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Inquiry
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Limited in scope to limit damage to the Crown | Dan
Lett backgrounder in the Winnipeg Free Press, July, 2006
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James Driskell
(6)
Another 'miscarriage
of justice'
TRACEY TYLER, LEGAL AFFAIRS
REPORTER, Toronto Star, Mar. 4, 2005
James Driskell has recovered
his innocence. Now he's looking for accountability.
The 46-year-old Winnipeg man
spent more than 12 years in prison because forensic scientists
made mistakes and witnesses lied.
And for more than a decade,
Manitoba prosecutors concealed evidence that two key witnesses
were paid more than $80,000 and given immunity and housing deals
in exchange for testifying against him at his trial.
Driskell always insisted he
was innocent of the 1990 murder of his friend, Perry Dean Harder.
Yesterday, his case took what his lawyer described as an "exhilarating"
turn, when federal Justice Minister Irwin Cotler quashed Driskell's
first-degree murder conviction and ordered a new trial, saying
"a miscarriage of justice likely occurred."
Cotler went on to detail repeated
and "serious" breaches of the Crown's duty to disclose
evidence in the case.
The two key witnesses "likely
committed perjury" but that was never disclosed to Driskell's
lawyers, he said. And a DNA test has discredited hair evidence
that was at the heart of the Crown's case.
Almost immediately, Manitoba
Attorney General Gord Mackintosh announced the province would
not re-prosecute and was instead staying charges against Driskell
and setting up a public inquiry.
Hobbling on a leg broken in
five places - a mishap that occurred during an auto repair -
Driskell, a father of eight, said he was "shocked"
everything came to such an abrupt end.
But the questions have really
just begun.
"I'm glad it's over, but
my main concern still remains that I'd like to see someone accountable
for this, because I've spent the last 15 years being told I have
to be accountable - I have to admit this, I have to admit that,"
Driskell told the Star in an interview from Winnipeg.
"Now that the whole, general
public knows there was information hidden and stashed in the
corner somewhere and not turned over to defence lawyers, someone
has to be answerable for that," he said.
"It hasn't only happened
in my case. It goes back to Tommy Sophonow, David Milgaard and
Guy Paul Morin."
Mackintosh said he's also looking
for accountability.
"These are very difficult
matters and this is very troubling and disturbing," he told
the Star. "And yet, you know, the positive aspect
is there have been revelations in this case that can provide
justice."
Mackintosh said he will be
considering the names of potential inquiry commissioners over
the next few weeks and consulting with the Toronto-based Association
in Defence of the Wrongly Convicted on the terms of reference
for the probe.
Depending on the timing, it
could mean three inquiries will be running simultaneously into
miscarriages of justice in Canada.
An inquiry is currently underway
in Saskatchewan into Milgaard's 1969 murder conviction and another
is examining three wrongful murder convictions in Newfoundland.
- `We took this case,
- we shook it and we won
it.'
- --James Lockyer, acting for James Driskell
It will also be at least the
sixth Canadian inquiry into a wrongful conviction.
"It's been going on and
on and on," Driskell said yesterday. "This can happen
to absolutely anybody, and it seems there are no checks in place."
Driskell spent much of his
life on the tough streets of Winnipeg's north end. His father
was murdered at age 44.
Together, Driskell and Harder
ran a "chop shop," cutting up stolen vehicles and selling
the parts. Both had been charged with possession of stolen property.
But in June 1990, a week before he was to appear in court, Harder
disappeared.
Three months later, a passenger
on a train spotted Harder's body near a north Winnipeg railway
track, in a shallow grave.
Before he died, Harder struck
a plea bargain deal with the Crown and was expected to plead
guilty to the stolen property charges. The Crown's theorized
that he was killed so he wouldn't be able to testify at Driskell's
trial.
But Driskell's lawyer insisted
he had been told by Harder's lawyer that his client would not
be testifying against Driskell.
Harder was shot at least once,
but no gun was ever found. The only physical evidence connecting
Driskell to the crime were three hairs found in his van, which
were linked to Harder by an RCMP hair analyst.
The Crown also had a star witness,
Reath (Ray) Zanidean, who testified that he overheard Driskell
plotting the murder and confessing to the crime. He was backed
up by another witness, John Gumieny.
Driskell was convicted by a
jury on June 14, 1991 and sentenced to life in prison, with no
chance of parole for 25 years. He lost every appeal. Five years
ago, he approached the Toronto-based association.
"We took this case, we
shook it and we won it," said James Lockyer, Driskell's
lawyer and one of the group's founding directors. "We put
it in the wringer, turned it upside down and all these coins
fell out."
The association met with Manitoba
justice officials in 2000 and asked them to release trial exhibits
for DNA testing. Two years later, the province agreed and paid
for tests, which showed the three hairs in the van did not belong
to Harder.
