Chapter 1 – Introduction

In the fall of 2002, the Federal/Provincial/Territorial Heads of Prosecutions Committee established a Working Group on the Prevention of Miscarriages of Justice in response to a number of wrongful convictions that had been identified and studied across the country. The Working Group was given the mandate to develop a list of best practices to assist prosecutors and police in better understanding the causes of wrongful convictions, and to recommend proactive policies, protocols and educational processes to guard against future miscarriages of justice.

Two years later, the Working Group, composed of senior police and prosecutors from across the country, completed and presented the Report on the Prevention of Miscarriages of Justice.^{Footnote 1} It was released to the public by Federal, Provincial and Territorial Ministers Responsible for Justice at their annual meeting on January 25, 2005.

The 165-page Report comprehensively explored common causes of wrongful conviction, including tunnel vision, faulty eyewitness identification and testimony, the phenomenon of false confessions, the use of in-custody informers, the limits of forensic evidence, and the frailties of “expert” testimony. The findings and recommendations made by commissions of inquiries into wrongful convictions throughout Canada and internationally were collected and examined. Most importantly, the Report provided clear, comprehensive and practical recommendations for improvements to the criminal justice system which were designed to reduce the likelihood of wrongful convictions.

The Ministers lauded the strong collaboration that produced the Report, viewing it as “a clear signal that prosecutors and police take the issue of wrongful convictions seriously.” Every prosecution service across the country provided its prosecutors with a summary of the Report. The Canadian Association of Chiefs of Police (CACP) issued a news release welcoming the Report and asking all police agencies to review their policies and procedures to ensure consistency with the Report’s recommendations.^{Footnote 2} Then CACP President Edgar Macleod stated:

It is important that all players in the justice system – police, prosecutors, the judiciary and defence bar – work together and thereby effectively reduce the risk of wrongful convictions.

Nationally, the Report has been cited at all levels of Court, including the Supreme Court of Canada, the Ontario Court of Appeal,^{Footnote 3} Ontario Superior Court of Justice,^{Footnote 4} Quebec Superior Court,^{Footnote 5} British Columbia Provincial Court^{Footnote 6} and Manitoba Provincial Court.^{Footnote 7} It has been studied at conferences in several countries, and is now part of the curriculum in several law school courses dedicated to the study of wrongful convictions.

Following release of the Report, each prosecution service (federal and provincial) conducted an in-depth review of its policies to assure compliance with the recommendations. For example, the Federal Prosecution Service (now Public Prosecution Service of Canada) amended several chapters of its Deskbook to incorporate the findings of the Report. In Ontario, the Attorney General established the Ontario Criminal Conviction Review Committee (OCCRC) to advise and develop proactive strategies to prevent miscarriages of justice and to look into specific allegations of wrongful convictions. Also in Ontario, the Justice Excellence portfolio was created to, among other things, develop Crown policy and an education plan to ensure Ontario prosecutors have the most current understanding of issues contributing to potential wrongful convictions. The Office of the Attorney General in New Brunswick established the Prevention of Wrongful Convictions Committee. In Alberta, the Standing Committee on Prosecutions and Enforcement (SCOPE) established a sub-committee to review the Report and recommend to what extent the recommendations should be implemented by police and prosecution services in Alberta. Several services are now adding separate chapters in their policy manuals on preventing wrongful convictions

Similarly, many police forces conducted in-depth reviews of the recommendations. The Vancouver Police Department (VPD), for example, developed a half-day training module titled “Preventing Wrongful Convictions through Excellence in Investigations” that is taught as part of its Investigators’ Program. The module is entirely focused on the common causes of wrongful convictions and the best practices to prevent them in the conduct of criminal investigations. The Calgary Police Service created an e-learning module on Miscarriages of Justice, which is mandatory for all members to complete.

In his detailed review of the recommendations,^{Footnote 8} Professor Christopher Sherrin observed that the Report included “very commendable and enlightened recommendations that will, if followed, lead to more accurate fact-finding and determinations of guilt and innocence.” Sherrin observed that one of the most positive aspects of the Report was its very existence: “The fact that the prosecutorial arm of the criminal justice system would devote significant time and energy towards the prevention of miscarriages of justice can only be applauded.”

He concluded:

The Report on the Prevention of Miscarriages of Justice is a highly welcome document that should make a positive contribution to the fight against wrongful convictions. Indeed, some of the available criticisms are over what it does not include rather than what it does. However these omissions are important and the remaining imperfections must be addressed. The Report has the chance to become a key standard by which the actions of police and prosecutors are judged. Amendments are necessary to make sure that it is worthy of that designation.

The National Criminal Justice Section of the Canadian Bar Association appreciated the Report’s “many practical suggestions” for achieving the goal of avoiding miscarriages of justice and commended the Working Group on its recommendations.

The Supreme Court of Canada cited the Report in the important case of Hill v. Hamilton-Wentworth Regional Police Services Board,^{Footnote 9} where it observed that “even one wrongful conviction is too many, and Canada has had more than one. Police conduct that is not malicious, not deliberate, but merely fails to comply with standards of reasonableness can be a significant cause of wrongful convictions.”

In short, the Report has had a significant influence and has been an important catalyst in shedding light on the causes and circumstances leading to wrongful convictions. While such cases are mercifully infrequent, the troubling number of Canadians convicted of crimes of which they are factually innocent has heightened the urgent need for implementation of the Report’s recommendations.

The 2005 Report suggested that its recommendations be continually reviewed and updated in order to incorporate developments in the law and technology and recommendations made by subsequent commissions of inquiry. It was recommended that, at a minimum, a full review should take place five years after the Report’s publication.

As will be seen in this update of the 2005 Report, the prevention of miscarriages of justice remains an overarching goal in criminal justice. The format of this update mirrors the original report: it provides a summary of developments in the law and reports on efforts to implement the 2005 recommendations. Those recommendations are re-examined in light of events over the past six years and, where appropriate, modifications are suggested.

An important theme that was emphasized in the 2005 Report was vigilance by all justice system participants in seeking to prevent wrongful convictions from occurring. It stated:

Everyone involved in the criminal justice system must be constantly on guard against the factors that can contribute to miscarriages of justice and must be provided with appropriate resources and training to reduce the risk of wrongful convictions. Indeed, the Working Group believes that individual police officers and prosecutors, individual police forces and prosecution services, and indeed the entire police and prosecution communities, must make the prevention of wrongful convictions a constant priority.^{Footnote 10}

There now exists a higher level of awareness than ever before among Canadian police and prosecutors about the causes of wrongful convictions and what can be done to prevent them. The issue of wrongful convictions has achieved an unprecedented prominence in discussions at the highest level of police and prosecution organizations. Through the Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions, there is now a network of senior police and prosecution officials with expertise in these issues, which meets regularly to discuss best practices on the prevention and detection of wrongful convictions. As set out in Chapter 10, there has been a phenomenal level of educational activity among police and prosecutors about the causes of wrongful convictions. New recruits and veterans alike now receive regular training on the factors that contribute to wrongful convictions.

The 2005 Report stated that it “should not be viewed as a beginning or a starting point, but as another stop along a well-established road.”^{Footnote 11} As this update illustrates, much progress has been made along that road. Nevertheless, the Subcommittee recognizes that, as a quintessentially human endeavor, the investigation and prosecution of crime brings with it the possibility of error. Therefore, constant awareness of the risk factors common in wrongful conviction cases and continued vigilance by key criminal justice players in guarding against them is crucial to ensuring the integrity of the criminal justice system. The human cost of one wrongful conviction cannot be tolerated. Our society cannot afford to let justice fail.