Conviction: The AIDWYC Blog

25 05, 2015

Line-ups, Show-ups, and Slip-ups! Oh My!

By |May 25th, 2015|Uncategorized|Comments Off on Line-ups, Show-ups, and Slip-ups! Oh My!|

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

Author: Michael Macrae, University of Toronto Law Student and 2015 AIDWYC Summer Fellow

Disclaimer: The author has neither used nor studied statistical mathematics in many years, and accordingly does not have in-depth understanding of the statistical segments of the articles cited. Those with deeper knowledge of statistics are encouraged to make their own investigations into the articles cited in this essay.

When reading the Supreme Court of Canada’s decision in Proulx v Quebec (Attorney General),[1] I was struck by how biased the criminal investigation against Benoît Proulx, which formed the basis for his civil lawsuit, seemed to be. Proulx was charged with murder after being identified by a witness; so far, reasonable enough.[2] However, the witness’s credibility was undermined by many factors, including that he was never asked to compare Proulx’s features to those of others; rather, the witness was shown only a series of photographs of Proulx and asked whether they portrayed the person whom he had seen.[3] Similarly, Ivan Henry was wrongfully convicted of terrible crimes and punished accordingly after he was identified in a police line-up that involved no others similar to him in appearance.[4] These situations, so strongly associated with miscarriages of justice, prompted me to research common flaws that afflict police line-ups before providing suggestions for how they might be fixed.

Before any further discussion, defining terms is helpful:
A false positive is when a party is incorrectly identified as the suspect.[5]
A false negative is when a suspect is not identified by a witness.[6]
Street identification is a police [...]

19 05, 2015

Who Should Pay? An overview of the tort of negligent investigation, and the effectiveness of civil liability claims for the wrongly convicted

By |May 19th, 2015|Uncategorized|Comments Off on Who Should Pay? An overview of the tort of negligent investigation, and the effectiveness of civil liability claims for the wrongly convicted|

Author: Paras Patel, University of Toronto Law Student

Introduction

Wrongly convicted individuals suffer countless losses, both social and economical. One study found numerous long-term effects persist even after the individual is exonerated, including loss of former identity, distance from family, anger and aggression towards society and the justice system, and a persistent feeling of ‘imprisonment’ from the stigma of their crime. [1] When we hear of someone being imprisoned for a crime they did not commit, our instinctive reaction often demands that reparations be made to these individuals, generally in the form of monetary damages. However this is far from a simple process, and with no statutory relief or legal entitlement for compensation, complainants are often required to turn to civil causes of action. [2][3] One research paper wrote, “the awarding of compensation is far from automatic and is a small consolation for the devastation to family, credibility, livelihood, and mental health engendered by a wrongful conviction.”[4]

Negligent investigation

Compensation through civil liability requires that the complainant begin a legal action against the state. This can be against the police officers, prosecutors, or defence attorneys that worked on their case. Numerous torts have been established to impose liability, including malicious prosecution, professional malpractice, and false imprisonment. [5][6] The most recent addition to this list has been negligent investigation, recognized in the 2007 Supreme Court of Canada decision Hill v. Hamilton-Wentworth Regional Police Services Board. While the complainant Hill was unsuccessful in his claim of negligent investigation, the court established that the police owed a duty of care to suspects being investigated, in the hopes of reducing wrongful convictions. [7]

With acknowledging this duty of care, the Court held that the appropriate standard for comparison was the reasonable police officer [...]

19 05, 2015

Who Should Pay? Suing Prosecutors for their Contributions to Wrongful Convictions

By |May 19th, 2015|Uncategorized|Comments Off on Who Should Pay? Suing Prosecutors for their Contributions to Wrongful Convictions|

Author: Michael Macrae, University of Toronto Law Student

Suppose that a situation arises in which an accused person is wrongly convicted of a crime in part due to the improper actions of a prosecutor. The prosecutor may, for instance, do this by concealing evidence that could acquit the accused[1] or by letting malice guide the decision to prosecute.[2] In order to contest the charges, the accused person must spend much time and money, and would be subject to considerable stress. Eventually, and it is hoped, before being convicted and imprisoned, the accused is vindicated, either through the prosecution declining to pursue charges or through courts finding that the case against the accused was not strong enough. The question then arises: may the accused sue the prosecutor in civil court for damages?

