Timothy Fonseca Case 26 Book Reviews Injustice Anywhere Ten Years 31 Is a Threat to Justice Final Remarks Everywhere

spring 2008 • volume 9

ERIN WALSH He wins justice after 33 years, against overwhelming odds see page 3 photo: canadian press (andrew vaughn) photo: canadian 14 POLICE CAN BE SUED FOR 26 BILL MULLINS- negligence JOHNSON: Louis Sokolov Timothy the day he’ll never reports Fonseca: forget: Oct. 15, 2007 25 wrongly identiﬁed contents ◆ executive director’s report the aidwyc journal spring 2008 • volume 9 • issue 38 Development through Columns & News the strength of our people Evolution takes people 2 Erin Walsh exonerated 3 s you’ll read in the following pages, aidwyc is crucial, cases show 5 the length of time, commitment Student involvement in aidwyc 6 A and patience it takes to shepherd a Congrats to Jerome Kennedy 7 wrongful conviction case through the criminal AIDWYC agm 07: celebration! 8 justice system is enormous. Organizational Four condolences 10 change and development, albeit with much, Can you help AIDWYC? 12 much less heartache, also takes time, commitment and patience – especially on a shoe- Can AIDWYC help you? 13

string budget. photo: kristen watts Canadian Case Updates Organizational development provides ex- Tanya Gerber citing opportunity for new ideas to take flight Robert Baltovich 14 and tried-and-true methods to be installed. AIDWYC is committed to be- Bill Mullins-Johnson 14 coming a stronger, more efficient organization with one main goal in Romeo Phillion 15 mind: to help more people whose lives have been decimated by a wrong- Sherry Sherett 16 ful conviction. Steven Truscott 18 We’re evolving with the strength of our people, hiring new staff, ex- panding our Toronto office and establishing new protocols. We have ac- International Case Updates tive volunteers helping us raise funds to celebrate our successes at our Cy Greene 18 Sounds Like Justice 4 event on May 8th. Please join us if you can. Kevin Cooper 19 We are also committed to promoting prevention of further wrongful Johnnie Savory 19 convictions. This work is achieved by engaging in partnerships, creating synergies, assisting to educate students in various faculties, doing mean- Scott Watson 19 ingful outreach and thorough recommendations and input at Inquiries Commentary and Commissions. We don’t do this work alone. In addition to its 150 dedicated volun- The Goudge Inquiry 22 teers, AIDWYC is supported by thoughtful and progressive funders, do- Steven Truscott is innocent 23 nors and members. The Law Foundation of Ontario, Ontario Trillium Compensation commentary 24 Foundation and Criminal Lawyers Association all contribute meaning- Suing police for negligence 25 fully to our existence...but our need is still great. Join us, if you haven’t already, in the pursuit of justice. ◆ Feature Articles Tanya Gerber, aidwyc Executive Director The Timothy Fonseca Case 26 Book Reviews Injustice anywhere Ten Years 31 is a threat to justice Final Remarks everywhere. Hold experts to account 33 – Martin Luther King Jr. 2 the aidwyc journal – spring 2008 2 the aidwyc journal – spring 2008 ◆ cover story Erin Walsh exonerated after 33 years

By Sean MacDonald

rin Walsh’s dying wish was granted photo: ?? on March 14, 2008 when the New Brunswick Court of Appeal acquitted him of the second- Edegree murder of Melvin Peters more than three decades after his conviction. Erin, who is in the final stages of ter- minal cancer, tearfully hugged his emotion- ally overwrought wife, Angela, and then struggled to rise from his wheelchair and address the court. “On behalf of my family and myself, it is just a tremendous relief for me and I just want to thank you for your fairness, your astuteness, in coming to this decision.” Erin Walsh’s AIDWYC defence team (L–R rear): Gus Camelino, Erin Walsh, The Crown agreed with his lawyers that Sean MacDonald, James Lockyer (foreground), absent: Phil Campbell. a miscarriage of justice had occurred, but argued that a judicial stay should be declared instead of an and his appeal was denied. He was a convicted murderer, outright acquittal; the Court disagreed. one voice in a sea of inmates screaming for attention. His “I’m a free man,” an ecstatic and emotional Erin said credibility was non-existent and the courts had spoken. He outside the courtroom. “I mean, freedom now means had no money, no lawyer and no real access to the outside something to me. It is not just a word. It is something that world. He was alone. I’m going to wear every day of my life like I wore my cap- Despite the overwhelming odds, Erin continued to tivity.” pursue justice with the few resources he had at his disposal. That captivity began on Friday, October 17, 1975, when He wrote continuously to whoever would listen, seeking a jury convicted Walsh of second-degree murder. It took information wherever he could find it. He continued even jurors an hour to reach the verdict, during which time they when it was to his detriment – even when the parole board also stopped to eat lunch. It was an open and shut case. It would hold it against him. wasn’t quite so simple for Erin. He spent the next 20 years At trial, the Crown alleged that Erin bought a sawed-off in jail for that crime and a total of more than 32 years try- shotgun from an associate of Donald McMillan and that ing to undo that 60-minute decision. he used it the next day to murder Peters in his Cadillac. The motive, the Crown successfully claimed, was racial OVERWHELMING ODDS animosity. Peters was African-Canadian. They didn’t take Erin found himself confronted with the enormous into consideration, however, that Erin had grown up in task of trying to overcome what we now know was one of the Mulgrave Park housing project in Halifax’s north end the longest-term miscarriages of justice in Canadian his- – one of the most racially diverse areas of Canada. Nor did tory. The criminal process had finished: his trial was over • Continued next page

the aidwyc journal – spring 2008 3 ◆ cover story

WALSH VICTORY said they were, when Erin was in Ontario, hundreds of miles away from Saint John. • Continued from previous page He also discovered seven signed statements by wit- they consider that for most of Erin’s life, the only culture nesses that supported Erin’s claim that he ran away from he related to was that of African-Canadians. McMillan, Walton and Peters after they attempted to rob Erin claimed that McMillan, his associate David Walton him and that he asked for the police to be called just 10 and Peters attempted to rob him of his money and drugs minutes before the shot that killed Peters was fired. twice. He testified that after their first attempt, he man- Finally, Erin’s testimony had independent support and aged to escape, and ran to some nearby CNR workers and people suddenly started paying attention to his protesta- begged them to call the police, which they did. When he tions of innocence. then tried to make his way to his car to escape, the would- On February 22, 2008, Federal Justice Minister R. be robbers found him again. This time they forced him Nicholson issued a Ministerial Remedy acknowledging that into the front, middle seat of his own car at gunpoint. a miscarriage of justice likely occurred. Within hours of the Erin testified that he then began a life and death struggle Minister’s decision, the New Brunswick Attorney General for possession of the gun. He claimed the gun ultimately took the honourable position before the New Brunswick ended up in the hands of McMillan, where it discharged Court of Appeal that not only was a miscarriage “likely”, and killed Peters. but that it in fact occurred. The Attorney General agreed But at the time, there wasn’t any independent evidence that the conviction should be quashed, which the Court of to support Erin’s story. The Crown presented McMillan Appeals ultimately did on March 14, 2008. and Walton to testify against him, which eventually led to Walsh’s dedicated legal team, comprised of myself, Erin’s conviction. Sean MacDonald, Gus Camelino, Phil Campbell and James Lockyer, was pleased and relieved with the decision. NEW EVIDENCE UNCOVERED It is the first time in the New Brunswick justice system’s In 2003, after 28 years of proclaiming his innocence, 200-year history that a wrongful conviction has been rec- Erin wrote to the New Brunswick Provincial Archives and ognized. I am hopeful that the spirit of cooperation and received the complete Crown file of his case. In it, Erin openness will continue. found a treasure trove of exculpatory evidence never be- Walsh, however, did not have much time to enjoy his fore disclosed and evidence never presented in court. Most victory. Correctional Services Canada immediately cut off significantly he discovered that: the homeopathic cancer treatments it had been funding for • less than an hour after the shooting, a Saint John po- the last several months on compassionate grounds. I am lice officer overheard Walton – the Crown’s star wit- currently pursuing emergency funding for his treatments. ness and the only eye witness to the shooting – ask Now, Walsh will seek justice in the civil courts. Last McMillan why he shot Peters; year he filed a civil suit against former prosecutor William • a police report never disclosed to him nor his lawyers McCarroll, the City of Saint John, all Saint John police supported his version of events; and chiefs in power since 1975, the province of New Brunswick, • Saint John police recorded a statement from a local and the RCMP for their deliberate attempts to suppress evi- hardware store proprietor who said the gun shells used dence. ◆ in the crime were purchased one day before Mcmillan

4 the aidwyc journal – spring 2008 ◆ message from the co-presidents Recent cases show that aidwyc is crucial

n the past six months, several important events have As cases of wrongful conviction continue to come to light, demonstrated how crucial it is that AIDWYC continue our focus remains on ensuring the growth and sustainability Iits work in the area of preventing wrongful convic- of our organization. As the only national advocacy group for tions. the wrongly convicted, AIDWYC’s role in correcting and pre- The Ontario Court of Appeal’s acquittal of William venting miscarriages of justice is crucial. Mullins-Johnson on October 15, 2007, coming on the At present our most significant funder, the Law heels of the acquittal of Steven Foundation of Ontario, along Truscott, was a huge success story. with our other funders and gener- While we celebrate these acquit- ous supporters, ensure AIDWYC’s tals, we cannot forget the devas- survival. We also could not func- photo: kristen watts tating toll taken on those men, tion without the continued dedi- their families, the victims’ fami- cation of our many volunteers. lies, and the justice system. We are striving to enhance The fallout from the mis- AIDWYC’s financial situation so carriage of justice suffered by Elisabeth Widner and Paul Copeland that we can not only maintain Mullins-Johnson is currently be- our organization but also be more ing played out in Toronto before Commissioner Stephen active in the areas of seeking out wrongful convictions, Goudge at the Inquiry into Pediatric Forensic Pathology identifying and correcting systemic causes of wrongful in Ontario (the Goudge Inquiry). That inquiry is in the convictions, and educating members of the legal profes- process of examining the work of Dr. Charles Smith in a sion and the public. number of cases, some of which will undoubtedly form the Our work is not done and now, more than ever, we next series of wrongful convictions to be championed by need your support. AIDWYC. Please join us at our fundraising event, Sounds Like Through our counsel, Louis Sokolov, AIDWYC is ad- Justice 4 – a VIP reception, silent auction, and benefit con- dressing the systemic causes of wrongful convictions aris- cert on May 8, 2008 in Toronto (see back cover or website ing in the context of the Goudge Inquiry’s mandate. for details). ◆ Paul Copeland and Elisabeth Widner, AIDWYC Co-Presidents

