FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE
3. CANADIAN COMMISSIONS OF INQUIRY
Canada has, unfortunately, not been immune to the global problem of wrongful convictions.
Despite some legal cultural differences from the countries surveyed in the preceding chapter, Canada too has had several high-profile cases of the innocent being convicted of crimes they didn’t commit. Many of the factors that have contributed to miscarriages of justice elsewhere are also apparent in the Canadian cases as well.
However in one sense, Canada is unique - full public inquiries have often been held after high-profile cases of wrongful conviction are confirmed.
Three such provincial inquiries have already been held, a fourth is underway in Newfoundland and Labrador and a fifth was recently called in Saskatchewan.
These inquiries generally are not confined to the facts leading to a particular miscarriage of justice, but are wide-ranging examinations of the systemic causes of wrongful convictions in Canada and elsewhere. The resulting reports are among the most comprehensive analyses of wrongful convictions and are oft-cited around the world.
In October 1986, a Royal Commission was appointed to review the case of Donald Marshall, who was wrongly convicted of the 1971 murder in Sydney, Nova Scotia of 17-year-old Sandy Seale and spent 11 years in prison.
The inquiry was composed of three judges - Chief Justice T. Alexander Hickman of Newfoundland, Associate Chief Justice Lawrence A. Poitras of Quebec, and Mr. Justice Gregory Thomas Evans from Ontario. After hearing 113 witnesses in 93 days of public hearings, it reported in December 1989.
Ten years later, in June 1996, the Honourable Fred Kaufman, Q.C., formerly a judge of the Quebec Court of Appeal, was appointed by the Ontario government to look into the case of Guy Paul Morin.
On July 30, 1992, Morin was convicted of the murder of his next-door neighbor, nine-year-old Christine Jessop. It was not until January 23, 1995, almost 10 years after he was first arrested and two trials later, that Morin was exonerated as a result of DNA testing not previously available. The real killer has never been found.
During the public hearings, which lasted 146 days, 120 witnesses were called. Over 100,000 pages of trial evidence, exhibits and documents filed on appeal were considered. Twenty-five parties were given standing and a number of witnesses were called to testify who were either experts or participants in the administration of criminal justice from around the world.
Kaufman released his two-volume report on April 9, 1998. It contained 1,380 pages, and made 119 recommendations for change, many of which were systemic in nature. Bruce MacFarlane says his report "is arguably the most comprehensive judicial review that has ever been undertaken into the causes of wrongful conviction, and how to avoid them."
In June 2000, former Supreme Court Justice Peter Cory was appointed by the Manitoba Government to look into the case of Thomas Sophonow.
Sophonow was tried three times for the murder of 16-year-old Barbara Stoppel and each time the Court of Appeal overturned the conviction. In 1998, the Winnipeg Police Service undertook a reinvestigation of the murder and on June 8, 2000, it announced that Sophonow was not responsible for the murder and that another suspect had been identified. On that same day, the Manitoba Government issued a public apology to Sophonow for having "endured three trials and two appeals, and spent 45 months in jail for an offence he did not commit."
Cory reported in September 2001.
In March 2003, former Supreme Court of Canada Chief Justice Antonio Lamer was appointed to study three cases for the Government of Newfoundland and Labrador, one of which is an acknowledged case of wrongful conviction. He is to report in December 2005.
In February 2004, the Saskatchewan Government appointed Mr. Justice Edward P. MacCallum of the Alberta Court of Queen’s Bench to study the case of David Milgaard, who spent 23 years in prison for a murder he didn’t commit.
The following chart compares the recommendations made by the three inquiries, which have reported to date. As well, each of the following chapters reproduces those inquiry recommendations relevant to the subject discussed in the chapter.
The purpose of this report is clearly not to respond to each and every inquiry recommendation, nor is the Working Group necessarily endorsing them simply by reproducing them. However, these recommendations serve as a useful point of departure for discussion and have been carefully considered in the Working Group’s deliberations. As well, in many jurisdictions, much has been done to respond to, and implement, these recommendations and that too is highlighted in each chapter.
