Wrongful Convictions.pdf - Robson Hall Faculty of Law

2 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1Other provinces and the federal government watched the reviewunfold over the next several years with a degree of anxiety, and perhaps ahealthy dose of scepticism. After all, is this really a proper role for theCrown? Isn’t the Criminal Code based on the fundamental proposition thatthe Crown prosecutes alleged offenders, leaving to the private bar andlegal aid societies the responsibility to defend and pursue individual caseswhere there is reason to believe that a miscarriage of justice may haveoccurred? To be sure, Crown counsel may quite properly stay or withdrawproceedings, or even concede an appeal against conviction in individualcases where it becomes evident that the evidence does not supportprosecution. But that occurs in individual cases on the basis of specificfacts. Is it a proper function for the Crown to conduct what is essentiallyan unfocused “sweep” of cases to see if a miscarriage of justice may haveoccurred? If it is a proper role, where does the authority come from? Andwhat prompted such an unusual step in Manitoba?By 2012, the review had been completed, at least one and possibly twomiscarriages had been discovered, a Commission of Inquiry led by aformer Chief Justice from Ontario had recommended that a review of thisnature be undertaken at the national level, and all provinces hadsubsequently followed suit with similar reviews. In this essay, I willdescribe the “backstory” to this legal experiment, hatched initially inManitoba but subsequently embraced widely throughout Canada.II. THE BIFURCATED ROLE OF PROSECUTORS IN CANADAThe starting point in this discussion necessarily involves anunderstanding of the role and responsibilities of prosecuting counsel. Atlaw, Crown counsel in Canada, and more widely throughout theCommonwealth, have two separate and distinct roles. The first, that of“advocate”, is well understood and publicly very visible. In respect of thisrole, the Supreme Court of Canada has observed that it is “bothpermissible and desirable” that the Crown “vigorously pursue a legitimateresult to the best of its ability”. 1 “Indeed”, the Court added, “this is a1R v Cook, [1997] 1 SCR 1113 at para 21, 146 DLR (4th) 437 [Cook]. To paraphraseJustice Moldaver, then of the Ontario Court of Appeal and now of the SupremeCourt of Canada, a criminal trial is not a tea party: R v Baltrusaitis (2002), 58 OR (3d)161 at para 34, 162 CCC (3d) 539. In this respect, see Robert J Frater, Prosecutorial