Students and staff at the University of Toronto law school are launching a new database this week documenting dozens of cases of wrongful convictions in Canada hoping to draw more attention to the problem.
Lawyer and database project co-founder Amanda Carling said in particular the hope is that Canadians will realize that getting your case even looked at as a possible wrongful conviction is difficult, particularly if you are Indigenous or racialized.
“We’re trying to tell the story of the people who have that access to justice,” she said. “And then we really want to shine a light on the people who don’t have that access to justice.”
As the database launches there are 83 cases in it where a conviction was overturned. Only 16 of them involved Indigenous people, despite the fact Indigenous people are far overrepresented in Canadian prisons.
Carling said legal reforms in Canada have recognized too many Indigenous people are in prison, but there has never been an institutionalized recognition many of them shouldn’t be behind bars in the first place.
The new database comes days after Justice Minister David Lametti introduced legislation to create a new federal commission to review potential cases of wrongful conviction in part because so many of the current cases being reviewed don’t reflect the makeup of Canada’s prison population.
“When I look at the files that come to me, I see a clear pattern. The applicants are overwhelmingly white men. The prison population does not look like that,” Lametti said last Thursday.
Carling said Indigenous and Black people are more vulnerable to wrongful convictions.
Modelled in part on registries in the United States and United Kingdom, the Canadian version offers data on various causes of wrongful convictions, including the legal mechanism used to overturn the conviction.
It doesn’t seek to define or measure any what it calls “factual innocence” in the cases reviewed and instead records instances where the legal system admitted a mistake was made.
Almost one in five cases of wrongful conviction in the database happened because of a false guilty plea, and one-third were for “imagined crimes” that never actually happened.
Project co-founder and legal scholar Kent Roach says a false guilty plea happens when someone is innocent but still pleads guilty, often because of a plea bargain offer that they will be given a lesser sentence or released if they admit to the crime.
“The criminal justice system has been encouraging plea bargaining and good deals as a way to achieve efficiency,” he said. “One of the things that it should make Canadians think is that one of the unintended consequences of ‘let’s make a deal efficiency’ is people may be offered deals that are simply too good to refuse, even if they are innocent.”
Roach said imagined crimes often arise when a system that is supposed to demand proof beyond a reasonable doubt fails to do so.
“These are actually structural problems that are built into our criminal justice system, either on the basis of plea bargaining, or kind of the stereotypes and shortcuts in thinking that are too often used in arriving at conclusions that someone is guilty,” he said.
The majority of wrongful convictions stemming from false guilty pleas involve women, racialized people or people with cognitive challenges.
Many of the wrongful conviction cases in the database tie back to Charles Smith, the disgraced Toronto forensic pathologist whose fundamentally flawed testimony led to people wrongfully being put behind bars over the course of more than 20 years at Toronto’s Hospital for Sick Children.
A review of his work released in 2007 by Ontario’s chief coroner looked at 45 child autopsies performed by Smith and cast doubt on the criminal convictions in 13 of the cases.
A 2008 inquiry found he lacked the basic knowledge to do his work and his approach was “fundamentally flawed.”
Roach said Smith’s work often stereotyped Indigenous or racialized people and resulted in wrongful convictions.
While the new federal review process Lametti is spearheading with his legislation is welcomed by the “innocence movement” in Canada, Roach and Carling said they still have concerns.
Roach said he’s not certain the new commission will have either the resources or power to get at cases where someone is behind bars as the result of an imagined crime or false guilty plea.
Roach also said the proposed law won’t allow people reviewing potential cases to access materials police or prosecutors claim is legally privileged.
“These are all things where the commission should have access to it, not necessarily to make this information public, but in order to do a full investigation,” he said.
David Fraser, The Canadian Press