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Full text of Stinchcombe
decision | Justice Canada surveys the value
of preliminary inquiries in light of Stinchcombe | Also from
federal justice: An attorney' right
of access to evidence | James Lockyer
| Clayton Ruby
Clayton Ruby
'War on crime' denies
justice: top lawyer
Attitude of police, prosecutors
cause wrongful convictions, argues Clayton Ruby
Philip Lee, The
Ottawa Citizen, June
24, 2001
The Canadian justice system
will never learn the lessons of the wrongly convicted so long
as police and prosecutors approach criminal trials as a war with
defence lawyers, says Toronto lawyer Clayton Ruby.
Two principal causes of miscarriages
of justice -- the failure of the Crown to disclose vital information
to the defence and the prosecution's use of jailhouse informants
--- result from this mindset, says Mr. Ruby, who defended one
of Canada's most prominent wrongly accused, Guy Paul Morin.
"The way we think about
crime produces miscarriages of justice," Mr. Ruby says.
"It is not a war. There is no enemy. It's just all of us
trying to deal with a social problem. The trial is an exercise
in producing a just result, not a victory, but a just result."
Last month,
Felix Michaud, a 35-year-old New Brunswick man, was released
from prison after being subjected to a textbook case of how criminal
trials should not be conducted.
Moreover, he was convicted
of first-degree murder in the wake of a Supreme Court of Canada
decision that was supposed to lift the veil of secrecy and ease
the adversarial atmosphere between the prosecution and defence
in criminal trials.
Mr. Michaud was found guilty
of first-degree murder twice; both convictions were overturned
on appeal. When his lawyers asked for disclosure of the police
investigation from the Crown before his third trial, they received
more than 2,200 documents, whereas only 300 pages had been disclosed
before the first two trials.
After serving almost nine years
behind bars, the charge against Mr. Michaud was stayed when a
judge found prosecutors and police had failed to disclose information
key to his defence before his first trial. This "high degree
of negligence" irreparably harmed Mr. Michaud's ability
to offer a full defence against the charge.
Mr. Michaud was charged in
July, 1992. Key decisions about what would be disclosed to the
defence were made in the fall of 1993, two years after a watershed
Supreme Court decision, today referred to by criminal lawyers
simply as "Stinchcombe."
On Nov. 7, 1991, the Supreme
Court ruled in the case of William Stinchcombe, a Calgary lawyer
who was convicted of breach of trust. The case was appealed to
the Supreme Court because the prosecution had refused to disclose
the contents of a statement made by Mr. Stinchcombe's former
secretary that was favourable to the defence.
Writing for the majority, Justice
John Sopinka overturned Mr. Stinchcombe's conviction and said
an accused has a constitutional right to see all material uncovered
in the course of a police investigation.
"The fruits of an investigation
which are in the possession of the Crown are not the property
of the Crown for use in securing a conviction, but are the property
of the public to be used to ensure that justice is done,"
he wrote. "The material must include not only that which
the Crown intends to introduce into evidence, but also that which
it does not. No distinction should be made between inculpatory
and exculpatory evidence. If the information is of some use,
then it is relevant. The determination as to whether it is sufficiently
useful to put into evidence should be made by the defence and
not the prosecutor."
This spring Mr. Michaud's lawyer,
Gilles Lemieux, uncovered notes of a meeting before his first
trial between the lead prosecutor and chief police investigator
that suggests they decided not to use wiretap evidence because
it was "mostly beneficial to the accused." The information
was never disclosed to the defence, although it clearly fell
within the parametres set out by Stinchcombe.
The Stinchcombe ruling was
the Supreme Court's response to the wrongful conviction of Donald
Marshall Jr., the Nova Scotia Micmac who spent 11 years in prison
for a murder he didn't commit. In December, 1989, a commission
of inquiry released a report on Mr. Marshall's conviction, recommending
that there be full disclosure between prosecutors and the defence
in order to guard against miscarriages of justice.
Justice Sopinka reproduced
the recommendations of the Marshall inquiry in his ruling, noting
a failure to disclose inconsistent statements of witnesses was
one of the key contributing factors in the miscarriage of justice
that sent an innocent man to prison for life at the age of 17.
Failure to disclose all evidence
gathered in criminal investigations is a pervasive theme in wrongful
conviction cases in Canada, says Toronto lawyer Melvyn Green,
who works with the Association in Defence of the Wrongly Convicted.
Lack of disclosure played a
role in the wrongful convictions of Mr. Marshall, Guy Paul Morin
in Ontario and Thomas Sophonow in Manitoba.
In the case of Mr. Morin, who
was charged in 1985 with murdering nine-year-old Christine Jessop,
there was incomplete disclosure of both inconsistent statements
of witnesses and forensic evidence. Mr. Morin was found not guilty
in his first trial, was convicted at a second trial, but cleared
by DNA testing in 1995.
