The loss of innocence and the pursuit of compensation for the wrongly convicted (original) (raw)
Related papers
Exoneration and Compensation for the Wrongly Convicted: Enhancing Procedural Justice
Manitoba Law Journal 42(3), 2019
Miscarriages of justice, 1 in the form of wrongful convictions, are evidence of the failings of the criminal justice system. The revolution sparked by the potential of DNA forensic analysis in the 1990s demonstrates on an almost daily basis that errors are frequently made and innocent people are convicted of crimes they did not commit. Furthermore, a growing body of what has been termed innocence scholarship has evinced a discernible number of contributing factors that have influenced wrongful convictions. Despite the fact that this literature has established that those factors routinely cause wrongful convictions, the means to exoneration and compensation are fraught with legal and procedural obstacles. While it has been argued elsewhere that a wrongful conviction, in and of itself ultimately raise questions of legitimacy, 2 the focus of this essay will be on understanding how access to and availability of schemes of post-conviction review and compensation in Canada also raise similar questions.
Wrongful Convictions in Canada
2011
I. INTRODUCTION An awareness of the alarming reality of wrongful convictions in both Canada and other criminal justice systems led the Supreme Court of Canada in 2001 to overturn prior jurisprudence that allowed Canada to extradite fugitives to face the death penalty. 1 The Court decided that extradition to face the death penalty would generally violate the principles of fundamental justice in the Canadian Charter of Rights and Freedoms. 2 The Court stressed that DNA would not be available in all cases, 3 and that even "a fair trial does not always guarantee a safe verdict." 4 This case presents a challenge to all courts and policy-makers to do better in responding to the risk of wrongful convictions. 5 It is also a reminder that all criminal justice systems that use the death penalty run an unacceptable risk of executing an innocent person. Another measure of the recognition of the reality of wrongful
Compensation for Wrongful Convictions and the Innocence Continuum
While an exoneration is welcome relief to the wrongly accused and convicted, more often than not there is a significant lack of access to financial redress for the damages causes by a wrongful imprisonment. One of the fundamental criterion post-exoneration to access a financial remedy is a requirement than an applicant for compensation must prove their factual innocence. The problem inherent therein is that there is no mechanism in the criminal justice system to do so. This is an unprincipled approach in light of the legal effect that the presumption of innocence should have in framing a finding of not guilty. The threshold of factual innocence should be presumed to have been met by whatever finding was made to terminate a criminal prosecution in favor of the applicant. In so doing, the thousands of individuals who are egregiously and wrongly damaged with an accusation of criminality each year will have a worthy and principled opportunity to recoup some financial recovery when the state fails in its quest to prove that accusation.
Over the past decade and a half, people accused of crimes in Canada have increasingly been held in jail prior to any finding of guilt or innocence. Currently, the majority of inmates in provincial jails in Canada have not been convicted of the crime for which they are being incarcerated. In 2009, the political response was the unanimous passage of Bill C-25, The Truth in Sentencing Act, which was based on the premise that the increase in pre-conviction custody was due to the accused “gaming” the system in order to take advantage of preferential treatment of time served prior to conviction. Bill C-25 did not result in a reduction in rates of pre-conviction custody. Examination of interprovincial experience suggests that remand rates are primarily a function of detain/summons decisions by police and the speed with which the court system deals with charges.
Damage compensation for innocent defendants and Convicts in Iran and the Canadian legal system
Technium Social Sciences Journal
In the field of innocent defendants and convicts' damage compensation who have endured further losses due to issue criminal supply contracts or orders execution, their innocence has been cleared by issuing acquittance sentences. It counted as one of the most challenging issues in private and criminal law. In these recent years, based on positive changes in the rules of Iran, a lot of works done for innocent defendants and convicts' damage compensation have endured different and unfair punishments. But no integration or constructive work has been done for guiltless convicts' damage compensation who have endured some parts or all their punishments, and their innocence has been proved but not predicted. The reverse of this matter is true in the Canadian law system. Only a guilty convict who has tolerated some or all parts of unfair punishment deserves to receive damage compensation. This study attempted to research the subject's international binding rules, and many pra...
