The wrongful conviction of an innocent person represents one of the gravest failures of the justice system. When someone is convicted of a crime they did not commit, the consequences ripple outward—an innocent person loses years or decades of their life while the actual perpetrator may remain free. Understanding how wrongful convictions occur, and how Canada responds when they are discovered, is essential for a justice system that claims to value both public safety and individual rights.
The Scope of the Problem
No one knows exactly how many innocent people are currently imprisoned in Canada. Wrongful convictions are by nature hidden—only discovered when new evidence emerges or when persistent advocates uncover flaws in original proceedings. The cases that come to light likely represent a fraction of the true number.
What we do know is troubling. Innocence Canada, the leading organization working on wrongful conviction cases, has contributed to the exoneration of more than two dozen people, with many more cases under review. High-profile exonerations—David Milgaard, Guy Paul Morin, Donald Marshall Jr., Steven Truscott—revealed systemic problems that led to significant reforms. Yet wrongful convictions continue to occur.
The human cost is immeasurable. Exonerees lose years of freedom, miss the births of children and deaths of parents, suffer trauma that persists long after release, and face enormous challenges rebuilding lives after conviction. Compensation, when it comes, cannot restore what was taken.
Causes of Wrongful Conviction
Eyewitness Misidentification
Eyewitness testimony is powerful in the courtroom but notoriously unreliable. Memory is not a recording—it is reconstructive, influenced by stress, suggestion, and the passage of time. Cross-racial identifications are particularly prone to error. Lineup procedures can subtly signal which person police suspect. Yet juries tend to find confident eyewitnesses compelling, even when that confidence is misplaced.
Research has led to improved identification procedures in many jurisdictions—double-blind lineups, instructions that the perpetrator may not be present, sequential rather than simultaneous presentation. But implementation varies, and older convictions based on flawed procedures remain.
False Confessions
It seems counterintuitive that innocent people would confess to crimes they did not commit, yet it happens with disturbing regularity. Lengthy, high-pressure interrogations can break down even truthful denials. People with intellectual disabilities or mental health conditions are particularly vulnerable. Young people may confess to end an overwhelming situation without fully understanding the consequences.
Interrogation techniques designed to elicit confessions—the Reid technique and its variants—can produce false confessions from innocent suspects. Recording of interrogations, now required in many Canadian jurisdictions, provides some protection but does not eliminate the risk.
Flawed Forensic Evidence
Forensic science has sometimes promised more than it can deliver. Techniques once presented as certain—bite mark comparison, hair microscopy, blood spatter analysis—have been shown to lack the scientific validity claimed for them. Even fingerprint and firearms analysis, while more reliable, involve subjective judgment that can be influenced by cognitive bias.
Forensic evidence presented with false certainty has contributed to numerous wrongful convictions. The remedy requires both reforming how forensic evidence is presented in court and reviewing old convictions based on now-discredited techniques.
Jailhouse Informants
Testimony from jailhouse informants—people who claim that the accused confessed to them while in custody—is inherently suspect. Informants have powerful incentives to fabricate testimony in exchange for reduced sentences or other benefits. Yet prosecutors have relied on such testimony, sometimes without adequate disclosure of the deals made or the informant's history of providing testimony.
Reforms in some jurisdictions now require greater scrutiny of jailhouse informant testimony, but the practice continues and past convictions based on unreliable informants remain.
Tunnel Vision
Perhaps the most pervasive cause is tunnel vision—the tendency of investigators and prosecutors to focus on a suspect to the exclusion of other possibilities. Once someone becomes a suspect, confirmation bias leads to interpreting evidence as supporting guilt while discounting contradictory information. Alternative suspects are not pursued. Exculpatory evidence may not be disclosed to defence counsel.
Tunnel vision is not malicious—it reflects normal human cognitive tendencies. But its consequences in criminal cases can be devastating. Systemic safeguards, including robust disclosure obligations and independent review of major investigations, can help counteract it.
The Path to Exoneration
Post-Conviction Review
Canada's Criminal Code provides a mechanism for reviewing potential wrongful convictions through applications to the Minister of Justice. If the Minister is satisfied that there may have been a miscarriage of justice, the case can be referred back to the courts. This process has led to several high-profile exonerations but has been criticized as slow, under-resourced, and difficult to access.
Recent reforms created a new Criminal Case Review Commission, modeled on the UK's Criminal Cases Review Commission, intended to provide more accessible and efficient review of potential wrongful convictions. The effectiveness of this new body remains to be seen.
Innocence Organizations
Innocence Canada and similar organizations investigate potential wrongful convictions, often taking on cases that the formal system has rejected. Their work is painstaking—reviewing trial transcripts, tracking down new evidence, arranging DNA testing, preparing applications for review. Many exonerations would not have occurred without this advocacy.
These organizations operate with limited resources relative to the scope of the problem, relying on dedicated lawyers, law students, and volunteers.
DNA and New Evidence
DNA testing has revolutionized the identification of wrongful convictions, providing definitive proof of innocence in some cases where biological evidence was preserved. Yet DNA is not available in most cases, and testing of old evidence is not automatic. Other new evidence—recanting witnesses, newly discovered documents, alternative suspects identified—can also support exoneration but is often harder to obtain and evaluate.
After Exoneration
Exoneration is a beginning, not an ending. Exonerees face enormous challenges reintegrating into society after years of imprisonment. They may lack work history, education, housing, and social connections. Psychological trauma from both the original wrongful conviction and the prison experience requires support that is often unavailable. Unlike parolees, exonerees typically receive no transitional services upon release.
Compensation varies by province and is often inadequate or delayed. Some exonerees have waited years for compensation decisions. The amounts, when awarded, may not reflect the magnitude of the harm suffered. And compensation cannot restore lost years, damaged relationships, or psychological wellbeing.
Systemic Reform
Each high-profile wrongful conviction has prompted inquiries and reforms—improved eyewitness procedures, mandatory interrogation recording, better forensic oversight, enhanced disclosure obligations. Yet the reforms are incomplete and unevenly implemented. The adversarial system itself creates pressures that can work against truth-finding when prosecutors focus on winning rather than justice.
Deeper reforms might include changing prosecutorial culture and incentives, strengthening defence resources to match prosecution capabilities, creating ongoing conviction review mechanisms, and addressing the systemic factors—including racism—that make some groups more vulnerable to wrongful conviction.
Questions for Further Discussion
- What further reforms to investigation and prosecution practices would reduce wrongful convictions?
- How should compensation for the wrongfully convicted be determined, and what non-monetary support should be provided?
- Should the new Criminal Case Review Commission be resourced to proactively review categories of potentially flawed convictions?
- How can the justice system better balance finality of convictions with openness to correcting errors?
- What role does systemic racism play in wrongful convictions, and how should it be addressed?