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Kent Roach: Canada’s wrongful conviction problem isn’t getting the attention it deserves

Commentary

As part of a paid partnership, this month The Hub will feature excerpts from this year’s five shortlisted books for the Donner Prize, awarded to the best public policy book in Canada. Our podcast Hub Dialogues will also feature interviews with the authors. The winning title will be awarded $60,000 by The Donner Canadian Foundation on May 8th.

The following is an excerpt from Wrongfully Convicted: Guilty Pleas, Imagined Crimes and What Canada Must Do To Safeguard Justice (Simon and Schuster, 2023).

Since my first year of teaching criminal law in 1989, I have used a case study of how Donald Marshall Jr. was wrongly convicted of murder in 1971. The case study replaced my colleague Marty Friedland’s previous case study of Steven Truscott, who was sentenced to death in 1959 when he was fourteen years old. Truscott was finally acquitted with help from Friedland’s daughter in 2007 of the still-unsolved murder of a classmate. Both Marty and I wanted our students to study un-true crime as well as true crime. They need to know that the “facts” presented in the appeal court judgments they read are contested. Sometimes these facts are not true.

Both the Marshall and the Truscott cases were who-done-it? murders that convicted the wrong person. Many people continue to associate wrongful convictions exclusively with the mystery of “wrong-person wrongful convictions.” These convictions are a staple of true crime novels and movies. But wrongful convictions are not entertainment. They are about human mistakes and human suffering. These types of wrongful convictions still occur, but we now know about other, even more insidious types of wrongful convictions. 

False guilty pleas

The vast majority of Canada’s remedied fifteen guilty plea wrongful convictions have involved women, Indigenous or other racialized people, and those with cognitive difficulties. Their stories need to be understood to ensure that we do not blame victims for making understandable choices. Canadians need to understand the hard truth that sometimes a false guilty plea to accept a deal to a reduced sentence is a completely rational decision.

Imagined crimes

In some cases, people plead guilty or are convicted after a trial even though there was no crime.  In other words, they are convicted of un-true crimes that are imagined by police, prosecutors, expert witnesses, judges, and juries. Such imagined crimes constitute twenty-eight of the eighty-three wrongful convictions presently in the Canadian Registry of Wrongful Convictions. In seven of these cases, the victims of the justice system’s unfounded suspicions were Indigenous. They include two Indigenous men and one Indigenous woman who were wrongfully convicted of murdering young children in their care when the children died from undetermined causes or by accident. The racist stereotype of Indigenous people as bad parents prone to violence is unfortunately as old and pernicious as the residential schools.

The stories contained in the Canadian registry of wrongful convictions have made me more disillusioned about the Canadian criminal justice system than I was as a younger law professor. I am not, however, completely disillusioned. Not yet. Canada can do better to prevent wrongful convictions, though we will never eliminate them. The Supreme Court recognized that in 2001 when it wisely took the death penalty off the table. We know that wrongful convictions are inevitable. This makes it imperative to find quicker and better ways to correct them and to attempt as best we can to make amends for the incalculable damage they cause.

During the summer of 2021, I was privileged to assist Justice Harry LaForme and Justice Juanita Westmoreland-Traore as they conducted public consultations about how best to improve Canada’s approach to discovering and correcting wrongful convictions Under the existing system, applicants who have exhausted their normal appeals must apply to the federal minister of justice for what is described in the Criminal Code as the “extraordinary remedy” of a new trial or a new appeal. They must effectively identify new evidence to justify their applications, though most of them will lack the funds and the necessary powers to find the new evidence. Crucial evidence may, moreover, be buried in police and prosecutors’ files or even destroyed.

During the COVID-19 pandemic, Zoom allowed us to hold forty-five roundtables that involved 215 people including 17 exonerees. The exonerees told us they did not care for the federal government’s proposed name for a new review body, the Criminal Cases Review Commission, even though this same title is used for similar bodies in England, Scotland, Norway, and New Zealand. They pointed out they were people, not criminal cases. They wanted their convictions reinvestigated and retried. They did not want their cases to be the subject of desktop reviews by bureaucrats in Ottawa. They also told us about the inadequate support they received. Many of them obtained no compensation for the injustice they lived. Those who did obtain compensation often had to wait years. They generally had to threaten to sue or actually sue in court the governments that had wrongfully convicted them.

Whereas previous Canadian commissions of inquiry greatly admired the English Criminal Cases Review Commission, which has been operating since 1997, we heard it has suffered from massive budget cuts that have increased caseloads and required most applications to get nothing but cursory reviews.

We were impressed by the New Zealand commission, created in 2019. We spoke to its chief commissioner as well as with two Maori commissioners. They genuinely wanted to treat applicants, including those from the over 50 percent Maori prison population (compared to 17 percent of the population), with more respect and dignity than these people received from the rest of the criminal justice system. At the same time, we also heard alarming concerns that the New Zealand commission was already overloaded with applications.

The uncertainty surrounding the full implementation of the report is one reason why I agreed to write this book. New legislation to establish a new commission has the potential to be the most important law reform with respect to wrongful convictions in a generation. At the same time, if the new commission is underfunded and does not have sufficient powers, the situation could possibly become worse for the wrongfully convicted. At the very least, the hopes that David Milgaard and other exonerees had for the commission would not be realized. The stakes could not be higher.