Lockyer and the association
pressed Manitoba justice officials to disclose other evidence
still sitting in government files. They discovered that Zanidean
and Gumieny received "tens of thousands" of dollars
in exchange for their testimony, Lockyer recalled this week.
Zanidean, in particular, was
paid nearly $83,000, including a $20,000 lump sum payment to
move to Alberta. Manitoba justice officials also took over his
mortgage payments.
Saskatchewan justice department
officials had urged their Manitoba counterparts to disclose the
deal to Driskell's trial lawyer, Greg Brodsky. But it would be
10 years before Brodsky learned of payments or deal.
Meanwhile, in 1991, Zanidean
made an anonymous phone call to Brodsky's office, attempting
to recant his testimony.
Both he and Gumieny have either
recanted or threatened their testimony, information that was
never disclosed but "significantly undermined" their
credibility, Cotler said yesterday.
After DNA results were obtained
in Driskell's case, Driskell's lawyers obtained his release on
bail, pending yesterday's decision by Cotler.
Driskell had asked Cotler to
review the case using his powers under sec. 696.1 of the Criminal
Code and was only the second federal prisoner to be set free
while the review was ongoing.
Wrongfully convicted, now Driskell
holds his head high
Fifteen-year ordeal a
'case study' in dangers of police and prosecutorial tunnel vision,
Justice Minister says in quashing conviction
By KIRK MAKIN, JUSTICE
REPORTER, March 4, 2005
An increasingly shaky case
against convicted killer James Patrick Driskell disintegrated
altogether yesterday, adding the Winnipeg man's name to a growing
list of miscarriages of justice.
Federal Justice Minister Irwin
Cotler launched a swift chain of events around noon, when he
used a special Criminal Code provision to order a new trial for
the 46-year-old man.
Manitoba's Department of Justice
promptly entered a stay of proceedings and called a public inquiry
into the affair, ending Mr. Driskell's conviction without exonerating
him.
He had been free on bail since
late 2003, after serving a total of 12 years in Stony Mountain
penitentiary convicted of first-degree murder in the death of
his friend, Perry Dean Harder.
"Can you imagine if we
had the death penalty in this country?" Mr. Cotler said
in an interview yesterday.
"With capital punishment,
there is no appellate review. We would have been executing innocent
people."
Mr. Cotler said the Driskell
case will live on as a "case study" in the dangers
of police and prosecutorial tunnel vision, inadequate disclosure
of evidence, false testimony and poor scientific analysis. "Let
us hope we all learn lessons from this miscarriage of justice,"
he said.
"I'm still shaking, it's
unbelievable," Mr. Driskell said in an interview yesterday,
minutes after lawyers from the Association in Defence of the
Wrongly Convicted told him that his 15-year ordeal was over.
He was convicted in 1991, a
year after Mr. Harder was last seen outside his rooming house
in a pickup truck. The victim's remains were found in a shallow
grave just outside Winnipeg three months after he disappeared.
He had been shot at least once.
At the time of Mr. Harder's
disappearance, he and Mr. Driskell were jointly charged with
possession of stolen goods. The Crown theory was that Mr. Driskell
killed his partner in crime to prevent him from giving damaging
testimony.
Mr. Driskell never stopped
asserting his innocence. Police stymied a Winnipeg Sun investigation
in the early 1990s, and nearly a decade passed before AIDWYC
and Centurion Ministries took up his cause. Their initial breakthrough
involved DNA testing of several strands of hair that exculpated
Mr. Driskell. They also wrested from the police a long-buried
internal report that raised numerous questions about the case.
Yesterday morning, AIDWYC lawyer
James Lockyer and co-counsel Alan Libman appeared at Mr. Driskell's
door to deliver the good news.
"He was crying,"
Mr. Lockyer said in an interview. "He said: 'Now, I can
hold my head high.' I think what he liked most of all was that
they are going to hold an inquiry. It's unfortunate they wouldn't
acknowledge his innocence, but we sort of dragged them to the
edge of the cliff. We just couldn't quite push them off."
Mr. Lockyer said the growing
list of wrongful convictions in Canada is horrifying. "Every
time we latch on to one of these cases, look what happens,"
he said. "Driskell was lucky. Minister Cotler put a great
effort into this case, yes, but only because it was put on a
plate in front of him. I've got a dozen cases behind this, and
we're not able to get to them. So, how many more are out there?"
Mr. Cotler said several key
findings pointed toward a wrongful conviction, including:
Forensic analysis of three
strands of hair found in Mr. Driskell's car that had supposedly
linked him to Mr. Harder showed they did not belong to the victim.
The report that Winnipeg police
suppressed for 10 years included information of great relevance
to the defence.
The Crown failed to disclose
that its two key witnesses, Ray Zanidean and John Gumieny, received
"substantial" compensation after they testified that
Mr. Driskell planned the murder. (Mr. Zanidean was also given
immunity on an arson charge in Saskatchewan, apparently in return
for his testimony.)