Thanks to original AIDWYC tion and the various clients whose interests he has ad- board member Lon Rose vanced. Lon is one of the After many years of diligent service as a director, Lon original members of AIDWYC Rose has decided to step down from AIDWYC’s Board and has demonstrated out- of Directors. He has graciously agreed to remain in- standing commitment to this volved with the International Review Committee, association. ◆ time and other commitments permitting. We thank him for all his hard work on behalf of the organiza-

the aidwyc journal – spring 2008 5 ◆ aidwyc on the move Student involvement in aidwyc

Student Involvement at AIDWYC

AIDWYC collaborates with faculty and students to enable a rich learning experience and to further AIDWYC’s vital work reviewing cases. Students apply themselves with purpose and dedication in placements and beyond. Criminal Law Students’ Association, Band AIDWYC Committee: Seneca College Front Row (L-R): Executive Committee: Julien Lalande, Aaron Shachter, Elme Paul Copeland spoke at Seneca’s Schmid, Vicki Hentz, Natasha Morley, Lindsay McIntosh Justice and Civil Liberties Sympo- Back Row (L-R): Kevin Ludgate, Darrell Mast, Katie Clarey, Karen Levin, Ashlee sium, attended by over 400 students. Barber, Mimi Palmer, April Conn, Aliki Yorgiadis, Jodie-Lee Primeau, Alanna Lawson, Sam Humphreys, Maureen Salama, Jennifer Lohuis The Humberview School, Bolton, ON University of this year’s event. The event was at- Montreal tended by students, academics, and Students led by law teacher George members of the local defense bar. We Allain, held a successful carwash Law students have been doing re- look forward to continuing the event and campaign that raised $3,000. search on the Wilbert Coﬃn case, for years to come!” (Band AIDWYC Hundreds of people from across translating French documents and Committee) North America made contributions. tapes, and reviewing another case. Marlene and Steve Truscott were pre- University of sented with a wonderful gift – a trip University of Ottawa New Brunswick, across Canada! Appreciation is ex- On January 18, 2008, the Criminal tended to everyone for their enthu- Law Student Association (CLSA) Fredericton siasm and contributions with special held their 3rd Band AIDWYC fund- Professor Jula Hughes and her thanks to David Asper. raiser. The participating bands Lady Faculty of Law students (Clare Milk, Nothing Sacred, Make Your Exit, and Henderson, Wayne Silliker, Tyler The University of Streetlight donated their time. The Botten, Meghan Russell, Ashley Guelph-Humber event raised over $3000. Parsons, Clayton Swanton, Jennifer “The CLSA would like to thank Fraser, Patricia Beh, Joel Payne, and Numerous University of Guelph- Michael Crystal, a professor and lo- Michael Ryan) have been assisting Humber students assist in the review cal advocate, who has been able to AIDWYC lawyer Erin Breen on a case of potential AIDWYC cases and pro- share his expertise in the area of in New Brunswick. vide administrative support in our criminal law, and was able to share Toronto oﬃce. some warm words abut the cause at • Continued on page 21

6 the aidwyc journal – spring 2008 ◆ aidwyc on the move Jerome Kennedy becomes NFL Minister of Justice

erome Kennedy, a long-time of constabulary – a testament to his Shanaaz Gokool: our AIDWYC lawyer and previous re- drive and ability to draw diverse peo- newest staff member Jgional representative, was ple together. sworn in as Minister of AIDWYC extends sincere congratu- AIDWYC Justice and Attorney General of lations to Jerome as he embarks on welcomes Newfoundland and Labrador on this new and exciting chapter of his its newest October 30, 2007. career. We hope that his experience staff mem- Jerome came to AIDWYC in 2000 with AIDWYC will bring a new per- ber, Shanaaz in relation to his spective to the offices of Minister of Gokool. This work on the Ron Justice and Attorney General. ◆ new Volunteer Dalton and Greg Coordinator Parsons cases. “Jerome position has been made possible by He has since de- the Ontario Trillium Foundation. voted thousands Kennedy is Shanaaz’s most recent experience of hours working a pioneer. was with Amnesty International, on cases across Canada. Few lawyers We consider where she worked and volunteered have Jerome’s passion and commit- ourselves in various capacities for over one ment to righting injustices. tremendously year. She has an impressive employ- At Jerome’s urging, AIDWYC held ment history in both private and not- its Between a Rock and A Hard Place confer- blessed to have for-profit sectors and brings many ence in St. John’s, Newfoundland in worked with transferable areas of expertise. We June, 2005. The conference was a and learned are excited to have her engage her great success attended by people who from him.” dynamic and professional skills, and have been wrongly convicted, defence she’s already well underway meeting and Crown lawyers, judges, digni- – Bob Simmonds, Erin Breen and Rosellen people, making improvements and taries, and an astounding number Sullivan, former law partners creating efficiencies. ◆

the aidwyc journal – spring 2008 7 ◆ aidwyc on the move aidwyc agm ’07: loads to celebrate!

convictions. Co-President Elisabeth Widner paid tribute to the wrongly convicted who open their lives to AIDWYC and the public. Among those in atten- photo: kristen watts dance were Gary Comeau, Romeo Phillion and Ron Dalton. She also extended her appreciation to the many volunteers and donors who enable AIDWYC to function.

PRESENT AND FUTURE Tanya Gerber, AIDWYC’s Executive President Paul Copeland Director, highlighted a number of impressive and sobering facts in her By Julien LeBourdais tempered by the knowledge that many report: other wrongly convicted individuals • In 2006–2007, more than 140 t 12 noon on August 28, have yet to receive justice. volunteers gave some 11,682 2007, I was on my way Co-President Paul Copeland hours to AIDWYC. The figure is A to Steven Truscott’s news read a statement prepared by Steven likely even higher as some vol- conference when I heard on the ra- Truscott, who was unable to attend, unteers have lapsed in recording dio that he finally had been acquit- praising AIDWYC and its “dream their hours. Quite obviously, the ted after a 48-year battle to clear his team” including James Lockyer, Phil organization could not function name. I’ll never forget the emotion Campbell, Jenny Friedland, Marlys without volunteers. of that moment. My involvement with Edwardh, Hersh Wolch and Win • Currently, AIDWYC has 55 AIDWYC had grown out of my long- Wahrer. On behalf of his whole fam- Canadian cases under review – as time association with Steve’s case, ily, Steve sent his heartfelt appre- well as approximately the same dating back to when my mother Isabel ciation for all the work AIDWYC had number internationally. I shudder LeBourdais wrote The Trial of Steven done to clear his name. when I imagine how many other Truscott in the 1960s. In 2005, I Noting that Jerome Kennedy wrongly convicted people have not had the pleasure of meeting William had become Attorney General of contacted AIDWYC or whose cases Mullins-Johnson at an AIDWYC event Newfoundland and Labrador, Paul have no hope. shortly after he was released on bail. expressed his hope that Kennedy, • AIDWYC is also endeavouring to On October 15, 2007, he too was ac- along with newly appointed Ontario tighten its operations, which in- quitted. Attorney General Chris Bentley, cludes applying for charitable That Steve and Bill had finally would be positive forces in their min- status and a number of grants, been acquitted was reason enough istries and remember that the role re-organizing office procedures, for the AIDWYC AGM to be a celebra- of the Attorney General is to see that creating new databases, re-de- tion. That celebration, however, was justice is done – not just to achieve signing the association’s Journal,

8 the aidwyc journal – spring 2008 and hiring its first Volunteer Client Services, gave us a review of ber of the wrongly convicted had a Coordinator. international cases, including those chance to bond while enjoying the Tanya also acknowledged and of Robert Hilliard, currently serv- out-of-doors. Ron thanked David expressed appreciation to The Law ing his 32nd year of imprisonment for his kindness and jokingly sug- Foundation of Ontario, Ontario in Louisiana, and Max Soffar who has gested this could be an annual event. Trillium Foundation, The Criminal spent 26 years on death row in Texas. Apparently, some negotiations will Lawyers Association, and anonymous Win then said it was her “greatest follow. individual and corporate donors for honour” to introduce the wrongly The AIDWYC AGM is much more their ongoing financial support. convicted who were present and said, than a business meeting. It’s an op- next to her family, no one was closer portunity for all of us to rededicate DOMESTIC AND to her than AIDWYC’s clients, prais- ourselves to the task of acquitting the INTERNATIONAL CASES ing the “indomitable spirit” of all the wrongly convicted and creating a pro- James Lockyer brought us up-to- wrongly convicted. cess where future miscarriages of jus- date on Canadian cases. He described Ron Dalton, who could consider tice are less likely to occur. ◆ the Steven Truscott decision as a a career as an after-dinner speaker or “huge victory” and told us about the radio talk show host, ably filled in for Mullins-Johnson case where Bill and Bill Mullins-Johnson (who was un- Julien LeBourdais has been a his brother each thought the other able to attend) speaking on behalf of photojournalist, part-time community college guilty until the Crown concluded no AIDWYC’s clients. Ron told us about instructor and fundraiser. After AIDWYC took crime had been committed. Bill was a recent retreat at an Algonquin Park up the Truscott case, Julien became AIDWYC recently reunited with his brother. cabin, loaned for the weekend by spokesperson for his late mother Isabel One can only imagine what these Director David Bayliss, where a num- LeBourdais, providing her files to CBC’s The brothers have had to endure for so Fifth Estate, many years. investigative After summarizing the cases journalist of James Driskell, Ron Dalton, Julian Romeo Phillion, Kyle Unger, Sher and Robert Baltovich, Jeff Smith and AIDWYC. Gary Comeau, Lockyer reported that AIDWYC will have standing at the Goudge Inquiry. Counsel will also represent nine individuals and possibly seven others as well as the inquiry delves into the actions of disgraced pathologist Dr. Charles Smith, whose In December 2007, AIDWYC received the Ontario Bar Associations’ inaugural faulty conclusions in 20 cases led to President’s Award. The award was granted for “tireless advocacy for wrongly 12 convictions. convicted Canadians and (our) role in public education and legal reform.” Introduced as the “heart and soul” L-R: Peter Meier, Win Wahrer, Greg Goulin (OBA President), James Lockyer, Tanya of AIDWYC, Win Wahrer, Director of Gerber.

the aidwyc journal – spring 2008 9 ◆ aidwyc on the move They lived to see their sons exonerated

It was hoped that both Lorne and strong man who quietly but with re- vered in her support for her son and Doris would have been with us just solve supported all eﬀorts to free his was relentless in clearing his name, a little longer but we are grateful for son. It is gratifying to know that he was in her early 80s. Mac Stienburg, the time they graced this earth and was able to share in his son’s freedom padre of Collins Bay Penitentiary/ the way they inspired us with their and exoneration before his death. ◆ Parole Board Member and longtime dedication and love of family. Truscott family friend said: “She dis- Doris Truscott played great strength and love during Lorne Milgaard Brennan: strength what must have been a nightmarish supported son David time. It does not surprise me that it We also send our condolences to was her heart [that was the cause of her Those of us who were lucky to have Steven Truscott and his family for the death] – it was broken years ago.” ◆ met Lorne Milgaard are deeply sad- loss of their family matriarch Doris dened by his passing at the age of 78 Truscott Brennan, on December 10, 2007, in Selkirk, who unexpect- “It does not surprise Manitoba. We express our heartfelt edly passed away on me that it was her condolences to his wife Joyce, son December 17, 2007, David and all their family members in Ottawa, Ontario. heart – it was broken at the great loss of a truly decent and Doris, who never wa- years ago.”

