The UBC Innocence Project at UBC’s Peter A. Allard School of Law provides assistance to those who have been convicted of a serious crime in B.C. and continue to maintain their innocence and pairs students with criminal defence lawyers to review and investigate claims of wrongful conviction with a view to applying to the federal Minister of Justice for a review under s. 696.1 of the Criminal Code, which is known as a 696 application.
Such an application requires the identification of “new matters of significance” not previously considered by the courts or the minister — and without new information identifying new matters of significance, there is no prospect of a successful application.
And as a recent report co-authored by UBC Innocence Project Director Tamara Levy and former UBC law student Alexandra Ballantyne notes, this creates a classic “Catch-22” situation — access to disclosure is typically required to identify or uncover the matter of new significance, but there is no statutory obligation which compels Crown counsel or police organizations to provide this disclosure. And that has led to lengthy delays, sometimes taking years, in obtaining information and documentation that could help a person trying to prove their innocence.
UBC Innocence Project Director Tamara Levy
To that end, the authors make a number of recommendations on how to improve the system of disclosure in a post-conviction context. One of them is amending federal legislation on access to information and privacy which recognizes the unique nature of post-conviction review where a miscarriage of justice is being claimed to allow wrongful conviction review organizations with counsel involved to have full access to relevant police investigative files and discipline records.
Ballantyne said there is a human cost to delay, noting that even if there is an exoneration in the end, people are not going to get the time they spent in prison back.
“Once you’ve gone through the appellate process it’s not that disclosure ends — there are some common law obligations — but it’s never been put into statute,” she said. “That’s a huge issue, and if we had a statutory mechanism that says in certain circumstances you need to disclose, that would go a long way to us being able to get the materials that we need.”
The report also recommends that, where miscarriage of justice is being claimed and the conviction rested on one or more of the classic hallmarks of wrongful conviction — such as a questionable identification process or a Mr. Big undercover operation — the federal Criminal Conviction Review Group (CCRG) should order full disclosure of the Crown and police investigative files without the requirement that the applicant first identify new matters of significance.
And Levy said another important step is setting up an independent accountability position in every police organization where external counsel, separate from those in charge of the prosecution, can review police files in homicide cases for case relevant information before the material is sent to the Crown.
“Evidence is not disclosed to the defense or to the Crown when it is identified by the police as not being relevant to the investigation. But unfortunately, that relevance determination is often coupled with a mindset where they are just focusing on one theory of the case and ignoring anything that doesn't fit with their theory,” she said. “And that is why a devil's advocate position would be extremely useful.”
Although there is scant empirical evidence on how prevalent a problem wrongful convictions are in Canada — as opposed to the U.S., where more resources have been dedicated to the issue — the paper shows that south of the border scholars have estimated that wrongful convictions may be as high as one per cent of all convictions, and even if the number of Canada is half that estimate it would still result in approximately 70 miscarriages of justice per year.
Levy said the UBC Innocence Project plans to continue advocating for the recommendations in the report, and she also indicated her support for Bill C-40, the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard's Law), which is currently before Parliament and would amend the Criminal Code to establish an independent commission to review, investigate and decide which criminal cases should be returned to the justice system due to a potential miscarriage of justice.
It is important to recognize the criminal justice system is run by humans and therefore fallible, said Ballantyne.
“Often I think what’s happening is tunnel vision and the different biases that people may bring to an issue. And that’s not even a conscious, malicious action — it’s kind of just what happens when you’re wrapped up in an investigation for a long period of time,” she said. “We know much more today about these types of phenomena and how they impact people, so we are looking for more of a recognition of the fallibility of criminal justice system. And I think the issue is not so much that the mistakes were made, but how do we remedy them quickly, and in a way that's going to have the least amount of harm to these individuals who have been wrongfully convicted.”
The report was funded by the Canadian Bar Association’s Law for the Future Fund.
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