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Miscarriages of Justice: Annual Report 2007
Emerging Issues and Developments
Public Inquiries
During the reporting period, two provincial public inquiries into wrongful convictions were under way.
In Saskatchewan, the Commission of Inquiry into the Wrongful Conviction of David Milgaard[3] continued its work. Mr. Milgaard spent 23 years in prison for a murder he did not commit. The Inquiry, headed by the Honourable Mr. Justice Edward P. MacCallum of the Alberta Court of Queen's Bench, heard final submissions in December 2006. The Attorney General of Canada has standing at the Inquiry.
The report is expected to be released in the fall of 2007.
In February 2007, the Manitoba Government released the report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell,[4] headed by the Honourable Patrick LeSage, former Chief Justice of the Ontario Superior Court of Justice.
On June 14, 1991, Mr. Driskell was convicted of the first-degree murder of Perry Harder and sentenced to life imprisonment without eligibility for parole for 25 years.
In October 2003, he completed his application for ministerial review and in November of that year, he became only the second person to be released on bail pending the Minister's decision. On March 3, 2005, the Minister granted Driskell's application, quashed his conviction and ordered a new trial. The same day, the Government of Manitoba stayed the murder charge.
In his report, Commissioner LeSage concluded there had been a number of “serious breaches of basic disclosure obligations at an institutional level”
which contributed to the miscarriage of justice suffered by Mr. Driskell. “It is not in serious dispute that Driskell was incarcerated for 13 years, one month and seven days for a crime for which he was wrongfully convicted.”
Commissioner LeSage made a series of recommendations relating to police note-taking, post-conviction disclosure, unsavoury witnesses, direct indictments, hair microscopy evidence, and the use of stays of proceedings. He also endorsed an earlier inquiry recommendation that there should be a “completely independent entity which can effectively, efficiently and quickly review cases in which wrongful conviction is alleged.”
In response, the Manitoba Government said it accepted the recommendations “in their entirety”
and apologized to Mr. Driskell “on behalf of the province and all those who contributed to this wrongful conviction.”
It also announced an immediate, voluntary, good-faith payment of $250,000 to Mr. Driskell to recognize the “extraordinary circumstances surrounding his case”
while compensation issues are resolved. The Hounourable Ruth Krindle, retired justice of the Court of Queen's Bench, was appointed to advise Manitoba Justice on implementing the report's recommendations.
Inquiry into Pediatric Forensic Pathology in Ontario
In April 2007, the Office of the Chief Coroner of Ontario released the results of a review into 45 cases of suspicious child deaths between 1991 and 2002 where forensic pathologist Dr. Charles Smith either performed the autopsy or provided an opinion as a consultant.
In 20 cases, the panel of internationally respected experts in forensic pathology did not agree with the opinions given by Dr. Smith in a written report or court testimony or both. In a number of these cases the reviewers felt that Dr. Smith “had provided an opinion regarding the cause of death that was not reasonably supported by the materials available for review.”
Twelve of those cases had resulted in criminal convictions, and one in a finding of “not criminally responsible.”
One of the cases was the subject of an application for ministerial review.
Shortly after the release of the review, the Ontario Government appointed the Honourable Mr. Justice Stephen Goudge, of the Ontario Court of Appeal, to conduct a public inquiry into the oversight of Ontario's pediatric forensic pathology system.[5]
The inquiry, which will not examine individual cases that are or have been the subject of criminal investigation, will identify and make recommendations “to address systemic failings that may have occurred in connection with the oversight of pediatric forensic pathology in Ontario.”
The inquiry is to report by April 2008.
Simon Marshall
In December 2006, the Government of Quebec announced it would compensate Simon Marshall approximately $2.3 million for his wrongful conviction for a series of sexual assaults in the Quebec City suburb of Sainte-Foy.
Mr. Marshall, a mentally handicapped man, pleaded guilty in 1997 and served a total of seven years and four months in prison. DNA testing later proved he did not commit the offences and the Quebec Court of Appeal quashed the convictions in September 2005.
The compensation award was recommended in a report prepared for the Quebec government by the late Honourable Michel Proulx, former justice of the Quebec Court of Appeal, and lawyer Pierre Cimon.
Several inquiries are under way into Mr. Marshall's case.
Randy Druke
In December 2006, the Government of Labrador and Newfoundland announced it would compensate Randy Druken $2 million for his wrongful conviction in 1995 for the death of his girlfriend Brenda Young.
Mr. Druken's was one of three cases examined by the Rt. Hon. Antonio Lamer, who released his report in June 2006.[6] He concluded that Mr. Druken should never have been charged with the murder, and that there was no reliable evidence on which to base his prosecution. The Government also apologized to Mr. Druken.
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