10 the aidwyc journal – spring 2008 Justice Lamer was involved in Justice Lamer loved his work and a number of high profile cases and remains an inspiration to the legal oversaw the inquiry into the wrong- profession and all those who knew ful conviction cases of Ron Dalton, and admired him. ◆ Randy Druken and Greg Parsons in 2004 to 2005 in Newfoundland. He Jeff Healy, AIDWYC released a report on the inquiry with supporter recommendations last year. Justice Lamer was best known Legendary Toronto musician and amongst his colleagues as a legal longtime AIDWYC supporter Jeff reformer whose ambition was to Healy died after a long fight with can- breathe life into Canada’s Charter cer in March 2008. He is survived by of Rights and Freedoms. Mr. Justice his wife and two children. Jeff was in- James MacPherson of the Ontario strumental in the success of our first Court of Appeal had high regard for and second Sounds Like Justice benefit Justice Lamer and spoke these words concerts. He will be missed. ◆ when remembering his friend: “There is no question that when it came to interpreting the legal rights Justice Antonio sections of the Charter, he was the Lamer breathed life Court’s most prolific writer and in- fluential thinker. He was a very ener- into the charter getic, intellectual and friendly man, Former Chief Justice of the Supreme and a terrific colleague who was al- Court of Canada, Antonio Lamer ways willing to shoulder extra work.” passed away on November 24, 2007 at the age of 74 in Ottawa, Ontario. Justice Lamer was one of the longest- serving and most respected judges in Canadian history. He had a long and illustrious legal career which began as a Montreal criminal lawyer and ended with his retirement in 1999 after 10 years as Chief Justice. At the time of his death, Justice Lamer was acting as independent commissioner of the Communications Security Establishment.

the aidwyc journal – spring 2008 11 ◆ join the cause Can you help us at aidwyc? ...

teven Truscott, James Driskell, www.aidwyc.org or by phoning our • Development Committee mem- Clayton Johnson are just some office at 416-504-7500. bers to assist us in reaching finan- Sof the many wrongfully con- cial sustainability victed men and women whom AIDWYC VOLUNTEER • Grant writing and seeking has helped. We could not do this im- We depend on the voluntary services • Media and Marketing develop- portant work without the support of of lawyers and private investigators ment support members, volunteers and donors. to assist in the process of determin- • Administrative support in our Here’s how you can help: ing which cases to adopt or endorse. Toronto office If you can give us some of your time • Auction item sourcing ANNUAL MEMBERSHIP to investigate or review a case, please • Design work on new brochures Membership in AIDWYC entitles you contact us. We also need the help in and postcards to receive all information distributed the following areas: regarding the organization’s regular • Website management by techni- DONATIONS activities and any publications, in- cally-skilled individual Donations, which are essential for cluding the AIDWYC Journal. If you • Experienced Advertising Sales AIDWYC to continue its work, are would like to receive further journals, Manager, Writers, Photographers gratefully accepted. AIDWYC does not please use the form below. If you are and Senior Editor for our publi- currently have charitable status so interested in back issues of the jour- cation: the AIDWYC Journal charitable tax receipts are not avail- nal, or further information on a case, • Planning fundraising and special able. However, tax receipts are issued they are available on AIDWYC’s website events for donations made to The JUR-ED Foundation, a charitable organization Please return this form and your cheque payable to with a mandate to assist AIDWYC with AIDWYC (or the JUR-ED Foundation) to: its outreach and education programs (Charitable Registration #11924 AIDWYC, 85 King Street East, Suite 318, Toronto, Ontario, M5C 1G3, Canada 0075 rr0001). Yes, I would like to become a member of AIDWYC. Enclosed is my cheque for $50. There is a sliding scale if you are under-employed or a student. Please IN-KIND DONATIONS pay what you can, and mark sliding scale on the form (minimum $10). We are also in need the following: Yes, I would also like to make a donation to AIDWYC. Enclosed is my cheque • New or lightly used office furni- in the amount of: $25 $50 $100 Other $______ture (Cheques payable to “The Jur-Ed Foundation” will receive a tax receipt. • Auction Items, either products or The Jur-Ed Foundation supports aidwyc’s education activities.) services, for fundraising events In-kind donation: ______• New computer Name: ______• Printing and design work on new Address: ______brochures and post cards City: ______Prov./State: ______• Place advertisements in the Postal/Zip Code: ______Country: ______Journal Tel: ______Fax: ______Email: ______

12 the aidwyc journal – fall 2007 ... or perhaps aidwyc can help you?

f you, or someone you know, has been wrongly con- Committee, which is made up of primarily AIDWYC senior victed and think that AIDWYC can be of help, there lawyers, oversees all the volunteer’s work. Iare a number of steps to follow. Please keep in mind the following criteria before contacting us: STEP FOUR We can only review cases of conviction on serious Once the review of your case has been completed, the offences (almost exclusively murder), where you do not volunteer will submit to the Director of Client Services have the financial resources to hire competent defence and the Review Committee a summary of your case counsel. With our limited resources, we have to prioritize. accompanied by his/her recommendations concerning The evidence in the case must be consistent with your case. The Review Committee will ultimately factual innocence. determine whether a case fits AIDWYC’s criteria and You must already have been tried and convicted and whether to recommend your case for adoption or, for exhausted your possibilities for appeal. international cases, endorsement by AIDWYC’s Board of Directors. For international cases, we offer support in STEP ONE various ways that will be clearly outlined in a response If you meet all three criteria, send the Director of Client letter to the applicant. Services, Win Wahrer, a brief outline of the facts of the case and its current status. Please include your name STEP FIVE and address, plus the name, address, telephone number AIDWYC’s Board of Directors adopts and endorses cases and email (if available) of a relative or friend whom we based on full investigation and recommendation of either may contact on your behalf. We will also need contact of the Review Committees. All applicants will be advised information for your current or most recent lawyer. of AIDWYC’s decision by mail.

STEP TWO STEP SIX Once AIDWYC receives this information, we will send you If the case is in Canada, where our lawyers practice, we an application form to complete that will provide us the will then make an application for legal aid to take the case basic information regarding your case, as well as a release further, contacting appellate courts or the Minister of form that authorizes AIDWYC access to any additional Justice under section 696.1 (formerly section 690) of the information we may need to properly review your case. Criminal Code. Please also be aware that we receive a great number of STEP THREE requests for assistance and that our work is accomplished When we have received your completed forms, we will primarily through skilled volunteers. The review process contact you for any speciﬁcs required to begin the process may take months or even years depending on the length of reviewing and assessing the merits of your case, which of time it takes in document sourcing, completing the will be conducted by a volunteer lawyer, paralegal or law research, and the resources available to do the work students. The volunteer is given a case referral sheet that involved. While this should not discourage anyone from clearly outlines the steps he/she must follow to ensure applying to AIDWYC, it is important to have realistic that a complete and thorough review of your case is expectations about our criteria and the amount of time conducted. The Director of Client Services and a Review required.

the aidwyc journal – fall 2007 13 ◆ canadian case updates How our case review process works

hese selected case updates include some of the cases AIDWYC has under review, and some of those that have already been adopted or endorsed. AIDWYC has a lengthy review process in which lawyers are assigned to do a thorough case review, including obtaining documents, investigations and Twhere possible, accessing forensic testing. Following this initial review, the case is referred SYMBOLIC KEY TO INDIVIDUAL to one of AIDWYC’s Review Committees to determine whether the case meets AIDWYC’s CASE STATUS WITH AIDWYC criteria, and make recommendations for adoption or endorsement, which is granted by our Board of Directors. Adopted cases are Canadian; endorsed cases are either being ADOPTED supported by another group or individual; or are from foreign countries. Endorsed cases are ENDORSED provided a lower level of intervention, as AIDWYC’s resources are primarily Canadian. UNDER REVIEW  NOT AN AIDWYC CASE

promoted to the Ontario Court of Between court appearances, Mr. ROBERT BALTOVICH: Appeal and therefore could not con- Baltovich has been employed as a li- second trial tinue to preside in this case. brarian at the Ministry of Natural ADOPTED Justice Watt had ruled on six of Resources in Peterborough, Ontario. the 12 pretrial motions that had been He will be returning to Toronto at Jury selec- argued before him by Mr. Baltovich’s the end of February to prepare for his tion was sched- legal team consisting of AIDWYC law- trial and is anticipated to proceedings uled to begin yers James Lockyer, Joanne McLean commencing in March. ◆ on October 15, and Heather McArthur. The Crown 2007 in Robert prosecutors are Phil Kotanen and BILL MULLINS- Baltovich’s sec- John McGrath, who was recently re- JOHNSON: miscarriage ond trial for placed by Andrew Pilla. of justice the 1990 murder of Elizabeth Bain The six remaining motions were whose body has never been found. re-argued in front of Superior Court ADOPTED Jury selection would have made for a Justice David McCombs who replaced truly momentous day since William Justice Watt. October 15, 2007 is the day that Bill Mullins-Johnson was just a few blocks Justice McCombs ruled on the six Mullins-Johnson will never forget away appearing before the Ontario motions on February 15. Regrettably – the day that he gave his ﬁnal testi- Court of Appeal, which by day’s end we are unable to report in anyway on mony in a court of law. had exonerated him. the substance of the pretrial motions David Bayliss, an AIDWYC law- However, the 60 witnesses and because of a publication ban. Barring yer who represented Bill along with the jury pool consisting of over 300 any further delays, it is expected that James Lockyer said “I have never prospective jurors were dismissed jury selection will begin on March 31, heard a more emotional testimony when it was learned that the presiding 2008. in my 25 years as a criminal defence judge, Justice David Watt had been lawyer.”

