2.4 Prevention of Wrongful Convictions

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

March 1, 2014

1. Introduction
2. Tunnel Vision
3. Incomplete Disclosure
4. Eyewitness Misidentification
5. False Confessions, False Accusations or Perjury
6. Guilty Pleas
7. In-Custody Informers
8. Forensic Evidence and Expert Testimony
- 8.1. DNA evidence
9. Conduct of Police and Counsel
10. Conclusion

1. Introduction

Crown counsel play an important role in the prevention of wrongful convictions. Crown counsel assess the evidence in a given case to determine if there is a reasonable prospect of conviction, and must continue to assess the evidence on an ongoing basis to determine whether to continue with the prosecution.^{Footnote 1} It is thus crucial that Crown counsel are aware of the factors and circumstances that have been identified as common in wrongful conviction cases, and take all necessary steps within their mandate to help ensure that innocent persons are not convicted of crimes they did not commit.

The primary purpose of this directive is to apprise Crown counsel of the factors that have been identified as contributing causes in wrongful conviction cases,^{Footnote 2} to highlight best practices that can assist Crown counsel in preventing miscarriages of justice, and to bring to the attention of Crown counsel the extensive research in this field. Bearing in mind that all cases are different, the following information is intended to provide general guidance to federal prosecutors.

Wrongful convictions are usually the result of a combination of errors; one or more of the following elements may be a contributing factor:^{Footnote 3}

Tunnel vision by police and/or the Crown;
Incomplete disclosure;
Eyewitness misidentification;
False confessions, false accusations or perjury;
Guilty pleas by the factually innocent;
The false testimony of in-custody informers;
Faulty or unreliable forensic evidence or expert testimony, including the lack of biological samples suitable for DNA testing; and
Conduct of police and counsel.

In addition to the above contributing factors, Crown counsel should also be aware that the following four “environmental or predisposing circumstances” have been identified as fostering wrongful convictions:

Public pressure to convict in high-profile cases;
An unpopular defendant, who is a member of a minority group and often perceived as an outsider;
A legal environment or culture that focuses on winning; and
The presence of what has been labelled “noble cause corruption,” the belief that the end justifies the means and that improper practices are acceptable to ensure a conviction because the accused committed the crime.^{Footnote 4}

2. Tunnel Vision

Tunnel vision by the police, or the Crown, or both, in a given case, has been identified as a contributing factor in wrongful convictions in Canada and elsewhere.^{Footnote 5}

Experts define tunnel vision as a “single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one's conduct in response to that information.”^{Footnote 6} Police officers and Crown counsel affected by tunnel vision can become so convinced that the correct suspect has been identified and that the theory of the case is correct, that they see only the evidence that supports that theory and ignore facts and information that do not support it.

Crown counsel must not only watch for signs of tunnel vision among the police officers involved in the investigation of the case, but they must also constantly guard against developing it themselves. One of the greatest safeguards for Crown counsel is to bear in mind the key principles regarding the role of the Crown so clearly articulated in the classic case of Boucher v The Queen.^{Footnote 7} In their review of the evidence in a given case, Crown counsel must remain cognizant of their duty to be fair and impartial, and to ensure they review the evidence in an objective, rigorous and thorough manner. Crown counsel fulfil a gatekeeper function by virtue of the Crown’s duty to critically and independently assess the evidence presented by the police.^{Footnote 8}

While Crown counsel should, where appropriate, encourage co-operation and early consultation with the police during police investigations, it is crucial that Crown counsel understand the distinct and independent role of the Crown vis-à-vis the police.^{Footnote 9} Although the police are responsible for directing the investigation, during the file review, Crown counsel should not hesitate to question aspects and perceived shortcomings of the police investigation that relate to the sufficiency of the evidence and impact the prospect of conviction. A fair, independent and impartial review of the file by Crown counsel also means remaining open to alternative theories of the case, which may be different from the theory advanced by the police.

Public Prosecution Service of Canada (PPSC) managers and Crown counsel should also strive to create a workplace atmosphere that encourages questions, consultations and frank discussion and debate among Crown counsel and that is receptive to the expression of alternative views regarding a case.^{Footnote 10}

During file review and trial preparation, checks and balances through supervision and second opinions should be encouraged. Crown counsel with carriage of the file may consider consulting a fellow Crown counsel who can play the role of a contrarian or devil’s advocate. This can be a very useful technique, particularly in the most serious cases.