For 11 years after Mr. Driskell's
trial, the Crown failed to disclose information that Mr. Zanidean
likely committed perjury at the trial.
In another development yesterday,
the province released a report on the case by Manitoba Provincial
Court Judge John Enns. It said the action, "or inaction,"
of Crown prosecutors bordered on the criminal offence of gross
negligence.
However, Manitoba Justice Minister
Gord Mackintosh told reporters that a public inquiry would be
more useful than pursuing criminal charges against police or
prosecutors. "A commission of inquiry can tie together all
the different pieces of review that have taken place," he
said.
In the interview, Mr. Driskell
said that after years of living in a tightly structured prison
regimen, he has lost the capacity to make choices and shoulder
routine responsibilities. He said he has also struggled to divide
his time among eight children and 14 grandchildren.
Healing the psychological scars
of a family that spent 15 years with the stigma of his conviction
has added to the ordeal, he said. "It's been a struggle
from the day I got out on bail. Getting my life together has
been far more of a challenge then I ever dreamed it could be."
Mr. Driskell said he has never
given any thought to launching a lawsuit or applying for compensation
for his wrongful conviction. "I've been focused more on
getting my life together," he said. "You try not to
look forward to things."
Federal justice minister
quashes murder conviction of James Driskell
Michelle Macafee,
Canadian Press, March 04, 2005
WINNIPEG (CP) - James Driskell's
14 years spent protesting his innocence in the death of his friend
Perry Harder were finally rewarded Thursday when the federal
justice minister quashed his first-degree murder conviction.
Irwin Cotler ordered a new
trial, but Manitoba Justice officials quickly opted not to re-try
the case and filed a stay of proceedings Thursday. Driskell's
lawyer says the move effectively exonerates his client, but prosecutors
said the stay "is not a recognition of factual innocence."
Driskell was delighted with
the news.
"I'm overwhelmed,"
Driskell told a news conference.
"I imagine it's going
to take a few days to actually sink in and I'm going to take
my time with it and try to analyse my feelings over the next
few days."
Cotler, whose department has
been reviewing the case since the fall of 2003, said new evidence
that surfaced two years ago led him to conclude "that a
miscarriage of justice likely occurred in Mr. Driskell's case."
Driskell was convicted in 1991
largely on the evidence of hair samples found at the crime scene,
but he always maintained his innocence. He was released on bail
in late 2003 after the federal government agreed to the review.
Driskell and Harder were facing
charges of possessing stolen goods in 1990. But just days before
their hearing, Harder was shot to death and his body was found
near railway tracks in north Winnipeg.
DNA tests revealed the hair
samples used to convict Driskell were incorrectly identified.
Other evidence showed that two Crown witnesses were paid to testify
against Driskell and prosecutors failed to disclose information
that one witness likely committed perjury at the trial.
Cotler said he had no legal
power to make a finding of guilt or innocence.
"My own remedial authority
under the Criminal Code only allows me to both go as far and
pronounce as far as I did," Cotler told a conference call
with reporters.
But he said the Crown's decision
to stay the proceedings reflects its doubts about convicting
Driskell again.
James Lockyer, a lawyer with
the Association in Defence of the Wrongly Convicted - which took
up Driskell's case, praised Cotler's decision.
The group also credited the
Manitoba government with acting quickly in deciding not to retry
Driskell and ordering a judicial inquiry.
But Lockyer said while he's
disappointed Manitoba Justice is still not prepared to acknowledge
Driskell's innocence, his client no longer has a dark cloud hanging
over him.
"He's clear, free, exonerated,
not guilty, didn't do it, never did it and never should have
been found to have done it."
He accused the prosecution
of refusing to give up and acknowledge reality, but noted it's
a position not uncommon with wrongful conviction cases.
In a letter filed with Court
of Queen's Bench on Thursday, senior prosecutor Bob Morrison
said the stay is "simply a recognition that our ethical
standard for proceeding is no longer met."
Federal justice minister
quashes murder conviction of James Driskell
Both Driskell and Lockyer said
they're looking forward to more details about the case and how
it was handled from the outset coming to light in the inquiry.
In conjunction with Thursday's
announcements, Manitoba Justice released its final report on
the case prepared by former provincial court judge John Enns.
Enns specifically reviewed
allegations the Crown failed to disclose evidence to Driskell
and his lawyers that could have overturned his conviction.
Enns was scathing in his conclusions.
"What remains is that
by actions, or more precisely by inaction amounting to gross
negligence bordering on the criminal offence of obstruction of
justice, important disclosures did not take place," wrote
Enns.
He said it was not possible
to determine specific blame, but said senior Crown officials,
"either collectively or individually, failed seriously in
their duty to disclose."
Justice Minister Gord Mackintosh
said the report points to the need for a judicial inquiry.
