The scary truth about Canada’s wrongful convictions

The Canadian Registry of Wrongful Convictions lists 83 names. They are people who were driven to make false confessions. People who were convicted based on flawed forensics. People who were named by witnesses who got it wrong. The registry, posted online in February, was co-created by Kent Roach, a law professor at the University of Toronto who has fought to right miscarriages of justice for over three decades. “These names are the tip of an iceberg whose real size we don’t know,” he says.

With a team of volunteer law students, he combed through court records and media reports spanning decades to find people who’d been officially exonerated. The oldest case they found goes back to 1956. “This is not our judgment about who is innocent,” says Roach, “but a record of the courts admitting their mistakes.” Twenty-eight cases involve imaginary crimes—deaths that were ruled culpable homicides but in fact resulted from accidents, natural causes or self-defence—and the 83 victims are disproportionately those Roach calls “the usual suspects.” More than a fifth are Indigenous or racialized people, roughly 87 per cent are men, and many struggled with mental or cognitive issues, substance use and poverty.

In his new book, Wrongfully Convicted: Guilty Pleas, Imagined Crimes, and What Canada Must Do to Safeguard Justice, Roach dissects the blinkered legal system that has upheld and induced these miscarriages of justice in Canada for decades. One case changed the course of his career: Donald Marshall Jr., who spent over 11 years in prison for a murder he did not commit. “Marshall was a crash course in wrongful convictions and how they happen,” Roach says. “I teach it every year, and I get mad about it again every year.”

Late one night in May of 1971, 17-year-old Marshall bumped into an acquaintance, Sandy Seale, at Wentworth Park in Sydney, Nova Scotia. The pair encountered two older white men, Roy Ebsary and James MacNeil. There was a brief exchange—a request for cigarettes by the older men, an attempt at panhandling by the younger—before Ebsary grew angry and spewed racial slurs at Marshall and Seale, who are Mi’kmaw and Black, respectively. Ebsary pulled out a knife, slashed Marshall’s arm and fatally stabbed Seale in the stomach, but Marshall was the one charged with murder.

In Marshall’s case, whatever could have gone wrong did go wrong. Investigative tunnel vision was intense from the start. Marshall was an Indigenous youth with a history of liquor violations, and police were certain of his guilt. Never mind that he was cut up—investigators said his injuries must have been self-inflicted and disregarded exonerating evidence. They failed to secure the crime scene and search for the murder weapon, which was found years later in Ebsary’s former residence, still bearing fibres from Seale’s clothing.

At trial, the judge allowed the prosecutor to “refresh” the memory of a witness who wanted to recant his earlier lie about seeing Marshall stab Seale. Marshall’s defence lawyers, who also doubted his innocence, didn’t bother following up on his account of Seale’s murder. One member of the all-white jury later told a reporter, “With one redskin and one Negro involved, it was like two dogs in a field—you knew one of them was going to kill the other.” Six months after the murder, the jury convicted Marshall and sentenced him to life in prison.

More than a decade later, a steady trickle of new evidence finally forced an RCMP investigation, and a special five-judge panel heard a new appeal in 1983. The court simultaneously ruled Marshall innocent of murder and guilty of perjury—the RCMP had pressured him to enter a false guilty plea copping to attempted robbery, which the panel interpreted as lying in court, blaming Marshall for his own wrongful conviction. It took another six years before a Royal Commission exonerated Marshall completely and eviscerated everyone else involved. In a recommendation that would later be echoed by every other provincial inquiry into miscarriages of justice—there have been six since Marshall—the commissioners called for an independent institution to deal with wrongful convictions, which currently go through the Ministry of Justice. Thirty-four years later, it still doesn’t exist.

