By Gerard Mitchell (guest opinion)
The recent decision of the Supreme Court of Canada in the Mr. Big case should serve to prevent wrongful convictions resulting from unreliable confessions. Our system of criminal justice has long held to the belief that it is better for some guilty to go free than for any innocent person to be convicted. To that end, Canadian law provides many protections for persons accused of criminal offences. Those protections include: the principle against self-incrimination, the right to remain silent, the right to the assistance of a lawyer, the right to a fair trial, the right to be presumed innocent until proven guilty beyond reasonable doubt, the right to disclosure of the Crown’s case and, the right to appeal.
Despite these protections, some, having gone through trials and exhausted their rights of appeal find themselves imprisoned for crimes they did not commit. These miscarriages of justice result in a loss of public trust and confidence in the criminal justice system. Innocent citizens are punished for crimes they did not commit while the real perpetrators go free.
About 40 wrongful convictions have to date been uncovered in Canada. Many of these wrongfully convicted had spent years behind bars. Law schools at the University of Michigan and Northwestern University have compiled a database of exonerations in the United States. According to this database there have been more than 2,000 Americans falsely convicted and later exonerated since 1989. Many of the exonerations in both the U.S.A. and Canada are the result of DNA testing which only came into wide use in the past 25 years.
The causes of wrongful convictions are numerous. They have included: eyewitness misidentification, false confessions, narrow-focus investigations, bad science, mistakes by experts, mistakes by police and prosecutors, incompetent defense lawyers, reliance on jailhouse informants, and public pressure to solve the crime.
Once an accused has exhausted his or her rights of appeal it is very difficult to have a wrongful conviction set aside. The wrongfully convicted person has to apply from prison to the Minister of Justice for Canada for an extraordinary remedy on grounds that he or she has been a victim of a miscarriage of justice. If satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the minister may direct a new trial or refer the case to a court of appeal for hearing. Success on the application usually depends on it being supported by new relevant and reliable matters of significance that were not considered by the courts previously. If the application is denied by the minister there is no appeal.
Canadian governments will usually award some compensation to persons who have served time in prison for crimes they did not commit. However, at present there is no law that requires them to do so. In Canada, if governments do not voluntarily pay compensation, the only recourse is a civil action for violation of Charter rights, malicious prosecution, negligent investigation, or false imprisonment. There is no remedy for wrongful conviction as such.
In 2007 the Supreme Court of Canada held that police owe a duty of care to suspects and may be held liable in damages for harm resulting from negligently conducted investigations. Police are not required to conduct perfect investigations but they must act reasonably. In order to avoid liability police have to conduct their investigation in a manner consistent with how a reasonable officer would have acted in like circumstances. When police do not meet that standard they are liable to the suspect for the resulting harm.
Gerard Mitchell is the former chief justice of the P.E.I. Supreme Court and is P.E.I.’s police commissioner.