Wrongful Convictions.pdf - Robson Hall Faculty of Law
Wrongful Convictions.pdf - Robson Hall Faculty of Law Wrongful Convictions.pdf - Robson Hall Faculty of Law
26 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1should lead the review—the federal government, who has only a modestrole when it comes to Criminal Code prosecutions? Or a province, orcombination of provinces? If so, which one(s)? Given provincial ratherthan federal responsibility for criminal justice in each province, was itmore realistic for the provinces to set up a review mechanism that madesense in each individual jurisdiction?In 2011, the Heads released a detailed report on the progress that hadbeen made since the release of their first report. One section of the reportdealt specifically with the response by prosecution services to the DriskellReport recommendation concerning a “national” hair microscopy casereview. 75Heads noted that since Commissioner LeSage’s recommendation in2007, “all Canadian jurisdictions have conducted reviews in differentforms. The most formal were in Ontario and British Columbia.” 76In Ontario, the review was conducted in two phases, with theHonourable Patrick LeSage overseeing the work of the Ontario CriminalConviction Review Committee. The focus was on homicide cases from1985 to 2000, where, as in Manitoba: the accused had pleaded not guilty,asserting factual innocence; s/he had unsuccessfully appealed to the Courtof Appeal; hair evidence was tendered at trial; and hair was available fortesting. Cases meeting the phase one criteria would then be subject tofurther review to determine the importance of the hair evidence in thecontext of the conviction. Cases raising a concern would then be referredfor DNA testing. 77British Columbia likewise followed the Manitoba model, butexpanded the scope of the review. A review committee was established,consisting of retired judges from British Columbia’s Supreme Court andCourt of Appeal, a defence lawyer nominated by the UBC Law InnocenceProject, a Deputy Chief of the Vancouver Police Department and aRegional Crown Counsel, who supervised the process. The committee wasdirected to examine all cases of culpable homicide, sexual assault, robberyand other indictable offences including the use or attempted use ofviolence which: were prosecuted during the preceding 25 years; involved75Path to Justice, supra note 73 at 153-154.76Ibid.77Ibid at 154.
Wrongful Convictions 27hair microscopy evidence; where the accused pleaded not guilty, assertingfactual innocence and had been unsuccessful in attempts to appeal on themerits to the Court of Appeal. 78In their report, the Heads reported that the BC review committeeultimately reviewed two homicide and two sexual assault cases, and“unanimously concluded that there was no reasonable basis to believethat, by virtue of the hair microscopy evidence, a miscarriage of justiceha[d] taken place in the convictions against the four individual accusedpersons”. 79V. SOME CONCLUDING OBSERVATIONSThe criminal trial has traditionally been seen as the epicentre ofsubstantive and procedural protections designed to avoid miscarriages ofjustice. That is the point in the criminal justice continuum where: anaccused is presumed innocent; the prosecution bears the burden ofproving its case beyond a reasonable doubt; the accused is entitled to theeffective assistance of counsel; prosecution witnesses may be crossexaminedin public; and the prosecution is required to provide theaccused with “open file” disclosure, subject to very narrow exceptionswhich are judicially-supervised. And, in an overarching sense, the trialprocess in Canada accepts Blackstone’s admonition that at trial “it isbetter that ten guilty persons escape, than that one innocent suffer”. 80In recent years, developments both nationally and internationally haveforced a re-examination of whether the trial is actually the best—and only—setting for the determination of substantive innocence. Some have arguedforcefully that while the trial process is reasonably well equipped to make78Ibid at 153.79Ibid at 154.80William Blackstone, Commentaries on the Laws of England [Book the Fourth] (Oxford:The Clarendon Press, 1769) at 352 (in later editions it is often cited as 358). Thoughusually attributed to Blackstone, this proposition can be traced back in time throughBenjamin Franklin, Fortescue, Maimonides and the Bible (Genesis 18: 23-32). SeeGlanville Williams, The Proof of Guilt 2d ed (London: Stevens and Sons Limited,1958), at 155–158; and Alexander Volokh, “Guilty Men”, 146 U Pa L Rev 173(1997), who trace the doctrine back as far as ancient Greece and Rome.
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26 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1should lead the review—the federal government, who has only a modestrole when it comes to Criminal Code prosecutions? Or a province, orcombination <strong>of</strong> provinces? If so, which one(s)? Given provincial ratherthan federal responsibility for criminal justice in each province, was itmore realistic for the provinces to set up a review mechanism that madesense in each individual jurisdiction?In 2011, the Heads released a detailed report on the progress that hadbeen made since the release <strong>of</strong> their first report. One section <strong>of</strong> the reportdealt specifically with the response by prosecution services to the DriskellReport recommendation concerning a “national” hair microscopy casereview. 75Heads noted that since Commissioner LeSage’s recommendation in2007, “all Canadian jurisdictions have conducted reviews in differentforms. The most formal were in Ontario and British Columbia.” 76In Ontario, the review was conducted in two phases, with theHonourable Patrick LeSage overseeing the work <strong>of</strong> the Ontario CriminalConviction Review Committee. The focus was on homicide cases from1985 to 2000, where, as in Manitoba: the accused had pleaded not guilty,asserting factual innocence; s/he had unsuccessfully appealed to the Court<strong>of</strong> Appeal; hair evidence was tendered at trial; and hair was available fortesting. Cases meeting the phase one criteria would then be subject t<strong>of</strong>urther review to determine the importance <strong>of</strong> the hair evidence in thecontext <strong>of</strong> the conviction. Cases raising a concern would then be referredfor DNA testing. 77British Columbia likewise followed the Manitoba model, butexpanded the scope <strong>of</strong> the review. A review committee was established,consisting <strong>of</strong> retired judges from British Columbia’s Supreme Court andCourt <strong>of</strong> Appeal, a defence lawyer nominated by the UBC <strong>Law</strong> InnocenceProject, a Deputy Chief <strong>of</strong> the Vancouver Police Department and aRegional Crown Counsel, who supervised the process. The committee wasdirected to examine all cases <strong>of</strong> culpable homicide, sexual assault, robberyand other indictable <strong>of</strong>fences including the use or attempted use <strong>of</strong>violence which: were prosecuted during the preceding 25 years; involved75Path to Justice, supra note 73 at 153-154.76Ibid.77Ibid at 154.
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