Minister of Justice and Attorney General of Canada David Lametti looks on as Susan Milgaard, sister of wrongfully convicted David Milgaard, speaks during a news conference on Parliament Hill, on Feb.16, in Ottawa. David Milgaard's wrongful conviction is one of a handful known publicly. The majority don't get media attention.Adrian Wyld/The Canadian Press
Kent Roach, Amanda Carling, Jessie Stirling and Joel Voss are co-founders of the Canadian Registry of Wrongful Convictions.
After five years of research, review, and development, and with the help of numerous volunteers, we launched the Canadian Registry of Wrongful Convictions.
As teachers of and students in a long-running course on wrongful convictions at the University of Toronto Faculty of Law, we thought we knew about most of Canada’s remedied wrongful convictions. We were wrong.
The registry contains 83 cases of wrongful convictions often remedied through the admission of new evidence not considered when the accused was convicted or pled guilty. Only a few of these cases, such as those of the late Donald Marshall Jr. and the late David Milgaard, are well known. Many received little or no media attention and no compensation.
In the registry, we attempt to describe how each of the 83 people were wrongfully convicted so as to remember their cases and hopefully avoid other people suffering similar injustices in the future.
Only one quarter of the 83 had their wrongful convictions corrected through a new appeal or new trial ordered by the Minister of Justice. This finding underlines the need to bring in a permanent and independent body to investigate these cases, something proposed in the David and Joyce Milgaard law recently introduced in Parliament.
One priority for the proposed Miscarriage of Justice Review Commission should be to reach out to those who felt they had no choice but to plead guilty. A striking finding in the registry is that 18 per cent of remedied wrongful convictions involved guilty pleas where there were no trials.
False guilty pleas may strike you as absurd. Why would someone plead guilty to something they did not do or that did not happen? Yet our findings indicate that the Canadian rate of false guilty pleas is identical to that found in the U.K.’s registry.
We should resist the tendency to blame people for pleading guilty. Almost invariably, they were offered deals that they felt they could not refuse.
Think of the very young mothers and racialized men who pled guilty to murder in the face of “expert” testimony of the discredited Charles Smith. If they went to trial and Mr. Smith’s testimony was accepted, they would get automatic life sentences because of their murder charges; in contrast, they got much lighter sentences in exchange for pleading guilty to less serious offences. Two Indigenous people, William Mullins-Johnson and Tammy Marquardt, rejected manslaughter deals and received life sentences when they were wrongfully convicted on the basis of Mr. Smith’s testimony.
The hard truth is that sometimes the rational thing to do is to plead guilty even if you are innocent. Clayton Boucher and Richard Catcheway, two Indigenous men, both made perfectly rational decisions to plead guilty in exchange for sentences of “time served” (meaning they were deemed to have completed their sentences given the time they had already spent in pre-trial detention). There are demands to imprison even more people before their trials, but one of the harmful yet unintended consequences could very well be more false guilty pleas.
Over 70 per cent of Canada’s remedied false guilty pleas involved women, Indigenous people, racialized people, or those living with mental-health or cognitive challenges. Almost half (7 of 15) of Canada’s false guilty pleas came from racialized people and 40 per cent came from women. The majority of the false guilty plea cases in the registry involved “imagined crimes,” where no crime actually occurred, for example, accident deaths that were deemed murders.
Imagined crimes, in total, make up a third of the cases in the registry. Why are we convicting people of crimes that did not happen? There is tendency for justice system actors to be suspicious and to jump to conclusions. The criminal justice system is supposed to check and balance this, but like any system run by humans, it sometimes fails.
The recognition of guilty plea wrongful convictions should be a game-changer. It means we cannot ignore the majority of criminal cases that end in guilty pleas as potential wrongful convictions.
Almost all of the victims of false guilty pleas needed help from the state to correct their miscarriages of justice. Hopefully this help will also come from the federal government’s proposed commission.
But this help will only be effective if the commission has the proper powers and budgets it needs to reach out and convince those who have been defeated by the criminal justice system to give it another chance.