COMMENTARY: "Reasonable Doubt: Making A Murderer – could it happen here?" by criminal defence lawyer Brian Eberdt, published by NOW Magazine on January 18, 2016. (Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. In the interest of full disclosure, Lockyer Campbell Posner has been involved of most of AIDWYC’s cases. He thanks Caitlin Pakosh from AIDWYC, for her assistance in preparing this article. Reasonable Doubt appears on Mondays.)
SUB-HEADING: "Why wrongful arrests, convictions and unfair trials could (and probably do) happen in Canada"
GIST: "Given the amount of discussion about the Netflix documentary, Making a Murderer, my column this week is a companion piece to Joseph Fearon’s from last week. It is also a response to Michael Arntfield’s article in Wednesday’s Globe and Mail, where he explained why it would be less likely for the Steve Avery case to have occurred in Canada. With great respect to Professor Arntfield, I disagree with the title of his article, which reads “Rest easy: An unfair trial like Steve Avery’s won’t happen in Canada.” In the piece, Arntfield refers to the steps taken by the justice system, both through judicial inquiries and developing case law, which are designed to provide safeguards against unfair trials and investigations. The efficacy of such protections, however, is only as good as their implementation. Like any criminal justice system, the effective implementation of procedural safeguards is not guaranteed in Canada and the possibility of wrongful conviction is ever-present. In Canada, there have been seven inquiries arising from cases of wrongful conviction and systemic injustice, with a cumulative price tag of approximately $47.1 million. Most recently, the Goudge Inquiry examined the work of Dr. Charles Smith, who worked at SickKids Hospital in child death cases. Smith assumed murder where there was only tragedy. This contributed to the convictions of numerous caregivers and parents. He was stripped of his medical licence in 2011. The Goudge Report set out to reform the practice of pediatric forensic pathology to ensure that wrongful convictions like these never happen again. Other inquiries, such as the Kaufman Report and the Sophonow Inquiry Report investigated individual wrongful convictions and created recommendations for the justice system arising out of the errors that occurred in those cases. ........Unquestionably, Arntfield is correct to congratulate our system for its creation of the safeguards like those listed above. However, it is impossible to say that these immunize our legal system from the risk of wrongful arrest or conviction. The problem is that none of the recommendations that come out of these reports are binding. They are only recommendations. The Association in Defence of the Wrongly Convicted (AIDWYC) is a non-profit organization devoted to identifying cases of wrongful conviction and righting them. The organization was founded in 1993 and has exonerated 20 innocent individuals who have, together, spent more than 190 years in prison for crimes they did not commit. No law guarantees that the wrongly convicted are compensated for their lost years. AIDWYC itself requires substantial funding to continue its record of success, surviving from grants and private donations. Further, the demand for AIDWYC’s services has only increased over time. Asked to comment on the prevalence of wrongful conviction in Canada, Caitlin Pakosh, case management counsel at AIDWYC wrote, “Embracing a false belief of perfection ignores the fact that innocent people have been, and continue to be, wrongly convicted of crimes they did not commit. Some wrongful convictions have been rectified in this country but these successes do not give us license to become less aware and educated about a problem that is a reality for so many in this country.” Wrongful arrests and convictions do occur in Canada. Professor Arntfield wrote about the admonition of The Reid Technique in Manitoba and Alberta, but it is still used, even if it is discouraged. As I write this, there are individuals serving lengthy jail sentences for crimes they did not commit. False guilty pleas happen too – innocent individuals often plead guilty in exchange for a lesser sentence in the hopes of returning to a “normal” life as quickly as possible.........Both police investigations and the court system are invariably human systems. They will always carry an element of human error. It is the responsibility of every actor within these systems to be mindful of the recommendations made by both case law as well as commissions such as the Kaufman and Sophonow inquiries. Making a Murderer could have happened in Canada. Although, in fairness to Professor Arntfield, it would be less likely for it to happen today than it would have 20 years ago. The stories of the wrongfully convicted in Canada are no less interesting and haunting than those of Steven Avery. They just haven’t been made into Netflix documentaries…yet."
The entire commentary can be found at:
https://nowtoronto.com/news/reasonable-doubt-making-a-murderer-could-it-happen/
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
