Chapter 11 – Other Issues


I. Introduction

The 2005 Report identified several other matters relating to wrongful convictions that the Working Group considered worthy of further consideration:

  1. issues relating to police note taking and the inadequate retention of police notebooks, Crown files, trial exhibits and evidence;
  2. inadequate disclosure; and
  3. the ineffective assistance of counsel.

Regarding police notes, the Report cited findings in both the Morin and Sophonow inquiries indicating that there were no consistent rules on how police took and kept their notes, how long police officers’ notebooks should be kept, and who should keep them and where. The Report observed a similar lack of consistent rules for the maintenance of Crown files, trial exhibits and evidence gathered but not used. Such retention issues had made it difficult to later investigate allegations of wrongful convictions, the Report noted. Efforts to locate police notes years later had been further hampered because police recorded their notes chronologically, rather than by project; thus all notes in relation to one case would not necessarily be found in one notebook. This practice, coupled with the fact that police officers, upon retiring, generally took their notebooks home with them, made it difficult, if not impossible, to locate all relevant notes long after the fact. The Report suggested that clear policies be developed for police, Crowns and court services regarding how long to keep police notebooks, Crown files and trial exhibits.

Concerning disclosure, the Report observed that several cases of wrongful conviction, especially historic ones, had involved the failure of Crown counsel to disclose information to the defence.Footnote 369 However, another Heads of Prosecutions Committee Working Group produced a report on this subject and thus the Working Group chose not to examine this matter further.

In relation to the ineffective assistance of counsel, the Report noted that there was information to suggest that ineffective defence lawyers had contributed to some cases of wrongful conviction in the United States, but it was unclear whether this was a factor in wrongful conviction cases in Canada. None of the Canadian commissions of inquiry that had reported when the 2005 Report was released had highlighted this as an issue. Nevertheless, the Working Group recognized this as a potential issue in wrongful conviction cases in Canada and suggested in the Report that guidelines be developed to assist prosecutors in circumstances where it is suspected that an accused person may not be getting effective counsel.

II. 2005 Recommendations

Although no recommendations were made in the 2005 Report regarding these issues, the following observations were made:

Police Notebooks/Crown Files/Trial Exhibits

Clear policies should be developed for police, Crowns and court services on how long to keep police notebooks, Crown files and trial exhibits. Clearly the cost implications and rapid technological changes will have to be considered in developing such policies.

Ineffective Assistance of Counsel

An issue that deserves some attention is the responsibilities of Crown counsel when they suspect an accused person may not be getting effective counsel. Perhaps some guidelines should be developed to assist prosecutors in these difficult ethical situations.

III. Canadian Commissions of Inquiry Since 2005

1. Police note taking and related issues

A. Quality of Police Note Taking

a) The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (2006)

Commissioner Lamer identified inadequate police note taking by members of the Royal Newfoundland Constabulary (RNC) as a shortcoming in the police investigation that resulted in the wrongful murder conviction of Gregory Parsons. Commissioner Lamer noted that police documentation was inadequate overall. Some officers did not take notes, some notes were made on scraps of paperFootnote 370 and, even when people had important information, the information was not always adequately and accurately recorded.Footnote 371 Even experienced police officers sometimes took no notes when interviewing key witnesses, Commissioner Lamer observed. Footnote 372 “…the absence of rigorous investigative techniques, in this case note-taking, can lead to the mishandling of important evidence.” Footnote 373

Commissioner Lamer recommended that the Royal Newfoundland Constabulary carefully review the recommendations in the Morin Inquiry Report concerning interviewing, note taking and statement taking, with a view to incorporating them into policy.Footnote 374

In the Morin Inquiry Report, as part of Recommendation 100, the following recommendations were made in relation to the quality of police note taking;

Recommendation 100:

Creation of policies for police note taking and note keeping

Police note taking and note keeping practices are often outdated for modern day policing. Officers may record notes in various notebooks, on loose leaf paper, on occurrence reports or supplementary occurrence reports or on a variety of other forms. The Ministry of the Solicitor General should take immediate steps to implement a province wide policy for police note taking and note keeping. Financial and other resources must be provided to ensure that officers are trained to comply with such policies.

