Public Inquiries into Canadian Wrongful Convictions Kent Roach

Public Inquiries into Canadian Wrongful Convictions Kent Roach kent. roach@utoronto. ca Flinders Centre for Crime Policy November 6, 2014

Australian Inquiries • Growing awareness of wcs allow comparisons • Australia leads the way with the Stuart, 59, Splatt, 84 and Chamberlain, 87 inquiries • Inquiries focused on the facts of the case more than systemic reforms and reveal miscarriages (unlike Canadian inquiries)

Australian Inquiries • Mallard case examined by WA Crime and Corruption, 2008 but focus on misconduct of police and prosecutors that is lacking in Canada • Jama inquiry into DNA contamination, 2010 • SA Legislative Review Comm hears evidence that inquiries are expensive and rare

Seven Canadian Public Inquiries • Establish the reality of wrongful convictions and propose a variety of remedies, some which are implemented • Government response to public pressure and attempt to restore public confidence in the justice system • Some successes: disclosure and forensic reform • Some failures: unimplemented recommendations on identification and independent CCRC body

Canadian Public Inquiries • Why were 7 inquiries appointed by Canadian provinces from 1986 to 2007? • No federal inquiry on criminal justice during that time

Why wrongful convictions? • Hypothesis that the conviction of the innocent and the media coverage that often accompanies them commands attention in way that other criminal issues (ie mental health, bail) do not

Why public inquiries? • Canadian tendency to appoint inquiries headed by sitting or retired judges • Respected judges including retired Justices of Canada’s highest court that make the players recognize the risk of wcs • “Judicial inquiry” even though as in Australia part of the executive for separation of powers purposes

Chief Justice Lamer

Justice Peter Cory

Justice Fred Kaufman

Public inquiries • Typically a 2 part structure with part 1 examining facts and part 2 making recommendations about preventing the facts from occurring again • Part 1 often dominated by lawyers • Part 2 incorporates academic, policy and comparative work on prevention but can also include expert witnesses

Why public inquiries? • Preference for organizational and sometimes more general social accountability over • Individual accountability as was stressed in the Mallard inquiry • Some criticize inquiries for letting responsible police officers, prosecutors, defence lawyers, judges and expert witnesses “off the hook”

Challenges of Inquiries • In Canada all 7 inquiries appointed by the provinces which has jurisdiction over the administration of justice but exclusive federal jurisdiction over criminal law and procedure and little federal law reform in response to the recommendations of the inquiries

Disciplinary Challenges • Ontario holds two inquiries (Morin, Goudge) with similar themes into different forensic disciplines • Ontario (Morin) and Manitoba (Driskell) hold inquiries on limits of hair analysis

Why public inquiries • If wrongful convictions are the tip of the iceberg than inquiries are the tip of the tip • Marshall and Milgaard 1970’s • Morin and Sophonow 1980’s • Parsons, Druken and Dalton and Driskell 1990’s • Dr. Smith cases 1990’s and 2000’s

Other famous cases have no inquiries • Historical cases such as Stephen Truscott, Erin Walsh and Ivan Henry • “Mr Big” sting case such as Kyle Unger • Factual innocence is clear with DNA or conviction of real killer in most inquiries • Goudge is exceptional because only systemic focus on forensic pathology and no individual case mandate

Donald Marshall Jr.

Donald Marshall Jr.

Marshall Inquiry 1986 -1989 • First modern acknowledgement of wcs • Compare to refusal to accept that Truscott wrongfully convicted and reverses CA where former AG sits and says any miscarriage of justice more apparent than real and wrongly convicts Marshall of robbery • Marshall virtually framed by small town police who do not disclose much material and even post -conviction evidence of other killer • Three judges from outside small Nova Scotia

Marshall Inquiry • Recommend creation of DPP to deal with local favouritism • Recommends Crim Code amendment on disclosure • Federal Parliament doesn’t embrace but SCC does in R. v. Stinchcombe [1991] 3 SCR 326 • Finds bad defence but no examination of allwhite jury that convicts

Marshall Inquiry • Finds undue influence on petition procedure from local judges and recommends CCRC type body (before CCRC) with investigative powers and judicial inquiries to determine and report on compensation • Finds Deputy AG tries to pressure prosecutor not to concede on 2 nd appeal ordered after a conviction • Recording of police interviews with attn to mental health issues • Anti-discrimination measures including at local law school

Guy Paul Morin

Morin Inquiry 1996 -1998 • Wrongful conviction of neighbor in killing of 9 year • Hair matches excluded by DNA • Fibre matches contaminated • Preliminary indications of blood in Morin’s car • Jailhouse informers lie • Police and Prosecutors subject to tunnel vision or confirmation bias where ambiguous evidence interpreted as evidence of guilt

Morin Inquiry • Judge from Quebec recommends reforms to forensic sciences including not using “match” or “consistent with” and better documentation and legal education • Internal quality control and monitor court room testimony at CFS (but not death investigation) • Stop short of total ban on jail house informers but prosecutorial committee to vet • Courts reject higher standard for post offence conduct in White 2011 SCC 13 albeit with reference to Morin

Morin Inquiry • Judge based on extensive appellate experience recommends lurking doubt standard and expansion of appellate role (rejected by SCC in Binairis 2000 1 SCR 381 • Recommend creation of independent CCRC like body (also rejected) • Judge (who had fled the Holocaust only to be interned as an enemy alien) also recommend that “the accused” be humanized: “Mr. Morin”

