Emerging Issues

Bail Pending Ministerial Decision

During the period covered by this report, two further applicants were granted bail pending the Minister's decision regarding their applications for ministerial review. This brings to four the number of applicants who have been released on bail.

In 1994, William Mullins-Johnson was convicted by an Ontario court of the murder and sexual assault of his four-year-old niece. Mullins-Johnson's appeals to the Ontario Court of Appeal and Supreme Court of Canada were dismissed.

With the assistance of the Association in Defence of the Wrongfully Convicted, Mullins-Johnson submitted an application for ministerial review of his convictions and brought an application for bail before the Ontario Superior Court of Justice. On September 21, 2005, the Court granted an order releasing Mullins-Johnson on bail pending the Minister's decision.²

In 1992, Kyle Unger was convicted after a trial before the Manitoba Court of Queen's Bench of the murder of a young woman at a rock music festival. The Manitoba Court of Appeal dismissed his appeal in 1993, and an appeal to the Supreme Court of Canada was discontinued the following year.

After submitting an application for ministerial review, Unger sought bail in the Manitoba Court of Queen's Bench. In a decision released on November 5, 2005,³ Justice Holly Beard accepted that she had the jurisdiction, based on the decisions in R. v. Phillion⁴ and R. v. Driskell,⁵ to grant bail pending the Minister's decision. She summarized the principles developed in the previous cases governing release on bail:

• This hearing is not:
• an investigation of the merits of the applicant's application for ministerial review;
• a determination of whether the conviction constitutes a miscarriage of justice; or
• a consideration of whether there should be a reference of a question to the Court of Appeal;
• the only matter to be decided is whether the applicant should be released prior to a decision or reference from the Minister of Justice following an investigation;
• where the minister orders an investigation, he does so after finding that there may be a reasonable basis to conclude that a miscarriage of justice has likely occurred;
• continued detention after such a finding fails to accord with the principles of fundamental justice and therefore breaches s. 7 of the Charter because the detention follows from or depends entirely upon a conviction about which there are at least reasonable grounds to believe may be a miscarriage of justice - the continued detention is contrary to the principle of fundamental justice that we do not convict, or imprison after conviction, those who are innocent of the crime charged;
• the criteria for release at this stage should be the same as those set out in s. 679(3) of the Criminal Code, being:
1. that the applicant is not frivolous;
2. that the applicant will surrender himself or herself into custody, according to the terms of the order; and
3. that the applicant's detention is not necessary in the public interest;
• these requirements are cumulative;
• to establish that an application is not frivolous, the applicant does not have to establish actual or near certainty of success, but should be able to demonstrate that there are serious concerns (or possibly "very serious concerns") about the accuracy of the verdict because of further information;
• where the Minister has concluded, after the preliminary assessment, that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred and ordered an investigation, that is indicative that the application is not frivolous;
• the public interest would normally favour the continued detention of a person convicted of a serious crime such as murder;
• where the grounds for review are strong and there is serious (or possibly very serious) concern about the accuracy of the verdict at trial, the public interest may well shift in favour of release;
• the community's tolerance for keeping the applicant in custody will vary with the quality of the evidence being put forward in support of the application;
• an application for release is brought by the applicant, and therefore he or she bears the burden of proof, which is proof on a balance of probabilities;
• it is arguable that the standard for release may vary depending on the stage of the application - that is, an application that has just passed preliminary assessment stage has not been subjected to the intense scrutiny of an investigation, and as a result, must meet a higher standard of raising not just "serious concerns" about the reliability of the conviction, but "very serious concerns";
• the grounds being relied on by the applicant should be considered in the context of the evaluative principles that the Minister is obligated to consider in s. 696.4 of the Criminal Code:
• whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in a previous application;   
• the relevance and reliability of information that is presented in connection with the application; and
• the fact that an application is not intended as a further appeal and any remedy is an extraordinary remedy.   

After reviewing the case, Justice Beard concluded there are "very serious concerns that [Unger] may have been wrongfully convicted" and that he should be released on bail.

Public Inquiries

During the reporting period, three provincial public inquiries were under way or being established.

In Saskatchewan, the Commission of Inquiry into the Wrongful Conviction of David Milgaard⁶ continued its work. Milgaard spent 23 years in prison for a murder he didn't commit. The Inquiry, headed by the Honourable Mr. Justice Edward P. MacCallum of the Alberta Court of Queen's Bench, is expected to conclude by the end of 2006. The Attorney General of Canada has standing at the Inquiry.

In Manitoba, the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell⁷ was established in December 2005. Headed by the Honourable Patrick LeSage, former Chief Justice of the Ontario Superior Court of Justice, it began public hearings in July 2006 and is expected to report by December 2006.

In June 2006, the Government of Newfoundland and Labrador released the report of the Right Honourable Antonio Lamer, former Chief Justice of Canada, into the cases of Gregory Parsons, Randy Druken and Ronald Dalton.⁸ It makes more than 40 recommendations on all aspects of the criminal justice system, from legal aid to police investigations to Crown culture. In particular, Lamer notes "the conviction of innocent people has been established with increasing frequency in Canada in recent years."

In response, the Government of Newfoundland and Labrador announced⁹ it accepted all of Lamer's recommendations and appointed a retired justice of the Newfoundland Court of Appeal to conduct an independent review of its Office of the Director of Public Prosecutions.

Education on Wrongful Convictions

There have been several major conferences and educational sessions on the prevention of miscarriages of justice across Canada.

In July 2005, there were several panels on wrongful convictions at the National Criminal Law Program sponsored by the Federation of Law Societies of Canada.

