Finding the key after it has been thrown away
False convictions and Exhonerations in the United States and Canada
A few months ago, The National Registry of Exhonerations recorded the 3,000th exoneration of a wrongfully convicted person in the United States (since 1989). Innocence Canada's website lists 24 exonerations.
In 2021, there were 161 exonerations in the United States. In Canada, there was one (1!).
No matter which way you cut it – per capita, per number of crimes, per number of convictions – there are a lot more exonerations in the United States than in Canada. There are two possible explanations:
1. That there are fewer wrongful convictions in Canada, or
2. That Canada does a poorer job of recognizing and responding to wrongful convictions.
These two explanations are not mutually exclusive. The first is probably true. The second is certainly true.
Why Canada might have fewer wrongful convictions than the United States
I’m going to make a working assumption here – wrongful convictions for serious criminal offences are less common in Canada than in the United States. In reality, we have no way of knowing whether this assumption is factually true. The unknown is unknown, but its probably true.
The criminal justice systems in the two countries are broadly similar. Some of the most common proximate causes of wrongful convictions – things like erroneous eye-witness testimony, false confessions, the possibility of error in forensics or medical examinations – apply equally to both countries. That being said, there are differences between the two countries that make an assertion that the United States produces more wrongful convictions plausible. I’m going to set aside the societal questions of race and class here – let’s just focus on the nuts-and-bolts workings of the justice system.
Politicization of prosecutions and judges. In the United States, many prosecutors and judges are political actors. They are elected. As such, they are politicians. They want to get re-elected. For many prosecutors (and a few judges), the position is a stepping stone towards higher political office. In the United States, 8.2 percent of the members of the House of Representatives and 13 percent of Senators were once prosecutors. In Canada, prosecutors and judges are appointed. They are civil servants with a high degree of job security and insulation from day-to-day political pressures. There is not an established culture of prosecutors moving into politics; in Canada’s Parliament, only 0.9 percent of the Members once worked as prosecutors. Democracy has its place, but the administration of justice should not be one of them. Elected prosecutors and judges directly feel the pressure of the potential lynch mob. In high-profile cases that have inflamed the community, acquittals can end careers. Voters insist on convictions. Many judges and prosecutors comply. For example, many prosecutors in the United States brag about their “conviction rate.” This is not a metric used in Canada.
Size and Number of police forces. There are around 18,000 police agencies in the United States. Many are small – and led by elected sheriffs (more politicization). When a major crime occurs, the police chief or sheriff is under tremendous pressure to get results by “solving” the case. At the same time, the small size of many American police forces precludes the development of specialized expertise and experience for these kinds of crimes. In most states, the small police forces can call on a state investigative agency for help – but, politically, this is often portrayed as in indication of incompetence. In Canada, we have fewer, larger police forces. In provinces like Ontario, regional police forces cover multiple municipalities. In the Maritimes and the western provinces, the national RCMP provides local police services to rural areas, towns and smaller cities. This gives almost universal access to well-trained, experienced major crimes investigators and likely reduces the number of wrongful convictions while solving more crimes. The clearance rate for homicides in the United States is around 60 percent. In Canada, it is almost 75 percent.
Quality of legal representation. In Canada, most people charged with a major offence such as homicide will have access to a reasonable level of representation from a competent defence lawyer – whether this is arranged through a provincial legal aid system, appointed by the court, or funded as a result of a Rowbotham Order. In the United States, defense representation for people facing major charges is very uneven. In some states, good systems are in place to ensure adequate representation. In other states, not so much. As Stephen Bright once observed in an article in the Yale Law Review, “Poor people accused of capital crimes are often defended by lawyers who lack the skills, resources, and commitment to handle such serious matters.”
Disclosure Laws. In Canada, the Supreme Court ruling in R v. Stinchcombe (1991) that prosecutors have “a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.” In the United States, the Supreme Court addressed the same issue in Brady v. Maryland (1963) by saying “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Both Supreme Courts had the same noble intent; the Canadian rules give prosecutors much less wriggle room. It makes a difference if the question of whether evidence is “favourable to an accused” is decided by the prosecutor or a defence lawyer.
All in all, it seems reasonable to believe that Canada probably wrongfully convicts fewer innocent people of major crimes than does the United States. For what it’s worth, I believe that the combination of full disclosure of evidence to a competent defense lawyer (who is paid enough to give proper attention to the case) is the most important guard against wrongful convictions. In Canada, these two essential elements are fulfilled more consistently than in the United States.
But enough of patting Canada on the back
While we can reasonably speculate that Canada does a better job of avoiding wrongful convictions for major crimes, we would be idiots to believe this country has none. Good faith errors happen. Police and prosecutors can develop tunnel vision. Police and prosecutors can respond to public outry and demands that they “get results” in high-profile or henious cases. Juries can become focussed on the horror of the crime rather than who was responsible for it. The criminal justice system is built and operated by people. Imperfection is inevitable. The only way to avoid, with certainty, any possibility of wrongful convictions is to stop prosecuting people for crimes. This is a cure worse than the disease.
So here is the reality. A wrongfully convicted person in the United States has a better chance of (eventually) getting exonerated than does someone in Canada.
