Conviction: The AIDWYC Blog

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 [...]

18 06, 2015

R v Kokopenace: the Supreme Court’s missed opportunity for taking action against a regrettable status quo

By |June 18th, 2015|Uncategorized|Comments Off on R v Kokopenace: the Supreme Court’s missed opportunity for taking action against a regrettable status quo|

Do unrepresentative juries – like that painted by John Morgan in 1861 – have the potential to contribute to miscarriages of justice? 

Author: Diana Sitoianu, McGill University – Faculty of Law, 2015 AIDWYC Summer Fellow

In 2005, Ontario ranked third in terms of the overrepresentation of Aboriginal people in prisons across the country.[1] Aboriginal people’s current position within the criminal justice system is one of the clearest markers of what the Supreme Court of Canada has called “a crisis in the Canadian justice system.”[2]

But the overrepresentation of Aboriginal offenders is not the only symptom of the crisis spoken about by Canada’s highest court. In light of the recent Supreme Court decision in R v Kokopenace,[3] the underrepresentation of Aboriginal people on jury rolls is clearly an equally important contributing factor in the estrangement of Aboriginal people from the Canadian criminal justice system.

In light of this recent Supreme Court decision, this blog post will seek to explain why jury representativeness is an important principle for the good operation of the criminal justice system. Further, it will explore how the Kokopenace decision could contribute to wrongful convictions and a furthering of Aboriginal people’s current estrangement from the justice system.

The Case

In 2008, Clifford Kokopenace, an Aboriginal man from Grassy Narrows First Nation, was convicted of manslaughter in a trial before a jury in the Superior Court in Kenora, Ontario. He appealed his conviction, arguing that the Ontario Government’s process of preparing jury rolls[4] did not adequately guarantee his right to a representative jury.

At the time of Kokopenace’s trial, Aboriginal people living on reserves made up a third of the population in the Kenora district, whereas they only made up 4.1% of the jury roll.[5] In light of this [...]

17 06, 2015

Poly-Problems? Lie Detectors and the Search for Truth

By |June 17th, 2015|Uncategorized|Comments Off on Poly-Problems? Lie Detectors and the Search for Truth|

Photo: An early polygraph machine is tested for a trial in 1935 (Wikipedia)

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

Given the reality that eyewitness testimony is not always reliable (as previous blog posts have shown) the question arises as to whether there might be a way to bypass the need for forensic evidence and eyewitness accounts in favour of direct access to the suspects’ minds. Scientists have claimed that this can be approximated in criminal investigations with the lie detector.

Ideally, lie detectors would eliminate several uncertain aspects of criminal investigations.  Suspects would be hooked up to machines and questioned; the machines, through measurement of certain properties in the suspects’ bodies associated with lying, would be able to detect whenever the suspects lie. If successful, lie detectors would dramatically increase the efficiency and accuracy of police investigations, since less time would be spent determining whether a statement was in fact true. Unfortunately, reality is much less certain.

Canadian courts, to their credit, will not admit lie detector evidence as valid. The majority of the Supreme Court of Canada in R v Béland held so on several legal (as opposed to scientific)[1] grounds. Since judges or juries are entrusted with determining the truth of any testimony in common law courts, the majority of the court held that this role should not be replaced by an invention.[2] Furthermore, lie detectors were found to be too similar to oath-helping, the archaic and abandoned legal practice of summoning witnesses for no reason but to testify that one witness is honest.[3]

Given the decision in Béland, why talk about lie detectors? The answer is counter-intuitive. Even though Béland remains good law for the dismissal of lie detectors from [...]

16 06, 2015

The Deep Unfairness of Police Carding

By |June 16th, 2015|Uncategorized|Comments Off on The Deep Unfairness of Police Carding|

For years racialized Torontonians have been carded by police at much higher rates than their white counterparts. Could this discriminatory practice lead to wrongful convictions?  Photo: Benson Kua

Author: Benjamin Hanff, University of Toronto Law Student – Master of Public Policy Candidate & AIDWYC Summer Student

On June 7th, Toronto Mayor John Tory publically reversed his stance on the controversial issue of police carding.  Tory is now in favour of immediately ending the practice and plans to hold a vote on the issue this month. Ontario Premier Kathleen Wynne’s Government similarly reversed itself on June 16th when it announced its intention to regulate carding across Ontario.  Eliminating carding would improve race relations in Toronto and – I will argue – reduce the number of wrongful convictions in our criminal justice system.  Hopefully, the Police Services Board will give into public pressure, eliminate carding, and replace it with an innovative street-check policy that is acceptable both to disaffected minority communities and the police.

What is carding?

The Toronto Police call it ‘community engagement.’  The Police stop, question, and document ordinary people on the street who are not suspected of having committed a crime.[1]  The collected information is kept on record for an undetermined amount of time.  The Police say the data helps them find links to associates, potential witnesses, and suspects.  The Police can use the data to obtain search warrants or enter it as evidence at trial.[2]

Carding has strained race relations in Toronto.  The Toronto Star has published data showing that the Police are three times more likely to card a black person than a white person.[3]  In some neighbourhoods the chances of the Police carding you are 17 times higher for black people than for white.[4]  Law-abiding citizens are convinced [...]