14 the aidwyc journal – spring 2008 ◆ canadian case updates

read it, that’s actually what they’re On January 31, James Lockyer saying.” asked Dr. Smith whether he would In the aftermath, reality sets in like to apologize to Bill and Smith quickly. A large portion of his family responded that he would. had abandoned him. Some commu- You could hear a pin drop as Bill nity members had begun to support quietly responded: him and others continued to believe “I forgive you but I will never for- he was still guilty. get what you did to me. You put me Bill knew instinctively that he in an environment, every day, where would have to make the first move I could have been killed for some- There was not a dry eye in the toward healing and reintegration. thing I didn’t do … You destroyed my courtroom when Bill related the He extended the proverbial palm, family. They hate me because of what negative effects of being wrongly con- a symbol of peace and forgive- you did. My brother’s relationship victed on him and his family. ness, and began the healing process. with me, and my niece that’s still liv- In their written decision to ac- On November 2, 2007, he trav- ing and my nephew that’s still living, quit Bill Mullins-Johnson, Justices eled to Sault Ste. Marie to attend they hate me because of what you did Dennis O’Connor, Marc Rosenberg a press conference along with the to me.” and Robert Sharpe rejected the Batchewana First Nation Chief and “I’ll never forget that, but for my lawyers’ request that he be declared Council in which he addressed his own healing … I must forgive you.” ‘factually innocent’. family members and community. Bill’s friends and supporters have However, they wrote that his ar- Since his acquittal, Bill has no doubt that his future will be filled rest was due to an “inexorable rush taken a leave from his studies at the with both challenges and successes to judgment” triggered by Sault Ste. University of Toronto and returned but that he will overcome any obstacle Marie doctors and pediatric forensic to live in Sault Ste. Marie. He plans in his way. Many see him as an ex- pathologist Dr. Charles Smith. to resume his studies in the fall. traordinary man. ◆ “Nothing we have said in these This important move will help to reasons should be taken as somehow repair broken relationships, enable ROMEO PHILLION: qualifying the impact of the fresh evi- him to support his mom, Laureena, entering Court dence, that evidence, together with who has sacrificed so much and to ADOPTED other evidence, shows beyond ques- take some much needed time to tion that the appellant’s conviction re-assess his life and look after his was wrong and that he was the subject health. Romeo Phillion is known as the of a terrible miscarriage of justice.” On January 25, Bill was present granddaddy of all wrongful convic- This portion of Bill’s agonizing at the Goudge Inquiry into Pediatric tions cases, serving 31½ years behind and horrific nightmare was at last Forensic Pathology in Ontario. He bars for a 1972 murder conviction he over. and other victims exchanged support swears he never committed. Released Bill’s response: “They came as as they witness the testimony of Dr. on bail four years ago, Phillion now close as they could, legally speaking, Charles Smith. wants to be known as “innocent.” in terms of factual innocence. If you • Continued next page

the aidwyc journal – spring 2008 15 ◆ canadian case updates

• Continued from previous page

He attended the Ontario Court of Appeal on January 21, 2008 for

a week of testimony in his wrongful photo: win wahrer conviction hearing. AIDWYC lawyers James Lockyer, Phil Campbell and Joanne McLean represented Phillion in his case for exoneration in front of Justices John Laskin, Michael Moldaver and James MacPherson. The court can order a new trial, uphold the conviction or acquit Phillion. Among the first witnesses to take the stand was the former Ottawa police of- L-R: Armand Phillion (brother), Romeo Phillon, Arthur Cogan, (former trial lawyer) ficer who investigated the murder case. Retired Detective John McCombie fied that after returning to Trenton, “Trenton Report” had never been couldn’t remember many facts of the he’d been able to discount Phillion’s disclosed to him. Indeed, if it had case and, under cross-examination by alibi, although no evidence exists to been, Cogan said he would have likely James Lockyer, couldn’t answer why a support his claim. asked the court to drop the charges key investigative report had vanished Phillion’s case was the first mur- based on the report’s alibi evidence. from the police evidence room. der case now-retired Crown attorney In July, the defence expert in false In the “Trenton Report,” Det. Malcolm Lindsay prosecuted. During confessions will be cross-examined in McCombie confirmed Phillion’s his testimony, Lindsay admitted he London, England. The legal submis- alibi saying it would have been “im- and the police had possession of the sions of Phillion’s appeal are sched- possible” for him to have killed Roy “Trenton Report” but denied con- uled for mid-November 2008. ◆ since Phillion was 300 km away in spiring with the police to conceal the Trenton, Ontario when Leopold Roy report from Phillion’s trial lawyer at SHERRY SHERRETT: was murdered in Ottawa. Years later, the time, Arthur Cogan. Yet under facing Dr. Charles Phillion confessed and shortly there- cross-examination by Phil Campbell, Smith after recanted but the evidence that Lindsay conceded that it was clear, could have exonerated him in the based on the 1972 transcripts of the ADOPTED “Trenton Report” inexplicately dis- preliminary hearing and trial, that appeared. Phillion didn’t even know Cogan wasn’t aware the report ex- In January, AIDWYC client Sherry the report existed until 1998 when a isted. Sherrett sat through most of Dr. parole officer placed the report on his Under aggressive cross-exami- Charles Smith’s week-long testi- prison bunk. nation by Crown prosecutor Lucy mony at the Goudge Inquiry. She was Det. McCombie, however, testi- Cecchetto, Cogan insisted the present when Dr. Smith admitted

16 the aidwyc journal – spring 2008 ◆ canadian case updates

to making mis- Ms. Sherrett expressed the ple’s lives in death then I am sure he takes in her case thoughts of all the victims who at- has no problem doing it in life.” as well as when tended the Goudge Inquiry during Ms. Sherrett hopes to return to he apologized to Dr. Charles Smith’s testimony – vic- her native Nova Scotia with her hus- William Mullins- tims whose lives have been irrevocably band and daughter once her frustrat- Johnson. damaged. She said it was important ing and agonizing ordeal is over. ◆ Ms. Sherrett to them that Dr. Smith see them to- would have liked gether standing proud and that he be to have had the aware of their presence. “I want this opportunity to tell Dr. Smith that “I want this man to see that he man to know despite being accused of killing her has not broken me, nor my family, this is just the infant son, Joshua, the loss of her nor my children. I want this man to freedom for a year, and the adopt- see that I still have a lot of fight left beginning for ing-out of her elder son, she is deter- in me. I want this man to know this me, yet the mined to continue her fight to clear is just the beginning for me, yet the complete end her name when she appears before complete end for him. I hope he the Ontario Court of Appeal later loses his license to practice. Period. If for him.” this year. he can make mistakes and affect peo- –Sherry Sherrett at the Goudge Inquiry

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the aidwyc journal – spring 2008 17 ◆ canadian case updates

the past l0 years. Our “dream team” CY GREENE: being James Lockyer, Phil Campbell, Marlys Edwardh, Hersh Wolch and files lawsuit Jenny Friedland spent many, many ENDORSED hours away from their families in Cy Greene de- the name of justice in my case. Their serves US $1-mil- hard work paid off, not just for me lion for every but also for them and our country. single year he Beyond the AIDWYC lawyers, I will spent behind never forget Win Wahrer, AIDWYC’s bars for a mur- Director of Client Services, and her der he did not commit, says his devotion and strength throughout lawyer Myron Beldock. On Feb. 11, our entire ordeal. 2008, Beldock filed a US $22.5-mil- STEVEN TRUSCOTT: Our family has had many ups and lion lawsuit against the New York downs over the past seven or eight Police Department and Brooklyn’s journey to justice months but as always we manage to District Attorney’s Office for setting ADOPTED cope with events as they happen. We up his client. The first court con- were pleased to receive many of our ference dealing with the lawsuit will By STEVEN TRUSCOTT friends and relatives at our home the take place before a federal magistrate I will never forget the weight be- day after the acquittal. Time did not judge in May. ing lifted from my shoulders while stand still for us – we moved forward In 1985, Cy Greene, then 19, was driving down the 401 to Toronto on and have the “cream of the crop” convicted of the 1983 robbery and August 28, 2007. Via my son’s cell – Marlys Edwardh and Hersh Wolch murder of John Choi in Brooklyn, phone, James Lockyer uttered the – retained for the compensation is- NY, largely due to suppressed eyewit- words “you are free – no more pa- sue. ness evidence. After Beldock took on role – you have been acquitted by the Sadness entered our lives one his case prono bono eight years ago, Courts.” It is hard to explain the feel- week before Christmas when my dear Mr. Greene walked out of jail after ing of relief after 46 years of bear- mother passed away very suddenly. I 21½ years a free man in February ing the wrongful conviction and then spoke with her by phone the night be- 2006. suddenly in a moment’s time it is all fore and it was a very uplifting phone Since then, Greene has worked, over. call, which I will never forget. but still had a hard time finding an I will never forget those who Marlene and I, and some of our affordable place to live. In fact, he helped both Marlene and me get family members look forward to see- was forced to live in his car for a through the agonizing l0 years of ing many of you at the Sounds Like number of months until the New fighting this case. On the other hand, Justice Concert in Toronto on May York Innocence Project and support- nor will I forget the preceding years 8, 2008. Thank you everyone for ers from Canada contributed enough of incarceration and parole. making our journey for justice a little money to cover first and last month’s I will never forget AIDWYC’s role easier. ◆ rent on a prospective apartment. Mr. both physically and mentally during Greene wishes to thank all those who gave so generously.