Minimum components of such a policy are articulated below:
[…]
g) Policies should be established to better regulate the contents of police notebooks and reports. In the least, such policies should reinforce the need for a complete and accurate record of interviews conducted by police, their observations, and their activities.

h) Supervision of police note taking is often poor; enforcement of police regulations as to note taking is equally poor. Ontario police services must change their policies to ensure real supervision of note taking practices, including spot auditing of notebooks. Footnote 375

b) Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2007)

Commissioner LeSage criticized the failure of various police officers to make notes or produce reports of various events. He observed that, although it is fundamental to a police officer’s role in the justice system that there be an accurate record of the information given to the police, and that this information be forwarded to the Crown if it relates to a prosecution, this was not always done in the Driskell investigation.

Commissioner LeSage recommended:

Police policies (it was the Winnipeg Police Service in this case) specifically state that complete, detailed notes are to be taken, and that all of this information is to be forwarded to the Crown if it relates to a prosecution, including all information relating to the credibility of a prosecution witness.Footnote 376

c) Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008)

Commissioner MacCallum observed that investigation reports were not always complete, and that the investigation report would sometimes fail to relate the circumstances under which a statement was taken.Footnote 377

B. Retention of police notebooks/Crown files, trial exhibits

Several of the Canadian inquiries that have released reports since 2005 have also identified inadequate retention periods regarding police notebooks, Crown files, trial exhibits and unused evidence as a problem in wrongful conviction cases simply because, years after the fact, the police notes and other relevant materials become impossible to locate when a potential wrongful conviction case is being examined. Footnote 378

a) The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (2006)

Commissioner Lamer recommended that police review the recommendations in the Morin Inquiry Report regarding notetaking with a view to incorporating them into policy. Recommendation 100 from the Morin Inquiry Report includes advice in relation to the retention of police notebooks:

  1. There should be a comprehensive and consistent retention policy for notes and reports. One feature of such a policy should be that, where original notes are transcribed into a notebook or other document, the original notes must be retained to enable their examination by the parties at trial and their availability for ongoing proceedings.
  2. A policy should establish practices to enable counsel and the police themselves to easily determine what notes and reports do exist. These practices might involve, for example, direction that one primary notebook must bear a reference to any notes or reports recorded elsewhere - for instance, October 4, 1998: supplementary report prepared respecting interview conducted with A. Smith on that date.
  3. The pages of all notebooks, whether standard issue or not, should be numbered.
  4. Policies should be clarified, and enforced, respecting the location of notebooks.
  5. The use of the standard issue “3” by “5” notebook should be revisited by all police forces. It may be ill suited to present day policing.
  6. The computerization of police notes must be the ultimate goal towards which police forces should strive.

b) Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008)

Commissioner MacCallum noted that many of the police officers’ notebooks were destroyed by the time of the first conviction review of the police files in 1989, 20 years after the initial investigation. Only a few officers had their original notebooks; in fact not many notebooks were available for the Commission to review. He observed in particular that the notebooks of officers involved in the murder investigation were not retained on the investigation file because officers’ notes included notes on many different cases and investigations. The original RCMP investigation file from 1969 was destroyed in the 1970s as part of the force’s regular file destruction policy.Footnote 379

Concerning the retention of trial exhibits and other evidence, the unusual retention of the trial exhibits in Mr. Milgaard’s case for 27 years permitted DNA testing of semen samples found on the clothing of Gail Miller in 1997, which pointed to another perpetrator and factually absolved Mr. Milgaard. The retention of the trial exhibits had the unforeseen result that DNA typing was possible in 1997.Footnote 380 Had the provincial practice been followed regarding the retention of exhibits, these items would not have been available for testing because the items would have been disposed of as soon as the case had exhausted the court process (including the outcomes of any appeals).Footnote 381