Mentoring should be encouraged regarding various aspects of Crown counsel’s role, such as the importance of the independent role of Crown counsel vis-à-vis the police, and the appropriate limits of Crown advocacy.^{Footnote 11}

3. Incomplete Disclosure

Incomplete disclosure by the police and/or the Crown has been a factor in some wrongful conviction cases in Canada.^{Footnote 12} Crown counsel must ensure they fully understand the breadth of Crown counsel’s disclosure obligations under the law and that they adhere strictly to them.^{Footnote 13} Crown counsel’s disclosure obligations are discussed in the PPSC Deskbook guideline “2.5 Principles of Disclosure”. Crown counsel must remain mindful that the Crown’s disclosure obligation continues after conviction, including after appeals have been decided or the time for appeal has elapsed. Consequently, whenever Crown counsel receives information suggesting that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred, Crown Counsel should immediately report the matter to the Chief Federal Prosecutor (CFP) for whatever further investigation or action may be required.

4. Eyewitness Misidentification

Eyewitness misidentification has been identified as the single most important factor leading to wrongful convictions, indeed the overwhelming factor.^{Footnote 14} Eyewitness misidentification was a key factor in a number of Canadian cases of wrongful convictions.^{Footnote 15} In one American study, eyewitness misidentification, either mistaken or intentional, was a factor in at least 94 per cent of the exonerations for sexual assault, child sexual abuse and robbery.^{Footnote 16}

When the identification of the perpetrator is at issue, Crown counsel must assess eyewitness identification evidence carefully, and be cautious regarding its use, despite its potential value.

The Canadian judiciary has acknowledged the inherent frailties of identification evidence, due to the unreliability of human observation and recollection.^{Footnote 17} Honest and confident witnesses, who believe they recall an incident correctly, make convincing witnesses, but they can be wrong. Crown counsel must be wary of eyewitness evidence, particularly single-witness identification where there is no corroboration and be attuned to the fact that confidence does not necessarily equate with accuracy.

Crown counsel should remain mindful that a description of the offender given to the police shortly after the event, when the witness’s memory is fresh and the description is less likely to be tainted by suggestions from others or other outside influences, is the most reliable.

Crown counsel must keep current regarding developments in this area and familiarize themselves with the relevant case law,^{Footnote 18} as well as the best practices recommended for police forces and Crown counsel.

The PPSC has endorsed the following best practices, which are explained in greater detail in the 2011 report, The Path to Justice, Preventing Wrongful Convictions:^{Footnote 19}

Assume the identity of the accused is always at issue unless the defence admits it on the record. Timely preparation and a critical review of all of the available identification evidence, including the manner in which it was obtained, is required as it will affect the conduct and quality of the trial;
Be wary of the weaknesses associated with certain types of single-witness identifications, e.g., where there was a poor opportunity to observe or no prior contact with the identified person. While not required by law to secure a conviction, corroboration of an eyewitness’s identification can overcome deficiencies in the quality of that evidence;
Be familiar with the identification procedures used by the police force in the case and critically assess the extent to which these procedures are in line with recognized best practices, and how any shortcomings impact the quality of the identification evidence;
Do not condone or participate in a “show-up” line-up (presenting a single suspect in person to the witness at some point during the pre-trial investigation and asking if the witness recognizes the individual);
Never show a witness an isolated photograph or image of an accused during the interview; and
Always lead evidence of the history of the identification. It is vitally important that the trier of fact be told not only of the identification but all the circumstances involved in obtaining it, i.e., the composition of the photo pack.

5. False Confessions, False Accusations or Perjury

Crown counsel must remain alive to the fact that for a variety of reasons individuals sometimes confess to crimes they did not commit.

The Supreme Court of Canada has acknowledged that false confessions are a problem within the criminal justice system,^{Footnote 20} and that innocent people make false confessions more frequently than those unfamiliar with the phenomenon might expect.^{Footnote 21} False accusations and perjury have also been identified as factors in wrongful conviction cases, and particularly common in homicide and child sex abuse cases,^{Footnote 22} although these factors have tended to receive less attention in the studies and academic literature to date.

