Habeas Corpus and Innocence: A Remedy for the Wrongly Convicted

Abstract

Once a conviction takes place, in the event that proof of innocence comes to light after all appeal routes have been exhausted, the wrongly convicted will have little opportunity to get that evidence before a court and will remain imprisoned. The elusive silver bullet of exculpatory DNA evidence may well give support to the post-appellate extraordinary remedy of ministerial review pursuant to.696.1 of the Criminal Code but evidence relative to the far more frequent incidents of mistaken eyewitness identification, false confessions, perjured jailhouse informant testimony or otherwise faulty forensic science will very likely never see the light of day in the criminal justice process. Therefore, when all else has failed, this paper proposes that “The Great Writ of Liberty” of habeas corpus as a fundamental error conviction device may well be the last best hope to get evidence of innocence before a court for the purposes of exoneration. The traditional approach, relying upon the limitations of statutory jurisdiction only, stands for the proposition that habeas corpus cannot be used to circumvent the ordinary appeal process. This promotes the interests of finality for criminal convictions and the principle of res judicata. It is different matter however when there is no longer recourse to appellate remedies, either because all appeals have failed or the time for pursuing same has elapsed. In this regard, the production of fresh evidence leading to proof of innocence that has come to light post-conviction and appeal can better be served by the “purposive” interpretation of habeas corpus as a Charter remedy. A careful reading of the case law and legislation reveals that there is no doctrinal basis upon which to forestall the Great Writ of Habeas Corpus as a serviceable remedy to get proof of innocence before a court to exonerate the wrongly convicted.