12 06, 2015

Race and Crime in the Courtroom: How Schemas Influence Juror Perceptions

By |June 12th, 2015|Uncategorized|Comments Off on Race and Crime in the Courtroom: How Schemas Influence Juror Perceptions|

In 2004 AIDWYC Client Leighton Hay was convicted of first degree murder by a jury. An innocent man, Leighton was exonerated in November 2014 after having spent 12.5 years in jail. Did the fact Leighton was a young black male accused of a violent gun offence impact the jury’s decision to convict?  (Photo: Jesse Johnston)

Author: Erin J. Shumlich, Clinical Psychology Student, Western University
QUICK! Imagine someone robbing a convenience store clerk at gun point.
Now imagine another person shoplifting from a department store.
What race is the robber? What gender is the shoplifter?
While most of us don’t like to think that we stereotype or that we are biased, the reality is extralegal factors – like race and gender – often contribute to trial outcomes. Recent research could provide better tools for lawyers and policy makers to tackle these biases in order to reduce wrongful convictions and procedural irregularities in the courtroom.

Race has long been known to impact the fairness of trial proceedings, but the processes underlying these biases have not been understood, and their effects have not been mitigated. Awareness of the ways in which race impacts prospective judicial decisions is a crucial first step in reducing the overrepresentation of minorities in the Canadian criminal justice system. Canadian courts have acknowledged that prejudice and discrimination against Aboriginal people in Canada may affect their right to a fair and impartial trial.[1] Therefore, this fundamental Charter right[2] may be subverted if further knowledge and education regarding the underlying factors that contribute to perceptions of guilt are not disseminated.

Aboriginal people make up 3.8% of Canadian society, yet 23.2% of Canadian inmates are of Aboriginal descent.[3] The incarceration rate of Aboriginal people is up to 3 times [...]

8 06, 2015

Problems and Misconceptions when Dealing with Child Witnesses

By |June 8th, 2015|Uncategorized|Comments Off on Problems and Misconceptions when Dealing with Child Witnesses|

Author: Michael Macrae, University of Toronto Faculty of Law & AIDWYC 2015 Summer Fellow

Trigger Warning: The following blog post discusses – but does not describe in detail – various forms of child abuse.

The case of Miazga v Kvello Estate[1] is a good illustration of the danger of courts giving too much weight to the testimony of child witnesses. In Miazga, three children alleged that Kvello was involved in a satanic cult that exposed them and other children to abuse.[2]  The facts of Kvello reflected an international fear at the time about satanic cults;[3] this fear attracted a considerable body of scholarly literature, some of which was useful for this blog-post.  That the charges against Kvello were mired in controversy and eventually overturned[4] may lead people to think that child witnesses are not credible. However, the reality is more complex.

The history of child witness testimony leading to miscarriages of justice goes back centuries.  The notorious Salem witch trials of 1692 etched this problem into our collective consciousness.  Several girls alleged that they were the victims of witchcraft. The Court ordered 19 suspected witches be hanged; two others died in custody.[5] These cases are a clear warning against placing too much trust in children’s testimonies.[6]

However, during the 19th century, the opposite problem arose in the legal system. It became a commonly accepted truth that children were inherently unreliable, especially when narrating incidents of abuse. In 1893, the Parliament of Canada provided a statutory framework for the testimony of children whom courts deemed too young to understand the nature of an oath or the importance of telling the truth. The statute required that additional evidence support the child’s testimony.[7] It also required that judges alert jurors that [...]

29 05, 2015

Life Means Life? Innocence and the Parole Board

By |May 29th, 2015|Uncategorized|Comments Off on Life Means Life? Innocence and the Parole Board|

 

Author: David Levy, Queen’s University Law Student, 2015 AIDWYC Summer Fellow

As a supervised clinic worker at the Queen’s Law Prison Clinic, I spent my second year of law school providing legal assistance to inmates at Joyceville Institution; a medium security prison in the Kingston area. Many requests for assistance pertained to disciplinary court and disciplinary charges received in the institution. (Things like contraband, damaging property etc.)

One request that I received was for assistance with an application for day parole and a potential appearance before the Parole Board. As I unfamiliarly read through this inmate’s profile and correctional plan I noticed a category titled “Accountability” and an assessment of “Responsibility for Criminal Behavior”. I had the concurring thought that indeed, inmates should have these characteristics tracked. Their rehabilitation requires changes, which naturally begins with recognizing the need for change. What I never appreciated however is the effect these procedural assessments might have on someone who genuinely has nothing to account for i.e. someone wrongly convicted.

I looked to the Commissioner’s Directive and Parole Board Decision Making Policy Manual and learned that maintaining one’s innocence does an inmate few favours once incarcerated as both put an emphasis on coming to terms with guilt.

Upon reception, each inmate takes part in an initial assessment from which the Joyceville Institution’s Assessment Unit develops a Correctional Plan containing the degree of intervention required to rehabilitate that offender and the programing required to bring about that change. Some of the categories within that plan are accountability, which involves empathy for the victim and accepting responsibility for the offence, and motivation, which consider the offender’s openness to addressing their problem areas.[1] By the looks of it, these are not just initial assessment categories [...]

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 [...]

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