In light of the emerging evidence regarding the existence of false confessions, Crown counsel must critically assess statements from suspects for reliability and admissibility, and should be particularly cautious when assessing the confessions of certain types of suspects, including the young and the intellectually disabled,^{Footnote 23} who may be particularly receptive to police suggestions and more disposed to falsely confess.^{Footnote 24} Crown counsel should also remain cognizant of the various reasons that a voluntary confession can be false.^{Footnote 25}

Canadian commissions and inquiries into wrongful convictions have consistently recommended the audio-visual recording of police interviews of chief suspects and witnesses in serious crimes, including the interviews of youthful and other vulnerable witnesses.^{Footnote 26} The Canadian judiciary has increasingly encouraged and, in some instances, has stopped just short of insisting on, the recording of statements from suspects.^{Footnote 27}

Crown counsel should encourage the police to record the statements of suspects and witnesses in serious crimes, including those of youthful and other vulnerable witnesses.

6. Guilty Pleas

Members of the Canadian judiciary have expressed concern about cases where defendants have pleaded guilty to serious criminal offences they did not commit to avoid the risk of a potentially lengthier sentence if convicted after trial. In such cases, although the guilty pleas were valid in the legal sense,^{Footnote 28} fresh evidence admitted on appeal established that the guilty pleas should be set aside as miscarriages of justice.^{Footnote 29} Crown counsel must be fully aware of this risk during plea resolution discussions. Crown counsel is bound by relevant Director of Public Prosecutions’ (DPP) guidelines regarding the limits of plea resolution discussions,^{Footnote 30} as well as ethical obligations outlined by law societies across Canada. Law society rules of professional conduct, as well as those of the Canadian Bar Association, identify the general duties of prosecutors, which include the duty to act fairly^{Footnote 31} and honourably.^{Footnote 32}

7. In-Custody Informers

Crown counsel must be particularly cautious when assessing the evidence of jailhouse or in-custody informers, who are notoriously unreliable witnesses.^{Footnote 33} The use of evidence from in-custody informers (which later turns out to be false) has been a contributing factor in wrongful convictions, both in Canada and elsewhere.^{Footnote 34} Even experienced police officers and prosecutors can be fooled by such witnesses.^{Footnote 35} Crown counsel must assess the evidence of in-custody informers with the utmost care and be satisfied that the evidence of the informer is credible before calling him or her as a witness. If Crown counsel is satisfied that the witness is credible, he or she should recommend to the CFP that the informer be called as a witness. If the CFP believes it is an appropriate case for the use of the in-custody informer, the CFP should seek the advice of the Major Case Advisory Committee before making a final decision. If the Committee and the CFP disagree, the matter should be directed to the appropriate Deputy DPP for a final decision. The role of the Committee is discussed in the PPSC Deskbook guideline “3.1 Major Case Management”.^{Footnote 36}

8. Forensic Evidence and Expert Testimony

Faulty forensic procedures, unreliable science and/or flawed expert opinion testimony have been factors in a number of wrongful conviction cases in Canada.^{Footnote 37} Crown counsel, who deal with experts from a diverse range of disciplines, must be cognizant of the risks associated with the use of forensic evidence and expert testimony. Depending on their practice, Crown counsel may develop a sound understanding of the domain of various experts with whom they interact routinely. However, the ability to remain current on significant developments in forensic science is a challenge, particularly where novel areas of expertise and science are to be relied upon in specific prosecutions.

Crown counsel should not refrain from reliance on a novel scientific theory or technique, provided there is a sufficient foundation to establish the reliability and necessity of these opinions and that the probative value exceeds the potential prejudicial impact. Crown counsel must exercise diligence in obtaining and adducing sufficient evidence to meet the factors in support of reliability (e.g., can the theory or technique be empirically validated? Is there a professional association or society offering continuing education to its recognized members? Is there a meaningful certification program? Can the findings be reliably recreated and tested by qualified examiners?) Crown counsel must also be satisfied that the evidence will be used for a proper purpose.^{Footnote 38}

Crown counsel should also be open to case conferences between Crown and defence experts to try to narrow and/or potentially resolve the scientific issues in a given case.

