MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Wrongful Convictions 35
The philosophy that innocence really does matter continues to cascade
down to the trial courts, the profession and the law enforcement
community.
In 2003, a trial court in Ontario surprised many in the legal
community when it concluded that, despite the absence of any statutory
authority, the courts are empowered to grant bail to serving inmates while
their section 696.1 application is pending before the Minister of Justice.
That ruling has since been followed by three more trial courts, through to
at least 2009. 111
The cascade hit street level, so to speak, in 2005 when prosecutors and
police joined forces in the issuance of a report recommending a series of
proactive policies and education designed to guard against future
miscarriages of justice. 112 As I noted earlier in this essay, 113 the report was
well received by the profession, and led to the issuance of an even more
detailed update report in 2011, which was intended to keep the
momentum of change ongoing. That report recounted the Manitoba
forensic evidence review, and described the steps taken by other provinces
to conduct similar forensic double checks.
The Manitoba initiative raised a number of difficult issues at the time
it was launched. But, as I have shown, two things are clear: first, the review
had a strong legal foundation, as the Crown was discharging its wellestablished
“minister of justice” role, albeit in an innovative and proactive
way. Second, the initiative was entirely consistent with a much bigger legal
movement in Canada—one which encourages every justice system
participant from Parliament and the Supreme Court, to trial judges,
practitioners and police officers, to be aware of the risk of convicting the
innocent, and to take whatever steps are within their power to reduce that
risk.
vigorous arguments that the facts of the case justify an outright termination of the case
through an acquittal: concerning the latter, see R v F(C), supra note 97; R v M(C), supra
note 97; Marquardt, supra note 94; and, especially, R v Phillion, 2010 ONSC 1604, 256
CCC (3d) 63 [Phillion].
111
Phillion, ibid; Driskell v Canada, supra note 52; Unger v Canada, supra note 52; Ostrowski,
supra note 52.
112
Within the defence bar, the cascade hit street level a bit earlier. See the discussion of
AIDWYC supra note 46.
113
Supra notes 66–73 and accompanying text.