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Wrongful convictions, right to silence explored by new law journal

published March 1, 2021

“Wrongful convictions occur in every country in the world. Canada, despite its claim to be a just society, is no exception” – Former Chief Justice of the Supreme Court of Canada Beverley McLachlin.

So reads the foreward in the inaugural issue of The Wrongful Conviction Law Review (WCLR), edited by Algoma University’s Myles McLellan.

“We no longer accept the occasional wrongful conviction as inevitable,” McLachlin states. That’s because the common law and constitutional safeguards such as the principles of fair trial, cross-examination, burden of proof, and guilt beyond a reasonable doubt are insufficient to cope with the causes of wrongful conviction, such as tunnel vision, eyewitness misidentification, unreliable science, prosecutorial and police misconduct, false confessions, disreputable witnesses, and inadequate disclosure.

“Prosecutors, defence lawyers, judges and justice officials find themselves dealing with the scourge of wrongful convictions on a daily basis,” she adds, saying that they “desperately need access to research and thinking on the causes and consequences of wrongful convictions.”

As McLachlin notes, WCLR provides a forum for addressing the injustice of miscarriages of justice prevalent “throughout the world.” But she stops short of identifying one of the greatest faults in criminal justice procedure commonly encountered in Canada: the inability of defence counsel to attend the interrogation of their clients.

No lawyer at police interviews

In her powerful article on the right to silence, Kathryn Campbell addresses this concern, suggesting that the Supreme Court of Canada has let the issue slip away even as other countries – Scotland in particular – have introduced legislation so police interview procedures conform to broader notions of human rights.

The first two issues of the fledgling journal were dominated by articles on the American experience of “innocence conviction scholarship” including a biography by Marvin Zalman of Edwin Borchard, who in the early 1930s identified 65 cases of wrongful conviction (which, he admitted, merely “scratched the surface”). Zalman identifies the notorious Sacco-Vanzetti case in Boston as being the catalyst for Borchard researching his book.

“Their executions after failed appeals and clemency requests in 1927, was the most celebrated U.S. political trial in the first half of the twentieth century,” Zalman notes.

Other articles dealt with more recent American wrongful conviction cases spanning the last three decades, focusing on DNA evidence, prosecutorial involvement in exoneration and comparative law between the United States and Italy, in which those two countries “learned from each other’s mistakes.”

The second issue focused on racial stereotyping in the U.S., including evidence of “tunnel vision in the emergency room,” where, it is alleged, stereotyping all too often contributes to misdiagnoses of child abuse. 

The wrongfully convicted

A team from New Jersey focused on the lack of support for the wrongfully convicted when they are eventually released from jail. “They open the door, kick you out, and say, ‘Go’” – highlighting “the urgent need to provide support to individuals who have been victimized by the very system that is supposed to protect their individual rights.

“Exonerees are often stigmatized, isolated, denied access to government benefits, suffer additional law enforcement scrutiny, and face significant healthcare barriers,” the authors write.

Detailed articles concerned identifying and prosecuting the actual perpetrators of crimes that have resulted in conviction and exoneration of the innocent, complete with charts illustrating the dismal success rate. Jennifer Weintraub and Kimberly Bernstein note that prosecutions of the actual perpetrators are hampered by statutes of limitations, loss of witnesses and fading memories.

Supported by multiple statistical charts is a separate article about efforts to bring officials to task when their actions and decisions contribute to wrongful conviction. That includes missteps by the police, prosecutors, judges, pathologists and defence lawyers. This piece is particularly timely in that it “calls for social justice and police accountability in the wake of the killing of George Floyd and the shooting of Jacob Blake.”

The first issue of WCLR culminated in a book review of Kathryn Campbell’s Miscarriages of Justice in Canada: Causes, Responses, Remedies. Campbell is featured again in the third issue with the first in-depth treatment in the new journal of the Canadian experience with wrongful conviction – in particular, the role of abuses of the right to silence and the right to counsel.

No right to counsel during interrogation

Canada lags far behind Scotland and other European countries when it comes to providing the right to counsel for the very reason that in Canada, lawyers are not allowed to be present during police interrogations of suspects.

The Canadian practice of interrogation until the suspect eventually caves leads all too often to false confessions by those simply hoping to end the process, in the naive belief that in the long run, the system of justice will catch the error and rectify the wrong. As the former chief justice makes clear in her foreword, this expectation is too optimistic.

In the U.K., where the accused has the right to have counsel present, the lawyer can intervene when trickery is perceived or where the accused is confused or overanxious. In Canada, persistent interrogation (which the police and courts euphemistically insist on calling “interviewing”) can result in exhaustion and frustration to such a degree that the individual loses control of what he is saying as investigators keep up the pressure over many hours.

The constitutional right to silence is closely tied to the constitutional right to counsel, Campbell suggests. However, in practice the accused only get a telephone call to a lawyer at the beginning of the process. The best advice they can give – to say nothing – is especially difficult for suspects who are innocent and therefore know that police bullying is based on a terrible mistake.

‘Curl up in a fetal position’

The advice of one Canadian lawyer was “take my card, put it between your teeth and bite down on it.” Another was quoted as advising his clients, “curl up in a fetal position and don’t say anything.” This, of course, is guaranteed to result in the police concluding that the accused is “uncooperative.” In the absence of a lawyer, this mischaracterization will move the police to increase, not decrease, the pressure.

“The police interview, in and of itself, is a coercive experience and only those suspects with a particularly strong constitution may be able to effectively withstand the effects of forceful and insistent police questioning,” Campbell says. “The right to silence and the right to counsel can be eroded by police in their zeal to obtain a confession and ultimately a conviction, whether rightfully or wrongfully. Vigilance is required to hold state actors (police and prosecutors) accountable.” 

Canada should follow the British model: counsel should be allowed and encouraged to attend police interviews of their clients. For this to happen, legislative changes must be made, hopefully in response to clear direction from the Supreme Court of Canada.

• Gary Botting is the author of Wrongful Conviction in Canada (LexisNexis) and is an editorial board member of The Wrongful Conviction Law Review.