Ultimately, the key issues Crown counsel must consider are the following:

The validity of the science;
The qualifications of the expert;
The quality and validity of the testing procedures;
The objectivity and independence of the opinion;
Whether a proper evidentiary foundation can be laid; and
The relevance of the evidence to an issue in dispute.^{Footnote 39}

Crown counsel are encouraged to seek out educational opportunities and resources that will enable them to increase their understanding and knowledge of various forensic disciplines, and to keep abreast of the relevant jurisprudence as well as new procedures and developments in the field of forensic science.^{Footnote 40} Crown counsel should not hesitate to consult colleagues and superiors, and to seek the support and resources they require in prosecutions involving expert evidence with which they have little professional experience, or in very serious cases where expert evidence is a fundamental component of the case.

Provided Crown counsel exercise due care and diligence in presenting the expert opinion, establishing the sufficiency of the factual underpinning supporting it, with the fairness of the trial process in mind, the possibility of a miscarriage of justice arising from its use can be reduced.^{Footnote 41}

8.1. DNA evidence

The advent of DNA testing has been a critical development in the field of forensic science generally, both to convict the guilty and exonerate the innocent. The legislation in the Criminal Code has been expanded and now makes it possible to obtain DNA orders following conviction in relation to more offences.^{Footnote 42}

Crown counsel should be familiar with the legislation in the Criminal Code,^{Footnote 43} and relevant case law, and ensure that the DNA data bank provisions are being used to their full potential and that DNA orders are being sought in all appropriate cases.^{Footnote 44}

Crown counsel should also make every effort to work co-operatively with the police and other criminal justice partners to ensure that DNA evidence is available for post-conviction testing in appropriate cases.

9. Conduct of Police and Counsel

Official misconduct, which encompasses a broad range of conduct by various criminal justice participants, ranging from abusive investigative procedures that can produce false evidence, to committing or procuring perjury, to concealing exculpatory evidence, has also been cited as among the factors that can contribute to a wrongful conviction.^{Footnote 45} Regarding Crown conduct, the research suggests the most common transgression is the failure to disclose exculpatory evidence, either because the police did not provide prosecutors with the information, or because prosecutors were unaware that they had such information in the file or intentionally withheld it.^{Footnote 46}

The conduct of defence counsel, which can include conduct that may be perceived in retrospect, to be ineffective, erroneous or missteps, has also been identified as relevant in some wrongful conviction cases in the US and Canada.^{Footnote 47} In R v GDB,^{Footnote 48} the Supreme Court of Canada held that the right to effective assistance of counsel is a principle of fundamental justice; however this right will be seen to be violated in law only if the conduct is unreasonable and incompetent and results in a miscarriage of justice. If Crown counsel develops concerns in a particular case that an accused is not being effectively represented, Crown counsel should consult his or her CFP or the CFP delegate to discuss the appropriate course of action.

10. Conclusion

Like other key criminal justice system participants, Crown counsel should become familiar with the factors that have been widely recognized as contributing factors in wrongful conviction cases, and keep abreast of the relevant jurisprudence and the best practices that have been associated with their prevention. In addition, training in relation to the prevention of wrongful convictions should be provided to federal prosecutors.^{Footnote 49} Indeed, the education of criminal justice system participants has been identified as a key aspect of the prevention of wrongful convictions.^{Footnote 50}

When a particular file raises concerns, Crown counsel should consult experts, colleagues and superiors.^{Footnote 51}

Footnotes

Footnote 1

This directive should be read in conjunction with related PPSC Deskbook guidelines and directives, including: “2.3 Decision to Prosecute”, “2.2 Duties and Responsibilities of Crown Counsel” and “2.7 Relationship between Crown Counsel and Investigative Agencies”.