Commissioner MacCallum made three key recommendations concerning the preservation of these kinds of materials:

2. Disclosure

Lack of disclosure was identified as a central issue in one of the Commission reports released since 2005 and found to be a weakness in two others.

a) Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2007)

Lack of disclosure to James Driskell of information relating to the credibility of two Crown witnesses was identified as the central issue.Footnote 383 Commissioner LeSage found, in particular, that several members of the Winnipeg Police Service had failed to disclose material information to the Crown before, during and after Mr. Driskell’s trial, and that these failures contributed to the miscarriage of justice against Mr. Driskell.Footnote 384

b) Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008)

Prior to the Milgaard trial, the Saskatoon Police did not provide the Crown with police files relating to unsolved 1968 sexual assaults nor did they inform the Crown that the police considered a possible connection between these sexual assaults and the murder of Gail Miller, for which Mr. Milgaard was convicted.Footnote 385 Later, when the Saskatoon Police received a report in 1980 from Linda Fisher that she believed her ex-husband, Larry Fisher, was responsible for the murder for which Mr. Milgaard had been convicted, the report was received, filed, referred to and possibly evaluated by the Saskatoon police but it went no further, Commissioner MacCallum found. Footnote 386 Following up on the report might have led to the identification of Larry Fisher as a viable suspect in 1980, Commissioner MacCallum suggested. The Crown involved said that, had he been made aware of the report, he would have disclosed it to Mr. Milgaard or someone on his behalf. Commissioner MacCallum ultimately recommended that every complaint to police calling into question the safety of a conviction should be passed to the head of the prosecution agency, in this case the Director of Public Prosecutions.Footnote 387 Nevertheless, the Commissioner generally found that the Crown’s disclosure to the defence met the disclosure standards of the day,Footnote 388 which were significantly less onerous than those mandated by the Supreme Court of Canada in the 1991 Stinchcombe decision.Footnote 389

c) The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (2006)

Disclosure issues were identified in two of the three cases examined. In the case of Randy Druken, Commissioner Lamer observed what he described as a significant breach of the disclosure obligation by the police and a serious breach by the Crown in failing to provide full and timely disclosure.Footnote 390 In the Parsons case, disclosure was provided, but under highly unusual and stringent conditions.Footnote 391 However, disclosure was not considered a major enough issue in either case to result in recommendations by Commissioner Lamer.

3. Role of Defence Counsel

a) The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (2006)

Commissioner Lamer raised questions concerning the conduct of defence counsel in all three of the cases he examined.

In determining why it took eight years for the appeal of the murder conviction of Ronald Dalton to be heard by the Newfoundland Court of Appeal while he languished in prison, Commissioner Lamer concluded that the conduct of two defence counsel played an instrumental role in that delay. He cited one lawyer’s lack of diligence as the direct cause of one 15-month delayFootnote 392 and a second lawyer’s conduct as the direct cause of a further delay of about four years, between July 1993 and April 1997.Footnote 393 In both cases, Commissioner Lamer cited “procrastination” by these two defence counsel. “Neither lawyer saw Mr. Dalton’s situation in sufficient light to admit, at the outset, that they simply were not up to the task but that the situation was urgent.”Footnote 394 However, in fairness, Commissioner Lamer concluded that criminal justice players generally must share responsibility for the results ultimately reached by the system. The criminal justice system ‘did not see’ Mr. Dalton for eight years and for that we are all responsible, he concluded. Footnote 395 After Mr. Dalton’s appeal was heard, a new trial was ordered. He was subsequently acquitted of the murder charge.