Public Perceptions of Wrongful Convictions
PsycEXTRA Dataset, 2000
Relatively little research has investigated public perceptions of wrongful conviction. Considering the growing number of exonerees and the amassing literature on wrongful conviction, what does the public think about this issue of failed justice? This article investigates how the issue of wrongful convictions has entered Canadian citizens' consciousness, the areas where the public has more accurate knowledge of wrongful convictions vs. issues in need of greater public education. Moreover, as Canada is not currently bound to compensate exonerees and does not systematically track wrongful convictions, unlike many U.S. states that have compensation statutes and American innocence organizations that publically report increasing numbers of exonerees, it is suggested that this lack of national attention to wrongful conviction leads some Canadians to falsely believe that wrongful conviction is an American -and not a Canadian -problem. Très peu de recherches ont porté sur les perceptions du public quant aux condamnations injustifiées. Compte tenu du nombre croissant de personnes exonérées et de l'accumulation de littérature sur les condamnations injustifiées, que pense le public de cette question où la justice a échoué? Dans cet article, les auteures examinent comment la question des condamnations injustifiées est entrée dans la conscience des citoyens canadiens, les domaines où le public a une connaissance plus précise des condamnations injustifiées par rapport aux questions nécessitant une plus grande sensibilisation du public. De plus, comme le Canada n'est actuellement pas tenu d'indemniser les personnes exonérées et ne suit pas systématiquement les condamnations injustifiées, à la différence de nombreux états américains qui ont des lois sur l'indemnisation et des organisations défendant les droits des innocents qui signalent au public le nombre croissant de personnes exonérées, les auteures suggèrent que ce manque d'attention nationale aux condamnations injus-* Associate Professor,
Manitoba Law Journal Volume 43(3) 2020
Criminal Justice and Evidentiary Thresholds in Canada: The Last Ten Years, 2020
This volume contains papers presented at the Criminal Justice Evidentiary Thresholds in Canada: The Last Ten Years conference, hosted at the Faculty of Law, University of Manitoba. The conference focussed on the evolution of the law of evidence and the sometimes radical transformations it has seen over the last ten years since the seminal decision of R v Grant in 2009, which reoriented the test for exclusion of evidence at trial. The conference explored questions of the conception of knowledge in modern criminal legal proceedings and the changes in the nature of knowing and constructing criminal responsibility over the last ten years as the information age continues to develop the law of evidence. Unparalleled connectivity, state surveillance capabilities, Canada’s commitment to truth and reconciliation with Indigenous communities, and anxieties pertaining to large scale security calamities (like terror events), have altered the landscape in which crime is investigated, and in which evidence is subsequently discovered, and admitted. The conference discussed and unpacked these issues and developed a tremendous body of scholarship which we are proud to present in this volume. i Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law DAVID IRELAND AND RICHARD JOCHELSON 1 Reclaiming Prima Facie Exclusionary Rules in Canada, Ireland, New Zealand, and the United States: The Importance of Compensation, Proportionality, and Non-Repetition KENT ROACH 49 An Empirical and Qualitative Study of Expert Opinion Evidence in Canadian Terrorism Cases: November 2001 to December 2019 MICHAEL NESBITT AND IAN M. WYLIE 111 The Unclear Picture of Social Media Evidence LISA A. SIL VER 155 Cree Law and the Duty to Assist in the Present Day DAVID MILWARD 207 Involuntary Detention and Involuntary Treatment Through the Lens of Sections 7 and 15 of the Canadian Charter of Rights and Freedoms RUBY DHAND AND KERRI JOFFE 249 Forensic Mental Health Assessments: Optimizing Input to the Courts HYGIEA CASIANO AND SABRINA DEMETRIOFF 273 Constructing, Assessing, and Managing the Risk Posed by Intoxicants within Federal Prisons JAMES GACEK AND ROSEMAR Y RICCIARDELLI 295 Mr. Big and the New Common Law Confessions Rule: Five Years in Review ADELINA IFTENE AND VANESSA L. KINNEAR 357 Judicial Constructions of Responsibility in Revenge Porn: Judicial Discourse in Non-Consensual Intimate Image Distribution Cases – A Feminist Analysis ALICIA DUECK-READ 391 Harm in the Digital Age: Critiquing the Construction of Victims, Harm, and Evidence in Proactive Child Luring Investigations LAUREN MENZIE AND TARYN HEPBURN 421 Victim Impact Statements at Canadian Corporate Sentencing ERIN SHELEY
Mind the Gap: Canada's Different Criminal and Constitutional Standards of Fault
University of Toronto Law Journal, 2011
This paper critically assesses the gap between Canada's criminal law standards of fault articulated in the 1950s and 1970s and its constitutional standards of criminal fault articulated in the 1980s and 1990s. This gap is explained in terms of the Court's ambivalence about subjective fault principles as manifested by its acceptance of criminal negligence. It is also explained by the Court's unique treatment of section 7 of the Canadian Charter of Rights and Freedoms as a right that, unlike any other right in the Charter, is only subject to reasonable limitation under section 1 of the Charter in extraordinary emergency situations. The paper then suggests that the gap between criminal and constitutional fault standards is not sustainable and can only be closed if the Court rethinks its approach to the limitation of section 7 rights. Maintenance of the gap may erode respect for common-law presumptions of subjective fault. If this occurs, Canada's apparently robust appro...
Recent Developments in Canadian Criminal Law (2013)
Criminal Law Journal, 2013
This year's review begins by looking at two pressing issues in the Canadian law of sentencing: mandatory minimum sentences and the over-incarceration of Aboriginal offenders. Turning to developments in the substantive law, the article examines the Supreme Court of Canada's recent jurisprudence on the test for causation, looks at the current approach to defining the "ordinary person" for the purposes of the defence of provocation, and canvasses Canada's new provisions governing self-defence. Procedural and evidentiary topics considered in this article include the definition of hearsay and the status of "implied hearsay", developments in the law of informer privilege, and the Supreme Court's recent judgments on the jury selection process and the practice of juror vetting.