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. V: The Investigation by Durham Regional Police and the Prosecution of Guy Paul Morin
The Body Site:
On December 31, 1984, citizens were walking on a tractor path in Durham Region near their home. They spotted something off the path. It was the remains of Christine Jessop. They contacted the Durham Regional police who came to the scene. Her body was on its back and only partially clothed. A sweater was pulled over her head. Panties and blue corduroy pants were near her feet.
Sergeant Michael Michalowsky, of the Durham Regional Police Service arrived at 2:10 p.m. He was the chief identification officer, responsible for the collection and preservation of original evidence found at the scene. Inspector Robert Brown, then in charge of Durham’s Crimes Against Persons Squad, took charge of the investigation. Officers Shephard and Fitzpatrick ultimately became the lead investigators, once Guy Paul Morin was identified as the suspect.
A severe snowstorm was predicted for that evening and Detective Fitzpatrick suggested that a tarpaulin be used to cover the scene until the next day. Unfortunately, his suggestion was not followed. The area around the body was cordoned off. Officers were organized to search the ground around the body site on their hands and knees. No formal ‘grid search’ was conducted. The Commissioner found inadequacies in the conduct of the search, which was not completed when darkness fell that night.
Sergeant Michalowsky:
In March 1990, during the preparation for Guy Paul Morin’s second trial, Crown attorney Susan MacLean learned that Sergeant Michalowsky had two notebooks for the Jessop investigation, containing a number of divergent entries for the same events. Following an investigation by the Ontario Provincial Police, Sergeant Michalowsky was charged with perjury and attempting to obstruct justice in connection, inter alia, with his evidence at the first trial relating to his notebook(s) and in relation to his evidence that a cigarette butt tendered as an exhibit at the first trial was the one found at the body site. The charges were judicially stayed in 1991 for reasons relating to Sergeant Michalowsky’s health. The Commissioner ruled, after receiving independent medical evidence, that Sergeant Michalowsky would not be compelled to testify at the Inquiry.
Smoking Paraphernalia Found at the Scene:
It was uncontested that Guy Paul Morin was not a smoker. Evidence that the perpetrator was a smoker would support his innocence. During the first trial and, to a greater extent, the second trial, the defence focused on the evidence found at the body site which, arguably, supported the inference that the perpetrator had left behind smoking paraphernalia: a cigarette butt or butts, a lighter, and possibly a cigarette package. The prosecution took the position that these items were irrelevant to the identity of the killer and, indeed, could be explained, in large measure, by searchers leaving items at the scene. The Commissioner found that the smoking paraphernalia identified at the body site may have had absolutely nothing to do with the identity of the perpetrator, but bore upon the quality of the police investigation and, further, upon the quality of some of the testimony which was elicited from the officers who were confronted with this issue at trial.
At least one cigarette butt, and possibly a second, was found at the body site on December 31, 1984. Constable Cameron had attended at the body site that day and butted out a cigarette while on duty. At the first trial, Michalowsky produced the cigarette butt which purportedly was found at the scene. It was marked as an exhibit. Cameron testified at the first trial as to his smoking at the body site. The position of the Crown was that the cigarette butt found at the scene could be explained by Cameron’s actions. The Crown took this position in good faith. Subsequently, Cameron determined that the cigarette butt that was found could not have been his. That butt was located before Cameron arrived at the scene. It was of a different brand and was found at a different location than the butt Cameron had left behind.
At the second trial, the Crown conceded that the cigarette butt introduced into evidence at the first trial was not the butt found at the scene and introduced as an exhibit.
Another officer allegedly told the OPP investigating Michalowsky in 1990, that he had found a cigarette package at the scene. He later did not adopt that position, but suggested that he may have seen a milk carton instead. Michalowsky, in a second notebook, attributed the finding of a milk carton to yet another officer who, however, truthfully denied that he found anything at the scene.
Yet another officer found a cigarette lighter at the scene several days after the initial search at the site. He bagged this lighter and said that he turned it over to Michalowsky. Michalowsky denied that he received a lighter from anyone and it was never produced. Another officer was to claim that he had dropped the lighter at the scene on December 31, 1984, and so advised an identification officer shortly after his return to the station. Then there was evidence that the lighter may have been found in a different location than that in which the first officer was searching. The evidence of various officers ‘developed’ or ‘changed’ as the criminal proceedings continued and the differences between officers’ recollections narrowed.
The Commissioner found the quality of the evidence before the Inquiry bearing upon the smoking paraphernalia to be quite unsatisfactory at times. The ‘development’ of the evidence and the absence of contemporaneous records before Guy Paul Morin was arrested or became a suspect invite concern that details later supplied are tailored to support the prosecution’s case or refute the defence position.
