ANNUAL REPORT 2009 MINISTER OF JUSTICE

3. Emerging Issues and Developments

Judicial Decisions

During this reporting period, the courts conducted two judicial reviews of cases dealt with by the CCRG.

In Daoulov v. Attorney General of Canada, the Federal Court of Appeal rejected an appeal by Anthony Daoulov.

Mr. Daoulov was convicted in 2000 of possession of heroin, and sentenced to 10 years in prison. The Quebec Court of Appeal upheld the conviction but reduced his sentence to eight years. In 2004, he filed an application for ministerial review. In 2005, the CCRG concluded there were no reasonable grounds to believe a miscarriage of justice had likely occurred and as a result, a formal investigation would not be undertaken.

Mr. Daoulov sought judicial review of that decision. In April 2008, Mr. Justice Orville Frenette of the Federal Court concluded that the CCRG’s decision was not unreasonable and that many of the points raised by Mr. Daoulov in his application for ministerial review had been previously rejected by the courts.

In January 2009, the Federal Court of Appeal upheld the judgment, ruling that Justice Frenette “did not commit any error warranting the intervention of this Court.”

In June 2009, the Supreme Court of Canada denied Mr. Daoulov leave to appeal that ruling.

In Bilodeau v. Minister of Justice, a 2-1 ruling of the Quebec Court of Appeal upheld a decision by the Quebec Superior Court that the proper forum to challenge a ministerial decision under section 696.1 was the Federal Court.

Mr. Bilodeau had been convicted of murder in 1971 in Montreal and sentenced to life imprisonment. In 2001, his lawyer filed an application for ministerial review. In November 2007, the Minister rejected the application, concluding there were not reasonable grounds to believe that a miscarriage of justice likely occurred.

Mr. Justice Jerry Zigman of the Quebec Superior Court ruled in March 2008 that the application to challenge the Minister’s decision should have been brought in Federal Court, which has exclusive jurisdiction to review federal decisions.

Mr. Bilodeau has sought leave to appeal the appeal ruling to the Supreme Court of Canada.

Commission of Inquiry into the Wrongful Conviction of David Milgaard

In September 2008, the Government of Saskatchewan released the Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard.

In 1970, Mr. Milgaard was convicted of non-capital murder for the 1969 slaying of nurse’s aide Gail Miller in a snow-covered Saskatoon alley. On December 28, 1988, Mr. Milgaard applied to the Minister of Justice for a review of his conviction pursuant to then section 690 of the Criminal Code. On February 27, 1991, the Minister of Justice dismissed Mr. Milgaard’s first application, but after a second application, the Governor in Council referred the case to the Supreme Court of Canada on November 28, 1991.

On April 14, 1992, following the Supreme Court’s opinion, the Minister of Justice directed that a new trial should be held for Mr. Milgaard. On April 16, 1992, the Attorney General of Saskatchewan entered a stay of proceedings on that indictment. DNA evidence eventually exonerated Mr. Milgaard and was used to convict Larry Fisher of the murder of Gail Miller. Mr. Milgaard was eventually compensated $10 million.

In February 2004, the Government of Saskatchewan called a commission of inquiry into Mr. Milgaard’s wrongful conviction, headed by Mr. Justice Edward P. MacCallum of the Alberta Court of Queen’s Bench.

The Inquiry ran from January 2005 to December 2006, sitting a total of 191 hearing days. In total, 114 witnesses were called and over 3,200 documents were introduced in evidence.

In his report, the Commissioner concluded that the Saskatoon Police and RCMP conducted a thorough and appropriate investigation of the Gail Miller murder, and that no police officer or force was guilty of misconduct or tunnel vision. Likewise, Mr. Milgaard’s trial was conducted competently and fairly by both the prosecutor and defence counsel.

However, Commissioner MacCallum said the criminal justice system failed Mr. Milgaard “because his wrongful conviction was not detected and remedied as early as it should have been.”

The Commissioner made 13 recommendations, dealing with issues such as the retention of trial exhibits and police and prosecution files, statements taken from young persons, compensation of the wrongfully convicted, and the secrecy of jury deliberations.

He also recommended that the investigation of claims of wrongful conviction be done by a review agency independent of government, established along the model of the English Criminal Cases Review Commission, to replace ministerial review under section 696.1 of the Criminal Code.

The report is available online at http://www.milgaardinquiry.ca/.

Inquiry into Pediatric Forensic Pathology in Ontario

In October 2008, the Government of Ontario released the report of the Inquiry into Pediatric Forensic Pathology in Ontario.

The Inquiry, headed by Mr. Justice Stephen Goudge of the Ontario Court of Appeal, made 169 recommendations to improve the pediatric forensic pathology system in Ontario.

The Inquiry was appointed in April 2007 after 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 experts 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, William Mullins-Johnson, was the subject of an application for ministerial review.

The Inquiry’s mandate was to conduct a systemic review and an assessment of the policies, procedures, practices, accountability and oversight mechanisms, quality-control measures, and institutional arrangements of pediatric forensic pathology in Ontario from 1981 to 2001 as they relate to its practice and use in investigations and criminal proceedings. The Commissioner was to make recommendations to address systemic failings and restore and enhance public confidence in pediatric forensic pathology in Ontario.

The Inquiry heard 47 witnesses, conducted 16 roundtable meetings, and reviewed 36,000 documents.

Commissioner Goudge concluded that there was “failed oversight” at all levels: “The oversight and accountability mechanisms that existed were not only inadequate to the task but were inadequately employed by those responsible for using them.”

The Ontario Government subsequently introduced legislation to implement many of the Inquiry’s recommendations. It also announced:

• the appointment of a team of medical and legal experts to review criminal convictions involving “shaken baby” death cases; and
• the appointment of a team of legal experts to advise on the viability of a potential process to compensate victims of Dr. Smith’s errors.

The Ontario Court of Appeal has also agreed to hear several appeals in cases in which Dr. Smith testified.

The Inquiry’s report is available online at http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.html.

In the spring of 2007, the Public Prosecution Service of Canada (PPSC) undertook a review of homicide prosecution files from the North which could have involved Dr. Smith. (The PPSC is responsible for Criminal Code prosecutions in the three territories.)

That review concluded that none of the autopsy-related files over 27 years had resulted in charges or convictions involving Dr. Smith. The review was conducted with the assistance of the territorial coroners’ offices.

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