CONVICTION; BLOG # 2031; MAY 6,2016

THE MESSAGE:

WRONGFUL CONVICTIONS IN CANADA.

A police investigation is often at the heart of a wrongful conviction because the police gather the evidence, identify the prime suspect, build the evidentiary foundation for conviction, and then testify in support of the prosecution.

The Honourable Dennis O'Connor, QC He sat on the Court of Appeal for Ontario from 1998 to 2012. He served as the Associate Chief Justice of Ontario from 2001 until he retired at the end of 2012.

O'CONNOR'S COMMENT

"My observation is that while police investigation is sometimes the cause of a wrongful conviction, experience shows that there are failures of other participants in the system that have contributed as well. Our criminal justice system is one of the best in the world. However, it is still based very much on human actors. It starts with the police but often depends on the reliability of witnesses, expert evidence, science, prosecutors, defence counsel, judges and juries. It seems inevitable that in a small number of cases there can be mistakes. It is therefore important that we have an effective process to address wrongful convictions and an organization like Innocence Canada (formerly the Association in Defence of the Wrongfully Convicted) to pursue cases where innocent people may have been wrongfully convicted."

HERE ARE SOME OF THE MAJOR CASES IN RECENT CANADIAN HISTORY: 

JAMES DRISKILL

In Manitoba 1990,  Perry Harder of Winnipeg was shot several times. His friend Driskill  was convicted of the murder and sentenced to life in prison a year later.  The RCMP said three hair samples found in Driskill's van belonged to Harder. It was the 'hair evidence' that proved key in Driskill's  conviction. Later test results from the U.K. found none of the hairs belonged to Harder.

Driskell was granted bail in November 2003. The federal justice minister quashed the conviction and ordered a new trial for 2005. Instead, the government opted to stay the trial and end the case without exonerating Driskill. They called for a public inquiry into the case.

The inquiry's final 2007 report, said the jury in Driskill's trial had been "seriously misled". It questioned the reliability of a key Crown witness. The report also said the failure of the Crown to disclose information to the defence was "careless indifference."

ANTHONY HANEMAAYER

In 1987, Hanemaayer who was 19 yrs old, was charged with assault in connection with a knifepoint attack on a 15-year-old girl. The Toronto resident pleaded guilty part way through his trial and was sentenced to two years less a day in jail.

Hanemaayer said in a later interview with CBC News that he accepted a plea bargain on the advice of his then-lawyer, who warned he could receive a long prison sentence.

In 2006, convicted murderer and rapist Paul Bernardo confessed to the crime during a jailhouse interview.  Hanemaayer, now 40 and living in London, Ont., took his case to the Ontario Court of Appeal under Justice O'connor and was acquitted on June 25, 2008.

Although Anthony has finally been able to clear his name, he will never be able to return to the life that was destroyed by his wrongful conviction. After his acquittal, Anthony described the past twenty-one years of his life as one living hell ride. His marriage had broken apart, not able to withstand the stress created by his arrest and the prospect of standing trial. Anthony has also had to live with, and to some extent continues to live with, the label convicted sex offender, even though he’s innocent. He has endured humiliation and psychological trauma as a result of his horrific experiences.

The Ontario Attorney General announced in January 2010 that the province would not offer him any compensation, claiming that compensation should be available only in rare, unusual cases. Anthony is now suing the Attorney General, the Toronto Police, and his former lawyer, alleging that all three parties acted improperly.

DONALD MARSHALL JR.

On the night of May 28, 1971, Sandy Seale, a 17‐year‐old teen, was fatally stabbed in Wentworth Park in Sydney, Nova Scotia. Donald Marshall, a 17 yr old  Mi'kmaq, was in the park that night and witnessed the stabbing. 'The murder of Seale was committed by Roy Ebsary  a drunken 59‐year‐old man who was in Wentworth Park with James MacNeil.  MacNeil told the Sydney Police that he saw Ebsary stab Seale. The RCMP then began an investigation but it was limited to administering a polygraph test on MacNeil and talking to the Sergeant who had conducted the original investigation. The RCMP did not acquire the Sydney Police file and did no further interviews before concluding that Marshall stabbed Seale.

Ebsary had a reputation for being violent and unpredictable, and had been previously convicted for a weapons charge involving a knife.  Once the Sergeant of Detectives began his investigation, he developed a theory that Marshall had stabbed Seale; he sought evidence to support this theory and discounted Marshall’s description. Unsatisfied with the version of events offered by two teenage witnesses, one of whom was on probation, while the other had mental health issues, police reinterviewed them using oppressive questioning tactics. They coerced untrue and contradictory statements from the two boys that formed the basis for charging Marshall.  James MacNeil's eyewitness statement was never introduced at Marshall's trial.