Meanwhile, Driskell said he
still has a lot of work to do rebuilding relationships with his
eight children and 14 grandchildren.
"What's everyday living
for you is a challenge for me," said Driskell, who attended
the news conference in a wheelchair after recently breaking his
leg in five places.
- Driskell ordeal over
- Feds quash conviction,
province won't re-try
By FRANK LANDRY and NATALIE
PONA, LEGISLATURE/COURTS REPORTER, March 4, 2005
An early-morning phone call
yesterday ended James Driskell's nearly 15-year struggle to shake
blame for a murder he says he didn't commit. "I said 'Is
it real?' then, 'It's over?' ... For 15 years I've been fighting
for my life. That's what this is about to me," Driskell
said, describing a phone conversation with his lawyers.
Driskell, who spent 13 years
behind bars, has been on bail Nov. 28, 2003. The 46-year-old
has maintained his innocence in the death of his friend Perry
Harder since the day he was charged.
"I'm overwhelmed,"
Driskell, who was in a wheelchair after breaking his leg three
weeks ago, said at a press conference yesterday.
STAYED PROCEEDINGS
After a review by of the case
by federal Justice Minister Irwin Cotler, Driskell's June 1991
first-degree murder conviction for the Harder's death was quashed
and a new trial ordered.
Cotler cited several reasons
for his decision, including a credibility problem with two key
witnesses, a failure by the Crown and police to disclose some
evidence to Driskell's defence and new DNA hair evidence which
refuted evidence presented at trial.
Manitoba Justice has stayed
proceedings and will not re-try Driskell, said deputy attorney
general Bruce MacFarlane. He said this is not an exoneration
of Driskell.
"We're not saying Mr.
Driskell is guilty," MacFarlane said. "We're saying
the evidence doesn't support our continuation of the case. We
can't prove guilt or innocence."
MacFarlane said police have
been asked to see if there are grounds to lay perjury charges
against the Crown's star witness, Reath Zanidean, who later admitted
lying in court.
Driskell -- whose plight was
supported by several organizations, including the Association
in Defence of the Wrongly Convicted -- said he isn't planning
to seek compensation, just answers.
"For years I've been held
accountable for something I didn't do ...
'What I would like to see is
accountability," he said.
Manitoba Justice Minister Gord
Mackintosh said an inquiry will be ordered into the matter, though
it's unclear when it would begin.
"Even though this is essentially
a 13-year-old matter, let's get to the bottom of it," he
said.
Manitoba Justice officials
also released an independent review yesterday which looked at
the disclosure of evidence in the case.
The review found senior Crown
officials "failed seriously in their duty to disclose"
information during the trial.
"His findings indeed raise
alarm bells," Mackintosh said.
Justice minister quashes
Driskell's conviction
Canadian Press, Mar. 4 2005
WINNIPEG - James Driskell's
14 years spent protesting his innocence in the death of his friend
Perry Harder were finally rewarded Thursday when the federal
justice minister quashed his first-degree murder conviction.
Irwin Cotler ordered a new
trial, but Manitoba Justice officials quickly opted not to re-try
the case and filed a stay of proceedings Thursday -- a move that
Driskell's lawyer says effectively exonerates his client.
"I'm overwhelmed,'' Driskell
told a news conference.
"I imagine it's going
to take a few days to actually sink in and I'm going to take
my time with it and try to analyse my feelings over the next
few days."
Cotler, whose department has
been reviewing the case since the fall of 2003, said new evidence
that surfaced two years ago led him to conclude "that a
miscarriage of justice likely occurred in Mr. riskell's case."
Driskell was convicted in 1991
largely on the evidence of hair samples found at the crime scene,
but he always maintained his innocence. He was released on bail
in late 2003 after the federal government agreed to the review.
Driskell and Harder were facing
charges of possessing stolen goods in 1990. But just days before
their hearing, Harder was shot to death and his body was found
near railway tracks in north Winnipeg.
DNA tests revealed the hair
samples used to convict Driskell were incorrectly identified.
Other evidence showed that two Crown witnesses were paid to testify
against Driskell and prosecutors failed to disclose information
that one witness likely committed perjury at the trial.
Cotler said he had no legal
power to make a finding of guilt or innocence.
James Lockyer, a lawyer with
the Association in Defence of the Wrongly Convicted -- which
took up Driskell's case, praised Cotler's decision.
He called it "the best
the minister could do under the provisions of the Criminal Code."
The group also credited the
Manitoba government with acting quickly in deciding not to re-try
Driskell and ordering a judicial inquiry.
But Lockyer said while he's
disappointed Manitoba Justice is still not prepared to acknowledge
Driskell's innocence, his client no longer has a dark cloud hanging
over him.
"He's clear, free, exonerated,
not guilty, didn't do it, never did it and never should have
been found to have done it."
He accused the prosecution
of refusing to give up and acknowledge reality, but noted it's
a position not uncommon with wrongful conviction cases.
