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 – Innocence Canada – 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 2 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. 3 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’. 4 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 - Thomas Sophonow (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.