Questions From Applicants

Why does the Innocence Canada application ask about my mental health?

Providing information to Innocence Canada about your mental health is optional.

The application asks you about your mental health history as part of Innocence Canada's efforts to obtain as much information as possible about you as it relates to the particular circumstances of your case. Unfortunately, people who have mental health issues, diagnosed or not, are overrepresented in the criminal justice system. This is an issue that Innocence Canada is aware of and tries to take into account when considering claims of innocence.

Different mental health issues present differently and could have had a variety of effects on your case. If an applicant was experiencing symptoms of a mental health issue prior to the alleged crime, for example, the issue could have affected the applicant's ability to effectively explain his innocence to investigating authorities, such as the police, especially if the issue was undiagnosed at the time. Similarly, symptoms that are outwardly expressed by the applicant could have made it attractive for authorities to target the applicant as the perpetrator, resulting in police tunnel vision. Tunnel vision occurs when authorities believe so strongly in the guilt of a certain person that they are not able to effectively evaluate other information that may jeopardize the truth of their belief. When tunnel vision is involved, a person's guilt is established in the minds of the authorities without all the evidence being taken into account or without investigating all potential avenues for evidence.

Beyond the investigation of the case, Innocence Canada asks about the current mental health status of its applicants to determine how best to maintain effective communication with the applicant.

Why does the Innocence Canada application ask about my ethnicity?

Providing information to Innocence Canada about your ethnicity is optional. The application asks about your ethnicity for two reasons:

  1. Eyewitness identification is the primary cause of wrongful convictions. Although an eyewitness can be very confident about their identification of a perpetrator, the identification could be wrong. Confidence is not the same as accuracy. Further, numerous studies have shown that identification across ethnicities presents the eyewitness with additional difficulties in successfully identifying the correct perpetrator. By having more knowledge about your ethnicity and the ethnicity of the person who identified you as the perpetrator, Innocence Canada is in a better position to determine if eyewitness identification error could have played a role in your conviction.
  2. Innocence Canada strives to be known to all communities in Canada to ensure that all Canadians understand they have an organization to depend on if they have been convicted of a crime they have not committed. By providing Innocence Canada with your ethnicity, we are better able to assess which communities require improved outreach, awareness, and education services.

Why does the Innocence Canada application ask about my preferred language?

The application asks about your preferred language so that Innocence Canada can take into account language barriers that may need to be overcome while communicating with you. If it's possible, your case will be assigned to a case reviewer who speaks your language.

If your trial was not conducted in your preferred language, that is a potential issue for Innocence Canada to take into account when assessing the details of your testimony, if you chose to testify in your own defence.

Why does the Innocence Canada application ask about how I heard about Innocence Canada?

Innocence Canada regularly conducts outreach, awareness, and education services for the purpose of making the public aware of our organization and its mandate. By telling us where you heard about Innocence Canada, we are better able to assess which services are working effectively, and which services require improvement.

Can my family or friends submit an Innocence Canada application on my behalf?

Yes. Anyone can submit an application to Innocence Canada if they believe an innocent person has been convicted of a crime they did not commit. Note, however, that only the convicted person can sign the authorization and waiver. Innocence Canada cannot begin the case review process until the authorization and waiver is signed by the convicted person.

When does Innocence Canada get involved in cases? Can they help me if I was charged with a crime but not convicted?

Innocence Canada is an innocence organization. When a person continues to state they are innocent after being convicted of a crime, Innocence Canada may get involved, depending upon the circumstances of the case and the availability of new evidence that may be used to support the person's innocence. Due to Innocence Canada's financial and resource limitations, Innocence Canada focuses on homicide cases and does not take on cases where a person has been charged but not convicted.

How long will it take for Innocence Canada to review my case?

Firstly, Innocence Canada is not under an obligation to review your case. If Innocence Canada decides to review a case, the review process could take several years for a variety of reasons. In some cases, it will take time to obtain full disclosure from the Crown. In other cases, forensic experts may need to be consulted or private investigations may need to be retained to answer specific questions about the case that were not addressed at trial. Once a person is convicted of a criminal offence, it is exceptionally difficult to overturn the conviction. Some cases of innocence may be convincing, but Innocence Canada may not be able to find fresh evidence supporting innocence despite its best efforts,. In such situations, Innocence Canada has no choice but to render the case inactive. For these reasons, the length of the time to review any case varies considerably but it is a lengthy process that requires patience from the applicant.

I received a letter from Innocence Canada indicating that fresh evidence could not be found in my case and that, as a result, Innocence Canada cannot continue to assist me at this time. What does this mean?