Both Driskell and Lockyer said
they're looking forward to more details about the case and how
it was handled from the outset coming to light in the inquiry.
In conjunction with Thursday's
announcements, Manitoba Justice released its final report on
the case prepared by former provincial court judge John Enns.
Enns specifically reviewed
allegations the Crown failed to disclose evidence to Driskell
and his lawyers that could have overturned his conviction.
Enns was scathing in his conclusions.
"What remains is that
by actions, or more precisely by inaction amounting to gross
negligence bordering on the criminal offence of obstruction of
justice, important disclosures did not take place," wrote
Enns.
He said it was not possible
to determine specific blame, but said senior Crown officials,
"either collectively or individually, failed seriously in
their duty to disclose."
Justice Minister Gord Mackintosh
said the report points to the need for a judicial inquiry.
The commissioner, to be chosen
in the coming weeks from another province, will have the power
to review conduct, recommend disciplinary action and ways to
correct any flaws.
"There was a failure eminating
from the system, the extent to which we must discover entirely,"
said Mackintosh.
Meanwhile, Driskell said he
still has a lot of work to do rebuilding relationships with his
eight children and 14 grandchildren.
"What's everyday living
for you is a challenge for me," said Driskell, who attended
the news conference in a wheelchair after recently breaking his
leg in five places.
But he said he's looking forward
to living without the curfew and other restrictions he has been
under while on bail.
"That feels good,"
said Driskell.
"Now I can actually work
toward trying to put a life together."
Federal Justice Minister
orders new trial for Driskell
OTTAWA , March 3, 2005 Irwin Cotler, Minister of Justice
and Attorney General of Canada, today announced he is using his
powers under the conviction review provisions of the Criminal
Code to order a new trial for James Patrick Driskell.
Mr. Driskell was convicted
in Winnipeg in June 1991 of first-degree murder in the death
of Perry Dean Harder. He was sentenced to life imprisonment with
no eligibility for parole for 25 years.
In October, 2003, Mr. Driskell's
counsel completed an application to the Minister of Justice for
a review of the murder conviction pursuant to sections 696.1-696.6
of the Criminal Code. In November, 2003, a judge
of Manitoba Court of Queen's Bench granted Mr. Driskell bail
pending the Minister's decision.
Cotler said that he "has
concluded that a miscarriage of justice likely occurred in Mr.
Driskell's case. Accordingly, I am granting the application
for ministerial review, quashing the conviction, and ordering
a new trial."
The Justice Minister said there
were a number of significant factors which accounted for the
exercise by him of this rarely-used remedy, including:
· DNA hair analysis in 2002 effectively refuted expert
evidence presented by the Crown at Mr. Driskell's trial that
three hairs found in a vehicle owned by him belonged to the victim.
The DNA analysis clearly established that the hairs did not belong
to the victim, so that a significant piece of evidence, upon
which the jury relied, was unfounded.
· The Crown failed to disclose that its two key witnesses
Reath Zanidean and John Gumieny who had testified
that Mr. Driskell planned the murder, had received substantial
financial consideration. This denied Mr. Driskell's right
to full disclosure and right to challenge the credibility of
key witnesses.
· For 11 years after Mr. Driskell's trial, the Crown failed
to disclose information that Mr. Zanidean likely committed perjury
at the trial.
· For ten years, Winnipeg Police failed to disclose an
investigative report regarding the murder which included important
and relevant information that would have been helpful to Mr.
Driskell's defence.
· The Crown's two key witnesses (Zanidean and Gumieny)
have, since Mr. Driskell's trial, either recanted or threatened
to recant their trial testimony regarding Mr. Driskell's involvement
in the murder. The failure to disclose this information
to the defence was not only a serious breach of the constitutional
duty to disclose, but the information also significantly undermined
the credibility of these key witnesses.
Cotler said that these new
matters taken and weighed together "clearly denied Mr. Driskell
the right to a full and fair hearing. They so seriously
prejudiced the fairness of the original trial and the validity
of the original conviction that the only appropriate remedy is
to quash the conviction and grant a new trial."
For an application for ministerial
review to succeed, the Minister of Justice must, by law, be satisfied
that there is a reasonable basis to conclude that a miscarriage
of justice likely occurred. If this legal requirement is
met, the Minister may grant one of two remedies a direction
for a new trial, or a referral of the matter to the court of
appeal to be heard as a new appeal.
When rendering a decision on
an application for ministerial review, the Minister is not making
a finding of guilt or innocence. The Minister has no legal
power to make such a finding. The Minister is simply returning
the matter to the courts in circumstances where there is a reasonable
basis to conclude that a miscarriage of justice likely occurred.
Ultimately, the courts will decide the issue of the applicant's
guilt or innocence.
The Minister made his decision
in Mr. Driskell's case after reviewing the Investigation Report
and advice of the Criminal Conviction Review Group (CCRG) of
the Department of Justice, the submissions of counsel for Mr.