18 the aidwyc journal – spring 2008 ◆ international case updates

Greene “is an intelligent man,” circumstances” surrounding his guilty DNA testing of fingernail scrapings said Beldock, who also helped free verdict at trial. and hairs recovered from the victims’ boxer Rubin “Hurricane” Carter. “In light of Judge McKeown’s hands. “Had this not happened, he could condemnation of the prosecution’s In Feb. 2008, Savory appeared on have made real strides.” ◆ repeated mishandling and destruc- Rev. Jesse Jackson’s “Rainbow Push tion of evidence,” Cooper’s attor- Coalition” television show, along with KEVIN COOPER: neys stated, “Mr. Cooper submits Illinois exoneree Kenny Adams, who fighting for his life he cannot be executed without the was released from prison in 1996 af- ENDORSED U.S. Constitution being violated.” ter DNA testing. Rev. Jackson and his They have asked that a larger panel of son Jonathan pledged their support Although he still judges from the appeals court rehear and implored the Governor to order faces a death arguments. At press time, the court DNA testing. sentence, Kevin had not responded to Cooper’s re- Savory works as an office assis- Cooper is not quest. ◆ tant and desk clerk at St. Leonard’s, beaten. a Chicago halfway house, and also “I will con- JOHNNIE SAVORY: speaks on behalf of the Chicago tinue this fight DNA request Coalition for the Homeless. ◆ as long as I live, and I truly hope ENDORSED that you will continue fighting with SCOTT WATSON: me,” he said to supporters after the After 30 years the ketch that was 9th Circuit Court of Appeals denied behind bars for ENDORSED his petition for relief on January 9, a 1977 double 2007. Two of the three judges on the murder charge in On New Year’s panel that heard his petition had pre- Peoria, Illinois, Day 1998, two viously ruled against Cooper. Johnnie Lee young New Cooper was sentenced to death in Savory was released on parole in Zealanders, Ben 1985 for the murders of four people 2006. The courts have repeatedly de- Smart and Olivia in Chino Hills, California. He nar- nied Savory the right to DNA testing, Hope disap- rowly avoided being put to death in and yesterday Mr. Savory was joined peared without 2004. by hundreds of supporters in calling a trace. Yachtsman Scott Watson was Judges Pamela Ann Rymer and on Illinois Gov. Rod Blagojevich to convicted of the murders and sen- Ronald M. Gould cited that evidence order testing in the case. tenced to life imprisonment even against Cooper was overwhelm- On January 18, 2008, Mr. though he didn’t fit the description of ing. Judge Margaret McKeown also Savory and his supporters, including the man the young pair were last seen ruled against Cooper on procedural AIDWYC, Northwestern University’s with, and he owned a 26-foot sloop, grounds, but expressed deep con- Center on Wrongful Convictions, not a 40-foot ketch the couple were cerns over “evidentiary gaps, mis- former U.S. Attorney Tom Sullivan seen boarding. handling of evidence and suspicious and best-selling author John Grisham petitioned the Governor to order the • Continued next page

the aidwyc journal – spring 2008 19 ◆ international case updates

• Continued from previous page was made to the public. Arlidge have said they in- However, he’s since re- formed the police at the However, since the release of the vealed that after just a few time that they had seen latest book examining the case, Keith days of answering calls, Smart and Hope board Hunter’s Trial by Trickery, a number of the inquiry team was told a 40-foot ketch. Their people have come forward with new to ignore them and focus description of the ketch information that has even Olivia only on Scott Watson. matched that of eyewit- Hope’s father doubting that the right The police also nesses Hayden Morrissey, person is in prison for his daughter’s claimed that no such Sarah Dyer, water taxi death. 40-ft ketch existed, yet driver Guy Wallace, and Ex-detective Mike Chappell took numerous people apparently con- Ted Walsh, who saw the ketch on New hundreds of calls that came into tacted the police to conﬁrm they had, Year’s Eve and again two days later. “Operation Tam” after an appeal for in fact, seen the sailing vessel . In Ross Parker, experienced boater information about the missing couple November 2007, David and Rachel and Royal New Zealand Yacht Squadron member, has also come forward. After he and his wife saw the mystery ketch, Parker says, he called “Operation Tam” but was told the police no longer wanted information regarding the ketch. On New Year’s Day 1998, two young New Zealanders, Ben Smart and Olivia Hope disappeared without a trace. Given this information, Scott Watson’s lawyers, Greg King and Mike Antunovic, have announced they will submit a petition later this year to the New Zealand Governor- General who has the power to pardon Watson or refer his case back to the New Zealand Court of Appeal. ◆

20 the aidwyc journal – spring 2008 ◆ aidwyc acknowledgements We couldn’t do it without our funders

e are grateful to the fol- tigate cases, pay disbursement costs ments, like those provided by Pro lowing funders who pro- (travel and transcripts etc.), raise ad- Bono Law Ontario, enable our work W vide support for AIDWYC’s ditional funds, and reimburse expert tremendously. work and infrastructure. witnesses. If you are a member, have made • Law Foundation of Ontario Additional funding would enable a donation or volunteer, thank you for • Ontario Trillium Foundation us to accomplish even more, includ- making a diﬀerence in the lives of many • Criminal Lawyers Association ing: hire an AIDWYC attorney, start wrongly convicted men and women! • Anonymous donors a Canadian wrongful convictions If you haven’t yet, please join us in Individual and corporate donors library, and pursue further policy pursuing justice by becoming a mem- enable us to accomplish important initiatives necessary to help prevent ber, making a donation or volunteer- work. Currently, contributions pro- future wrongful convictions. ing. We can’t do it alone. Now is the vide the funding needed to inves- In-kind support and endorse- time for action. ◆

STUDENT ACTIVITY the justice system, the grave potential Practicum Officer, for the Faculty • Continued from page 6 for injustice and, most importantly, of Criminology, Justice & Policy the satisfaction that comes with doing Studies. “As a field placement, Ms. Breen traveled from St. John’s, the right thing. Working on the case AIDWYC provides students with a Newfoundland to New Brunswick to has been a huge motivator to learn world class opportunity to put their meet with the students on two oc- those detailed technical aspects of law theory into practice … A significant casions; she accompanied students that are so difficult to grasp in the number of students have acknowl- to the alleged crime scene in Saint abstract. As an instructor, I greatly edged their work with AIDWYC as the John, N.B. and met with AIDWYC’s benefited from working with Erin; we definitive highlight of their under- client and a reporter who covered the both enjoyed the energy and enthusi- graduate career.” Dan Walters. case. The students also reviewed all asm the students brought to the task.” available documents and each wrote (Professor Jula Hughes) York University a paper on an aspect of the case. The Our collaboration with Osgoode Hall course has ended and many students University of Law School’s Innocence Project this are continuing to work on the case. Ontario Institute of term included four placements by ea- “The work on the file has added ger and able students with established an extremely valuable experience to Technology AIDWYC lawyers on various cases. ◆ the UNB law curriculum. Over the Students are reviewing inter- course of the term, students became national cases under Jim Bell, increasingly aware of the frailties of Teaching Assistant, and Dan Walters,

the aidwyc journal – spring 2008 21 ◆ goudge inquiry commentary Cross-examination is like déjà vu

BY HAROLD LEVY Deputy Minister and Chief Coroner for many years. I could not help but feel an enormous sense of déjà vu éjà vu: the About.Com Internet Dictionary definition as Sokolov drew Dr Young’s attention to some of Justice is: “The phrase déjà vu is French for ‘already Kaufman’s findings in Morin, including: Dseen’ and is used to refer to when a person ex- • The limitations upon scientific findings were not accu- periences the feeling that they have seen, experienced, or rately or adequately communicated to police, prosecu- been someplace before, even when they are sure that that tors, the defence, and to the courts is not really true.” • Scientific findings were overstated at times As the Goudge Inquiry winds to a close, most of us want • Evidence was lost to believe that important lessons will be learned so that in • There were at times a loss of objectivity inconsistent the future innocent parents and caregivers will be spared with the proper role of a forensic scientist the horror of being cast as murderers because of the fail- • Forensic reports were not being reduced to writing so ings of forensic science and forensic scientists. that they could later be viewed by others for purposes of However, the cross-examination of former Chief certainty and accountability (Justice Kaufman recom- Coroner Dr. James Young by AIDWYC lawyers Louis Sokolov mended that there should be a written policy for foren- and Vanora Simpson – with its evocation of the abuses of sic reports) forensic science that led to the wrongful conviction of Guy Young agreed with Sokolov that, “Much of the findings Paul Morin, might somewhat temper our optimism. and indeed the recommendations regarding the Morin After all, Dr. Young was also a witness at the Kaufman Report, need not only concern the (Centre of Forensic Inquiry into Morin’s wrongful conviction as Assistant Sciences) but concern the wider issues of forensic science.” Deputy Solicitor General with responsibility for the Centre Coming back to my sense of déjà vu, here we were 10 for Forensic Science which had come under intensive scru- years later, Dr. Young was in the witness box admitting er- tiny for its role in connection with the Morin case. rors in the system, and we had spent the last three months Indeed, Justice Fred Kaufman concluded in his 1998 hearing a mountain of evidence involving overstatement report that: “A large number of CFS (Centre for Forensic of scientific opinions, failure to disclose the limitations Science) scientists perform their work with distinction. on scientific findings, sloppy forensic reports, loss of evi- On the other hand, it would be a serious mistake to assume dence – and, above all, forensic scientists testifying for the that the failings identified are confined to two scientists. A state who displayed lack of objectivity consistent with the number of those failings are rooted in systemic problems, proper role of a social scientist. many of which transcend, even the CFS and have been Haven’t we heard that before? ◆ noted in cases worldwide where science has been misused. Dr. James Young, assistant Deputy, Solicitor General with responsibility for the CFS, apologized on behalf of the CFS Harold Levy (who in spite of all this believes for any role in Guy Paul Morin’s conviction and advised the Goudge inquiry is immensely important, the Commissioner that he had not appreciated the depth compensation for Dr. Smith’s victims cannot of issues which would arise at the Inquiry.” come soon enough, and who remains an Flash forward almost ten years to 2007, and Dr. Young incurable optimist). Tune into Harold Levy’s, is in the hot-seat at the Goudge Inquiry where he is being “The Charles Smith Blog”at: smithforensic. questioned in the context of the positions he held as Assistant blogspot.com.

22 the aidwyc journal – spring 2008 ◆ truscott commentary

In wrongful conviction cases, an intervening event hap- Steven Truscott: pens. The individual gets convicted, surrenders the necklace and suffers the consequences of now being no longer the presumption of presumed innocent but proven guilty. Later however, it is determined that the conviction was wrong, and therefore, innocence by overturning the verdict, we return the necklace to the individual. The presumptive state of innocence that ex- by David Asper isted before the wrongful conviction is restored to the in- Republished with permission. Originally published in The National Post, dividual. Friday August 31, 2007 If the presumption of innocence is to mean anything, this is the way it should be. actual innocence.” These two words have Yet, in the Truscott decision earlier this week by the crept into Canadian law in a manner that Ontario Court of Appeal, we see once again the emergence “F essentially places an asterisk beside the ac- of this concept of “factual innocence” and with it a burden quittal of individuals who have suffered a miscarriage of of proof shifted to the accused that he or she must prove justice, otherwise known as a wrongful conviction. their innocence rather than the state having to prove their What the concept seeks to partly do is limit the poten- guilt. I understand this approach when framed in theo- tial liability of the state for compensation to the wrongly retical terms of getting to the truth, but as a practical mat- convicted on the basis that an acquittal does not necessarily ter, this is a dramatic shift in Canadian criminal law. It is mean the individual didn’t commit the crime, but rather, profoundly unfair to the wrongly convicted and bespeaks a that the state cannot prove it. At its core, factual innocence sinister systemic hypocrisy. sets up what is tantamount to a verdict of “not proven,” On the one hand, the state seems to share a concern that which is something that up to this point has been formally wrongful convictions be remedied. On the other, however, unknown in Canadian law. It taints an acquittal. what the state seems to be saying is essentially that since it Let’s go back a moment and consider the context. It wrongly convicted an individual and cannot now prove its is well established and now enshrined in the Charter of case, unless that individual can prove his or her “factual Rights and Freedoms, section 11 (d), that everyone charged innocence,” it can qualify the error made in the underlying with an offence is presumed to be innocent until proven prosecution and conviction. guilty. The state has the burden, before convicting anyone There are some wrongly convicted people who can ac- of a crime and potentially depriving them of their liberty, tually meet this burden as the result of DNA or other sci- to prove beyond a reasonable doubt that the person did entific means that achieve a degree of certainty. In other what they are accused of doing. cases, the wrongly convicted might get lucky and be able To understand this in popular terms, an accused walks to identify the true perpetrator. But in many other cases, into court wearing an “innocence necklace” that he or she such as Steven Truscott’s, no such opportunity apparently gets to keep unless and until the state has proven he or she exists. How can he possibly ever prove his “factual inno- should have to surrender it. If the accused is acquitted, they cence”? What resources does he have to reinvestigate the don’t have to give up the necklace and they leave the court- 1959 murder of Lynne Harper? room wearing it just as when they first arrived. According Advocates for the wrongly convicted should not fall to the law, nothing has changed and the now acquitted in- into the trap of seeking declarations from judicial bodies dividual remains as presumptively innocent after as he or that their client is “factually innocent” because to do so she was before the trial. continued next page

