Emerging Issues and Developments

Preventing Miscarriages of Justice

On January 25, 2005, the federal, provincial and territorial (FPT) ministers responsible for justice publicly released a major report on the prevention of miscarriages of justice.² The 155 page report was prepared by a working group of the FPT Heads of Prosecutions Committee, composed of senior prosecutors and police from across the country. It was the result of over two years of work.

"A wrongful conviction is a failure of justice in the most fundamental sense," the report states. "If there is one theme that emerges from all of the recommendations in this report, it is vigilance – everyone involved in the criminal justice system must be constantly on guard against the factors that can contribute to miscarriages of justice."

The report includes a chapter on each of the issues that have been identified, both in Canada and elsewhere, as the key factors that contribute to wrongful convictions:

• tunnel vision;
• mistaken eyewitness identification and testimony;
• false confessions;
• in-custody informers; and
• forensic evidence and expert testimony.

The report contains 40 recommendations for individual police officers and prosecutors, police and prosecution services, as well as the Heads of Prosecutions Committee as an organization.

It concludes that everyone involved in the criminal justice system – including the police, prosecutors and defence counsel – must be constantly on guard against the factors that can contribute to miscarriages of justice. The Working Group believes that individual police officers and prosecutors, individual police forces and prosecution services, and indeed the entire police and prosecution communities, must make the prevention of wrongful convictions a constant priority.

The recommendations stress the need for continuing education for prosecutors and police and urge each prosecution service to develop a comprehensive written plan for educating its Crown attorneys on the causes and prevention of wrongful convictions. The report recommends the creation of a virtual resource center for police and prosecutors on the prevention of wrongful convictions and the establishment of a permanent Heads of Prosecutions committee on the prevention of wrongful convictions.

The Working Group's recommendations are aimed primarily at the most serious of offences, particularly homicides. These are the cases where the risk of long-term incarceration, and hence the consequences of a wrongful conviction, are the greatest. However, some of the recommendations are applicable to other offences, when feasible.

The Heads of Prosecutions Committee has set up a permanent committee of prosecutors and police to follow up this report. As well, individual prosecution services have begun to review their policies and practices in light of the recommendations.

The Group benefited from extensive participation in its work by representatives of the Canadian Association of Chiefs of Police (CACP).

Forum on Preventing Miscarriages of Justice

The Government of Manitoba, in conjunction with the Law Society of Manitoba and the Faculty of Law at the University of Manitoba, took up the challenge of organizing and staging a major forum on the prevention of miscarriages of justice. This international conference ("Unlocking Innocence: Avoiding Wrongful Conviction") will be held in Winnipeg, Manitoba, from October 20 to 22, 2005. The three-day conference will feature a keynote address by Janet Reno, former Attorney General of the United States, and presentations by numerous experts in the field of wrongful convictions. More information is available at www.wrongfulconviction.ca.

The Department is contributing financially to the conference and will be represented by the Minister's Special Advisor on Miscarriages of Justice, the senior counsel of the CCRG, the Special Advisor on Wrongful Convictions and other officials from across the Department.

Understanding Wrongful Convictions Conference

The Attorney General of New Brunswick, in partnership with the Saint John Police Force and the New Brunswick Ministry of Public Safety, are sponsoring a two-day conference entitled "Understanding Wrongful Convictions." The conference will take place on November 1 and 2, 2005, in Saint John, New Brunswick. The program features a presentation by CCRG's Senior Counsel on applications for ministerial review and a number of other speakers who will address various topics on wrongful convictions. The keynote address will be presented by Justice Marc Richard of the New Brunswick Court of Appeal.

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 past 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.³ Late in 2004, the mandate of the review committee was expanded to consider sexual assault and robbery cases. In January 2005, Manitoba Justice also invited the province's defence lawyers to bring forward their concerns about cases that might constitute miscarriages of justice. No other province or territory has to date adopted the same course of action as Manitoba.

Appointment of Departmental Special Advisor

In June 2005 Stephen Bindman, a former journalist, was appointed Special Advisor on Wrongful Convictions within the office of the Senior Assistant Deputy Minister, Policy Sector. In this new position, Mr. Bindman will coordinate all Departmental policy activities related to the prevention of wrongful convictions, including the Department's response to the FPT report on the prevention of miscarriages of justice described above.

