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Cotler
orders new trial for Driskell | James Driskell: > > >
| Premier gets involved | More
layers of the criminal prosecutorial cover-up are revealed
 January 25, 2005: The Federal government released the
first national examination of the reasons for so many wrongful
convictions in Canada. This should be required reading for every prosecutor,
cop and criminal defence lawyer in the country. News
reports
Gordon Mackintosh
- Mackintosh acts to speed
Driskell review
- Reverses position as
pressure mounts
Dan Lett, December 2nd,
2003
JUSTICE Minister Gord Mackintosh
bowed yesterday to growing evidence of a miscarriage of justice
in the James Driskell case and agreed to help speed a federal
review of Driskell's claims of innocence.
In a reversal of his previous
position, Mackintosh stunned Driskell and his supporters by announcing
he has written to the federal Justice Department -- which has
launched a full investigation of Driskell's case -- asking them
to send the new evidence back for judicial review.
Mackintosh said he felt it
was important to advise the federal Justice Department of his
opinion in the wake of comments last week by Justice John Scurfield
of Manitoba Court of Queen's Bench. Justice Scurfield released
Driskell on bail largely on new evidence which significantly
weakened the Crown's case.
"When I look at the decision
of Mr. Justice Scurfield, quite frankly I feel it's important
that this matter be reviewed on a timely basis... and I think
it should be referred back to the courts," Mackintosh said.
James Lockyer, a lawyer for
Driskell, said Mackintosh's request that the case be sent back
to the courts will significantly speed a federal review into
the case. It could lead to an Appeal Court considering new evidence,
or Driskell getting a new trial.
 Driskell, who is still fielding a deluge
of requests from the media for interviews, said he could not
believe how quickly Mackintosh had changed his position.
"I am totally surprised
about this," Driskell said from St. Pierre Jolys, 40 kilometres
south of Winnipeg, where he is living while on bail. "This
is the last thing I expected him (Mackintosh) to do. I expected
him to bury this like everyone else."
Driskell was convicted in June
1991 of killing his friend, Perry Dean Harder. Convicted without
a confession, a witness or a murder weapon, Driskell has always
maintained his innocence.
New evidence uncovered in his
case showed key witnesses were paid for their testimony and given
immunity from prosecution for other crimes, but that none of
these details was ever presented to the jury. The Winnipeg Police
Service also possessed new evidence never revealed to a jury
or Driskell's lawyers, including proof a key witness tried to
recant after the trial.
It can take years for the federal
Justice Department's Criminal Convictions Review Group to review
alleged wrongful convictions under Sec. 696 of the Criminal Code,
Lockyer noted. Under that provision, the federal minister has
power to send a case back to an appellate court for review or
order a new trial.
Consent from Manitoba for a
judicial review should streamline the federal investigation significantly,
added Lockyer, who is handling Driskell's case on behalf of the
Association in Defence of the Wrongly Convicted.
"Obviously, it makes the
federal justice minister's decision very easy," Lockyer
said. "And just today the Convictions Review Group in Ottawa
made it clear to me that this application will proceed very quickly.
This should make it go even faster."
Before yesterday's announcement,
Manitoba Justice had disputed Driskell's claims of innocence,
and dismissed new evidence as unlikely to have influenced the
jury which convicted him of first-degree murder in 1991. Independent
counsel representing Manitoba Justice argued at the bail hearing
last week that there was still abundant evidence Driskell was
guilty.
However, Justice Scurfield
determined the new evidence cast serious doubts on the original
conviction. In fact, DNA tests done more than a year ago, which
excluded three hairs used to convict Driskell at his trial, were
in themselves enough to warrant release on bail, Scurfield stated.
"I am satisfied that if
all of the new evidence had been presented to the Court of Appeal
following the original trial, the conviction would probably have
been set aside and he would probably have been granted a new
trial," Scurfield said.
This assessment directly contradicted
the opinion of senior Crown attorneys in Manitoba Justice, who
examined the DNA results nearly one year ago and concluded they
would not have affected the jury's decision.
In March, Driskell's legal
team asked Manitoba Justice to make a joint application to the
Manitoba Court of Appeal to review the new evidence, to avoid
the time and trouble of filing an application for review to the
federal Justice Department.
Manitoba refused, in large
part based on an opinion that the appellate court would not hear
the new evidence, Mackintosh said.
Lockyer noted, however, that
while it is not the normal path for post-conviction review, it
is unlikely an appellate court would refuse to at least review
the new evidence and offer an opinion.
Even with Manitoba's consent
to a judicial review, there are still important questions to
be answered about which court should take the case, Lockyer said.
Federal Justice Minister Martin
Cauchon could refer the case back to Manitoba Court of Appeal
for a full review of all the new evidence, Lockyer said. That
could prove to be time-consuming and costly, he added.
However, if persuaded the case
against Driskell has been profoundly weakened, Cauchon could
quash the conviction and refer it back to Manitoba Court of Queen's
Bench, Lockyer said.
This remedy would require Manitoba
to immediately decide whether to retry Driskell which, given
the lack of evidence against him, would be unlikely, Lockyer
said.
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