Driskell and the Attorney General of Manitoba, and the recommendations
of Mr. Bernard Grenier, his Special Advisor on the criminal
conviction review process.
Further information about applications
for ministerial review and the conviction review process is available
at the CCRG website (http://canada.justice.gc.ca/en/ps/ccr/index.html).
In January, federal, provincial
and territorial Ministers responsible for Justice released a
major new report on the prevention of miscarriages of justice.
Prepared by a committee of senior police officers and prosecutors
from across the country, the report contains a series of recommendations
for police and prosecutors on how to prevent wrongful convictions.
The report is available at http://canada.justice.gc.ca/en/dept/pub/hop.
http://canada.justice.gc.ca/en/news/nr/2005/doc_31408.html
- 30 -
Ref.:
Denise Rudnicki
Director of Communications
Office of the Minister of Justice
(613) 992-4621
Media Relations Office
Department of Justice Canada
(613) 957-4207
Driskell witness lied
about payments
Defence lawyer didn't know of $83,000 compensation package
By Dan Lett, Winnipeg Free
Press, Feb 13 2005
SENIOR officials from Manitoba
Justice took no action after a Crown witness in the James Driskell
murder case -- who received tens of thousands of dollars in compensation
-- lied when he denied being offered money in exchange for his
testimony, new documents show. Reath "Ray" Zanidean,
the Crown's star witness, denied under oath he was provided with
anything other than room and board while under police protection
when he was questioned at Driskell's 1991 first-degree murder
trial by defence counsel Greg Brodsky.
However, new documents obtained
by the Free Press show that prior to testifying, Manitoba
Justice wrote Zanidean a cheque for $7,600 and promised tens
of thousands of dollars more following the trial.
In all, Manitoba Justice would
pay Zanidean nearly $83,000 for testifying at Driskell's trial,
including nearly $30,000 in cash.
The undisclosed payments to
Zanidean were part of a witness protection agreement between
Manitoba Justice and Zanidean that was being negotiated and partly
paid out prior to the trial, according to documents obtained
by the Free Press.
Driskell was sentenced to life
in prison with no chance of parole for 25 years for the 1990
murder of his friend Perry Dean Harder. He was released in November
2003 after new evidence came to light showing he did not get
a fair trial.
The federal Justice Department
is in the final stages of an investigation of Driskell's claims
of innocence. A final decision from Justice Minister Irwin Cotler
is expected later this year. Cotler could dismiss Driskell's
claim, order a new trial or send the case to an appellate court
for further review.
The Association in Defence
of the Wrongly Convicted (AIDWYC) claimed Zanidean committed
perjury at the trial, and that the jury's verdict on the murder
charge might have been different if the witness had admitted
how much he was being paid to testify.
The newly obtained documents
show the Zanidean witness protection agreement involved officials
in the highest levels of the prosecutions branch -- including
the assistant deputy minister of justice and the director of
prosecutions -- before the start of the trial.
However, neither George Dangerfield,
the trial prosecutor, nor any other senior Manitoba Justice official
disclosed the full details of Zanidean's compensation to the
defence. Under rules established by the Supreme Court of Canada
in the 1950s, and according to the codes of conduct of law societies
across Canada, the defence should have been provided with this
information prior to trial.
Then, when Zanidean lied about
the compensation at trial, no one from Manitoba Justice alerted
the court. Again, the Supreme Court has established that the
Crown carries a clear responsibility in law to identify any instance
where, to its knowledge, one of its witnesses lies in court.
AIDWYC lawyers who have championed
Driskell's claim to innocence argue the new file material shows
that Manitoba Justice failed in its duty to disclose Zanidean's
compensation deal, and another deal arranged for Crown witness
John Gumieny. "They had a responsibility to disclose it
to the defence at a very early date, long before the trial,"
said Toronto lawyer James Lockyer, who heads up the AIDWYC team
representing Driskell.
"To allow a chap to essentially
lie with impunity is extraordinary."
Dangerfield declined to be
interviewed. But his lawyer, Jay Prober, said Dangerfield denied
having any knowledge of the monies paid to Zanidean.
Prober said Dangerfield was
primarily responsible for trying the case, and did not involve
himself in the specifics of the negotiations with Zanidean's
lawyer, which were being handled by Bruce Miller, then Manitoba's
director of public prosecutions.
Dangerfield agreed, Prober
said, that details of all payments to witnesses should have been
disclosed to the defence. And Dangerfield added that if he had
known about the $7,600 paid to Zanidean prior to testimony, he
would have turned it over to Driskell's lawyers, Prober said.
"If Zanidean perjured
himself, any suggestion by anybody that George Dangerfield knew
is absolutely, totally and completely rejected," said Prober.
