Conviction: The AIDWYC Blog

26 01, 2015

Innocent Until Proven Guilty or Guilty Until Printed Innocent?

By |January 26th, 2015|Uncategorized|Comments Off|

Author: Stephen Flanagan, Probono Students of Canada (PBSC) Law Student, Dalhousie University

The Presumption of Innocence

Under section 11(d) of the Canadian Charter of Rights and Freedoms, any person detained and/or charged with an offence has “the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”[1] With this in mind, nobody should be labelled a criminal until they’ve had their day in court, regardless of whether they’ve been accused of shoplifting, sexual assault or first-degree murder. Section 11(d) is an absolutely essential part of the Canadian constitution and of the Canadian criminal justice system. There is, perhaps, no greater injustice than deeming someone guilty before they’ve had a fair trial and this provision offers constitutional protection against exactly that.

The Charter, unfortunately, does not apply to public opinion. Convictions are often entered, in the public eye, when the initial charges are made public, or even when someone is named as a person of interest. For evidence of this, read the comments section of any online newspaper under an article speaking about a laid charge, or even where evidence has implicated someone in a crime. For example, in a controversial missing persons case in Alberta, the now accused – Douglas Garland – has received a tremendous amount of negative attention.

Garland has now been formally charged, but initially he was named only as a person of interest. At that time, he was detained and later released. The Calgary Sun posted an article on its website explaining his detainment and release.[2] In response to his constitutional release – despite the fact the authorities had clearly concluded that there was not enough evidence to detain him – [...]

13 01, 2015

Putting Limitations upon the Use of Mr. Big Stings: Hart and Mack

By |January 13th, 2015|Uncategorized|Comments Off|

Author: Michael Macrae, Law Student, University of Toronto

Even as the Supreme Court of Canada (SCC) ruled against excessive reliance upon evidence gathered through Mr. Big stings in R v Hart, it was considering the same controversial tactic in R v Mack. In the Hart case the SCC ruled that the evidence gathered through the Mr. Big sting was inadmissible, yet the opposite conclusion was reached in Mack. This should not be interpreted as revealing that the Supreme Court is completely comfortable with Mr. Big stings when they are used in less objectionable circumstances than those in Hart (where a lonely, bankrupt, psychologically vulnerable man was exploited by police.)[1] Rather, the Supreme Court’s rulings in both cases recognized and restrained ways in which Mr. Big stings are controversial while implicitly acknowledging the usefulness of the technique, leaving room for its employment in controlled circumstances.

Before any legal analysis, a summary of the facts in Mack is necessary. In 2002, police in Alberta received a tip from a man that Dax Richard Mack, his friend, had told him that he had murdering Robert Levoir, who had disappeared about a month ago.[2] After around a year in which no significant information was uncovered, police, pretending to be members of a powerful gang with a history of beating up rivals,[3] persuaded the accused to work for them in a variety of jobs,[4] including what was represented as smuggling money[5] and stealing a car from someone allegedly in debt to the gang.[6] After a couple of months working in this capacity, Mack met the alleged gang leader, who told him that he could remain a low-level member of the gang or, by confessing to the murder of Levoir, he could [...]

27 12, 2014

In Memory of Edward Greenspan

By |December 27th, 2014|Uncategorized|Comments Off|

Photo: By martinscriminalcode (Own work) [CC BY-SA 3.0], via Wikimedia Commons

AIDWYC is deeply saddened at the untimely passing of Edward Greenspan on December 24, 2014. Although Eddie will be most remembered by many Canadians as one of the most respected and highly skilled criminal defence lawyers in the history of our country, in the eyes of AIDWYC, he was first and foremost a humanitarian. He would not and could not tolerate injustice of any kind.

Eddie gave his time selflessly to support AIDWYC’s work and other causes he believed in. He was an ardent spokesperson for fair trial rights and he argued vehemently against police misconduct. Eddie fought tirelessly against the reinstatement of capital punishment. He was the most high profile and active Canadian opponent. He traveled across the country at his own expense and, on two occasions, led symposiums on the death penalty organized by AIDWYC. It was a remarkable task which he took as a mission. Hindsight has proven his mission all the more honourable as we now know how many wrongful convictions were uncovered in the years since it was undertaken.