Donald Marshall Jr. was exonerated by a royal commission in 1990 that determined systemic racism had contributed to his wrongful imprisonment.

He was released in 1982 after RCMP reviewed his case. He was cleared by the Nova Scotia Court of Appeal the following year. Marshall died in a Sydney hospital in August 2009 after a lengthy illness. He was 55.

DAVID MILGAARD

A Saskatchewan inquiry found that the judicial system failed David Milgaard. He was charged with the 1969 murder of Saskatoon nursing aide Gail Miller and in January 1970 was sentenced to life in prison. Appeals to the Saskatchewan Court of Appeal and Supreme Court of Canada in the two years after his conviction were unsuccessful.

In the years that followed Milgaard’s conviction, there were many public allegations of misconduct and deliberate wrongdoing on the part of the Saskatoon Police. There have been widely publicized revelations that the police deliberately framed Milgaard and that they coerced, pressured and even tortured witnesses to lie to enable the police to make a case against a person they knew to be innocent. Several public claims indicate that the police knew Milgaard was innocent and that Larry Fisher was Miller’s true killer. Police took deliberate steps as far back as 1969 to cover this up. There have also been allegations that the police had tunnel vision and focused their attention exclusively on Milgaard to the exclusion of other suspects.

LET''S GET THIS CASE CLOSED. PEOPLE ARE DEMANDING CLOSURE!

 

Although the Saskatoon Police have acknowledged that they investigated a person they now know to be innocent, they have steadfastly maintained that Milgaard’s wrongful conviction was not due to any misconduct or deliberate wrongdoing on the part of any police officer. 

The Commission reviewed the investigation in great detail so it could address the many allegations made against the police  involved.

Larry Fisher was eventually found guilty of the rape and stabbing death of Gail Miller. A provincial judicial inquiry, which released a comprehensive 815-page report in September 2008, concluded that "the criminal justice system failed David Milgaard." The inquiry also found that Milgaard might have been released from jail years sooner if police had followed up on a lead they received.  In 1980, Linda Fisher (Larry’s ex-wife) voluntarily attends the Saskatoon Police station and provides a written statement to the Saskatoon Police saying that she believes Larry Fisher may have killed Gail Miller. The Saskatoon Police do not follow up on the statement. 

The Saskatchewan government awarded Milgaard $10 million for his wrongful conviction in 1999.

GUY PAUL MORIN

Christine Jessop, a nine-year-old girl, disappeared from her Queensville, Ont., home in October 1984. Her body was found in a farmer's field two months later. Guy Paul Morin, the Jessops' next-door neighbour in the community about 60 km north of Toronto, was later charged with her murder.

Morin was acquitted in 1986, but a new trial was ordered by the Ontario Court of Appeal. At this second trial, Morin was convicted and sentenced to life in prison. 

He appealed and in 1995 was exonerated by DNA testing. A public inquiry into the case was called, and its report was tabled in 1998. It concluded that mistakes by the police, prosecutors and forensic scientists combined to send an innocent man to jail.

WILLIAM MULLINS-JOHNSON

William Mullins-Johnson was wrongly convicted of a truly horrific crime; a crime which never took place. On the evening of June 26, 1993, twenty-two-year-old Bill was babysitting his four-year-old niece, Valin. Bill’s sister-in-law, Kim, had asked him to look after her three children that evening; she would soon tell the police that “the children loved staying with Billy.”

VALIN'S AUTOPSY

Dr. Bhubendra Rasaiah, who conducted the autopsy, Dr. Patricia Zehr, and the now-infamous Charles Smith, who had no training in forensic pathology,   made findings as to how Valin had died. Their conclusion was that she had been strangled to death between 8:00 p.m. and 10:00 p.m. on the night of June 26th. Accordingly Bill, who had been alone with the children, would had to have murdered her.

The autopsy revealed that she had been abused and then suffocated to death, as evidenced by the bruises found on her chest, neck, and head. 

Bill  was arrested at 6:30 p.m. on June 27th 1993. At his trial on September 21, 1994, he was convicted of first degree murder. The jury believed he killed Valin while sexually assaulting her. They  sentenced Bill to life in prison without the possibility of parole for 25 years. The jury convicted Bill despite the fact that there was no physical evidence connecting him to Valin’s death. 