Deputy Attorney General Bruce
McFarlane said he could not comment on specifics of the Crown's
handling of the Driskell case. However, McFarlane said it was
concerns such as this that prompted Manitoba to ask Ottawa to
perform an independent investigation and, if the federal minister
deems it necessary, to refer the new evidence in the Driskell
case back to Manitoba Court of Appeal to see if it would alter
the original verdict.
In addition, Attorney General
Gord Mackintosh asked former provincial court judge John Enns
to review the Driskell case to see if police and prosecutors
fulfilled all their duties to disclose evidence. Enns has completed
the second stage of his report, which specifically asks whether
prosecutors disclosed all relevant evidence to the defence, but
Manitoba Justice has not yet released it to the public.
"There are serious issues
concerning the way in which the trial was conducted," McFarlane
said. "That's why we were and continue to be quite aggressive
in terms of our desire to have this case independently reviewed,
not by us but by somebody else." A Free Press investigation,
based on case files released in 2002, revealed that Zanidean
received tens of thousands of dollars from Manitoba Justice for
living and relocation expenses, including a $20,000 lump-sum
payment made six months after the trial.
The first batch of documents
seemed to show that most, if not all, of the compensation was
paid to Zanidean after his appearance at Driskell's trial, allowing
Zanidean to say in court he had not received anything in exchange
for his testimony.
However, new files obtained
by the Free Press in late 2004 show that well in advance
of his testimony, the province paid Zanidean thousands of dollars
in compensation, and pledged more money and assistance to come
after the trial.
Witness protection and compensation
negotiations were started by Dangerfield and his junior, Greg
Lawlor. Closer to the trial, director of prosecutions Bruce Miller,
with the oversight of assistant deputy minister Stu Whitley,
took charge of negotiations with Zanidean's lawyer, David Kovnats.
In December 1990, two months
after Driskell was arrested for Harder's murder, Kovnats sent
a list of 15 demands to Miller, the director of public prosecutions,
that Zanidean wanted met before he would testify. These demands
included the purchase of Zanidean's house, relocation from Manitoba
with a new identity and money to live on until he could start
a new job, and the purchase of his 1983 Chevette and replacement
with a comparable vehicle.
Although Manitoba Justice would
not meet all these demands, many were agreed to prior to Zanidean's
testimony. At the top of the list was a decision by Manitoba
Justice to compensate Zanidean for falling behind in his mortgage
payments.
Zanidean was in police protective
custody from December 1990 until June 1991, when Driskell's trial
concluded. Zanidean and his lawyer, Kovnats, argued that while
in protective custody, Zanidean could not work and thus could
not make his mortgage payments.
In exchange for $7,600, a sum
equal to the down payment and equity position on the home, Zanidean
and his wife, Susan Fehr, agreed to sign over the property to
the mortgage company and walk away.
The money was put in a trust
account in mid April 1991, nearly two months before Zanidean
testified at Driskell's trial. On June 4, 1991, the second day
of Driskell's trial, Kovnats wrote again to Miller and asked
for another $1,000 in compensation for a motorcycle and other
contents destroyed in a garage fire that occurred after Zanidean
left his house to move into a safe house. Kovnats also proposed
Manitoba Justice make a $30,000 lump-sum payment in lieu of relocation
efforts.
Ultimately, Zanidean would
receive full relocation services as provided by the RCMP, and
a $20,000 payment.
Following Justice Minister
Cotler's final decision, Manitoba Justice will have some difficult
decisions to make regarding Zanidean. This is the second time
allegations of perjury have been brought against him since the
trial.
In 1992, after Driskell's trial
had concluded, Manitoba was contacted by officials from Saskatchewan
Justice who offered evidence that Zanidean had committed perjury
when he denied he had been offered immunity for a Swift Current
arson in exchange for his testimony at Driskell's trial.
Saskatchewan officials said
their investigation uncovered that Zanidean believed the Winnipeg
Police Service, in a bid to keep him under control, promised
him immunity for the arson without first getting approval from
Saskatchewan, the prosecuting jurisdiction. Even though the immunity
deal was unauthorized, Saskatchewan Justice said the offer had
ruined its chances of getting a conviction and dropped the case.
dan.lett@freepress.mb.ca
Manitoba won't order
new trial for Driskell
By ALLISON DUNFIELD, Globe
and Mail, March 3, 2005
The Manitoba government says
it won't order a new trial in the case of James Driskell, a man
who says he was wrongly convicted in the murder of his friend
and served a dozen years in jail for the crime.
The province made the decision
Thursday afternoon to stay first-degree murder charges against
Mr. Driskell.
However, the stay does not
officially exonerate him.
The move came only hours after
federal Justice Minister Irwin Cotler quashed Mr. Driskell's
1991 conviction.
In a statement, Mr. Cotler
said he has concluded "that a miscarriage of justice likely
occurred in Mr. Driskell's case."
Mr. Driskell told a news conference
in Winnipeg after the decisions were made was that he hoped that
the environment would begin to change in miscarriage of justice
cases, but he wasn't confident that would happen.