the aidwyc journal – spring 2008 23 ◆ truscott commentary ◆ compensation commentary My twenty year admits the legitimacy of the concept. A judge who acquits battle ends an individual allows them to retain their innocence neck- By Ronald Dalton lace and that is all we can ask from the system. Even where a wrongfully convicted person can bring scientific evidence y twenty-year battle for jus- eliminating himself as the perpetrator, the best the court tice has ended with settle- can do is overturn the conviction and enter an acquittal. Mments in my civil suits against “Factual innocence” does not exist in the courtroom the Government of Newfoundland and world. It is a fiction that has been developed outside the Labrador and two of my former lawyers. law and those who promulgate it – in many cases with the Terms of the modest Government set- explicit or implicit support of the state, police investigators tlement were made public by the former Justice Minister of attempting to justify their actions and occasionally, pros- Newfoundland and Labrador. The other suits were settled on ecutors trying to salve their wounded image – are playing undisclosed terms. I now find myself free of legal proceedings a dangerous game. Media also plays an important role in for the first time since 1988. perpetuating the notion of the “nudge nudge not guilty but Mr. Justice William Marshall, in the paper he delivered we know he did it” or “he got off on a technicality” game. to the 2004 AIDWYC conference, stated the civil litigation Until we choose as a matter of law and public policy to process is a woefully inadequate instrument for dealing with conduct our criminal justice process as effectively a truth compensation issues arising from wrongful convictions. He commission, and even then, there is no guarantee the suggested the need to formally tie the compensation of vic- truth is ever actually achieved, we should not be tinkering tims of wrongful conviction to the Criminal Code provisions. so cavalierly with one of the most fundamental principles Drawing on his extensive experience Mr. Justice Marshall in law. If we are innocent until proven guilty, and are not came to the conclusion that wrongful convictions arise from proven guilty, then we are innocent. ◆ flaws within the criminal justice system and it is that system which should contain corrective measures for compensating the wrongly convicted. My own experience lends support to David Asper is Executive Vice President at the identified need to develop a better compensation model Canwest and Chairman of the National Post. for the inevitable mistakes of an evolving criminal justice sys- He is also a member of the Board of Directors tem. In recent months, the Supreme Court recognized the of Canwest and serves on several charitable and tort of wrongful conviction and has allowed several such cases community boards in Winnipeg and Toronto. to proceed through the civil system. Mr. Justice Marshall pro- Prior to joining Canwest in 1992 Mr. Asper posed a more direct link between compensation and the crim- practiced criminal defence law in Winnipeg and inal justice system. Such a process would require amendment was co-counsel on the David Milgaard case. of the Criminal Code and the support of provincial and fed- He recently completed a Master of Laws at the University of Toronto and eral governments. Given the unfortunately widespread nature in his thesis argued that the role of defence counsel in wrongful convictions of wrongful convictions such support should be readily forth- requires mandatory continuing professional education in Canada. Mr. coming. Asper has also recently pledged the largest private donation to a law school My experience was not pleasant. Firstly, it extended legal in Canada by establishing the David Asper Centre for Constitutional Rights proceedings for seven years following my acquittal. Secondly, at the University of Toronto Faculty of Law. continued next page

24 the aidwyc journal – spring 2008 ◆ jason hill commentary The police can be sued for negligence

By Louis Sokolov Both Hill and the police appealed the judgment of the Court of Appeal. Hill argued that the investigation was indeed n October 4, 2007, the Supreme Court of negligent. The police argued that they ought to be immune Canada confirmed that the police may be sued from actions in negligence. A number of intervenors inl- Oby persons who are wrongly accused or convicted cuding AIDWYC and the Criminal Lawyers Association in- of crime if an investigation is conducted negligently. tervened in support of the continued existence of the tort Jason Hill was charged with robbing a bank and spent of negligent investigation. Various law enforcement agen- 20 months in jail before being acquitted. He sued the cies intervened in favour of police immunity. Hamilton-Wentworth police, alleging that there had been A majority of the Supreme Court of Canada agreed that a number of serious deficiencies in their investigation. Hill police officers are not immune from the tort of negligence lost at trial and appealed to the Court of Appeal for Ontario. and owe a duty of care to suspects. Their conduct should The Court of Appeal held that, in Ontario, the police can be measured against the standard of how a reasonable po- be sued if investigations are conducted negligently. lice officer in the same circumstances would have acted. The Court of Appeal split 3-2 on whether the Hill in- The Court specifically held that the tort was necessary to vestigation was negligent. The majority were of the view provide a potential remedy to those persons who have been that notwithstanding that the police used a photo line-up wrongly convicted as a result of negligent policing. The consisting of 11 Caucasian suspects and Hill, an Aboriginal, judgment is groundbreaking insofar as Canada is now the and notwithstanding that the police failed to investigate ex- first and only common-law jurisdiction in the world to culpatory evidence the evidence met the standard of care at provide for this legal remedy. the time. Unfortunately, although the Court acknowledged that Jason Hill had been wronged, it held that the police investigation in his case had not been negligent. Although the continued from previous page investigation fell short of good police practice, the Court the defending parties refused to acknowledge my innocence. held, the officers met the very low standards that prevailed Thirdly, I was once again required to prove my innocence and at the time Hill was arrested and charged. document the suffering endured by my family. Finally, I was Mr. Hill was represented by Louis Sokolov and Sean forced to negotiate an arbitrary price for the freedom I lost. Dewart of Sack Goldblatt Mitchell LLP. AIDWYC was rep- Each battle took a toll on my family and me after we had al- resented by Julian Falconer and Sunil ready endured far too much needless suffering. The result was Mathai of Falconer Charney LLP. ◆ less than satisfactory from many perspectives and clearly need not have been dragged out for so many years other than to protect the offending parties and save short-term cash at the – Louis Sokolov is an AIDWYC Director and expense of public confidence in the overall administration of Executive Committee member. He served as justice. Other compensated wrongful conviction victims have AIDWYC’s counsel at the Goudge Inquiry. Louis universally reported to me that their compensation battle was practices out of Sack Goldblatt Mitchell’s civil almost as difficult as their original fight for freedom. litigation group. He has a varied practice which Given the inadequacies of the civil process, Mr. Justice has taken him to every level of court as well as several royal commissions Marshall’s proposal should be put forward to avoid, “heap- and class actions. Louis was called to the Ontario Bar in 1993. ing rank injustice on injustice” (Marshall, 2004). ◆

the aidwyc journal – spring 2008 25 ENDORSED BY AIDWYC The Timothy Fonseca Case Timothy Fonseca’s small stint as a gang member would later haunt him and lead to his arrest for the murder of Arthur Mayer

By Kelly S. Bentley

imothy Fonseca was arrested on May 16, 1995 for the murder of Arthur Mayer. On May 15, 1996, Mr. Fonseca was found guilty of ﬁrst-degree murder with a gun enhance- ment and was sentenced for 35 years to life. From the day of his arrest, Mr. Fonseca has professed his innocence and has ne ver faltered from this assertion. Mr. Fonseca’s wife, Lynn Fonseca, contacted AIDWYC regarding her husband’s innocence. I was given the great privilege of re vie wing his case, which was subsequently endorsed August 22, 2006. Throughout my investigation, I found numerous deﬁ - ciencies and errors in the prosecution’s case. I was greatly disturbed by the lack of e vidence that linked Mr. Fonseca to the murder.

26 the aidwyc journal – spring 2008 Timothy Fonseca’s Christmas card from prison.

GAS STATION SHOOTING ing his death. It was later determined that the shooting oc- Arthur Mayer and his wife Roxana were driving home curred between to two rival gangs, the Echo Park Gang and from a birthday celebration in the early morning hours the Crazy’s. of April 23, 1995. At some point between 2:30 a.m. and Mr. Fonseca does not have history of violence. As a teen- 4:30 a.m. Mr. Mayer pulled into a gas station at the inter- ager, he was sent to the California Youth Authority (CYA) section of Scott and Glendale Blvd. in the Echo Park Area for stealing a car. While in CYA he learned very quickly that of Los Angeles, California. He parked his van in front being Hispanic within a prison institution meant you im- of a gas pump and went into the station to buy cigarettes. mediately had enemies. In order to protect himself, he Approximately two minutes later gunﬁre erupted. Mr. joined a Hispanic gang known as the Echo Park Gang. Mr. Mayer ran toward the van, shouting for his wife to duck Fonseca has stated that once aﬃliated in a gang, you are no because someone was shooting at them. longer “open” to others for attack. In an article titled “Two He got in the van and leaned over his wife to shield her. Lives One Bullet”, Mr. Fonseca wrote that “when you are Seated in the front passenger side of the van, Mrs. Mayer forced to live amongst the dregs of society, a man, any man, said she glanced over her left shoulder and looked out the must do things that in normal company he would not do. rear window on the driver’s side and saw two shooters run- Prison is a violent and disgusting place.” ning toward the van. The van was riddled with bullets and Mr. Mayer was struck in the head by a stray bullet caus- continued next page

