Miscarriages of justice need closer scrutiny

Parole boards in Canada set great store on offenders admitting guilt before granting them release. Within reason, the policy makes good sense. Prisoners who are in denial about their actions, or who cannot discern right from wrong, are a threat to re-offend. Facing facts, in particular uncomfortable facts, is an important step toward rehabilitation.

However, there are grounds for concern if the policy is taken too far. Our courts do a good job of sorting out the innocent from the guilty, but they are not infallible.

In recent decades, more than a dozen Canadians have been convicted of high-profile crimes they did not commit, and these are just the cases we know of. Most, like David Milgaard, Donald Marshall and a Vancouver man, Ivan Henry, maintained their innocence throughout.

Milgaard spent 23 years behind bars, Marshall 11 and Henry 27. Yet none were granted parole.

Rather, they were released because new evidence came to light, or serious questions were raised about police or prosecutorial conduct. Had they relied on parole boards for their freedom, who can say how long they might have waited? Of course, cell blocks are full of prisoners who proclaim their innocence. No one suggests taking them at their word. Yet it’s unclear whether demanding confessions as a condition of parole is necessary in every case. Researchers in Britain found that prisoners who refused to admit guilt and were released anyway were less likely to re-offend than those who owned up. It’s possible the latter were simply gaming a system that some have learned to exploit. This is only one aspect of a larger issue. Our justice system is heavily stacked against prisoners who wish to appeal.

Again, there are good reasons for that. We are entitled to place confidence in the outcome of criminal trials. The defendants have every opportunity to establish their innocence; indeed, the benefit of the doubt is in their favour.

But when a miscarriage of justice does occur, proving it is an uphill battle. Long before Milgaard was finally exonerated, serious doubts had been raised as to his guilt. But getting a hearing for those doubts proved to be a formidable task.

Part of the problem is that the same agencies that investigate and prosecute offenders must later be convinced they made a mistake. But law-enforcement officials and Crown prosecutors are only human. No one likes to admit an error, particularly if the implication is that an innocent victim was sent to prison.

In 1995, after a series of such errors made headlines in Britain, the government there established a Criminal Cases Review Commission. Operating at arm’s length, the commission investigates potential miscarriages of justice, and can, when warranted, file an appeal. Last year, of 14 cases sent to the courts for reconsideration, half resulted in the original conviction being overturned.

Might something of that sort work here? Following Milgaard’s exoneration, the province of Saskatchewan set up a royal commission to look into the case.The commission recommended that the federal government create an independent body to review allegations of wrongful conviction, along the lines that Britain followed.To date, however, no such agency has been created. Parliament, it appears, is unwilling to entertain doubts on this subject.

Yet our courts operate as much on a foundation of public trust as upon due process. And nothing shakes confidence more thoroughly than the suspicion that errors are being brushed under the carpet.

Then again, if our trial process cannot stand external scrutiny, just how robust is it? Milgaard, Marshall and Henry, collectively, spent 61 years in prison for crimes they did not commit. Some would say that’s reason enough to take a second look at the way we investigate miscarriages of justice.