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Wrongful convictions and commissions of inquiry: a commentary.

Article Excerpt
I have been asked to provide a short commentary on the role a Commission of Inquiry may play following a wrongful conviction. No doubt the request was made because I am thought to have some experience in this area, having chaired the Royal Commission of Inquiry into the Prosecution of Donald Marshall, Jr.

However, before discussing the role a Commission of Inquiry may play, it is useful to consider what is meant by the term "wrongful conviction." Only if a conviction is thought to be "wrongful" is there an appropriate role for an inquiry. The phrase "wrongful conviction" is now in general parlance; it carries with it the notion that the justice system has failed and that a conviction has been achieved wholly or partly because of influences that have no place in a democratic society governed by the rule of law and, in Canada, the Charter of Rights and Freedoms. It is important that those who use this term do so carefully and thoughtfully. To do otherwise risks irreparable harm to the foundation of respect and confidence upon which our legal system rests; to freely and frequently call for public inquiries when they are not warranted likewise endangers the stability of the justice system. If, indeed, the system may have failed, an inquiry may be required; but not every conviction that is set aside is wrongful, and those seeking an inquiry and those responsible for establishing an inquiry must exercise care, restraint, and sound judgement before choosing to so characterize a conviction.

The justice system as a whole contains checks and balances. Police investigations are reviewed internally; guidelines are established for obtaining statements and for dealing with vulnerable potential...

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