Another reason I am writing this book is that the wrongful convictions that have been unearthed and described in the Canadian Registry of Wrongful Convictions should be better known. Even recently corrected wrongful convictions are not well publicized or known. Without the clear-cut stories provided by DNA exonerations and a thriving investigative media, wrongful conviction amnesia may be setting in.

Abdi Aidid and Benjamin Alarie: AI is about to fundamentally transform our legal system—for the better

Commentary

As part of a paid partnership, this month The Hub will feature excerpts from this year’s five shortlisted books for the Donner Prize, awarded to the best public policy book in Canada. Our podcast Hub Dialogues will also feature interviews with the authors. The winning title will be awarded $60,000 by The Donner Canadian Foundation on May 8th.

The following is an excerpt from The Legal Singularity: How Artificial Intelligence Can Make Law Radically Better, by Abdi Aidid and Benjamin Alarie (University of Toronto Press, 2023).

We are on the path to the legal singularity. Advances in technology, especially the improvement and widespread proliferation of artificial intelligence (AI), are driving us relentlessly down this path. By legal singularity, we mean a stable and complete legal order, capable of addressing and resolving practically all types of legal uncertainty in real time and on demand. Over the coming decades, the emergence of this legal singularity will fundamentally transform our existing legal systems and, with them, our societies.

The stakes are high. Navigating the path to the legal singularity safely is necessary for humanity to flourish during the rest of the twenty-first century and beyond. For society to evolve and leverage these new technologies effectively, we will need to develop an ever deeper and more responsive legal infrastructure.

The good news is that the very technologies that are upending our existing practices will also enable us to construct the deeper and more responsive legal infrastructure that is sorely needed. The stability and resilience of the legal singularity will require more adaptability in our legal systems than they exhibit today. Fortunately, if we can get things right, the technology for a profoundly beneficial legal singularity will be in place just as we need it most.

This book is the first step towards articulating a vision of a legal singularity and motivating a discussion about its pathways and consequences. The legal singularity is the idea that law will reach functional completeness, in the sense that practically any legal question will have an instantaneous and just resolution. In the legal singularity, the law will be knowable with a high degree of certainty—perhaps not perfect certainty, but practical certainty—for much of human activity.

The legal singularity will evolve and be able to absorb and accommodate changes to our social, economic, and technological contexts. If it is successful, it will not be dogmatic. Indeed, the nature of the legal singularity will be to provide quiet confidence that justice will prevail. Disputes will be resolved justly and in the best interests of society. Powerful actors will be held accountable to a greater extent than they are even in today’s most advanced legal systems. Weaker parties will have their positions bolstered.

The legal singularity will require deliberation, experimentation, wisdom, knowledge, and the cumulative efforts of governments, academia, and industry over the coming years. There will be problems. There will be dead ends. There will be experimentation, failures, and more experimentation. Ultimately, there will be significant progress. The good news is that many efforts are being undertaken even as we write. With this book, we aspire to echo and amplify those who seek to leverage technology as a means of improving law. To this, we add our own vision of how technology, ambitious problem-solving, and responsible stewardship will guide law towards the legal singularity.

Our goals with this book are threefold. The first is to firmly root the legal singularity in the popular imagination as an idea that we collectively must address to ensure that the world’s legal systems undergo changes that are in alignment with humanity’s interests as artificial intelligence and machine learning continue to improve. If managed deftly, these technological developments in artificial intelligence and machine learning can and will lead to astounding improvements in social justice and distributive justice, and will contribute to widespread human flourishing. This is, of course, an optimistic and ambitious vision. Others have pointed out less rosy possible scenarios; our view is that those scenarios are avoidable if efforts are undertaken now to help to navigate towards positive outcomes.

Our second aim is to press the point that technology-based changes to our legal systems are not simply a possibility to be discussed on a theoretical level by the intellectually curious. It is tempting for many in the legal profession to want to assume that we could simply press “pause” on technological progress and the concomitant evolution of our legal systems until a sufficiently widespread level of practical confidence and psychological comfort is reached. Many would prefer to defer serious consideration of the uncomfortable topics that are explored in this book until they are first convinced that (1) the status quo is unsustainable; (2) the kinds of changes that are being driven by technological advances have been thoroughly tested and designed with normative and conceptual coherence; and (3) an implementation plan has been devised to accommodate these changes in a manner that will be minimally disruptive to the existing legal order. These instincts are understandable. Unfortunately, the context in which law functions and operates is changing too quickly. 

Our third and final aim with this book is to join the emerging international movement in academia, government, the judiciary, and civil society, and among actors in the legal system more generally, to secure the safest, wisest, and most effective path to the legal singularity. The forces driving us towards legal singularity are persistent and powerful: there is no “off” switch to the internet; computing power looks to continue its exponential growth. 

The shape of an eventual legal singularity can undoubtedly be influenced for the better by careful monitoring, concerted action, and thoughtfulness (or, for the worse, by the abuse of technology to oppress or suppress populations). It is in our collective interest to work to forge and secure the best-possible path to legal singularity.