Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage

Seminar five – Law on Miscarriages of Justice – Canada

Group B: Forensic Investigations - Chap 4 ‘Law on Miscarriages of Justice: Canada’

If we were to compare the Australian and Canadian procedures on criminal appeals, there are clearly recognisable similarities between them.

The Petition Procedure

In Canada, once a person’s appeal rights have been exhausted, the only means of reopening a case is by petition under S 696.3 of the Canadian Criminal Code, R.S.C. 1985, c. C-46, to the Federal Minister of Justice (an elected official who also serves as the Attorney General of Canada). It is interesting to note that it is the federal minister in Canada who has responsibility for the administration of criminal justice, whereas in Australia it is the responsibility of the state attorney-general.

It is also interesting to see that the Canadian Minister can directly re-open cases by ordering new trials or appeals, where ‘there is a reasonable basis to conclude that a miscarriage of justice likely occurred. In Australia, this can only be done by a decision of the appellate court.

It is also interesting to note that the Minister of Justice has the power to refer cases directly to the Supreme Court of Canada, something that has been done in at least three cases of suspected miscarriages of justice. Re Coffin (1955), 116 C.C.C . 215; Re Truscott, [1967] S.C.R. 309; Reference re Milgaard, [1992] 1 S.C.R. 866. No equivalent power exists in either Australia or Britain.

The criteria for the assessment of petitions are a matter of public record (no equivalent exists in Australia)

In deciding whether to reopen a conviction by ordering a new trial or a new appeal, the Minister of Justice is required to take all relevant matters into account including:

(a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction; (b) the relevance and reliability of information that is presented in connection with the application; and (c) the fact that an application under this part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy. 1

Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage

Under this procedure, the Minister of Justice can appoint individuals (such as retired judges, members of the bar, or those with similar qualifications) to investigate claims of wrongful convictions. They have the power to take evidence, issues subpoenas, and compel people to give evidence. These broad powers include power to obtain documents from private individuals. In Britain, the CCRC can only obtain such documents from public officials. The Minister will provide draft and final reasons for decisions and the process is subject to judicial review.

Issues raised in the Introduction

AIDWYC – – 21 exonerations

The Association in Defence of the Wrongly Convicted now Innocence Canada has been instrumental in overturning some 21 wrongful convictions since 1993. They include the case of Stephen Truscott, convicted of the murder of his schoolgirl friend. At the age of 14 he was sentenced to be hanged in 1959. His conviction was eventually overturned in 2007 and he was awarded $6.5m in compensation. The evidence involved the same discredited ‘stomach contents’ evidence with regard to timing death as was used in the Van Beelen case in South Australia.

2005 – Federal Commission Report on MOJ

The Canadian Federal Commission on the Prevention of Miscarriages of Justice presented a report in 2005.

2003 – MacFarlane Report MOJ – tunnel vision – predisposing circumstances

It was inspired and influenced by the previous report of Bruce MacFarlane QC who in 2003 had produced a report on ‘Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System’. One of the best reports I know of on the topic. MacFarlane was Deputy Attorney-General of Manitoba – his report was presented at the Heads of Prosecutions Agencies, Commonwealth Conference, Darwin, Australia, 7 May 2003.

It was an important report. It demonstrated a positive attitude to the issue of wrongful convictions and his approach was in stark contrast to that of other Attorneys-General who are in denial about this topic. The idea of ‘predisposing circumstances’ is one which will be

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Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage important to our understanding of some of the Australian cases, especially those of Lindy Chamberlain and Edward Splatt.

The Canadian Judicial Inquiries – there were seven of them1

Distinctive value of Canadian Judicial Inquiries

Unlike similar inquiries or Royal Commissions in Australia, the Canadian inquiries are conducted after a conviction has been overturned in order to determine the cause of it. The experts or investigators called to the inquiry will know that their evidence has already been found wanting at the previous appeal. Even so, some of them can remain quite stubborn.

Each inquiry has an international comparative aspect

This involves an investigation into the way in which other jurisdictions respond to similar problems. This was how the Goudge inquiry in Toronto, looking into Dr Smith’s work on baby deaths, commissioned an expert report on the topic of the baby deaths in South Australia.

1989 – Royal Commission (3 judges) - Donald Marshall Jr (Halifax)

Report – Media items

A video of his experience: Donald Marshall Jr., a Mi’kmaq from Nova Scotia, was destined to succeed his father as Chief of 26, 000 people. Instead, he was convicted of murder at age 17, and spent 11 years in jail. One of Canada's highest profile wrongful conviction cases, it revealed many flaws and systemic racism in the justice system. This documentary marked the first time Donald agreed to tell his own story on camera. He died at age 55, one year later.