Thomas Sophonow

Sophonow Inquiry, 2000 -2001 • Hung jury once, convicted twice and appeal court enters an acquittal in 85 to avoid fourth trial order new trial until police in Manitoba conclude he did not commit 1981 murder • Retired SCC Justice Cory (from Ontario) • Recommends video taping interviews with suspect (still no national standards) • Recommends reform of id real and photo line ups, no use of hypnosis and ability to call expert eyewitness (still no national standards)

Sophonow Inquiry • courts reject expert id evidence and reject rule that can’t convict on single eyewitness in Hay 2013 SCC 62 • Concern about tunnel vision: Recommend that alibi defence be investigated by other officers and witness interviews recorded (no national standards) • Recommend no jailhouse informers (no national standards and SCC accepts in Brooks 2000 SCC 11 that warnings may be enough)

Sophonow • Recommend independent CCRC that can also determine compensation • Stresses the damage to the wrongly convicted and need for compensation without caps • Not done and no national standards on compensation • Double bind of having to establish factual innocence for compensation but no legal verdict of factual innocence

Dalton, Parsons and Druken

Lamer Inquiry into Dalton, Parsons and Druken, 2003 -06 • DNA and pathology evidence • Eight year delay in hearing Dalton’s appeal on flawed pathology in wife’s accidental death processing • Parsons/Druken convicted of killing mother and girlfriend but DNA

Lamer Inquiry • Former Chief Justice finds police and prosecutorial tunnel vision with prosecutors being locked into case as presented by the police • Overlooked evidence that had DNA • Improved legal aid • Tape police interviews (no national standards) • Personally apologizes for what happened on his watch

Lamer Inquiry • Adversarial culture allows prosecutor to stay proceedings after conviction overturned and new trial ordered even though not realistic to expect new prosecution • Prosecutor should not call unreliable evidence including jailhouse informers • Experienced judges should be assigned to difficult cases • Police, legal aid, defence, prosecutors, AG and CJ should meet on improvements to the justice system

James Driskell

Driskell, 2005 -7 • Like Morin a case where hair analysis was disproved by DNA • Involved same prosecutor as Sophonow • Also involved use of nolle or stay after conviction overturned and recommended that general right to a verdict of acquittal

Driskell Inquiry • Use of Ontario judge in Manitoba case • Finds pattern of non-disclosure in cases involving the prosecutor • Recommends review of cases that rely on hair comparison evidence proven unreliable in light of DNA • Recommends better post conviction disclosure and CCRC like body with investigative powers because a person whose appeals are exhausted is in a “catch 22” when petitioning the executive

Driskell Inquiry • Innovative mandate for Canada to examine misconduct of police and prosecutors • But finds all police officer in 1990 conviction retired and only the junior prosecutor still worked in Manitoba • Criticizes RCMP lab for not peer reviewing hair samples, 4 “consistent with” found inconsistent with DNA • Hair microscopy should be used with caution and warnings

David Milgaard

Milgaard, 2004 -2008 • Milgaard convicted in 1970 by lying witnesses and confused blood typing evidence • Conviction overturned in 92 on 2 nd petition but order new trial in part because innocence not proved • In 1997 DNA identifies real killer and $10 million compensation • Alberta judge appointed to consider Saskatchewan case

Milgaard • As in Marshall finds Court of Appeal erred in first appeal in finding no substantial wrong or miscarriage of justice when Crown witness declared hostile and impeached with their prior and false testimony • Finds prosecutorial decision to stay proceedings after SCC decision that convicted quashed while not reopening investigation reasonable (at odds with Lamer and Driskell)

Milgaard • Find generally proper police investigation with no tunnel vision even though they interview real murderer as a witness after wife complains in 1980 • Polygraph operators gets 2 witness to change mind and implicate Milgaard • Criticizes family for media petition campaigns but contrasting political memoirs with PM Mulroney suggesting he ordered Min of Justice to grant petition after meeting Mrs Milgaard • Recommends independent CCRC body to determine petitions while criticizing media campaign for Milgaard

Dr. Smith baby death cases- Sherry Sheratt-Robinson

Dr. Charles Smith

Goudge Commission, 2007 -2008 • Response to growing concerns about work of Dr Smith a pediatric pathologist including 5 expert review that take issue with 20 of 45 opinions and testimony, 12 of which resulted in convictions • Finds Smith is not forensically trained, not properly supervised and did not understand the impartial role of the expert witness • Offered unscientific, speculative and unsupported conclusions about cause of death

Goudge Commission • Institutions have an incentive to reform their own houses when being reviewed by a public inquiries • Recognizes desire to have properly trained and monitored forensic pathologists • Recommends legislative changes to allow regulation and registrar of forensic pathologists, oversight council and complaints because of inadequacy of oversight by (medical) coroners even when courts raise concerns when adversarial challenge is available

Goudge Commission • Ontario amends Coroners’ Act S. O. 2009 c. 15 and devotes new funds to new facilities • Also recommends stricter rules on expert witnesses and better legal aid funding • More training and university basis and spread to other forensic disciplines but no national standards • Success story but lessons from Morin and Driskell of great costs of reforming forensics discipline by discipline and state by state

Conclusion • Canadian inquiries different than Australian • Focus on systemic reform at some cost of individual accountability • Mixed record of success in part because of federal reluctance to use criminal law jurisdiction to introduce CCRC or regulate identifications or interrogations • Picked up by some provinces and the courts • Work in progress