Although the preceding scenario may be rare, it is not unheard of in Canadian courts. Most notably, the Supreme Court of Canada has produced majority decisions permitting lawsuits for the tort of malicious prosecution (Proulx v Quebec (Attorney General))[3] and against prosecutors for concealing relevant evidence (Henry v British Columbia (Attorney General)).[4] To put it simply, therefore, the accused could sue the prosecutor in these aforementioned situations. Unfortunately, the complex elements of this answer deserve further explanation, which this blog post will seek to provide.

To democratic minds, the ability to hold governments and government agents accountable in courts of law is reasonable; otherwise, there would be nothing more than the good faith of officials to prevent unchecked despotism. However, in common law, this is a recent development; only in 1989 did the Supreme Court of Canada permit lawsuits against government prosecutors who were acting maliciously.[5] Before 1989, the possibility of suing state prosecutors depended on [...]

15 05, 2015

Pleading Guilty While Innocent: Alford Pleas, Canada, and Combatting Wrongful Convictions

By |May 15th, 2015|Uncategorized|Comments Off on Pleading Guilty While Innocent: Alford Pleas, Canada, and Combatting Wrongful Convictions|

Authors: Sydney Osmar & Olubukola Ipaye, Law Students at Osgoode Hall

An Alford Plea, also called a “no contest plea,” is a plea-bargaining tool used in the United States (US), where the accused simultaneously pleads guilty and maintains innocence.  This plea is used when the accused takes issue with the underlying facts but acknowledges that the evidence overwhelmingly indicates guilt.[1] The Alford Plea originated from the decision in North Carolina v Alford,[2] where the accused pleaded guilty but maintained his innocence so that he might avoid the death penalty.[3]  Alford later unsuccessfully appealed this decision on the basis that his plea was entered as a result of fear and coercion, but the US Supreme Court ruled that because he had had counsel, he had made an informed decision.[4]

The Alford Plea today is widely accepted within the United States except in the States of Indiana, Michigan and New Jersey; its use has also been rejected in US Military courts.[5]  In support of its rejection of the Alford Plea, the Supreme Court of Indiana stated that “…Judges may not accept guilty pleas accompanied by protestations of innocence…Alford pleas risk being unintelligent, involuntary, and inaccurate…Alford pleas undercut public respect for the justice system.”[6]

Although the Alford Plea is currently not in use in Canada, there have been discussions regarding its possible introduction. Josh Weinstein, writing for the Canadian Bar Association, suggests that adopting the Alford Plea into Canada would address what he identifies as a “void” in Canadian criminal law.[7]  Weinstein argues that the Alford Plea would be applicable to cases where both the defence and the Crown cannot resolve a case by way of a typical plea bargain, and would also benefit the accused by creating a plea bargain [...]

14 05, 2015

LAO signs funding agreement with AIDWYC

By |May 14th, 2015|Uncategorized|Comments Off on LAO signs funding agreement with AIDWYC|

Legal Aid Ontario (LAO) will provide the Association in Defence of the Wrongly Convicted (AIDWYC) with $100,000 over two years to provide post-conviction legal services and education. Over the years, LAO has both directly and indirectly supported the goals and aims of AIDWYC and the legal needs of its clients.  This pilot project will continue LAO’s relationship with AIDWYC by funding some of AIDWYC’s expenses related to reviewing claims of innocence, such as forensic expert opinions and private investigations. AIDWYC will continue to conduct case reviews on a pro bono basis, with the help of volunteer lawyers. Seventy per cent of the LAO funds will go towards the case review process and 30 per cent towards legal education about wrongful conviction. This agreement aims to recognize and correct wrongful convictions, by providing greater access to legal services after conviction.
QUOTES
This funding will finance case reviews of questionable convictions, so that wrongfully convicted people are identified more quickly and legal proceedings to secure their exonerations can move forward.” LAO’s core mandate is to provide access to justice. I am delighted with this important next step in supporting access to justice for the wrongfully convicted. – John McCamus, Chair Legal Aid Ontario
 
It’s a desperate situation to be in prison for a crime you did not commit and to have no one to turn to for help because you have no money.  Legal Aid Ontario has recognized the importance of helping individuals who find themselves in this situation obtain legal assistance from AIDWYC by contributing funding for our work.  This pilot project, the first of its kind in Canada, reflects an inspirational and pioneering effort towards access to justice and we are enormously grateful for their [...]

1 05, 2015

A Tiny Step in the Right Direction: Henry v. British Columbia (A.G.)

