Post-conviction Claims of Innocence: Investigating a Possible Miscarriage of Justice in the Case of Michael Kassa

Abstract

Many legal systems throughout the world have established out-of-court remedies to rectify miscarriages of justice and wrongful convictions. In Canada, this extraordinary remedy is served by a government minister, who is entrusted with the assessment of claims of innocence post-conviction. While researchers have already addressed various concerns over the current conviction review process (Braiden & Brockman, 1999; Walker & Campbell, 2009; Roach, 2012a), Roach (2012b) emphasized that little is known about the applicant’s lived experience. This thesis intends to explore the underlying rationale of the current regime under section 696.1 of the Criminal Code and shed light on how the Canadian government, through the Minister of Justice addresses claims and attempts to remedy wrongful conviction. A case study of Mr. Hailemikael Fekade Kassa’s criminal case file, an applicant who consented to this study of his second-degree murder conviction in 2009, will be used to explore the challenges faced by a Canadian claimant of innocence in preparation of his post-conviction review application. This research has revealed that: (1) the Canadian conviction review process implicitly removes the responsibility for error from the conventional justice system; and (2) despite significant evidence capable of raising doubt, the applicant under study encountered great difficulty in meeting the stringent eligibility criteria. A review of the literature provides the necessary contextual information to this critical examination through a comparative study of the post-conviction review schemes operating in North Carolina, the United Kingdom, Norway and Canada. Further, this project uses Foucault’s (1991) theory of governmentality as its analytical framework to investigate the governmental technologies and rationalities securing the current objectives of the Canadian review process and to explore the effects of policy at the micro-level. Following a presentation of the major findings and brief discussions of the evidence discovered in Mr. Kassa’s file, a final analysis situates the research findings within governmentality theory and highlights their broader implications.