Justice Miscarried: Inside Wrongful Convictions in Canada

By Hélèna Katz
Toronto, ON: Dundern Press. 2011

The existence of wrongful convictions as evidence of egregious systemic errors in our administration of justice is by all accounts a recently acknowledged phenomenon.  As former Chief Justice Antonio Lamer stated in his capacity as a commissioner in a public inquiry into wrongful convictions “It was only with the Report of the Marshall Royal Commission in 1989 that the potential ineptitude of our criminal justice system was laid bare”.¹

Hélèna Katz is to be commended for her efforts in bringing her account of wrongful convictions in Canada to the public’s attention.

The author has divided her book into three sections; each providing cases that align with some of the widely acknowledged causes of wrongful convictions. To make her argument on the incredible personal harm occasioned to those who are the victims of miscarriages of justice, Ms. Katz has included the details on well publicized matters including those of David Milgaard, Donald Marshall, Guy Paul Morin, William Mullins-Johnson and Thomas Sophonow.  With the intimate details of these cases, the author resonates with her readers by providing the investigatory and court room context for stories that the public at large only knows through the press.

In many respects, this book follows up where Anderson and Anderson’s Manufacturing Guilt: Wrongful Convictions in Canada² left off with one major exception.  The earlier book used the case studies to lay bare the social inequities that are fundamental to the causes of wrongful convictions leading to social injustice. While the impression left by Katz is that miscarriages of justice are contained within the confines of sensational cases that garner the public’s attention, the Andersons go to length to quote criminological evidence that on a best estimate basis concludes that one percent of all convictions are wrongful.  These include cases that do not distinguish between personal and property offences or between violent and non-violent crimes.  To apply this estimate to Canada, in 2010, there were 87,214 cases that resulted in a sentence of incarceration.³ Using the assumption that one per cent of those imprisoned were innocent, the data suggest that there were 872 individuals wrongfully convicted in that year.  There is every reason to believe that as rates of incarceration increase yearly as a function of the current Canadian government’s crime control agenda, that number should continue to rise.

While Ms. Katz goes to exceptional lengths to provide the minutia of detail in the cases reviewed to shine a light on the glaring malfeasances of the police, inter alia, including those that include tunnel vision; suborning or concocting evidence; and eliciting false confessions together with the more recent grievance injury caused by the faulty forensics of the former doctor Charles Smith; the author fails to discuss how those who are marginalized are most likely to suffer unfairly in the criminal justice system.  The Anderson book is much better at making the case that “the root cause of wrongful convictions are to be found primarily in the social structure itself, not in individual failings.”⁴

Where Hélèna Katz does excel however is her study on how the system treats the exonerated in their quest to rebuild a life.  She makes the point well that almost invariably the release from prison is the precursor to a further battle with the state to be compensated for the multitude of losses suffered after a false conviction and imprisonment.  Provincial governments are loath to accept responsibility for a failure in their administration of justice.  Inevitably a person upon release will face the daunting task of mounting a civil action for damages that engages another battle against the state and requires funds that the recently exonerated very likely do not have.  While the author does make numerous references to the Federal Provincial and Territorial Guidelines established in 1988 for compensation for the wrongfully convicted, she quite rightly makes the point that any success for an application in this regard is made on a totally discretionary basis.  She also makes clear that for the cases that have made it into the public domain; the political response to assuage the popular press is the appointment of a public commission of inquiry. While these commissions are very good at identifying the reasons a particular fact situation resulted in a miscarriage, they are inordinately expensive and provide relief to a very few.

In providing a very readable account of well-known cases, the author has done a credible job in making the case that “when the justice system makes mistakes, we…need to spot them quickly, own up to and correct them. We owe it to the men and women who have been falsely convicted and languish for years behind bars waiting for justice.”⁵

¹ Report of the Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (2006) at p.167

²Anderson Barry and Dawn Anderson: Manufacturing Guilt: Wrongful Convictions in Canada (Fernwood Publishing, Halifax, 1998). Second Edition (Fernwood Publishing, Black Point N.S., 2009)

³ Source: Statistics Canada. Table 252-0046 - Adult criminal court survey, number of guilty cases, by type of sentence, annual, CANSIM (database), Using E-STAT (distributor) as collected from Adult correctional services survey and Integrated correctional services survey, Canadian Centre for Justice Statistics (CCJS).

⁴ Anderson at p.27

⁵ Katz at p.16