That’s finally about to change. The first federal commission probing the tangled history and impact of wrongful convictions was called in late 2021, headed by Harry LaForme, Canada’s first Indigenous appeal court judge, and Juanita Westmoreland-Traoré, who became the country’s first Black law dean at the University of Windsor, with Roach as their director of research. They presented their findings to the Minister of Justice in November of 2021, prompting Ottawa to recently introduce Bill C-40, which proposes to establish the Miscarriages of Justice Commission. The independent body would be the first of its kind in Canada, reviewing applications alleging wrongful convictions and broader miscarriages of justice.

It’s a giant step forward, Roach says, but the bill has yet to pass. In the meantime, he’s keeping a wary eye on the contours of that new commission—how effective, fast-moving and independent it will be. That’s why his book delves into the gritty and appalling details of the registry’s cases. Real change won’t occur, Roach believes, until Canadians know the stories of the people who were wronged.

***

In the three decades since the Marshall report was released, Kent Roach has invested his anger into action: he worked with the organization now known as Innocence Canada during the 1996 Morin inquiry—which looked into Guy Paul Morin’s wrongful conviction for the murder of Christine Jessop—and did pro bono work for Aboriginal Legal Services. He later acted as research director for the Goudge Inquiry into Charles Smith, the former chief forensic pathologist at SickKids in Toronto, whose persuasive but flawed testimony led to numerous wrongful convictions.

The factors that paved the way for Marshall’s conviction remain pervasive today: racism and investigative tunnel vision often cloud authorities’ ethical judgment, and defendants may be the victim of questionable or shoddily executed forensics work. In court, defendants’ chances of proving their innocence are often dashed by poor legal defence, almost always because they are unable to afford any better.

And there’s also the pressure defendants face to plead guilty to lesser charges, even when innocent, to escape the weight of mandatory minimum sentences. Twenty-nine offences in the Canadian Criminal Code, including use of a firearm and attempted murder, carry such sentences. Defendants can try their hand at court, but prosecutors—and even defence attorneys who want to wrap up a case quickly—may remind them that it’s a gamble on their future. If the defendant loses, they’re looking down the inescapable barrel of prison time. Add in a criminal justice system slow to recognize error and even slower to make amends, and it’s the perfect storm for wrongful convictions.

One of the major cases that shaped Roach’s thinking was that of Jamie Gladue, a pregnant, 19-year-old Cree-Métis woman who fatally stabbed her common-law husband in 1995 during an altercation. (He had already been convicted of assaulting her during her first pregnancy a year earlier.) When Gladue was charged with second-degree murder in 1996, her choice was stark. She could take her chances in a court system where Indigenous peoples are 33 per cent less likely to be acquitted than non-Indigenous defendants. That meant risking a mandatory minimum sentence of 10 to 15 years without a chance of parole, served in an Ontario prison far from her two young children living in B.C. Or Gladue could accept the plea deal offered for manslaughter and receive a greatly reduced three-year sentence to be served in B.C., followed by early parole and a chance to see her children grow up. She took the deal.

In 1999, Gladue became the focus of a landmark Supreme Court case—Canada’s first attempt to grapple with the over-incarceration of Indigenous people. “The Gladue case haunts me,” says Roach, who worked with Aboriginal Legal Services and later came to believe Gladue had a valid self-defence claim never asserted. He realized that the majority of criminal cases are resolved by guilty pleas, often by women and mothers of young children who choose the deal as the lesser of two evils. “In my mind, the universe of possible wrongful convictions multiplied exponentially.”

Wrongfully Convicted also details the risk defendants take when going to trial. Charles Smith frequently testified as an expert, but he held deeply conservative views about “proper” families. A coroner’s review in 2005 examined 45 child autopsies Smith had conducted and found that he’d made questionable conclusions in 20 cases, 13 of which led to criminal convictions. It turned out Smith had actively misled and lied to jurors in dozens of cases as part of his self-described crusade “against people who hurt children.” Smith resigned from SickKids, his career destroyed, but like most people who have contributed to wrongful convictions, he has never faced any legal penalty.

