THE SILENT INJUSTICE IN WRONGFUL CONVICTIONS IN CANADA: IS RACE A FACTOR IN CONVICTING THE INNOCENT? ANDREA S. ANDERSON A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW YORK UNIVERSITY, TORONTO, ONTARIO AUGUST 2011 Library and Archives Bibliotheque et Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-88612-0 Our file Notre reference ISBN: 978-0-494-88612-0 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distrbute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. 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Canada ABSTRACT This research concentrates on the phenomenon of wrongful conviction and the socio-legal context in which it operates. Within this study, this research investigates the race-crime dynamic. The connection between race and crime is made visible by the fact that racialized and Aboriginal people are over-represented, compared to the population, in every stage of the North American criminal justice system. While racial discrimination in the criminal justice system, to say the least, is morally troubling, the prospect of incarcerating an innocent person is unthinkable. What happens when these two phenomena coincide? Since the 1983 Nova Scotia Court of Appeal decision in R. v. Marshall and the subsequent public inquiry, the role of systemic racism in wrongful conviction cases in Canada has gone unexplored. Situated in the writings of Critical Race Theory this research examines what has been included within the concept of miscarriages of justice and questions where are the experiences of racialized and Aboriginal people in the narratives and reports on the wrongfully convicted in Canada. Certainly, race and racism are not entirely absent from the discourse. In the United States, for example, some attention has been given to the subject with discussions showing that racial disparities found elsewhere in the criminal justice system also appear in the conviction of the innocent. However, when exploring the mainstream discourse in Canada on wrongful convictions and how to prevent them, the racialized and Aboriginal experiences are relatively ignored. If and when racial discrimination exists in cases of wrongful convictions, it is not documented and, in turn, it is denied. One explanation is that the same systemic barriers that racialized and Aboriginal defendants encounter in the criminal justice system also exist when addressing race as a factor in wrongful convictions. Another reason is that Canadian lawyers have failed to engage in racial litigation and the judiciary has resisted in the adoption of critical race approaches when invited to do so. In the end, the need to rethink the current cause and approaches to the study of wrongful convictions is paramount. ACKNOWLEDGMENTS We have to talk about liberating minds as well as liberating society - Angela Davis. I would like to acknowledge and thank my supervisor Professor James Stribopoulos who provide much needed advice and support through the research and writing process. I am also grateful to Dr. Frances Henry, whose expertise and guidance helped strengthen this thesis. Special thanks to Professor David M. Tanovich, whose encouragement started me along this path. I would also like to extend many thanks to Damion Blair and Tiffani Frederick, who volunteered their time and effort to assist in the revisions. Finally, my journey through the university process would have been much more difficult without the constant patience, love and support of my parents and friends. Your faith in me carried me through to the end. For that, I am extremely thankful. v TABLE OF CONTENTS Page TITLE PAGE i COPYRIGHT PAGE ii CERTIFICATE PAGE iii ABSTRACT iv ACKNOWLEDGMENTS v TABLE OF CONTENTS vi CHAPTER ONE - INTRODUCTION 1 1. INTRODUCTION 1 CHAPTER TWO -WRONGFUL CONVICTIONS - A LITERATURE REVIEW 7 2. INTRODUCTION 7 2.1. PART I - DEFINING WRONGFUL CONVICTION 8 2.2. PART II - THE IMPORTANCE OF STUDYING WRONGFUL CONVICTIONS 11 2.2.1. Frequency of Wrongful Convictions 12 2.3. PART III - THE CAUSES OF WRONGFUL CONVICTIONS 