Kent Roach kent.roach@utoronto.ca

• Potential next wave of wrongful convictions scholarship
• Criticisms of traditional focus on case studies and broad causes (Leo and Gould, 2009)
• But not social sciences: more fine grained examination of law and politics including the debate over factual innocence (Naughton,
2010)

• Goudge Commission Research studies, 2008
• Roberts and Weathered, 2009
• Sangha, Roach and Moles, 2010
• Special Issues CLQ and Cincinnati Law Review from 2011 Innocence Project conference
• Roach, 2013 on Canada-US
• Other examples?

• Tushnet, 2008
• Functional similarities such as causes
• Though Colvin, 2009 warnings of dangers of universalizing the American experience and applying it to Australia: see also Findlay, 2003 review of NSW DNA
• Expressive differences in legal systems

• Hirshl, 2014 most similar case principle
• Two countries many similarities
• Interesting constitutional differences
• Australia and state jurisdiction over criminal law
• Canada and its Charter or constitutional bill of rights
• Also different role of juries

• Hirshl, 2014 warns against “World Series” approach that only focuses on a few common law jurisdictions
• France, Italy and approaches to finality and trial de novo
• China’s recent recognition of wcs
• Countries where wcs not (yet) recognized such as South Africa, Singapore, India….

• Resistance to idea that there has been wrongful convictions
• In Canada Marshall, 1983 blame Marshall and
Milgaard, 92 until 97 DNA also maintain presumption of guilt after conviction quashed
• Similar to Mallard, 2003 WA and 2005 HC who is even detained after conviction quashed
• Why has Australia apparently forgotten its early experience with Splatt and Chamberlain?

• In Canada, public inquiries such as Marshall,
Morin and Sophonow make it difficult to deny wcs
• FPT, 2004 senior prosecutors prepare 155 page report based on these 3 inquiries

• In Canada, some early cases including Morin,
Milgaard, Simon Marshall in Quebec, Driskell and Unger in Manitoba, Parsons and Druken in
Nfld use DNA to exonerate
• Australia’s experience more limited- Frank
Button, Queensland
• NSW DNA experiences
• Jama and Fitzgerald

• Australia and role of legislative regulation of police interviews with suspects
• In Canada judges try to encourage taping of interviews but no federal legislation
• Instead case by case judicial regulation under the Charter

• SCC recognizes as cause of wc in Oickle, 2000
• Advanced recognition of literature but reluctance to exclude statement in that case
• Levinson, 2007 remedial deterrence thesis
• Singh, 2007 and Sinclair, 2010 allow prolonged and potentially unrecorded interviews with suspects over assertion of right to silence and without a lawyer being present

• Hart, 2014 recognize that Mr. Big stings can cause wcs and new common law presumptions that they are inadmissible
• Excludes statements from Hart and prosecution dropped
• A few months later in Mack, 2014, the SCC admits statements in large part because of confirmatory evidence ignoring the lessons of
Garrett, 2009 cited in Hart, 2014

• Morin, Sophonow and Lamer inquiries issue strong warnings against their unreliability and last two recommend also complete ban
• SCC in Brooks, 2000 stress the need for warnings and not exclusion
• Affirmed in Hurley, 2010
• Baltrusaitis v Ontario (Attorney General), 2011
ONSC 532 no Charter right against

• National standards and expert witnesses proposed by Cory in Sophonow report
• Rejected and others including Colvin and
Stuesser stress warnings sufficient
• Hill, 2007 allows police to be sued for a negligent line up where the Aboriginal suspect is the only person
• But no liability because no national standards

• Stinchcombe, 1991 on disclosure and Burns and Rafay, 2001 on extradition to death penalty
• Major victories
• But many other cases demonstrate limits of case-by-case regulation Bradley, 1993 and the complex balance of due process and crime control

• Reject Charter right to retain material for testing in a Dr. Smith case in Chaudhary v.
Ontario (Attorney General), 2012 ONSC 5023
• Pan, 2003 and not inside jury box
• Mianzga, 2006, Kreiger, 2002 and Anderson,
2014 deference to prosecutorial decisionmaking
• GDB, 2000 adopted deferential US Strickland standard on ineffective assistance of counsel

• Illustrates how what is left of Warren Court due process does not prevent the DNA and other exonerations
• Findlay, 2009 call for a reliability model
• Uneasy relationship between some aspects of innocence movement and due process
Naughton, 2010
• Fragile political alliances in innocence projects

• Role in SA reforms, 2013 and intervention by
Australia HRC
• But also decline to examine the Moles and
Sangha complaint against appeal and petition system and weight given to finality
• International standards important given no constitutional bill of rights but perhaps greater margin of appreciation than in domestic dp law

• Allows more room in Canada for experimentation
• s.79 of the Crimes (Appeal and Review) Act 2001
NSW allows for judicially initially inquiries
• Hamer, 2014 criticizes use only in police corruption but potential in NSW and ACT
(Eastman) and sound constitutional principle of making the judiciary responsible even if not implemented
• Hamer, 2014 40 applications 2008-2012

• SA debates and ultimately rejects CCRC but adopts second appeals on “fresh and compelling evidence”
• Test of whether courts in SA and perhaps eventually High Court will take restrictive and formalistic or substantive approach to s.353A and whether forensic science review comes back on the table
• Sangha, Moles and Economides, 2014
• Tasmania next state to consider

• Resistance of Victims Commissioner to CCRC and
Legislative Review Committee responds by matching double jeopardy limits for second prosecutions with similar “fresh and compelling” hurdles for second appeals
• Innocence claims a form of victims’ rights
• But also as in NSW also conflict with rights of crime victims
• Factor in US but not as strong in early recognition of wcs in Canada

• Fed Parl rejects CCRC and SCC rejects lurking doubt
• Canada 2002 reforms to petition to attempt to regularize political process
• Some successful judicial review of refusal to grant petition: Ross v. Canada (Justice), 2014 FC 338
• Martens v. Commonwealth (2009) 174 FCR 114
67 as alternative to Von Enimen “black hole” of no judicial review

• End runs in Canada around petition, Sherrat
Robinson, 2009 and White, 2010 with appeals to SCC
• Irving v. The Queen [1997] HCA Trans 404 and fudging of Mickelberg no fresh evidence as outlined in Sangha and Moles, 2012
• bail pending petition cases such as Unger
2005 MBQB 238, Phillion, Driskell and why bail pending appeals not used more in Australia

• In Canada only the Marshall commission confronts
• But Neepose, Mullins-Johnson, Hill and Brant
• In Australia, Angel, Condren, Kina, Narkle
(Dioso-Villa, 2012 in Albany LR)
• Jama in Australia, Morin in Canada
• Relate wc to a broader justice agenda not limited to those who can prove factual innocence

• Paradox
• Greater acceptance of reality of wcs in Canada perhaps because of commissions and dna
• Australia starting to engage in more legislative reform of post conviction issues but continued legal and political struggles