Conviction: The AIDWYC Blog

28 01, 2016

Rest Easy? That advice is a little nutty, Professor!

By |January 28th, 2016|Uncategorized|Comments Off on Rest Easy? That advice is a little nutty, Professor!|

Amanda Carling, AIDWYC Legal Education Counsel

It has been just over a month since Netflix released Making a Murderer and it has been devoured by people around the world. As an organization dedicated to preventing wrongful convictions and exonerating the innocent, AIDWYC is pleased with the attention this series has brought to our work. On the other hand, we fear that Steven Avery’s case and the buzz it has created could do more harm than good. Case in point? The op-ed from Professor Michael Arntfield titled Rest easy: an unfair trial like Steve Avery’s won’t happen in Canada, published on January 13 in the Globe and Mail, Debates section.

While it is important for the public to understand that most police officers and prosecutors are not out to frame the wrong guy, Professor Arntfield’s unduly rosy outlook flies in the face of what those in the field have seen in actual wrongful conviction cases across Canada – past and present. AIDWYC has exonerated 20 innocent people who together spent almost 200 years in prison. We are currently reviewing upwards of 100 cases. It is with this experience and expertise that we respectfully disagree with Professor Arntfield’s conclusion that a highly questionable conviction like Avery’s is unlikely to happen in present-day Canada.

Professor Arntfield would have Canadians believe that tunnel vision akin to that exhibited in Avery’s case is, in Canada, a thing of the past – a problem solved by virtue of “binding case law” and “official recommendations arising as a result of formal judicial inquiries.” While it is true many judges have identified tunnel vision in cases before them, and have encouraged efforts to avoid it, the thing about tunnel vision is you can’t ‘make it [...]

12 01, 2016

Office of the Independent Police Review Director (OIPRD) Review of the Eric “Action” Morgan Case

By |January 12th, 2016|Uncategorized|Comments Off on Office of the Independent Police Review Director (OIPRD) Review of the Eric “Action” Morgan Case|

Late last year the Office of the Independent Police Review Director (OIPRD) decided it would not lay charges against the Peel Regional Police Detectives involved in Eric “Action” Morgan’s case. Morgan spent more than three years in pretrial custody before he was acquitted of second degree murder. The fifth estate’s program on the Morgan case can be watched here and for a detailed review of how witness statements can be shaped by coercive interview practices, click here.

While the reasons of the OIPRD are not public, Wendy Gillis of the Toronto Star covered the story here. According to Gillis, the OIPRD refused to charge the officers who used what Superior Court Justice Fletcher Dawson concluded were “improper threats and overly aggressive and abusive tactics” because the tactics, according to the OIPRD, “were consistent with [the Peel Detectives’] training.”

To our knowledge, there are now many police services across Canada (including the Peel Regional Police Service!) who are training their investigators to conduct interviews that are less coercive than those wherein the Reid technique is employed, as it was in the Morgan case. (For past blog posts on the Reid technique, click here.) In fact, AIDWYC is very proud to have formed a partnership with the Niagara Regional Police Service wherein many of their officers are receiving education not only in an alternative interview model but also about wrongful convictions. What’s troubling is the fact that some Canadian services continue to use elements of the Reid technique (although increasingly it seems police are moving away from calling their interview method “Reid’s” while continuing to employ the minimization and maximization techniques that make Reid’s likely to coerce an unreliable statement and, at the extreme, a false confession).

It is [...]

22 12, 2015

Dangers for Wrongful Convictions for Non-English/French Speaking Accused

By |December 22nd, 2015|Uncategorized|Comments Off on Dangers for Wrongful Convictions for Non-English/French Speaking Accused|

Note: On October 19, 2015, AIDWYC held a continuing professional development (CPD) lecture on this topic wherein Ms. Hilliard was one of the speakers (click here for more info). That event was video recorded and will be available to watch online soon.
Introduction
The Canadian Courts will provide an interpreter pursuant to section 14 of the Canadian Charter of Rights and Freedoms and section 650(1) of the Criminal Code of Canada to an accused who does not speak either of Canada’s official languages. The purpose of these sections is to ensure an accused is able to understand and participate in the court process. Interpreters, however, do not always place a non-English or French speaking accused person on an equal footing. Counsel representing accused persons who do not fluently speak an official language need to be mindful of the dangers for wrongful convictions, due to the language barrier. This article will review some of those dangers and make some recommendations for counsel to mitigate these risks.
Danger #1: Improper Interpretation
In 2009 the Ministry of the Attorney General overhauled the existing interpreter testing process following some strong criticism by the courts.1 The new testing model creates different levels of interpreters. An accredited interpreter scored 70% or higher on the new universal tests, a conditionally accredited interpreter scored 50% – 69%, an unaccredited interpreter received 50% or lower on the tests and, finally, non-accredited interpreters have not been tested.2 The testing model acknowledges that an accredited interpreter is not expected to translate with perfect accuracy, as the interpreter is only required to score 70% or higher on the accreditation test.

