Justice

New book by U of T law professor Kent Roach examines the injustice of wrongful convictions in Canada

Christopher.Sorensen — Fri, 21 Apr 2023 19:46:27 +0000

New book by U of T law professor Kent Roach examines the injustice of wrongful convictions in Canada

Christopher.Sorensen Fri, 04/21/2023 - 15:46

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In his latest book, U of T law professor Kent Roach outlines Canada's history of of wrongful convictions and how the legal system can better safeguard justice (photo of Roach by Faculty of Law)

Nina Haikara

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Kent Roach, a professor in the Faculty of Law at the University of Toronto, has spent decades sounding the alarm on wrongful convictions in Canada.

His new research underlines the dangers of wrongful convictions based on false guilty pleas or imagined crimes that never happened.

“In judgments, the courts recite ‘the facts’ – but sometimes the legal system gets ‘the facts’ wrong, and the wrongfully convicted and their families suffer as a result,” Roach says.

His latest book – Wrongfully Convicted: Guilty Pleas, Imagined Crimes, and What Canada Must Do to Safeguard Justice – bookends his trilogy on Canada’s criminal justice system with previously published books on Canadian policing and the case that saw Gerald Stanley acquitted in the 2018 killing of Colten Boushie.

All three books, published in the span of less than five years, strongly advocate for policy change and reform.

Roach's 2019 book Canadian Justice Indigenous Injustice was shortlisted for the Shaughnessy Cohen Prize for political writing. And Canadian Policing: Why and How It Must Change, published last year, was a finalist for both the Balsillie and Donner prizes for public policy books.

His books also grapple with injustice towards Indigenous people in Canada’s justice system.

“Wrongful convictions affect the so-called ‘usual suspects’ – and in Canada, the ‘usual suspects’ are too often Indigenous, racialized, socio-economically marginalized or suffering with mental health challenges,” Roach says.

Another thread in his work is the necessity of police reform. He says police can still use aggressive and deceitful ways of questioning suspects that are not always prohibited by judicial regulation of police interrogation techniques.

Roach adds that one of the lessons to be learned from Wrongfully Convicted is that police should not be so aggressive when interviewing people who are vulnerable, have cognitive challenges, or are suffering from addiction or mental health issues. He notes that police need to consider alternative suspects and be aware of stereotypes that associate groups and individuals with crime.

“Police are subject to a very natural human tendency of zeroing-in on a suspect and interpreting evidence so that it confirms the suspect's guilt – while disregarding evidence that points in another direction, such as an alternative suspect,” he says.

Though not perfect, computerized case-management tools can help, Roach says, adding such tools are currently underutilized but can provide case-linkage and analysis to help guard against tunnel vision or confirmation bias.

“If we wait for the courts to correct these errors, it's too late. The courts alone cannot produce good policing.”

In 2007, Roach was appointed research director of Ontario’s public inquiry into systemic concerns in pediatric forensic pathology in the wake of revelations that former forensic pathologist Charles Smith had performed flawed child autopsies that resulted in wrongful convictions.

Amanda Carling (photo by Jesse Johnston)

In Wrongfully Convicted, Roach revisits the cases that were the result of Smith’s misleading forensic evidence. A section of the book examines ‘imagined crimes’ that never happened – such crimes constitute one-third of the wrongful convictions recorded in the Canadian Registry of Wrongful Convictions that Roach co-founded with Métis lawyer Amanda Carling, a 2012 graduate of the JD program at U of T's Faculty of Law.

Roach and Carling co-taught a seminar on wrongful convictions at U of T, which led to the development of the registry.

“Smith had suspicions directed towards young, single mothers and racialized men. The system, which is designed to be a check on mere suspicions, didn't stop Smith's,” Roach says.

He notes there are more recent cases of ‘imagined crime’ wrongful convictions. In fact, three more cases involving such imagined crimes will soon be added to the registry with the help of U of T JD alumni Jessie Stirling, Joel Voss and Sarah Harland-Logan.