By |May 1st, 2015|Uncategorized|Comments Off on A Tiny Step in the Right Direction: Henry v. British Columbia (A.G.)|

On May 1, 2015, the Supreme Court of Canada released Henry v. British Columbia (Attorney General), 2015 SCC 24. Below is our press release. To read more about the case and AIDWYC’s position, please click here.

Special thanks to Dewart Gleason LLP, AIDWYC’s representatives at the Supreme Court of Canada

17 04, 2015

Is the Science of DNA Wrongful Conviction-Proof?

By |April 17th, 2015|Uncategorized|Comments Off on Is the Science of DNA Wrongful Conviction-Proof?|

Author: Michael Macrae, Law Student, University of Toronto, Pro Bono Students of Canada (PBSC)

As technology increases in importance to the modern world, the evidence used in solving crimes has become increasingly complex. What was once typically a matter of considering witnesses’ testimonies, now often involves ballistics experts, psychiatrists, handwriting analysts, and other types of experts providing highly technical evidence that the average trier of fact has little inherent familiarity with. Of the various fields of specialized knowledge that have gained prominence, in the opinion of this author, none is more exciting in its implications or more misunderstood in its reliability than DNA evidence.

It cannot be denied that DNA testing is very beneficial in criminal trials. Since even identical twins differ in their DNA,[1] properly comparing DNA from suspects with that left at crime scenes by the true perpetrators of crimes can prove that a suspect was or was not at the scene of the crime. Conversely, those who were not present at crime scenes can be eliminated once it is discovered that their DNA does not match samples that investigators have collected.

The above scenario has happened, causing great benefit to many wrongly convicted people. Since its introduction as a legitimate tool of criminal investigation in 1989, DNA evidence has exonerated many who were wrongly convicted. Between 1989 and 2007, 200 innocent Americans were exonerated due to DNA testing.[2] This positive trend extends to Canada. Guy Paul Morin – AIDWYC’s first client – was convicted in 1992 of raping and murdering his neighbour based on incorrect hair analysis results. Morin was exonerated after spending about a year and a half in prison when DNA comparisons between him and samples originating from the murderer-rapist eliminated him [...]

16 04, 2015

AIDWYC’s Response to the Motherisk Review

By |April 16th, 2015|Uncategorized|Comments Off on AIDWYC’s Response to the Motherisk Review|

As reported in the Toronto Star on April 16, 2015, AIDWYC recently wrote to those responsible for the ongoing Motherisk Hair Analysis Independent Review. You can read our letter below.

For more information please contact James Lockyer: 416-847-2560 x222/jlockyer@lcp-law.com

 

20 03, 2015

PRESS CONFERENCE AT AIDWYC OFFICES: FRIDAY, MARCH 20, AT 3:00 P.M.

By |March 20th, 2015|Uncategorized|Comments Off on PRESS CONFERENCE AT AIDWYC OFFICES: FRIDAY, MARCH 20, AT 3:00 P.M.|

FOR IMMEDIATE RELEASE
PRESS CONFERENCE AT AIDWYC OFFICES
111 PETER STREET, SUITE 408
TORONTO
FRIDAY, MARCH 20, AT 3:00 P.M.
MR. JACQUES DELISLE
(Former Justice of the Quebec Court of Appeal)

Click here to download this press release – French or scroll down to read the French version
Click here to download this press release – English
Today, Mr. Delisle’s counsel, James Lockyer, a Toronto lawyer, and the Association in Defence of the Wrongly Convicted / L’Association pour la Défense des Personnes Injustement Condamnées (AIDWYC) announce that they are taking on Mr. Delisle’s case and seeking a review of his case by the Minister of Justice, the Honourable Peter Mackay. They believe that Mr. Delisle was wrongly convicted of first degree murder in the death of his wife, Nicole Rainville.
Tonight, at 9:00 p.m., CBC’s fifth estate will be presenting a one hour documentary on the case.
Mr. Delisle was a judge in the Quebec Superior Court from 1983 to 1992. In 1992, he was appointed a judge of the Quebec Court of Appeal where he remained until his retirement on April 30, 2009. He is said to be the only judge in Canadian history to have been convicted of murder.
On the morning of November 12, 2009, Mr. Delisle came home to his condominium in Quebec City to find that his wife had taken her own life. She had shot herself in the left temple.
On June 14, 2012, a jury convicted Mr. Delisle of first degree murder. He lost his appeal in the Quebec Court of Appeal and the Supreme Court of Canada refused to hear his case. Mr. Delisle has been imprisoned at Sainte Anne- des-Plaines Penitentiary outside Montreal since that day. [...]

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

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). [...]

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