Kent Roach kentroachutorontoca Why comparative law and politics of wcs Potential next wave of wrongful convictions scholarship Criticisms of traditional focus on case studies and broad causes Leo and Gould 2009 ID: 343724
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Slide1
Comparative Reflections on Miscarriages of Justice in Australia and Canada
Kent Roach
kent.roach@utoronto.caSlide2
Why comparative law and politics of wcs
?
Potential next wave of wrongful convictions scholarship
Criticisms of traditional focus on case studies and broad causes (Leo and Gould, 2009)
But not social sciences: more fine grained examination of law and politics including the debate over factual innocence (
Naughton
, 2010)Slide3
Comparative Approaches
Goudge
Commission Research studies, 2008
Roberts and Weathered, 2009
Sangha
, Roach and Moles, 2010
Special Issues CLQ and Cincinnati Law Review from 2011 Innocence Project conference
Roach, 2013 on Canada-US
Other examples?Slide4
Approaches to Comparative Law and Politics
Tushnet
, 2008
Functional similarities such as causes
Though Colvin, 2009 warnings of dangers of universalizing the American experience and applying it to Australia: see also
Findlay, 2003 review of NSW DNA
Expressive differences in legal systemsSlide5
Why compare Australia and Canada?
Hirshl
, 2014 most similar case principle
Two countries many similarities
Interesting constitutional differences
Australia and state jurisdiction over criminal law
Canada and its Charter or constitutional bill of rights
Also different role of juriesSlide6
Other Comparisons?
Hirshl
, 2014 warns against “World Series” approach that only focuses on a few common law jurisdictions
France, Italy and approaches to finality and trial de novo
China’s recent recognition of
wcs
Countries where
wcs
not (yet) recognized such as South Africa, Singapore, India….Slide7
Legal and Political Acceptance of Reality of Wrongful Convictions
Resistance to idea that there has been wrongful convictions
In Canada Marshall, 1983 blame Marshall and
Milgaard
, 92 until 97 DNA also maintain presumption of guilt after conviction quashed
Similar to Mallard, 2003 WA and 2005 HC who is even detained after conviction quashed
Why has Australia apparently forgotten its early experience with
Splatt
and Chamberlain?Slide8
Possible Explanations?
In Canada, public inquiries such as Marshall, Morin and
Sophonow
make it difficult to deny
wcs
FPT, 2004 senior prosecutors prepare 155 page report based on these 3 inquiriesSlide9
Possible Explanations?
In Canada, some early cases including Morin,
Milgaard
, Simon Marshall in Quebec,
Driskell
and Unger in Manitoba, Parsons and
Druken
in
Nfld
use DNA to exonerate
Australia’s experience more limited- Frank Button, Queensland
NSW DNA experiences
Jama
and FitzgeraldSlide10
Different Approaches Causes
Australia and role of legislative regulation of police interviews with suspects
In Canada judges try to encourage taping of interviews but no federal legislation
Instead case by case judicial regulation under the CharterSlide11
False Confessions
SCC recognizes as cause of
wc
in
Oickle
, 2000
Advanced recognition of literature but reluctance to exclude statement in that case
Levinson, 2007 remedial deterrence thesis
Singh, 2007 and Sinclair, 2010 allow prolonged and potentially unrecorded interviews with suspects over assertion of right to silence and without a lawyer being presentSlide12
Mr. Big
Hart, 2014 recognize that Mr. Big stings can cause
wcs
and new common law presumptions that they are inadmissible
Excludes statements from Hart and prosecution dropped
A few months later in Mack, 2014, the SCC admits statements in large part because of confirmatory evidence ignoring the lessons of Garrett, 2009 cited in Hart, 2014Slide13
Jailhouse Informers
Morin,
Sophonow
and Lamer inquiries issue strong warnings against their unreliability and last two recommend also complete ban
SCC in Brooks, 2000 stress the need for warnings and not exclusion
Affirmed in Hurley, 2010
Baltrusaitis
v Ontario (Attorney General), 2011 ONSC 532
no Charter right againstSlide14
Identification Procedures
National standards and expert witnesses proposed by Cory in
Sophonow
report
Rejected and others including Colvin and
Stuesser
stress warnings sufficient
Hill, 2007 allows police to be sued for a negligent line up where the Aboriginal suspect is the only person
But no liability because no national standardsSlide15
What difference has the Canadian Charter made?
