[The Owl] Righting Wrongs in a Broken System

Amanda Carling is using a course on wrongful convictions to expose how the legal system is stacked against Indigenous people and other marginalized communities

People like to make excuses about how hard it is to change things.  This is what Amanda Carling tells me sitting in the University of Toronto law school, in the last gasps of the winter term of 2018. The school is humming with the nervous energy of looming exams, as students create cocoons of tranquility under noise-canceling earphones.  I met Carling in a law class I took on wrongful convictions alongside two other Massey journalism fellows. Taught by her and veteran lawyer Kent Roach, it was a disturbing, intimate look at the flaws inherent in Canada’s judicial system — from faulty forensic sciences, tunnel vision on the part of police or prosecutors, to biases baked into interview techniques.  Every week we dissected case studies of justice gone horribly wrong, and pulled apart just how much more vulnerable racialized communities are to that injustice.
We heard from a mother who was wrongly convicted of killing her stepdaughter, from Crown attorneys, defence lawyers, a former Supreme Court judge and a former Superior Court judge. And what we learned was just as shocking as what we came to understand we were so far from knowing. It’s long been known that Indigenous people and Black people are dramatically and disproportionately represented in the prison system; but we have no clear sense of how many were convicted of crimes they didn’t commit, or how many were victims of a miscarriage of justice. Carling, a Métis lawyer, saw that glaring gap firsthand while working for Innocence Canada, formerly known as the Association in Defence of the Wrongly Convicted.


It’s the largest organization in the country working to secure exonerations. She recalls doing outreach in First Nations communities and hearing stories that shook her deeply. “Every single person I knew either had themselves, or had talked to somebody who had pleaded guilty to something they didn’t do. Every single person,” she told me. “They said to me, so-and-so pleaded because the cops in this remote reserve community said you guys should plead guilty or we’re going to charge your wives, too, with this trafficking offence. These are not the wrongful convictions that the innocence network studies and these are not the wrongful convictions that will ever get a remedy. They’re not considered serious enough for a pro bono lawyer or innocence network to work on, but cumulatively it makes a huge difference.” So, how do you even begin to address a problem when you don’t actually know its scope?
To that end, Carling has been the driving force behind an initiative to establish a comprehensive database of wrongful convictions in Canada. Innocence Canada has kept track of the 21 people it has helped exonerate since 1993, several of them stemming from the faulty testimony of disgraced Ontario pathologist Charles Smith, who helped convict parents of killing their children. But there are dozens of other known cases, the details of which are found in disparate news articles buried in archives. Carling and Roach have recruited the journalism fellows that took their course — CBC producer Naheed Mustafa, Toronto Star investigative reporter Jim Rankin, and myself — to form part of a working group that is laying the foundation for a centralized hub that will include comprehensive case descriptions, relevant reports, and a searchable database of key factors. Carling’s own story stretches back to the days of Louis Riel. Her mother’s family was part of the diaspora that mobilized in the wake of his hanging, living in the US-Canada border town of Pembina. Eventually, in 1925, she says her family came north to St. Laurent, Manitoba, and lived in bush camps until a mill opened up in what is now Powerview-Pine Falls, providing job opportunities for many Métis people who, as her grandmother tells it, “pretended to be white because that was the safe thing to do.” Even today, it’s interesting for Carling to hear how her grandmother describes that time, using terms such as living as “gypsies” rather than living as Indigenous people on the land, because describing it in European terms is still felt to be safer, even though the younger generation has embraced its roots. “The great thing about pretending to be white is that my grandmother didn’t go to residential school,” says Carling. “And thank goodness. There’s nothing that could have been worse than that. But the flip side is that we lost a lot of our traditions and there are things that my grandmother and all of her brothers do that they identify as French traditions, but we know are Métis traditions. It’s been up to our generation to learn from elders who did carry those things forward.”Carling began to explore her own Indigenous roots in her later teenage years. She did her first sweat as a student at the University of Manitoba. And she took classes that taught her about Indigenous spirituality, worldviews and traditions.  As an undergrad student taking criminology courses, she remembers shadowing a judge — Judge Judy was her name — at a Winnipeg youth court. One by one, every child who stood to start or continue a trajectory through the system looked Indigenous. Many didn’t have parents with them. Some might have had a child and family services worker alongside. (Indigenous children are vastly overrepresented in the foster care system in Canada, echoing the forced removal seen during the residential school era. In Manitoba, in 2011, they represented 85 percent of children in care.) This hit Carling, whose father is British and mother Métis. “Because, I mean, I got in trouble when I was a kid, but I got taken home by the cops and slapped on the wrist, because I looked white. I didn’t get taken prison,” she recalls now. “Thinking about those children, they didn’t do anything to be where they were. They were just born into a situation where probably they had parents who went to residential school, or grandparents who went to residential school, and by virtue of all of those things they ended up in the justice system as kids,” she says. She felt then, and feels now, a responsibility to spend her life working for people who didn’t have the same privileges she had. As a student at U of T’s law school, she co-chaired the Aboriginal Law Students’ Association, worked at Downtown Legal Services in criminal and family law divisions, and after articling at Innocence Canada, went on to launch the organization’s legal education initiative in order to develop the preventative aspect of the group’s mandate.
“People like to make excuses about how hard it is to change things but the entire system is created by human beings and can be changed and, further, there are alternatives that we know work better,” she says. Things like restorative justice initiatives, putting resources in communities so people aren’t living in poverty, having clean drinking water, and education for their children and things to do in their community.
“Not being racist,” she adds. “That’s a pretty good alternative.” Part of her efforts at the law school, where she is the manager of Indigenous initiatives, has also been to educate. She’s helped facilitate the KAIROS Blanket Exercise — a workshop in which participants assume the voices of Indigenous people over the centuries, exposing the role of the law in stripping away their land, and connecting it to the social, economic and legal issues communities confront to this day.  Her approach to teaching the wrongful conviction course, a class she, too, took as a student at U of T, was to make it both inspiring, and challenging. And to encourage students to think more broadly about what it’s going to take to make a difference.
“If we want to get to reconciliation, get to a place where Indigenous and non-Indigenous people are treated equally, then the Canadian law has to be drastically different than what it is,” she says. “It can’t just be more Band-Aids put on the system because the racism against Indigenous people in terms of how we’re treated in the justice system, how our rights are treated, governing our relationship with the land and the animals and all of the things that create our identity, the racism is so deep in that that you can’t just fix that on a piecemeal basis.”