Criminal courts are very busy and often proceed at a fast pace. It is not uncommon for [...]

3 11, 2015

Rest in Peace Romeo

By |November 3rd, 2015|Uncategorized|Comments Off on Rest in Peace Romeo|

 

With regret and deep sadness, we are mourning the sudden passing of Romeo Phillion who spent 32 years imprisoned for a crime he did not commit.

Romeo, who was in failing health for many years, was admitted to hospital on Sunday, November 1st and passed away at approximately 9:25 a.m. on Monday, November 2.

We extend our heartfelt condolences to Romeo’s family, friends and supporters for their significant loss.

Romeo will never be forgotten for his fighting spirit, sense of humour, support of other wrongly convicted and for his boyish and captivating charm. He attended all AIDWYC functions despite having to use a scooter and having to carry oxygen with him. Romeo did what he could to draw attention to the devastation that a wrongful conviction imposes on the innocent individual and their family. We are extremely grateful to him for his commitment to make a difference regardless of his personal challenges and losses.
Services are as follows:
Wednesday, November 11, 2015

Visitation, Celebration of Life and Reception
Eco life Celebration Centre: Magnolia Chapel, St. John’s Dixie Cemetery and Crematorium, 737 Dundas St. East, Mississauga, Ontario, Canada, L4Y2B5
Visitation: 9:30-10:30 a.m.
Celebrating Romeo: 10:45-11:30 a.m.
Reception 11:30 a.m. – 1:00 p.m.
Burial
Cemetery, 1786 Bristol Road West (Streetsville), Mississauga, Ontario, Canada

Burial: 1:30 – 2:00 p.m.
For more information, click here.

1 10, 2015

AIDWYC Press Release: Wrongful Conviction Day 2015

By |October 1st, 2015|Uncategorized|Comments Off on AIDWYC Press Release: Wrongful Conviction Day 2015|

Former Canadian Football League (CFL) linebacker Orlando Bowen, a victim of police brutality and drug planting, will give the keynote address. He will be available for interviews after 6:30 p.m.

New York Exoneree, David McCallum will present the first annual Rubin Hurricane Carter Champion of Justice Award at the Reception.

The Association in Defence of the Wrongly Convicted (AIDWYC) is hosting events in recognition of the second International Wrongful Conviction Day, October 2, 2015. The purpose of International Wrongful Conviction Day is to bring awareness to the need to prevent and remedy wrongful convictions around the world.

Media are encouraged to cover Wrongful Conviction Day. AIDWYC’s pro bono lawyers, Board Members and several Exonerees are available for interviews at or before the following events:

Continuing Professional Development Lecture: Wrongful Convictions – Who is at Risk and Why?

Law Society of Upper Canada, Lamont Learning Centre, 3:00 – 5:00 p.m.

Faculty:

Jonathan Rudin – Program Director, Aboriginal Legal Services of Toronto
Kent Roach – Professor of Law and Prichard-Wilson Chair of Law and Public Policy, University of Toronto Faculty of Law

Reception: Marginalized Communities and Wrongful Convictions
Law Society of Upper Canada, Convocation Hall, 5:00 – 7:00 p.m.

Special Guests:

Orlando Bowen former Canadian Football League (CFL) linebacker, a victim of police brutality and drug planting, will give the keynote address. Mr. Bowen will speak to the devastation and horrifying consequences of a false accusation.
David McCallum exonerated in 2014 due in large part to Rubin Hurricane Carter’s advocacy. Mr. McCallum will present the first annual Rubin Hurricane Carter Champion of Justice Award to Dr. Carter posthumously.
John Artis Exoneree, co-accused and close friend of Rubin Hurricane Carter, will accept the award on Dr. Carter’s behalf.
John Honderich Chair of Torstar Corporation, will present [...]