Once a person is convicted of a criminal offence, it is exceptionally difficult to overturn the conviction. Some cases of innocence may be convincing, but Innocence Canada may not be able to find fresh evidence supporting innocence despite its best efforts. In this type of situation, Innocence Canada has no choice but to render the case inactive because new and significant evidence is required to make it possible to advance the case to legal proceedings. Although Innocence Canada does its best to assist as many people as possible, only a small minority of our total applications advance to the stage of legal proceedings and, eventually, exoneration.

Why doesn't Innocence Canada take on international cases?

Innocence Canada once worked on international cases. Many of those cases were American cases. Although Innocence Canada has contributed to advancing cases of innocence on an international level in the past, Innocence Canada's practice was re-assessed and, in 2011, it was determined that Innocence Canada would require Directors' and Officers' Liability Insurance to continue its international efforts. Unfortunately, this insurance has proven impossible to obtain. As a result, Innocence Canada's efforts now focus solely on innocence claims arising from Canada. We are proud to be Canada's organization for innocence work.

Questions from the Public

What is Innocence Canada's procedure for conducting case reviews?

Innocence Canada's procedure for conducting case reviews is multi-faceted and reliant on extensive collaboration between Innocence Canada's volunteer lawyers, Case Management Counsel, and the Case Review Committee (CRC). The CRC is comprised of senior advising lawyers who supervise case progress, provide guidance and advice to Case Reviewers, and act as a decision-making body with respect to case progress. Innocence Canada's review procedure is as follows:

Our Case Review Process

Innocence Canada’s procedure for conducting case reviews is multifaceted and reliant on extensive collaboration between Innocence Canada’s volunteer lawyers, Case Management Counsel, and the Case Review Committee (CRC). The CRC is comprised of a panel of senior advising lawyers who supervise case progress, provide guidance and advice to Case Reviewers, and act as a decision-making body with respect to case progress. Innocence Canada’s review procedure is as follows:

Client Intake

Innocence Canada strives to take the individual circumstances and context of each case into account when assessing an applicant’s claim to innocence. Each case is unique and usually arrives at Innocence Canada in one of two ways:

  1. The convicted person or another interested party contacts Innocence Canada for the purpose of being sent an Innocence Canada application form. The application is also available online, allowing the client to directly apply to Innocence Canada.
  2. A lawyer recommends the case to Innocence Canada as a potential wrongful conviction. Typically, the lawyer recommending the case to Innocence Canada served the applicant as appeal counsel.

The Case Review Process is undergoing significant changes. Information will be available here soon.

The Path to a Wrongful Conviction

The path to a wrongful conviction first begins with an innocent person being charged for a crime he or she did not commit. After being charged, the innocent person can choose to either plead guilty or not guilty. There are a number of reasons why an innocent person may choose to plead guilty. For example, the person may wish to obtain a reduced sentence or lesser charge. Some individuals may simply feel overwhelmed by the power of the state and may feel that pursuing a trial would be hopeless in the face of experts that seem impossible to challenge, such as in forensic pediatric pathology cases relating to Dr. Charles Smith.

If an innocent person goes to trial and is found guilty, the result is that he or she is convicted of a crime he or she did not commit, hence the term "wrongly convicted". A conviction often bears a number of negative consequences, such as imprisonment, social stigma, and the destruction of relationships with family and friends.

To correct the wrongful conviction, the convicted person may ask a higher court to review the decision of the trial court. The first court available after being convicted at trial is the provincial Court of Appeal; each province has a Court of Appeal and each judgment rendered at the Court of Appeal level is provided by three judges who review the case together. An appeal may be made against a conviction on the basis that:

  1. the verdict was unreasonable;
  2. there was an error of law; or
  3. there was a miscarriage of justice.

Appeal courts have the discretion to:

  1. Dismiss the appeal; or
  2. Allow the appeal and quash the conviction, in which case the Court of Appeal will either enter an acquittal or order a new trial.

It is important to understand that even if a person is innocent of a crime, the Court of Appeal cannot formally declare that person to be innocent. The reason for the Court's inability to make such a declaration is grounded in policy and jurisdiction: declaring a person innocent would effectively create two classes of people, those found to be factually innocent and those who simply benefited from the presumption of innocence and the requirement of proof beyond a reasonable doubt.
See the 2007 case of R. v. Mullins-Johnson, 228 C.C.C. (3d) 505 for further details.

In the event that the conviction is affirmed on appeal (ie. the conviction remains in place), the convicted person has two other potential options of having his or her conviction reviewed:

  1. Go to the Supreme Court of Canada, the country's highest court; or
  2. Submit a s. 696.1 application to the Minister of Justice on the basis that the case represents a miscarriage of justice.

Right to Appeal: Note that a convicted person only has an automatic right to appeal to the Supreme Court of Canada if the decision reached at the Court of Appeal level is not unanimous. Otherwise, the convicted person must seek "leave to appeal" (ie. permission to appeal) to have his or her matter heard by the Supreme Court of Canada. The permission can either be granted or denied. If the permission is granted, the convicted person can appeal to the Supreme Court of Canada.

