- Federal
prosecutors' report 2005 |
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- Wrongful convictions
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- This article gives an excellent
round up of the reasons for wrongful convictions in Canada so
far. Injusticebusters have noticed, since our involvement in
the Klassen/Kvello lawsuit
and the knowledge we now have about Brian
Dueck (Superintendant with the Saskatoon Police Service)
who cleverly and maliciously set up 19 people with phony but
serious sex crime charges, Loren
Schinkel (prominent in the Winnipeg Police Service) who has
forged a document purporting to be a murder confession from Monique Turenne and Scott
Gobeil of the OPP who enlisted Winnipeg Police to help arrest
Don Smith in
a flurry of publicity about pornography even though his superiors
had informed him Smith was doing nothing wrong -- that dishonest
police can be extremely destructive to the reputation of justice.
One dishonest cop can do a fair bit of damage and a handful can
do a lot.
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- Newfoundland is having
an inquiry into Greg
Parsons, Ronald Dalton
and Randy Druken's wrongful
convictions: all of these strongly implicate the Crown with encouraging
police sloppiness, over-looking or manufacturing evidence. Walter Gillespie and Robert
Mailman have not found justice. Stephen
Leadbeater still has a pending lawsuit. I don't know what
has become of Michael
Burns. The RCMP officer who arranged for the near fatal beating
of Shannon Murrin has experienced
no consequences and Murrin has not been compensated.
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- Coming down the pike are
persons who have been wrongfully convicted by the Big Boss sting.
This seems to be the one which was used against Kyle
Unger. The shortlived CBC show Disclosure exposed the outrageous
stings used against Olivia Medgars and Clayton Mentuck. These
two cases show that while publication
bans are no longer automatic to protect publicizing police dirty
tricks, the dirty tricks continue.
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- The methods used by RCMP
officers A [name removed] and B [name removed] to create confession evidence
from Sebastian Burns
and Atif Rafay will surely shock you as it should shock the
judicial commuity. Officer A, along with Officer C [name removed], was deeply
involved in a "scenario" sting ordered by Brian Dueck
against Wilf Hathway who
is on remand awaiting his first court hearing. The "Big
Boss Scenario" would seem to be a current favorite for unscrupulous
cops since they not only get large budgets; they get to play
dress-up.
[Note July 19, 2007 from Kevin Steele: For a few years my mother felt strongly enough about the previous two cases that she
published the officer’s names in disregard of publication bans. I have recently been contacted by lawyers for the RCMP informing me of this publication ban. While mom might tell me that I am protecting the guilty by removing their names, I hope that these operations are already under greater scrutiny because of mom’s efforts and those of her colleagues, and that publishing their names here is no longer necessary for them to be held accountable for their actions. — KS]
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- The
CSI effect | Jailhouse
informants after Morin | Fingerprints
| False confessions
| John Hudak: Even their own aren't
safe | Further down this page: Justice Minister Irwin Cotler
considers review board
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How to
be wrongfully convicted :
- Witness error, perjury, police tunnel
vision among the causes
- Joseph Brean, National
Post, October 29, 2004
After 45 years as a convicted
murderer -- during which entire fields of forensic science have
come and gone, and laws to avoid wrongful convictions have been
written and rewritten -- Steven Truscott
is still caught in the waiting game.
Now, with his case headed to
the Ontario Court of Appeal, he stands as a shining example of
perhaps the most frustrating dilemma in jurisprudence -- that
while it is frequently difficult to prove a suspect's guilt,
it is nearly impossible for the wrongly convicted to prove their
innocence.
 What is less obvious -- even after
the high-profile public inquiries into such grievous legal errors
as the prosecutions of Guy Paul
Morin and Thomas Sophonow -- is why these wrongful convictions
happen.
In the words of James
Lockyer, a celebrated defence lawyer who has represented
many wrongfully convicted people in Canada, including Truscott:
"The causes are as infinite as there are cases."
This may be true, but there
are some notable and revealing trends.
A survey of 205 wrongful convictions
in the United States prior to 1988, for instance, concluded that
eyewitness misidentification was responsible for just over half
of them, followed in roughly equal proportions by witness perjury,
negligence on the part of criminal justice officials, "pure
error" and coerced confessions.
Explicit framing or perjury
by investigators made the list, but only just, and questionable
or mistaken forensic science -- which has emerged in the last
20 years as a key factor in nearly all Canadian cases of wrongful
convictions -- barely registered at about 1%.
If this survey were to be conducted
again, the results would likely change -- a greater proportion
would be due to forensic science errors, perhaps, especially
in cases of hair microscopy, and there might also be an increase
in prosecutorial negligence, given the stricter standards that
have been imposed on Canadian Crown attorneys -- but not necessarily
for the better.
A look at some of Canada's
most notable cases reveals a judicial system stubbornly slow
to learn from its frequent mistakes.