26 08, 2015

Motherisk: Total and Unquestioned Reliance on Science with Dire Consequences

By |August 26th, 2015|Uncategorized|Comments Off on Motherisk: Total and Unquestioned Reliance on Science with Dire Consequences|

Note: In April 2015 AIDWYC wrote to Ms Linda Rothstein, Lead Counsel to the Independent Reviewer of the Motherisk Hair Analysis Independent Review. Read our submissions here.

Author: Pamela Stephenson Welch H.B.Sc, Osgoode Hall Law School Student
 An innocent person was convicted of a heinous crime he did not commit. Science helped convict him.
– Justice Fred Kaufman (Retired Quebec Appeal Court Justice)[1]

The words of Justice Fred Kaufman, written in the wake of Guy Paul Morin’s wrongful conviction and exoneration, ring true for the countless men and women who have been confined to prison on the basis of science. They too ring true for the men and women whose lives have been impacted by the unquestioned reliance on the science behind the Motherisk Program.

Motherisk is a program that has been run out of Sick Kids Hospital for many years. Outside of its research projects, the focus of Motherisk was to test hair for drug and alcohol. The results of those analyses have been used as evidence in child protection and criminal cases in at least five provinces and one territory, including Ontario.[2]

What should have been a cause of concern is the fact that Motherisk is an accredited clinical lab and NOT a forensic lab.[3] What this means, is that Motherisk was not subjected to vigorous requirements and oversight, an extra precaution that would have been able to detect the faulty science behind the program.

From at least 2005 to 2010, Motherisk have been using a screening technique called enzyme-linked immunosorbent assay (ELISA) in order to test hair for cocaine.[4] This was done, even though the lab had stated that it had switched to a gold-standard technique for testing cocaine. The literature in the field of hair testing states [...]

19 08, 2015

The CSI Effect

By |August 19th, 2015|Uncategorized|Comments Off on The CSI Effect|

Do TV Shows like CSI: Miami contribute to miscarriages of justice? It’s a mystery even Horatio might need a bit of help solving. (Photo: IMDb)

Author: Michael Macrae, AIDWYC Summer Fellow and University of Toronto Law Student

Disclaimer: The author has never watched any episode of CSI or similar television. All of the information presented about these shows was derived from research by the author into the so-called CSI effect.

What is CSI?

CSI stands for Crime Scene Investigation, and refers to the specialized departments within modern police forces that collect and analyse remains from crime scenes. It is also the name for a television show that first aired in 2000. The show’s episodes are about the efforts of forensic scientists and technicians to solve crimes through analyzing what they find at crime scenes.[1] Common techniques resorted to include analysis of wounds, DNA analysis, and locating samples for in depth analysis.[2] Even though CSI is the most famous example of this genre, there have been and continue to be many derived shows following similar formats that are alleged to have similar effects upon jurors.[3]

What is the CSI Effect?

Broadly speaking, the CSI effect is the influence that watching CSI and similar shows has upon jurors at trials involving forensic evidence.[4]

What Forms Does the CSI Effect Take?

Given the wide variety of ways in which forensic evidence may be used and abused during trials, it is not surprising that the CSI effect can take many forms. In general, however, the CSI effect can be divided into two broad categories:

Leading Juries to Demand Forensic Evidence: In this situation, jurors will become very suspicious of claims advanced without forensic evidence to prove them, since they learn from television that forensic evidence is extremely [...]

9 07, 2015

Lies, Damned Lies, and Conviction: The Misuse and Misunderstanding of Statistical Evidence in R v Clark

By |July 9th, 2015|Uncategorized|Comments Off on Lies, Damned Lies, and Conviction: The Misuse and Misunderstanding of Statistical Evidence in R v Clark|

It is now well established that bad lawyering, bad expert evidence and bad police work can contribute to wrongful convictions but do innocent people spend time in prison owing to bad math?  Photo: Diacritica (Wikipedia)

Author: Claire Horsnell, Osgoode Hall Law Student

The truism, originally attributed to nineteenth-century British prime minister Benjamin Disraeli and popularized by Mark Twain, about there being three kinds of lies—“lies, damned lies, and statistics”—nods ironically toward the ways in which statistics can be manipulated to support a speaker’s point. However, for non-statisticians, the use of impressive-sounding numbers to support a contention can be very convincing; numbers, of course, are a fundamentally reliable way to quantify and understand the world around us. However, an error in calculation or misunderstanding—or worse, a deliberate misrepresentation of statistical evidence—in a courtroom can have dire consequences.