Michalowsky’s Court Attendances:
At the second trial, Mr. Justice Donnelly ruled that Michalowsky should testify at the instance of the defence, but that special conditions would apply to his evidence. Michalowsky’s doctor was to sit beside him throughout his evidence and monitor his health and the need for recesses; no one, including the trial judge, would robe; everyone would remain seated throughout, including the questioner; counsel and judge would sit at the same level as the witness; Michalowsky’s back would be placed to the audience and a screen was to be placed between him and the spectators. The videotape of his evidence was shown to the Commissioner.
In the presence of the jury, the registrar shook Michalowsky’s hand prior to swearing him in. The trial judge explained to the jury that the altered conditions were based upon medical advice to make the matter less discomfiting to the witness. Other comments were made by the trial judge in the jury’s presence. As well, the trial judge shook Michalowsky’s hand in the absence of the jury, stating, inter alia: “it’s nice to see you again.”
The Commissioner found that the trial judge’s actions, while wellintentioned, were unfortunate. Accommodations to a witness must have limits, for otherwise the jury may get the wrong impression. Some comments may have seemed like a judicial stamp of approval of Michalowsky’s testimony and may also have conveyed the impression that, for some unfathomable reason, the defence forced this poor man to testify, unmindful of the potential consequences. Though well-intentioned, the trial judge’s conduct, in the absence of the jury, raised concerns as to the appearance of partiality — particularly given Michalowsky’s alleged Morin-related crimes.
Continuity Evidence and Constable Robinet:
At the second trial, Constable Robinet, another identification officer, was called by the prosecution to address, inter alia, the continuity of items found at the body site (such as Christine Jessop’s clothing) which the prosecution sought to introduce at trial. (Fibres relied upon by the CFS were said to come from this clothing.) It was alleged both at the trial and at the Inquiry that, given the Crown’s decision that it would not call Sergeant Michalowsky as a witness, Robinet’s evidence ‘developed’ to meet the needs of the prosecution.
The Commissioner found that Constable Robinet demonstrated considerable, if not remarkable, improvement in his recollection respecting his involvement in the items collected at the body site. The Commissioner concluded that, despite the absence of any finding that Robinet deliberately gave false evidence, he was left with the concern that Robinet’s ultimate testimony no longer reflected an accurate recollection of his involvement in the events of October 3, 1984. He found that the prosecutors did not deliberately ‘feed’ information to police witnesses, but, at times, failed to take appropriate measures to preserve the integrity of the interviewing process. They were affected by the fact that these were police officers.
Conclusion:
The Commissioner summarized in these terms:
In this case, it is truly remarkable the extent to which the memories of a number of Crown witnesses improved as the proceedings progressed. Some of this, as I have said, was expected and was responsive to the more detailed demands placed upon them in the later proceedings. I find that some of this was a product of an interviewing process (such as collective meetings or overly informative questioning of witnesses) that was not designed to create unreliable evidence, but which nonetheless had that very effect. I find that a number of witnesses adopted and incorporated into their evidence things they were told by others — often, done subconsciously; sometimes, I regret to say, done deliberately.
The General Investigation:
The Commissioner identified certain failings in the Durham investigation. One was that the investigators placed undue reliance, at times, upon the polygraph as a quick and ready means of clearing suspects. The structural failings in the investigation were also discussed. One failing was that investigators who developed the best suspect became the lead investigators. The most significant failing, an investigation coloured by the officers’ early views, is discussed below.
Guy Paul Morin — The Suspect:
On February 14, 1985, Fitzpatrick and Shephard met with Janet and Ken Jessop who mentioned that their neighbour, Guy Paul Morin, was a ‘weird-type guy’ and a clarinet player. This directed some suspicion towards Mr. Morin. In his notes for February 19, 1985, Inspector John Shephard referred to ‘suspect Morin,’ but at the Inquiry he denied Mr. Morin was a suspect at that time. He said it was only ‘police jargon.’ The Commissioner found that both officers regarded Mr. Morin as a suspect prior to their first interview with him on February 22, 1985. This finding bore upon the attitude with which the two officers approached Mr. Morin that day and which, quite subconsciously, had an impact on the inferences they drew from some of his remarks.
The February 22, 1985 Interview:
On February 22, 1985, Officers Fitzpatrick and Shephard interviewed Guy Paul Morin outside his residence. They had arranged to tape-record the interview surreptitiously, but the 90-minute tape in their machine ran on one side for only 45 minutes; they did not know that they had to turn it over. During their discussion, according to the officers, Mr. Morin said some things that they found unusual. Some of them were:
- “Otherwise I’m innocent,” which was said after a pause in a discussion about his work;
- “All little girls are sweet and innocent but grow up to be corrupt,” which was said during a conversation about Christine;
- “[The body] was found across the Ravenshoe Road.” Neither officer was familiar with the Ravenshoe Road, although it was a paved eastwest route north of Queensville known to local residents as such.
