Questions From Applicants
The application asks you about your mental health history as part of AIDWYC’s efforts to obtain as much information as possible about you as it relates to the particular circumstances of your case. Unfortunately, people who have mental health issues, diagnosed or not, are overrepresented in the criminal justice system. This is an issue that AIDWYC is aware of and tries to take into account when considering claims of innocence.
Different mental health issues present differently and could have had a variety of effects on your case. If an applicant was experiencing symptoms of a mental health issue prior to the alleged crime, for example, the issue could have affected the applicant’s ability to effectively explain his innocence to investigating authorities, such as the police, especially if the issue was undiagnosed at the time. Similarly, symptoms that are outwardly expressed by the applicant could have made it attractive for authorities to target the applicant as the perpetrator, resulting in police tunnel vision. Tunnel vision occurs when authorities believe so strongly in the guilt of a certain person that they are not able to effectively evaluate other information that may jeopardize the truth of their belief. When tunnel vision is involved, a person’s guilt is established in the minds of the authorities without all the evidence being taken into account or without investigating all potential avenues for evidence.
Beyond the investigation of the case, AIDWYC asks about the current mental health status of its applicants to determine how best to maintain effective communication with the applicant.
The application asks about your ethnicity for two reasons:
- (1) Eyewitness identification is the primary cause of wrongful convictions. Although an eyewitness can be very confident about their identification of a perpetrator, the identification could be wrong. Confidence is not the same as accuracy. Further, numerous studies have shown that identification across ethnicities presents the eyewitness with additional difficulties in successfully identifying the correct perpetrator. By having more knowledge about your ethnicity and the ethnicity of the person who identified you as the perpetrator, AIDWYC is in a better position to determine if eyewitness identification error could have played a role in your conviction.
- (2) AIDWYC strives to be known to all communities in Canada to ensure that all Canadians understand they have an organization to depend on if they have been convicted of a crime they have not committed. By providing AIDWYC with your ethnicity, we are better able to assess which communities require improved outreach, awareness, and education services.
If your trial was not conducted in your preferred language, that is a potential issue for AIDWYC to take into account when assessing the details of your testimony, if you chose to testify in your own defence.
When does AIDWYC get involved in cases? Can they help me if I was charged with a crime but not convicted?
I received a letter from AIDWYC indicating that fresh evidence could not be found in my case and that, as a result, AIDWYC cannot continue to assist me at this time. What does this mean?
Questions from the Public
AIDWYC strives to take the individual circumstances and context of each case into account when assessing an applicant’s claim to innocence. Each case is unique and usually arrives at AIDWYC in one of two ways:
- 1. The convicted person or another interested party contacts the Director of Client Services, Win Wahrer, for the purpose of being sent an AIDWYC application form. The application is also available online, allowing the client to directly apply to AIDWYC.
- 2. A lawyer recommends the case to AIDWYC as a potential wrongful conviction. Typically, the lawyer recommending the case to AIDWYC served the applicant as appeal counsel.
Initial Assessment by CCAG.
After the application is received and initial client intake correspondence has yielded a sufficiently detailed amount of information, Case Management Counsel presents the application to the Canadian Case Assessment Group (CCAG) for initial assessment. The CCAG is comprised of a panel of senior advising lawyers who supervise case progress, provide guidance and advice to Case Reviewers, and act as a decision-making body with respect to case progress. The CCAG will make one of the following decisions when receiving an application:
- 1. More information is required to reach an informed decision;
- a. Case Management Counsel will be required to conduct further inquiries into the case as recommended by the CCAG.
- 2. The application does not meet AIDWYC criteria; or
- a. In this situation, the case will be closed without further review and the applicant will be sent a closing letter from AIDWYC.
- 3. The case requires further review.
- a. The CCAG member will be immediately assigned at the CCAG meeting in which the application is presented. Case Management Counsel will subsequently assign a Case Reviewer.
Once a case has been assigned to both a CCAG member and a Case Reviewer, the Case Reviewer and Case Management Counsel will work together to obtain a complete record of the case. At a minimum, Case Management Counsel advises Case Reviewers to review trial transcripts and the original defence file in order to conduct a preliminary review.
The length of time required to conduct a preliminary review varies markedly between cases. For example, the length of the review may be considerably lengthened if the applicant had multiple trials or if the case involved complex expert testimony. Ideally, after the trial transcripts and original defence file are obtained, the Case Management Counsel requests the Case Reviewer to provide a preliminary summary of the case within three months. Again, this deadline may change based upon the individual circumstances of the case.
Update Supervising CCAG Member.
Once a preliminary case summary is complete, the Case Reviewer will update both the Case Management Counsel and the supervising CCAG member. This will ensure that all parties are informed about the strengths and weaknesses of the case. Potential avenues of fresh evidence will be discussed and the Case Reviewer will undertake a more in-depth review, if warranted.
When conducting a more in-depth review, it may be required to fund private investigations and expert opinions. If these services are required, the Case Management Counsel and Case Reviewer will work to complete a Service Agreement that will ultimately be submitted to the Executive Director for funding approval. In essence, the Service Agreement focuses on the value that the service will add to the merit of the case.
Secondary Assessment by CCAG.
If difficult issues develop, the case may be set for discussion at the next CCAG meeting. At the meeting, the senior lawyers will discuss the difficulties arising from the case and how to proceed with the case moving into the future.
Opinion Letter Recommending Closure.
If after a thorough review, the Case Reviewer determines that the applicant’s claim to innocence is without merit, then the Case Reviewer is required to write an opinion letter that recommends the closure of the case. The letter must provide detailed reasons explaining why the case is not appropriate for the continued involvement of AIDWYC. The CCAG will make a final decision with respect to closure.