In October 2005, more than 400 people attended a landmark international conference in Winnipeg entitled "Unlocking Innocence: Avoiding Wrongful Conviction."¹⁰ The conference brought together Crown attorneys, defence lawyers, judges, police officers, scientists, policy-makers and academics from 10 countries to discuss the causes and prevention of miscarriages of justice. The CCRG's Senior Counsel and the Department's Special Advisor on Wrongful Convictions were among the speakers. In a keynote address, the Hon. Irwin Cotler, then Minister of Justice and Attorney General of Canada, called wrongful convictions "among the greatest injustices a society can know" and delivered a plea for a "culture of prevention" among all criminal justice system participants.

In October 2005, the Canadian Criminal Justice Association held its 30th Canadian Congress on Criminal Justice in Calgary. One of the sessions was entitled "Wrongful Conviction: The Travesty of Delayed Justice." A Counsel from the CCRG discussed the causes of wrongful convictions and what can be done to prevent them from happening in the future.

In November 2005, the Attorney General of New Brunswick, in partnership with the Saint John Police Force and the New Brunswick Ministry of Public Safety, sponsored a two-day conference entitled "Understanding Wrongful Convictions." The program featured a presentation by CCRG's Senior Counsel on applications for ministerial review and a number of other speakers addressed various topics on wrongful convictions.

On November 25, 2005, the students of Humberview High School in Bolton, Ontario, hosted a one-day symposium called "The Wrongfully Convicted with a focus on the Steven Truscott Case." The students had been studying wrongful convictions and decided to organize the conference as a culmination of their work. Over 600 high school students from across Ontario attended the symposium. A Counsel from the CCRG was among the speakers.

In addition, prosecution services in Quebec, Ontario and British Columbia conducted educational sessions for their prosecutors on aspects of wrongful conviction. Each featured a presentation by Jennifer Thompson, a North Carolina woman whose mistaken eyewitness identification led to the wrongful rape conviction and imprisonment of Ronald Cotton.

Osgoode Hall Law School's Professional Development Program began a series of one-day courses for police, lawyers, judges and others involved in the criminal justice system entitled "Strategies for Avoiding Wrongful Convictions and Acquittals." In December 2005, the issue of expert evidence was examined, followed in April 2006 by eyewitness identification and testimony.

Post-Conviction Disclosure

Two Ontario cases recently dealt with the issue of post-conviction disclosure.

In 1998, Marco Trotta was convicted of the assault and murder of his infant son. At his trial, the Crown presented evidence from Dr. Charles Smith, a forensic pathologist, who testified that the child's death was not accidental. Dr. Smith's competence and objectivity have subsequently been questioned. Prior to the hearing of his appeal in 2004, Trotta sought disclosure of material in the possession of the Crown relating to Dr. Smith's competence and objectivity in order to introduce this material as fresh evidence at the appeal. The Ontario Court of Appeal dismissed the application.¹¹ The Court acknowledged that the Crown's disclosure obligation continues during the appeal process and proposed a two-part test that must be met by an accused in order for disclosure to be ordered during the appeal process. Trotta's appeal was subsequently dismissed.¹²

On October 20, 2005, the Supreme Court of Canada granted Trotta's application for leave to appeal. The issue of post-conviction disclosure will be one of the matters argued before the Court.

In 1998, John Terceira was convicted of the murder of a six-year-old girl. His conviction was affirmed by the Ontario Court of Appeal in 1998 and the Supreme Court of Canada in 1999.

Terceira made an application to the Ontario Superior Court of Justice in 2005 seeking the release of the victim's leotards for DNA analysis. Justice Eugene Ewaschuk dismissed the application, ruling it was an impermissible collateral attack on the murder conviction and that he had no jurisdiction to make the order requested. He suggested that an application for ministerial review was the appropriate way for Terceira to pursue the matter. Justice Ewaschuk added that, even if he did have the jurisdiction to order the release of the leotards for testing, he would not exercise his discretion to do so because Terceira had not shown that the proposed testing had any prospect of showing that another person was involved in the murder.

Terceira sought leave to appeal the decision to the Supreme Court of Canada. His application for leave was dismissed without reasons on January 12, 2006.¹³

Ontario Criminal Conviction Review Committee

In May 2006, Ontario Attorney General Michael Bryant announced the establishment of a committee to provide expert leadership in the prevention of wrongful convictions. The Ontario Criminal Conviction Review Committee (OCCRC) includes six senior Crown counsel from across the province, representing the appellate, policy and trial perspectives on the issues.

The Committee is being advised by the Honourable Michel Proulx, a former justice of the Quebec Court of Appeal, defence lawyer and co-author of a recent book on ethics and Canadian criminal law.

The Committee will review criminal convictions where a miscarriage of justice is alleged, including cases that engage the conviction review process; provide expert advice and guidance to Crown attorneys across the province in dealing with some of the difficult issues relating to potential miscarriages of justice; develop educational and policy initiatives aimed at the prevention of miscarriages of justice; and develop protocols and best practices for dealing with these cases and preventing future miscarriages of justice.

Manitoba Justice Initiatives

In April 2003, the Deputy Attorney General of Manitoba, Bruce A. MacFarlane, Q.C., established a forensic evidence review committee to examine cases where homicide convictions were secured during the previous 15 years and where the Crown tendered and relied upon microscopic hair comparison evidence, in order to assess whether any miscarriages of justice occurred. The committee submitted its report on August 19, 2004, and identified two cases warranting further scrutiny.

Late in 2004, the mandate of the review committee was expanded to consider sexual assault and robbery cases. In September 2005, the committee reported that it had reviewed 492 cases but none required further action.

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