Remanding Justice for the Innocent: Systemic Pressures in Pretrial Detention to Falsely Plead Guilty in Canada

Historically, the literature on wrongful convictions has focused on a relatively small number of high-profile exonerations of convictions for serious crimes. However, these cases represent only a small percentage of the total number of wrongful convictions. An emerging area of scholarship is expanding our understanding of their prevalence, by looking at the role that systemic and structural pressures have had on the choice of factually innocent defendants to enter false guilty pleas (FGPs). Plea bargaining – particularly presenting defendants in low-level criminal cases with “offers that they cannot refuse” – needs to be understood as having the potential to increase the number of wrongful convictions. Within this context, this article argues that the increased use of pre-trial detention (PTD) represents a very powerful source of FGPs. Part I discusses the potentially large number of cases affected by FGPs in Canada. Part II explores how the mechanisms of PTD likely influence defendants’ decisions to give a FGP. Part III discusses how the prevalence of FGPs represents a trade-off of the value of a defendant’s innocence in favour of other institutional or societal objectives rooted in the generalized culture of risk aversion and risk management in the Canadian criminal justice system. This emerging scholarship represents a particularly important area of inquiry because, by their very nature, FGPs represent one of the least correctable and answerable parts of the criminal justice system.