16 2.3.1. Causal Factors 16 2.3.1.1. Mistaken 'Eyewitness'Testimony 17 2.3.1.2. False or Coerced Confessions or Admissions 20 2.3.1.3. Police and Prosecutorial Misconduct 23 2.3.1.4. Inadequate or Incompetent Defence Counsel 27 2.3.1.5. Perjury by Witnesses and Jailhouse Informants 28 2.3.1.6. Faulty or Problematic Forensic Science 30 2.3.1.7. Race/Ethnicity 31 2.3.1.8. Social Inequalities/Class 33 2.3.2. Additional Factors 33 2.3.2.1. Adversarial Setting 33 2.3.3. Further Research 34 2.4. SUMMARY 35 vi CHAPTER THREE - DOES RACE MATTER? SYSTEMIC RACISM IN THE CRIMINAL JUSTICE SYSTEM 36 3. INTRODUCTION 36 3.1. PART I - THEORETICAL PERSPECTIVE: THE SOCIALLY CONSTRUCTED REALITY OF RACE AND CRIME 38 3.1.1. Race and Its Social Value 38 3.1.2. The Politics of Racialization 39 3.1.2.1. Being Racialized 40 3.1.3. The Ideology of Racism and Its Systemic Nature 42 3.1.3.1. Legalized Racism 42 3.1.4. Critical Race Theory 44 3.1.5. The Criminalization of Race and the Racialization of Crime 45 3.2. PART II - RACE AND THE PERCEPTIONS OF BIAS IN THE JUSTICE SYSTEM 47 3.2.1. Perceptions of Systemic Racism in the Criminal Process 48 3.2.1.1. Background to the Commission on Systemic Racism 48 3.2.1.2. Selected Findings of the Commission 50 3.2.1.3. Additional Studies 52 3.2.2. Racial Bias in the Criminal Justice System 53 3.3. PART III - THE RACIALIZED EXPERIENCE IN THE JUSTICE SYSTEM 55 3.3.1. The Manifestation of Racism in the Justice System 56 3.3.1.1. Interaction with the Police 56 3.3.1.2. The Courts 66 3.3.1.3. Corrections 69 3.3.1.4. Post-Incarceration 71 3.4. SUMMARY 71 Vi7 CHAPTER FOUR - LESSONS FROM THE CASE OF DONALD MARSHALL, JR. 73 4. INTRODUCTION 73 4.1. PART I-THE CASE OF DONALD MARHSALL 74 4.1.1. Brief History 74 4.2. PART II - ANALYZING THE MARSHALL INQUIRY. 84 4.2.1. Setting Up the Royal Commission 84 4.2.2. The Royal Commission and its Mandate 87 4.2.2.1. Principal Findings 89 4.2.2.2. Principal Recommendations 92 4.3. PART III - RACE CONSCIOUSNESS IN THE MARSHALL INQUIRY. 94 4.3.1. Getting at Racism 94 4.3.1.1. Institutional Racism 95 4.3.1.2. The Treatment of Others 99 4.3.1.3. Additional Studies 101 4.3.2. Historical Racism 102 4.3.2.1. The Legacy of Discrimination 103 4.4. SUMMARY 107 V'ii CHAPTER FIVE - THE UNOFFICIAL STORY: THE OTHER FORCES OF WRONGFUL CONVICTIONS 108 5. INTRODUCTION 108 5.1. PART I - BEYOND THE MARSHALL INQUIRY. 109 5.1.1. The Big Picture 109 5.1.2. Race and the Innocent 110 5.1.3. The Race Effect on Wrongful Convictions 112 5.3.1. Confronting Race - The American Experience 112 5.3.1.2. The Case of the Central Park Jogger 116 5.2. PART II - QUESTIONABLE JUSTICE 119 5.2.1. Silencing of Race - The Canadian Experience 119 5.2.2. Revisiting Critical Race Theory 127 5.2.3. Challenging the Silencing of Race 128 5.3. PART III - THE UNOFFICIAL EXPLANATION 129 5.3.1. Systemic Barriers 129 5.3.2. The Failure to Act 130 5.3.2.1. Silence in the Judiciary 130 5.3.2.2. Trial Silence 133 5.3.2.3. Silence on Appeal 134 5.4. PART IV - RETHINKING THE STUDY OF WRONGFUL CONVICTIONS 136 5.4.1. Developing Critical Race/Anti-Race Strategy 136 5.4.2. The Future 139 5.5. SUMMARY 139 CHAPTER SIX - CONCLUSION 141 BIBLIOGRAPHY 144 ix CHAPTER ONE 1. - INTRODUCTION Faith in the Canadian justice system is predicated in large part on the basic belief that the guilty will be convicted and punished, while those who are innocent will be found not guilty and set free. The core foundations of the criminal justice system: the presumption of innocence; the standard of proof beyond a reasonable doubt; the right to effective legal counsel; the right to a speedy trial; the obligations on the Crown to make full disclosure; the availability of appellate review; and the right to an adjudication on the merits without regard to gender, religious preference and race - all have as their underlying basis the recognition "that it is better for ten who are truly guilty to go free than to convict a single innocent person."1 This research is motivated by the concern for the conviction of the innocent.