Archive for March, 2008

The conviction of the innocent involves much more than simply the “wrong person goes to jail”. There are powerful institutional forces as play when an innocent person is convicted. Thankfully, the public’s reaction to this injustice is one of indignation, providing hope to us who still believe that is it better for one hundred guilty people go free than to convict one innocent person.

Current examples provide proof of these institutional forces. With respect to the prosecution, we can see from the Inquiry concerning Guy Paul Morin, there was an attitude of “get him at all costs” in the form of prosecutorial misconduct was a major factor at play.

There were even attempts to manufacture evidence, in particular, with respect to bogus jail house informants. Those of us in the defense bar still cringe to this day as those prosecutors who were responsible for this tragedy haven been appointed to the bench as an institutional reward for their “hard work” (not mentioning any names). Clearly, in spite of this being a wrongful conviction, institutional rewards are being handled out those who have secured convictions to the government of the day.

However, let it be made quite clear that jail house informants do not generate wrongful convictions merely because they lie. Lying does not distinguish them from the average witness. Rather, its how and why they lie, and how the prosecution depends on lying jail house informants, that makes snitching a troubling distortion of the truth-seeking process. Jail house informants lie primarily in exchange for lenience for their own crimes, although sometimes they lie for money or even publicity. In order to obtain the benefit of these lies, jail house informants must persuade the prosecutor that their lies are true. Police and prosecutors traditionally have not and cannot check these lies because the jail house informant’s information may be all the prosecution has to prove their case.

Institutional changes have been made to reduce such injustices from happening in the future. In Ontario, the use of jail house informers must be vetted in advance by a committee of senior Crown Attorneys and such a request is rarely approved to be admitted into trial. This is an institutional acknowledgment that the prejudicial effect of the use of a jail house informant outweighs any limited probative value.

There are ethical requirements that a prosecutor behave in manner consistent with a mini-Minister of Justice (Boucher v. The Queen). These ethical standards are the first to be discarded where prosecutorial misconduct has taken place in the context of a wrongful conviction. The Supreme Court of Canada stated it brilliantly:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is represented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than [sic] which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

This type of self-regulation based on the “best traditions of the bar” or in other words, leaving it to counsel to act in a dignified manner in all ethical standards fail in those circumstances were a person is wrongfully convicted.

The police investigation is often at the heart of a wrongful conviction case. The police are given the authority and power to identify the crime, determine who the prime suspect is and to build the case for the prosecutor. In provinces such as Ontario, it is the police who also lay the charges prior to delegating the case to the prosecutor. When one looks at the police in this context, on a certain level one can understand that their role is to investigate crimes.

However, the increase in power of the police by Parliament perpetuates their tunnel vision. One need only look to Maher Arar to see how the RCMP helped render an innocent man who was then subjected to torture on flimsy evidence as a result of unchecked power. There is also the example of how the police in Ontario can now seize assets in civil court before due process has been met. Perhaps adopting a system like in B.C. where prosecutors vet the charges before they are laid can provide an additional level of protection against wrongful convictions.

These concrete examples illustrate that intentionally or not, the police are a major factor in wrongful convictions. It is the police who, depending on the case, provide the prosecutor with false confessions, biased lineups or bogus informant information. This form of police culture passes the buck by giving false or even misleading evidence to the prosecutor and then saying they are “just doing their job”. As another salient example, the police focused on Morin because of all things, Morin was considered “weird” by the police because he played the clarinet and kept bees. Not exactly the most rational and objective basis for determining who ought to be considered a prime suspect in a murder case.

It may be that the courts have had enough of this form of police culture in the context of wrongful convictions. The Supreme Court of Canada has recently upheld an Ontario Court of Appeal decision creating a tort of police negligence in terms of their role as the investigators of crime (Hill v. Hamilton-Wentworth Regional Police Services Board). The court stated the following:

Where the police investigate a suspect reasonably, but lawyers, judges or prosecutors act unreasonably in the course of determining his legal guilt or innocence, then the police officer will have met the standard of care and cannot be held liable either for failing to perform the job of a lawyer, judge or prosecutor, or for the unreasonable conduct of other actors in the criminal justice system.

