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Between 2006 to 2008, no less than three public inquiries recommended that, absent a reasonable likelihood of re-prosecution, prosecutors should allow the wrongfully convicted to be acquitted and not be subject to prosecutorial stays. Prosecutorial stays are an exercise of prosecutorial discretion under. 579 of the Criminal Code that can only be challenged with evidence of flagrant impropriety. They do not provide protection against double jeopardy. They can amount to a third “legal limbo” verdict between guilty and not guilty. Only two prosecutorial services in Canada have adopted the three inquiry recommendations in their guidelines or deskbooks. This failure has real world consequences: namely at least five cases involving seven accused in four different provinces since 2016 where convictions were overturned because of new evidence relevant to guilt or innocence only to be the subject of a prosecutorial stay which deprived the previously convicted person of a verdict on the merits. In addition to being at odds with the three inquiry recommendations, such uses of prosecutorial stays promote continued suspicion of the wrongfully convicted and create two classes of the wrongfully convicted: those who are acquitted and those who only receive a prosecutorial stay.
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Drawing on Rachel Dioso-Villa''s repository of wrongful convictions published in this issue, this article examines known cases of wrongful convictions of Indigenous persons in Australia and Canada. It finds that Indigenous people are over-represented among the wrongfully convicted in relation to their representation in the population in both Australia and Canada. At the same time, there are likely many undiscovered wrongful convictions of Indigenous persons especially when the over-representation of Indigenous men and women in prison is considered. A factor in this likely under-representation of Indigenous people among remedied wrongful convictions may be the incentives that accused, especially Indigenous women, face to plead guilty even if they are not guilty. This finding underlines some of the dangers of limiting wrongful convictions to cases of proven factual innocence and not including among the wrongfully convicted those who may have valid defences such as self-defence.
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The Canadian Registry of Wrongful Convictions www.wrongfulconviction.ca .like similar registries in the United States and the United Kingdom, was designed to facilitate research on patterns and trends in wrongful convictions. As of its launch in February 2023, 15 of 83 remedied wrongful convictions or 17% were the result of guilty pleas by the accused. This is a similar percentage as found in a UK registry and lower than the 27% of guilty plea wrongful convictions found in the US registry. Forty percent of the guilty plea wrongful convictions were entered by women. Most of these involved the flawed expert testimony of Charles Smith about the cause of baby deaths and the majority of all remedied guilty plea wrongful convictions were for imagined crimes that did not happen. Almost half (7 of 15) of Canada’s false guilty pleas were taken from racialized people including three Indigenous men, one Black and Indigenous man, another Black man and a Brown man who had recently immigrated from India. Two of the fifteen false guilty pleas were taken from accused persons who had diagnosed mental health and cognitive challenges. With the exclusion of one false guilty plea to a mandatory sentence of life imprisonment and ineligibility for parole for 10 years, the average sentence in the remaining 14 cases was 10 months with evidence of “lop-sided” pleas especially in the cases involving Charles Smith and 2 of the 14 received sentences of time already served.
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"The eighth edition of Criminal Law has been thoroughly updated to include new developments. It includes a detailed discussion of R v Brown striking down restrictions on the extreme intoxication defence and the likely parliamentary reply, and Parliament’s reply in Bill C-28. It also examines changes in jury selection upheld in R v Chouhan; important decisions on fault, such as R v Zora, R v Javanmardi, R v Chung, and R v Goforth; and assesses R v Cowan on parties. The discussion of sexual assault has been updated to take into account R v Barton and the possible implications of R v Morrison. The Supreme Court’s first decision under the amended self-defence provisions in R v Khill is reviewed. This new edition also has been revised to include important decisions from the Ontario and Nova Scotia Courts of Appeal on sentencing Black offenders, as well as the Supreme Court’s striking down of mandatory minimum fine surcharges and stacking of twenty-five-year periods of parole ineligibility."-- Provided by publisher.
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"Written by two of Canada’s leading constitutional scholars, the seventh edition of The Charter of Rights and Freedoms provides a uniquely accessible yet thorough and objective account of the Canadian Charter. This new edition includes, for the first time, a chapter examining Aboriginal and Treaty rights. The authors examine the manner in which Canadian courts have come to terms with the constitutional protection of rights, focusing on the decisions of the Supreme Court of Canada. The purpose is to explain Charter and Aboriginal rights, their interpretation by the courts, and their practical application. This edition also highlights a number of important cases in recent Canadian law. For example, Conseil scolaire francophone de la Colombie-Britannique refused to accept that controlling the cost of minority-language education, which is a Charter right, would justify limiting that right under section 1. The decision also refused to extend qualified immunities from Charter damage awa rds to government policy decisions. The Frank decision, which struck down the disenfranchisement of Canadian citizens living abroad, and an important new remedies case, Ontario (Attorney General) v G, which will affect suspended declarations of invalidity and applicable exemptions, are both given a detailed and comprehensive analysis. The authors also discuss recent developments in the section 2(b) right to freedom of religion, including both the Ktunaxa Nation decision rejecting an Indigenous group’s claim that a development project would infringe on their right to freedom of religion, and the Trinity Western decisions dealing with a religiously motivated covenant that discriminated against prospective LGBTQ2S+ law students; developments in freedom of expression, including election spending and journalists being required to reveal their sources; the important role played by the Charter in the criminal process, including the Boudreault decision, which extends the protection against c ruel and unusual punishment; and developments in the area of equality rights, including decisions on pay equity and the Fraser case, which deals with pension benefits for women."-- Provided by publisher.
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