His victims can’t say the same. In 1993, Tammy Marquardt’s two-year-old son—who had asthma, pneumonia and epilepsy—died suddenly. She found him tangled in the sheets of his crib, gasping for air, but when she called the ambulance, she was too distressed to successfully administer CPR. Marquardt was a 21-year-old Anishinaabe mother with a drinking issue, separated from her son’s father. Like almost all of the registry’s cases, she was a marginalized person without the financial means to adequately defend herself. She looked guilty to authorities, and Smith testified that her son had been smothered or strangled, helping to secure her conviction of second-degree murder and a life sentence. She spent almost 14 years behind bars, during which her two other children were put up for adoption, until new evidence dismissed Smith’s testimony and exonerated her.

To prevent and rectify investigative missteps, Roach wants more rigorously enforced national standards entrenched in law. Many authorities aren’t trained to interrogate vulnerable people with cognitive or mental health issues. Prosecutors continue to use untrustworthy testimony from jailhouse informants, and sometimes evidence favourable to the defendant is not disclosed or found in the investigation.

Evidence also remains at risk of being lost, misplaced or even destroyed after a trial. David Milgaard, who spent nearly 23 years in prison for the rape and murder of Gail Miller, was only exonerated after a court clerk—who had always believed in his innocence—preserved Miller’s nursing uniform, which bore the semen of her real killer. “It could have been destroyed,” says Roach, “for storage reasons.”

If Roach could change one law, it would be mandatory life imprisonment. In Canada, life sentences for murder convictions are required, with no chance of parole for a minimum of 25 years for first-degree murder. The menace of such outcomes are the prime driver of guilty pleas, genuine or false, that usually bring lesser sentences. The accused—whether innocent or not—must take a gamble: if they go to trial, they risk spending the next decades of their lives in prison.

Mandatory life isn’t going anywhere though, Roach says. Politicians are terrified of being called soft on crime, and guilty pleas are built into the clogged judicial system. They remain its essential grease, and nothing will change that, nor completely eradicate human bias and error. That’s the tragic subtext running through Wrongfully Convicted. “It’s time to find a faster and more humane process to deal with mistakes after we make them,” he says.

***

As the federal committee awaits the fate of Bill C-40 and the Miscarriages of Justice Commission, Roach is sure about one thing: if there is ever a moment to reform our courts, after more than three decades of governmental foot-dragging, it is now.

The cracks in Canada’s justice system are well-worn, but Roach believes that nothing has propelled change more than the desire for reconciliation with Indigenous peoples. They make up five per cent of the population, and their over-incarceration had troubled the Supreme Court a quarter century ago when they comprised 12 per cent of inmates. It’s now a staggering 30 per cent, and no real attempt at reconciliation can ignore it.

To push C-40 through, compromises were made. The commissioners—who would number between five and nine, all appointed by the federal cabinet—are not allowed to reform the systemic factors that produce so many errors and wrongful convictions. They cannot consider, the way their counterparts in England and New Zealand can, applications for relief in regards to sentences, which can reduce or modify a defendant’s time in prison—something that Roach believes could greatly benefit Indigenous offenders and those living with mental health challenges. The new commission also isn’t allowed to delve into the complex issue of accessing compensation for defendants’ wrongful incarceration, even though fighting for it can be a long and often revictimizing process.

In the end, it will all come down to money. “There is nothing in the bill to ensure that the commission will be adequately funded,” says Roach. He wants to ensure that Canada’s commission doesn’t wind up looking like New Zealand’s team, which was understaffed and now faces a growing backlog of cases.

Yet Roach remains optimistic. The establishment of the Miscarriages of Justice Commission will be an enormous step, even with its limitations. The bill marks a hinge moment in the country’s history, signalling the culmination of decades’ worth of struggle. It will do away with the sluggish pace of the old order and provide a new path for those aggrieved by the justice system, replete with experts and the bittersweet promise of vindication. “There is more hope for the wronged now,” says Roach. But only if we do this right.