, the Minister of Justice is supported by the Criminal Conviction Review Group CCRG , a separate unit of the Department of Justice tasked with assessing and investigating applications and providing legal advice to the minister. Typically, the CCRG conducts the preliminary assessment, investigation and preparation of the investigation report, while the minister personally decides the final result of all applications that proceed to the investigation stage.
The minister is also supported by a Special Advisor on Wrongful Convictions. The special advisor reviews applications at various stages of the process and provides independent legal advice directly to the minister. The current legal framework emphasizes that the criminal conviction review process is not intended to be a routine feature of the criminal justice system and that remedies for wrongful conviction are considered extraordinary. According to annual reports, in the past 10 years the minister has received fewer than completed applications and has granted a remedy in six cases.
Among the most common criticisms of the current system for criminal conviction review are the following issues: lack of accessibility and transparency, disproportionate impacts on certain groups, and barriers to compensation when wrongful convictions occur. As noted above, in order to be eligible for criminal conviction review, a wrongfully convicted person must generally be able to identify new and significant information in their case.
An incarcerated person will normally require outside help — as well as luck — to uncover new evidence that meets this standard. Some wrongfully convicted people receive financial support from their families in order to retain counsel, but most applicants likely do not have such support.
Finally, some experts are critical of the level of transparency in the decision-making process. Because the recommendations to the minister by the CCRG are protected by solicitor-client privilege, applicants, advocacy groups and other stakeholders do not have access to information about the final stage of the conviction review. As noted in the Milgaard Inquiry report:. These concerns are central to the argument for a criminal case review commission, which would theoretically be more accessible, proactive, transparent and independent than the current process.
Although there is little data available on the extent of wrongful convictions in Canada, many experts contend that particular groups may be overrepresented among the wrongfully convicted or may be less likely to have their cases reviewed. These groups include Indigenous people, racialized Canadians, women, youth and persons with disabilities. Some individuals belong to more than one of these groups and face overlapping vulnerabilities.
Vulnerability to wrongful conviction arises from several factors. Some groups are more likely to be wrongfully convicted for the same reasons that they are overrepresented throughout the criminal justice system.
The reasons for this overrepresentation are complex, but include intergenerational trauma, systemic racism and discrimination. Aspects of the criminal justice system that create pressures to plead guilty may have stronger effects on certain groups, including Indigenous people, women, youth and persons with disabilities. Moreover, the fact that false guilty pleas tend to lead to relatively short sentences can in fact reduce the chance of exoneration for wrongfully convicted individuals. As discussed above, the criminal conviction review process can take years, which can render it much less useful to people serving shorter sentences.
In addition, the focus of the criminal conviction review process on new and significant evidence — such as evidence pointing to a different suspect — often places the emphasis on demonstrable factual innocence and thus excludes many people already disproportionately affected by wrongful conviction. This focus tends to exclude cases in which an available defence was denied or a breach of constitutional rights within the investigative process was not remedied.
For example, someone who kills an abusive partner may be pressured into pleading guilty to manslaughter rather than going to trial for murder and pleading self-defence. Legal scholars Debra Parkes and Emma Cunliffe suggest that these types of wrongful convictions disproportionately affect women, and Indigenous women in particular.
Under international law, wrongfully convicted persons are entitled to compensation under certain circumstances. Article 14 6 of the International Covenant on Civil and Political Rights — to which Canada is a party — provides for the following:.
In Canada, there are currently no legislative provisions implementing this obligation. Individuals who have been acquitted or whose charges have been withdrawn or stayed are ineligible for compensation under this framework.
Several jurisdictions throughout the world have independent statutory bodies responsible for reviewing potential wrongful convictions. Since , the CCRC has reviewed thousands of cases and referred hundreds of convictions and sentences back to the appellate court. The CCRC has broad investigative powers under sections 17 and 18 of the Criminal Appeal Act , including the ability to obtain information from public bodies such as the police, the Crown Prosecution Service and social services, as well as the ability to request court orders for material from private individuals or organizations.
Although the idea of a Canadian CCRC has significant support among experts and stakeholders, some argue that it is unnecessary and potentially too costly. The Court of Appeal struck down Phillion's conviction in March and ordered a new trial, although it stopped short of a full acquittal. Winnipeg police announced in June that evidence had cleared Thomas Sophonow in the killing of doughnut-shop clerk Barbara Stoppel.
Authorities said they had a new suspect in the murder for which Sophonow was tried three times and spent nearly four years behind bars. The Manitoba Court of Appeal acquitted him in The Manitoba government released a report in by retired Supreme Court judge Peter Cory with 43 recommendations. In , Truscott was sentenced to be hanged at age 14 for a schoolmate's murder, becoming Canada's youngest death-row inmate. After the original conviction, he spent four months in the shadow of the gallows until his death sentence was commuted to life imprisonment.
Paroled in , Truscott disappeared into an anonymous existence in a southern Ontario city. On Aug. The judges went on to say, however, that "the court is not satisfied that the appellant has been able to demonstrate his factual innocence.
The year-old was beaten, strangled and sexually mutilated. Kyle Unger and another man, Timothy Houlahan, were convicted of first-degree murder in connection with her death in Houlahan was released on bail after the Manitoba Court of Appeal overturned his conviction in , and he committed suicide later that year.
Unger's initial appeal, meanwhile, was rejected and his application for a Supreme Court of Canada appeal was denied. But in , new DNA testing suggested a strand of hair found at the scene of the crime and originally used to convict Unger did not come from him. He was granted bail in November Then in March , federal Justice Minister Rob Nicholson announced that a new trial had been ordered.
Unger's lawyer said at the time that police and prosecutors kept evidence from the defence during the original trial and used a jailhouse informant who was not credible. The Manitoba Crown ultimately decided that it did not have enough evidence for a retrial. In October , a Manitoba court acquitted Unger and he walked away a free man. The prosecution saw it as an open-and-shut case, and Walsh received a life sentence with no parole before 10 years.
In December , however, his lawyers sought a review of the murder conviction from the federal government after new evidence came to light.
The evidence, obtained by Walsh as part of a access-to-information request, included reports of jailhouse conversations that suggested someone else shot Peters. In February , Justice Minister Rob Nicholson ordered a review of the murder conviction, suggesting a miscarriage of justice likely occurred.
A month later, the New Brunswick Court of Appeal acquitted Walsh of the crime and overturned his conviction. Walsh, a native of Ontario who had maintained his innocence for more than 32 years, was dying of colon cancer and wanted his name cleared.
Social Sharing. They languished behind bars for years, wrongfully jailed for crimes they did not commit. Here are some of the major cases in recent Canadian history: James Driskell. If you don't see it, please check your junk folder. The next issue of NP Posted will soon be in your inbox.
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