Mr. Bindman's position within the public service should be distinguished from that of the Minister's Special Advisor on Miscarriages of Justice, Bernard Grenier, who is an order-in-council appointment from outside of the public service and provides independent advice to the Minister regarding the disposition of applications for ministerial review.

Disclosure Reform

A failure to disclose relevant information is a common theme in miscarriages of justice. On November 16, 2004, the Minister released a consultation paper proposing reforms to the disclosure process in criminal cases.⁴ The consultation paper addresses proposals with respect to:

• facilitating electronic disclosure;
• providing disclosure through access to disclosure materials;
• specialized court proceedings on disclosure;
• detailed disclosure-management procedures; and
• addressing improper use of disclosure materials.

The consultation paper seeks submissions on additional ideas for disclosure reform. Responses to the consultation have been provided by justice system partners and stakeholders and these are now being analyzed by the Department.

Public Inquiries

Miscarriages of justice continue to be an important criminal justice issue. Provincial public inquiries are currently underway or being planned in Newfoundland, Saskatchewan and Manitoba.

On March 23, 2003, the Government of Newfoundland and Labrador announced that there would be a commission of inquiry regarding criminal proceedings against Gregory Parsons, Randy Druken and Ronald Dalton.⁵ The Right Honourable Antonio Lamer, former Chief Justice of Canada, was appointed commissioner. The commission's proceedings and hearings have continued throughout the reporting period. A final report from the commission is expected by December 31, 2005.

The Government of Saskatchewan announced the appointment on February 20, 2004, of the Honourable Mr. Justice Edward P. MacCallum of the Alberta Court of Queen's Bench as commissioner to conduct an inquiry into the wrongful conviction of David Milgaard.⁶ The commission's proceedings began during the reporting period and will continue into the next reporting period. The Department has standing at the commission and is represented by counsel.

On March 3, 2005, the Minister announced his decision regarding the application for ministerial review of James Driskell. After deciding there was a reasonable basis to conclude that a miscarriage of justice likely occurred in the case, the Minister quashed Driskell's murder conviction and ordered a new trial. The same day, Manitoba's prosecution service stayed the murder charge against Driskell, and the Government of Manitoba announced that there would be a public inquiry into his case. Terms of reference have not yet been released nor has a commissioner been appointed. However, it can be anticipated that the commission's proceedings will commence during the next reporting period.

The Decision in R. v. Balafrej

The Quebec Court of Appeal released its decision in the case of R. v. Balafrej⁷ on January 19, 2005. The accused was convicted at trial of uttering threats. The Quebec Court of Appeal dismissed his appeal, and the Supreme Court of Canada denied his application for leave to appeal. Subsequently, it was discovered that the victim had forged the document in which the accused had allegedly threatened her.

The accused brought an application to the Quebec Court of Appeal pursuant to the Civil Code for a retraction of its judgment dismissing his appeal. The accused also applied to the Court of Appeal for leave to appeal its decision to the Supreme Court of Canada in accordance with section 37 of the Supreme Court Act.⁸ The Crown conceded that a miscarriage of justice had occurred.

The Court of Appeal concluded that it did not have jurisdiction pursuant to the Civil Code to grant a retraction of its judgment dismissing the accused's appeal because there were other legal recourses open to the accused including an application for ministerial review and an application for leave to appeal to the Supreme Court of Canada. The Court granted the accused's application for leave to appeal his conviction to the Supreme Court of Canada. With the Crown's consent, the Supreme Court of Canada subsequently reversed the Court of Appeal's decision pursuant to section 70 of the Supreme Court Act, quashed the accused's conviction and substituted an acquittal.

The case illustrates another legal mechanism for correcting a miscarriage of justice where an accused's case is no longer in the legal system. Particularly where the Crown concedes that a miscarriage of justice has occurred, it may be open to the accused to seek leave from the Court of Appeal to appeal a conviction to the Supreme Court of Canada.

Transparency

The Department of Justice is dedicated to an open and transparent conviction review process. However, this guiding principle must be balanced against other legitimate interests and concerns. At the third stage of the conviction review process, an applicant is provided with a copy of the investigation report, as required by section 5 of the regulations. The investigation report summarizes the CCRG's findings. It may, in some cases, contain new information that was previously unknown to the applicant.

