The Jessops and the Morins were neighbours in the small town of Queensville, about 35 miles north of Toronto. On the afternoon of October 3, 1984, the school bus returned Christine to her home at about 3:50 p.m. No one was there. Her mother, Janet, had taken Christine’s older brother, Ken, to the dentist in Newmarket. The precise time of their return to the Jessop home was a major issue at the second trial. Guy Paul Morin left work at 3.32 that afternoon and could have arrived home no sooner than 4:14 p.m.. Accordingly, the Jessops’ time of return had an impact on any ‘window of opportunity’ for Mr. Morin to have committed this crime. Mr. Morin gave evidence to demonstrate that he arrived home well after the Jessops and therefore had no opportunity to aTbduct Christine Jessop. The prosecution vigorously disputed his alibi and suggested that he changed his time of arrival in various statements to avoid responsibility for the murder. Christine was not in the house when the Jessops returned, but there was no immediate cause for alarm. But when she failed to show up by early evening, Ms. Jessop called the police. A search of the area was organized and it continued for several days. No trace of Christine was found. As time passed, concerns heightened that she had been the subject of foul play. York Regional Police conducted the investigation into her disappearance. Her body was found on December 31, 1984, near the town of Sunderland in Durham Region, about 56 kilometers east of Queensville. Her body was on its back with her knees spread apart in an unnatural position. An autopsy determined that she had been stabbed in the chest several times and this had been the cause of death. The presence of semen on her underpants irresistibly suggested that she had been sexually assaulted. Her body was badly decomposed, and death could have occurred three months before its discovery. Because her body was found in Durham Region, the Durham Regional Police Service took charge of the case. John Scott prosecuted Mr. Morin at his first trial. Susan MacLean assisted Mr. Scott. Clayton Ruby and Mary Bartley defended Mr. Morin. Leo McGuigan was the lead prosecutor at the second trial, assisted by Alex Smith and Susan MacLean. Jack Pinkofsky, Elizabeth Widner and Joanne McLean defended Mr. Morin. Brian Gover was leading prosecutor during a lengthy motion by the defence to stay the proceedings at the second trial."
PUBLISHER'S NOTE: Justice Kaufman had been required by order in council to inquire into the conduct of the investigation into the death of Christine Jessop, the conduct of the Centre for Forensic Sciences in relation to the maintenance, security and preservation of forensic evidence, and into the criminal proceedings involving the charge that Guy Paul Morin murdered Christine Jessop. In short, as Justice Kaufman summed it up, his mandate required him to determine, to the extent possible, why the investigation into the death of Christine Jessop and the proceedings which followed resulted in the arrest and conviction of an innocent person. As you will see from this post and others to be published over the next few days, Justice Kaufman got to the heart of his mandate in spades.
JAILHOUSE INFORMANTS: EXECUTIVE SUMMARY: KAUFMAN INQUIRY: "Phase I of the Inquiry examined issues arising from a confession to the murder of Christine Jessop allegedly made by Guy Paul Morin to Robert Dean May, a fellow inmate in Whitby Jail; it was allegedly overheard by Mr. X, an inmate in the next cell. Mr. X’s identity is the subject of a publication ban imposed by the trial judge and upheld by the Ontario Court of Appeal.
May has a substantial criminal record for crimes of dishonesty. He admitted that he had a problem with lying in the past and had lied to the police and correctional authorities. He wanted badly to be released from jail in 1985 and would do whatever was necessary to accomplish this. He offered to implicate other inmates. (So did Mr. X.)
May was diagnosed by mental health experts at the second trial as a pathological liar. He had a deficient social conscience and was skilled in deceiving others. After the second trial, May recanted his trial evidence. He told a number of people that he had lied about having heard Mr. Morin confess and that he had committed perjury at the trials. Then he attempted to recant his recantations and took the position that his evidence at the trial about the purported confession was indeed true. The Commissioner found that he “spun a web of confusion and deceit about the issue of the confession.”
Mr. X has a lengthy criminal record for sexual offences, particularly for offences against young children. He was diagnosed in 1988 as having a personality disorder with sociopathic tendencies. At the second trial of Mr. Morin, an expert testified that this is characterized by exaggeration, lying, suggestibility and disregard for social norms. Mr. X agreed that he has lied to the police and correctional authorities in the past. He told the Inquiry that at times he apparently lost contact with reality; he heard voices in his head which, sometimes, were so loud that he thought his head was going to explode. He explained his history of sexual misconduct by the fact that he heard the voice of his uncle telling him to commit the illegal acts. X also bargained with the police for his information about Morin’s purported confession. In June 1985, he was desperate to get out of the Whitby Jail and into the Temporary Absence Program. He told the police he would give them anything they wanted if they got him into a halfway house. After the first trial, he was convicted of another sexual assault. The Commissioner found that Mr. X is an untrustworthy person whose testimony cannot be accepted on any of the issues before the Inquiry.