With the recent decision of R.v. McArthur 2012 ONSC 5773, in which Innocence Canada acted as an Intervenor, s. 696.1 applications can be pursued even if the convicted person did not appeal to the Supreme Court of Canada. Ministerial review of applications are viewed as an extraordinary remedy and serve to have the Minister of Justice review the case as a likely miscarriage of justice. Should the Minister find that the case likely represents a miscarriage of justice, the Minister may:

  1. Direct a new trial to any court that the Minister thinks proper; or
  2. Refer the matter to the Court of Appeal.

If the Minister orders that a new trial should take place, the case is considered new. The decision reached at this new trial takes precedence over the previous verdict rendered at the original trial.

If the Minister refers the matter to the Court of Appeal, the Court of Appeal will quash the original conviction. The Court of Appeal then has three possible choices in resolving the matter:

  1. Order a new trial;
  2. Enter an acquittal; and/or
  3. Make any other order that justice requires (for example, a stay of proceedings which allows the Crown to re-lay charges within one year of the stay).

In the event that the Crown chooses to withdraw charges, or fails to re-lay charges within a one-year period following a stay ordered by the Court of Appeal, there is no charge on record, and this has the effect of ending the proceedings.

The below chart is a simplified representation of the paths a wrongly convicted person may take through the criminal justice system when seeking to correct a wrongful conviction. The chart does not include processes related to a stay of proceedings.

I would like to get involved with Innocence Canada. How do I start?

If you are not a legal professional or a law student but would like to get involved with Innocence Canada, please contact Client Services Director, Win Wahrer at: wwahrer@innocencecanada.com or 416‑504‑7500, ext. 227.

If you are a lawyer, law clerk, or paralegal who would like to get involved with Innocence Canada, please contact Innocence Canada’s Senior Staff Lawyer, Caitlin Pakosh at: cpakosh@innocencecanada.com or 416‑504‑7500, ext. 225.

If you are a law student who would like to get involved with Innocence Canada, please contact Legal Education Counsel, Aneidah Naidoo at: anaidoo@innocencecanada.com or 416‑504‑7500, ext. 226.

How many lawyers volunteer with Innocence Canada?

There are over 60 lawyers who volunteer as case reviewers with Innocence Canada. These lawyers review and work on Innocence Canada cases while also managing their own private client files. In addition, there are 7 lawyers who volunteer to act as Case Review Committee Members and Senior Counsel. In total, there are approximately 70 lawyers who volunteer with Innocence Canada by reviewing cases.

There are additional lawyers who volunteer with Innocence Canada, but who do not assist in reviewing cases. These lawyers typically apply their expertise to civil matters related to specific Innocence Canada policies and procedures or provide consultation on specific civil and criminal issues. Some lawyers also contribute to Innocence Canada's educational mandate by writing blog entries, informative articles, or speaking at Innocence Canada educational events.

I am not a criminal lawyer. Can I still volunteer with Innocence Canada?

Yes. Although you likely will not be tasked with reviewing a case, your legal expertise will be used to assist Innocence Canada in furthering its mandate in other ways. Innocence Canada also welcomes additional non-legal skills and interests, for instance, fundraising experience or bilingualism are assets.

How is Innocence Canada funded? Do Innocence Canada lawyers get paid for their work?

One of Innocence Canada's primary funders is the Law Foundation of Ontario (LFO). Innocence Canada is funded by grants and private donations only. Our organization is not financially supported by the government. We depend on the generosity of private donors.

Innocence Canada case review lawyers do not get paid for their work. Innocence Canada is a non-profit organization that does not have sufficient resources to compensate its legal professionals. If an opportunity presents itself where Legal Aid can be obtained for a case, Case Reviewers are encouraged to apply for Legal Aid to off-set the costs of the case.

What is "fresh" evidence?

“Fresh evidence” is new and significant evidence that was not available at the time of the trial and which points to innocence or raises serious doubts about the correctness of the conviction.

This type of new and significant evidence is a mandatory requirement of submitting a s. 696.1 application, also known as an application for ministerial review. A ministerial review application is an extraordinary remedy that is beyond the usual methods of appeal. The purpose of the application is to request that the Minister of Justice review the case on the grounds that the case is a miscarriage of justice.

Why won’t the courts formally declare that a person is innocent, even upon acquittal?

It is important to understand that even if a person is innocent of a crime, the Court of Appeal cannot formally declare that person to be innocent. The reason for the Court's inability to make such a declaration is grounded in policy and jurisdiction: declaring a person innocent would effectively create two classes of people, those found to be factually innocent and those who simply benefited from the presumption of innocence and the requirement of proof beyond a reasonable doubt. See the 2007 case of R. v. Mullins-Johnson, 228 C.C.C. (3d) 505 for further details.