Eddie was a remarkable human being, teacher and advocate. He was bold, independent and strong. He fought unflaggingly for each of his clients.

Eddie leaves behind a legacy that his family, and Canadians as a whole, can be inspired by and proud of. Brian Greenspan, like his brother Eddie, is a prominent and very well respected Canadian lawyer. Brian and his firm, Greenspan, Humphrey Lavine, are strong supporters of AIDWYC and Brian is a member of the AIDWYC Foundation Board. We at AIDWYC extend our heartfelt condolences to Brian and all of Eddie’s family for their loss. Eddie was a true Canadian hero [...]

28 11, 2014

Leighton Hay Released from Court after 12½ Years in Jail for a Murder he did not Commit

By |November 28th, 2014|Uncategorized|Comments Off|

 

Leighton Hay hugs Phil Campbell while James Lockyer and others look on (Photo: Jesse Johnston)

Updated: November 28, 2014, 3:30 p.m. EST

On Friday, November 28, 2014, Leighton Hay was released after 12 ½ years in prison. He appeared in the Superior Court of Justice at 361 University Avenue, Toronto before the Honourable Justice J. McMahon this morning. The Crown announced the termination of his prosecution for first degree murder.
Mr. Hay was adopted by the Association in Defence of the Wrongly Convicted (AIDWYC) on August 16, 2011 as a case of factual innocence.
The Homicide

On the night of Saturday, July 6, 2002, Collin Moore and his brother, Roger Moore, were hosting an event at a nightclub in Etobicoke. At 1:13 a.m., two men armed with handguns stormed into the nightclub. They shot Collin who died of his injuries; Roger was grazed on the forehead by one of the shots.

One of the gunmen, Gary Eunick, was recognized by some of those at the party. As Eunick fled, a witness got the licence plate of his car. He had borrowed Leighton Hay’s mother’s car. The police quickly traced the car and by 1:46 a.m. police were at the Hay home where the mother’s car was already back in the driveway.

After watching the house all night, the police entered the Hay home at 11:58 a.m. and arrested Gary Eunick who was inside for first degree murder. Leighton Hay was also there and was arrested too.
The Prosecution Case
The Crown’s case against Leighton Hay depended on witnesses from the nightclub who described the second gunman as having “two inch picky dreads”. One witness was shown a photo line-up which included Leighton and pointed to his photograph saying that he [...]

25 11, 2014

After 28 years Frank Ostrowski gets the chance to prove he was wrongly convicted

By |November 25th, 2014|Uncategorized|Comments Off|

The Association in Defence of the Wrongly Convicted (AIDWYC) announces the referral of Frank Ostrowski’s murder case back to the Manitoba Court of Appeal, 28 years after his conviction for the first degree murder of Robert Nieman.

Today the Minister of Justice, the Honourable Peter MacKay, announced that he was sending Frank Ostrowski’s murder conviction back to the Manitoba Court of Appeal for it to be re-considered by the Court.

AIDWYC lawyers James Lockyer and Alan Libman will be appearing today before the Manitoba Court of Appeal at 10:00 a.m. to ask that Mr. Ostrowski be allowed to remain on bail until the Court of Appeal hears his appeal.
A History of Mr. Ostrowski’s Prosecution
On September 24, 1986 two men broke into Mr. Nieman’s residence in Winnipeg, laid in wait for him, and shot him several times when he came home. He died of his wounds a month later.

Mr. Ostrowski was accused of having hired the two men who committed the murder based on the evidence of a highly questionable witness named Matthew Lovelace. Ostrowski was convicted in May, 1987 after a trial before Mr. Justice Darichuk and a jury in the Court of Queen’s Bench in Winnipeg.

In February, 1989, the Manitoba Court of Appeal dismissed his appeal and in June, 1990, the Supreme Court of Canada dismissed his further appeal.

Since then, Mr. Ostroswki has tried every avenue possible to challenge his conviction. He managed to convince the Winnipeg Police Department to review his case in 1994 but to no avail. He went to private investigators and lawyers for help.

Then, in 2002, he came to AIDWYC and asked us to help him with his case.

In 2005, we discovered that the Crown had made a deal [...]

