Episode 91 | Talking Wrongful Convictions

This is, in all fairness, presented by the Canadian Institute for the Administration of Justice. This podcast welcomes representatives from the legal community and explores how we can all contribute to improving the Administration of Justice in Canada. Welcome. My name is Stephen Binman. I'm a visiting professor and executive and residents at the Faculty of Law, Common Law Section at the University of Ottawa, where I teach a course on wrongful convictions. We are honored to have with us today, Professor Kent Roach of the University of Toronto. Welcome, Professor Roach. Professor Roach is one of the most prolific scholars and writers in the area of criminal law in Canada to name just a few. He has been editor of Chief of the Criminal Law Quarterly since 1998. In 2002, he was elected a Fellow of the Royal Society of Canada and subsequently was appointed to the Order of Canada. But Professor Roach is also a prolific writer in the area of wrongful convictions. And Professor Roach, I wanted to start if you could perhaps tell us how you got into studying the area of wrongful convictions and why you think it is important. Thanks, Stephen. I really appreciate you doing this. So I started teaching criminal law in 1989 and I worked on teaching materials with Marty Friedland. And he had always taught the seat Stephen Truscott case. And I said to Marty, well, you know, Truscott's old let's do Donald Marshall. And Marty graciously allowed me to do that even though the Truscott case was in the news. And obviously in 2007, when the Court of Appeal finally acquitted Mr. Truscott. So I've been interested in that since, you know, over 35 years. Now, when I first started teaching wrongful convictions and you were actually part of a team. I don't know if you recall, but we, you know, inspired by Barry Shaq and Peter Newfell's Innocence project. And you and Mary Ainsley and Catherine Campbell, Bruce McFarlane, Carrie Scullian and Chris Sharon, we all got together and we did materials on wrongful convictions. And so that's kind of the first generation of wrongful convictions. And we were looking at things like eyewitness identification, false confessions, different ways to remedy it. So I've stayed interested in wrongful convictions much longer than I've stayed interested in some of my other academic obsessions. And I think it's because it keeps on changing. And so the book that I wrote wrongfully convicted in 2023 is really a kind of rethinking about how we look at wrongful convictions that comes out of the work that I did with a man to curling on the Canadian registry of wrongful conviction. So the parts in this book, which is meant for a general audience, are not necessarily the immediate causes of wrongful convictions, which we've known for a long time. But looking at the issue of false guilty pleas, that is people that plead guilty, even though they are innocent or they have a defense, imagine crimes, which are about a third of the cases in both the American and the Canadian registry are crimes that were never committed. So they raise some really interesting questions. And then finally the issue of the who done it, where the crime was committed. But as in Mr. Truscott's case or Mr. Marshall's case, the wrong person is convicted. So those are the first three parts of the book. And then the fourth part is the issue of, okay, wrongful convictions happen. What should we do now? But we'll talk about each of those. I wanted to go back and just for our listeners, the formal title of the book that we're talking about is wrongfully convicted guilty pleas, imagined crimes and what Canada must do to safeguard justice. And I'm going to talk to you about each of those three elements, but I wanted to go back to what you refer to initially, which is the book came out of the work you did with Amanda Carling creating the Canadian registry of wrongful convictions. So can you explain a little bit about what the registry is and how it came to be? Sure, yeah. So Amanda Carling is a former student of mine, a Maytie woman who's now the chief executive officer of the BC First Nations Justice Council. And she took my wrongful convictions course, which was kind of the old style wrongful conviction course. And I don't think she was too happy with that. And she went on to work for five years with innocence Canada, which is our leading innocence project. And then when she came back to you, you of T, I had the good sense to ask her to teach wrongful convictions with me. And she really changed the way that we taught making issues of racism really kind of at the center of the course. And so I think it was the first time we taught wrongful convictions together, the Richard catchaway case came out and Amanda is originally from Winnipeg. I have family ties also to the prairies and Mr. Catchaway, it was an indigenous person held in pretrial detention. We know from other case reports on him that he suffers from the permanent brain injury, a fetal alcohol spectrum disorder. And he pled guilty to a break and enter in Winnipeg. And you know, everyone went along with the guilty plea as defense lawyer, the prosecutor, the trial judge later, a correctional official happened to find a record that said at the time he was supposed to be doing the break and enter in Winnipeg, Mr. Catchaway was imprisoned in Brandon. And you know, when he pled, he got time served. So I think he served something like six months in jail. And so this was the kind of case where we knew Canadians were not going to remember Richard catchaway's name in the same way as, you know, I think most Canadians remember David Milgard, G. Paul Moran, Donald Marshall, and so on. So we kind of came to the idea that we needed a registry to record