LEST WE FORGET: CANADA'S WRONGFUL CONVICTIONS - INCLUDINGTHOSE CAUSED BY DR. CHARLES SMITH - MUST NOT BE FORGOTTEN, DEFENCE LAWYERS SAY;

"RECENTLY, MR. WILLIAM MULLINS-JOHNSON WAS FOUND TO BE WRONGLY CONVICTED ON THE BASIS OF THE EXPERT OPINION EVIDENCE OF DR. CHARLES SMITH. WHEN GIVEN OPPORTUNITY TO ADDRESS HIS ACCUSER, MR. MULLINS-JOHNSON TOLD DR. SMITH: “YOU PUT ME IN AN ENVIRONMENT WHERE I COULD HAVE BEEN KILLED ANY DAY FOR SOMETHING THAT NEVER HAPPENED. YOU DESTROYED MY FAMILY, MY BROTHER’S RELATIONSHIP WITH ME AND MY NIECE THAT’S STILL LEFT AND MY NEPHEW THAT’S STILL LIVING. THEY HATE ME BECAUSE OF WHAT YOU DID TO ME”. THOUGH DR. CHARLES SMITH WAS CERTAINLY LABELLED JUDAS AT THE INQUIRY INTO PEDIATRIC FORENSIC PATHOLOGY IN ONTARIO, THE HONOURABLE STEPHEN T. GOUDGE PROPERLY REMINDED US THAT THE WRONGFUL CONVICTION OF MR. MULLINS-JOHNSON AND OTHERS WAS AS MUCH AS PRODUCT OF DR. SMITH AS IT WAS FAILED OVERSIGHT."

DAVID G. CHOW; CALGARY DEFENCE LAWYER'S ASSOCIATION;

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In this moving Remembrance Day commentary, Lawyer David Chow reminds us that the average citizen deserves enough protection to ensure that no citizen is ever wrongfully convicted, interned or persecuted for something they did not do, as he implores us never to forget the wrongly convicted.

On the 11th hour of the 11th day of the 11th month all Canadians should pause to remember the thousands of men and women who sacrificed their lives for our freedom," the commentary, under the heading "Lest We Forget," begins.

"The soldiers who braved historic battlefields such as Vimy Ridge, Passchendaele, Dieppe, Normandy or the Atlantic Ocean, gave themselves so citizens of this Country could enjoy life free from oppression and tyranny," it continues.

"These were men and women of action, not words; and it is because of them that in our civilization there is often little distinction between action and word.

Rather than raising a weapon, citizens today may raise a pen; rather than engaging in physical combat, citizens may debate with ideas; rather than having freedom determined at the end of a gun or the heel of a boot, it is determined by a rule of law – to be assiduously protected – out of respect for our way of life and those who made the ultimate sacrifice to help us get here.

As inscribed on the Monument to Canadian Fallen at Confederation Park in Ottawa, “We Will Never Forget You Brave Sons of Canada”.

November 11th is the day dedicated to remember those who sacrificed during the First World War, the Second World War, the Korean War, the Afghanistan conflict and during Canada’s many other peacekeeping missions.

It strikes me, however, that after paying homage to our fallen heroes on November 11th, we should take a moment – on another day – to remember those who were sacrificed because our system failed.

Woven into history are important lessons for the future.

For example, let us not forget that Democratic Canadians were responsible for interning more than 22,000 Japanese Canadians during the Second World War;

Some of these citizens were combat veterans of the Canadian Expeditionary Force.

Some had even been decorated for bravery during the fighting on the Western Front in the First World War. Despite citizenship in a free, democratic and multi-cultural Canada, they were collected and scurried off to internment camps.

In the words of MP, Ian MacKenzie, “It is the government’s plan to get these people out of B.C. as fast as possible. It is my personal intention, as long as I remain in public life, to see they never come back here. Let our slogan be for British Columbia: No Japs from the Rockies to the seas”.

Just for a moment, let that frightening slogan resonate in your mind.

It mattered not that most if not all of the interned Japanese Canadians were not spies of the Japanese government.

It mattered not that there was no evidence of treason to the point that even the Royal Canadian Mounted Police felt that the public’s fears were unwarranted.

It mattered not that most of the Japanese in British Columbia were naturalized or native-born citizens.

Japanese Canadians were fired from their jobs, excised from their homes and lost the right to partake in the ocean’s scenic beauty along a protected 160 km strip on the Pacific Coast.

In the words of Japanese Canadian, Ken Adachi: “Born in Canada, brought up on big-band jazz, Fred Astaire and the novels of Rider Haggard, I had perceived myself to be as Canadian as the beaver. I hated rice. I had committed no crime. I was never charged, tried or convicted of anything. Yet I was fingerprinted and interned”.

The sad irony is, while our brave soldiers littered battlegrounds across Europe to protect Holocaust victims of a land not their own, the Government of Canada enacted legislation ordering the internment of its own people.

Despite a lack of evidence or proof of guilt of any crime, Ian MacKenzie, a Member of Parliament stated on a national CBC Broadcast, “No Japs from the Rockies to the seas”.

The Japanese Canadian Internment is a grim reminder of a chequered past, where our civilization was prepared to infringe upon the human rights of its citizens in response to irrational fears on public safety.