Probably the most notorious instance in which statistics played a part in a wrongful conviction is the British case of Sally Clark. Clark, a solicitor based in Manchester in the north of England, was not only a victim of an egregious miscarriage of justice, but also of tragic circumstances. Her first son, Christopher, was born healthy but passed away at the age of two-and-a-half months, after falling unconscious in the family home. Clark’s second son, Harry, was born two years later—and died at the age of eight weeks, after he was found unconscious, and attempts to resuscitate him failed.

Clark and her husband were arrested shortly afterward; the charges against Steve Clark were dropped, but Sally Clark faced two counts of murder. She denied the charges.

The most controversial element of Clark’s trial was the testimony by then eminent paediatrician Professor Sir Roy Meadow. Meadow testified on the stand that the chances of [...]

8 07, 2015

Holding Authorities Accountable – Deficiencies in the Canadian Regime

By |July 8th, 2015|Uncategorized|Comments Off on Holding Authorities Accountable – Deficiencies in the Canadian Regime|

Image: Former Crown Prosecutor George Dangerfield contributed to the wrongful convictions of AIDWYC Clients James Driskell, Kyle Unger and Thomas Sophonow. A fourth victim, Frank Ostrowski, awaits exoneration. To our knowledge, Dangerfield has never been held responsible for the role he played in these miscarriages of justice. For more information on Dangerfield’s role in these cases, please watch the fifth estate’s program, The Wrong Man.

Author: Lewis Fainer, University of Toronto Law Student

In an attempt to curb prosecutorial misconduct, a U.S. Ninth Circuit Court of Appeal panel is taking a bold approach. In Baca v Adams, a federal prosecutor lied under oath when he claimed that a key witness had not received benefits in exchange for his testimony.[1] In recommending that Deputy District Attorney Robert Spira face perjury charges,[2] the Ninth Circuit embarked into unchartered territory.

This attempt to expand the scope of prosecutorial liability presents an opportunity to assess the Canadian approach. Much like its American counterpart, the Canadian jurisprudence concerning police and prosecutorial accountability is significantly underdeveloped.

Canadian Jurisprudence

The Supreme Court of Canada (SCC) has held that the Crown has certain responsibilities during criminal trials and has recognized the existence of torts, which attempt to hold police and prosecutors accountable.

In R v Stinchcombe, the SCC held that Crown prosecutors have a duty to provide the defence with all evidence in their possession that could possibly be relevant to the case.[3] The requirement applies to every piece of evidence, regardless of whether or not the Crown intends to use it at trial.[4] Further, the potential value of the evidence to each side is irrelevant.[5]

While this requirement aims to ensure that criminal defendants are not unduly disadvantaged during criminal trials, the SCC has also recognized two torts [...]

22 06, 2015

John Salmon Returns to Court Today to Clear His Name

By |June 22nd, 2015|Uncategorized|Comments Off on John Salmon Returns to Court Today to Clear His Name|

 

MAN RETURNS TO COURT TODAY TO CLEAR HIS NAME FOR KILLING HIS WIFE 45 YEARS AFTER HIS ARREST AND CONVICTION FOR IT

Click here to download the press release

TORONTO: The Association in Defence of the Wrongly Convicted (AIDWYC) is pleased to announce that at 10:30 this morning, Monday, June 22, 2015, John Salmon will appear before three Judges of the Ontario Court of Appeal. He will be asking that his conviction for manslaughter in the 1970 death of Maxine Ditchfield should be quashed as a result of new medical evidence.

Mr. Salmon wants an acquittal. As the Crown has written to the Court of Appeal, “the new medical evidence removes any basis to suggest that Mr. Salmon was responsible for Maxine’s death.” The Crown is, therefore, also urging the court to acquit Mr. Salmon.

On Monday, September 21, 1970, Mr. Salmon’s common-law wife, Maxine Ditchfield, had fallen severely ill at their home in Woodstock, Ontario. Mr. Salmon called a doctor to the house who immediately arranged for an ambulance to take her to the Woodstock General Hospital. She died the next morning in hospital.

A local pathologist, Dr. Michael Dietrich, conducted an autopsy and concluded that she had died as a result of a severe beating. If this were so, Mr. Salmon was the only possible culprit.

Mr. Salmon was charged by the Woodstock police with non-capital murder on the same day that Ms. Ditchfield died. On November 5, 1971, after a trial before Mr. Justice Wright and a jury in Woodstock, Mr. Salmon was convicted of manslaughter. The jury found that he killed his wife by viciously beating her while in a drunken rage. He was sentenced to 10 years in the penitentiary.

Mr. Salmon’s appeal to the Ontario Court [...]

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