Justice Miscarried

Inside Wrongful Convictions in Canada

Helena Katz

• Publisher: Dundurn Press
• Year: 2011
• ISBN:
  9781459700321
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Former bank manager Ronald Dalton never got to watch his three young children grow up. In 1989 he was convicted for a crime that never happened. His wife, Brenda, was later ruled to have choked to death on breakfast cereal not strangled as a pathologist had initially claimed. Dalton's daughter, Alison, was in kindergarten when he was charged with second-degree murder in 1988. He attended her high school graduation on June 26, 2000, two days after his conviction was finally overturned.

Behind the proud facade of Canada's criminal justice system lie the shattered lives of the people unjustly caught within its web. Justice Miscarried tells the heartwrenching stories of twelve innocent Canadians, including David Milgaard, Donald Marshall, Guy Paul Morin, Clayton Johnson, William Mullins-Johnson, and Thomas Sophonow, who were wrongly convicted and the errors in the nations justice system that changed their lives forever.

Justice Miscarried

Inside Wrongful Convictions

in Canada

Hélèna Katz

Dedication

To the men and women whose lives have been stolen from them by wrongful convictions, and to the dedicated and passionate people who work tirelessly to free them.

Contents

Introduction

Part I - Police Investigation: Making the Case

Chapter 1 - Unreliable Witnesses: The David Milgaard Case

Chapter 2 - Racism: The Donald Marshall Jr. Case

Chapter 3 - Cooking up Evidence: The Jason Dix Case

Chapter 4 - False Confession: The Simon Marshall Case

Chapter 5 - Withholding Evidence: The Gary Staples Case

Part II - Forensic Investigation: Nailing the Evidence

Chapter 6 - Jailhouse Informants and Faulty Forensics: The Guy Paul Morin Case

Chapter 7 - Deadly Cereal: The Ronald Dalton Case

Chapter 8 - Down the Stairs: The Clayton Johnson Case

Chapter 9 - Natural Causes: The William Mullins-Johnson Case

Part III - Before the Court: Pleading the Case

Chapter 10 - Prosecutorial Misconduct: The Thomas Sophonow Case

Chapter 11 - Eyewitness Misidentification: The Michel Dumont Case

Chapter 12 - Questionable Tactics: The Case of Gordon Folland

Appendix A - Other Cases of Wrongful Conviction in Canada

Appendix B - Compensation for Wrongful Convictions

Appendix C - Commissions of Inquiry into Wrongful Convictions in Canada

Appendix D - Resources

Appendix E - Further Reading

Acknowledgements

Introduction

“You are asking the government for mercy, for something you have never done.”

— David Milgaard, about his application to the federal justice minister to have his wrongful conviction for murder overturned.

A friend once confessed that it bothered her that people who have been convicted of a crime and imprisoned have the right to appeal their convictions and sentences.

“The appeals system wasn’t made to protect the guilty,” I said. “It was created to protect people who are wrongly convicted. Do you really want to have innocent people behind bars with no way to right the wrong when the justice system makes a mistake?” She nodded thoughtfully and agreed that the justice system needs checks and balances.

Behind the proud façade of Canada’s criminal justice system lie the shattered lives of the people unjustly caught in its web. Justice Miscarried tells the heart-wrenching stories of twelve innocent Canadians who were wrongly convicted, and the errors in the justice system that changed their lives forever. The sad truth is that while laws may appear to be infallible, the people who apply them are not. No one is immune to error — not those who gather evidence over the course of a police investigation, nor those who conduct autopsies and forensic testing, prosecute and defend cases, and preside over trials. Wrongful convictions were once viewed as isolated occurrences, but that is no longer the case. More than a half-dozen inquiries, from Saskatchewan to Newfoundland, have highlighted systemic reasons why things can — and do — go horribly wrong. Unfortunately, the people in the justice system aren’t necessarily good at admitting to mistakes and correcting them quickly. As lawyer James Lockyer told The Globe and Mail, “A wrongly convicted person becomes a victim on an express train without brakes.”[1]

Canada doesn’t have the death penalty, but the impact of wrongful convictions should never be underestimated. Life behind bars is dangerous, it’s a world where being assaulted by other inmates isn’t unusual. Ronald Dalton, who was wrongly convicted of murdering his wife, described prison life in an interview with The Globe and Mail:

There was always a pervasive air of tension in prison. The first time you’re in the gymnasium and a shotgun goes off from the gun tower, that gets to you. You develop a heightened sensitivity to what is going on around you. You learn to read the lay of the land, because you don’t know who is having a bad day or carrying a shiv. You can’t go around proclaiming your innocence in prison. Once you’re there, nobody wants to hear your sad story, because they all have their own. But you never give up hope, because it’s all you have to cling to. I’ve seen people go steadily downhill after they lost their last appeals, and had no more hope left.[2]

The prison system is not kind to people who have been wrongly convicted. Parole boards frequently perceive their continued statements of innocence as a lack of remorse, and evidence that they have yet to be rehabilitated. Consequently, they are frequently denied parole and end up spending many more years in prison than if they had admitted guilt for a crime they didn’t commit. Meanwhile, the lost years away from their families can never be regained. Dalton spent more than eight years behind bars. He missed seeing his three children grow up. His daughter was in kindergarten when he went to prison; within days of his release, he watched her graduate from high school. As the cases profiled in this book clearly demonstrate, the assumption that every conviction is legitimate is incorrect.

The stigma of a criminal conviction follows its victims long after their incarceration. When Thomas Sophonow was acquitted in 1985 of murdering Winnipeg doughnut shop waitress Barbara Stoppel, he hoped that other people would give him a chance. But he knew what lay ahead. “The theory of the propagandist is that if you repeat something often enough, over and over again, people seem to accept it as being the truth.”[3] A colleague at the manufacturing plant where he worked in 2002 hung a tag with the word “murderer” on his coveralls.