Although it is rarely a central
factor, a weak or inexperienced defence lawyer turns up with
alarming regularity in cases of wrongful conviction. Frequently,
their central error is in failing to acquire or fully appreciate
all the evidence that police have compiled against the accused.
 This is not always the defence lawyer's
fault.
Before 1991, Crown prosecutors
in Canada were obliged to disclose only the evidence they judged
to be reliable, relevant and legally admissible. Now, however,
after a Supreme Court of Canada ruling in a case involving a
lawyer fighting breach of trust, theft and fraud charges, they
must disclose nearly everything, but old habits die hard. For
evidence, one need look no further than the 1993 murder prosecution
of Felix Michaud of New
Brunswick, whose conviction was overturned in 2001 due to ''the
high degree of negligence demonstrated by the Crown in failing
to disclose evidence [a wiretap tape recording that appeared
to exonerate Mr. Michaud] that was beneficial to the defence.''
ROBERT BALTOVICH AND EYEWITNESS
TESTIMONY
The Ontario Court of Appeal,
which will hear Truscott's case, is now deliberating over the
decade-old conviction of Robert
Baltovich, whom a jury convicted of killing his girlfriend,
Elizabeth Bain. Evidence has since emerged, however, that points
to Baltovich's innocence and the possible guilt of serial killer
Paul Bernardo.
The Crown's case was entirely
circumstantial, and relied heavily on the "hypnotically
refreshed" testimony of eyewitnesses who placed Baltovich
at various places that fit with the Crown's theory about Ms.
Bain's murder. One major complaint in the appeal was that an
eyewitness who picked Baltovich out of a lineup had been shown
the photos all together, rather than one at a time.
This may seem a minor point,
but psychological research has shown that witnesses -- under
pressure to be helpful -- will frequently point to the person
who most resembles their memory of the suspect.
 The inquiry into the wrongful conviction
of Thomas Sophonow made
the recommendation that police use only sequential lineups (one
picture at a time, until the witness makes an identification)
not simultaneous lineups. This is a recommendation, though, not
a law, and police do not always follow it.
"There are no rules about
what police can and cannot do [with lineups], and we are going
to continue to have eyewitness identification problems in Canada
until there are," Mr. Lockyer said.
The central problem with eyewitnesses
is that their confidence rarely matches up with their reliability.
This is vexing for the courts, as confident witnesses make convincing
witnesses.
The American psychologist Elizabeth Loftus, the grandmother
of the field of eyewitness fallibility, has shown in dozens of
ways that, with a little suggestion, witnesses can be certain
they saw something, when in fact they never did. Although the
issue is dead serious in murder convictions, her experiments
are often hilarious, such as when people swear on their life
that they met Bugs Bunny at Disney World. Bugs, of course, is
a Warner Bros. character, who would never turn up at the theme
park.
GUY PAUL MORIN AND FORENSIC
SCIENCE
For all the advances in law
and police procedure, nothing has changed so much in the last
20 years as forensic science. DNA analysis, especially, has grown
from science fiction into a powerful tool for both prosecution
and defence.
Hair analysis under a microscope,
on the other hand, which played a crucial role in the conviction
of Mr. Morin , among several others, has been largely undermined.
 The Association in Defence of the Wrongly
Convicted, of which Mr. Lockyer is a director, has been pressing
provincial governments to re-examine every case that relied on
hair microscopy in the last 20 years.
So far, only Manitoba -- home
to wrongfully convicted James
Driskell and Thomas Sophonow -- has complied. And just last
month, the Manitoba Attorney-General's office announced that
two more cases (out of 39 to use hair analysis) had failed a
follow-up DNA analysis.
DAVID MILGAARD AND PUBLIC BLOODLUST
Mr. Lockyer scoffs at the common
perception that wrongful convictions tend to befall funny ducks
-- people who, by virtue of their own peculiarity or eccentricity,
inevitably draw police suspicion upon themselves.
They are not "weird, peculiar,
strange or whatever," he said. "I think rather the
contrary, that they're perfectly normal but they get demonized
by investigators."
 Thus did Guy Paul Morin become the
creepy guy who lived next door to the murdered girl and fit the
FBI profile of the killer (it later emerged at a public inquiry
that this profile had been tailored to fit him). David
Milgaard, too, was cast a suspicious hippie in the Gail Miller
murder investigation.
And perhaps -- the Ontario
Court of Appeal has not yet ruled -- straight-laced university
student Baltovich was wrongly cast a fiendish criminal mastermind,
able to send up a smokescreen of circumstantial evidence to confuse
the police.
Of course, as Mr.
Justice Michael Moldaver, one of three judges on the Baltovich
appeal, observed in an off-the-cuff courtroom comment: "So
many things can be seen as deception if you presume he's guilty."
 ROMEO PHILLION AND FALSE CONFESSIONS
In custody on a robbery charge
in the early 1970s, Romeo
Phillion falsely confessed to murdering Ottawa firefighter
Leopold Roy. He recanted, but not before the wheels had been
set in motion that would see him wrongly convicted.