The registry was launched this past February with 83 cases. The three new cases will bring the total to 86 – two cases involved Black parents wrongfully convicted in the death of their child and another case of a woman with intellectual challenges who is unhoused.

Roach explains that both the registry and his new book are designed to raise awareness that wrongful convictions are not just a historical or U.S. problem.

“I want Canadians to know that we too have problems in our criminal justice system. The registry is just the tip of the iceberg," he says.

"The real question is, how large is the iceberg? We really won’t know that until we have a better system than we do now.”

Earlier this year, just days before the registry’s launch, the federal government introduced legislation to create a federal commission to review potential cases of wrongful conviction.

Roach led the research on A Miscarriages of Justice Commission report in November 2021, which advocated for the creation of an independent federal commission to consider cases of wrongful conviction.

He says the announcement of a permanent federal commission to investigate allegations of wrongful convictions is an important next step in addressing the issue.

Roach notes that the proposed commission will need to be properly funded and staffed to be able to help people, and will need to be made aware of the realities of wrongful convictions – including false guilty pleas and crimes that never happened.

"We also need to find a way to compensate the wrongfully convicted more quickly and humanely for the terrible injustices done, in all our names," he says.

“It's a long, hard climb to reverse or remedy a wrongful conviction."

Canadian Registry of Wrongful Convictions highlights failures of the criminal justice system

Christopher.Sorensen — Tue, 21 Feb 2023 16:37:13 +0000

Canadian Registry of Wrongful Convictions highlights failures of the criminal justice system

Christopher.Sorensen Tue, 02/21/2023 - 11:37

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(Photo by Anne-Marie Jackson/Toronto Star via Getty Images)

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Kent Roach, a professor in the University of Toronto’s Faculty of Law, and four alumni of the JD program – Amanda Carling, Jessie Stirling, Joel Voss and Sarah Harland-Logan – have launched the Canadian Registry of Wrongful Convictions.

Kent Roach

The registry includes 83 publicly documented cases where a criminal conviction was overturned based on new matters of significance related to guilt not considered when the accused was convicted or pled guilty. The researchers do not have access to confidential information, do not make determinations of guilt or innocence, nor do they act on behalf of the wrongfully convicted.

Initiated in 2018, the registry has been developed with the dedicated support of multiple U of T Law student researchers and several William Southam Journalism Fellows from U of T’s Massey College.

Roach has been teaching a course on the subject of wrongful convictions for more than two decades.

“Students are asked, what are the facts of the case? It’s important that we problematize this idea that the facts are the facts,” says Roach. “Wrongful convictions are largely the result of factual errors: Mistaken eyewitness identification, people lying, expert witnesses basing their testimony on their interpretation of the facts and their opinion.”

Roach says the wrongful convictions recorded in the registry “are underinclusive of all miscarriages of criminal justice because of the difficulty people experience, once they have been convicted, in finding new evidence and having the courts accept it.”

In the registry’s first report – Canada Has a Guilty Plea Wrongful Conviction Problem – Roach highlights some key findings about the relationship between guilty pleas and wrongful convictions.

“We weren’t surprised that 18 per cent of the cases that met our definition were the result of false guilty pleas,” says Roach. “What was surprising, however, was that almost all the people who pled falsely were Indigenous, racialized, female or living with a disability.”

Most miscarriages of justice happen when vulnerable people without proper legal representation plead guilty to get it over with, says Carling.

A Métis lawyer and the chief executive officer of the BC First Nations Justice Council, Carling worked at Innocence Canada for three years before joining Roach to co-teach the wrongful convictions course at the Faculty of Law.

“I did a lot of public legal education, primarily in First Nations, about the causes of wrongful convictions,” she says. “As a new lawyer, I wanted to share the little that I knew to try to prevent miscarriages of justice. I had seen firsthand how difficult it is to overturn a wrongful conviction and how few resources there are in Canada to support victims of miscarriages of justice.

“But when I did those presentations, when I talked about the leading causes of wrongful convictions, I used the statistics from the U.S. registry [because] we didn’t have Canadian data.”