The principal reason for Bill’s wrongful conviction was the flawed testimony of doctor Charles Smith.  At trial, Dr Smith, the now disgraced expert witness who had no experience in forensic pathology and has since been stripped of his medical licence, testified that the four-year-old Valin had been anally raped. 

Dr. Michael Pollen  who has since become the Chief Forensic Pathologist for Ontario, decided to conduct his own investigation into the autopsy slides. He quickly realized that Smith’s findings had been shockingly inaccurate. In fact, they were completely wrong. The injuries to Valin’s body that Smith had attributed to physical abuse were simply, “the result of normal processes following death or were caused by procedures connected to the post-mortem investigation."

Crown prosecutors eventually called for the Sault Ste. Marie man's acquittal, which was granted by the Ontario Court of Appeal on Oct. 15, 2007. The Crown apologized in the Toronto courtroom for all the hardship caused.

JUSTICE O'CONNOR ADDS: 

"Innocence Canada (then AIDWYC) was instrumental in addressing an injustice."

ROMEO PILLION

Ottawa firefighter Leopold Roy was stabbed to death in August 1967 and Romeo Phillion was convicted of his murder five years later. Though Phillion confessed while in custody on a robbery charge, he immediately recanted and has maintained his innocence ever since.

In May 2003, 30 years into Pillion's sentence, a group of law students from York University sought to secure Pillion's exoneration. One basis for their application was a police report, not shown to the defence at the original trial, that placed Phillion 200 kilometres away at the time of the crime.

Phillion was granted bail two months later while the federal justice minister investigated.

In January 2008, the Ontario Court of Appeal reopened Phillion's case. Phillion's former defence lawyer, Arthur Cogan, said that Phillion's original confession to the crime was a desperate bid to protect his gay lover from other charges.

The Court of Appeal struck down Pillion's conviction in March 2009 and ordered a new trial, although it stopped short of a full acquittal. Pillion died at age 76

THOMAS SOPHONOW

Barbara Stoppel was only 16 years old when she was brutally strangled to death at her workplace. On December 23, 1981, she was found close to death in the women’s washroom at the Ideal Donut Shop in Winnipeg, Manitoba. A few days later, she passed away at a local hospital. 

A number of eyewitnesses had observed a man who looked something like Thomas sitting in the donut shop and, later, locking the door and retreating toward the back of the store, presumably preparing to kill Barbara. These eyewitnesses incorrectly picked Thomas out of photo and in-person line-ups. Thomas was arrested and incarcerated. During this time, a jailhouse informant at trial, claimed that Thomas had confessed to killing Barbara. 

Winnipeg police announced in June 2000 that evidence had cleared Thomas Sophonow in the killing of doughnut-shop clerk Barbara Stoppel.

AIDWYC, The Association in Defence of the Wrongly Convicted, is a Canadian, non-profit organization dedicated to identifying, advocating for, and exonerating individuals convicted of a crime that they did not commit. This association  focused on the issue of eyewitness evidence and its many failings, and fought to ensure that Thomas would receive the compensation that he so richly deserved.

The Sophonow Inquiry report was released on November 5, 2001. This report identified an incredible array of errors and other problems that led to Thomas’ wrongful conviction.  Unlike many wrongly convicted people, Thomas received $2.3 million in compensation for the miscarriage of justice, the resulting trauma that he had suffered and the years of his life that he lost.

The Manitoba government released a report in 2001 by retired Supreme Court judge Peter Cory with 43 recommendations.  Cory said Sophonow should receive $2.6 million in government compensation (50 per cent from the City of Winnipeg, 40 per cent from the Manitoba government and 10 per cent from the federal government) for his wrongful murder conviction.

The actual murderer Barbara Stoppel has never been found.

STEVEN TRUSCOTT

In 1959, Truscott was sentenced to be hanged at age 14 for a schoolmate's murder, becoming Canada's youngest death-row inmate.

Eventually his death sentence was commuted to life imprisonment. Paroled in 1969, Truscott disappeared into an anonymous existence in a southern Ontario city. On Aug. 28, 2007,  the Ontario Court of Appeal unanimously overturned Truscott's conviction and acquitted him, declaring the case a miscarriage of justice that must be quashed.

In July 2008, the Ontario government announced it would pay Truscott $6.5 million in compensation for his ordeal.

KYLE UNGER

In June 1990, Brigitte Grenier died near Roseisle, Man., where she was attending an outdoor rock concert. The 16-year-old was beaten, strangled and sexually mutilated.

