Features | Justice deferred

Why you don't want to be wrongfully convicted in Canada

In 1992, Kyle Unger was found guilty of murdering sixteen-year-old Brigitte Grenier, who was found beaten, strangled, and sexually mutilated in rural Manitoba two years earlier. Unger spent 14 years in prison before his lawyers found that there were serious issues with the evidence used to convict him. With the assistance of the Association in Defence of the Wrongly Convicted (AIDWYC), he filed for conviction review in 2005 and was finally acquitted in 2009. Despite this blatant miscarriage of justice, the Manitoba government has steadfastly refused to offer compensation or hold an inquiry into Unger’s conviction. So, last month, he filed a lawsuit against the Manitoba provincial government, claiming $14.5 million for “grievous loss, damage, and expense.” It was the culmination of a nearly twenty-year nightmare for Unger.

Kyle Unger was wrongfully convicted for a number of reasons. The case against him was based on a hair sample found at the scene of the crime that was analyzed by police investigators using a technique known as “hair microscopy.” Hair microscopy – which involves comparing strands of hair at the crime scene with those of suspects – has recently been found to lack any scientific basis. The discrediting of the technique, combined with subsequent DNA analysis, eventually revealed that the hair used as key evidence against Unger was not his.

The prosecution also used the testimony of a jailhouse informant, Jeffrey Cohen, who claimed that Unger returned to his cell after a hearing and remarked, “I killed her and got away with it.” It was later found that it was impossible for Unger to have confessed when Cohen claimed he did.

The prosecution’s case was also based on a confession Unger made to police officers posing as drug dealers in a gang. This notorious technique, known as a “Mr. Big” operation, involves using the promise of money and gang membership to extract boasts of past crimes that establish the target’s “street cred.” In Unger’s case, RCMP officers posing as gang members hired Unger for menial tasks, before eventually introducing him to “Mr. Big” – the supposed ringleader (also an undercover police officer). After being lured into offering details about the murder, Unger lied about having killed Brigitte Grenier, going so far as to show the “gang members” a bridge near where he claimed to have killed her.

The bridge was not built until months after the murder.

It is not unusual for different errors and examples of police and prosecutorial misconduct to interact to wrongfully convict  individuals such as Unger.

And, yet, his successful conviction review is the exception rather than the rule in Canada, where a deeply flawed system leaves many languishing behind bars. Wrongful convictions are widely considered to be the greatest tragedy of the criminal justice system. They are devastating on many levels: for the crime’s victim, whose actual assailant escapes justice; for the system, which loses credibility; and, obviously, for the convict, whose life is forever changed and, in many ways, destroyed.

The criminal justice system, in its most basic form, involves the state harnessing its resources against the individual – in this respect, it is a violent and invasive tool. In recognition of the danger inherent in such a power imbalance, numerous legal protections exist to ensure fairness and reduce the risk of imprisoning the innocent. In addition to numerous rights enshrined in the Canadian Charter of Rights and Freedoms, Crown Prosecutors must prove guilt “beyond a reasonable doubt.”

Nevertheless, wrongful convictions have proven to be permanent fixture of our system. In recent decades, they have been uncovered at a steady rate. The recognition and reversal of wrongful convictions has largely been propelled by the emergence of DNA testing and by an increasing awareness of the fallibility of police practices and forensic science. Fortunately, a small but dedicated movement has arisen, aiming to stem the tide.

AIDWYC was founded in 1993 as a non-profit dedicated to reversing wrongful convictions. A Canadian organization, its emergence paralleled the establishment in 1992 of the Innocence Project at the Cardozo School of Law in New York, an organization that quickly spread across the United States and the rest of the English-speaking world. McGill’s Faculty of Law is home to one of a number of Canadian university-based chapters of the Innocence Network, an umbrella organization that includes the Innocent Project. These groups, generally composed of student volunteers and lawyers, assist applicants in the arduous process of reversing wrongful convictions. (Full disclosure: I volunteer at Innocence McGill).

Since the 1980’s, numerous public inquiries and royal commissions have been established in the wake of some of the most egregious wrongful convictions, creating household names (in the legal community) out of people like Donald Marshall Jr., Guy Paul Morin, and David Milgaard, men wrongfully convicted for heinous crimes and later acquitted. These commissions, often led by distinguished judges, tend to focus on the specific miscarriage of justice and then extrapolate to wider remedies needed at various levels of the criminal justice system.

Partly as a result of their findings, the Criminal Conviction Review Group was established in 1994. Made up of lawyers from the Department of Justice, and working alongside a Special Advisor, the Review Group’s mandate is to receive and assess wrongful conviction claims. But the process was far from perfect.

In 2001, the Thomas Sophonow Inquiry Report was released. In it, former Supreme Court Justice Peter Cory suggested that “there should be a completely independent entity established which can effectively, efficiently and quickly review cases in which wrongful conviction is alleged.”

In response to shortcomings identified by the Sophonow Inquiry, the criminal conviction review process was reformed in 2002. Improving the independence of the Review Group was a key goal, and, as a result, it was physically moved out of the Department of Justice, ostensibly to establish distance. Still, the reforms have not proven satisfactory to most critics.

 

 

 

The conviction review process begins after a convicted person has exhausted all appeals through the court system. This means that the person has lost at the provincial Court of Appeal and either lost or was refused a hearing by the Supreme Court of Canada. From there, any convicted individual can assemble a “section 696.1” application (named after the provision in the Criminal Code) and apply for formal review by the Review Group and, finally, the Minister of Justice.

