Wrongful Convictions.pdf - Robson Hall Faculty of Law

Wrongful Convictions 17concluded that there was a responsibility to do a double check to ensurethat no innocent persons had been convicted on the basis of faultyforensic evidence.On a more personal level, most of the Crown attorneys in thedepartment were supportive as well. One prosecutor, arguably the mostexperienced in the Province, said that he had been involved in a few casesthat caused him a degree of concern afterward; it was quite appropriate, hesaid, for the Province to do a double check after the fact. In the result,contrary to my initial expectations, prosecutors in the province generallysupported the review. With the benefit of hindsight, I’m not sure why Iexpected any resistance: in my experience, prosecutors understand theirresponsibilities as ministers of justice.B. Kyle Unger’s ReactionBased on the forensic evidence review, Mr. Unger’s counsel filed anapplication to the Minister of Justice for a review of his convictionpursuant to sections 696.1–696.6 of the Criminal Code. In November2005, Mr. Unger was granted bail pending the Minister’s decision. 52 OnMarch 11, 2009 the Minister of Justice ordered a new trial because “there[was] a reasonable basis to conclude that a miscarriage of justice likelyoccurred in [his] 1992 conviction”. 53 On October 23, 2009 four importantannouncements were made: Manitoba’s senior Crown attorney advisedthe court that after a full review of the evidence it had been concludedthat “… it would be unsafe to retry Unger on the available evidence”. 54 He52While not authorized under the Criminal Code, the law is now clear that an inmateunder sentence has a Charter-based right to apply for and be granted bail where asection 696.1 application has been made and a defined evidentiary threshold has beenmet: R v Phillion, [2003] OJ No 3422 at paras 104-105 (QL) (Sup Ct J); Driskell vCanada, 2004 MBQB 3 at para 48, [2004] 4 WWR 182 [Driskell v Canada]; Unger vCanada, 2005 MBQB 238 at paras 49-51, 196 Man R (2d) 280 [Unger v Canada]; R vOstrowski, 2009 MBQB 327 at paras 57-59, 250 CCC (3d) 123 [Ostrowski].53“Police made evidence fit the crime in convicting Kyle Unger: lawyer” CBC News (11March 2009), online: .54See the submission of Don Slough, Assistant Deputy Attorney General for Manitoba,in an unusually lengthy and detailed history of the case and accounting on the recordwhy Manitoba was not offering any evidence on the re-trial of the accused: R v Unger,(23 October 2009), Winnipeg, CR91-01-11124 (Man QB) (Crown Submission),