Kyle Unger, 19 and another man, Timothy Houlihan, 17, were convicted of first-degree murder in connection with her death in 1992. 

Houlihan was released on bail after the Manitoba Court of Appeal overturned his conviction in 1994.  He committed suicide later that year.

Unger's initial appeal, meanwhile, was rejected and his application for a Supreme Court of Canada appeal was denied. But in 2004, new DNA testing suggested a strand of hair found at the scene of the crime and originally used to convict Unger did not come from him. He was granted bail in November 2005.

Unger's lawyer said at the time that police and prosecutors kept evidence from the defence during the original trial and used a jailhouse informant who was not credible.

WITNESS REPORTS

Brigitte and Timothy were last seen dancing at approximately 1:30 a.m. They left the dance area together and made their way to a nearby, secluded, wooded part of the ski resort. At about the same time, Kyle went to the washroom; upon his return, he told a friend, John Beckett, that he’d seen Brigitte “going at it with some guy.” 

Beckett estimated that Kyle was out of his sight for as little as 20 minutes. When Kyle returned to the group he did not have any dirt on his clothing or scratches or bruises to his face. Kyle left the music festival by car between 4:30 and 5:00 a.m.

After entering the wooded area with Brigitte at 1:30 a.m., Timothy was next seen between 4:00 and 4:30 a.m. His face and clothes were covered in mud, and he had scratches on his face and blood on his chin. One witness testified that it appeared as though he had received a good beating. Timothy claimed that his injuries were the result of a surprise beating by an unknown male, and the reason for his absence was that he had passed out after the beating. Timothy continued to party with his friends until the early morning hours when he left the festival. Before leaving, however, he and a friend stopped to set fire to the contents of a barrel near the entrance to the festival area.

In March 2009, federal Justice Minister Rob Nicholson announced that a new trial had been ordered for Unger. The Manitoba Crown ultimately decided that it did not have enough evidence for a retrial. In October 2009, a Manitoba court acquitted Unger and he walked away a free man.

CLAYTON JOHNSON

Clayton Johnson’s happy life as a carpenter, high school industrial arts teacher, church volunteer, loving husband and father of two was shattered on February 20, 1989. That morning, his wife, Janice, fell down a flight of stairs, hit her head, and lost consciousness, while Clayton was out of the house on his way to work. Janice’s body was found by a neighbour, who called paramedics immediately. Despite their rushing Janice to hospital, it was too late to save her.

Although her massive head injuries were initially attributed to a freak accident, the RCMP reopened a criminal investigation in 1990 after Clayton Johnson had remarried. 

Johnson, of Shelburne, N.S., won a $2.5-million settlement from the Nova Scotia government in 2004. He had spent five years in prison after being wrongfully convicted of murdering his wife. He had launched a lawsuit in 2002 against the province, the RCMP and provincial prosecutors after the chief justice of the Nova Scotia Supreme Court declared him innocent of the murder charge that had put him behind bars.

Johnson's lawyers and many forensic experts maintained he was jailed for a murder that never happened

ERIN WALSH

It took a jury just one hour to find Walsh guilty of the 1975 second-degree murder of Melvin Peters in Saint John, N.B. The prosecution saw it as an open-and-shut case, and Walsh received a life sentence with no parole before 10 years.

Walsh's appeals to the New Brunswick Court of Appeal were dismissed in July and November 1982. In December 2006, however, his lawyers sought a review of the murder conviction from the federal government after new evidence came to light.

The evidence, obtained by Walsh as part of a 2005 access-to-information request, included reports of jailhouse conversations that suggested someone else shot Peters.

In February 2008, Justice Minister Rob Nicholson ordered a review of the murder conviction, suggesting a miscarriage of justice likely occurred.

A month later, the New Brunswick Court of Appeal acquitted Walsh of the crime and overturned his conviction. Walsh, a native of Ontario who had maintained his innocence for more than 32 years, was dying of colon cancer and wanted his name cleared. Walsh died at his home in Kingston, Ont., on Oct. 14, 2010. He was 62.




THE QUESTION:

How many suffer because of societal imperfections?






THE LEMON:




 





Awarded to former doctor Charles Smith. An inquiry, led by Justice Stephen Goudge  found that Smith "actively misled" his superiors, "made false and misleading statements" in court and exaggerated his expertise in trials.


THE QUOTE:

“Whatever you are, be a good one.” -Abraham Lincoln








THE CLIP: