On December 9, 2021, the Executive Summary and Recommendations of the Consultation Committee (regarding the proposal to create a new independent Commission to review Wrongful Convictions) were released by:

The Honourable Harry S LaForme Lead, Criminal Cases Review Consultations

You can access both the Executive Summary and Recommendations (full report yet to be released) here:

https://www.justice.gc.ca/eng/rp-pr/cj-jp/ccr-rc/mjc-cej/index.html

Our organization, LAMDA (the Law and Mental Disorder Association) was one of 45 parties consulted. We provided both written and oral submissions in August of 2021. LAMDA is indebted to defence counsel Sarah Rankin (Alberta) and Caleigh Glawson (Manitoba) for their contributions to the final submissions.

The resulting recommendations reflect several of the key recommendations LAMDA made to the Committee, including that less serious offences in relation to which miscarriages of justice occur be included in the scope of cases the new Commission could review and that NCR Verdicts be reviewable.

The Recommendations made by Justices LaForme and Westmoreland-Traoré are comprehensive and progressive. We hope they are adopted immediately and implemented in their entirety.

From LAMDA’s formal written submissions and extensive materials submitted on August 3, 2021, I excerpt the five main points we urged upon the Commission:

• Individuals with lived experience of serious mental health issues, preferably those who have also experienced wrongful conviction or wrongful NCR Verdicts, should be involved whether in the constitution of the Commission and/or in any advisory body to it. In this regard, we would recommend the Empowerment Council, who are systemic advocates for persons with mental health issues and addictions, based in CAMH but independent of it, whose members, staff, Board and clients all identify has having lived experience of mental health issues or have used addictions services. Their website is informative about their organization: https://empowermentcouncil.ca/

• Individuals with mental health issues are often required to “plead guilty” to get access to specialized sentencing, “problem-solving” or therapeutic courts such as mental health courts. They are also not infrequently confessing to crimes they did not commit, whether because they may have a delusion that they did commit the offence, or are generally vulnerable, disorganized or impressionable enough to admit to criminality where none exists. It is of the utmost importance that lesser offences, including relatively minor or actually very minor offences be included in cases to be reviewed, where appropriate, as a result. This is where most of the mischief of wrongful conviction is experienced by our clients with serious mental health issues.

• NCR Verdicts are not technically ‘convictions.’ That being said, our lawyers continue to see examples of less than strict adherence to procedural safeguards where NCR proceedings are initiated in the purported ‘best interest’ of individuals with serious mental disorder. Where there is a joint recommendation for an NCR Verdict, a Court may accede to that recommendation, without ascertaining whether the accused person appreciates the consequence of an NCR Verdict, which can include indefinite secure detention. We are also seeing cases where no plea inquiry was done at all to satisfy the Court that the person committed the actus reus of the criminal acts as charged. More recently we have seen several cases where a young person, as young as 15 years of age, was found NCR in the absence of procedural safeguards. Some 10 to 15 years or more later, these accused continue to be detained in high secure environments. NCR Verdicts are tough to appeal, especially where they are historical in nature and legal aid funding is not available or where it is denied. Clients with serious mental disorder generally also have difficulty representing themselves. Self-representation or ineffective assistance lead to many ‘wrongful NCRs.’ One example we cited during out meeting is R v. Kankis 2012 ONSC 378 https://www.canlii.org/en/on/onsc/doc/2012/2012onsc378/2012onsc378.pdf

• Sentencing where mental disorder is not explored as causally linked to the criminality is also a problem that should, in our view, mean access to review by the Commission. There are many myths and stereotypes about what constitutes a serious mental health issue and what level of dysfunction mental disorder must cause before it may be considered or must be taken into account as mitigating on sentence. Anxiety, depression and a history of undiagnosed or untreated trauma all qualify as major mental disorders that can cause criminality. One doesn’t have to experience psychosis or mood disorders, nor does someone have to lack appreciation of the nature or quality of their offending, in order for sentencing to take into account the causal link between mental disorder and offending. On sentencing, it’s wrong-headed to look for the NCR test to be met. A good example and helpful discussion of all of this, including that there is not a demonstrable link between mental health issues and dangerousness, is the recent case of FABBRO out of Ontario’s Court of Appeal. R v. Fabbro, 2021 ONCA 494

• We feel strongly that the Commission should not be limited to an adjudicative role in determining whether a matter should be returned for a new trial. The Commission should, based on its review of cases where wrongful conviction (or wrongful NCR) is the result, make recommendations for systemic changes. It should also have the ability to effect change in relation to damages awarded but also ensuring that there is support and therapy available to those wrongfully convicted. It should have its own funding, independent from provincial legal aid plans, to allow for counsel to assist applicants. On review of the case before an appellate Court, the Commission should, if it can play a useful role, assist the Court.

POST_SCRIPT MAY 18 2023

Check out Canada’s Wrongful Conviction Registry here: https://wrongfulconvictions.ca

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