all of the wrongful, all of the remedy wrongful convictions that we could come up with. And so we started in 2018. We had some guidance from the people that created the American registry. And with the help of students who then later on became lawyers, we weren't able to launch until 2023. So that's a long time to work on a project, but we were both doing it off the bat on the side of our desk, Amanda had her two children during that time. So that was obviously more important. And then when we launched in I think January of 2023, I think we had 87 or no sorry 83. I were now up to about 91, although not all of them have been put up on the website. The website is available for everyone free, www wrongfulconvictions.ca. And so we thought that this would be a valuable tool for our students to work with and for future research. And there are similar ones I understand in the UK, certainly in the US, which is the granddaddy of them. And I believe there's a new one in the UK, but I could be wrong. Yes, no, there's a there's a new one in the UK that's got about 400 and just under 500 exonerations. There's a European one on continental Europe, which has 130 and the American has over 3,500. So, you know, in terms of numbers, where I guess the smallest of the registries, the other thing I'll kind of mention because I know, you know, Stephen, you helped us with the registry. And the American registry, it's really been ex reporters, retired reporters like yourself, who have done the lion share of the work. So, Amanda and I met with Marie's, posly, when we were starting this up and Marie's is an old time Chicago reporter who reported on a lot of the Chicago death row exonerations and he really kind of inspired us to do the work. And the registration registries or the wrongful conviction registries are different than the lists that are kept by innocence Canada or the innocence projects because all of the registries make no claims about factual innocence. And the registries are based on the premise that we are recording cases where a person was convicted. there was subsequently new evidence that was relevant to Gail to Renaissance. And either that person was acquitted or the prosecutor decided not to proceed with the case. And so one of the things that you see internationally is that this expands the data set. So when we were first doing wrongful conviction courses, we were really more, I think, focused on the DNA exonerations, which were, of course, a huge development. But now we have a much more rich data set. And the idea is we are studying the legal system in error when the legal system itself admits that some error was made. But we are making no claims of factual innocence. The other thing that should be noted, and we learn this from the Americans, is all of the registries are based in universities, as opposed to innocence projects. And because of that, we generally will not contact the wrongfully convicted because they are vulnerable human subjects. And most of the registries, including our own, really just use publicly available data, which is obviously any written judicial decision that we can find, but is often reports. And so the Canadian newsstand was one of the, which is a database of newspaper reports. Unfortunately, some newspapers that are no longer with us. And so the media is an important contributor to all of the registries. - So let's look at Professor Rochelle. Let's look at the three elements in the title of your book. Let's start with the second one if I may, imagined crimes. What do you mean by that? - Well, you know, this is something that James Lockyer, I think, was really onto in the Charles Smith cases, where James would say, you know, not only, have you convicted people who are innocent, but there are no crimes. And so an imagined crime is when, say, an accidental death of a baby or an adult is wrongly classified as a homicide, often because of flawed forensic pathology. But I would also say because of stereotypes that if you look at the Charles Smith cases, the young women and the racialized men who were wrongfully convicted as a result of Charles Smith's flawed pathology testimony were at least, I think, the kind of people that Smith and perhaps others would think were liable to kill their babies. Or if you go back to the Clayton Johnson case or the Ron Dalton case, real or perceived infidelities in a marriage, led people to think dirty. So Dr. Smith is famous for thinking dirty, but one of the arguments in the book is, to an extent, we all think dirty. And we think so dirty that we make things into crimes that are not really crimes. - So in those imagined crimes, it wasn't that the wrong person was convicted. It was that no one should have been convicted because it wasn't a crime. - Exactly. And I think that that really asks us to go beyond the immediate causes of wrongful convictions, which in many of these cases are flawed science, flawed expert evidence and ask ourselves, don't we have enough crime? Why are we inventing crime that doesn't exist? And I found that to be a very interesting question to grapple with in the book. - So let's look at the first element in your title, Guilty Please. By that, I know you mean people who pled guilty to crimes, they didn't commit. It's certainly in my work on wrongful convictions. This is the one area most people have the most trouble understanding. And so why do people plead guilty to something they didn't do? - Well, I mean, I think often it's because they're making a rational decision. So one of the cases that I talk about in the book with a case I was involved with as a lawyer for Aboriginal Legal Services, the famous Jamie Kledue case, which most people know as a leading case on sentencing of indigenous offenders. But one of the things