Criminal Injustice

• Date: 01 August 2005
• Author: Myriam S. Denov,Kathryn M. Campbell
• DOI: 10.1177/1043986205278627
• Published date: 01 August 2005
• Subject Matter: Articles

10.1177/1043986205278627Journal of Contemporary Criminal Justice / August 2005Denov, Campbell / WRONGFUL CONVICTION IN CANADA

Criminal Injustice

Understanding the Causes, Effects, and Responses to

Wrongful Conviction in Canada

MYRIAM S. DENOV

KATHRYN M. CAMPBELL

University of Ottawa

During the past decade, there has been growing international interest in the topic of wrongful

conviction and its serious implications. As in other jurisdictions, Canada has seen several high-

profile cases of wrongful convictionthat have led to an increased recognition of the fallibility of

thecriminal justice process. However, despite increased media attention to the issue, correspond-

ing academic literature on the problem has been limited in this country.This article begins by

reviewingthe literature on the causes of wrongful convictionand uses examples from Canadian

cases as illustrations. Followingthis, through qualitative interviews with fivewrongly convicted

Canadians,the articleexamines some long-term effects of a wrongful imprisonment on individu-

als and their families both during incarceration and following their release. Finally, government

responses to the issue are discussed, illustrating their limitations and their relevancefor criminal

justice policy and practice.

Keywords: wrongful conviction; Canada; criminal justice

Not long ago, to claim that an innocent person had been imprisoned was auda-

cious, even risky,a proposition that was close to unprovable....Nowthefabric

of false guilt is laid bare....Sometimes eyewitnesses makemistakes. Snitches

tell lies. Confessions are coerced or fabricated. Racism trumps the truth. Lab

tests are rigged. Defense lawyers sleep. Prosecutors lie.

Scheck, Neufeld, and Dwyer, 2000, p. xv

The Canadian justice system is organized in terms of rules and proce-

dures that ostensibly make it difficult to wrongly convict. Those who are

convicted are considered by the courts and legal professionals in the justice

system to have met strict criteria, and once convicted, it becomes extremely

224

Journal of Contemporary Criminal Justice, Vol. 21 No. 3, August 2005 224-249

DOI: 10.1177/1043986205278627

© 2005 Sage Publications

difficultto make the case that errors occurred. Although the Canadian system

of criminal justice is not immune to wrongful convictions, as the names

Steven Truscott,Guy Paul Morin, David Milgaard, Donald Marshall, Jr., and

Thomas Sophonow attest,1there has been little systematic research on

wrongful conviction in Canada. The reality of wrongful conviction not only

raises concerns regarding the fallibility of due process, human rights viola-

tions, and the limitations of the adversarial approach, but it also raises ques-

tions about the legitimacy of the justice system and those professionals who

work within it. Given the seriousness of wrongful convictions, not only for

the wrongly convicted but also for the justice system as a whole, this problem

demands further exploration. The objective of this article is to examine the

causes and effects of wrongful convictions as well as state responses to the

problem.2First, the article uses Canadian case material to explore the major

factors that appear to contribute to wrongful convictions. Second, relying on

interviews with five wrongly convictedCanadians, we highlight some long-

term effectsof wrongful imprisonment. Finally,we address the issue of exon-

eration, particularly the use of Section 696.1 of the Canadian Criminal Code,

DNA forensic evidence, and the role of commissions of inquiry.We provide

an overview of the salient issues concerning wrongful conviction, including

its impact on the wrongly convicted, the ways in which Canadian society has

sought to deal with the problem, and the limitations of such responses.

THE PREVALENCE OF

WRONGFUL CONVICTION

Miscarriages of justice, whereby an innocent individual is wrongly con-

victed of a crime, were, until relatively recently, thought to occur infre-

quently (Carrington, 1978). Although the number of wrongful convictions is

an unknown dark figure, recent speculation from the United States of the fre-

quency of wrongful convictions range from very few cases each year to up

to 20% of all recorded convictions (Holmes, 2001). Radelet, Bedau, and

Putnam (1992) ascertained that 416 known miscarriages of justice in capital

or potentially capital cases occurred between 1900 and 1990 in the United

States, including 23 cases where the accused was executed. A study con-

ducted at Long Lartin maximum-security prison for the National Association

of Parole Officersin Great Britain revealed that as manyas 6% of the inmates

in that prison may have been wrongly convicted, a figurepresumed typical of

other British prisons (Carvel,1992). Huff, Rattner, and Sagarin (1986, 1996)

reported that prominent justice officials in the United States believed that

approximately half of 1% of all felony convictions were wrongful, which

translates into 6,000 to 10,000 cases per year. This assortment of estimates

makes it difficultto accurately portray the number of wrongly convicted indi-

Denov, Campbell / WRONGFUL CONVICTION IN CANADA 225