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Footnote 2

The research regarding the phenomenon of wrongful convictions is voluminous; scholars have found discussion in the legal commentary dating back to the writings of Sir Edward Coke in 1644 in the Institutes of the Laws of England, who documented a 1611 case of a wrongful conviction and execution for murder, as well as the writings of William Blackstone a century later. See Bruce P. Smith, “The History of Wrongful Execution,” (June 2005) 56 Hastings L.J. 1185 at 1189. The study of wrongful convictions in the modern era begins with the research of Yale law professor Edwin Borchard, who wrote Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice, (Garden City, New York: Yale University Press, 1932). The book has been reproduced by Nabu Public Domain Reprints.

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Footnote 3

In his 1932 pioneering study, Borchard observed that the causes of wrongful convictions were most often mistaken identification, circumstantial evidence that resulted in incorrect inferences, perjury, or some combination of these factors, supra note 2. See more recently two FPT reports that have surveyed the research, and include individual chapters on all of the perceived common factors in these cases: The 2005 Report on the Prevention of Miscarriages of Justice, FPT Heads of Prosecutions Committee Working Group, 2005 [2005 FPT Report], is available online. The 2011 update to this report, The Path to Justice: Preventing Wrongful Convictions, is available on the PPSC internet site. These are excellent resource documents, which not only include separate chapters on factors recognized as common in wrongful conviction cases, but set out best practices for police and Crown counsel. The PPSC issued an information bulletin to its prosecutors in January 2005, summarizing the findings of the 2005 FPT Report and the recommendations and best practices of most relevance to Crown counsel. For further reading, see for example Bruce A. MacFarlane, "Convicting the Innocent: A Triple Failure of the Justice System," (2005) 31 Manitoba L.J., No 3 at 443; Jon B. Gould and Richard A. Leo, “One-Hundred Years Later: Wrongful Convictions After a Century of Research,” (2010) 100 Journal of Criminal Law & Criminology, No 3 at 825; and Samuel R. Gross and Michael Shaffer, “Exonerations in the United States, 1989-2012, Report by the National Registry of Exonerations,” a joint project of the University of Michigan Law School and the Centre on Wrongful Convictions at Northwestern University School of Law. The Registry can be found online. The US-based Innocence Project is also a wealth of information, research and statistics regarding the various mistakes and factors that have consistently played a role in wrongful convictions.

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Footnote 4

See MacFarlane, supra note 3 at 435-443.

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Footnote 5

2005 FPT Report, supra note 3 at c 4 and the 2011 update to c 4. See in particular the paper by Bruce A. MacFarlane, “Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System,” released with the 2008 Inquiry Into Pediatric Forensic Pathology in Ontario, "the Goudge Inquiry,". See also Keith Findlay and Michael Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases,” (June 2006) University of Wisconsin Law School, Legal Studies Research Paper Series, Paper No 1023 at 291. Recent illustrations of tunnel vision by the police and the Crown can be found in the 2006 Lamer Commission of Inquiry Pertaining to the cases of Ronald Dalton, Gregory Parsons and Randy Druken, particularly the case of Gregory Parsons. See also The Commission on Proceedings Involving Guy Paul Morin, Toronto: Queen's Printer, 1998.

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Footnote 6

The Morin inquiry, ibid. This definition is contained in Recommendation 74.

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Footnote 7

[1955] SCR 16. This case is discussed in the PPSC Deskbook guideline “2.2 Duties and Responsibilities of Crown Counsel”. See, in particular, the discussion of the Crown’s duty to be fair. On the role of Crown counsel, see also an excellent article by Robert J. Frater, “The Seven Deadly Prosecutorial Sins,” (2002) 7 Can Crim L Rev 209.

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Footnote 8

See the 2005 FPT Report, supra note 3 at 39. See also the PPSC Deskbook guideline “2.3 Decision to Prosecute”.

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Footnote 9

See the PPSC Deskbook guideline “2.7 Relationship between Crown Counsel and Investigative Agencies”, supra note 1.

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Footnote 10

2005 FPT Report, supra note 3 at 40.

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Footnote 11

Concerns about the nature of Crown advocacy were discussed at length in the Parsons case, which is one of the three cases examined in the Lamer Inquiry, supra note 5.

