Wrongful Convictions.pdf - Robson Hall Faculty of Law

Wrongful Convictions 35The philosophy that innocence really does matter continues to cascadedown to the trial courts, the profession and the law enforcementcommunity.In 2003, a trial court in Ontario surprised many in the legalcommunity when it concluded that, despite the absence of any statutoryauthority, the courts are empowered to grant bail to serving inmates whiletheir section 696.1 application is pending before the Minister of Justice.That ruling has since been followed by three more trial courts, through toat least 2009. 111The cascade hit street level, so to speak, in 2005 when prosecutors andpolice joined forces in the issuance of a report recommending a series ofproactive policies and education designed to guard against futuremiscarriages of justice. 112 As I noted earlier in this essay, 113 the report waswell received by the profession, and led to the issuance of an even moredetailed update report in 2011, which was intended to keep themomentum of change ongoing. That report recounted the Manitobaforensic evidence review, and described the steps taken by other provincesto conduct similar forensic double checks.The Manitoba initiative raised a number of difficult issues at the timeit was launched. But, as I have shown, two things are clear: first, the reviewhad a strong legal foundation, as the Crown was discharging its wellestablished“minister of justice” role, albeit in an innovative and proactiveway. Second, the initiative was entirely consistent with a much bigger legalmovement in Canada—one which encourages every justice systemparticipant from Parliament and the Supreme Court, to trial judges,practitioners and police officers, to be aware of the risk of convicting theinnocent, and to take whatever steps are within their power to reduce thatrisk.vigorous arguments that the facts of the case justify an outright termination of the casethrough an acquittal: concerning the latter, see R v F(C), supra note 97; R v M(C), supranote 97; Marquardt, supra note 94; and, especially, R v Phillion, 2010 ONSC 1604, 256CCC (3d) 63 [Phillion].111Phillion, ibid; Driskell v Canada, supra note 52; Unger v Canada, supra note 52; Ostrowski,supra note 52.112Within the defence bar, the cascade hit street level a bit earlier. See the discussion ofAIDWYC supra note 46.113Supra notes 66–73 and accompanying text.