"I'm just hoping that
from here on, the main thing I would like to see is accountability
somewhere ... everything has been stuffed under the rug for so
long," he said.
He said his faith in the justice
system has been forever shaken. And he said he is "in shock"
that the entire saga came to an end so quickly on Thursday.
However, he says he is not
interested in compensation for the 12 years he spent in jail.
Mr. Driskell had always maintained
he was not guilty of killing his friend Perry Harder. A growing
body of evidence emerged after his conviction that might support
the claim. The only physical clues linking Mr. Driskell with
the crime were three hairs found in his van that supposedly came
from the victim; years later, DNA tests showed the hairs did
not belong to Mr. Harder.
Mr. Driskell was convicted
in 1991 largely on the evidence of hair samples found at the
crime scene. He was released on bail in late 2003 after new evidence
came forward, prompting the federal Justice Department to undertake
the review of the case, the results of which were finalized Thursday.
Mr. Driskell's lawyer, James
Lockyear, said on the one hand he and his organization, the Association
for the Wrongfully Convicted is relieved. "The stay doesn't
leave any cloud whatsoever over Jim. He's clear, free, exonerated,
not guilty, didn't do it, never did it and never should have
been found to have done it."
But he added, "the problem
you find in these cases is that the prosecution simply won't
give up, and won't acknowledge reality. It's something that you
see in my experience in every single one of these wrongful conviction
cases. And a stay of proceedings is really a prosecutor's way
out of a problem in that there's nothing that we representing
Mr. Driskell can do about a stay of proceedings.... They have
done it, and we're stuck with it. "
However, he said at the same
time, neither he nor Mr. Driskell wanted to go through a new
trial.
Mr. Driskell said he's had
a tough time since he has been out of jail.
"The last 15 months that
I've been out have not been easy. It's a major adjustment. I
don't think there's any way I could put a possible time frame
on when it gets back to normal," he said.
He said he is trying to get
re-acquainted with his eight children and 14 grandchildren
Manitoba to stay charges
against Driskell
CBC News, March 3, 2005
OTTAWA - The Manitoba government
said it will not have a new trial for James Driskell, following
the federal justice minister's order that his murder conviction
should be quashed.
Robert Morrison, the prosecutor
in charge of the case, said the Crown's case has been "undermined
and weakened." Morrison says it's not likely Driskell would
be convicted again, so he has asked that the charge be stayed.
The stay does not officially
exonerate Driskell but means he will stay out of prison.
Federal Justice Minister Irwin
Cotler ordered a new trial in the case Thursday, saying that
a miscarriage of justice likely occurred.
Cotler's decision meant that
Manitoba's justice department would have the option of ordering
a new trial or staying the charges against Driskell.
Cotler's announcement followed
a federal review of the case.
Cotler said that he "has
concluded that a miscarriage of justice likely occurred in Mr.
Driskell's case. Accordingly, I am granting the application for
ministerial review, quashing the conviction, and ordering a new
trial."
Driskell spent 12 years in
prison for the murder of his friend Perry Dean Harder in 1991.
Police allege that Perry had implicated Driskell in a series
of break and enters. Driskell denied any involvement in Harder's
death.
Cotler said he based his decision
on a number of factors including:
DNA analysis on three hairs
found in Driskell's van. At Driskell's trial, the Crown said
they belonged to Harder. But further DNA testing done a decade
later found that none of those hairs belonged to the victim.
The Crown's failure to disclose
that its two key witnesses Reath Zanidean and John Gumieny
who had testified that Driskell planned the murder, received
financial compensation. They also have recanted or threatened
to recant their testimony.
The Crown's failure to disclose
information that Zanidean likely committed perjury at the trial.
Winnipeg Police failure to
disclose information that would have been helpful to Driskell's
defence
[These factors] so seriously
prejudiced the fairness of the original trial and the validity
of the original conviction that the only appropriate remedy is
to quash the conviction and grant a new trial," Cotler said.
Driskell has been free on bail
since 2003 while the federal justice department reviewed the
case.
He said Thursday that he's
not interested in compensation for his time in prison, but he
does want someone to take responsibility for the case.
"The main thing I would
like to see is accountability somewhere. I don't really believe
I will see it, because everything has been swept under the rug
for too many years and they seem to have a system in place for
doing that now. But like my conviction being overturned, anything
is possible," he said.
"I would like to see where
Manitoba Justice is going to stand now, if they're going to put
some checks in place so this doesn't happen to anybody. It could
happen to anybody in this room."
Manitoba Attorney General Gord
Mackintosh announced Thursday that a formal commission of inquiry
will be ordered into the Driskell case.
"When the justice system
fails as it has in this case, we need to get to the bottom of
it and take every step possible to guard against future matters
that could erode public confidence," Mackintosh said in
a release.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