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Footnote 12

2005 FPT Report, supra note 3 at c 11. See also c 11 in the updated version of this report, which was released in September 2011. While lack of disclosure played a role in a number of historic cases of wrongful convictions in Canada, such as those of Donald Marshall Jr. and of Thomas Sophonow, see more recently the Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2007) and the Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008). In the Lamer Inquiry report, supra note 5, Lamer identified inadequate disclosure as an issue in two of the three cases examined. See also the discussion of inadequate disclosure as a factor in wrongful conviction cases in Bruce A. MacFarlane, "Convicting the Innocent,” supra note 3 at 450. This topic is discussed and referenced further in the section on Official Misconduct.

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Footnote 13

See R v Stinchcombe, [1991] 3 SCR 326; R v MacNeil (2009), SCJ No 3.

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Footnote 14

Bruce A. MacFarlane, “Convicting the Innocent”, supra note 3 at 443 and 447. See also Angela Baxter, “Identification Evidence in Canada: Problems and a Potential Solution,” (February 2007) vol 52, No 2, CLQ at 175, and Gross and Shaffer, supra note 3 at 43. See also comments from Justice Rosenberg in R v Hanemaayer (2008), OJ No 3087 at para 29 (CA) [Hanemaayer].

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Footnote 15

See e.g. Hanemaayer, ibid; R v Henry (2010), BCCA 462. See also The Inquiry Regarding Thomas Sophonow, (Winnipeg: Manitoba Justice, 2001), supra note 12.

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Footnote 16

Gross and Shaffer, supra note 3 at 52.

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Footnote 17

2005 FPT Report, c 5, in particular at p 49, as well as the 2011 update to this chapter. See R v Hay, 2013 SCC 61, where the court discussed eyewitness evidence; the majority held at para 51 that a jury may convict on the basis of a single eyewitness’s testimony, notwithstanding the frailties of eyewitness identification, if the witness’s testimony could support a finding of guilt beyond a reasonable doubt. See also R v Sutton, [1970] 2 OR 358 (CA); R v Nikolovski (1996), 111 CCC (3d) 403 (SCC) at 412; Burke v The Queen, [1996] 1 SCR 474, (1996), 105 CCC (3d) 205 at 224; R v Hibbert (2002) SCC 39, [2002] 2 SCR 445 and more recently, Hanemaayer, supra note 14.

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Footnote 18

The PPSC has amassed considerable information on this important topic, including valuable training materials that can be provided upon request. In addition, the two FPT HOP reports, supra note 3, have chapters on this subject. Finally, the following cases are of particular relevance to prosecutors regarding the circumstances where out of court statements of identification may be admitted for the truth of their contents. See R v Starr, [2000] 2 SCR 144 and R v Tat (1997), 117 CCC (3d) 481 (ONCA).

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Footnote 19

A list of best practices and practical suggestions for Crown counsel can be found in c 5 of the report at 75–76. See the link to this report at supra note 3.

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Footnote 20

R v Oickle, 2000 SCC 38 at paras 34–45 [Oickle].

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Footnote 21

See Binnie J’s dissent in R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310. Justice Binnie cites Oickle, ibid, on this point at para 90 of Sinclair. (The majority decision in Oickle discusses at paras 34–45 academic literature that explores the relationship between modern police interrogation techniques and false confessions.)

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Footnote 22

Gross and Shaffer, supra note 3 at 40 and at 53. As discussed in note 2, from the earliest studies of the past century, perjury has been identified as among the common factors cited in these cases but it has not been a focus of the academic literature in this area to date.

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Footnote 23

There is a growing body of research regarding the particular vulnerability of young persons and other vulnerable groups to falsely confess. See for example Christopher Sherrin, “False Confessions and Admissions in Canadian Law,” (2005) 30 QLJ at 601; Kent Roach and Andrea Bailey, “The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing,” (2009) 42 UBCL Rev at 1; Steven Drizin and Greg Luloff, “Are Juvenile Courts a Breeding Ground for Wrongful Convictions?” (2007) 34 Northern Kentucky Law Review at 257, and the USSC in JDB v North Carolina, 131 S. Ct. 2394 (2011).

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Footnote 24

Oickle, supra note 20 at para 42. See also Sarah Burns, The Central Park Five (New York: Alfred A. Knopf, 2011), which examines why five black and Latino teenagers falsely confessed to the beating and rape of a female jogger in Central Park.