The investigation report is usually accompanied by appendices that contain documents relevant to the investigation. In most, if not all cases, substantial numbers of these documents are provided by third parties such as provincial attorneys general, provincial correctional service ministries, Correctional Service Canada, police, etc. Sometimes, important witnesses are examined under oath as part of an investigation. Transcripts of these examinations, which may contain highly personal information, are frequently also included in the appendices. Other highly-private information, such as criminal record searches of witnesses, may also from part of the appendices.

The applicant and counsel are asked to keep the investigation report and appendices confidential. By means of an agreement or undertaking, the applicant and counsel are obliged not to release the material to the public or any other third party, including the media, without the consent of the Department. However, information and documents that are already in the public domain are not covered by this confidentiality obligation. This approach has led to criticism that CCRG is conducting conviction reviews "in secret."⁹

The task of striking an appropriate balance between transparency and other legitimate concerns is a challenging one. Openness and transparency are among the principles that guide the conduct of conviction reviews. The applicant, the person at the heart of the process, has complete access to all the relevant information in the investigation report and the appendices. This approach ensures that the applicant is fully informed of the facts, findings, issues and considerations on which the Minister proposes to make a decision. The applicant has the right to provide further information, comments and submissions in support of the application. Thus, the maximum amount of transparency and access to information is afforded to the applicant whose interests are at stake.
The applicant may, of course, release personal information about himself or herself to the public.

Transparency, of course, operates at another level – public access to information, principally through the media. Transparency of this type raises other issues which must be considered. First, the Department and the CCRG must respect the provisions of Canada's Privacy Act. An investigation report and documents in the appendices almost always contain personal information about third parties, other than the applicant. The Privacy Act requires that the privacy of these individuals be respected and that personal information about them not be released to the public except in accordance with the law. For example, an investigation report and appendices may contain information about the criminal record of a person other than the applicant that is not in the public domain. Protecting the privacy of this personal information in accordance with the law is a legitimate concern.

Second, the Department and the CCRG are mindful of the fact that many documents are provided voluntarily by third parties such as provincial attorneys general, government ministries, police and private individuals. In some circumstances, documents provided are privileged or highly confidential. The CCRG prefers to obtain this material through a cooperative process of voluntary disclosure, although it will not hesitate to subpoena the documents if necessary. The public disclosure of such documents, without the consent of the third parties, might undermine their willingness to voluntarily provide such material.

Third, the current approach of the CCRG with respect to the confidentiality of information and documents is consistent with the approach taken to disclosure in criminal cases. The disclosure documents given to the defence in a criminal case are not provided to the public. Nor are disclosure materials provided to third parties by the defence except for the purpose of making full answer and defence. Indeed, the vast majority of disclosure documents (e.g., police reports, police notes, etc.) are never made public or received in evidence in a criminal trial. In a recent case, the Ontario Court of Appeal suggested that disclosure materials in a criminal case may be subject to an implied undertaking that they can only be used for the purpose of defending a charge.¹⁰ Any other use of that material would require the authorization of the court. Similarly, an applicant is provided with the investigation report and appendices for the purpose of addressing the ultimate issue, that is, whether there is a reasonable basis to conclude that a miscarriage of justice likely occurred in the applicant's case.

Finally, the Department and the CCRG must respect and preserve the integrity of court proceedings. Serious consideration must be given to the issue of whether the public release of information or documents might adversely affect the integrity or fairness of a new trial or appeal ordered by the Minister.

The public release of a report prepared for the Minister was recently addressed by the Ontario Court of Appeal in Re Truscott.¹¹ In October 2004, the Minister referred Truscott's case to the Ontario Court of Appeal to be heard as a new appeal. Various media organizations brought a motion for access to a report prepared for the Minister by retired Justice Fred Kaufman. The Court held on June 24, 2005, that the report was subject to solicitor-client privilege and that the Minister had not waived that privilege. In its decision dismissing the media's motion for access to the report, the Ontario Court of Appeal was mindful of privacy issues:

Counsel for the [federal] Minister [of Justice] made it clear in his submissions that subject to concerns about the integrity of the process on the Reference, the Minister considers it to be in the public interest to release the Report, subject to limited editing to protect privacy interests. In that regard, as counsel for the Minister pointed out, the examination conducted by Mr. Kaufman was not constrained by the ordinary rules of admissibility governing court proceedings and the Report could therefore contain information that is rank hearsay, sometimes speculative, and occasionally hurtful to the reputations of individuals. In short, he maintained that legitimate privacy interests may well require editing to protect the reputation of individuals and other legitimate privacy interests.

