A new registry that identifies a long list of miscarriages of justice in Canada is being launched this week, in an effort to draw more attention to the problem.
The registry was developed by professors and students at the University of Toronto Faculty of Law. Above all, Amanda Carling, a lawyer and co-founder of the project, hopes that Canadians will realize that it is difficult to have your case even considered a possible wrongful conviction, especially if you are Indigenous or racialized.
“We try to tell the story of people who have access to justice,” she said. And then we really want to shine a light on people who don’t have access to justice. »
The register currently contains 83 cases of people whose convictions were later overturned. However, only 16 of these cases involved Aboriginal people, even though they are by far overrepresented in Canadian prisons.
Mme Carling says legal reforms in Canada have recognized that too many Indigenous people are in prison, but she argues there has never been an institutionalized recognition that many of them simply shouldn’t be behind bars.
The announcement of this register comes a few days after the federal Minister of Justice, David Lametti, tabled a bill aiming in particular to create a new independent federal commission to examine potential cases of miscarriages of justice.
Lametti explained that many cases currently being reviewed by the Department of Justice do not reflect the makeup of Canada’s prison population.
The minister admitted last week after the tabling of his bill that the candidates for reconsideration of their files who find themselves on his desk “are mostly white men – and our prison populations do not look like that”.
“It tells me that the system is not as accessible to women or to Aboriginal people, to black or racialized people, who are disproportionately represented in our criminal justice system, he explained. We need to change that, some of these files go back decades. »
Natives and Blacks
Professor Carling says Indigenous and Black people are more vulnerable to miscarriages of justice.
Inspired in part by records from the United States and the United Kingdom, the Canadian version offers data on various causes of miscarriage of justice, including the legal mechanism used to overturn a conviction.
The register does not seek to define or measure what is called “innocence by fact”, but rather records cases where the justice system has admitted that an error has been made.
Nearly one in five cases of wrongful convictions in the database occurred because of a false guilty plea; a third of the cases involved “imaginary crimes” that never actually happened.
Project co-founder and legal scholar Kent Roach recalls that a false guilty plea occurs when a person is innocent, but still pleads guilty, often due to a plea bargain offer that they will receive a lesser sentence or be released if she admits to the crime.
“The criminal justice system encourages plea bargaining as a way to be efficient,” he explained. Canadians should reflect on the fact that one of the unintended consequences of these “effective deals” is that innocent people may be presented with offers that are just too good to turn down. »
Mr. Roach adds that “imaginary crimes” often arise when a system that is supposed to require proof beyond a reasonable doubt cannot deliver the goods. “These are actually structural issues that are built into our criminal justice system, either based on plea bargaining or sort of stereotypes and shortcuts in thinking that are too often used to come to conclusions. that someone is guilty. »
The majority of miscarriages of justice resulting from false guilty pleas involve women, people of color or people with cognitive disabilities.
Many of the wrongful conviction cases in the database are linked to Charles Smith, the disgraced Toronto medical examiner whose fundamentally flawed testimony led to people being wrongfully imprisoned for more than 20 years at Children’s Hospital. of Toronto.
A 2007 review of his work by Ontario’s Chief Coroner reviewed 45 child autopsies Smith performed, and cast doubt on criminal convictions in 13 of those cases.
A 2008 investigation found the medical examiner lacked the basic knowledge to do his job and his approach was “fundamentally flawed”.
Legal scholar Roach said Smith’s work often stereotypes Indigenous or racialized people, and leads to wrongful convictions.
While the new federal review process that Minister Lametti is proposing with his bill is generally welcomed by activists in Canada, Mr. Roach and Mr.me Carling still have concerns.
Mr Roach is uncertain whether the new commission will have the resources or the power to deal with cases where someone is behind bars as a result of an imaginary crime or a false guilty plea.
He also said the bill will not allow people reviewing potential cases to access documents that police or prosecutors claim are legally protected by privilege.