that I talk about in the preface of the book is that a number of people as she, at the University of Ottawa and others, have raised concerns that Ms. Kledue might have pled guilty to manslaughter at the very last minute, even though she was preparing a self-defense claim that she may have acted in self-defense when she killed her partner. And the jury had already been selected. The jury probably didn't have many indigenous people. We don't really know. And at the last minute, she pled guilty and got a three-year sentence for manslaughter. So as in the Charles Smith cases, because we have mandatory life imprisonment for murder, a lot of people will plead guilty to a lesser form of homicide manslaughter in fantaside if that's available, criminal causing death in order to avoid a mandatory penalty. So that certainly has been a factor. It continues to be a recent factor. The Supreme Court this fall will hear an appeal in Tammy Boothett's case. And Tammy Boothett, very much like Charles Smith's victims, was a young woman with priors who was charged with murder in the death of a child in her care and pled guilty to manslaughter. She may have made a rational decision because if you roll the dice and you're convicted and you're charged with murder, then for the rest of your natural life, even if you're on parole, you are gonna be subject to getting pulled in. So I think some of it is simply a rational decision. And I have to say that as someone who's taught criminal justice for 35 years, that's a profound indictment of our system, a system that promises not to convict the guilty, but actually holds out such strong inducements. And of course, the late Justice Mark Rosenberg was one who recognized these inducements when he reversed Anthony Hanemeyer's conviction. Mr. Hanemeyer was pled guilty in the middle of the crime, in the middle of the trial, after one of the witnesses mistakenly identified him as the perpetrator. And his lawyer said, "Look, if the trial continues and you go to, and you're convicted, you're gonna have to spend six years in the federal system. If you plead out in the middle of the trial, you'll get two years less a day and you'll stay out of the federal system." And Mr. Hanemeyer made that decision. So these are, I think, really tough questions that all of us who are involved in the justice system have to ask ourselves, why are we encouraging people who are not guilty or who may have a defense to make? I would submit often rational decisions to plead guilty. - Your registry found that of the 83 in your original list, 15 entered a guilty plea. And you also noted that more than 73% of those false guilty pleas in Canada were made by women, indigenous or racialized persons, or by those who suffered from a mental disability. What do you think this tells us? - Well, I mean, I think it tells us that those people don't have as much faith in the system. And so they are simply giving up. I think it also tells us that women, and certainly this is the case with many of the victims of Charles Smith are pleading guilty because that's the best thing for their family. So obviously Maria Shepard, who has spoken widely is very clear that she pled guilty because in her judgment, that was the best thing to keep her family together. And of course, she did keep her family together, even though she pled guilty to a crime that she never committed. So I think that's kind of the lesson there. And of course, it's very hard to undo a guilty plea. I mean, it's hard to undo any wrongful conviction, but I dare say it is harder to undo a guilty plea. And if we look across to England, we see in the post office cases that they'll know. know how many people pled guilty. There's been estimates between seven to 900 small business people who were accused by the post office of stealing money that people had given them for stamps or so on. Simply pled guilty often to the lesser offence of false accounting. In England before the general election this summer parliament passed legislation exonerating these people. And so false guilty pleas are becoming a bigger part of the registries whether it's in the US, England or here in Canada. The final part of the title of your book is what Canada must do to safeguard justice. By that I presume you mean what we must do to prevent wrongful convictions. There is a big change on the horizon. Bill C40, the David and Joyce Millgard Act, which would create an independent conviction unit to investigate cases of alleged wrongful conviction. First off, can you explain what it would do and how it would change the current situation? And after that I'll ask you for your views on the bill. Sure, yeah. So and some of this comes out of my work. So much of the book it reflects my work on the registry but the last part of the book reflects my work as the research director for Justice LaForm and Westmoreland Tri-Ori who were asked by then minister of justice, Lamatti, to do a public consultation about what Bill C40 should look like. So basically we've had seven public inquiries into wrongful convictions in Canada. The last one was 2008. So we haven't had one recently and they all recommended that instead of applying to the minister of justice, the federal minister of justice for a new trial or a new appeal, once your appeals are exhausted, you should be able to apply to an administrative agency like the criminal case review commission which exists in England and Scotland and most recently in New Zealand. And so this is you know kind of in order so people can have a better sense than an independent agency is deciding whether there there is new evidence and like the minister of justice, this agency will have powers to actually get to to subpoena new evidence if they think it is relevant and to