|1. Forensic Evidence||
· Limitations on forensic evidence has to be appreciated by all the parties in a court proceeding and explained to the jury
· Forensic material should be retained to allow for replicate testing
· Scientists should be working to challenge or disprove a hypothesis rather than to prove one
· Defence should have access to forensic experts
· Scientists should be trained in testifying so their evidence isn't misinterpreted
|· All reasonable tests should be performed on the evidence (duty of Prosecution and Police)|
|Limited use||Prohibited except in rare circumstances (e.g., kidnapping where witness knows whereabouts of victim)|
|(a) Prosecution procedure for using in-custody informers||
· Crown policy should reflect dangers of such evidence
· Reliability of evidence is key (lists 13 criteria on assessing reliability)
|3 criteria from Morin are focused on: [(1) information could only be known by one who committed the offence; (2) information is detailed and revealing; (3) confirmed by police investigation as correct and accurate] AND the other 10 are also noted|
|(b) Jury warning||
Warning stronger than a Vetrovec should be given
|Very strong direction as to the unreliability of the evidence|
|(a) Training of officers||
· More intensive training for cadets involved with high profile crimes
· Training should be monitored by parties outside the police force
· Evaluation of investigative capabilities
· Training with respect to sensitivity on visible minority issues
|Setting of minimum standards respecting initial and on-going training||Attendance at annual lecture/course for all officers on tunnel vision|
|(b) All interviews conducted with suspects should be video/audio-taped||Recommended||
· If not videotaped, trial judge can draw negative inference
· If not videotaped, general rule is should be inadmissible
|(c) Police should be encouraged to videotape interviews with witnesses whose testimony may be challenged in court||
· Training for police interview techniques to enhance reliability
|· Interviews with alibi witnesses should be video/audio taped and inadmissible if not transcribed|
|(d) Special care to be given for certain categories of witnesses when interviewing||Recommended for youth or mentally unstable witnesses / suspects||Alibi witnesses should not be influenced or interrogated|
|(e) Alibi witnesses: officers other than officers involved in investigation of accused should investigate alibi of accused||Recommended||Recommended|
|(f) Avoidance of tunnel vision||
· Education of police officers on how to identify and avoid tunnel vision
· Status of investigating officers should not be elevated for pursuing "best" lead/suspect
|Attendance at annual lecture/course for all officers on tunnel vision|
|(g) Use of polygraphs||Police should be instructed as to the proper use and limitations of polygraphs|
|(h) Limited Use of Criminal Profiling||Police should use as an investigative tool only|
|(i) Must be a comprehensive and consistent retention policy for Police Notebooks||
· Notebooks should be easily located
· Ultimate goal should be towards computerization
· Notebooks should not be stored by individual officers
· Should be stored by the municipality (might be preserved on microfiche)
· Kept for 20-25 years
|(j) Preservation of exhibits||· Exhibits should be kept for 20 years|
|(k) Eye Witness Identification||
· Lays out additional procedure for live line-up identification
· Lays out additional procedure for photo-pack line-up identification
· Strong and clear directions to jury on frailties of eye-witness identification
· Expert evidence on accuracy of eye-witness identification should be readily admitted
|(l) Missing Person Investigations||
· Police should be mindful that it may escalate into major crime investigation and must take appropriate measures to preserve evidence
· Lists proper procedure to employ in a body site search
|(a) Training||Programs to identify and reduce system discrimination||
· Crown should be educated on identification and avoidance of tunnel vision
· Evidence of other suspects should be revisited
|(b) Strength of evidence||Crown duty not to raise evidence that is reasonably considered to be untrue||Will render trial unfair if Crown raises prejudicial issues without adequate evidence|
|(c) Interviewing Techniques||Lists criteria for increasing reliability of interviews including taping of interviews|
|(d) Crown advocacy||Crowns should be trained on limits of Crown advocacy including being prevented from appealing jury acquittal|
|(e) Crown disclosure||Amendments to Criminal Code re: disclosure||Creation of committee to review and discuss disclosure issues|
|5. Lack of independent review of wrongful convictions||Independent board to review wrongful convictions||Independent board to review wrongful convictions||Independent board to review wrongful convictions|
|6. Relationship between Crown and Defence||Provincial government should provide funding for criminal bar to discuss relevant issues||Atmosphere of suspicion as between Crown and defence bar should be alleviated by regular meetings to discuss issues|
|7. Lack of disclosure of Alibi defence||Legislative amendments should be made to permit an accused's exculpatory statement made upon arrest in certain conditions||Disclosure by the defence should be within a reasonable time|
|8. Lack of sensitivity of the Criminal Justice System to visible minorities||
· All levels of the Administration of Justice (Judiciary, Counsel, Corrections, etc.) should make efforts in this regard
· Creation of separate community controlled Justice system for Aboriginal peoples
|9. Treatment of the Accused||Person charged with crime should be treated neutrally in court|
|10. Jury Charge||Jury should be cautioned that evidence may be coloured by the criminal charges or other external factors such as the notoriety of the case||Jury should be cautioned with respect to eye-witness fallibility and unreliability of in-custody informants|
|11. Limited powers of the Court of Appeal||
· Court of Appeal should be allowed to entertain "lurking doubt" when deciding whether to set aside a conviction
· "Fresh evidence" powers of the Court of Appeal should be expanded / changed
|12. Procedure in Laying of charges||Sets out additional recommendations for Police and Crown|
|13. Lack of Clarity of Public Interest Considerations||Lists criteria related to the public interest with respect to continuing a prosecution|
-  The Royal Commission on the Donald Marshall, Jr., Prosecution, hereafter referred to as the Marshall Inquiry.
-  The Commission on Proceedings Involving Guy Paul Morin, hereafter referred to as the Morin Inquiry.
-  The Inquiry Regarding Thomas Sophonow, hereafter referred to as the Sophonow Inquiry.
-  The press release announcing Lamer’s appointment is at http://www.gov.nf.ca/releases/2003/just/0321n03.htm
-  The press release announcing MacCallum’s appointment is at http://www.gov.sk.ca/newsrel/releases/2004/02/20-064.html
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