Both May and X claimed that they reported the confession and gave their evidence because they were morally outraged at the crime committed by Morin. The Commissioner rejected that motivation and found that they were both seeking to further their own ends when they reported the confession and testified. The Commissioner accepted Guy Paul Morin’s evidence that he did not confess to Mr. May.
Inspector Shephard was candid in acknowledging that a number of things that the informants said and did should have been more carefully scrutinized and investigated. The Commissioner found:
- Apart from their core evidence, some of the things that the informants said were patently unreliable. The prosecutors at the second trial did not objectively assess the reliability of these informants. When confronted prior to the second trial with the informants’ personal records, which showed their diagnosed propensities to lie, emphasis was placed upon denigrating or minimizing this evidence, rather than introspectively questioning whether the informants’ reliability should be revisited.
- Having said that, the prosecutors did regard May and X as truthful on the critical issue. There was some support for this view (most particularly, both informants passed polygraph tests though the polygraphist reflected the danger in placing undue reliance upon those results). The prosecutors’ views were no doubt coloured by their genuine views on Guy Paul Morin’s guilt; as a result, evidence which undermined the informants was more easily discarded and largely inconsequential evidence became confirmatory. However, no existing law or ethical standards prevented the prosecutors from calling even suspect evidence, so long as they did not know that the evidence was perjured. There was no misconduct in the prosecutorial decision to call these informants. Nonetheless, the decision to call these witnesses raises important systemic issues."
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Tunnel Vision:
PASSAGE OF THE DAY: "The fact that Mr. McGuigan still accepts Mr. May’s evidence, in the fact of Mr. Morin’s proven innocence, May’s recantations, May’s non-rehabilitation, and most importantly, in the face of May falsely alleging that McGuigan himself was a conspirator in framing Morin, is ‘tunnel vision’ in the most staggering proportions. The fact that Detective Fitzpatrick still accepts Mr. May’s evidence, in the face of these facts and May’s false claims that Fitzpatrick had threatened to kill May, etc. demonstrates an equally persistent ‘tunnel vision."
The Commissioner also found that certain parties at the Inquiry continue to suffer from tunnel vision that is “staggering”:
Mr. McGuigan still believes that the informants were telling the truth and that Guy Paul Morin lied about his ‘confession.’ Detective Fitzpatrick holds similar views. Indeed, though Mr. McGuigan believes that Mr. Morin is innocent, he also believes that he and his family deliberately concocted a false alibi. An innocent person has been known to tender a false confession — though mostly in the context of a police investigation. An innocent person has been known to tender a false, concocted alibi. I have found that Mr. Morin did not confess to May; I also have no doubt that Mr. Morin and his family (however imperfectly conveyed) did not concoct his alibi. The fact that Mr. McGuigan still accepts Mr. May’s evidence, in the fact of Mr. Morin’s proven innocence, May’s recantations, May’s non-rehabilitation, and most importantly, in the face of May falsely alleging that McGuigan himself was a conspirator in framing Morin, is ‘tunnel vision’ in the most staggering proportions. The fact that Detective Fitzpatrick still accepts Mr. May’s evidence, in the face of these facts and May’s false claims that Fitzpatrick had threatened to kill May, etc. demonstrates an equally persistent ‘tunnel vision.’ These findings of ‘tunnel vision’ also explain the need for the recommendations which later follow.
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The Offer:
"At some point during the second trial, both informants were given the opportunity to choose not to testify at the trial. Both rejected the offer. This information was not disclosed to the defence. It only became public knowledge after Mr. May divulged it in his response to the last question asked of him in re-examination by the prosecution. Mr. X then testified and also divulged it during his cross-examination. It was later used to full effect in Mr. McGuigan’s closing address to demonstrate that the witnesses were testifying voluntarily and at their own option and therefore unmotivated to lie. The Inquiry was told by the three prosecutors at the second trial that the offer was made for compassionate and humanitarian reasons only and was not an attempt to artificially bolster the credibility of the informants. Mr. McGuigan testified that he brought up the idea of making the offer to the informants after he learned of the abuse that Mr. X had suffered as a result of testifying at the first trial. He was mindful of his obligation to be kind and gentle to witnesses and knew that X would be dealt with harshly on crossexamination, as evidenced by the tenor of Mr. Pinkofsky’s cross-examinations to that point in the trial. The idea first arose in mid-December 1991, shortly before the Christmas recess. Mr. McGuigan may have expressed his motivation by saying that he was “moved by the Christmas spirit.” It was said that the offer was made to May as well so that he would not complain that he was being treated worse than Mr. X. Detective Fitzpatrick was delegated to speak to May and X. He told them that the Crown “might” give them the option not to testify. Both said they would decline such an offer. Accordingly, Fitzpatrick reported back that both elected to testify. Despite this, the offers were again made “formally” by Crown counsel to each informant.