decide that there should be a new trial or a new appeal. And so Bill C40 finally acts on those recommendations. Now one of the things that because Justice Laform and Westmoreland Triora I talk not only to exonaries in Canada and all kinds of criminal justice participants in Canada, but they also talk to people in England and Scotland and New Zealand about how their commissions were working out. And so one of the things that they were very concerned with and I'm concerned with is it's not enough just to create a commission. The commission has to be properly staffed and it has to be properly funded so that it can do its job in a way that may make someone who has been defeated and betrayed by the justice system at every step of the way it may make that person say okay well here's a new entity and I'm going to at least ask them for help I have enough trust in them to ask them for help. So just for our listeners bringing them up to date so the bill has been passed by the House of Commons although I will say with minimal amount of non-political study but it's now going to be studied by the Senate this fall. I know you have some concerns about the bill itself could you highlight those for our listeners? Sure yeah so the bill will not allow people to apply with respect to sentences and so the English, the Scottish and the New Zealand commissions all allow people to say basically you know I may be guilty but there's a new fact that is relevant to my sentence and you know I think sentencing was excluded many people said sentencing in our consultations many people said sentencing should be excluded in part because it was there was a concern that the commission would be overworked and so you would exclude sentencing. Now the bill does include people that are found not criminally responsible with respect to mental disorder. So obviously if you're thinking about things like gladoe sentencing and the absence of facts about a person I think it would be good to include sentencing. This is also related to the issue of resources so the bill could have as little as five commissioners one full-time commissioner who also will have to be the chief executive officer and four part-time commissioners. Well when you look at New Zealand which is one seventh of our size they have seven commissioners they also by statute require that at least one of them be Mauree one of them be indigenous there are no such requirements in Bill C. 40 and the New Zealand Commission which started operation in 2020 has already become overburdened because it's getting more applications particularly more applications from indigenous people than it ever anticipated. So if New Zealand with a much smaller population needs a seven person commission I think we need more than a five person commission. You also alluded to the political battles over Bill C. 40. One of the things that we're very concerned about is how is the bill going to survive when governments change? The government that creates the bill may feel like it has to adequately fund it but a government that doesn't create the institution may say well you know we have to cut spending and this is an easy place to cut spending because you know there's not many people supporting applications from people who you know you have to remember are not understood as wrongly convicted until the moment that a court or a prosecutor agrees with them so they're basically thought of as criminals until that time and so the underfunding I mean I don't know if there's any magic solution to underfunding in fact I think that there isn't but that's a real concern that yes I you know I think it's better to have a commission than the minister although you know frankly some of the ministers and David Lamedi and Arif Farani have been fairly active in recent years in ordering especially new trials in older cases which is a remedy that's not even available in England so it's it's a very complicated issue but you know hopefully by the end of this calendar year the bill in some form is going to become law and there's going to be a really fundamental change in in in this area. Yes and it's two things to know one is that I would say race against time since the next election has to be by next October and so we'll see what the Senate I know there's one senator in particular who has very strong views about this subject and is looking for changes to the bill so we'll see what happens to that but even on your timetable if the bill gets passed by the end of the year it will be a race to get it up and running in time the other thing I would note for our listeners is that the conservatives were against the form of the bill that was eventually voted on by the House of Commons because of some amendments that were made along the way so it will be very interesting to watch future developments in this as I would call it a race against time. Yeah no no and you know and my understanding of the conservatives objective is another important change in the bill is right now the minister is not supposed to order a new trial or a new appeal unless he or she thinks it's probable that a miscarriage of justice occurred whereas under the bill and this is consistent with what Justice LaFormen Westmoreland trial or I recommended the commission can do that if a miscarriage of justice may have occurred and of course for lawyers the difference between may and and probabilities is a big one but I would argue as does Justice LaFormen Westmoreland trial or I is if you look at the English or the New Zealand or the Scottish. We're only-- the Bill C-40 is simply burning the referral standard up to international best practices, that it's really the existing provisions in the criminal code that are require a very high level of certainty before you even get a