In 1971, Marshall was wrongfully convicted of murdering his friend, Sandy Seale, in Sydney's Wentworth Park. Marshall was just 17 years old when he received a life sentence for the murder that was later determined he had not committed. He was released in 1982 after RCMP reviewed his case and cleared by the Nova Scotia Court of Appeal in 1983 after a witness came forward to say another man had stabbed Seale and several prior witness statements connecting Marshall to the death were recanted. Though the Appeal Court

1 They are discussed at Forensic Investigations p 362.

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Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage declared him not guilty, Marshall was told he had contributed to his own conviction and that any miscarriage of justice was more apparent than real

1998 – Justice Kaufman Inquiry - Guy Paul Morin (Toronto)

Report – Media items

A video of his experience – On October 3rd 1984, nine-year old Christine Jessop vanished from the community of Queensville Ontario. Months later her beaten and raped body was found in a field. Durham Regional Police focused its attention on 25 year old Guy Paul Morin, a guy they figured to be 'odd' and eventually arrested for murder. The ensuing trials drew national attention.

It is said (Toronto Star) there were 10 key things to learn from the case: the dangers of tunnel vision – he was an ‘oddball’ The dangers of “demeanour evidence” – his facial expressions – didn’t join the search party The need to be skeptical of “experts” – this link from Toronto Star refers to Splatt case via the Levy Blog article – junk science and hair and fibre evidence. The need to look at the system of wrongful convictions – refers to ‘lazy/inexperienced/over- heated/crusading police’ The need for police not to bond too tightly with a victim’s family – like in the Keogh case? The dangers of jailhouse snitches – in this case a ‘pathological liar’ with a ‘deficient conscience’ and ‘skilled at deceiving others’ The realization that prosecutors are capable of misconduct The dangers of withholding evidence The dangers of cutting a deal to avoid trial The need for full and accurate records of interviews with witnesses

The Commissioner said that the investigators continued to believe that Morin was guilty even thought there was not a scrap of evidence to be put against him. He described it as ‘tunnel vision of staggering proportions’. He was concerned that the investigators had labelled him as ‘odd’ for the purposes of their inquiry – they thought him odd because he played a musical instrument, and was a bit of a loner.2 The Commission emphasised the misuse of hair and

2 2 October 2014, Toronto Star, ‘Christine Jessop killing: 10 things that were learned from the case’.

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Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage fibre evidence, the use of jail-house informants (in this case one known to be a pathological liar) and the issue of prosecutorial misconduct. As a child-killer he was abused and raped whilst in prison.

2001- Justice Cory Inquiry - (Winnipeg)

Media items

Video interview with Sophonow setting out details of his case. 1981 strangulation murder of 16-year-old girl. Arrested 2000 miles away. Hung jury followed by guilty verdict. Appeal successful – further trial found guilty. Appeal led to acquittal – prosecution appealed and acquittal upheld by the Supreme Court. June 2000 police apologised and led to an inquiry. Eye witness identification and jailhouse informants – who had charges dropped and record for fraud.

2006 – Justice Lamer Inquiry - Ronald Dalton, Gregory Parsons, Randy Druken (St Johns)

Report – Media items The inquiry cost about $7m.

Dalton was a Newfoundland banker, who was convicted of murdering his wife on the basis of faulty forensic evidence. Dalton served eight and a half years in prison before finally being acquitted in 2000. A documentary on the case traces his ordeal from the night of his wife's fateful choking accident and features a highly charged interview with Dr. Charles Hutton, the pathologist responsible for the conviction. Dalton's final vindication occurred when Justice Antonio Lamer found his lawyers negligent in defending him, and recommended sweeping changes in the licensing of forensic pathologists.

Gregory Parsons was a Newfoundland bodybuilder who was wrongfully convicted of killing his mother. He received $650,000 in compensation from the Newfoundland government. Catherine Carroll was killed in her St. John's home in 1991. Parsons was convicted of her murder in 1994, but four years later was exonerated by DNA evidence. Police later charged a former family friend with the murder.

Randy Druken, of St. John's, was convicted for the 1993 murder of Brenda Young, largely based on the testimony of a jailhouse informant who later retracted his story. He was in prison for more than six years before he was granted an appeal in 1999. The provincial

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Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage government admitted for the first time that he was wrongfully convicted. He was awarded $2 million in compensation. He said he's pleased with the$2 million in compensation, but said it is hard to put a dollar amount on the six years he spent in prison.

2007 – Commission of Inquiry - (Winnipeg)

Media items

Driskell spent 13 years in prison for the wrongful conviction of Perry Dean Harder and was awarded $4m in compensation. The Winnipeg Police Service withheld information that could have changed the result of the original trial.

2008 –Commission of Inquiry - (Saskatoon)

Media items

Milgaard was 17 when he was convicted of the murder of Gail Miller, a 20-year-old Saskatoon nursing student. He was sentenced to life in prison in January 1970. The Supreme Court of Canada reviewed the case and recommended that his conviction be set aside He was released from prison in 1992. Five years later, a DNA laboratory confirmed that semen samples on Miller’s clothing did not originate from Milgaard, confirming his innocence. Two months later, Larry Fisher, who lived near the victim and had served 23 years for numerous rapes, was arrested and charged with killing Miller. He was sentenced to life in prison in 2000. Milgaard received $10 million compensation. He is an outspoken advocate for a reform of the system. His mother, on being awarded an honorary degree said, ‘ “You people right here in this gymnasium could make this happen. The innocent are crying out for your help. Please help them.’