24 11, 2014

Glen Assoun Released from Prison Pending Federal Review of 1999 Murder Conviction

By |November 24th, 2014|Uncategorized|Comments Off|

Glen Assoun hugs his family after being granted bail today in Halifax. Photo: Danielle Levesque

 

November 24, 2014

A significant legal and humanitarian development has taken place today in a case where the Association in Defence of the Wrongly Convicted (AIDWYC) believes a terrible miscarriage of justice occurred.

Glen Assoun, a 59-year-old Nova Scotia man, was granted bail pending the results of a continuing investigation by a federal Department of Justice review body into serious questions surrounding his conviction.

Mr. Assoun has spent over 16 years in prison for the murder of his girlfriend, Brenda Way – a murder AIDWYC firmly believes he did not commit.

Today’s bail decision was made in Halifax by the Honourable Mr. Justice James Chipman. It followed a proceeding attended by AIDWYC counsel and the Crown.

His Lordship ruled that Mr. Assoun should be released under carefully crafted conditions to reside with family members pending the outcome of the federal investigation.

While several obstacles remain before Mr. Assoun can be exonerated and his name cleared, his release on bail holds great symbolic and practical significance in the battle to restore his innocence.

It means that sufficient doubt has been raised about Mr. Assoun’s conviction to warrant his conditional freedom while the court system delves back into the evidence in his case.

AIDWYC is very pleased with the decision and believes the federal review will bear out the association’s rigorous assessment of the case over the course of several years.

Mr. Assoun would become the 19th person to be exonerated since AIDWYC came into existence in 1993.

Since the day he was arrested, Mr. Assoun has protested his innocence.

“I never unpacked my suitcase in prison because I knew I was innocent,” Mr. Assoun said. “I am looking forward to finally seeing [...]

23 11, 2014

The Psychology of Judicial Instructions: Why a good memory can have bad consequences

By |November 23rd, 2014|Uncategorized|Comments Off|

Author: Tyler King
One cannot unring a bell; after the thrust of a saber, it is difficult to say forget the wound; and finally, if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.

(Dunn v. United States, 1962, p. 886)
Have you ever watched a horror movie with a particularly disturbing scene that you couldn’t get out of your head? You tried and tried to stop thinking about it but the imagery just kept lingering, for days. For weeks? And the more you tried not to think about that scene the more powerful it became? If this sounds familiar you are not alone.

This psychological phenomenon relates to theories of “thought suppression” (Wenzlaff and Wegner, 2000). It is widely accepted among the scientific community that actively trying to suppress or ‘forget’ a specific thought can actually lead to a more powerful and reoccurring remembrance. This is sometimes referred to as the “rebound effect” (Wenzlaff and Wegner, 2000; Steblay et al, 2006). It has been argued that we are prone to subconsciously rebel when we are told what we can and cannot think about (Kassin and Sommer, 1997; Isbell, Tyler, and DeLorenzo, 2007). Therefore, when we are instructed or otherwise inclined to not think about something we may be more likely to do the exact opposite (Wenzlaff and Wegner, 2000).

Now imagine you are a juror on a high-profile case. You just heard some incredible testimony and were presented with evidence that makes you strongly believe the defendant is guilty. The judge then decides that the testimony and the evidence are inadmissible and must be stricken from the record. The judge proceeds to instruct you and the rest of [...]

12 11, 2014

When Justice Fails: Charter violations, wrongful convictions, and compensation

By |November 12th, 2014|Uncategorized|Comments Off|

 

Flawed eyewitness identification evidence contributed to Ivan Henry’s wrongful conviction. Six of the witnesses who identified Henry did so when he was in a headlock, held by three uniformed police officers.

Photo: Toronto Star

Ivan Henry spent nearly 27 years in a federal prison for someone else’s crimes. In 2010, the British Columbia Court of Appeal acquitted him on all counts. The Court held that “the verdict on each count was not one that a properly instructed jury acting judicially could reasonably have rendered.”[1] Mr. Henry is among the longest serving wrongly convicted in Canadian history.

Mr. Henry is now a free man, and he is fighting for compensation for his wrongful conviction.

