FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE

11. OTHER ISSUES

The Working Group has identified several other issues related to wrongful convictions that are deserving of study:

1. Disclosure

Several cases of wrongful conviction, especially historic ones, have involved the failure of Crown counsel to disclose evidence to the defence.

However, since another Heads of Prosecutions Committee working group has already produced a report on this subject, and the federal government has indicated an intention to possibly legislate in this area, we will not discuss this issue further.

2. Ineffective Assistance of Counsel

In the United States, ineffective defence lawyers have certainly contributed to some cases of wrongful conviction.[223] It is not clear what the situation is in Canada, although none of the commissions of inquiry have highlighted this as an issue.

However, an issue that deserves some attention is what are the responsibilities of Crown counsel when they suspect an accused person may not be getting effective counsel. Perhaps some guidelines should be developed to assist prosecutors in these difficult ethical situations.

3. Police Notebooks/Crown Files/Trial Exhibits

As the Morin and Sophonow Inquiries noted, there are no consistent rules on how police take and keep their notes, how long police officers’ notebooks should be kept, and who should keep them and where. The issue is complicated because police officers understandably record their notes chronologically, not necessarily by the case they are working on. For example, the Sophonow Inquiry noted:

At the present time, officers, upon retiring or leaving the force, are required to keep their notebooks. This is unsatisfactory. At the Inquiry, evidence was given by conscientious officers that notebooks, which they kept in their homes after retirement, had been lost or irreparably damaged by fire or flood. This should not happen. The Municipality should be responsible for saving officers' notebooks. They should be kept preferably for 25 years, or at least 20 years, from the date that the officer leaves the force or retires. There are changes that occur in forensic science; witnesses emerge; or new physical evidence is discovered; and any of these elements may make a reinvestigation necessary. In those circumstances, the original notes would be of great importance. I realize that storage is a problem. However, the notebooks might be preserved by way of microfiche. In any event, storage should not become an insurmountable problem for the Police Service or the Municipality. The notes must be kept on file for the requisite time.

There is a similar lack of consistent rules for the maintenance of Crown files, trial exhibits and evidence gathered but not used. Federal officials report this has made the later investigation of allegations of wrongful convictions difficult.

Clear policies should therefore be developed for police, Crowns and court services on how long to keep police notebooks, Crown files and trial exhibits. Clearly the cost implications and rapid changes in technology will have to be considered in developing such policies.

[223] See eg. Scheck, Actual Innocence, ch. 9.