Clearly, the court has indicated that each institutional actor is responsible for their part in the course of any case. The police now have a duty to ensure that with respect to their role, they no longer merely “just do their job” but now have a duty of care to the individual being investigated.

Coupled with the tort of malicious prosecution, now an individual wrongful charged can seek relief from the court against a prosecutor (in terms of a malicious prosecution) and the police force (in terms of an investigation that did not meet reasonable standards). Contrary to the hue and cry from police forces about any “chilling effect”, one hopes that the threat of litigation would require police forces to properly adequately train their officers on proper non-tunnel vision investigation.

Scientists are not immune from being part of the institutional cause of wrongful convictions. The pathologist Dr. Charles Smith is a current example. Conveniently, the Chief Coroner of Ontario has denounced Dr. Smith but where was he when the esteemed doctor was conducting autopsies and testifying in court? Clearly, there was a lack of institutional safeguards or even worse, an institutional structure that encouraged convictions as a sign of concrete results. At present, there are at least 20 cases where Dr. Smith’s shoddy and biased worked are being investigated to see if a wrongful conviction had occurred. This is so serious that a number of individuals have been granted bail pending an outcome of a review of the work of Dr. Smith.

The example of Dr. Smith clearly shows that a properly qualified and admissible expert testimony can be powerful evidence in the eyes of a jury. Indeed, among the primary focuses of the Morin and Sophonow inquiries were the mishandling and improper testing of forensic evidence, reliance on unreliable scientific data and the tainted expert opinion testimony. So while the use of expert evidence has been admitted as an exception to the Hearsay rule, the objectivity of the expert cannot be assumed. The cases of Dr. Smith, Morin and Sophonow have shown that tainted, tailored and unsubstantiated expert evidence, couched in scientific terms and language, based on unreliable fact and ultimately “junk science” has long been recognized as a leading cause of wrongful convictions.

On a more general level which applies to all the institutional factors that have been discussed, there is the serious issue of tunnel vision. Tunnel vision in this context is “the single minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably color the evaluation of information received and one’s conduct in response to the information”. It is this form of tunnel vision that has been identified as a leading cause of wrongful convictions in Canada. Where the state institutional actors continue to seek convictions at “any cost”, tunnel vision will always be a worry to those of us concerned about wrongful convictions.

Skeptics have argued that an equally important problem are wrongful acquittals. Such a view is understandable in that no one wants to see crimes go unpunished. However, if we take the Golden Thread seriously (the presumption of innocence, proof beyond a reasonable doubt and the right to silence), the question to ask is not the result of the acquittal but why the prosecutor and police did not prepare a stronger case in the first place. The presumption of innocence cannot be turned on its head as a matter of public expediency. The police and prosecutors ought to be held to a higher standing to ensure that the cases they choose to prosecute are viable and strong cases. Currently, the test of “reasonable prospect of conviction” are empty words used by the police and prosecutors to allow almost any charge to continue through the system.

Furthermore, it would be incorrect to limit wrongful convictions to high profile cases. In a busy jurisdiction such as Peel, miscarriages of justice occur when the institutional players (prosecutors, judges, police and even defense counsel) encounter the “same old accused” which leads to institutional neglect and cynicism.

At least in the United Kingdom, there is an independent and arm’s length committee which has been established to recommend a review of cases where it is believed a wrongful conviction has occurred. In Canada, no such committee exits.

Acknowledging a mistake of a wrongful conviction can only go so far. As we have seen in the cases of Milgaard, Morin and Truscott (one can only imagine if the death penalty was not commuted by then Prime Minister Diefenbaker in 1960 how much worse this example would be or if the case would have been lost to time itself), empty words and money cannot bring back a person’s lost freedom and respect.

Changes in the culture of these powerful institutional players is the only way to reduce wrongful convictions. However, it may be a losing battle where the same players (police, prosecutors and scientists) measure success and in turn public funding, in the amount of charges and convictions they deliver to the public. If this attitude continues, there will always be a pressure to convict and as a result, an increasing probability of an innocent person being wrongfully convicted.

A judge once said in open court that he did not have the time to consider a request from defense counsel Sir Lionel Luckhoo. Counsel responded as follows:

“Those who have no time for justice should not act as a judge”.

