MINISTER OF JUSTICE ORDERS NEW TRIAL IN MANITOBA MURDER CASE

OTTAWA , March 3, 2005 – Irwin Cotler, Minister of Justice and Attorney General of Canada, today announced he is using his powers under the conviction review provisions of the Criminal Code to order a new trial for James Patrick Driskell.

Mr. Driskell was convicted in Winnipeg in June 1991 of first-degree murder in the death of Perry Dean Harder. He was sentenced to life imprisonment with no eligibility for parole for 25 years.

In October, 2003, Mr. Driskell’s counsel completed an application to the Minister of Justice for a review of the murder conviction pursuant to sections 696.1-696.6 of the Criminal Code.  In November, 2003, a judge of Manitoba Court of Queen’s Bench granted Mr. Driskell bail pending the Minister’s decision.

Cotler said that he “has concluded that a miscarriage of justice likely occurred in Mr. Driskell’s case.  Accordingly, I am granting the application for ministerial review, quashing the conviction, and ordering a new trial.”

The Justice Minister said there were a number of significant factors which accounted for the exercise by him of this rarely-used remedy, including:

• DNA hair analysis in 2002 effectively refuted expert evidence presented by the Crown at Mr. Driskell’s trial that three hairs found in a vehicle owned by him belonged to the victim.  The DNA analysis clearly established that the hairs did not belong to the victim, so that a significant piece of evidence, upon which the jury relied, was unfounded.

• The Crown failed to disclose that its two key witnesses – Reath Zanidean and John Gumieny – who had testified that Mr. Driskell planned the murder, had received substantial financial consideration.  This denied Mr. Driskell’s right to full disclosure and right to challenge the credibility of key witnesses.

• For 11 years after Mr. Driskell’s trial, the Crown failed to disclose information that Mr. Zanidean likely committed perjury at the trial.

• For ten years, Winnipeg Police failed to disclose an investigative report regarding the murder which included important and relevant information that would have been helpful to Mr. Driskell’s defence.

• The Crown’s two key witnesses (Zanidean and Gumieny) have, since Mr. Driskell’s trial, either recanted or threatened to recant their trial testimony regarding Mr. Driskell’s involvement in the murder.  The failure to disclose this information to the defence was not only a serious breach of the constitutional duty to disclose, but the information also significantly undermined the credibility of these key witnesses.

Cotler said that these new matters taken and weighed together “clearly denied Mr. Driskell the right to a full and fair hearing.  They so seriously prejudiced the fairness of the original trial and the validity of the original conviction that the only appropriate remedy is to quash the conviction and grant a new trial.”

For an application for ministerial review to succeed, the Minister of Justice must, by law, be satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred.  If this legal requirement is met, the Minister may grant one of two remedies – a direction for a new trial, or a referral of the matter to the court of appeal to be heard as a new appeal.

When rendering a decision on an application for ministerial review, the Minister is not making a finding of guilt or innocence.  The Minister has no legal power to make such a finding.  The Minister is simply returning the matter to the courts in circumstances where there is a reasonable basis to conclude that a miscarriage of justice likely occurred.  Ultimately, the courts will decide the issue of the applicant’s guilt or innocence.

The Minister made his decision in Mr. Driskell’s case after reviewing the Investigation Report and advice of the Criminal Conviction Review Group (CCRG) of the Department of Justice, the submissions of counsel for Mr. Driskell and the Attorney General of Manitoba, and the recommendations of  Mr. Bernard Grenier, his Special Advisor on the criminal conviction review process.

Further information about applications for ministerial review and the conviction review process is available at the CCRG website (http://canada.justice.gc.ca/en/ps/ccr/index.html).

In January, federal, provincial and territorial Ministers responsible for Justice released a major new report on the prevention of miscarriages of justice. Prepared by a committee of senior police officers and prosecutors from across the country, the report contains a series of recommendations for police and prosecutors on how to prevent wrongful convictions. The report is available at http://canada.justice.gc.ca/en/dept/pub/hop.

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Ref.:

Denise Rudnicki
Director of Communications
Office of the Minister of Justice
(613) 992-4621

Media Relations Office
Department of Justice Canada
(613) 957-4207