Mr. Lockyer believes people
make false confessions for two main reasons. One, which he said
applies in the Phillion case, is a desire for notoriety, to seek
out those 15 minutes of fame, or at least infamy.
"That 15 minutes turned
into 32 years," Mr. Lockyer said.
In the case of Kyle
Unger, a Manitoba case that also involved faulty hair microscopy,
police elicited a confession by posing as drug dealers and Unger,
who maintains his innocence, said he falsely confessed to murder
because he was hoping to impress them.
The other reason is police
pressure, which Mr. Lockyer said has been especially troublesome
when the subject is developmentally delayed.
In his book Police Interrogation,
Canadian criminologist R.S.M. Woods outlines the various forms
this pressure can take. In addition to the good cop-bad cop strategy,
he describes the techniques of intimidating exaggerations (theft
is armed robbery, assault is attempted murder); of police pretending
to have more evidence than they actually do (which can often
backfire); of ego-deflation ("You're too stupid to have
robbed that bank."); ego-inflation ("Wow, what a brilliant
crime. Tell me about it."); blaming the victim, which works
especially with sexual crimes; the "you did nothing wrong"
approach, in which police might ask about the "accident,"
and the "speak now or regret it later" approach.
LONG-TERM CONSEQUENCES
For his analysis of the psychological
effects of wrongful convictions, British psychologist Dr. Adrian
Grounds set out expecting to find nothing special. Most wrongfully
convicted people enter prison with relatively stable emotional
lives, and the consensus in the scientific literature is that
long-term incarceration does not cause significant psychological
deterioration.
But in wrongful convictions,
he found the situation is far different; these men had become
wrapped in chronic fear, and were unable to pursue the intimacy
with their families that might have saved them.
''Those who had been in prison
for longest had lost a generation of family life. Parents had
died and children had grown up. Young men who entered prison
as fathers of young children were released as middle aged men
with grandchildren,'' he wrote.
Aside from the understandable
feelings of bitterness and loss, Dr. Grounds found, the 17 men
he studied ''had marked features of estrangement, loss of capacity
for intimacy, moodiness, inability to settle and loss of a sense
of purpose and direction.''
In all but three of those cases,
he found their twisted emotions had caused such significant impairment
that it fit the World Health Organization's definition of ''enduring
personality change after catastrophic experience.''
In his report on the Sophonow
case, Mr. Justice Peter Cory argued that, psychology aside, the
very fact of wrongful conviction creates an entitlement to financial
compensation. This is not yet enshrined in law, though, and so
the wrongfully convicted often try to prove that police were
doing more than just investigating them aggressively; that they
were dishonest and malicious.
Once the rest of society has
moved on from a tragedy, however, it can be difficult to rally
support for such a cause, which, like many lawsuits, can smack
of opportunism.
And so these people, overwhelmingly
men, are often left alone with the sad fact, as expressed in
the Tragically Hip song about David Milgaard, that "no one's
interested in something you didn't do."
© 2004 CanWest Interactive
Inc. All Rights Reserved.
Cotler mulls panel to
probe wrongful-conviction claims
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, Nov 25, 2004
The sheer volume of applications
from convicted criminals claiming innocence has made it almost
impossible for justice ministers to give them the attention they
deserve, Justice Minister Irwin Cotler says.
Mr. Cotler said that "in
the better interests of justice," it may be time to set
up an independent commission to investigate declarations of innocence
and speedily resolve them.
"I think what we need
is what is the best process for a wrongful-conviction-review
process," he said in an interview. "If the best process
is to have an independent commission, so be it."
Mr. Cotler said he was particularly
struck recently by the thousands of pages of material he had
to consider with the Stephen Truscott murder-conviction review.
"The number of wrongful-conviction
applications -- all this is going to grow," he said. "The
Minister of Justice is going to have to make more decisions,
but there is only finite time. . . ."
The current procedure is that
Justice Department lawyers or outside counsel investigate cases
and make recommendations to the Justice Minister, who then decides
whether to reject the application, order a new trial or refer
it to a provincial appellate court for further review.
Mr. Cotler said he is sympathetic
to criticisms that the current system appears to be "in-house"
in the Justice Department, or vulnerable to political considerations.
An independent, arm's-length commission likely would enhance
public confidence in the justice system, he said.
Advocates for the wrongly convicted
have lobbied consistently for an independent commission that
bypasses the Justice Department and makes binding recommendations.
"You need a fail-safe
mechanism at the back end of the justice system, and we don't
have one," said lawyer James Lockyer, a founding member
of the Association in Defence of the Wrongly Convicted.
The model that advocates invariably
point to is Britain's Criminal Convictions Review Commission.
In its seven years, the CCRC has referred 240 convictions for
appellate court review. Seventy per cent of the convictions ultimately
were quashed, including 48 homicide convictions (out of 88 cases).
In comparison, Mr. Lockyer
said that in Canada just eight cases have been referred for a
new trial or appellate court review since 1997.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
