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Hollywood opens window on race-related Canadian wrongful conviction

Friday, February 28, 2020 @ 11:58 AM | By Simran Singh


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Simran Singh %>
Simran Singh
With the arrival of the new Hollywood film Just Mercy, it appears to be a perfect time to touch on the topic of wrongful conviction. The film puts a spotlight on the story of Bryan Stevenson, the Harvard law trained lawyer who decided to focus a large part of his career on helping individuals who were wrongfully convicted and facing the death penalty.

The film explores this context of wrongful conviction against the backdrop of systemic prejudice in the United States during the 1980s and 1990s. The issue is not a uniquely American one, nor is it only a relic of the past — Canadians have our issues when it comes to wrongful convictions, with racial prejudice also playing a role.

Simply put, wrongful convictions happen in Canada. It is very difficult to estimate an exact rate of the prevalence of wrongful convictions in Canada due to a variety of reasons, such as methodological limitations. However, research shows that there have been at least 70 cases of exonerations resulting from wrongful convictions in Canada. By many estimates, this figure is simply touching the surface of the reality of the situation in Canada.

The situation begins to look especially concerning when one considers that plea bargaining is considered to be an integral part of the functioning of the modern criminal justice system (R. v. Nixon 2009 ABCA 269 at para.1).

While it may help address problems such as resource efficiency, it also allows for the possibility that individuals who are factually or legally innocent may plead guilty simply to avoid the penalties that could arise from harsher sentences for failing to accept plea deals.

The racial component surrounding this discussion is readily apparent. Certain communities in Canada have far higher rates of incarceration than others, such as the Indigenous populations.

The Indigenous peoples in Canada constitute 23 per cent of the federal offender population at admission while constituting only 4.3 per cent of the general Canadian population. This over-representation is not limited to the general incarcerated population — it also occurs in the wrongful conviction context.

Although not the focus of this piece, it is prudent to acknowledge there are multiple reasons explored as to the reason why this fact exists, ranging from the effects of colonialism, lack of social services in the communities, racism, etc. Regardless of etiology, it is evident there is a racial component to incarceration in Canada and a related connection to that of wrongful convictions.

Points of intersection exist between the racial component of wrongful conviction and that of the current structuring of an under-resourced criminal justice system with its emphasis on plea bargaining.

One connection between the two is that plea deals can become the mechanism that helps cause this over-representation of racial communities in the prison system. Many reasons exist as to why certain people, such as some with Indigenous backgrounds, would be more vulnerable to wrongful convictions as a result of plea deals. In the context of Indigenous peoples, studies have shown that factors such as distrust of the justice system after the haunting legacy of the residential school system, difficulties with the functioning of the bail system, and other factors are all involved in influencing Indigenous peoples to accept guilty pleas.

Just Mercy is a fantastic film that touches on an important topic. It is important that beyond the entertainment value of the film, the discussion surrounding the topic on which it is based also receives focus.

Wrongful convictions still happen, and they are not spread equally amongst the Canadian population, with already marginalized communities being affected in far greater proportions.

Simran Singh is second-year student at Osgoode Hall Law School with a background in small business ownership. Before law school he studied biological, immunological and psychological systems.You can reach him at ssinghn89@gmail.com. The author extends his deepest gratitude to professor Richard Haigh of Osgoode Hall Law School for his generous guidance in the writing and research of this article.

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