Wrongly convicted men and women aren’t the only victims. What about their families and those of the injured or murdered victims? They, too, are often traumatized by wrongful convictions. The victims’ families often feel some relief from knowing that the perpetrator is behind bars. But what happens when they learn that the real perpetrator continues to roam free? Do they relive the trauma of losing a loved one all over again along with not knowing what really happened? Nobody is held accountable if a murder remains unsolved. As time marches on and the trail gets colder, it can become more difficult to find the real killer. And what does it do for the confidence of the victims and their families in the criminal justice system? As Tim Orydzuk’s mother Jane pointed out in a letter to the editor that appeared in the Edmonton Journal, “There have been compound losses for the two families. Not only did we lose our boys, but we lost our faith in the Canadian justice system…. In the eyes of the justice system, it’s over. Nobody has been held accountable. There is still an empty chair around our table and a little girl who wonders why she has to grow up without her daddy.”[4]

In some cases of wrongful conviction, such as the murders of Sandy Seale and Gail Miller, another person is eventually found guilty of the crime that was initially attributed to an innocent person, such as Donald Marshall Jr. and David Milgaard, respectively. Even in such cases, families have to relive the trauma of losing a loved one as another trial with yet another suspect takes place.

The book’s first section profiles five cases where some of the most egregious errors were made during police investigations. Forensics experts are often called upon to testify, but as the four cases in the second part of Justice Miscarried demonstrate, experts sometimes misstate or overstate what they believe is evidence of a crime. From the Crown’s failure to disclose evidence to the defence counsel to eyewitness misidentification and errors of law, errors can also occur in the hands of lawyers and judges. A variety of causes can lead to miscarriages of justice, but among the most evident are the use of jailhouse informants, bad science, the Crown’s lack of disclosure, and eyewitness misidentification.

Advances in DNA technology have helped solve some murders and exonerate a number of wrongly convicted men and women. From gunshot residue tests to hair and fibre analysis and DNA testing, forensics are playing an increasingly important role in criminal investigations. Jurors place much weight on scientific evidence and expert testimony because of the air of infallibility and accuracy that science enjoys. This gives experts inordinate influence during criminal trials and makes the expert witness a powerful weapon in the Crown and defence’s arsenal. However, it is critical that they remain objective in their analysis and avoid being influenced by the person who hired them. Remaining neutral and keeping an open mind is tricky business, particularly since medical examiners, pathologists, and other forensic experts work closely with police officers and Crown prosecutors. Experts could be influenced, however subtly, to find evidence that supports a conclusion the police have already reached.

Until 2003, forensic pathology was not a recognized medical subspecialty in Canada and there was no formal training or certification. Consequently, many forensic pathologists did not have training in their field of practice; they learned on the job. In addition to a lack of neutrality, lack of training, and lack of adherence to scientific conventions can lead forensic experts to peddle bad science as credible evidence, leading to wrongful convictions and lost years behind bars.

The flip side is that the advent of DNA evidence has opened prison doors, letting a number of wrongfully convicted people free. According to the Innocence Project in New York, the first person exonerated by DNA evidence was in 1989. Some 266 people have been exonerated in the United States thanks to post-conviction DNA. At least seventeen of them served time on death row.

While DNA evidence has been a boon for so many wrongly convicted people, it has also presented a challenge for individuals who don’t have access to the evidence that could exonerate them. DNA evidence has become the gold standard for exonerations. Without it, it’s harder to convince courts that a miscarriage of justice has occurred based on other evidence such as faulty eyewitness identification or bad science. This makes the fight for exoneration and compensation much more difficult.

Until a landmark Supreme Court of Canada ruling in 1991, the Crown prosecutors’ failure to disclose evidence was an ongoing issue that could prevent an accused from getting a fair trial. Defence lawyers frequently felt ambushed during trials, as they were not given access to documents that could help them mount a full defence, or potentially exonerate their clients. With little duty to disclose, the Crown only had to provide defence counsel with the evidence that the prosecution considered relevant.

In 1991, the Supreme Court of Canada ruled that the Crown has a duty to fully disclose all evidence to the defence — not just the information it planned to present in court. In an adversarial justice system, securing convictions can take precedence over finding the truth. In a stinging comment, Justice Felix Cacchione told the Marshall inquiry that some prosecutors seemed to measure their success by the number of convictions they were able to secure: “Unfortunately, I found with certain persons it was a matter of how many notches did you have on your ‘win’ belt.”[5] This raises the question: What is the role of the prosecutor in the criminal justice system? Is it to win convictions or to find the truth?

Judges bring their own level of knowledge and experience with criminal law to their positions. In Quebec, for example, lawyers need to have been in practice for ten years before they can apply to become a provincial court judge. However, the law doesn’t require that they have courtroom or criminal law experience. That’s why former Newfoundland Supreme Court of Appeal Justice William Marshall told a conference on wrongful convictions that trial judges can also make errors that lead to wrongful convictions. “It is difficult to perceive how any credible inquiry into a wrongful conviction could be commissioned without expectation that every stage of the judicial process leading to the miscarriage — including the judiciary’s acquittal of its responsibilities — would be vetted,” Justice Marshall told his audience.[6] Inquiries should also examine mistakes that judges may have made that could have contributed to a wrongful conviction. Respecting judicial independence shouldn’t occur at the expense of examining their performances.

The road to exoneration is a long and costly one for victims of a miscarriage of justice. Once they have exhausted the appeals process, the final avenue is to appeal to the federal minister of justice to review their conviction under Section 696.1 (formerly Section 690) of the Criminal Code. The Criminal Conviction Review Group’s lawyers review applica...