2008 – Goudge Inquiry Paediatric Forensic Pathology (Dr Charles Smith)

Report – Sangha Moles report - Media items

See video of Today Tonight program 16 July 2007 with footage from Canada and interview with Prof Kent Roach.

Perhaps the biggest scandal there was the case of Dr Charles Smith the head of forensic paediatric pathology in Toronto. By the time it was found out that he was both incompetent and dishonest, he had secured convictions or separations from children of numerous people in

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Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage a wide range of baby death cases. Professor Kent Roach who has worked closely with many of us in Australia was the head of research for the Goudge Inquiry, and a number of us (Stephen Cordner, Gary Edmond, Bibi Sangha, Bob Moles) gave evidence to that inquiry.

Bill Mullins-Johnson – 4-year-old niece Valin

One of Smith’s shocking cases was that of Bill Mullins-Johnson, an aboriginal man who was convicted of the rape and murder of his 4-year-old niece Valin, whilst he was babysitting one night. She was found dead the following morning. At the Goudge inquiry, he explained what part of his torment had been like. Bill said that he would have to forgive Dr Smith, ‘for his own healing’. He said that he had been fearful every day of his 12-year prison term that he would be killed by other prisoners who believed that he had sodomized and strangled his four-year-old niece, Valin. ‘You put me in an environment where I could be killed on any day,’ he said.3 He believed his brother must have committed the offence. His brother blamed Bill. It hadn’t occurred to either of them that Dr Smith had just got it wrong - he had mistaken post-mortem changes for injuries occurring during life. Valin had not been raped or murdered. Bill received $4.25m in damages.

There were many other of Smith’s cases where families had to sell their homes or cash in their superannuation to obtain funds to defend themselves against actions for child abuse.

2015 Motherisk program closed – 16,000 cases in doubt – director without qualifications

In Toronto, the ‘Motherisk’ program had been set up at the hospital known as the SickKids Hospital. It tested strands of hair from mothers to check if they had been using drugs and alcohol. The results had sometimes led to criminal convictions or to parents being labelled as ‘unfit’ and to them being deprived of their children. The program was suspended in 2015 and after formal inquiries it was shut down. It was revealed that the laboratory director and his staff were all without appropriate qualifications for them to do the work or give evidence about it in court.4 It was said that 16,000 child protection cases and six criminal cases were in doubt.

3 1 February 2008, Globe and Mail, ‘A victim offers his accuser forgiveness’. 4 8 February 2016, CBC News, “Motherisk scandal highlights risk of deferring to experts without questioning credentials”. See the Motherisk Homepage at Netk.

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Bibi Sangha, Robert Moles, Flinders University Miscarriages of Justice Sem 5 MOJ Canada Link to Miscarriages of Justice Course Homepage

The Mr Big Program – false confessions?

Another major contribution to our understanding of wrongful convictions was through the use of the Mr Big program which was initiated by the Royal Canadian Mounted Police. It involved an undercover police officer being set up as the head of a crime syndicate. The group would surreptitiously approach a crime suspect and invite them to ‘join the gang’. To do so they had to prove that they were worthy of their new status and to enable ‘the boss’ to ‘protect them’ in respect of prior serious criminal offences. It usually led to people claiming responsibility for previous serious crimes – for which they would subsequently be prosecuted after their ‘confession’.5 It has led to claims that people falsely confessed to ‘big-note’ themselves. See for example the Burns and Rafay case which is now featured on Netflix.6

New ‘world-class’ Forensic Science Centre in Toronto

In the wake of the fiasco with Dr Charles Smith the Ontario Govt invested around $1bn in the development of a world-leading forensic facility. Dr Michael Pollanen the new head of forensic pathology emphasised the need for better legal and medical training facilities and courses.7

No room for complacency

Dr Michael Pollanen, the much-revered chief forensic pathologist for Ontario, who had been responsible for exposing his former boss, Dr Charles Smith was severely rebuked by an Ontario judge. She said he had not prepared his evidence properly and had offered opinions beyond his expertise. He had indeed committed the very errors which he had attributed to Dr Smith. She emphasised the importance of lawyers and judges carefully scrutinising such evidence.8

5 2 November 2008, The Province, ‘Armed with lies, they hunt for the truth’. 6 14 September 2017, Heavy.com, ‘Mr. Big Sting & Netflix’s The Confession Tapes: How It Works’. 7 28 October 2013, Toronto Star, “Ontario’s forensic pathologists better equipped in ‘search for truth’”; 1 July 2013, Toronto Star, ‘New Ontario forensics facility brings crime under a world-class spotlight’. 8 12 April 2017, National Post, ‘Judge slams Ontario’s revered chief forensic pathologist over testimony in boy’s death’.

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