The “rip-off rapist” and Ivan Henry’s wrongful conviction

Between November 25, 1980 and June 8, 1982, a serial rapist terrorized the people of Vancouver. During that period, police received 20 complaints of sexual assaults which they concluded were the fault of one man: the “rip-off rapist”.

The perpetrator would break into a ground-floor apartment at night, wake up the female occupant, tell her that he was ripped off by someone who lived there, and then sexually assault her at knifepoint. He would shroud his face in a piece of clothing and cover his victim’s head with a pillowcase. These attacks were concentrated in four Vancouver neighbourhoods, and the perpetrator’s modus operandi (MO) was distinct enough for the police to link the crimes together.

Mr. Henry was charged with these offences, but the Vancouver police had another suspect: D.M. D.M. lived on the same city block as Mr. Henry, at the centre of many of the attacks. D.M. had been under police surveillance as a suspect since the spring of 1981. He had a history of night-time sexual predatory [...]

31 10, 2014

Is a Right Really a Right When You Have to Ask for it…in a Foreign Language?

By |October 31st, 2014|Uncategorized|Comments Off|

Author: Ashley Bridgeman, Law Student, Osgoode Hall

Imagine for a second that you have been charged with a crime. Any crime, really. Imagine you are in a court room, trying desperately to prove your innocence. You are likely scared, worried, and unsure. Now imagine that you don’t understand the language being spoken in the courtroom. Maybe you understand a few words, maybe you don’t understand anything, but certainly you don’t understand enough to know what’s going on, or how to help yourself.

While organizations like AIDWYC provide assistance to those who have been wrongly convicted, unfortunately not every miscarriage of justice can be rectified. That is why prevention of wrongful convictions is so important. When people talk about the factors that contribute to a wrongful conviction, they often talk about mistaken eyewitness ID evidence, bad forensic science, etc. but another factor that may contribute to wrongful convictions is bad, or non-existent, translation.

In a report to Parliament last November, Canada’s correctional investigator Howard Sapers drew attention to the disproportionate representation of minorities in prison in comparison to their share of the general population, stating that it is a persistent and growing problem.[1] The report found that one in four inmates is foreign-born, and that Aboriginal people account for nearly one-quarter of all prisoners.   While translation in proceedings is not addressed in the report, Sapers does point out that there should be an increase of staff in prisons who speak languages other than English and French. It is clear that if multiple languages are required in prisons, they are also needed in courtrooms. It is essential that language issues be dealt with appropriately in order to ensure fair trials.

Fortunately, court interpreters are provided where requested in all criminal [...]

15 10, 2014

It’s a Wrap: Wrongful Conviction Day 2014

By |October 15th, 2014|Uncategorized|Comments Off|

Special Thanks to Monica Neacsu for compiling this post!

The Association in Defence of the Wrongly Convicted (AIDWYC) launched the first International Wrongful Conviction Day on Thursday October 2nd, 2014. The day was a great success as we raised public awareness of wrongful convictions all around the world and acknowledged those who have been exonerated as well as those who continue to seek justice. The contributions and support from Innocence Projects, schools, not-for-profit organizations as well as the extensive media coverage this day of recognition garnered can be seen below. Coverage of AIDWYC’s events at the Law Society will be posted here soon!
Events
California Innocence Project

 The California Innocence Project (CIP) hosted Wrongful Conviction Day at California Western School of Law.  CIP Director Justin Brooks spoke about ethical implications in post-conviction cases.  Following the lecture, Brooks led a round table discussion with a distinguished panel of exonerees, including: Herman Atkins, Reggie Cole, Uriah Courtney, and Nick Yarris.  The exonerees fielded questions from the crowd and talked about the their experiences in the criminal justice system.  Combined, the exonerees spent more than 60 years in prison.

(Left – Right): Herman Atkins, Nick Yarris, Professor Justin Brooks, Uriah Courtney

 

Michigan Innocence Clinic

Exoneree David Gavitt spoke to students at the University of Michigan Law School on Friday, Oct. 3, as part of an event held to recognize the first International Wrongful Conviction Day. David spent 27 years in prison after being wrongfully convicted of felony murder in relation to the house fire in which his wife and two daughters were killed. His conviction was based entirely on what isnow known to have been junk science about fire behavior. He was exonerated through the efforts of the Michigan Innocence [...]