Conviction: The AIDWYC Blog

25 02, 2015

When Will the Law Catch Up with Psychology? Here’s some of what everyone working in the justice system should know about false confessions!

By |February 25th, 2015|Uncategorized|Comments Off|

In 2014, in R v Hart,the Supreme Court of Canada created a new common law rule in acknowledgement of the fact that certain undercover operations – known as Mr. Big Stings – have the potential to elicit false confessions and, in turn, contribute to wrongful convictions. Years before that decision, however, Canadian lawyers and psychologists warned of the risks of the operations. In fact, in 2009 – after spending over a decade in prison – AIDWYC client Kyle Unger was exonerated after his confession to “Mr. Big” was shown to be false.

In a similar vein, psychologists have been denouncing the psychologically coercive Reid interrogation technique for decades. AIDWYC is very pleased to be working with the Niagara Regional Police Service as they train their interrogators in PEACE – a less manipulative interview technique – however many police forces across the country continue to use the Reid technique or elements of it.

While we don’t know when the law will catch up with what psychologists have known for years, we suggest all those working in the criminal justice system read the following articles so that we can work together to prevent wrongful convictions.

If you want to learn about the latest developments in detention, arrest, interviewing and interrogation, please click here.

NOTE: Special thanks to Professor Tim Moore Chair of the Psychology Department, Glendon, York University for providing the following articles.

Moore, T. E., Copeland, P., & Schuller, R. (2009). Deceit, betrayal and the search for truth: Legal and psychological perspectives on the ‘Mr Big’ strategy. Criminal Law Quarterly, 55(3), 349 – 405.

Moore, T. E., & Fitzsimmons, C. L. (2011). Justice Imperiled: False Confessions & the Reid technique. Criminal Law Quarterly, 57(4), 509-542.

Moore, T. E., & Keenan, K. (2013). [...]

25 02, 2015

Flip Your Wig for Justice 2015

By |February 25th, 2015|Uncategorized|Comments Off|

The AIDWYC Team is grateful to everyone who has supported Flip Your Wig for Justice thus far. If you would still like to donate, please click here.

For more information about the campaign, please visit the website http://www.flipyourwigforjustice.ca/

Still wondering WHY we’re flipping our wigs? Please watch a short video featuring AIDWYC Client Romeo Phillion on YouTube by clicking here!

24 02, 2015

Is That Even Legal?!? Entrapment and Mr. Big

By |February 24th, 2015|Uncategorized|Comments Off|

Author: Michael Macrae, University of Toronto, Faculty of Law

Often in the course of presentations to groups about situations in which Canadians have been wrongly convicted, lawyers working for AIDWYC have been asked something along the lines of “Is a Mr. Big Sting not entrapment?” This question doubtlessly arises based upon the presupposition that entrapment is incapable, in law, of providing evidence that can convict a person. It is true that this presupposition contains a kernel of truth; demonstration that an accused party was entrapped can secure relief from criminal sanctions. Yet entrapment is more complicated and controversial than may first be thought, and its protection against criminal consequences is even more so. Applying the complexity of modern entrapment doctrines to the Mr. Big sting reveals two truths:

Mr. Big stings are not entrapment.

Even if they were entrapment, they would be justified forms of entrapment.

Defining terms makes the issue clearer.

Entrapment occurs when a police officer encourages a person to commit a crime under the pretence that the police officer (who is a witness to the crime) is not a police officer; upon witnessing the crime, the police officer arrests the person and charges him or her with the crime just committed.[1]

Mr. Big stings occur when police are dealing with those whom they suspect of having committed serious crimes but lack sufficient evidence for a credible arrest warrant. In those circumstances, rather than relying upon more effective detective work or waiting for future developments that may justify arrest, police impersonate hardened criminals and lure their suspect into what he or she believes to be a dangerous gang. In order to enhance the realism, accused are urged to commit what they are told are illegal acts, for which [...]

19 02, 2015

My Experience as an AIDWYC Volunteer and a Law Student at Glen Assoun’s Bail Hearing

By |February 19th, 2015|Uncategorized|Comments Off|

Glen Assoun – an innocent man – stands with his arm around a grandson he had not met prior to the day this photograph was taken – his first day out of prison in over 16 years – as AIDWYC Board Member and Counsel Sean MacDonald looks on. (Photo: Danielle Levesque, Dalhousie Law)

Author: Steve Flanagan, Law Student, Dalhousie University

As an AIDWYC volunteer and a law student, I’ve read hundreds of criminal cases, many of which reveal the horrifying details of brutal crimes such as robbery, sexual assault and murder. In trying to analyze and understand the developing law in each of these cases, it has sometimes been easy to overlook the fact that each case tells a story of a significant, life-changing situation in the lives of the parties involved. An even more easily overlooked aspect of these crimes is the impact they have on the parties’ friends and families. Although any particular crime may only directly involve one perpetrator and one victim, it often happens that dozens of lives are impacted.

This is undoubtedly true in the case of a valid conviction, but in the event that a conviction is brought into question or shown to be wrongful, each of these concerns is amplified. This was the atmosphere I found myself in the midst of as I sat in the Nova Scotia Supreme Court on the morning of November 24th, 2014. Glen Assoun was convicted and imprisoned in 1999 for the 1995 murder of Brenda Way in Dartmouth, Nova Scotia. In 1999 he was handed a life sentence with no eligibility of parole for 18.5 years.[1] As a result of AIDWYC’s work after taking on Glen’s case, the Federal Department of Justice recently acknowledged [...]

