Wrongfully Convicted: A Sobering Look at Canada’s Justice System
Professor Kent Roach's book shows that despite great progress, Canada still has a long way to go
Six months after someone broke into a house in Winnipeg, police arrested a 32-year-old Indigenous man as the culprit.
He was a routine offender and a habitual drug user. He said he didn’t know where he was the night of the break-in. Everything about him said guilty. Right?
Eventually, even he said it. He pleaded guilty and was sentenced to six months in prison - the time he spent awaiting trial.
The problem is something greater than his background, drug use, and lousy memory conclusively showed he was innocent: the man, Richard Catcheway, was in prison two hours away during the break-in.
Wrongful Convictions in Canada
Professor Kent Roach's book Wrongfully Convicted: Guilty Pleas, Imagined Crimes, and What Canada Must Do to Safeguard Justice features Catcheway’s case as an example of a false guilty plea wrongful conviction, one of several types of wrongful convictions.
The book spotlights the harsh reality of wrongful convictions in Canada by presenting classes of wrongful convictions beyond those usually discussed.
Professor Roach and Amanda Carling cofounded the Canadian Registry of Wrongful Convictions, which includes more than 80 cases of wrongful convictions.
He’s sure the number is much higher.
“Why all the fuss about eighty-three wrongful convictions? Come back when you have three thousand or even three hundred on the registry, some people might say,” Professor Roach asks in his book.
“We are convinced, however, that we and the Canadian criminal justice system are revealing only the tip of the iceberg.”
He sets out to prove it in two ways: historically and statistically.
Historically limited classes
“Man freed after DNA proves he didn’t do it” is the type of news headline you may likely think of when you think of wrongful convictions.
Unfortunately, DNA exonerations have shaped how many of us think of wrongful convictions, giving the impression that DNA will eventually exonerate all innocent people.
As Professor Roach argues, there are many cases of wrongful convictions with no DNA to exonerate the accused.
We must also grapple with “more difficult-to-correct types of wrongful convictions than those discovered by DNA testing,” such as guilty pleas and imagined crimes.”
False-guilty-plea wrongful convictions
These are cases like Richard Catcheway’s.
If you find it hard to understand how an innocent person could choose to plead guilty, you will find these chapters invaluable.
Catcheway’s case is simple because it was impossible; the prison record showed he was miles away.
Professor Roach shows, however, that unfair police tactics, biased experts, sloppy science, overzealous prosecutors, distracted defence attorneys, and the impossible-to-resist ‘bargain’ of avoiding a mandatory life sentence if convicted at trial on false but damning evidence forces others into false guilty pleas.
Imagined-crime wrongful convictions
Sometimes, investigators charge when there is no crime.
Accidents and suicides are charged as murder, for example, because investigators choose suspicion over even what the evidence and experts say.
Wrong-person wrongful convictions
‘Who done it’ cases, where police got the wrong person.
Investigators, forensic experts and prosecutors may mean well, but “police are open to groupthink and noble-cause corruption—a form of thinking where noble ends justify questionable means and shortcuts,” Professor Roach writes.
This chapter argues that though we’re human and mistakes happen, there are practical things we can do to minimize them.
A matter of probability
Not only are there more categories of wrongful convictions than we often consider, but the high number of convictions annually means that even a microscopic error rate likely produces hundreds of wrongful convictions.
“Most wrongful convictions lurk below the surface, unrecognized and unremedied,” Professor Roach says.
He points as an example to the 136,000 adults sentenced to jail in 2019-20.
“If you assume that the Canadian criminal justice system gets the correct result 99.5 percent of the time—a very high success rate for a system run by humans under pressure—that still amounts to 393 people being wrongly convicted and sentenced to jail in just one year,” he writes.
What to do about it
The book argues that wrongful convictions in Canada are inevitable.
They “are built into the criminal justice system,” Professor Roach writes.
“They are systemic processes and not simply the fault of a few incompetent or bad criminal justice actors,” he says.
And, to make matters worse, there are tremendous roadblocks to fixing them.
At first, I bristled at the cynicism, which the author himself acknowledged. I soon realized, however, that it grounded his argument: If wrongful convictions are inevitable, society should make it easier to re-examine and correct them.
To that end, he shows what other countries are doing and how Canada, despite its international human rights reputation, lags behind states like Texas in protecting the wrongfully convicted.
The book also discusses what Canada should do about wrongful convictions, including the proposal (now reality) to establish an independent review board to review potential convictions.
Professor Roach gives Canada credit for making strides, saying, “In the thirty-five years I have been studying, teaching, and writing about Canada’s wrongful convictions, there has been some progress.”
He cites, among other things, the Supreme Court expanding the disclosure rights for accused people in criminal trials and banning Canada from “extraditing people to face the death penalty.”
Parliament bears the brunt of his ire for resisting changes that, he argues throughout the book, would significantly reduce the risk of wrongful convictions and better resolve them when they occur.
He suggests changes in at least 10 areas:
Eyewitness Identifications: Prohibit procedures research shows cause mistaken eyewitness identifications.
False Confessions: Stop police from using discredited interrogation techniques and make it mandatory for them to record all interrogations.
Guilty Pleas: Require that every judge ensures there’s a factual basis for a guilty plea in every case, even if the defendant has a lawyer.
Disclosure in Sexual Assault Cases: Review the restrictions on disclosure to the accused in sexual assault cases.
Police Practices: Insist police use computerized case management and victim linkage systems (which they already have) in every case - to combat tunnel vision and groupthink.
Defendant rights: Reassess the barriers the accused must surmount in challenging police investigations or presenting alternative suspects.
Forensic Sciences: Ensure courts only admit state expert evidence which meets an acceptable scientific standard. Also, let defence experts tell juries what science knows about mistaken eyewitness identifications and false confessions.
Jailhouse Informants: Limit testimony from jailhouse informants, a notoriously dishonest class of witnesses.
Jury System: Change the law to permit researchers to investigate jury deliberations; to determine, among other things, if jurors understand complex instructions.
Independent Review Commission: Ensure the commission has sufficient resources, powers, and personnel to uncover and correct wrongful convictions quickly.
Compensation: Work on compensating more wrongfully convicted people (currently only about 50% of cases).
An enduring stigma
Wrongfully Convicted is an incredibly readable book, but it is not easy to read.
I first heard Professor Roach on the David Asper Centre for Constitutional Rights's podcast, Charter: A Course.
I got the Kindle version of the book around Christmas, but I couldn’t finish it as quickly as I had hoped, as almost every page sent me researching something new.
As someone still discovering Canada and its legal system, I read the book's old cases as if they were brand new, and I wanted to know more about each one.
One of the cases led me to an interview with someone - the sister of a girl who had died - discussing a wrongfully convicted man. It drove home to me the enduring effects of being wrongfully convicted.
An Anishinaabe man, William Mullins-Johnson, was convicted of killing his niece.
After twelve years, he was completely exonerated. The prosecution said they were “profoundly sorry.”
The prosecution – the prosecution – called it a “miscarriage of justice," and Ontario awarded him $4.25 million.
When the 5th Estate interviewed his family, however, his niece said that even then, she wanted to kill him.
In her mind, the exoneration, the court’s apology, and the government’s apology changed nothing.
“Why?” asked the reporter.
“Because,” she said, highlighting the lasting stigma on the wrongfully convicted:
“People don’t just go to jail for no reason. They do something.”