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Footnote 25

See for example Hanemaayer, supra note 14.

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Footnote 26

The reliability of statements from youthful witnesses was a major issue in various cases of wrongful convictions in Canada, including the cases of Donald Marshall and David Milgaard. In fact, the Milgaard inquiry report recommended that all statements taken from young persons in major cases, whether as suspects or witnesses, be audio and video recorded. See online hyperlinks at note 12.

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Footnote 27

Oickle, supra note 20 at para 46. Some lower courts have cited lack of a recording of the interrogation as a significant factor in ruling statements of accused inadmissible on the basis that voluntariness had not been proven. See e.g. R v Wilson (2006), 210 CCC (3d) 23, 39 CR (6th) 345, 213 OAC 207 (ONCA); R v Ahmed (2002), 170 CCC (3d) 27, 7 CR (6th) 308, 166 OAC 254 and R v Moore-McFarlane (2001), 56 OR (3d) 737, 160 CCC (3d) 493, 47 CR (5th) 203, 152 OAC 120.

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Footnote 28

Section 606 of the Criminal Code states that a court may accept a guilty plea only if it is satisfied that the accused is making the plea voluntarily, that he or she understands that the plea is an admission of the essential elements of the offence, and that he or she appreciates the nature and consequences of the plea. The court is not bound by any agreement made between the accused and the prosecutor.

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Footnote 29

See for example, Hanemaayer, supra note 14 at para 18, where Rosenberg J. identified the quandary as a “terrible dilemma” faced by the accused: “[T]he justice system held out to the appellant a powerful inducement that by pleading guilty he would not receive a penitentiary sentence.” See also R v Kumar (2011), OJ. No 618 (CA); R v Sherrett-Robinson (2009), OJ No 5312 (CA); R v Brant (2011), OJ No 2062 (CA) and Joan Brockman, “An Offer You Can’t Refuse: Pleading Guilty When Innocent,” (2010) 56 CLQ at 116.

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Footnote 30

See the PPSC Deskbook guideline “3.7 Resolution Discussions”.

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Footnote 31

See for example the BC Law Society Professional Conduct Handbook, c 8, Rule 18, Duties of Prosecutor.

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Footnote 32

Law Society of Upper Canada, Rules of Professional Conduct, Rule 4.01(3). See also the PPSC Deskbook guideline “2.2 Duties and Responsibilities of Crown Counsel”, supra note 1.

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Footnote 33

This section of this directive should be read in conjunction with the PPSC Deskbook guideline “3.3 Immunity Agreements”, in particular section 7, which concerns information provided by a jailhouse or in-custody informer, as well as section 8 regarding out-of-custody co-operating witnesses. An in-custody informer, as defined by the Honourable Fred Kaufman, CM, QC, in his report on the case of Guy Paul Morin, supra note 5, vol 1, chapter III, section C at 598, is someone who allegedly receives statements from an accused while both are in custody in relation to offences that occurred outside of the custodial institution. The accused does not have to be in custody for, or charged with, the offences to which the statements relate. This definition does not include informers who allegedly have direct knowledge of the offence independent of the statements of the accused.

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Footnote 34

2005 FPT Report at 75, and its 2011 update, supra note 3. See also the inquiries concerning Sophonow, supra note 12 and Morin, supra note 5 and more recently the Lamer Inquiry, supra note 5 and the Driskell Inquiry, supra note 12.

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Footnote 35

See The Inquiry Regarding Thomas Sophonow, supra note 12.

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Footnote 36

See the PPSC Deskbook guideline “3.3 Immunity Agreements” for a full detailing of the PPSC Policy concerning the use of jailhouse informers, including the factors Crown counsel should consider when assessing their credibility and the nature of the relationship between the informer and the police.

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Footnote 37

The Morin and Sophonow inquiries are early Canadian examples of this but see more recently the Goudge Inquiry, supra note 5 regarding the role of forensic science and forensic scientists in the criminal justice system and problems in this area generally. See also R v Mullins-Johnson, (2007) OJ No 3978 (CA), where the Court held that the wrongful conviction and 12-year imprisonment of Mullins-Johnson for the murder of his niece was the result of a rush to judgment based on flawed scientific opinion.