the aidwyc journal – spring 2008 27 ◆ feature article

The Timothy Fonseca Case Furthermore, unreliability is enhanced when juries give unjustified weight to in-court eyewitness identification. Juries often ignore proof of a defendant’s innocence During his time at CYA, Mr. Fonseca was caught with and return with a guilty verdict based on questionable eye- a “shank” (an object sharpened to a point, used as a stab- witness identification. bing weapon) under his bed. He kept this weapon to pro- Mrs. Mayer’s testimony was very confusing as to how tect himself from nighttime attacks by other boys in CYA. many shooters there were. At one point she said there was Although he had some protection from his gang affiliates, one man, then she said there were two men, one standing during the nighttime there are not as many witnesses and up and one in a squatting position. She then said that one the attacker can be difficult to identify. man had a gun but not the other, but then stated that both Having such a weapon at any correctional facility is a men had rifles. She identified the man who shot her hus- crime and Mr. Fonseca was sentenced to prison at an adult band as a “cholo” with “evil” eyes who was five feet eight facility which began consecutively upon his release from inches tall. CYA. He served 16 months, whereupon he was released on Mrs. Mayer’s testimony was extremely unreliable, vague parole and determined to start a new life free from gangs and inaccurate. She testified that the time of the shoot- and crime. However, his small stint as a gang member ing was at 3:30 in morning and that the sun was up at that would later haunt him and lead to his arrest for the mur- time, allowing her to see the shooter’s face. However, re- der of Arthur Mayer. cords show that on April 23, 1995, the sun rose at 6:00 a.m. Soon after the shooting, in an interview with investi- FLAWED EYEWITNESS TESTIMONY gators, Mrs. Mayer was asked to view a photo lineup of pos- There were two key pieces of evidence against Mr. sible suspects. On that date she identified another man as Fonseca, both were seriously flawed. The first was the eye- the shooter and then pointed to the picture of Mr. Fonseca, witness testimony of Mrs. Mayer. Eyewitness testimony is stating that they looked alike. one of the most unreliable types of evidence and one of Approximately four months later, during a live line-up the leading causes of wrongful convictions. The eyewit- Mrs. Mayer identified Mr. Fonseca as the shooter. However, ness is usually under extreme stress and perceptions can the man originally identified in the photo lineup was not be dangerously altered depending on the surrounding cir- included in the live line-up, despite defense counsels ob- cumstances. “The vagueness of eyewitness identifications jections. Mrs. Mayer again identified Mr. Fonseca in court are well known; the annals of criminal law are rife with as the man who killed her husband. instances of mistaken identification” (Jackson v. Fogg, 589 Additionally, Mrs. Mayer testified that she saw the F.2d. 108,112). shooter “squatting” approximately 40 feet from the van. However, measurements of the crime scene were taken and several witnesses testified that the distance from the van to It is quite clear the position where the shooter(s) were standing was any- how confusing and where from 150-500 feet. Also, Mrs. Mayer testified that she could see the inaccurate Mrs. shooter(s) through the rear driver side window. However, Mayer’s testimony was. she also testified that she was sitting on the front passenger However, her testimony seat and that her husband was pushing her head down in order to protect her from being shot. Mrs. Mayer stated was given great weight that she quickly looked up over her shoulder for approxi- by the jury. mately 10 seconds and could see the shooter(s).

28 the aidwyc journal – spring 2008 ing a picture of the same guy at a friend’s home and hearing that he was just released from prison. He then identified Mr. Fonseca as “Sniper,” after see- Furthermore, Mrs. Mayer stated that the man who shot ing the picture the police presented. He was then shown a her husband was wearing a blue plaid shirt with a white t- photo line-up with a picture of Mr. Fonseca included in it. shirt underneath. However, one of the detectives stated that The young man also testified that he did not see the shoot- she told him the shooter was wearing a green plaid shirt. ing and never saw Mr. Fonseca there. Upon a search of Mr. Fonseca’s house the police recovered These pieces of flawed evidence were not the only ones a plaid shirt, however, it was brown, not green or blue. presented at trial. There was also the murder weapon. A Mrs. Mayer testified that the man who shot her hus- SKS rifle (similar to an AK-47) was found hidden behind band had brown eyes but stated she did not see any tat- the home of a known Echo Park gang member located very toos or facial hair. Mr. Fonseca’s mother testified that at close to the crime scene. At trial, it was noted that the bul- the time of the shooting, Mr. Fonseca had a moustache and lets found at the crime scene “could” have come from that a photograph of Mr. Fonseca taken April 15, 1995 was pre- weapon. However, ballistic testing was unable to show that sented at trial, in which he had a moustache. The detective the bullets were fired from that particular weapon. There testified that Mrs. Mayer did not give a description of the was no solid evidence to prove that the rifle found was the shooter’s face, nor did he recall her stating anything about murder weapon. In the firearm analysis, it stated that given eyes or skin color. the condition in which the rifle was found, it could not It is quite clear how confusing and inaccurate Mrs. have discharged any bullets. Mayer’s testimony was. She was under extreme stress, bent Furthermore, Mr. Fonseca’s fingerprints were not down in the front seat of the van looking out dark windows found on the weapon. According to the testimony of one from a distance varying anywhere from 150 to 500 feet. detective, Mr. Fonseca’s fingerprints were never submitted, However, her testimony was given great weight by the jury. nor was there any evidence that linked him to the weapon. Another factor in this case gives cause for great con- SECOND PIECE OF FLAWED EVIDENCE cern. The prosecution’s “Gang Expert” who testified that The second piece of flawed evidence that connected the tattoos on Mr. Fonseca’s body proved he was an Echo Mr. Fonseca to the crime was testimony by a young Echo Park gang member was also the Senior Officer for the Park gang member, who prior to testimony, told the police Los Angeles Rampart divisions Community Response to that a gang member called “Sniper” was carrying an AK-47 Street Hoodlums (CRASH) unit. In 1999 (four years after rifle on the night of the shooting. He told detectives that Mr. Fonseca’s arrest) it was discovered that there was wide- he did not know the real name of “Sniper” but he would spread corruption throughout the CRASH unit, including try to find out. He later told the investigators that “Sniper” police coercion, brutality and “planting” of evidence. The was Timothy Fonseca. shooting of Mr. Mayer took place in the Rampart district However, at trial, the gang member recanted everything of Los Angeles and was investigated by the Rampart district that he told the police stating that the police threatened police. him and his family if he did not help identify the shooter. There have been over 100 cases that have been over- He testified that he rambled off a name to the detectives turned because of the illegal activities committed by this but really did not know who was at the shooting nor did he unit. It is also worth noting that the fingerprints (nine) know or had ever met Mr. Fonseca. The young man testi- were never entered into the Automated Fingerprint fied that the police had shown him a photograph of Fonseca Identification System (AFIS) to pursue the identification of approximately five by seven inches in size. He recalled see- whose fingerprints were on the weapon. The AFIS holds all

continued next page

the aidwyc journal – spring 2008 29 ◆ feature article

The Timothy Fonseca Case Timothy Fonseca has been incarcerated for over ten years and to this day proclaims his innocence. Thanks to the diligence of his wife Lynn, his case came to the attention of AIDWYC. Additionally, the prestigious Law Office of At trial, the gang Geragos and Geragos, in Los Angeles California, agreed to member recanted represent Mr. Fonseca on a pro bono basis. Win Wahrer, AIDWYC Director of Client Services, re- everything that he told cently spoke to one of Fonseca’s attorneys Mark Kassabian the police stating that who had this to say, “We are very confident that our investi- the police threatened gation of this matter will result in Tim’s full exoneration.” But most importantly Mr. Fonseca has found comfort in him and his family if his faith and his hopes for the future continue to grow. He he did not help identify is grateful for the help of his family and friends and is con- the shooter. fident that with the assistance of AIDWYC and his attorneys he will again be a free man. If you have information regarding this case please con- fingerprint sets (called tenprints) collected in the US, and tact the AIDWYC office so that we can refer you to Scott Ross, is managed by the FBI. Private Investigator or Mark Geragos, Timothy Fonseca’s attorney. ◆ FONSECA’S ATTORNEY WAS FAMILY LAWYER Another cause for concern was Mr. Fonseca’s trial attorney’s inexperience in criminal law. According to Lynn Kelly Bentley lives in Garden Fonseca, Mr. Fonseca’s attorney practiced family law, which Valley, California with her she failed to inform Mr. Fonseca’s mother when she hired husband, Daimeion, and her two her. It was apparent in the trial transcripts that his attorney children, Ethan and Tavia. Kelly was not familiar with the hearsay rules and continuously attended California State University phrased her questions in a manner which elicited hearsay Sacramento, receiving a Bachelor responses. of Science degree in Criminal The testimony of a private investigator was virtually use- Justice. She attended law school at the University of the Pacific McGeorge less because of the attorney’s inability to ask questions so as School of Law in Sacramento California. Kelly runs a solo law practice in not to elicit hearsay responses. At one point in the trial the Georgetown, California. Her areas of practice include juvenile dependency, judge gave Mr. Fonseca’s attorney instructions as to what minors counsel in family law cases, human rights, and child advocacy. hearsay evidence is. Her inability to effectively present his Kelly has been actively involved as a valued volunteer with AIDWYC since case only compounded the travesty of the situation. 2004. Website: kbentleylaw.com On August 8, 2005, Tim Fonseca underwent a polygraph test, which was conducted by Dr. Louis Rovner, PhD. on the advice of INNOCENT, a Michigan-based organization begun by the late Maurice Carter and president, Doug Tjapkes. Mr. Fonseca passed the polygraph with an overall score of +13 (passing score is +6). INNOCENT issued a press release on August 31, 2005 announcing the results of the polygraph test.

