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This paper draws from the wrongful convictions of women to interrogate the limits of dominant conceptions of wrongful conviction. Most North American innocence projects turn on a conception of demonstrable factual innocence. The paper argues that this focus is problematic as a matter of criminal law principle and presents particular difficulties for women. The paper identifies that family violence forms the primary context for both the conviction of women for violent crimes, and for women's wrongful convictions. Taking two key examples of family violence – child homicide and intimate partner violence – we illustrate that the prevailing focus on demonstrable factual innocence fits awkwardly with identified wrongful convictions in these areas, and argue that this focus may deflect attention from unidentified miscarriages of justice. We suggest that focusing on factual innocence undermines the criminal justice system's proper focus on state responsibilities, including the responsibility to protect women and children from harm, and the asymmetric burden of proof that applies in criminal cases.

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Penney Steven. (2022). Criminal procedure in Canada (3rd ed., Student edition). LexisNexis Canada.

Roach, K. (2023). Canada’s False Guilty Pleas : Lessons from The Canadian Registry of Wrongful Convictions. The Wrongful Conviction Law Review, 4(1), 16–47. https://doi.org/10.29173/wclawr92

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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Roach, K. (2020). The wrongful conviction of indigenous people in Australia and Canada. Flinders Law Journal, 17(2), 203–262. https://doi.org/10.3316/informit.802395771241936

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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Sopinka, J. (2022). Sopinka and Gelowitz on the conduct of an appeal (5th ed). LexisNexis Canada Inc.

Sherrin, C. (2011). Guilty Pleas from the Innocent. Windsor Review of Legal and Social Issues, 30, 1–36. https://heinonline.org/HOL/P?h=hein.journals/wrlsi30&i=3

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Stuesser, L. (2006). Experts on Eyewitness Identification: I Just Don’t See It. Manitoba Law Journal, 31(3), 543. https://www.canlii.org/en/commentary/doc/2006CanLIIDocs135#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA

Lee Stuesser, 2006 31-3 Manitoba Law Journal 543, 2006 CanLIIDocs 135

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Vjaykumar, M. (2018). A Crisis of Conscience: Miscarriages of Justice and Indigenous Defendants in Canada. UBC Law Review, 51(1), 161. https://www.canlii.org/en/commentary/doc/2018CanLIIDocs11248#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA

Malini Vjaykumar, 2018 51-1 UBC Law Review 161, 2018 CanLIIDocs 11248

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Zellick, G. (2006). Facing up to Miscarriages of Justice. Manitoba Law Journal, 31(3), 555. https://www.canlii.org/en/commentary/doc/2006CanLIIDocs136#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA

Graham Zellick, 2006 31-3 Manitoba Law Journal 555, 2006 CanLIIDocs 136