Stirling, who is Kwakwaka’wakw and a member of the Wei Wai Kum First Nation on Vancouver Island, says Indigenous and racialized people are overrepresented among the wrongfully convicted.

From left to right: Amanda Carling, Jessie Stirling, Joel Voss and Sarah Harland-Logan.

“That much is clear when you look at the Registry’s data visualizations,” she says.

A primary contributor to the registry, Stirling’s work on the project began in 2018 as a Gerald W. Schwartz research fellow at U of T Law. She received the U of T President’s Award for Outstanding Indigenous Student of the Year in 2020.

“As a research fellow, I worked to compile our master list of cases and refine our research parameters. I also researched and wrote on Indigenous wrongful convictions and, since 2018, I have been responsible for managing the project,” adds Stirling, who is now an associate at Olthius Kleer Townshend LLP, a leading Aboriginal Law firm in Canada.

Voss, who works in securities compliance, began volunteering with the project in 2020 with a focus on data analysis, research, data entry and website development.

“From our current dataset, approximately one-third of the wrongful convictions stem from an instance in which no crime occurred,” says Voss. “To me, this is staggering. Many of those cases involved a loved one passing away. Invariably, the wrongfully convicted person lost a loved one and then on top of that had to suffer through a justice system that got it wrong. This is a problem in Canada, and we need to do some work to uncover the full extent of this problem.”

Part of uncovering the truth requires coming to terms with the reality of Canada’s colonial history. For example, the registry – funded in part by a grant from the Bennett Family Foundation – includes a timeline of miscarriages of justice dating back to 1755, when 8,000 Acadians were expelled from Nova Scotia over doubts of loyalty to the British Crown.

“The first step unpacking Canada’s colonial legacy is educating people,” says Carling. “Our timeline and the cases that are included in the registry are just the beginning of the story that the Canadian criminal justice system has – and continues to – get wrong.”

Stirling adds that the team behind the registry expects to learn of new cases of wrongful conviction that meet their definition. Team members can be contacted through the contact us form on the registry’s website.

Since only publicly available information such as media sources were used to build the registry, the possibilities for further research – going deeper into the existing cases, as well as adding new cases – are unlimited.

“We have a list of things that we would have added if we had more time and resources,” says Carling. “For instance, we would like to look at wrongful convictions that happened under racist laws like the Indian Act provisions that banned the potlatch.”

She adds that the group’s work is only scratching the surface of the issue and that the need for data on lesser-known cases, as well as information about cases that haven’t yet received a remedy for their wrongful conviction, will become more important as Canadian lawmakers begin to debate the legislation to create Canada’s first Miscarriage of Justice Review Commission.

“We hope that others will take up this work and freely share their findings so that the colonial justice system can work better for everyone,” Carling says.

Roach has spent years shining a light on wrongful convictions and policing in Canada. His forthcoming book on the subject – Wrongfully Convicted: Guilty Pleas, Imagined Crimes, and What Canada Must Do to Safeguard Justice (Simon & Schuster 2023) – bookends his trilogy on Canada’s criminal justice system with previously published books on Canadian policing and the Gerald Stanley and Colten Boushie case.

He also documented the criminal justice system’s failings as research director of the Goudge Inquiry into Pediatric Forensic Pathology in Ontario (2007-2008), discrediting pathologist Charles Smith who gave misleading forensic evidence in several criminal investigations.

More recently, Roach led research for A Miscarriages of Justice Commission, a report filed in November 2021 that advocated for the creation of an independent federal commission to consider cases of wrongful conviction.

Just days before that launch of the registry, the federal government federal government introduced legislation to create a federal commission to review potential cases of wrongful conviction.

Roach, for his part, says that if the true perpetrator of a crime has never been caught, it’s not only failure of the system, “but it's an even more immediate failure of the state, when the state convicts and imprisons a person who is not guilty.”

Justice

New book by U of T law professor Kent Roach examines the injustice of wrongful convictions in Canada

Canadian Registry of Wrongful Convictions highlights failures of the criminal justice system

Read more about the registry in the Toronto Star

Read more about the registry at CTV