The registry shows a significant number of cases were due to false guilty pleas and “imagined” crimes or “dirty thinking,” such as the victims of disgraced coroner Dr. Charles Smith. Also, the number of Indigenous people wrongfully convicted represent roughly one in five of the documented cases.
The Toronto Star: A first-ever comprehensive Canadian registry of wrongful convictions shows 18 per cent of remedied cases were due to false guilty pleas and a third of all cases involved “imagined” crimes that never happened. Many of these cases involved disgraced former Ontario pathologist Charles Smith, known for “thinking dirty” about child abuse.
Another takeaway is the number of Indigenous people wrongfully convicted. They represent roughly one in five of 83 documented cases, which are only the “tip of the iceberg” of wrongful conviction cases that go unreported and occur on a daily basis in courtrooms across the country.
The Canadian Registry of Wrongful Convictions is five years in the making, the brainchild of University of Toronto legal scholar Kent Roach and Métis lawyer Amanda Carling, and inspired by the U.S. National Registry of Exonerations, which has documented more than 3,000 cases. Like the U.S. registry, the Canadian registry does not attempt to measure “factual innocence” but records cases where the legal system admits its mistakes, often by admitting new evidence after a trial or a guilty plea.
The Canadian registry steps deeply beyond DNA “whodunnit” exoneration cases, which most commonly come to mind in the public’s eye when thinking of wrongful convictions — think Guy Paul Morin and David Milgaard — and into areas like bad science, dubious police techniques and people who have committed no crime whatsoever but plead guilty, often to avoid a potentially more punitive outcome or due to cultural differences.
The registry, which is now live and includes case summaries and a timeline of wrongful convictions and injustices dating back to the hanging of Louis Riel, most importantly publicly shares an analysis of up to 140 data points related to the cases, including the factors that led to wrongful convictions.
Of the 83 documented cases, 28 — or 34 per cent — involved no crime actually taking place. In 15 — or 18 per cent — of cases, a false guilty plea was a factor. The findings nearly mirror those of the U.S. registry.
For Roach and Carling — and law school graduates Joel Voss and Jessie Stirling who worked to bring the registry to life — these findings plus the overrepresentation of Indigenous people are profound, and speak to what was previously known anecdotally, and through data on the overrepresentation of Black and Indigenous people in prisons. “We don’t in any way claim that this is the definitive sample,” Roach said. “I mean, it’s a tip of the iceberg and we’re never going to know how big the iceberg gets — but there’s nothing like counting it up to say, ‘Holy crap,’ right?”
The degree of “imagined crimes” cases — often due to “dirty thinking” by expert witnesses — is “staggering,” said Voss, who along with Stirling studied law at the University of Toronto, where Carling and Roach co-taught a course on wrongful convictions, and Roach continues to lead. (Full disclosure: I was involved in early planning on the registry while on an academic leave, and audited Carling and Roach’s course.)
Carling and Roach, who has written a book on wrongful convictions due out this spring, hope the registry will not only inform lawyers, Crown attorneys and law students, but be taught in high schools. They want it to educate the public at large about a long-standing problem that goes well beyond the high-profile cases most often highlighted by the media — of mostly white men — who were able to navigate the long path to exoneration.
As The Tragically Hip noted, in the band’s song “Wheat Kings” about Milgaard’s wrongful conviction, they’re “nothing new,” notes Roach. But, in time, the DNA “whodunnit” wrongful conviction exonerations the public is so familiar with will dry up, and the challenge will be to keep the spotlight on the vast number of other kinds of wrongful conviction cases. “That’s a challenge to educate the public because the public has gotten used to the clear-cut DNA, wrong perpetrator case,” said Roach. “What I hope that the registry can contribute is educating the public about, frankly, the more intractable wrongful convictions with false guilty pleas and crimes that never happened.”
Maria Shepherd was wrongfully convicted in a case where she entered a false guilty plea to manslaughter in the 1991 death of her 3-year-old stepdaughter on the advice of a lawyer, who advised that now-disgraced coroner Charles Smith’s evidence was solid and could land her more time in jail. She lauds the launch of the Canadian registry.