Opinion Letter Recommending Support or Adoption.
If after a thorough review, the Case Reviewer finds fresh evidence that significantly supports the applicant’s claim to innocence, then the Case Reviewer is required to write an opinion letter that recommends either supporting or adopting the case. The CCAG and AIDWYC Board will make a final decision with respect to support or adoption.
The path to a wrongful conviction first begins with an innocent person being charged for a crime he or she did not commit. After being charged, the innocent person can choose to either plead guilty or not guilty. There are a number of reasons why an innocent person may choose to plead guilty. For example, the person may wish to obtain a reduced sentence or lesser charge. Some individuals may simply feel overwhelmed by the power of the state and may feel that pursuing a trial would be hopeless in the face of experts that seem impossible to challenge, such as in forensic pediatric pathology cases relating to Dr. Charles Smith.
If an innocent person goes to trial and is found guilty, the result is that he or she is convicted of a crime he or she did not commit, hence the term “wrongly convicted”. A conviction often bears a number of negative consequences, such as imprisonment, social stigma, and the destruction of relationships with family and friends.
To correct the wrongful conviction, the convicted person may ask a higher court to review the decision of the trial court. The first court available after being convicted at trial is the provincial Court of Appeal; each province has a Court of Appeal and each judgment rendered at the Court of Appeal level is provided by three judges who review the case together. An appeal may be made against a conviction on the basis that:
- 1. the verdict was unreasonable;
- 2. there was an error of law; or
- 3. there was a miscarriage of justice.
Appeal courts have the discretion to:
- 1. Dismiss the appeal; or
- 2. Allow the appeal and quash the conviction, in which case the Court of Appeal
will either enter an acquittal or order a new trial.
It is important to understand that even if a person is innocent of a crime, the Court of Appeal cannot formally declare that person to be innocent. The reason for the Court’s inability to make such a declaration is grounded in policy and jurisdiction: declaring a person innocent would effectively create two classes of people, those found to be factually innocent and those who simply benefited from the presumption of innocence and the requirement of proof beyond a reasonable doubt.
See the 2007 case of R. v. Mullins-Johnson, 228 C.C.C. (3d) 505 for further details.
In the event that the conviction is affirmed on appeal (ie. the conviction remains in place), the convicted person has two other potential options of having his or her conviction reviewed:
- 1. Go to the Supreme Court of Canada, the country’s highest court; or
- 2. Submit a s. 696.1 application to the Minister of Justice on the basis that
the case represents a miscarriage of justice.
Right to Appeal: Note that a convicted person only has an automatic right to appeal to the Supreme Court of Canada if the decision reached at the Court of Appeal level is not unanimous. Otherwise, the convicted person must seek “leave to appeal” (ie. permission to appeal) to have his or her matter heard by the Supreme Court of Canada. The permission can either be granted or denied. If the permission is granted, the convicted person can appeal to the Supreme Court of Canada.
With the recent decision of R.v. McArthur 2012 ONSC 5773, in which AIDWYC acted as an Intervenor, s. 696.1 applications can be pursued even if the convicted person did not appeal to the Supreme Court of Canada. Ministerial review of applications are viewed as an extraordinary remedy and serve to have the Minister of Justice review the case as a likely miscarriage of justice. Should the Minister find that the case likely represents a miscarriage of justice, the Minister may:
- 1. Direct a new trial to any court that the Minister thinks proper; or
- 2. Refer the matter to the Court of Appeal.
If the Minister orders that a new trial should take place, the case is considered new. The decision reached at this new trial takes precedence over the previous verdict rendered at the original trial.
If the Minister refers the matter to the Court of Appeal, the Court of Appeal will quash the original conviction. The Court of Appeal then has three possible choices in resolving the matter:
- 1. Order a new trial;
- 2. Enter an acquittal; and/or
- 3. Make any other order that justice requires (for example, a stay of proceedings
which allows the Crown to re-lay charges within one year of the stay).
In the event that the Crown chooses to withdraw charges, or fails to re-lay charges within a one-year period following a stay ordered by the Court of Appeal, there is no charge on record, and this has the effect of ending the proceedings.
The below chart is a simplified representation of the paths a wrongly convicted person may take through the criminal justice system when seeking to correct a wrongful conviction. The chart does not include processes related to a stay of proceedings.
If you are a lawyer, law clerk, or paralegal who would like to get involved with AIDWYC, please contact Case Management Counsel, Caitlin Pakosh at: firstname.lastname@example.org or 416-504-7500, ext. 225.
If you are a law student who would like to get involved with AIDWYC, please contact Legal Education Counsel, Amanda Carling at: email@example.com or 416-504-7500, ext. 226.
There are additional lawyers who volunteer with AIDWYC, but who do not assist in reviewing cases. These lawyers typically apply their expertise to civil matters related to specific AIDWYC policies and procedures or provide consultation on specific civil and criminal issues. Some lawyers also contribute to AIDWYC’s educational mandate by writing blog entries, informative articles, or speaking at AIDWYC educational events.
AIDWYC case review lawyers do not get paid for their work. AIDWYC is a non-profit organization that does not have sufficient resources to compensate its legal professionals. If an opportunity presents itself where Legal Aid can be obtained for a case, Case Reviewers are encouraged to apply for Legal Aid to off-set the costs of the case.
This type of new and significant evidence is a mandatory requirement of submitting a s. 696.1 application, also known as an application for ministerial review. A ministerial review application is an extraordinary remedy that is beyond the usual methods of appeal. The purpose of the application is to request that the Minister of Justice review the case on the grounds that the case is a miscarriage of justice.