In earlier correspondence with the Minister, the court advised him that it saw sufficient merit in the Provincial Crown's contention that the release of the Report could compromise the integrity of the Reference to recommend that the full Report not be released at that time. The Minister followed that advice. With the benefit of full submissions from the parties to the Reference and the moving parties on the motion, we are now satisfied that the question of the release of the Report must be addressed in two stages.

First, the Minister must determine whether to waive solicitor and client privilege. If he chooses to do so, he will presumably edit the Report to protect the privacy concerns described earlier. Second, if the Minister chooses to waive privilege and release an edited version of the Report, he will presumably advise the parties of his intentions. Should either party oppose the release of the edited Report, that party may bring an appropriate motion on notice to the parties involved in this motion. It would be incumbent on any party resisting disclosure to justify on proper legal principles and evidence the continued non-disclosure of all or part of the Report.

Following the judgment in Re Truscott, the Minister announced his decision on August 12, 2005, to waive solicitor-client privilege and make public a copy of Justice Kaufman's report, edited for privacy purposes. The Department followed the procedure set out by the Ontario Court of Appeal, giving both Truscott and the Attorney General of Ontario 30 days to determine if either wished to oppose the public release of the edited report.

It may be that documents or information provided to an applicant as part of the conviction review process are relevant to proceedings such as an application for bail pending the Minister's decision. The Driskell matter is a case in point.¹² Driskell, who had submitted an application for ministerial review through counsel, was provided with a copy of a Winnipeg Police report reviewing its investigation of the murder for which he was convicted. Both Driskell and his counsel signed undertakings to keep the report confidential and not disclose it to the public.

However, the report was relevant to Driskell's application for bail pending the Minister's decision and was tendered as evidence. Driskell's counsel sought a sealing order from the court with respect to the report. Associate Chief Justice Oliphant rejected the application for a sealing order resulting in the public disclosure of the document:

Fundamental freedoms, such as the freedom of expression and freedom of the press, as guaranteed by the Charter, cannot be sacrificed to avoid embarrassment to various individuals. To me, the innocence and the liberty of Mr. Driskell is at stake here. Nothing can trump that in terms of what is important as far as the public disclosure of the Winnipeg Police Service is concerned. I cannot think of one valid reason why the secrecy surrounding this report and the other documents in question ought to be maintained. In fact, I cannot think of a bad reason why they ought not to be publicly disclosed. The application for the sealing order is therefore dismissed.¹³

Openness and transparency fosters public confidence in the administration of justice. The CCRG continues to grapple with these important issues. The CCRG will review its procedures and policies on a continuing basis to maximize transparency, yet at the same time respect the law and accommodate other interests and concerns. As always, the challenge is to find the right balance.

² The report (FPT Heads of Prosecutions Committee Report of the Working Group on the Prevention of Miscarriages of Justice) is available on-line at http://canada.justice.gc.ca/en/dept/pub/hop/index.html.

³ The report is available at the Manitoba Justice web site (http://www.gov.mb.ca/justice/publications/forensic/index.html).

⁴ The consultation paper is available at the Department of Justice Canada web site (http://canada.justice.gc.ca/en/cons/disc-ref/index.html).

⁵ The web site of the commission of inquiry regarding Gregory Parsons, Randy Druken and Ronald Dalton is at http://www.nlcoi.gov.nl.ca/nlcoi/default.htm.

⁶ The web site of the commission of inquiry into the wrongful conviction of David Milgaard is at http://www.milgaardinquiry.ca/.

⁷ [2005] J.Q. no. 154, 197 C.C.C. (3d) 88 (C.A.).

⁸ R.S.C. 1985, c. S-26.

⁹ Kirk Makin, "Secret conviction reviews now common, lawyer says," Globe & Mail, 18 June 2005, p. A5.

¹⁰ D.P. v. Wagg (2004), 184 C.C.C. (3d) 321.

¹¹ [2005] O.J. No. 2667.

¹² R. v. Driskell, [2003] M.J. No. 484 (Q.B.).

¹³ Ibid., para. 15.

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