“I’m happy and very grateful to the study group that has been able to bring these numbers together,” said Shepherd, who was finally acquitted in 2016 when the Crown pointed to new evidence that Smith’s opinion and testimony was “fundamentally flawed.” “It is long overdue that our system here in Canada keeps track of this to see where are we going wrong,” said Shepherd, who is a paralegal and advocate on wrongful conviction cases, and called the proportion of imaginary crimes and false guilty pleas “shocking,”
“It’s really nice to know that exonerees will be able to not only get recognized on this registry, but that somebody like me, a Canadian that’s been acquitted and looking for statistics, can actually go somewhere now to look at it and not feel like we’re alone because all of these years we really didn’t have something to fall back on that was reliable.”
Indeed, the registry, funded initially by a grant from the Bennett Family Foundation, is intended to be a living and expanding home to wrongful conviction cases, and invites users to send information about new cases or on the documented cases. It was also important to build the registry with an Indigenous foundation in mind, said Carling, who articled with Innocence Canada, which was formerly known as the Association in Defence of the Wrongly Convicted. There, she saw how much work was required to take on wrongful conviction cases, and by then had decided she wanted to spend her legal career “ameliorating the criminal justice system for First Nations people.”
The site features work by Moe Butterfly — a mixed Seneca, Two-Spirit artist currently residing on Susquehannock land —including the registry’s iceberg logo. There are also pages highlighting issues faced by Indigenous women and men, the former making up about 50 per cent of incarcerated females in Canada and the latter more than 30 per cent of all male prison admissions.
Given those huge over-representations in jails — the general Indigenous population in Canada is 3 per cent — the much lower over-representation of Indigenous cases in the registry is most definitely still an undercount and speaks in part to which cases got attention over the years, and which did not.
Early on in her advocacy work, Carling found herself speaking to Indigenous audiences about the cases of white people and with no Canadian Indigenous data to tie anything to. That is, other than the one that started things off, the wrongful conviction of Donald Marshall Jr, which came with a judicial recognition that these things happened to Indigenous people in part because they are Indigenous. Marshall Jr. spent 11 years in prison for a murder he did not commit.
“And then everybody just kind of didn’t talk about that” and the wrongful conviction cases that did get attention where mostly white middle-class people and not the most vulnerable, said Carling, who approached the registry project with that gap in mind. That’s where the storytelling comes in.
“One thing most Indigenous communities share internationally is that we’re storytellers,” said Carling, who now heads up the BC First Nations Justice Council. “That’s what this registry does. It tells stories of the people who have been victimized by the Canadian criminal justice system.” For example, those of Connie Oakes and Clayton Boucher, both Indigenous people who were wrongfully convicted, and cleared when new evidence came to light.
Raw data from the registry can be downloaded, and like the US registry, provides graphs and charts to make the data digestible. For Stirling, who is a Kwakwaka’wakw woman of the Wei Wai Kum First Nation in Campbell River, B.C., the data visualizations in particular have made it the “tool we’d always hoped it would be.”
The launch of the registry comes as federal Justice Minister David Lametti just recently introduced long-anticipated legislation to create an independent Canadian commission to review and investigate claims of wrongful convictions, potentially making the path to clearing up miscarriages of justice both quicker and lowering the threshold for retrial or appeal. The registry already contains an analysis of the proposed law.
Lawyer James Lockyer, who wrote the foreword for Roach’s upcoming book and is arguably Canada’s most prominent advocate for the wrongfully convicted, including Milgaard who died last year at age 69, called the proposed legislation and commission “the best possible news for the wrongfully convicted in Canada.”
Currently, people seeking redress for wrongful convictions face a much criticized and lengthy ministerial review application process and vetting by a review group.\ Roach, who worked with Justices Harry LaForme and Juanita Westmoreland-Traoré on the Miscarriages of Justice Commission that last year laid out a framework of recommendations for a proposed Canadian commission, said the commission must be well-funded and proactive, especially in order to take on false guilty plea cases.
“I think the individual alone is not going to be able to overcome the guilty pleas,” said Roach, who pointed to the “hugely embarrassing” case of Richard Catcheway, an Indigenous man who pleaded guilty to a property crime in Manitoba that he physically could not have committed because he was in jail when it took place.
The system, despite multiple opportunities, missed the exculpatory information it had in its own files, and the plea was accepted, even though Catcheway could not remember where he was when the crime took place but insisted he was not at the scene. He spent more than six months in jail. Eventually, the information resulted in his conviction being quashed and an acquittal ordered.
“It’s a steep hill for everyone to undo a wrongful conviction,” said Roach. “But I think the hill is probably steepest for those who sometimes for understandable and even rational reasons have pled guilty.”