Author: Sarah Harland-Logan

IntroductionJames Driskell

James Driskell’s wrongful conviction came as another blow in an already difficult life. James’ father had been murdered at the age of 44, and James had lived a hard life in Winnipeg’s notorious north end. Shortly before his arrest, James was running a “chop shop” with his friend Perry Harder, where the pair cut apart stolen vehicles and sold the parts. In November 1989, police learned about the chop shop, searched it, and arrested both James and Perry. The two were charged with various criminal offences, including possession of stolen property.[1]

Perry decided to take a plea deal that the prosecution had offered him. He planned to plead guilty to some of his charges, in exchange for a relatively short prison sentence of two to three years. James’ lawyer later testified that, as he understood it, part of Perry’s plea deal was that he would plead guilty to the “chop shop” charges – and that afterward, the Crown would not proceed on the similar charges against James.[2]

However, on June 21, 1990, Perry failed to attend court to enter his guilty pleas as agreed. The police were unable to locate him, and eventually the charges against James were dropped. Three months later, it became clear why Perry had not attended court to take the deal he had wanted. On September 30, a train passenger happened to spot a body near the train tracks, buried in a shallow grave. Police soon learned that the body was Perry’s. He had been shot twice in the chest.[3]

Police believed that James was responsible for Perry’s death. After all, they surmised, now that Perry was gone, he could not testify against his friend in the “chop shop” case. In truth however, as discussed above, James had been under the impression that he would not be prosecuted for his involvement in the “chop shop” anyway. Nonetheless, police and prosecutors went to great lengths – in fact, greatly inappropriate lengths – to build their case against him.[4]

James’ Trial

On October 23, 1990, James was arrested for the first-degree murder of his friend. His trial began on June 3, 1991. The prosecution’s case against James rested on two key pillars. The first was damning testimony from two witnesses – career criminals Reath Zanidean and John Gumieny – who claimed that James had told them he planned to kill Perry to prevent him from testifying about the “chop shop” charges. James’ lawyer drew the court’s attention to their proven bad character, and the implications of their lengthy, serious criminal records for their reliability as witnesses. However, he was unable to gain much traction, in part because Zanidean made it clear to the jury that he was not receiving any benefit from his testimony, and in fact he was “experiencing financial hardship as a result of his decision to give evidence.”[5]

The second pillar of the Crown’s case was forensic evidence known as hair microscopy evidence, which supposedly showed that three hairs found in James’ van matched hairs taken from Perry’s head. This evidence suggested that James had used force against Perry in the van in the course of taking him to the place where he was murdered.[6]

The jury found the Crown’s evidence compelling. On June 14, 1991, James was convicted of the first degree murder of his friend Perry. He received the mandatory sentence for first degree murder: life in prison with no parole eligibility for 25 years.[7]

James would spend the next 13 years in prison for a crime that he did not commit. If the miscarriage of justice that James suffered had never come to light – which could easily have happened, as will be seen below – James would still be in prison as he would not be eligible for parole until 2016.[8]

James’ Appeals and AIDWYC’s Involvement

James knew that he was innocent: although he had been engaged in a criminal enterprise with Perry, he most certainly had not harmed him in any way. He appealed his conviction, however, in December 1992, the Manitoba Court of Appeal denied his appeal.[9]

James seemed to be out of options. Eventually, he reached out to AIDWYC, hoping that they could help him find new approaches. In December 2002, AIDWYC successfully persuaded Manitoba Justice to perform DNA testing on the hair samples that had played a role in James’ conviction, since newer, more reliable technology was now available. At James’ trial in 1991, the expert called by the Crown to explain the hair evidence told the trier of that that “the chances were small that the hairs [from James’ van] came from someone other than Mr. [Perry] Harder.” However, the DNA testing revealed that none of the three hairs found in James’ van belonged to Perry. Moreover, the three hairs turned out to have come from three different people. This disturbing revelation suggested that James had been wrongly convicted.[10]

Given this alarming finding, AIDWYC fought hard to be granted access to James’ case files. AIDWYC was confident James was innocent and eager to prove it to the world.[11]

