Amanda Carling is a Métis lawyer and the president of the board of directors at Aboriginal Legal Services in Toronto.
Every day innocent people – a disproportionate number of them First Nations, Inuit and Métis people – plead guilty to crimes they did not commit (and sometimes crimes that did not happen).
A lucky few receive a remedy, but typically only after hundreds of hours of pro bono work and court time are spent fixing the problem. This is compounded by the money spent incarcerating the innocent and the harm that may be caused by the truly guilty party who has gone free.
On May 10, the Manitoba Court of Appeal overturned the wrongful conviction of Richard Joseph Catcheway, a member of the Skownan First Nation. In a judgment of fewer than 500 words, the justices allowed Mr. Catcheway to withdraw a guilty plea to being unlawfully in a dwelling house in Winnipeg.
In general, one cannot simply change their mind after pleading guilty. Courts of appeal can allow this but, as in Mr. Catcheway’s case, new evidence is often necessary.
The new evidence in this case was startling. Mr. Catcheway was in custody at the Brandon Correctional Centre at the time he was said to have committed the offence in Winnipeg. In other words, he was imprisoned 200 kilometres away when the crime occurred.
To the credit of the defence counsel on the appeal, the prosecution service and the Court of Appeal, Mr. Catcheway’s wrongful conviction was corrected in about a half a year – practically lightning speed for the criminal-justice system.
However, the acquittal came only after Mr. Catcheway received a sentence of six months’ presentence custody, one day-court appearance and 18 months of supervised probation. With enhanced credit for presentence detention, Mr. Catcheway served four months for this offence. Based on 2015-16 statistics from the province of Manitoba, the incarceration alone cost taxpayers upward of $24,000, not to mention the police, legal aid, prosecutorial and judicial resources the case likely consumed. So how did the justice system allow this to happen?
While I have no insight into why Mr. Catcheway pleaded guilty in this instance, there are plenty of reasons why anyone – and in particular Indigenous people – would plead despite their innocence. Indigenous people are often, and disproportionately, denied bail. Mr. Catcheway was denied bail in this case. Where the length of time one would spend in custody awaiting trial is longer than the sentence that would be handed down on a plea, pleading guilty despite innocence is arguably a rational choice.
Indigenous people – like many others who are caught up in the justice system – may not understand what is happening to them or what their options are, even when they speak English fluently.
It is sadly common for defence lawyers to start their often-too-brief client conversations with the deal available on a plea, before asking the client for their side of the story. These are just a few of the many ways Indigenous people and other vulnerable groups are pressured into pleading when innocent.
Governments have long known about the dirty secret of plea bargaining and false guilty pleas. This was a major reason why the national Indigenous Courtwork Program was started in the late 1970s.
In late March, 2018, the federal government introduced Bill C-75, which would amend section 606 of the Criminal Code. While this controversial bill has received a lot of media attention for its promise to eliminate peremptory challenges, few have focused on the changes proposed to the guilty-plea process.
Clause 270 of Bill C-75 would, for the first time, require courts to ensure that the facts of the case support the charge. This is a requirement contained in the Youth Criminal Justice Act but, to this point, the legislature has not found it necessary that a judge or justice of the peace receiving a guilty plea be satisfied that the facts support the charge.
This is a welcome change, and something I have advocated for in the past, but there is plenty of reason to believe it is not enough. It might not have prevented Mr. Catcheway’s false guilty plea.
A failure by a trial judge to determine whether there was a factual basis for the plea would, under Bill C-75, not affect the validity of the plea.
There is a danger that judges will continue routinely to accept guilty pleas without a searching inquiry. This means that innocent people, and especially Indigenous and others who are disproportionately denied bail and under-represented by their defence lawyers, will continue to make rational decisions to cut their losses and plead guilty.
Most will not be as lucky as Mr. Catcheway in having their wrongful convictions remedied in a matter of months. For most, relief from such injustices will come only years after the event or, more often, not at all.