Miscarriages of justice more likely next decade: lawyer
Published Monday, December 28, 2009 6:10AM EST
TORONTO - The nearly 20 Canadian men and women whose wrongful convictions were acknowledged over the last decade run the gamut, from journeyman convicts to a man whose life comprised an epic 45-year journey to clear his name of a murder he didn't commit.
But despite the lessons of cases like Kyle Unger and Steven Truscott, the system that convicted them in the first place appears poised to repeat its mistakes and doom others to a similar fate, warns one of Canada's best-known crusaders against judicial injustice.
Flawed trial proceedings and a government bent on a law-and-order agenda could mean an increase in wrongful convictions, when the opposite should be true, said Toronto lawyer James Lockyer, a founding director of the Association in Defence of the Wrongly Convicted.
"Probably on balance, we're generating potentially more wrongful convictions year by year because of the inadequacies of the system," Lockyer said in a telephone interview.
Those flaws include continued reliance on the testimony of a single eyewitness, laws that allow Crown lawyers to withhold information about potentially questionable witnesses and a general judicial bias towards evidence presented by a prosecutor, Lockyer said.
The problem is compounded at the appeal level, he added, saying the system is based on a faulty principle that makes it nearly impossible for the wrongly convicted to clear their names.
"(Appeal courts) refuse to re-examine a case from the perspective of guilt or innocence; they simply won't do it," Lockyer said. "They insist that their their powers exclusively relate to...the trial."
"But as we see, perfectly fair trials can result in people being convicted of crimes they didn't commit."
Of the 18 people who officially had their names cleared in the past decade, 10 of them had been convicted of murder.
DNA testing helped exonerate Unger and James Driskell, both of whom were found guilty on the strength of less sophisticated hair analysis.
Truscott, who was 14 and initially sentenced to hang when he was convicted of the 1959 murder of schoolmate Lynn Harper, was officially found not guilty in 2007 and received a $6.5-million compensation package from the province of Ontario.
Romeo Phillion, who served 31 years in prison for a 1972 slaying, was granted a new trial in 2009. Lockyer's group is seeking a full acquittal for Phillion despite the fact that Ontario's attorney general eventually withdrew all charges against him.
Robert Baltovich won a full acquittal in 2008 for the murder of his girlfriend Elizabeth Bain, a crime for which he served eight years behind bars.
A confession from infamous serial killer Paul Bernardo resulted in sexual assault charges being dropped against Anthony Hanemaayer, who had previously been linked to the crime on the strength of eyewitness testimony.
And at least two people convicted of killing children in their care were cleared following convictions on the strength of evidence from now-discredited Toronto pathologist Charles Smith: William Mullins-Johnson and Sherry Sherrett-Robinson, who was formally acquitted.
Mullins-Johnson, who served 12 years behind bars for a crime experts now say never even took place, said he fears others are likely to endure the same ordeal he did.
The Canadian justice system is "failing," he said; the fact those responsible have never served jail time themselves is just another injustice.
"Some injustices have been righted, but no justice has been served because there's been crimes commited against us."
Lockyer, meanwhile, said the "law-and-order agenda" of Stephen Harper's Conservative government is standing at odds with the cause of the wrongly convicted, and that Ottawa doesn't seem particularly interested in patching cracks in the system.
He cited a lack of interest in adopting a key recommendation from the 2008 inquiry into the wrongful conviction of David Milgaard: to establish an independent body to review questionable convictions, similar to one set up in the United Kingdom in 1997.
"When (Liberal MP) Irwin Cotler was the minister of justice at the federal level, we were in with a fighting chance to have such a tribunal created," Lockyer said.
"Now it's dead as a dodo. I wouldn't know where to begin with the present government. I think we'd be wasting our time, frankly."
At present, Canadians must either rely on appeal courts to have their cases re-examined, with a government review their only recourse when all appeals are exhausted. The Criminal Convictions Review Group is responsible for re-evaluating cases that can be sent back to the courts at the behest of the federal justice minister if new evidence comes to light.
Lawyer Kerry Scullion, the head of the group since 2002, roundly rejected Lockyer's assertion that the review process has been politicized.
"That is a complete misnomer," said Scullion, who added that his role has not changed "one iota" under the two Liberal and two Conservative justice ministers under whom he has served.
Contrary to Lockyer's claims, Scullion said, the government has learned from the many wrongful convictions exposed during the last 10 years, and professionals throughout the legal system are better educated on the issue and likely to proceed more cautiously in future.
The fact that justice ministers have sent 14 cases back into the court system since 2002 is a testament to the effectiveness of the current setup, he added.
Canada's ministerial review process cannot be compared to the British tribunal, which has referred more than 400 cases back to the courts since its inception, Scullion added, saying nearly a third of all British cases that get re-examined have never been heard in an appeal court.
"Is (the system) adequately addressing the problem? I think it is....Does it have the confidence of people involved in the process? I think it does as well."
Lockyer acknowledged that the justice system has closed -- or at least narrowed -- some of its loopholes in the past decade, such as restricting the use of jailhouse informants at trial. But he said he's not optimistic for the future.
"(Appeal courts) have got to expand their powers and say to themselves, `When we look at a case and we feel there's something seriously wrong here, we should intervene.'
"But their judgments are that even if they feel something is wrong, they will not intervene because they don't have the power to. Whether that takes legislative change or a new attitude by appeal courts, to me it doesn't matter. One way or another, let's change it."