Shockingly, further investigation revealed that both Zanidean and Gumieny were paid significant sums of money in exchange for testifying against James. Far from experiencing financial hardship due to his decision to testify as he had claimed, Zanidean received $83,000, including $30,000 in cash, in return for his “evidence.” Moreover, it turned out that the investigating officers in James’ case knew that Zanidean was “strongly focused on obtaining money from them” and that his credibility was “suspect.” The Winnipeg police were also aware that Zanidean had recanted his evidence in an anonymous phone call that he made to James’ lawyer shortly after his conviction, in which Zanidean described his own testimony (though in the third person) as “bullshit” that he had “made up.” Finally, contrary to Zanidean’s sworn statement that he had not received any kind of immunity from prosecution in exchange for his testimony, he actually had been improperly granted immunity from a Saskatchewan arson charge.[12]

As AIDWYC lawyer James Lockyer put it, “We took this case, we shook it and we won it”; “We put it in the wringer, turned it upside down and all these coins fell out.”[13]

None of this information was ever disclosed to James’ lawyer, at any point before, during, or after his trial. As a result, James had no opportunity to use these shocking facts to make his case that the Crown’s star witness’ evidence would not be trusted – suggesting that James was innocent – either at trial or as support for his subsequent appeals.[14]

A Miscarriage of Justice

By now it was clear that both pillars of the Crown’s case against James had crumbled. In October 2003, James filed an application, with AIDWYC’s assistance, for ministerial review of his conviction as allowed under s. 696.1 of the Criminal Code. While the application was being reviewed, James also applied to be released on bail. On November 28, 2003, James was finally released from prison, after spending 13 years there as an innocent man.[15]

On March 3, 2005, Minister of Justice Irwin Cotler quashed James’ murder conviction.  Minister Cotler remarked, “Can you imagine if we had the death penalty in this country?” With capital punishment, there is no appellate review. We would have been executing innocent people.”

Rather than launch a new trial, however, the Crown chose to stay the proceedings, meaning that James would not be prosecuted again. On December 7, 2005, the Government of Manitoba called a Public Inquiry into the causes of James’ wrongful conviction, with the goal of ensuring that similar wrongful convictions would not occur in the future.[16]

James had maintained his innocence since the beginning. Almost 15 years after his arrest for Perry’s murder, James had finally cleared his name.[17]

Causes of James’ Wrongful Conviction: Tunnel Vision

James’ wrongful conviction had several causes. Perhaps the root cause was the “tunnel vision” on behalf of police and prosecutors, who were so determined to make their case against James that they resorted to unethical lengths to secure a conviction. Tunnel vision has been described as “the single minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably colour the evaluation of information received and one’s conduct in response to the information.”[18] It is easy for police and prosecutors to experience tunnel vision, particularly if they are under intense pressure to solve a case. Tunnel vision is therefore a common feature found in many miscarriages of justice.[19] Moreover, “it is a trap that can capture even the best police officer or prosecutor” and thus “must be guarded against vigilantly.”[20]

One way that prosecutors must guard against this trap is by keeping in mind that their role is not to secure a conviction, but rather to ensure that justice is done. This means that their role “excludes any notion of winning or losing,” as the Supreme Court put it in the well-known case R v Boucher. In fact, the current Ontario Crown Policy Manual specifically comments that prosecutors must be “open to the possibility of the innocence of the accused person and avoid ‘tunnel vision.’”[21]

Causes of James’ Wrongful Conviction: Lack of Disclosure

Another, related cause of James’ wrongful conviction is the fact that police and prosecutors never disclosed any of the extensive information they possessed which shredded their witnesses’ already paper-thin credibility. The Supreme Court of Canada made it clear in the 1991 case R v Stinchcombe that the Crown must disclose any and all potentially relevant documents to the defence (except for a few types of privileged materials). As noted by the judge who finally released James on bail, the basic obligation “to disclose all material evidence” – such as the many indicators of the Crown witnesses’ unreliability – “existed long before Stinchcombe.”[22]

