The Changing Face of miscarriages of Justice: Preventive Detention Strategies in Canada and the United States
The subject of miscarriages of justice usually brings to mind the picture of an innocent person who has been convicted of a crime he/she did not commit, through a criminal prosecution, by virtue of an unfair process. This image has often been repeated in the media, and in some more fortunate cases accompanied by triumphant release from years of wrongful imprisonment. The previous three decades have evinced a large body of innocence scholarship reﬂ ecting research into the myriad factors contributing to wrongful conviction, as well as proffering policy and practical means of prevention. However, largely ignored in this process are a host of victims of wrongful accusations, and at times wrongful convictions, as a result of the post 9/11 “war on terror.” The difﬁ culties encountered through the use of preventive detention measures can be understood as contributing to miscarriages of justice. Roach and Trotter (2005) have examined the concept of miscarriages of justice within the broader context of the “war on terror” and they underline the importance of maintaining
legal standards of fair treatment and protecting civil liberties. Similar to Walker’s (1999) earlier arguments about the unjust application of laws against Irish terrorist suspects in the U.K. in the 1970s and 1980s, measures taken since September 11, 2001, to address the threat of terrorism in North America and parts of Europe have resulted in miscarriages of justice for those designated as enemy combatants.2 A by-product of excessive and forceful governmental reactions to real and alleged terrorist activity has resulted in insufﬁ cient recognition and treatment of the rights of many individuals to whom they are applied. The emergent discourse regarding miscarriages of justice within the context of terrorism illustrates the dangers involved when governments circumvent the fetters of criminal prosecutions and use immigration and military law to detain and deport individuals suspected of terrorist activities. In the decade since the horriﬁ c terrorist attacks of 9/11, nation states have enacted a number of measures, both legally and extra-legally,3 in an attempt to quash further terrorism. At the same time, to a large degree this has occurred at the expense of civil liberties of accused persons, both citizens and non-citizens of nation states. The purpose of this chapter is to underline how two democracies, Canada and the United States, have used executive and legislative powers in the wake of 9/11 to stem the tide of terrorism and have inadvertently also created new cases of miscarriages of justice.