Commentary

Wrongful convictions are also about the inability to afford a defence

Asaf Rashid

2 October 2017

Today is International Wrongful Convictions Day, a day to recognize and act against wrongful convictions of innocent people in Canada. It is an important moment to recognize the harshness of depriving a person of liberty, as well as the necessity of legal protections for accused persons to prevent railroading people towards convictions. What is often left out of the conversation is that wrongful convictions are more than just about murder and prison. Most convictions are for minor offences, and are due to an inability to afford a defence rather than due to faulty prosecutions.

Most of the cases profiled on the rare occasions when wrongful convictions become a subject of public conversation are of those who were wrongly convicted of murder, and who spent years in jail as a result. These include the cases Donald Marshal Jr., Stephen Truscott, David Milguard and Guy Paul Morin. These and other names of wrongly convicted people should continue to be the subject of public conversation, especially in cases such as Donald Marshall Jr, who was convicted by a prosecution tainted by racism against Indigenous people.

While these cases are important, there are far more cases of people who end up with a criminal record due to insufficient or non-existent defence, or a combination of these and overzealous or faulty prosecution. Most of these are for relatively minor offences where those convicted may only spend a short time in jail, but often they do not. What they all get is the scar of the criminal record, which will prevent a person from getting better jobs, volunteering in the community and creates stigma for years or a lifetime.

The criminal justice system is, by design, a complicated maze of procedure, precedents and technicalities that lawyers are trained to find and apply. An example is effective application of Canadian Charter of Rights and Freedoms defences, which can result in evidence against an accused person being thrown out. Without enough evidence, the prosecution’s case fails. Legal representation, which is often out of reach due to legal costs, makes a difference.

In 2003, the federal Department of Justice did a comprehensive study, “The Unmet Need for Criminal Legal Aid”, which is as relevant now as it was then. The researchers interviewed focus groups, lawyers, and judges, as well as collected stats from a number of courts across the country. In the conclusion, the researchers noted:

Interviews with lawyers and judges indicated that virtually all unrepresented accused make mistakes in court that jeopardize their legal position. The overwhelming point of view of respondents was that unrepresented accused lack the ability to defend themselves properly in the adversarial and technical environment of the criminal courts. Thus it may be argued that nearly all unrepresented accused require legal representation in order to assure a fair hearing.

Basically, a higher conviction rate results from ineffective legal representation, which is exactly what a poor / working poor person gets if legal aid is unavailable. Provincial legal aid services are not available for summary (minor) offences, which are the majority of offences running through the criminal justice system.

The unavailability of legal services and convictions for minor offences do not often get included in the conversation about wrongful convictions. These should be key parts of the conversation.

The author works as an articling student (lawyer-in training) at a community legal services organization called Calgary Legal Guidance (CLG), which provides free representation to low income Calgarians. Many of the cases he assists with are of people who are being prosecuted for minor criminal offences, such as shoplifting, minor assaults, drug possession, etc. They are mostly summary (less serious) charges that the provincial legal aid system does not cover. Him and others at CLG – just like those at similar organizations across the country – have helped low income people win at trial, or assisted them in getting mental health diversion, general diversion or gotten charges withdrawn. Many of these people would have otherwise ended up with one or more convictions.