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Footnote 38

R v Mohan, [1994] 2 SCR 9 continues to be relied upon for its four-part test regarding the admission of proposed expert evidence. See also R v J-LJ, [2000] 2 SCR 600, R v DD, 2000 SCC 43, [2000] 2 SCR 275 and more recently, R v Trochym, [2007] 1 SCR 239 and Reference re: Truscott, (2007) 225 CCC (3d) 321 (ONCA).

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Footnote 39

Section 7 of this directive is largely an excerpt from the recommendations and guidelines in c 9 of the 2005 FPT Report, supra note 3.

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Footnote 40

In a 2013 report on Forensic Science in Canada under the auspices of the Centre for Forensic Science & Medicine at the University of Toronto, forensic experts from across Canada discuss the state of forensic science in Canada. Among their recommendations is that multidisciplinary cross-training should be encouraged among scientists, police, lawyers and judges, and that judges should receive ongoing training in this field.

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Footnote 41

Detailed guidelines and best practices for prosecutors can be found in c 9 of the 2005 FPT Report, supra note 3, and in its 2011 update. Goudge Inquiry, supra note 5, vol 3, c 17 also provides advice to Crown counsel.

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Footnote 42

As of 2008, the list of designated offences that qualify for inclusion in the National DNA Data Bank Convicted Offenders Index (COI) has been significantly expanded. More than 150 offences were added to the list. The list captures terrorism offences, criminal organization offences, and drug offences under ss 5, 6, 7 (or an attempt or conspiracy to commit any of the above) under the Controlled Drugs and Substances Act, SC 1996, c 19 that are tried by indictment and carry a maximum sentence of five years or more.

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Footnote 43

Section 487.051.

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Footnote 44

See c 8 in the 2005 FPT Report and in its 2011 update, supra note 3.

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Footnote 45

See Gross and Shaffer study, supra note 3 at 65–67 and Brandon Garrett, Convicting the Innocent (Cambridge Mass.: Harvard University Press, 2011) at 167-171 and at 205-209.

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Footnote 46

See Gould and Leo, supra note 3 at 854-855. See also MacFarlane, supra note 3 at 450-452, and Kathleen M. Ridolfi & Maurice Possley, “Preventable Error: A Report on Prosecutorial Misconduct in California, 1997–2009,” (October 2010), Northern California Innocence Project, Santa Clara University School of Law. This study is characterized as the most in-depth statewide review of prosecutorial misconduct in the United States. See also the discussion in the Lamer Commission of Inquiry, supra note 5, concerning the role of the Crown in the case of Gregory Parsons at 134-156, and Robert J. Frater, Prosecutorial Misconduct, supra note 7.

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Footnote 47

This issue is discussed in the Lamer Inquiry, supra note 5. See also MacFarlane, “Convicting the Innocent,” supra note 3 at 468-470. The US Innocence Project identifies “bad lawyering” as one of the seven most common causes of wrongful convictions. See also discussion of this issue in Garrett, supra note 45 at 205-207 and Gross and Shaffer, supra note 3 at 41–43.

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Footnote 48

2000 SCC 22. In the US, see Strickland v Washington, 466 US 668 (1984), which is the seminal USSC case on the subject but see more recently Missouri v Frye, 132 S Ct 1399 (2012).

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Footnote 49

For example, training on this topic is routinely provided at the PPSC annual School for Prosecutors.

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Footnote 50

See c 10 in the 2005 FPT Report, as well as the 2011 updated c 10, supra note 3. A number of the Canadian inquiries, including the recent 2006 Lamer Inquiry and the 2008 Goudge Inquiry, stressed the importance of educating key justice system participants such as police, Crowns and forensic scientists, regarding the many subjects implicated by the wrongful conviction cases in Canada.

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Footnote 51

A summary of all of the recommendations from the seven Canadian inquiries that relate to wrongful convictions can be found in: Gary Botting, Wrongful Conviction in Canadian Law, (Markham, Ont: Lexis Nexis Canada Inc., 2010).

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Date modified:: 2015-08-31

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