MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Wrongful Convictions 15
to consider whether there is a reasonable basis to believe that, by virtue of this
evidence, a miscarriage of justice has taken place.
Amongst other issues, the Committee shall consider:
1. the nature of the evidence tendered in the context of the trial
record;
2. whether, with the benefit of current scientific expertise, the
conclusions tendered by the Crown at trial were incorrect;
3. the extent to which the Crown relied upon this evidence to prove
the case;
4. any comments made by the trial judge concerning the probative
value or weight to be given to this evidence;
5. any other factors that may assist in assessing whether a miscarriage
of justice has occurred. 47
In essence, the committee was asked to do a double check on murder
cases that had been prosecuted in the province during the preceding 15
years, to see if there were any inmates still behind bars who had been
convicted, in part or largely, on the basis of hair microscopy evidence.
AIDWYC had been consulted on the initiative, was supportive, and
attended the public announcement to express its support. 48 The
committee was given one year to report, and was empowered to do any
testing it thought necessary to complete the task.
On August 19, 2004 the committee filed its report, which was made
public the following month. From an initial inventory of 175 cases, 136
were eliminated for various reasons (such as an appeal against conviction
was allowed). That left 39. The trial transcripts of each of the remaining
cases were reviewed, and 37 were eliminated for various reasons—for
instance, that hair comparison evidence had not been tendered, or the
defence had been run on a basis other than factual innocence. Two cases
remained: Kyle Unger and Robert Sanderson. 49
47
Forensic Evidence Review Committee, Final Report (Winnipeg: Manitoba Department
of Justice, 2004) at 3–4, online: [FERC Final Report].
48
Although, in fairness, it should be noted that AIDWYC would have preferred the
scope to be wider. The recommendation advanced by AIDWYC during the Driskell
inquiry in support for a national review mirrors to a certain extent the mandate
prepared by Manitoba: Driskell Report, supra note 9 at 181.
49
Both had been found guilty at trial, and had their convictions affirmed unanimously
by the Manitoba Court of Appeal: R v Unger (1993), 83 CCC (3d) 228, 85 Man R (2d)
284 [Unger cited to CCC]; R v Sanderson, 134 Man R (2d) 191 (available on WL Can)
[Sanderson cited to Man R].