Justice Patrick LeSage, who served as the Commissioner for the Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, began his report by stating that “Failure to disclose information to [James] Driskell is the central issue of this Inquiry” and that “At that heart of [this] … issue is the failure to disclose information … with respect to matters that were relevant and extremely cogent regarding the credibility of both of these witnesses, particularly Zanidean.” Commissioner LeSage found that both police and prosecutors failed to adequately disclose relevant information to James and his lawyer, and specifically that the Crown prosecutors’ failure to disclose these materials “fell below then existing professional standards expected of lawyers and agents of the Attorney General.”[23] AIDWYC now knows that George Dangerfield, a prosecutor in James’ case, was intimately involved in the wrongful convictions of AIDWYC clients Thomas Sophonow, Kyle Unger and Frank Ostrowski.

Causes of James’ Wrongful Conviction: Bad Science

In his report on the causes of James’ wrongful conviction, Commissioner LeSage provided an alarming overview of the use of microscopic hair “matching” in the courtroom. He noted that:

…it is has now become possible to conduct DNA retesting of microscopic hair “matches.” The results are disturbing. DNA testing of the hairs from four Manitoba murder cases … has shown that in all four cases … the microscopically indistinguishable hairs in issue were from different people. […] A recent US study of FBI Laboratory hair microscopy work showed that “of the 80 hairs that were microscopically associated, nine comparisons were excluded by mtDNA analysis” – an 11% discrepancy.[24]

Commissioner LeSage concluded that these results were so disquieting that “microscopic hair comparison evidence should be received with great caution and, when received, jurors should be warned of the inherent frailties of such evidence.”[25]

The advent of DNA technology has to some extent rendered hair microscopy obsolete, and so its unreliability is less likely to contribute to wrongful convictions – such as James Driskell’s and Kyle Unger’s – in the future.

As forensic science continues to evolve, it has become clear that many other forensic techniques are much less reliable than once believed. Shoe print comparison, bite mark analysis, firearm tool mark analysis, and other such techniques that have never been subjected to rigorous scientific testing remain potential causes of wrongful convictions. Furthermore, reliable, properly validated forensic techniques such as DNA typing and serology can produce inaccurate results if the samples are contaminated. Finally, the experts tasked with interpreting forensic science evidence for the court may make mistakes that can contribute to miscarriages of justice, as in the many wrongful convictions resulting from the infamously inaccurate testimony of Dr. Charles Smith.[26]

Wounds that AIDWYC Cannot Heal

James told reporters that when he first learned that he had been exonerated, his reaction was to ask, “Is it real?,” and then, “It’s over?” He explained that “For 15 years I’ve been fighting for my life. That’s what this is about to me.”[27]

Once James won his freedom, he worked to “focus … on getting [his] … life together,” which proved to be “far more of a challenge than … [he] ever dreamed it could be.” James had spent 13 years living in the constrained and regimented prison environment and actively “try[ing] not to look forward to things” in order to survive, so it was very difficult for him to adjust to making choices and taking on responsibilities in the outside world.[28]

In addition to working on his own psychological healing, James worked to repair relationships with his family members – including eight children and fourteen grandchildren – who had struggled not only with James’ incarceration but also with the stigma of his murder conviction.[29]

Unlike many other wrongly convicted people, James received $4 million in compensation for his ordeal from the Manitoba government and the City of Winnipeg. Fortunate as it is that James was able to secure financial compensation, no amount of money could give him back the 13 years he spent in jail, away from his family.[30]

 


[1] The Honourable Patrick J. LeSage, Q.C. Commissioner. Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, January 2007, available at: http://www.driskellinquiry.ca/, pp. 6-7 [Inquiry]; Tracey Tyler, Toronto Star: “Another ‘Miscarriage of Justice.’” March 4, 2005, available at Injustice Busters: “James Driskell (6)” http://injusticebusters.org/05/Driskell_James.shtml [“Another”].

[2] Inquiry, supra note 1 at p. 8.

[3] Ibid; “Another,” supra note 1.

[4] Inquiry, supra note 7 at pp. 7-8.

