Comparative Reflections on Miscarriages of Justice in Australia and Canada

Abstract

This article identifies comparative scholarship as a promising way to understand the causes of and remedies for wrongful convictions. The article starts by suggesting that a string of high-profile DNA exonerations and public inquiries examining their systemic causes have led to Canadian judges and prosecutors accepting the reality of wrongful convictions more readily than most of their Australian counterparts. The next part of this article suggests that Australian legislatures have been more active than the Canadian Parliament in regulating police and prosecutorial behavior that contributes to wrongful convictions. In turn, the Canadian judiciary has been more creative in responding to the causes of wrongful convictions than the Australian judiciary. This theme is carried over to the next part which examines Australian legislative innovations such as second appeals based on fresh and compelling evidence and mechanisms for courts to conduct their own inquiries. Except for some 2002 reforms to the petition procedure, most reforms in Canada have come from the courts. They include the Supreme Court of Canada hearing fresh evidence or remitting cases to Courts of Appeal to do so and the granting of bail pending petition decisions by the executive and judicial review of such decisions. Australia and Canada can learn from each other in order to ensure that both legislatures and courts respond to wrongful convictions and that, where appropriate, there be both systemic and individual accountability for wrongful convictions.

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