Though citizens today are not particularly concerned about a Japanese submarine emerging of the coast of British Columbia or a Japanese fisherman leaking information about Canada’s coastline to an Axis enemy, we should not forget that despite our noblest traditions, we have in the past been responsible for the tragic abrogation of the civil liberties of our own citizens.

Even the so-called pillar of democracy, the United States of America, is not without its lessons.

During the McCarthy era, for example, the search for communists during the cold war saw thousands of citizens rounded-up, interrogated, accused and even convicted for crimes they did not commit.

The McCarthyist search for communists is considered by many to be the most famous witch hunt of the 20th Century;

When Ken Adachi was fingerprinted and interned, he had committed no crime. Perhaps the most frightening thought for any citizen is being arrested, charged and convicted for a crime they did not commit.

Yet even with the Canadian Charter of Rights firmly engrafted into our criminal law, Canada’s justice system is not without its casualties.

Thomas Sophonow spent four years in jail for a crime he did not commit.

Though he was compensated by the Manitoba government, he said “no compensation can pay for all the years”;

In 1990, another Winnipeg resident, James Driskell was imprisoned for life after he was convicted of first-degree murder.

He spent twelve years behind bars and was not exonerated until February 15th, 2007, when the Justice Department finally acknowledged that the jurors at his trial had been “seriously misled” on the reliability of key witnesses and the failure on the part of prosecutors to disclose information;

In 1995, Randy Druken was convicted of murdering his girlfriend on the basis of evidence from a jailhouse informer.

Though Druken was released in 1999 after the informer claimed police pressured him into making a false statement, he spent four years in jail faced with constant danger from inmates who savagely punished those convicted of killing women and children.

Druken later stated, “there were times that…I even wanted to kill myself. And again, I had to think of reasons why not to”;

David Milgaard spent 23 years of his life in jail for the murder of Gail Miller.

He was falsely identified by a casual friend.

After his release, Mr. Milgaard stated “There is no justice in being locked up behind bars for something you have not done…. How would you feel if no one would tell the truth about you?”

David Milgaard, Thomas Sophonow, James Driskell and a host of others such as Gregory Parsons, Guy Paul Morin, Donald Marshal, Steven Truscott, and Herman Kaglik stand as firm reminders of the frailties of criminal justice.

Herman Kaglik spent over 4 years behind bars after being wrongly convicted for sexually assaulting his niece.

He was convicted on a single witnesses’ testimony and later exonerated through DNA evidence.

After his release, Mr. Kaglik commented: “It was a daily grind of fighting for your life and trying to convince people you were innocent”;

Recently, Mr. William Mullins-Johnson was found to be wrongly convicted on the basis of the expert opinion evidence of Dr. Charles Smith.

When given opportunity to address his accuser, Mr. Mullins-Johnson told Dr. Smith: “You put me in an environment where I could have been killed any day for something that never happened. You destroyed my family, my brother’s relationship with me and my niece that’s still left and my nephew that’s still living. They hate me because of what you did to me”;

Though Dr. Charles Smith was certainly labelled Judas at the Inquiry into Pediatric Forensic Pathology in Ontario, the Honourable Stephen T. Goudge properly reminded us that the wrongful conviction of Mr. Mullins-Johnson and others was as much as product of Dr. Smith as it was failed oversight.

Our system of justice is built upon the presumption of innocence along with other principles designed to make the presumption meaningful.

Recent attacks on the justice system, and in particular, the law of bail, by those such as Alberta Justice Minister, Ms. Alison Redford are just a little troubling because they demonstrate an apparent willingness by those responsible for justice in this province to reduce legal protections for those accused of crime.

If history has taught us anything, it’s that people in Canada can be accused, charged, convicted and even incarcerated for doing absolutely nothing wrong.

Notwithstanding that Ms. Redford’s message may be high on catch phrases, such as “catch and release” and “revolving door” the message is frighteningly low on substance.

“We need to write vigorous legislation” she says, “[i]f people don’t like it they can challenge it. The fear of a Charter challenge should not stop us from passing legislation that makes sense”;

This begs the question: what makes sense? Should parliament write potentially unconstitutional legislation to ensure that those who are “presumed innocent” are kept behind bars?

Journalists such as Rick Bell obviously think so.

In his words, “[i]t’s Alison against Goliath, with the giant being the weak-kneed Canadian criminal justice system."

Police Chief Rick Hansen obviously thinks so too. “How much protection does the average citizen deserve…”;

Alberta’s Minister of Public Security, Fred Lindsay also thinks so. As he says, “[t]he justice system operates on a principle of innocent until proven guilty. Sometimes they go overboard”;

Well I feel safer already. The talking heads stand united!

According to Ms. Redford, “it’s fine to be presumed innocent until proven guilty” and “[i]t’s fine if we have to keep more people in jail”.

In fact, as she says, “I want to keep more people in remand”[13]. David Milgaard had a chequered past.

According to Ms. Redford, I guess “it’s fine” that he was jailed?

But hang on, wasn’t he innocent?

The message of this article is to suggest that before charging ahead with unintelligent and dramatic plans to overhaul a system with the aim of making it easier to incarcerate citizens, we should remember those who were sacrificed because our system failed.

And it’s not “fine” that it did.

How much protection does the average citizen deserve?

How about enough to ensure that no citizen is ever wrongfully convicted, interned or persecuted for something they did not do?"

Harold Levy...hlevy15@gmail.com;