[5] Ibid at p. 6; “Another,” supra note 1; R v Driskell, [2004] MJ No 7 at paras 29-30, 179 Man.R. (2d) 276 (Scurfield J) [Driskell]; Winnipeg Free Press: “Driskell Free At Last.” November 29, 2003, http://www.winnipegfreepress.com/historic/31418059.html?story=Driskell%20free%20at%20last [“Free At Last”].

[6] Inquiry, supra note 1 at pp. 6, 271-272; Driskell, supra note 5 at paras 22-24, 35-36.

[7] Driskell, supra note 5 at para 1.

[8] Ibid; Inquiry, supra note 1 at p. 1.

[9] Driskell, supra note 5 at para 2; Inquiry, supra note 1 at p. 1; “Free At Last,” supra note 5.

[10] AIDWYC, “Jim Driskell.” (Spring 2005) Vol. 5 The AIDWYC Journal, p. 4; Driskell, supra note 5 at paras 36-37 [“Jim”].

[11] “Jim,” supra note 10; Kirk Makin, The Globe and Mail: “Fifteen-Year Ordeal a ‘Case Study’ in Dangers of Police and Prosecutorial Tunnel Vision, Justice Minister Says in Quashing Conviction.” March 4, 2005, available at Injustice Busters: “James Driskell (6)” http://injusticebusters.org/05/Driskell_James.shtml [“Fifteen-Year Ordeal”].

[12] Driskell, supra note 5 at paras 27-31; Dan Lett, Winnipeg Free Press: “Driskell Witness Lied about Payments: Defence Lawyer Didn’t Know of $83,000 Compensation Package.” February 13, 2005, available at Injustice Busters: “James Driskell (6)” http://injusticebusters.org/05/Driskell_James.shtml.

[13] “Another,” supra note 1.

[14] Driskell, supra note 5 at paras 26-28, 32.

[15] Ibid at paras 3, 49; Inquiry, supra note 1 at p. 1; “Jim,” supra note 10.

[16] Inquiry, supra note 1 at p. 1; “Jim,” supra note 10; “Fifteen-Year Ordeal,” supra note 11;

[17] Driskell, supra note 5 at para 2.

[18] The Honourable Fred Kaufman, C.M., Q.C.: “Recommendation 74,” Report of The Kaufman Commission on Proceedings Involving Guy Paul Morin: Recommendations, p. 26, available at: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/morin_recom.pdf.

[19] See discussion in Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321.

[20] “4. Tunnel Vision.” FTP Heads of Prosecutions Committee Report of the Working Group on the Prevention of Miscarriages of Justice: http://www.justice.gc.ca/eng/rp-pr/cj-jp/ccr-rc/pmj-pej/p4.html#foot114.

[21] “Role of the Crown: Preamble to the Crown Policy Manual” (pp. 1-2), Ontario Crown Policy Manual, 2005, available at: http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/CPMPreamble.pdf (citing R v Boucher (1954), 110 CCC 263).

[22] R v Stinchcombe, [1991] 3 SCR 326, [1991] SCJ No 83; Driskell, supra note 5 at para 34.

[23] Inquiry, supra note 1 at pp. 6, 110-111.

[24] Ibid at p. 172.

[25] Ibid at p. 180.

[26] For more information on these topics, see The Innocence Project, “Understand the Causes: Unreliable or Improper Forensic Science,” at http://www.innocenceproject.org/understand/Unreliable-Limited-Science.php

[27] Frank Landry and Natalie Pona, Legislature/Courts Reporter: “Driskell Ordeal Over: Feds Quash Conviction, Province Won’t Re-Try.” March 4, 2005, available at Injustice Busters: “James Driskell (6)” http://injusticebusters.org/05/Driskell_James.shtml.

[28] “Fifteen-Year Ordeal,” supra note 11

[29] Ibid.

[30] Ibid; The Canadian Press: “Wrongly Convicted James Driskell Offered $4M Deal.” September 20, 2008, at CTV News: http://www.ctvnews.ca/wrongly-convicted-james-driskell-offered-4m-deal-1.326680.