Stinchcombe
, 1991 on disclosure and Burns and
Rafay
, 2001 on extradition to death penalty
Major victories
But many other cases demonstrate limits of case-by-case regulation Bradley, 1993 and the complex balance of due process and crime controlSlide16
What Difference does the Charter Make?
Reject Charter right to retain material for testing in a Dr. Smith case in
Chaudhary
v. Ontario (Attorney General), 2012 ONSC
5023
Pan, 2003 and not inside jury box
Mianzga
, 2006,
Kreiger
, 2002 and Anderson, 2014 deference to prosecutorial decision-making
GDB, 2000 adopted deferential US Strickland standard on ineffective assistance of counsel
Slide17
United States experience
Illustrates how what is left of Warren Court due process does not prevent the DNA and other exonerations
Findlay, 2009 call for a reliability model
Uneasy relationship between some aspects of innocence movement and due process
Naughton
, 2010
Fragile political alliances in innocence projectsSlide18
What Difference will International law make in Australia?
Role in SA reforms, 2013 and intervention by Australia HRC
But also decline to examine the Moles and
Sangha
complaint against appeal and petition system and weight given to finality
International standards important given no constitutional bill of rights but perhaps greater margin of appreciation than in domestic
dp
lawSlide19
Federal Difference in Australia
Allows more room in Canada for experimentation
s.79 of the Crimes (Appeal and Review) Act 2001
NSW allows for judicially initially inquiries
Hamer
, 2014 criticizes use only in police corruption but potential in NSW and ACT (Eastman) and sound constitutional principle of making the judiciary responsible even if not implemented
Hamer
, 2014 40 applications 2008-2012Slide20
Federal Difference in Australia
SA debates and ultimately rejects CCRC but adopts second appeals on “fresh and compelling evidence”
Test of whether courts in SA and perhaps eventually High Court will take restrictive and formalistic or substantive approach to s.353A and whether forensic science review comes back on the table
Sangha
, Moles and Economides, 2014
Tasmania next state to considerSlide21
Law and Politics of SA reforms
Resistance of Victims Commissioner to CCRC and Legislative Review Committee responds by matching double jeopardy limits for second prosecutions with similar “fresh and compelling” hurdles for second appeals
Innocence claims a form of victims’ rights
But also as in NSW also conflict with rights of crime victims
Factor in US but not as strong in early recognition of
wcs
in CanadaSlide22
Petitions
F
ed
Parl
rejects CCRC and SCC rejects lurking doubt
Canada 2002 reforms to petition to attempt to regularize political process
Some successful judicial review of refusal to grant petition:
Ross v. Canada (Justice), 2014 FC 338
Martens v. Commonwealth (2009) 174 FCR 114
67 as alternative to
Von
Enimen
“black hole” of no judicial reviewSlide23
Avoidance of Petitions
End runs in Canada around petition,
Sherrat
Robinson, 2009 and White, 2010 with appeals to SCC
Irving v. The Queen [1997] HCA Trans 404
and fudging of
Mickelberg
no fresh evidence as outlined in
Sangha
and Moles, 2012
bail pending petition cases such as Unger 2005 MBQB 238,
Phillion
,
Driskell
and why bail pending appeals not used more in AustraliaSlide24
Indigenous People and other Disadvantaged Groups
In Canada only the Marshall commission confronts
But
Neepose
, Mullins-Johnson, Hill and Brant
In Australia, Angel,
Condren
, Kina,
Narkle
(
Dioso
-Villa, 2012 in Albany LR)
Jama
in Australia, Morin in Canada
Relate
wc
to a broader justice agenda not limited to those who can prove factual innocenceSlide25
Conclusion
Paradox
Greater acceptance of reality of
wcs
in Canada perhaps because of commissions and
dna
Australia starting to engage in more legislative reform of post conviction issues but continued legal and political struggles