In the recorded portion of the interview, Mr. Morin told the officers that he left work at 3:30 p.m. on the day Christine disappeared and got home around 4:30. He referred to the fact that he had shopped on the way. In the unrecorded portion, he extended his time of arrival home to “between 4:30 and 5:00.” This aroused suspicion in the officers’ minds.
In the face of Guy Paul Morin’s proven innocence, his comments on February 22, 1985 were innocuous. Some of his comments perhaps should not have excited any suspicion at the time. (For example, suspicions about Morin’s Ravenshoe Road comment were based more upon the officers’ ignorance of the area, than upon anything else.) It is difficult (and not terribly helpful) to assess now which items should have prompted further inquiry then. That analysis misses the point. Officers are entitled to investigate even based upon hunches. However, the comments here were not ‘hard evidence’ of anything. Nothing was said even remotely to constitute an admission, or a demonstration of knowledge exclusive to the killer. The information in the officers’ possession did not justify any fixed view as to Morin’s guilt. However, Fitzpatrick and Shephard did ‘fix their sights’ on Guy Paul Morin— they, themselves, may not have appreciated the extent to which they did so. Subsequent interviews were unduly coloured by their premature, overly fixed views. This affected the quality of those interviews.
Timing and Morin’s Place of Work:
After the interview, the officers obtained Mr. Morin’s time card at work. It disclosed that he left work at 3:32 p.m. on October 3, 1984. A timing run from his workplace to his home (57.1 kilometers) took 42 minutes, and would bring him home at 4:14 p.m. if he did not stop on the way. This raised an issue as to his opportunity to commit the crime, given Janet and Ken Jessop’s early accounts to the police that they arrived home at 4:10 p.m.
After their timing run, Shephard and Fitzpatrick went to the office in Newmarket of Dr. Paul Taylor, Ken Jessop’s dentist, and briefly spoke to him and his receptionist, Lorraine Lowson. Those witnesses claimed that the Jessops left their office at 4:20 p.m. (Both of them testified to that effect in the criminal proceedings). The officers did a timing run from Dr. Taylor’s office to the Jessop residence; it took 14 minutes. This led the officers to question the 4:10 arrival time originally provided to the police by the Jessops.
The Time That Janet and Ken Jessop Arrived Home:
At the second trial, Janet Jessop testified for the prosecution and indicated that she and Ken came home at 4:30 to 4:35 or even later. Ken Jessop was called by the defence. On cross-examination, Mr. McGuigan, through extrapolation, elicited from Ken Jessop testimony that supported, though less firmly, the later time home. Then, at this Inquiry, Janet Jessop and Ken Jessop firmly maintained that they got home at 4:10 p.m. Ken Jessop stated that he lied at the second trial. Ms. Jessop’s evidence as to her state of mind was less clear.
The Commissioner reflected that the issue at this Inquiry was ‘How did it come about that the Jessops’ evidence or proposed evidence came to change in the way it did?’
On March 6, 1985, Fitzpatrick and Shephard interviewed Janet and Ken Jessop at their residence regarding the timing of their activities on October 3, 1984.The interview went on for 2½ hours. No formal statement was taken from them, nor did the officers preserve any detailed notes. Fitzpatrick admitted that they told the Jessops that their times were wrong, having regard to the times provided by Dr. Taylor and Ms. Lowson. The officers suggested to Ms. Jessop that her kitchen clock (by which she had checked her time that day) might be slow. After the interview, the officers recorded that it was found that the Jessops arrived home around 4:35 p.m. and that Janet Jessop said it was possible that her clock could have been slow “as they are having problems with the electric clock.”
The Commissioner found that the March 6, 1985 interview was flawed. First, the officers should not have told the Jessops that their earlier times were wrong and were impossible, whatever their own views. Second, they should not have suggested to Janet Jessop that her kitchen clock could have been slow, believing this suggestion to be untrue. Ms. Jessop not only came to adopt this suggestion as truth, but came to later add that the faulty clock was thrown out for that reason. This, too, was incorrect, as Ms. Jessop herself now admits. Third, the whole interview process was inappropriately calculated to persuade Ken and Janet Jessop that their earlier times were wrong and to modify those times. The investigators genuinely believed that to be true, and they may have been right. However, the risk is that the evidence collected becomes a self-fulfilling prophecy. Fourth, the officers failed to preserve any detailed notes of this lengthy meeting at which the Jessops’ evidence purportedly changed. Indeed, the Report details inaccuracies in the supplementary report summarizing that meeting.
