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Canada’s Wrongfully Convicted: How can wrongful convictions be prevented?

Donald Marshall Jr. is escorted into Dartmouth Provincial Court in Dartmouth, N.S. on Thursday, Feb. 2, 2006. The Mi'kmaw man became a symbol for Canada's wrongfully convicted after spending 11 years in prison for a murder he didn't commit.
Donald Marshall Jr. is escorted into Dartmouth Provincial Court in Dartmouth, N.S. on Thursday, Feb. 2, 2006. The Mi'kmaw man became a symbol for Canada's wrongfully convicted after spending 11 years in prison for a murder he didn't commit. CP PHOTO/Darren Calabrese

This is the final instalment of a five-part series from the Jon McComb Show on 980 CKNW examining wrongful convictions and why they happen.

Have you ever been part of a jury in a criminal trial?

If you have, you may have had to make a life-changing decision on someone’s innocence or guilt.

Juries play a key role in Canada’s justice system, but Wally Oppal, a former British Columbia attorney general and chief justice, says sometimes juries may lack the necessary legal skills or training required to make important decisions about the law. 

But he says the jury system is necessary.

“The jury system is there so there’s public participation in the system. We tell ourselves that the system is far too important to be left to the judges and the lawyers and we want the public to participate in the system,” he said. “But there is that danger that people who are not trained in the law … may decide the case improperly. But judges make mistakes as well.”

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The true representative nature of juries recently came into focus in the Colten Boushie case.

In February 2018, an all-white jury acquitted white Saskatchewan farmer Gerald Stanley of the second-degree murder of Boushie, a Cree man. Stanley claimed self-defence.

The defence team rejected five potential jury members who were Indigenous, sparking a push from Boushie’s family to change the way jury selection takes place.

READ MORE: Canada’s Wrongfully Convicted — Why do wrongful convictions happen?

The verdict triggered reaction across Canada, including from Prime Minister Justin Trudeau.

“We have come to this point as a country far too many times,” he said after the acquittal. “Indigenous people across this country are angry, they’re heartbroken, and I know Indigenous and non-Indigenous Canadians alike know we have to do better.” 

The issue of race also came into play during the conviction, jailing and subsequent exoneration of Donald Marshall Jr., a Mi’kmaw man from Nova Scotia, who was wrongfully convicted of murdering a 17-year-old boy in Sydney in 1971.

Marshall spent 11 years in prison before being exonerated by a royal commission in 1990.

An inquiry into his conviction ruled that the justice system failed Marshall every step of the way, from his arrest and even beyond his acquittal by the Court of Appeal.

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The commissioners found the police officers involved in his arrest were “inadequate, incompetent and unprofessional” and played a role in the discrimination and conviction of Marshall.

The inquiry recommended the Nova Scotia government improve rates of participation among First Nations within the justice system.

READ MORE: Canada’s Wrongfully Convicted — The cases of Robert Baltovich and Maria Shepherd

Alexander Hickman was a former judge who led the royal commission that investigated the wrongful conviction of Donald Marshall Jr. THE CANADIAN PRESS/Moe Doiron
Alexander Hickman was a former judge who led the royal commission that investigated the wrongful conviction of Donald Marshall Jr. THE CANADIAN PRESS/Moe Doiron.

READ MORE: Canada’s Wrongfully Convicted — What are the psychological impacts?

Oppal says the law is very complex — and he doesn’t expect the average person to have a full understanding of it.

He says that while advancements in DNA technology have played a crucial role in helping to exonerate people, juries need to know how to properly analyze that evidence.

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“It’s a lifesaver because it’s really genetic fingerprinting,” he said. “When the expert comes into the courtroom and talks about DNA, usually the odds are something like 300-million-to-one that it was that person. … So the evidence is quite overwhelming. But still, at the end of the day, you need to examine that evidence.”

So how does Canada ensure wrongful convictions are reduced?

READ MORE: Canada’s Wrongfully Convicted: How does one achieve justice?

Distinguished Toronto defence lawyer James Lockyer, who’s helped to exonerate a number of people, says that after looking at cases post-conviction, there are a few areas, in his view, that need urgent improvement.

WATCH: Fingerprints, DNA not identified 10 months after Sherman murders — lawyer

Fingerprints, DNA not identified 10 months after Sherman murders: lawyer
Fingerprints, DNA not identified 10 months after Sherman murders: lawyer

The first has to do with appellate — or appeal — courts.

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“Appeal courts are not prepared to look at a trial and say: ‘We’re not comfortable with this conviction. We have a doubt lurking in our minds that we can’t get rid of,'” Lockyer said. “They don’t give themselves the power to do that. In fact, they deny themselves the power to do that.”

Lockyer says overturning a conviction isn’t as simple as an appeals court judge having a lurking suspicion about someone’s guilt.

“Most of the wrongful convictions in Canada went through the appeals process and the appeal courts missed them, and they shouldn’t have. It’s not just trial courts that make a mess of things when there’s a wrongful conviction; it’s appeals courts, too, that haven’t identified the wrongful conviction when they’ve had a chance to,” he added.

READ MORE: Glen Assoun calls for inquiry into wrongful conviction that left him in prison for 17 years

In April 2019, the Federal-Provincial-Territorial Heads of Prosecutions Committee released the third volume of a report examining wrongful convictions, titled Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada.

It examined the leading causes of wrongful conviction, including faulty eyewitness testimony, the phenomenon of false confessions and tunnel vision, which is a tendency of police or prosecutors to focus on a particular theory of a case and to dismiss any evidence that contradicts it.

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WATCH (2017): Judge allows crucial DNA evidence to be used in Candace Derksen murder retrial

Judge allows crucial DNA evidence to be used in Candace Derksen murder retrial
Judge allows crucial DNA evidence to be used in Candace Derksen murder retrial

The report made a number of recommendations in addition to those highlighted in previous reports in 2005 and 2011, including ordering police and prosecution services across Canada to develop programs for issues such as tunnel vision.

It also recommended further research by the federal government and other appropriate entities into the phenomenon of false guilty pleas and why they happen.

Here, we’ve only just scratched the surface. University of Ottawa criminology professor Kathryn Campbell says it’s possible there are cases of wrongful conviction that we simply don’t know about yet. 

“Considering the difficulty in establishing a reliable estimate of wrongful convictions in Canada at any given time, the information on these cases at best simply reflects current information about these cases alone and should not be taken as a definitive picture of the reality of miscarriages of justice in Canada,” Campbell writes in her book, Miscarriages of Justice in Canada: Causes, Responses, Remedies. 

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The high-profile ordeals suffered by people like Robert Baltovich and Maria Shepherd have shone a spotlight on Canada’s justice system and prove that more work needs to be done to prevent wrongful convictions. 

Canada’s Wrongfully Convicted is a special series from the Jon McComb show on 980 CKNW.