In Mr. Sophonow's case, the
Crown failed to disclose statements that helped to confirm his
alibi after he was accused of killing a 16-year-old girl in 1981.
While the Supreme Court has
dealt with the disclosure issue, it hasn't yet ruled on the use
of jailhouse informants.
Like in the cases of Mr. Morin
and Mr. Sophonow, Mr. Michaud was convicted with the help of
testimony from a jailhouse informant who testified that he confessed
to the crime while in prison.
Jailhouse informants are dangerous,
Mr. Ruby says. "The problem is that those people will say
absolutely anything and because they're lifelong criminals, they
tend to be convincing when they lie. They're given immunity as
long as they testify 'truthfully,' which means truthfully in
the view of the police who want them to say things that are incriminating
to the accused. So it's a circle which produces, inevitably,
perjured testimony."
In Ontario a prosecutor must
now seek the approval of a committee of senior prosecutors before
using jailhouse informants. But, Mr. Ruby says this doesn't go
far enough.
"It doesn't solve the
problem in the least, because you simply cannot tell when they
are telling the truth. The idea that all these accused are going
into jail and confessing to other criminals is attractive but
fanciful," he says.
In Mr. Ruby's view, the larger
problem is too many police and prosecutors feel the trial is
a war between opposing camps.
"If you view a trial like
that you don't want to make disclosure," he says. "It's
out of that mind set that these injustices flow. You've got to
change the mindset of what a criminal trial is about. And increasingly,
the 'war on crime' motif has become popular in Canada.
"So governments encourage
this mindset, and then they profess to be appalled when it produces
miscarriages of justice. 'How awful,' they say with shock. Well,
what did you expect?"
An attorney' right of access to evidence (from Federal Justice
site)
Stinchcombe was a lawyer who
was charged with breach of trust, theft, and fraud. The Crown,
the federal government, accused him of taking property that had
been given him "in trust" (for safekeeping). Stinchcombe
denied the accusation.
The RCMP interviewed Stinchcombe's
former secretary. Her statement was tape recorded. Crown counsel
told Sinchcombe's lawyer about the tape recording but did not
tell him what the secretary had said. Defence counsel, Stinchcombe's
lawyer, asked for a copy of the statement. His request was denied.
The secretary was interviewed
again. Stinchcombe's lawyer again requested the disclosure of
information. Once more, his request was refused.
Unexpectedly, the secretary
was not called as a Crown witness at the trial. Intrigued by
this omission, the defence counsel suspected the secretary had
said some positive things about Stinchcombe - statements that
would help his client. He asked that the secretary be called
as a witness or that he be given a copy of her statement. Yet
again, his request was denied. The defence counsel brought the
case before the Supreme Court of Canada.
The court said that defence
counsel should get all relevant information. In fact, the Crown
has a legal duty to give all relevant information to the defence.
(There are exceptions, such as when the information would identify
an informer.)
Most people think that the
job of a prosecutor or Crown counsel is to get a conviction:
Win the case and put the accused in jail. Not quite. The role
of Crown counsel is to "lay before the jury what the Crown
considers to be credible evidence relevant to what is alleged
to be a crime."The evidence gathered from an investigation
is not the sole possession of the Crown. It is to be shared by
both sides to ensure the interests of truth and justice.
Important note:
This theory works fine when you are dealing with fraud and breach
of trust. But what if the alleged crime is one of sexual assault?
What if the defence wants to know what the alleged victim said
to her counsellor or psychiatrist in confidence? Does the right
of the accused to be able to defend himself (termed" to
make full answer and defence") override the victim's right
to privacy? Should there be a balance?
To examine these questions,
see the cases of O'Connor,
Carosella and Mills | McGill Law professor Loretta N. Colton
defines
disclosure
Nowhere does
anyone claim that it is okay to withhold disclosure in order
to perpetrate a fraud upon the court.
Everywhere
courts rule that the right of an accused to full answer and defence
overrides the right of a complainant to privacy and provides
sensible suggestions judges may use to prevent victimization
of complainants.
The initial
police investigation reports are the most important documents
which any accused should have immediately following the laying
of charges. We have been finding examples of police laying charges
on the information of complainants without doing any independent investigation. We submit
that the police are not worried so much about their secret investigation
methods being exposed but the fact that they rarely do any investigation
at all.
For years,
when the media was effectively silenced by sweeping bans, we
can be certain there were many more crimes like those committed
by police in the Mentuk set-up CBC
Disclosure piece featuring Mentuk tapes (14 minutes)
(See our page
on the recent SC ruling re publication bans and our ongoing fight
for the enforcement of Stinchcombe, Prosecutors from hell.
Also the childish meanderings
of our own appeal court)
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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