In both countries there is recourse to appeal following conviction at trial. In both countries, the basis of appeal is the mistaken application of law rather than a wrong factual conclusion by a judge or jury. In both countries, a successful appeal usually results in a “do-over” for the trial or a negotiated plea bargain.
In the United States, the chance for redress for a wrongful conviction does not end with this appeal process. After the state appeal process is completed, the convicted person can file a Habeas Corpus application in federal court to challenge the legal grounds of imprisonment. These applications can be much wider-ranging than the initial judicial appeal process. Wrongfully convicted people can also appeal to the Governor of the State for a pardon; some governors are receptive to the idea of correcting mistakes made by the courts. Some prosecutors have established Conviction Integrity Units to review possible wrongful convictions. According to the National Registry of Exonerations, 51 prosecutors’ offices (at city, county or state levels) have established these units to produce 144 exonerations. Another 52 prosecutors have established this kind of unit, but which have not yet resulted in an exoneration (most of these have been recently established). We’ve touched on how the politicization of prosecutions can help produce wrongful convictions. Politization can cut the other way. Elected prosecutors can be induced to respond if public opinion mobilizes around a wrongful conviction controversy – and blaming a political foe who held the office in the past is always fun for a politician.
In the United States, there are many points of entry for someone challenging a conviction after the normal appeal process has been exhausted. In Canada, there is just one. A person claiming to have been wrongfully convicted must apply for a review of their case to the federal Minister of Justice. The requirements for an application are complicated and onerous – we can say for sure that no inmate representing themselves is going to successfully complete this application process. Once this application has been submitted to the Minister, the person waits. And waits. And waits. The process was slow and erratic when the “get tough on crime” government led by Stephen Harper was in power. It’s gotten worse under Justin Trudeau’s Liberals. Between the time the Liberal government led by Justin Trudeau was sworn in 2015 and the end of 2021, the Minister of Justice received 64 fully completed applications for conviction review. A preliminary review has been completed on 21 of these cases. As of the end of 2021, this resulted in 3 findings that a miscarriage of justice had likely occurred. No application has been rejected as groundless. So that’s the math. 64 applications resulted in 3 decisions. The other 61 people who successfully completed the arduous application process might as well have talked to a fire hydrant.
So far in 2022, the Justice Minister has issued a decision in one (1) case. On March 29, the Minister looked at the case of Gerald Klassen and foundthere was a “reasonable basis to conclude that a miscarriage of justice likely occurred is the result of the identification of new information that was not before the courts at the time of Mr. Klassen’s trial or appeal.” Klassen had been in prison for 25 years after being convicted of murder. He was the last person seen with the dead person and a medical examiner testified she had been beaten to death. Except that…decades later, four different pathologists examined the file and concluded the injuries were consistent with an accident rather than a beating. When Klassen’s application to the Minister of Justice was submitted, the BC prosecutions branch supported a bail application. The prosecutor was pretty forthright in admitting the conviction was an “oops.” With all of this, it took the Minister of Justice 481 days to review the file and issue a ruling. And Klassen was “lucky”. His application was dealt with much faster than almost everyone else’s.
It's pretty clear that one reason Canada has fewer exonerations than the United States is that our system for reviewing questionable convictions sucks. The system(s) in the United States are slow, uneven, capricious, frustrating, and erratic – but sometimes actually produces results. In Canada, the system for reviewing claims of false convictions is like a black hole. Nothing comes out.
It’s not just me saying that. The government agrees. When our current Justice Minister was appointed in December of 2019, Prime Minister Trudeau gave him a mandate letter setting out 22 tasks. The very first one was “establish an independent Criminal Case Review Commission to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed.” That was 865 days ago. This is not to day that the Justice Minister ignored the directive. He just moves slowly. 474 days after getting his mandate letter, the Justice Minister appointed a two-person committee go recommend how Canada’s conviction review process could be improved. These two people – the Hon. Harry LaForme and the Hon. Juanita Westmoreland-Traoré – worked hard. As they described it:
we conducted 45 roundtables involving 215 people. Our first sessions heard from 17 exonerees who have suffered miscarriages of justice. We also spoke to representatives of all five foreign commissions who perform similar functions in England, Scotland, Norway, North Carolina and New Zealand. And we spoke with crime victims and representatives of police, prosecutors, defence lawyers, legal aid officials, judges and forensic scientists. Forty-five domestic and international individuals and organizations provided written submissions to us.
The two retired judges did all this in 244 days to complete a 211-page report with 51 recommendations. It’s a good report, produced promptly. The Toronto Star optimistically proclaimed that “Canada close to finally doing right thing for wrongfully convicted”. We’ll see. 172 days have passed since the Justice Minister received the report and there’s no sign of legislation. If it takes the Minister as long to review the report as it did for him to review the much simpler application submitted by Gerald Klassen, we’ve still got another 309 days to go before legislation is introduced. My prediction is that in a year or two we’ll see legislation produced, but it will die on the order paper when the next election is called. The report, followed by the introduction of legislation that dies on the order paper, will just become a talking point to use when complaints are raised about the lack of action on actual case review. As for those unfortunates who have been wrongfully convicted and are hoping for relief – I guess they’ll just have to wait. It’s not like they’re going anywhere.
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