Mr. McGuigan testified that the offer was not to come out in evidence at the trial. He suggested at one point that the witnesses would have been told not to mention the offer. Ms. MacLean’s evidence, which was inconsistent with Mr. McGuigan’s, was that the prosecutors discussed that the witnesses had the right to say they were there voluntarily, and she so advised Mr. X when he raised the matter with her in trial preparation. (She correctly noted that telling Mr. X not to mention the offer would be tantamount to telling him to lie.)
During his opening address on November 12, 1991, Mr. McGuigan had told the jury that both informants would be called as witnesses to Morin’s confession. He described the informants and their anticipated evidence, including the words purportedly uttered by Guy Paul Morin. Mr. McGuigan testified that he forgot about his opening statement when he authorized the offers. He conceded that if the offers had been accepted and neither of the informants testified, a mistrial might have been caused because of his mention of the confession in his opening address, but that eventuality never occurred to him.
In lengthy reasons, the Commissioner found that the offers were made “for tactical reasons with the hope or expectation that their rejection would be revealed to the jury, and in the knowledge that, if revealed, it would enhance the credibility of the informants.” He found that the offers were not intended to be unconditional and genuine as Mr. McGuigan claimed they were. He noted, inter alia, that:
- Mr. McGuigan’s position that he never thought about a possible mistrial was inconsistent with his wide trial experience and his submissions to the Court on January 20, 1992, when he made reference to his earlier opening address on this very topic.
- On Mr. McGuigan’s interpretation of the offers, it was possible that only Mr. May might have accepted it, leaving the prosecution with nothing but the evidence of the person who simply overheard the confession; it is inconceivable that Mr. McGuigan would not have foreseen this possibility.
- Had the informants accepted the offer, it would have deprived the Crown of the only direct evidence against Guy Paul Morin and might have resulted in his acquittal; there was a real possibility that the Jessops and the public would have been outraged if a murderer of a nine-year old girl went free because the prosecutors tendered an offer out of compassion. None of the prosecutors considered any of these consequences.
- May and X were not persons likely to evoke the degree of compassion put forward by Mr. McGuigan at the Inquiry. Indeed, it was uncontested that neither of these witnesses had even asked the prosecutors to excuse them from testifying.
- Mr. McGuigan contemplated that the informants would be challenged by the defence on their motivations for testifying. If it were disclosed to the jury that such witnesses declined an offer permitting them not to testify, it would seriously undermine such a line of attack. It was inconceivable that it never occurred to Mr. McGuigan until the offers were revealed in evidence that the declining of the offers would enhance the informant’s credibility.
The Commissioner also found that Detective Fitzpatrick, an experienced officer, “knew that the offers were not made as the result of compassion for X and a consequent need to treat May in the same manner as X.” If it appeared likely that the two informants (or either of them) would accept the offers, Mr. McGuigan would have ensured that the offers were not pursued. He sent Detective Fitzpatrick to find out what their reaction would be. “Apparently, the informants gleaned the real message because both of them purported to reject the offers, although one would have thought that they would receive such news with sighs of relief at the opportunity not to be exposed to intensive cross-examination.”
The Commissioner considered the respective involvement in the making of the offers of the three Crown attorneys. He found that the evidence did not warrant a conclusion that Mr. Smith and Ms. MacLean, having regard to their junior position in relation to Mr. McGuigan, were aware that the offers were not genuine. When Mr. McGuigan said that he was imbued with the Christmas spirit, Ms. MacLean may have accepted the truth of that statement “because of her respect for him and his stature.”
Recommendations
"The informants were motivated by self-interest and unconstrained by morality. It follows that they were as likely to lie as to tell the truth, depending on where their perceived self-interest lay. Their claim that Guy Paul Morin confessed to May was easy to make and difficult to disprove. These facts, taken together, were a ready recipe for disaster. The systemic evidence emanating from Canada, Great Britain, Australia and the United States demonstrated that the dangers associated with jailhouse informants were not unique to the Morin case. Indeed, a number of miscarriages of justice throughout the world are likely explained, at least in part, by the false, selfserving evidence given by such informants.
During this Inquiry, the Crown Policy Manual was changed to reflect a new policy on in-custody informers. The Commissioner found that Crown policy to be a laudable first step in addressing difficult policy issues. Recommendations 36 to 69 address the systemic issues arising out of the use of jailhouse informants in criminal proceedings."
The entire section can be read at:
https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/morin_esumm.html
