University of Toronto Faculty of Law Professor Kent Roach has spent decades sounding the alarm on wrongful convictions in Canada.
His new research underlines the dangers of wrongful convictions based on false guilty pleas or imagined crimes that never happened.
“In judgments, the courts recite ‘the facts’ but sometimes the legal system gets ‘the facts’ wrong and the wrongfully convicted and their families suffer as a result,” says Roach.
His latest book – Wrongfully Convicted: Guilty Pleas, Imagined Crimes, and What Canada Must Do to Safeguard Justice (Simon & Schuster 2023) – bookends his trilogy on Canada’s criminal justice system with previously published books on Canadian policing and the Gerald Stanley and Colten Boushie case.
All three books strongly advocate for policy change and reform and were published in the span of less than five years.
Canadian Justice Indigenous Injustice (McGill University Press 2019) was shortlisted for the Shaughnessy Cohen Prize for Political Writing. Published just last year, Canadian Policing: Why and How It Must Change (Irwin Law Inc. 2022) was a finalist for both the Balsillie and Donner prizes for public policy books.
The books also grapple with injustice towards Indigenous people in Canada’s justice system.
“Wrongful convictions affect the so-called ‘usual suspects’ – and in Canada, the ‘usual suspects’ are too often Indigenous, racialized, socio-economically marginalized or suffering with mental health challenges,” says Roach.
Another thread is the necessity of police reform. He says police can still use aggressive and deceitful ways of questioning suspects that are not always prohibited by judicial regulation of police interrogation techniques.
He adds one of the lessons to be learned from Wrongful Convictions is that police should not be so aggressive when interviewing people who are vulnerable, have cognitive challenges, or are suffering from addiction or mental health issues. He says another lesson is that police need to consider alternative suspects and be aware of stereotypes that associate groups and individuals with crime.
“Police are subject to a very natural, human tendency of zeroing-in on a suspect and interpreting evidence so that it confirms the suspect's guilt while disregarding evidence that points in another direction, such as, an alternative suspect,” he says.
He recommends computerized case management tools, and although not perfect, they are currently underutilized. Such tools can provide case-linkage and analysis to help guard against tunnel vision or confirmation bias.
“If we wait for the courts to correct these errors, it's too late. The courts alone cannot produce good policing.”
In the wake of concerns about Charles Smith's forensic pathology, Roach was appointed research director of the Goudge Inquiry into Pediatric Forensic Pathology in Ontario (2007-2008). He says the focus of the inquiry was on systemic concerns.
In Wrongfully Convicted, he revisits the cases that were the result of Smith’s misleading forensic evidence. A section of the book examines ‘imagined crimes’ that never happened. Such crimes constitute one-third of the wrongful convictions recorded in the Canadian Registry of Wrongful Convictions that that Roach co-founded with Métis lawyer, Amanda Carling (JD 2012), a graduate of the JD program at U of T's Faculty of Law. Roach and Carling co-taught a seminar on wrongful convictions at U of T, which led to the development of the registry.
“Smith had suspicions directed towards young, single mothers and racialized men. The system which is designed to be a check on mere suspicions, didn't stop Smith's.”
Roach says there are more recent cases of ‘imagined crime’ wrongful convictions. In fact, three more cases involving such imagined crimes will soon be added to the registry with the help of U of T JD alumni Jessie Stirling (JD 2020), Joel Voss (JD 2020) and Sarah Harland-Logan (JD 2014).
The registry was first launched this past February with 83 cases. The three new cases will bring the total to 86. Two cases involved Black parents wrongfully convicted in the death of their child and another case of a woman with intellectual challenges who is unhoused.
Roach explains that both the registry and his book Wrongfully Convicted are designed to raise awareness that wrongful convictions are not just a historical or U.S. problem.
“I want Canadians to know that, we too, have problems in our criminal justice system. The registry is just the tip of the iceberg," he says.
"The real question is, how large is the iceberg? We really won’t know that until we have a better system that we do now.”
Just days before the registry’s launch, the federal government introduced legislation to create a federal commission to review potential cases of wrongful conviction.
Roach led research on A Miscarriages of Justice Commission, a report filed in November 2021 that advocated for the creation of an independent federal commission to consider cases of wrongful conviction.
He says the announcement of a permanent federal commission to investigate allegations of wrongful convictions is an important next step.
“It's a long, hard climb to reverse or remedy a wrongful conviction."
He says the proposed commission should be able to help people, but it needs to be properly funded and staffed. The commission should be made aware of the realities of wrongful convictions including false guilty pleas and crimes that never happened.
He adds, "We also need to find a way to compensate the wrongfully convicted more quickly and humanely for the terrible injustices done, in all our names.”
