On January 5, Robert Mailman and Walter Gillespie were acquitted of murder in New Brunswick, 40 years after their conviction.
In her ruling, Chief Justice Tracey DeWare explained how new information led her to believe "serious mistakes" at their 1984 trial had contributed to their wrongful conviction. Police failed to disclose evidence at trial that supported Gillespie and Mailman's alibi, and two key witnesses were paid by police before testifying. Unknown to the defence, both witnesses had initially told police that they had no first-hand knowledge of the murder, and later recanted their testimonies.
A new report by the UBC Innocence Project argues that wrongfully convicted individuals are languishing in Canada’s prisons – and explains how timely access to police and court records could help remedy these miscarriages of justice.
Co-authored by Tamara Levy, KC, Director of the UBC Innocence Project at the UBC Peter A. Allard School of Law, and Allard Law graduate Alexandra Ballantyne, Post-Conviction Disclosure in the Canadian Context documents the long delays and years of effort that go into gaining access to records that may help prove the innocence of wrongfully convicted individuals.
Putting an end to the waiting game
Levy says that denied requests and delays in gaining access to complete court records and police files present one of the biggest barriers that innocence organizations face in their efforts to advocate for the wrongfully convicted. These files can include information that was available but never shared with the defence at trial, such as the names of witnesses who spoke with police but who never provided a formal statement or potential evidence found at the crime scene that was never tested for DNA.
“This is the type of information applicants desperately need that might ultimately prove their innocence,” says Levy.
Funded by the Canadian Bar Association’s Law for the Future Fund, the report calls for a series of changes that would make it easier to access these files and could potentially cut years off the time that wrongfully convicted individuals sit in prison before their cases are formally reviewed.
First, the report calls for innocence organizations, like the UBC Innocence Project, to be granted access to all police and court files related to the cases they’re investigating, including details about any police misconduct.
There is no question that innocent people have been and continue to be wrongly convicted.
A recent study noted in the report shows that concealing evidence – the most common type of police misconduct – occurred in 44 per cent of exonerations in the United States. Similar data is not currently available in Canada, in part because access to full police records is so difficult to come by.
Information sharing left largely to police discretion
At present, it’s at the discretion of the police and the Crown whether they choose to share their files after someone is convicted. The report notes that the RCMP consistently refuses to share information with the UBC Innocence Project, unless the court orders them to or unless an application for review has already been submitted to the Minister of Justice.
That means innocence organizations find themselves in a classic catch-22, the report explains. The Project has to apply to the involved police agency to gain access to any new information that could help prove their client’s innocence, but for their application to be successful, they have to have applied to the Minister of Justice with information including “new matters of significance” – precisely the information they are trying to access in their application to the police agency.
“Without first having access to those police files, it’s incredibly difficult to do our due diligence and assess the full merits of the case before applying to the Minister of Justice,” says Levy.
Once enough material has been gathered and an application is submitted, it can take months or years to get an initial response from the RCMP. Levy notes that the initial response is usually to deny access, and appealing that decision can often mean more years of waiting. When records are released, they may be so heavily redacted as to be useless.
For innocence organizations to be able to help the wrongly convicted, we need access to the information that might prove the miscarriage of justice has taken place. If the right person was convicted, there should be nothing to hide.
Gaining timely access to complete case files is particularly critical in preventing those who are wrongfully convicted of serious crimes like murder from sitting in prison for decades. With just five innocence organizations operating in Canada, resources are limited, and the report offers support for Bill-C-40 which sets out a plan for a Commission that would independently investigate claims of wrongful conviction.
The report also recommends training for police on the causes of wrongful conviction and the harms caused by failing to disclose evidence, as well as developing new whistleblower legislation that would make it easier for those within the police force to report cases where significant information was not disclosed.
“There is no question that innocent people have been and continue to be wrongly convicted,” says Levy. “For innocence organizations to be able to help the wrongly convicted, we need access to the information that might prove the miscarriage of justice has taken place. If the right person was convicted, there should be nothing to hide.”
