FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE

1. INTRODUCTION

A wrongful conviction is a failure of justice in the most fundamental sense. An innocent person has been erroneously convicted of a crime that he or she did not commit. In many instances, this has resulted in long and difficult years of incarceration. This is most disturbing in the face of Canada’s strong and robust system of checks and balances in the criminal justice system, which includes the Canadian Charter of Rights and Freedoms, the tradition of the Crown as an independent quasi-judicial officer and the police community as fair and impartial investigators.

No matter how many cases are successfully prosecuted every day in our courtrooms, wrongful convictions, regardless of how infrequent, are a reminder of the fallibility of the justice system and a stain on its well-deserved positive reputation.

Public confidence in the administration of justice is fostered by demonstrating that participants in the criminal justice system are willing to take action to prevent future miscarriages of justice. It is also important to foster public understanding that fair, independent and impartial police investigations and Crown prosecutions are in the public interest.

Various commissions and studies, in Canada and around the world, have provided valuable insight into the systemic causes of wrongful convictions and into what has gone wrong in individual cases. What is startling, however, is that some problems, themes and mistakes arise time and time again, regardless of where the miscarriage of justice took place. These problems relate to the conduct of police, Crowns, defence lawyers, judges and forensic scientists, and they are not confined to proceedings in the courtroom.

When a miscarriage of justice occurs, it is not usually the result of just one mistake, but rather a combination of events. Therefore, just as the problems and errors are multi-layered, so too must the solutions also be multi-faceted. The responsibility to prevent wrongful convictions, therefore, falls on all participants in the criminal justice system. Police officers, Crown counsel, forensic scientists, judges and defence counsel all have a role to play in ensuring that innocent people are not convicted of crimes they didn’t commit. Furthermore, this is an issue that does not touch on one single province or jurisdiction alone. As useful as commissions of inquiry may be, they usually come many years after the fact – the goal of all justice system participants must be to prevents wrongful convictions from occurring in the first place.

In the fall of 2002, in response to a number of wrongful convictions across the country and the various reports of inquiries they generated, the FPT Heads of Prosecutions Committee established a Working Group on the Prevention of Miscarriages of Justice. The group’s mandate is two-fold:

  • It will develop a list of best practices to assist prosecutors and police in better understanding the causes of wrongful convictions;
  • It will recommend proactive policies, protocols and educational processes to guard against future miscarriages of justice.

The Working Group included prosecutors with many years of experience, both trial and appellate. It was chaired by Rob Finlayson, Assistant Deputy Attorney General, Manitoba. Other participants included: Mary Nethery, Joanna Pearson, Miriam Bloomenfeld (Ontario); Tom Mills (Newfoundland and Labrador); Richard Taylor (Alberta); Zane Tessler (Manitoba); and Stephen Bindman (Canada). Brian Kaplan (Manitoba) and Michael Callaghan (Ontario) also contributed to the work.

The Group also benefited from extensive participation in its work by representatives of the Canadian Association of Chiefs of Police (CACP): Bill Lenton (RCMP Ottawa), Jean-Michel Blais (RCMP Manitoba), Murray Stooke (Calgary Police Service) and Frank Ryder (Ontario Provincial Police). This reflected the Working Group’s strongly held view that only a joint effort by all players in the justice system – police, prosecutors, the judiciary, and defence bar – can effectively reduce the risk of wrongful convictions. The Working Group also held a meeting with the Law Amendments Committee of CACP to review the draft recommendations and CACP later surveyed its members to obtain information on some current police practices. The Working Group is extremely grateful for the input and support provided by CACP.

The Working Group was also asked to review and comment on the excellent paper Convicting the Innocent – A triple failure of the justice system, prepared by Bruce A. MacFarlane, Q.C., Deputy Attorney General of Manitoba, and presented at the Heads of Prosecutions Agencies in the Commonwealth Conference at Darwin, Australia on May 7, 2003.[1] The paper thoroughly canvasses the literature on the subject of wrongful convictions and reviews the various common causes that have been identified. Each chapter in this report contains a discussion of the recommendations made by Mr. MacFarlane.

The Working Group’s recommendations are aimed primarily at the most serious of offences, particularly homicides. These are the cases where the risk of long-term incarceration, and hence the consequences of a wrongful conviction, are the greatest. However, we recognize that some of our suggestions are applicable to other offences as well, when feasible.

Our report focuses on the issues that have been identified time and time again, both in Canada and elsewhere, as the key factors that contribute to wrongful convictions:

  • tunnel vision
  • mistaken eyewitness identification and testimony
  • false confessions
  • in-custody informers
  • DNA evidence
  • forensic evidence and expert testimony
  • education

Our report, however, should not be viewed as a beginning or a starting point, but as another stop along a well-established road. As will be obvious, our recommendations build on the extensive work already being done in several Canadian jurisdictions, especially those that have had a commission of inquiry examine one of their prosecutions, which has resulted in a wrongful conviction. We have reproduced many of the excellent policies that have resulted from this work.

The risk of error always exists in any human endeavor. In the justice system, the consequences of a wrongful conviction can be tragic. The Working Group hopes its recommendations, if implemented, will go a long way towards reducing the risk of future wrongful convictions and ensuring that the innocent are acquitted and the guilty convicted.


[1] Available at www.canadiancriminallaw.com


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