Kent Roach - powerpoint slide

Public Inquiries into Canadian
Wrongful Convictions
Kent Roach
[email protected]
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
• 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
• 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
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
• 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
• 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
• Recommends Crim Code amendment on
• 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 2nd appeal ordered after a conviction
• Recording of police interviews with attn to mental
health issues
• Anti-discrimination measures including at local law
Guy Paul Morin
Morin Inquiry 1996-1998
• Wrongful conviction of neighbor in killing of 9
• 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
• Recommend no jailhouse informers (no national
standards and SCC accepts in Brooks 2000 SCC 11
that warnings may be enough)
• 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
• 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
• 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
• 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
• Police, legal aid, defence, prosecutors, AG and CJ
should meet on improvements to the justice
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
• 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
David Milgaard
Milgaard, 2004-2008
• Milgaard convicted in 1970 by lying witnesses
and confused blood typing evidence
• Conviction overturned in 92 on 2nd 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
• 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)
• 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
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
• Success story but lessons from Morin and Driskell
of great costs of reforming forensics discipline by
discipline and state by state
• 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
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