Many more wrongful convictions likely, says professor who studies them
Kent Roach weighs in following acquittal of 2 men for a murder they did not commit almost 40 years ago
A University of Toronto professor who studies wrongful convictions says it's difficult to know just how many people have been wrongfully convicted in Canada.
Kent Roach, co-founder of the Canadian Registry of Wrongful Convictions, made the comments following the acquittal of two Saint John men for a murder they did not commit almost 40 years ago.
"In a certain sense, and it's hard to say this after 30 years of injustice, they were the lucky ones," Roach said.
Robert Mailman, 76, and Walter Gillespie, 80, were acquitted last week, after serving roughly two decades in prison. They were incarcerated for the murder of George Leeman, whose body was found in Rockwood Park in Saint John in November 1983.
Roach said Mailman and Gillespie will be added as numbers 88 and 89 to his list.
The oldest on the list dates to the 1950s, but Roach said they started to become more common after the Donald Marshall Jr. case in Nova Scotia. Roach said the list does not represent all wrongful convictions, only the ones where the justice system admitted its mistakes.
"On the one hand, you can say this means that people are finally getting remedies for wrongful convictions, but on the other hand it begs the question of how many wrongful convictions are out there without remedies," Roach said.
He added that Mailman and Gillespie were also represented by two lawyers who lead the field in working on wrongful convictions, which is a resource that not everyone can access.
Roach said he has noticed several patterns in the wrongful convictions he has studied, such as incentivized witnesses, which was a factor in the Saint John case, according the men's lawyer, who said that witnesses took money from police ahead of testifying.
"So, really, the factors in this case — unreliable witnesses and a failed alibi defence — are things that unfortunately we see over and over again in Canada's wrongful convictions, including the now 89 we ... have in our registry," Roach said.
"Certainly the prospect of unreliable witnesses is one that is almost always present in the criminal process," Roach said.
"And human beings are not infallible lie detectors."
Calls for a new system
A change Roach has been advocating is for the creation of a miscarriage of justice review commission. That way, Canadians who believe they were wrongfully convicted can appeal to the commission and not only the justice minister. He said there is a bill calling for this currently before parliament.
"We're hoping that once this bill is passed, that especially if the commission is properly funded and staffed, a lot more people will eventually get the investigation that took far far too many decades for Mr. Mailman and Mr. Gillespie," Roach said.
Wrongful convictions that are remedied by the justice system are rare, Roach said.
When asked if Mailman and Gillespie will ever see compensation for their wrongful conviction, Roach said that remains unclear. Only about half of the cases on his list ever saw payment.
There is also a 1988 Canadian guideline capping payments at $100,000, but Roach said it is not legally binding.
"We need to look at the whole issue of compensation because 1988 was obviously a long time ago, and we didn't realize how prevalent wrongful convictions were in our justice system in 1988," Roach said.
"Compensation is an even tougher road than getting exoneration," he said. There's the possibility of bringing a lawsuit against the government or police, "but after so much injustice by the legal system, that's often too much to ask."
He said there's also nothing stopping the province from paying the two men voluntarily.
"But given the situations that they're facing, including illness, it needs to be quick. So really the only reasonable prospect is if the government decides to do the right thing and enter into some sort of compensation," Roach said.
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With files from Rachel Cave