Wednesday, October 15, 2008


Is Canada ready for an entirely independent process for investigating wrongful convictions?
That question was tackled by Globe and Mail Justice Reporter Kirk Makin in a story published after release of the Goudge Inquiry Report.

Makin's story ran under the heading: "COURTS: Is British system the right response to wrongful convictions? Two reports this week have commended the U.K.'s independent body that swiftly investigates claims of possible miscarriages of justice."

"Twenty years and a half-dozen judicial inquiries later, it is the recommendation the federal government just will not touch," the story, which ran on October 4, began.

"It's the idea of creating an independent agency to investigate claims of wrongful conviction, say critics of Canada's record for investigating such cases and exonerating the innocent," it continued.

"In the past week, reports from the David Milgaard inquiry and the Goudge inquiry have commended Britain's Criminal Cases Review Commission - a model of investigative efficiency that has referred hundreds of suspected wrongful convictions back to the courts.

Their endorsements joined those from four other inquiries dating back to the 1989 Donald Marshall commission and the 1997 Guy Paul Morin inquiry.

Former Ontario Superior Court chief justice Patrick LeSage - who issued a strong call of his own for a Canadian equivalent of the CCRC in his 2001 report on the wrongful murder conviction of Winnipeg's Thomas Sophonow - said yesterday that the lost opportunity to exonerate the innocent is a source of great frustration.

"There just has to be a specific program put in place," Mr. LeSage said in an interview outside a wrongful-conviction conference at Assumption University in Windsor, Ont. "I think it's very important. We know that the English process has worked very well.

"Either the provinces should get together and say we are going to create a national one, or the feds create a national one," he said. "It's high time."

With a staff of more than 100 and the ability to assemble information, the British commission has been the inspiration for similar bodies in Finland and Scotland.

Past federal justice ministers have expressed admiration for the British model, but none has gotten close to emulating it. Former justice minister Irwin Cotler referred three suspected wrongful convictions to appellate courts over a two-year period.

Set up in 1995 after a British Royal Commission urged the creation of an independent agency to swiftly review alleged miscarriages in England, Wales and Northern Ireland, the CCRC has reviewed almost 10,000 cases.

It has referred 4 per cent of them to appellate courts based on its belief that there is a "real possibility" of a wrongful conviction.

Between mid-2006 and mid-2007 alone, it referred 38 cases to appeal courts. About half involved drug importing, 10 were sexual offences, one involved terrorism and three were homicides.

During the same period, the courts decided 47 cases referred by the CCRC. Of these, 70 per cent resulted in a quashed conviction or reduced sentence.

It works quickly, closing approximately 1,000 cases each year - roughly equivalent to the number of new applications it receives.

Funded by the Ministry of Justice, it has a staff of 100 investigators and case managers who answer only to the 11 commissioners on the CCRC board of directors.

Canada's equivalent - a six-member unit within the federal Department of Justice that underwent limited reforms in 2002 - remains a pale shadow of the CCRC.

"There is a persistent reluctance in government to open a can of worms on the unknown number of wrongful convictions," said Frank Addario, president of the Criminal Lawyers Association.

"It is frustrating to see governments respond to each report with a kind of ritualistic, hand-wringing followed by incuriosity about the number of wrongful convictions," Mr. Addario said.

Stephen Bindman, a special adviser to the federal Criminal Convictions Review Group, said that the 2002 changes enhanced its independence and ability to investigate cases.

He said that the branch - which has four lawyers and two support staff - can now compel testimony, subpoena records, and investigate a broad range of offences.

Since 2003, Mr. Bindman said that the justice minister has referred 11 cases to appellate courts, seven of which have resulted in acquittals.

However, James Lockyer, a director of the Association in Defence of the Wrongly Convicted, scoffed at there being any genuine comparison. "In the last 10 years, the justice minister of Canada has referred 14 cases to appeal courts across Canada," he said. " In the same period of time, the CCRC has referred 395 cases.

"That either tells you that the British are much better than we are at creating wrongful convictions, or it tells you that they are much better at finding and solving them. I have no doubt it's the latter."

Mr. Justice Stephen Goudge just this week released his report on pathology errors in Ontario that put more than 200 cases of child death in doubt and likely resulted in several wrongful convictions. His 1,000-page report made 169 recommendations, and while Judge Goudge said that his mandate didn't allow him to recommend the creation of a Canadian CCRC, he urged that its generous use of forensic pathology in wrongful-conviction cases be emulated.

Mr. Lockyer said it is unconscionable to leave volunteers in Canada to do most of the work. They can only "scratch the surface" of the scores of wrongfully convicted people who are almost certainly languishing behind bars, he said.

"I think it's a question of control," Mr. Lockyer said. "The minister and his department are very reluctant to let go of the power they have. They are also worried that the creation of a wrongful-conviction review board would allow far more wrongful convictions to be exposed.

"I think they perceive that as being damage to the administration of justice. I think that the opposite is true."


For Abdullah Almalki, the waiting in his coffin-like Syrian prison cell was almost as bad as the torture.

"You would constantly hear the screams of other people being tortured," he told an audience of 400 students at Assumption University in Windsor, Ont. "I was in constant fear of being pulled out for more torture."

In an afternoon of sustained drama, Mr. Almalki and four wrongfully convicted killers and rapists spoke of the best and worst moments of their ordeals. They were joined by several renowned judges who have headed commissions of inquiry.

Mr. Almalki said he was beaten regularly with cables - up to 1,000 lashes at a time - often while his legs were suspended in the air or he was trapped in a vehicle tire. He said that his most vicious interrogator used to boast of his most painful torture methods.

James Driskell, a Manitoba man exonerated of murder, said that his worst experience was being on the phone from prison with his wife when his young daughter fell from a second-storey window of their home.

I could hear everything - the sirens, the screaming," he said. " It still haunts me, because I couldn't do anything about it."

"My relationship with my kids doesn't exist any more," he added, citing the strain of his prison ordeal on them and his ex-wives.

Another exonerated killer, William Mullins-Johnson, said that he fully expected to be killed in prison because his alleged victim was a child.

"People with my kind of charge are ostracized," he said. "They are raped and beaten...For the most part, I lived alone and thought I'd die alone."