Writing the Wrongs: The Role of Defence Counsel in Wrongful Convictions - A Commentary

Introduction The Supreme Court of Canada has recognized the importance of wrongful convictions and the fallibility of the criminal justice system: Legal systems have to live with the possibility of error. The unique feature of capital punishment is that it puts beyond recall the possibility of correction. In recent years, aided by the advances in the forensic sciences, including DNA testing, the courts and governments in this country and elsewhere have come to acknowledge a number of instances of wrongful convictions for murder despite all of the careful safeguards put in place for the protection of the innocent. The instances in Canada are few, but if capital punishment had been carried out, the result could have been the killing by the government of innocent individuals. The names of Marshall, Milgaard, Morin, Sophonow and Parsons signal prudence and caution in a murder case. Other countries have also experienced revelations of wrongful convictions, including states of the United States where the death penalty is still imposed and carried into execution. (United States v. Burns at 106) It is paramount that any lawyer attempting to prove the innocence of a wrongly convicted person understand the common systemic problems that these cases present. This commentary will review these important systemic factors and consider how they present special challenges to lawyers who work with such cases. The role of defence counsel will also be examined, particularly in relation to the obstacles they face that are intrinsic to cases involving wrongful conviction. Finally, the importance of establishing an independent commission in Canada, similar to the Criminal Cases Review Commission in the United Kingdom, will be highlighted. Systemic problems The conviction of innocent persons for crimes they did not commit calls into question the integrity and legitimacy of our criminal justice system. Unfortunately, the conviction of the innocent occurs far too often. Many police officers, Crown counsel, government officials, and even average citizens believe that these cases are anomalies. In fact, Commissioner Kaufman noted that early in the Morin Inquiry "there were undoubtedly some who still believed, despite Guy Paul Morin's exoneration through DNA testing, that he was nonetheless guilty" (1998b: 12-13). (1) Moreover, some government and criminal justice officials argue that the exposure of cases of wrongful conviction demonstrate that the system functions well. If this were in fact the case, many innocent people would not be spending years in prison for crimes they did not commit. This faulty logic serves as a major impediment to the recognition and exposure of wrongful convictions. The first inquiry called to address the systemic factors that contributed to a wrongful conviction in Canada was the Marshall inquiry in 1989. This inquiry examined the circumstances surrounding the murder conviction of Donald Marshall in Nova Scotia (Royal Commission, 1989). Since that time two major public inquiries have been commissioned, both making significant recommendations for change. (2) These inquiries have played a crucial role in exposing and highlighting the common causes of wrongful conviction in Canada.3 For example, Commissioner Kaufman concluded his report as follows: The case of Guy Paul Morin is not an aberration. By that, I do not mean that I can quantify the number of similar cases in Ontario or elsewhere, or that I can pass upon the frequency with which innocent persons are convicted in this province. We do not know. What I mean is that the causes of Mr. Morin's conviction are rooted in systemic problems, as well as the failings of individuals. It is no coincidence that the same systemic problems are those identified in wrongful convictions in other jurisdictions worldwide. It is these systemic issues that must be addressed in the future. …