30 the aidwyc journal – spring 2008 ◆ book review The case against her was a ‘concoction’

TEN YEARS: an incredible true story of corruption, injustice and the triumph of the human spirit. By Roseanne Catt with Mark Whittaker and Amy Willesee, 2005, Pan MacMillan

Reviewed by bibi sangha

his is one of the most in- spiring books I have ever T read. It is the story of Roseanne Catt, a woman who was brought up in a domineering house- hold and entered into a marriage with a similar dynamic. When she attempted to leave her husband, she was set up for crimes she did not commit. In September, 1991, she was con- Roseanne Catt victed of: maliciously wounding her husband on two occasions and oc- mestic violence; attempting to cause person to murder her husband; and casioning actual bodily harm to him; her husband to take a noxious thing possession of an unlicensed pistol. committing perjury at the local court with intent to injure him; soliciting Ms. Catt was sentenced to a total in relation to a previous charge of do- on two separate occasions another of 12 years imprisonment and suddenly found herself in a maximum security women’s prison. Clearly life Ms. Catt was was tough and most people would sentenced have been crushed by the experi- to a total ence. Yet remarkably, Roseanne stuck to “her truth” and her belief in God of 12 years to sustain her through her ordeal imprisonment and she inspired many other women and suddenly while in prison. Ms. Catt’s book details her ups found herself and downs while incarcerated in a in a maximum restrained, yet very engaging style. security You don’t need much imagination to read between the lines. Once I started women’s prison. reading, I was unable to put the book

the aidwyc journal – spring 2008 31 ◆ book review

appellant was a manipulative, evil They have all seen the intolerable na- Just four woman, as the Crown contended, or ture of the injustice she has suffered. months before she was the innocent victim of a con- Many of her friends have pre- spiracy, as the defence contended.” vailed upon her to take a break, a she was due He went on to add: “There is holiday – just go somewhere and rest. to be released significant fresh evidence available Yet, her stubbornness, combined most of which, if accepted by a jury, would with her faith and compassion for support the conspiracy allegation.” others, gives rise to an unshakeable Roseanne’s The judge said that there were at- belief that if no one else will tackle convictions tempts by the investigating police the corruption within the system, were officer to damage the appellant by then she will have to have a go at it. complaints made about her and her She clearly has much in common with overturned by association with a former Attorney those who have been subjected to in- the Australian General and Allen J. “The allegations justice by the legal system in Canada courts. were entirely baseless.” and have used that to become cham- The same judge referred to the pions for justice system reform. down anticipating what might happen conclusions of the inquiry which had For those of you who believe in to her next. Fortunately, her story been set up to assist the appeal court the power of truth and justice, this doesn’t end with acceptance of her and the propensity of the investigat- book is a must-read and you’ll most situation. Roseanne Catt fought back. ing officer to “… improperly use his certainly want to share it with your On July 24, 2001, the Attorney- office to damage Ms. Catt irrespec- friends. General of New South Wales, having tive of the risk of gratuitous collateral Further information in relation duly considered a previous petition damage to others” and which indi- to this case and others can be found by Ms. Catt, decided to refer the cated “… a lack of objectivity having at Networked Knowledge: www.netk. whole case to the Court of Criminal descended into malice and abuse of net.au or www.justice4roseanne.com. ◆ Appeal to be dealt with as an ap- power.” peal under the Criminal Appeal Act The net effect of the appeal was 1912. The New South Wales Court that six of the charges were over- Bibi Sangha, BA Law (Hons), LLM of Criminal Appeal duly delivered turned, leaving just the two relatively (Lond), Barrister- its judgment in the matter Regina v minor charges of wounding and as- at-law (Lincoln’s Catt [2005] NSWCCA 279. Just four sault. Of course, many people said Inn), Barrister and months before she was due to be re- that this was a good outcome for Solicitor (SA and leased most of her convictions were Roseanne Catt. Over the years, she ACT), Advocate and overturned by the courts. has acquired a most remarkable team Solicitor (Malaysia), McClellan AJA on the appeal said: of supporters; ordinary people who Lecturer, Law School, “…of greater significance is the fact have been inspired by her journey, as Flinders University of South Australia. that the appellant said that the whole well as lawyers, politicians, and jour- of the Crown case against her was a nalists of great standing in Australia. concoction…” and that “Either the

32 the aidwyc journal – spring 2008 ◆ Final remarks Hold the ‘experts’ to account

By Ronald Dalton larger issue is our societal failure to establish adequate training for those we entrust with the almost limitless in- s someone who suffered the fluence we accord experts in the criminal justice system. unsubstantiated opinion of Likewise the demonstrated inability of the self-governing Aa self-proclaimed “expert” medical bodies to protect societal interests reflects a fun- in forensic pathology in another damental structural weakness in our overall social system. province I am struck by the abun- The individual failings of Dr. Smith and others of his dance of repetitious medical jargon ilk bring home in vivid detail the horrible consequences and technical verbal camouflage of wrongful convictions and expose an unhealthy systemic found throughout the opinions of Ontario forensic pa- inertia when faced with correcting such wrongs. thologist Charles Smith. Sadly it is the very same language In the recently much-publicized cases of Steven found throughout the opinion and testimony which sent Truscott and William Mullins-Johnson we see the unwar- me to prison. They are also, in many instances, the exact ranted arrogance of Dr. Smith mirrored on the legal side same words used to wrongly convict others in other juris- of the equation. In each of those blatant wrongful con- dictions in this country and elsewhere. victions the Crown stubbornly resisted efforts to achieve At first blush one is tempted to receive the august long-overdue justice in the face of overwhelming evidence findings of experts with a certain degree of awe and re- of innocence. Here again the self-governing legal profes- spect and, to our collective dismay, the utterances of such sion appears to value a rigid adherence to the finality of individuals have historically been imbued with a veneer of continued next page authority. As we are painfully witness- Join us in the pursuit of justice ing at the Goudge Inquiry, that veneer is sometimes merely a thin cosmetic Please return this form and your cheque payable to coating deflecting our intelligence away from the fact the emperor has no AIDWYC (or the JUR-ED Foundation) to: clothes. Dr. Smith is but one extreme AIDWYC, 85 King Street East, Suite 318, Toronto, Ontario, M5C 1G3, Canada example of a problem long overlooked Yes, I would like to become a member of AIDWYC. Enclosed is my cheque for by our criminal justice system and the $50. There is a sliding scale if you are under-employed or a student. Please self-governing medical bodies which pay what you can, and mark sliding scale on the form (minimum $10). are supposed to be providing the nec- Yes, I would also like to make a donation to AIDWYC. Enclosed is my cheque essary checks and balances on unbri- in the amount of: $25 $50 $100 Other $______dled medical authority. In hindsight, (Cheques payable to “The Jur-Ed Foundation” will receive a tax receipt. even Dr. Smith now concedes his lack The Jur-Ed Foundation supports aidwyc’s education activities.) of training, inexperience, and gross In-kind donation: ______overinterpretation. Name: ______While hardly forgivable it is flawed Address: ______human nature for an unrestrained City: ______Prov./State: ______overactive ego to run amok, unfor- Postal/Zip Code: ______Country: ______tunately, with tragic consequences Tel: ______Fax: ______for those of us directly affected. The Email: ______

the aidwyc journal – spring 2008 33 ◆ Sponsorship Acknowledgement Sounds Like Justice 4, sponsor appreciation

e are grateful to the need for improvements in our and increase staffing in our office following generous criminal justice system. to better respond to inquiries and Wsponsors of our Sounds Like Although we’ve had remarkable memberships. Justice 4 fundraising event. Without successes, additional funding will Please join us at our fund- their support, this initiative wouldn’t enable us to accomplish even more! raising event, Sounds Like Justice 4 be possible. Our capacity to raise We hope in future to be able to hire – a VIP reception, silent auction, funds is imperative to enabling our an AIDWYC attorney, start a Canadian and benefit concert on May 8th in ongoing work. This event is also wrongful convictions library, pursue Toronto, details on back cover or at important as it raises public aware- further policy initiatives necessary to www.aidwyc.org. ness of wrongful convictions and the prevent future wrongful convictions

continued from previous page the criminal legal process over the inherent right to free- dress some of those issues regarding his review of the dom we all theoretically enjoy. Charles Smith debacle but we must demand further sys- The cases under review at the Goudge Inquiry exem- temic change in light of the broader lessons. In particu- plify how supposedly impartial witnesses become co-opted lar Canada should have an independent body with the into a prosecutorial mindset which values winning at the authority to review claims of wrongful conviction and expense of reaching a truthful and just verdict. Dr. Smith address the permanent damages such horrible systemic admitted he often abandoned impartiality and acted as a mistakes inﬂict on individuals, as well as to our collective tool of the prosecution - the fear is that he was the rule conﬁdence in the integrity of our justice system. ◆ rather than the exception. All too often Crown experts feel an obligation to please which goes far beyond the bounds of impartiality and professionalism - they some- Reprinted with permission, Ottawa Citizen Special, times want to play a starring “Dr. Quincy” style role. February 15, 2008. Given the disastrous consequences of unrestrained expert opinion, the lack of medical or judicial oversight, Ron Dalton spent more than eight years behind bars after being wrong- and the intransigent Crown culture in respect to cor- fully convicted of murder. He was acquitted after a new trial in 2000. He recting its own mistakes, the system needs to be changed. is a recently appointed Board Member of the Association in Defence of the Commissioner Stephen Goudge will undoubtedly ad- Wrongly Convicted.

34 the aidwyc journal – spring 2008 The AIDWYC Journal is currently searching for additional volunteers for the following roles: Editor-in-chief, associate editors, advertising sales, art drector and feature contributors. Please contact Shanaaz.

Volunteers who supported this issue AIDWYC office 85 King Street East, #318 Honourary President Toronto, Ontario M5C 1G3 The Honourable Gregory T. Evans Q.C. Client/Case-related: 416-504-7500 Editor-in-Chief Tanya Gerber Co-Presidents Operations: 416-504-2274 Managing Editor Win Wahrer Paul Copeland, Elisabeth Widner Associate Editors: Fiorella Grossi, The AIDWYC Journal is published and Melanie Rose, Special Advisors distributed by The Association in Defence of Designer Art Kilgour, writedesign.ca Marlys Edwardh, Brian Greenspan the Wrongly Convicted. Made possible by the Image Seeker Glen Herbert AIDWYC Directors generous support of the Jur-Ed Foundation Advertising Sales volunteer position David Bayliss, Paul Bennett, Daniel J. (Reg. No. 11924 0075 RR0001), a charitable (to be filled) Brodsky, Ron Dalton, Jonathan Freedman, organization supporting wrongful conviction Art Director: volunteer position (to be Frank Jacobs, James Lockyer, Joanne education initiatives of AIDWYC. We welcome filled) McLean, Scott McMaster, Peter Meier, submissions, however, publication is based on Contributors Edward Sapiano, Gus Sinclair, Louis relevance, length and balance. David Asper, Kelly Bently, Paul Copeland, Sokolov Inquiries about content, subscription or Ron Dalton, Tanya Gerber, Julien permission/reprint requests should be sent to Staff LeBourdais, Harold Levy, Bill Mullins- [email protected]. Tanya Gerber, Executive Director, Johnson, Bibi Sangha, Win Wahrer, Win Wahrer, Director of Client Services Elisabeth Widner Shanaaz Gokool, Volunteer Co-ordinator

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“... with the coinciding “Marlene and I and some “I always have a great “Surprisingly fun con- of Bill Mullins-John- of our family members time. It’s a fun night of sidering the number of sons’ release, it was look forward to see- music and mingling with lawyers in attendance.” the most dramatic and ing many of you at the others who are passion- Steve Peteherych exciting event I’ve Sounds Like Justice ate about justice.” been to. The music Concert in Toronto on David Humphrey and venue were great May 8th 2008.” too.” Steven Truscott Paul36 Copeland the aidwyc journal – spring 2008

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