new trial or a new appeal. And especially in non-DNA cases, that level of certainty may not be possible for many people, even though there are really legitimate concerns that they may have suffered a miscarriage of justice. We will watch with interest. In the book, you also refer to wrongful conviction amnesia. Can you explain what you mean by that, and is it a serious problem? Yeah. Well, I mean, I think this is related both to the fact that we haven't had a public inquiry since 2008. And the investigative media is under challenge. And so one of my concerns is that it may just be the boomers that remember Marshall, Melgarde, and Guy Paul Moran. I mean, my students do not always instinctively feel those cases in their bones. The tragically hip song about David Melgarde is kind of dad rock. And so I worry about the next generation. And so that was why it was really kind of rewarding to work with the students and to work with Amanda, who's considerably younger than Mia should add that, because she would want to hear that to work with younger generations so that all of these wrongful convictions are in some ways remember. Because Barry Schack and Peter Newfell, wonderful people. I mean, I really think they should win the Nobel Peace Prize for founding the Innocence Projects, but they argued back in 2000 that the DNA exonerations are a closing window. If you assume investigative competence, then DNA exonerations will dry up. And they have dried up in Canada. They haven't dried up in the US, but that is largely because of the length of their prison sentences and investigative incompetence. And so the amnesia issue is now is the time. Now is the time to do what we can to prevent and to remedy wrongful convictions. Because we don't want to live in a world where we think wrongful convictions were a problem in the early part of the 21st century, but somehow they've just gone away. Because I think the lessons of history are that will always have at least some wrongful convictions. In the book, you pointedly described several individual cases of wrongful convictions. Is there one particular case to quote your language that you really feel in your bones and stands out and you want to leave with us? Yeah, it's a case of a may team man Clayton Boucher. And Clayton Boucher Amanda was able to get him to speak to our class. So I've also heard Clayton talk about this, although he doesn't talk about it very often. So he was targeted by the police as a suspected drug dealer. He was arrested. He was put into the Edmonton remand, which is a pretty scary place by all reports. And when he was in and during that time, he kept asking his lawyer, it's not drugs. In fact, the substance was found in an arm in Hammer, Baking soda box. And he kept asking his lawyer has the RCMP lab done the task because he was confident that he was innocent. While he was in jail, his wife died in a traffic accident. And although he was given compassion that leave to attend her funeral, he attended her funeral shackled as a prisoner. And so he just kind of gave up. And he pled guilty, got time served. And it was only after that it emerged that when the RCMP lab examined the drugs, low and behold, they weren't drugs. They were baking soda or some other sort of material. And so having heard from Mr. Boucher, that case really lives in my soul. And is one of the reasons why I continue to write and be active in this area when and kind of never tire of it. So thanks, thanks for asking. - And finally, I wanted to take you back to a quote from your book on page 33, you say, as I get older, I am becoming not that you're getting older, I'm becoming disillusioned in seeing the same mistakes happening again and again. We cannot afford to reform forensic science, discipline by discipline, jurisdiction by jurisdiction, public inquiry by public inquiry, and disgraced expert by disgraced expert. That approach is simply too slow and fails to prevent the irreparable harm or wrongful convictions. You wrote that probably about two years ago. How are you feeling about this issue these days? - Well, unfortunately, I'm still quite pessimistic. I mean, the Tammy Boothat case, which isn't gonna go before the Supreme Court on the issue of whether she deserves an acquittal, is again an issue of expert evidence. I look at machine, I mean, partly as an older person, you look at the post office cases in the UK, how do individuals demonstrate that a machine is wrong, whether it's a breathalyzer or a big computer system, especially as legal aid often gets caught for the same reason that criminal case review commissions don't always get the funding that they deserve. So, you know, on the one hand, I'm becoming less optimistic about there being any official reform or fixes, but I also take inspiration from the resilience of so many of the wrongfully convicted and the resilience of so many of those in innocence projects and elsewhere, including prosecutors, who sometimes stand up for the wrongfully convicted and admit that they have mistakes. So, I think it's an issue of, as I get older, I maybe have less faith in official reforms, but I also realize that, you know, the human spirit and truth in derrors and ultimately that is what we have. There are no quick fixes to these issues, and I hope 100 years from now, people who are then standing in our shoes if the world's still around, are still talking about these issues. Professor Roach, thank you both for your time today, but also for your passion and your commitment to this issue. Canada is a better place for the work that you're doing. Thank you so much. - It's very kind, Stephen. Thank you. - You've listened to, in all fairness, a CIAJ podcast. For more information, visit us on our website at ciaj-in-icag.ca. [BLANK_AUDIO]