They pled guilty — but were wrongfully convicted. Canada’s courts continue to have a blind spot

Beyond the infamous cases, Canada has a major problem with wrongful convictions, argues Kent Roach. The co-founder of the Canadian Registry of Wrongful Convictions and an author University of Toronto law professor lays out solutions in Wrongfully Convicted: Guilty Pleas, Imagined Crimes and What Canada Must Do to Safeguard Justice." In this excerpt he looks at convictions where the accused has entered a false guilty plea.

The Canadian Registry of Wrongful Convictions shows that 15 of the 83 entered a guilty plea. Moreover, 73 per cent of these false guilty pleas in Canada (11 of 15) were made by women, Indigenous or racialized persons, or by those who suffered from a mental disability.

Why would anyone who is innocent or who has a valid defence plead guilty?

Early in my career, I may have unwittingly played a small role in condoning a guilty-plea wrongful conviction. Along with Kimberly Murray and Jonathan Rudin, I represented Aboriginal Legal Services in a high-profile 1999 case when we intervened in the Supreme Court in support of Jamie Gladue, a Cree and Metis woman who was appealing a three-year prison sentence for killing her 20-year-old partner, Reuben Beaver, in 1995.

The case recognized that the overrepresentation of Indigenous people - 12 per cent at the time - was a crisis" that required judges to sentence Indigenous people in a different way.

Unfortunately, sentencing under the Gladue precedent, which was reaffirmed by the Supreme Court in 2012 with added recognition of the intergenerational harms caused by residential schools, has not worked. Indigenous people now constitute over 30 per cent of those in Canadian prisons, and Indigenous women are close to 50 per cent of the women in federal penitentiaries. Indigenous people constitute five per cent of Canada's population.

On the day of the killing, Jamie Gladue, five months pregnant, was celebrating her 19th birthday. The previous year, Reuben Beaver had been convicted of assaulting her when she was pregnant with their first child. He received a 15-day sentence and probation for that attack.

Gladue believed Beaver had slept with her sister after she caught him leaving her sister's apartment. A neighbour heard a fight" in their apartment which lasted five to 10 minutes ... like a wrestling match." It ended when Gladue stabbed Beaver in the heart. Her lawyers had an expert prepare a battered woman's self-defence report, and they had photos of bruises on Gladue's arm and collarbone that the courts said were consistent with her having been in a physical altercation." If the jury had a reasonable doubt that Gladue acted in self-defence, she would be acquitted.

But Gladue was charged with second-degree murder: if the jury convicted her, she faced a mandatory sentence of life imprisonment - the same sentence that had been imposed on Donald Marshall Jr. (victim of an infamous wrongful-conviction in Nova Scotia).

That is still the law today.

In her review of women's self-defence cases in 1997, Justice Lynn Ratushny recognized that the mandatory life imprisonment sentence for murder placed undue pressure on women who might have valid self-defence claims to plead guilty to manslaughter, simply to avoid mandatory life imprisonment.

Like many women with children in such difficult no-win positions, Jamie Gladue decided to plead guilty to manslaughter when the prosecutor agreed, in exchange, to drop the murder charge. She did not appear eager to make this deal. She only pled after a preliminary inquiry had decided that a jury could convict her of murder and a jury (unlikely to contain many, if any, Indigenous people) had been selected for her murder trial.

When Gladue pled guilty to manslaughter, her second child, named Reuben after his father, was almost two years old, and her first child, Tanita, was almost four years old.

Gladue received a sentence of three years even though her lawyer had asked for a sentence to be served in the community: she was remorseful and not a danger, she had no criminal record, and she was being treated for addictions and a hyperthyroid condition that caused her to overreact to emotional situations.

The trial judge stressed that Gladue was not living in an Indigenous community and, moreover, he thought prison would deprive her of access to alcohol. He sentenced Jamie Gladue to three years in prison, which at the time could have sent her to the infamous Prison for Women in Kingston. As things turned out, Gladue served six months in prison, in British Columbia, and another 12 months under electronic monitoring, which she paid for.

The Supreme Court did not alter Gladue's sentence. It found three years to be reasonable for what it called a near murder" even though the trial judge had made legal errors in dismissing the need to consider Gladue's circumstances as an Indigenous offender.

But was Gladue even guilty of manslaughter? The Court did not examine her guilty plea. It also did not look at the trial judge's conclusion when sentencing Gladue that she was not a battered or fearful wife," or the B.C. Court of Appeal's decision not to admit new evidence relating to battered woman's self-defence. Perhaps Gladue's lawyers, the prosecutor or the group I represented, Aboriginal Legal Services, should have forced the issue of whether Gladue was even guilty of manslaughter.

In hindsight, I think the Supreme Court would have shut down any attempt to reopen the manslaughter guilty plea. Regrettably, the Court continues to have a blind spot about recognizing guilty-plea wrongful convictions or the injustice of the mandatory sentence of life imprisonment.

Even if the Court had overturned Gladue's plea to manslaughter, the result could have been a new trial where she would again face the downside risk of a murder conviction and an automatic life sentence.

I would never blame Jamie Gladue for taking the manslaughter plea, given the impossible choice she faced. Nevertheless, the prospect that she might have had a valid defence haunts me.

I had success in arguing the law in her case, but wrongful convictions are almost never about the law. They are about humans making mistakes about the facts. They are sometimes about people cutting their risks in order to receive a lesser sentence, even if they are not guilty or have a valid defence.

Gladue's case is not counted in the Canadian Registry of Wrongful Convictions because her guilty plea to manslaughter still stands as the official record of her case. Her case reveals how guilty-plea wrongful convictions will always be with us so long as plea bargains and lesser sentences for pleading guilty are offered. Accused people will be scared, as they should be, by the worst-case scenarios of long prison terms or, in the case of murder, automatic life imprisonment.

Excerpted from Wrongfully Convicted: Guilty Pleas, Imagined Crimes, and What Canada Must Do to Safeguard Justice" by Kent Roach. Published by Simon and Schuster Canada. Copyright (C) 2023. All rights reserved.