In their assessments, the Review Group looks for information that meets the “new and significant” criteria. Information is considered “new and significant” if it was not presented in court, is reasonably capable of belief, is relevant to guilt, and could have affected the verdict. Examples include witnesses who have recanted, DNA proof of innocence, or information establishing an alibi.

If they find compelling “new and significant” evidence, the Group undertakes an investigation, where it inquires into the substance of the applicants’ claims, often interviewing witnesses, conducting forensic tests, and reviewing evidence presented at trial. When the investigation is wrapped up, applicants are given a hard copy of the investigation report, and are able to make comments on it.

The final investigation report, the applicant’s comments, and advice and recommendations from the Special Advisor are then submitted to the Minister of Justice. The advice and recommendations are confidential and are never revealed to the public or the applicant. (The official reasoning behind the confidentiality is that solicitor-client privilege exists between the Minister and the Special Advisor, although this explanation fails to account for the possibility of waiving privilege.)

Upon receiving the final report and the recommendations from the Special Advisor, the Minister can opt to do nothing, order a retrial, remit the case to the Court of Appeal, or ask for a court reference to clarify any unclear issues. The final decision rests with the courts and not the Minister, although ministerial interventions in Canada generally result in the acquittal or exoneration of the applicant.

The establishment of the Review Group – and its subsequent reform – was widely acknowledged as a step in the right direction. Still, many critics think the group falls short. Canada’s process is expensive, tortuously drawn-out, and continues to involve political actors – whose positions are tied to the pressures of public opinion – playing a role in decisions of guilt and innocence.

The current system imposes a high financial and logistical burden on applicants, who are often already indebted or from disadvantaged communities. A 2008 article by the Toronto Star concluded that 70 per cent of inmates have not completed high school and have unstable job histories. This is especially troubling given the requirements of the review process. Applicants must supply all documents related to trial proceedings, including transcripts, factums, material filed by both sides, and supporting documents. This must be done from the comfort of their prison cells, except in cases of applicants seeking post-release exonerations.

While the “new and significant” evidence requirement is not inherently costly, costs quickly add up when DNA tests and other expensive procedures are necessary. Groups like AIDWYC and the various chapters of the Innocence Project exist in part to compensate for the mobility and financial problems faced bypeople in jail. Still, these groups operate in a financially precarious context and do not have the deep pockets of a state-funded entity. The preparation of a conviction review application requires hours of careful legal work, and Innocence Projects often rely on lawyers working pro bono. While a few tests or procedures would probably blow Innocence McGill’s entire budget, an even more challenging “cost” is finding lawyers willing and able to commit the requisite hours free of charge. It is inevitable, then, that organizations forced to make choices will opt for more “obvious” applications.

In Canada, several years are generally required to assemble a section 696.1 application and receive a response from the Minister of Justice. William Mullins-Johnson, a Sault Ste. Marie man convicted in 1994 of murdering his four-year old niece, had his case taken on by AIDWYC in 2001. He was released on bail in 2005, pending review of his case, but wasn’t acquitted until 2007.

There is perhaps very good reason for the process to be thorough – we are, after all, talking about convicted individuals who have already failed at successive stages of appeals.  And, of course, releasing convicted murderers or rapists is never good politics.

Arguably, then, political actors, like the Minister of Justice, and government lawyers working in the Review Group are not well placed to review applications. The Minister of Justice in particular might appear to not merit a role in the process, given the fact that their position as an elected official depends largely on public opinion.

Advocates of a body independent of the Department of Justice are generally inspired by the United Kingdom, which established an independent commission in 1997. The Criminal Cases Review Commission (CCRC) is a state-funded body staffed by lawyers and investigators and the creation of such a body in Canada is seen by many critics as a necessary reform to make the Canadian conviction review process quick, effective, and efficient.

First, the UK approach shifts the financial and technical burden from the applicant to the independent commission, which is empowered to investigate fully and undertake any necessary tests. The CCRC is also able to receive and assess a large volume of applications, because of its permanent staff and fairly generous budget.

Second, the UK approach is remarkably quicker, with most applications receiving a response from the CCRC within a few months.

Last, and maybe most importantly, the UK system is truly independent. The Minister of Justice has no role in the process, ensuring that individual cases are kept out of the political realm.

The UK approach is not completely above reproach. Michael Naughton, law lecturer at Bristol University and chair of the Innocence Network UK, suggests that the CCRC is overly concerned with applicants whose convictions were tainted by technical errors, rather than applicants who claim factual innocence. The commission is also subject to the vagaries of government funding, and has faced severe cuts in recent years.

But, flaws notwithstanding, the British system remains a more effective, efficient, and transparent system than the one we have in Canada.

 

 

 

In 1923, American judge and legal theorist Learned Hand said that “our procedure has been always haunted by the ghost of an innocent man convicted; it is an unreal dream.” There is little doubt that Hand would be as wrong today as he was in 1923. The Kyle Ungers of the world attest to that. As recently as 2007, a commission established to investigate the case of James Driskell, another Manitoban wrongfully convicted of murder, suggested that an “independent inquisitorial body” would be best suited to determine whether miscarriages of justice have occurred.

Canada is still well short of this goal. Wrongful convictions continue apace. It seems more important than ever to make sure that our country’s criminal justice system weaves a net strong enough to catch its own errors.


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