At the second trial, Ken and Janet Jessop testified that they were not pressured by the officers to change their times. At the Inquiry, Janet Jessop spoke of “pressure,” with some qualification, but not “bullying.” The Commissioner found that Janet and Ken Jessop were not prepared to say anything at the second trial that might adversely affect the prosecution’s case. Inspector Shephard denied that the officers pressured the Jessops to change their times, but could appreciate the Jessops’ perception, in hindsight, that they had been pressured.
Once Guy Paul Morin was charged, Janet and Ken Jessop were fully satisfied of Guy Paul Morin’s guilt. Ken Jessop testified that the officers ‘poisoned’ his attitude towards Morin and his family. The Report finds that the officers did communicate their strongly held views to the Jessops as to Mr. Morin’s guilt and other things which contributed to the Jessops’ perception of Guy Paul Morin. The Jessops were understandably not reticent about contributing to this kind of dialogue themselves. The officers’ approach lacked a certain professionalism and potentially heightened the unreliability of evidence emanating from the Jessops. The Commissioner found nothing untoward in the prosecutors’ personal dealings with Ken Jessop.
Janet Jessop testified at the stay motion that her kitchen clock (upon which her 4:10 arrival time had been based) had been thrown out because it was not keeping proper time. She repeated this evidence to the jury. She was confronted with the facts which undermined this position (including a later reenactment of the events on television which showed the clock still hanging in the background.) Ms. Jessop conceded that this aspect of her testimony was initiated by her and that her strong desire to see that Morin not ‘get off’ may have factored into this inaccurate evidence. Mr. Gover told the Inquiry that there was a general feeling among the prosecutors that Ms. Jessop was capable of saying anything, if she thought it would further the prosecution.
The Commissioner found that Mr. McGuigan believed that the core evidence given by Janet Jessop — that she and Ken arrived home at 4:30 to 4:30 p.m. or thereafter — was true. However, he knew that her ‘clock’ evidence was false. Though he thought (with some justification) that this would be obvious to the jury, he should have advised the jury that he placed no reliance upon it and should have re-evaluated, with some true introspection, the extent to which, if at all, the Crown should place any reliance upon her evidence, in light of what was known about her reliability generally, the ‘clock’ evidence and what she said about the ‘funeral screams.’
The Commissioner accepted that Janet and Ken Jessop believed when they initially spoke to the police that they had arrived home at 4:10 (and that Janet Jessop was not lying about that time out of guilt over the late return home.) He also accepted that, rightly or wrongly, Janet and Ken Jessop genuinely now believe that they did return home at 4:10.
The Interview Process Generally:
The evidence revealed numerous instances where interviews, sometimes lengthy, were held with witnesses, whose evidence was ultimately highly contentious and respecting whom it was alleged that their evidence had been ‘developed’ through the interviewing process. A number of times there would be a wholly inadequate written record of those interviews. Hours of untaped interviews might be reflected in a single entry in a notebook or in an incomplete précis or description of the interview contained in a supplementary report.
Some interviews with witnesses were tape-recorded. The taperecording was always surreptitious. The Commissioner found some selectivity in which interviews remained unrecorded — the officers were more inclined, though not invariably so, not to tape-record witnesses who potentially would give contentious evidence favouring the Crown.
The Commissioner also found that certain interviews, such as those conducted with Frank Devine, Guy Paul Morin’s brother-in-law, Ken Doran, Mr. X’s cellmate at the Whitby Jail, and Paddy Hester (dealt with below) were inappropriately conducted.
The Use of Criminal Profiling:
The Durham Police obtained FBI profiler John Douglas’ assistance in preparing a profile of the killer of Christine Jessop. Criminal profiling involves the analysis of the details of a crime and clues left behind, in conjunction with an understanding of similar cases, to prepare a psychological profile of the killer. The Commissioner found that the information investigators provided to Douglas may have been contaminated by their pre-conceived views. This highlights the wisdom of not conducting a profile once a suspect has been identified. Though features of the profile did parallel Guy Paul Morin, it could not reasonably be said that it matched or even closely resembled Morin. This caused no introspection on the part of the investigators. Inspector Shephard’s candid comment was that “if [the profile] said a female was responsible, probably we would have looked in the other direction.”
A modified profile was released to the public. Characteristics which corresponded to Morin were released to the press; those which did not were excluded or amended to conform. The Commissioner found that the use of a modified profile was problematic. It was intended to ‘spook’ Morin. However, by tailoring the profile to fit him, the police helped ensure that he could never get a fair trial in that region.
The Arrest — April 22, 1985:
Detective Fitzpatrick and Inspector Shephard arrested Guy Paul Morin in the evening of April 22, 1985. Over the next six hours he repeatedly protested his innocence. At the second trial, the defence sought to introduce in evidence the statements made by Morin at the time of his arrest, both in the car and at the station. The statements were ruled inadmissible as self-serving. The Commissioner’s recommendations address the admissibility of such statements at the instance of the defence."