17 02, 2015

Khela and Smith: A Dangerous Step in Ensuring Responsible Jury Instructions

By |February 17th, 2015|Uncategorized|Comments Off|

Editor’s Note: A past AIDWYC blog article questioned whether or not judges’ instructions to juries are effective tools in the fight against wrongful convictions. Leaving that debate aside (for now!) this week’s article questions whether the efficacy of a specific type of judicial warning – the Vetrovec warning – has been eroded through the jurisprudence of the same court who developed it. What do you think? Tweet us: @AIDWYC

Author: Lewis Fainer, Law Student, University of Toronto.

Prior to a jury adjudicating an accused’s culpability, its members receive a series of instructions from the judge presiding over the trial. Some jury instructions aim to ensure that juries do not consider evidence which may prejudice them against an accused. The Vetrovec warning has this goal in mind. It requires that judges warn jurors about the dangers of accepting testimony offered by unsavoury witnesses. These are witnesses whose credibility is questionable, usually because of their relationship to the accused or their history with the criminal justice system. Two 2009 decisions by the Supreme Court of Canada undermine the likelihood that future Vetrovec warnings will effectively warn jurors about the danger of accepting certain evidence.

In R v Khela[1] and R v Smith,[2] the Supreme Court granted trial judges increased flexibility in determining the form and content of Vetrovec warnings given during jury instructions. This expanded latitude has the potential to increase juries’ prejudice against the accused and generate wrongful convictions.
Foundational Principles of the Vetrovec warning
In Vetrovec v The Queen, Dickson J described the Vetrovec warning as, “a clear and sharp warning to attract the jury’s attention to the risks of adopting, without more, the evidence of [an unsavoury] witness.”[3] The court added that when deciding whether to [...]

11 02, 2015

Why We Flip Our Wigs: The State of Access to Justice in Canada

By |February 11th, 2015|Uncategorized|Comments Off|

AIDWYC Client Romeo Phillion spent 31 years in prison for a crime he did not commit. He is now an Ambassador for Flip Your Wig for Justice, a collaborative campaign raising funds and awareness for access to justice. Please visit http://www.flipyourwigforjustice.ca/ for more information and to sponsor the AIDWYC team as we flip our wigs, please click here.

Author: Danielle Levesque, PBSC Student, Dalhousie Law

Whether it’s Tom Cruise in a Few Good Men, or Julianna Margulies in The Good Wife, we watch fearless television characters with admiration as they eloquently navigate the courtroom. They craft clever arguments, they exude self-assurance, and ultimately, they win their cases. If you’re one of the twelve million Canadians who will encounter the legal system within the next three years, you may be inspired to seize your day in court independent of legal representation. How difficult could it really be to stand up in court and tell the judge and jury how you have been wronged? You can speak passionately about your case and you don’t need to pay a lawyer to do it for you.

The illusion provided by the drama of television is that the legal system is a straightforward process. But when the cameras turn off, it becomes time to research evidentiary rules, submit technical motions, and to complete other civil and criminal procedures laid out in thick Codes, Acts, and Regulations. Directly on the Government of Canada’s Ministry of Justice website it breaks the news, “The procedure in a civil case can be complex.”[1] The reality is that to best navigate the judicial system, it’s recommended that you study law for three years, followed by a year of articling, and the completion of an intensive bar admission [...]

6 02, 2015

Fetal Alcohol Spectrum Disorder (FASD) & Wrongful Admissions of Guilt

By |February 6th, 2015|Uncategorized|Comments Off|

Editor’s Note: The Fetal Alcohol Spectrum Disorder (FASD) & Justice website is a very useful resource, designed for justice system professionals and others who want to understand more about FASD. It provides information and resources about Fetal Alcohol Spectrum Disorder, including background information, case law, legal resources and strategies for effective intervention. Please visit the website for more information on this important topic.

Author: Caycie Soke, Law Student, University of Manitoba, Robson Hall

Why Would An Innocent Person Plead Guilty?

Wrongful convictions happen for many reasons: misleading evidence, unreliable witnesses, biased juries to name a few. Many of the factors we usually associate with wrongful convictions occur during the trial stage of a case, and ultimately lead a jury or judge to find an accused guilty. However, events that happen before a case ever goes to trial may also lead to a wrongful conviction. A false admission of guilt is one such example.

It is difficult to imagine why someone would plead guilty if they are innocent. However there are many factors that may tempt an accused to falsely plead guilty. Some of these factors may be built into the pre-trial process, like difficulty in finding a lawyer or obtaining adequate legal information. Other factors may be cultural or social in nature, like a language barrier that prevents an accused from properly understanding their legal rights.

An accused may wrongfully admit guilt because they misunderstand why they are being charged, what they are being charged with, or what the consequences or alternatives are to an admission. This confusion may occur in their initial discussions with a lawyer or police officer and affect the outcome of their case.

Fetal Alcohol Spectrum Disorder [FASD] is a cognitive (intellectual) disorder that may [...]

1 02, 2015

Shaping Eyewitness and Alibi Testimony with Coercive Interview Practices

By |February 1st, 2015|Uncategorized|Comments Off|

 

There is a growing realization in Canada that the “Reid Technique” can and has resulted in unreliable confessions from suspects subjected to this psychologically manipulative interrogation tactic. In this new article from Dr. Timothy E. Moore, Dr. Brian Cutler and Criminal Defence Lawyer David Shulman, use of elements of the Reid Technique on eyewitnesses and alibi witnesses is discussed. Click Here to download the PDF.

This article was originally published in The Champion the Journal of the American National Association of Criminal Defence Lawyers (www.nacdl.org)

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 [...]