Sir Lionel Alfred Luckhoo KCMG, CBE, Q.C. (March 2, 1914–December 27, 1997) was a Guyana born politician, diplomat, and well-known lawyer, famed for his 245 consecutive successful defences in murder cases.

Part of his courtroom technique is reported in Fred Archer’s biography of Sir Lionel Luckhoo:

“Pick out two individuals. Look for one who is nodding his head and seems to be agreeing with you; then seek out another who is turning his head away because you do not convince him. Speak first to the one who is nodding. When you think you have won him over completely, move on to the one who appears dubious. Concentrate on him, look him in the eye make him feel that you are eschewing everything else to hold his attention because the life of your client is in his hands and that he must be convinced, as he ought to be convinced, that your man is innocent and deserves an acquittal.” (Sir Lionel, p. 33)

The current government’s attempts at passing “get tough” legislation claiming to “make streets and communities safer” have been explained by historians and sociologists as representing a trend away from rehabilitation to more punitive sanctions, often in an attempt to provide a voice to the victim. Foucault argued this is a trend away from public punishment (i.e. hanging and torture) to a more hidden form of punishment of imprisonment and other punitive measures.

In the United States over the past 30 years, there has been an increase in the use of the death penalty as a general move towards more punitive punishment, coupled with mandatory minimum jail sentences and the 3 strikes rules.

A corresponding trend has not occurred in Canada, although the current minority government has been speaking the rhetoric that exists in the United States. The current minority government, for the second time, has introduced legislation aimed at eliminating conditional sentences for many offences (Bill C-9) and imposing minimum sentences for certain offences under the Controlled Drugs and Substances Act (Bill C-26), all under the guise of being “tough on crime”.

Some of the main reasons for such a difference are that Canada has, at least until Bill C-9, moved away from relying solely on imprisonment to other forms of sentencing, such as conditional sentences and a presumption against jail sentences for Young Persons. There are cultural and institutional reasons for this divergence from the United State.

There exists in Canada a diversification of power and responsibilities which does not make it easy to swing from one extreme to the other (Parliament enacts the criminal law and the Provinces administer it) and more importantly with the advent of the Charter in 1982, Canada shifted from a Parliamentary to a Constitutional democracy. The courts have been given the authority and power to require laws to conform within constitutional safeguards and have significant powers of enforcement, such as s. 24 of the Charter.

On a cultural level, Canada simply does not have a history of the same level of punitive measures as the United States. At the end of the 18^th Century, Upper Canada copied the criminal statues from England but rarely carried out hangings for property offences and transportation was replaced by banishment to the United States. Our Charter reflects the mainstream culture of Canada as being left of centre, seeking a balance as seen in s. 1 of the Charter and other substantive rights in s. 15 as an example. The abolition of the death penalty in 1976 is in stark contrast to the use of this most punitive sentence in the United States.

Garland’s penal-welfare state has been succeeded by from 1970s by the control society with quickly rising rates of incarceration in the United States. Fortunately, this is not a trend that has much traction in Canada. However, as Doob has argued, we need to more from the simple rhetoric of “harsh” and “soft” with respect to sentencing to a more intelligent discourse that takes into account the detailed sentencing provisions in s.718 of the Criminal Code.

“I had a right, if I could, indirectly to convey observations to the fact; and whatever other people may say, I shall certainly take the liberty of doing it; for what the law of England will not permit me to do directly, I will do indirectly, where I can.”

Sir Willam Garrow, Criminal Lawyer, circa. 18th Century.

This case of organ thief is disturbing on many levels. The Indian courts will have to examine how such a large operation could maintain itself in an affluent part of India. Corrupt police officers and government officials will be examined and hopefully sanctioned if found guilty. Medical staff who worked for “Doctor Horror” ought also be charged in this attack on the poor and destitute.

However, we as a society must be honest with ourselves. The demand for illegal kidneys comes from affluent individuals around the world and from a variety of cultures and races, not just Indians.

The question we must ask ourselves is that despite our indignation of this travesty, would we not, as individuals, do what it takes to save our own life or that of a loved one? These buyers were “willfully blind” as to the source and manner with respect to the collection of kidneys.

If one answers this question honestly, it may be the case that the buyers are the most morally to blame but will not be the ones who have to answer for their themselves in a court of law.