In that same inquiry, Commissioner Lamer also commented on the conduct of defence counsel regarding the wrongful conviction of Gregory Parsons. While the Commissioner was considerably and appropriately more critical of the Crown’s conduct in the case, he did make some observations regarding the conduct of the defence counsel, such as for failing to object to several aspects of the Crown’s closing address,Footnote 396 and for failing to alert the police when he became aware during the trial of another viable suspect. Commissioner Lamer found that he should have done so, even though it would have had no practical consequences.Footnote 397 In all, Commissioner Lamer concluded that while defence counsel might, in retrospect, have done certain things differently, overall he did everything he could and Mr. Parsons was fortunate to have had him as counsel.Footnote 398

Finally, in the case of Randy Druken, who spent more than six years in prison for the 1993 murder of Brenda Young before proceedings were stayed against him after a jailhouse informant recanted his testimony, Commissioner Lamer again questioned the conduct of defence counsel. While he made no adverse findings against defence counsel, Commissioner Lamer raised several issues relating to his conduct, which he concluded may well have influenced the outcome of the trial.Footnote 399

IV. Legal Developments and Commentary

1. Police Note taking and related issues

A. Quality of Police Note Taking

Shortcomings in police note taking have been identified by other Canadian bodies and inquiries since 2005, although not in relation to allegations of wrongful conviction. While it is difficult to assess the prevalence of poor police note taking in Canada, the existence of police investigations hampered by poor note taking shows that the problem is of sufficient concern to merit continued attention.

Poor note taking by members of the RCMP was identified in two separate reports by the Commission for Public Complaints against the RCMP (CPC). In fact, in the Kingsclear Investigation Report (the Final Report by the CPC) into the RCMP investigation of alleged sexual and physical assaults of residents at the New Brunswick Training School at Kingsclear, the Commission noted that the adequacy of note taking, report writing and documenting has long been identified as a problem by both the Commission and the RCMP. In the Kingsclear case, the Commission observed that notes kept by the two officers who interviewed the police officer who was the subject of a serious criminal investigation were so cursory and devoid of substance that they were of no value to the investigation.Footnote 400 “Neither previous policies dealing with note taking, report writing and documenting nor the focused cadet training mentioned in the Commissioner’s Notice have been successful in eliminating chronic problems in this area.”Footnote 401

Two of the CPC’s Final Report recommendations (Recommendations 5 and 7) concern police note taking practices:

In the CPC Public Interest Investigation Report on Canada Day 2008-Victoria, British Columbia, which involved complaints that the RCMP and municipal police conducted unauthorized searches in Victoria, the RCMP were again criticized for failing to keep detailed notes, in this case of their participation in the Canada Day celebrations. The RCMP were urged to take contemporaneous notes and to document their actions accordingly, consistent with RCMP policy.Footnote 403

Bearing in mind that the CPC has the mandate to comment only on the conduct of RCMP members, and to make findings and recommendations in relation to only their conduct (as opposed to that of officers from other agencies), the CPC noted that the lack of note taking by members of the West Shore RCMP Detachment was inconsistent with RCMP policy. The CPC recommended that the RCMP properly document matters in the future.Footnote 404

Finally, in the Report of the Cornwall Public Inquiry, released in December 2009 concerning the institutional response to allegations of historical sexual abuse of young people in the Cornwall, Ontario area, Commissioner G. Normand Glaude also identified poor police note taking practices as an issue.Footnote 405 Among the inquiry’s recommendations, Commissioner Glaude stressed that it is important that the police (in this case the Cornwall Community Police Service and the OPP) be trained in proper police note taking (in this case for sexual assault investigations).Footnote 406

Since the release of the 2005 Report, some judges have also criticized police officers from forces across Canada for the poor quality of their note taking, or indeed for the failure to take notes at all, in relation to a range of charges. The quality of police notes or the lack of them has sometimes undermined the prosecution.

In the unreported case of R. v. Campbell,Footnote 407 Stewart J. of the British Columbia Supreme Court excluded evidence of drugs and firearms in relation to a warrantless apartment search in 2007, in good part because the rookie police officers had failed to take proper notes “to create and preserve a detailed, coherent, consistent record of why they did what they did in connection with the warrantless search of the home.”Footnote 408 In essence, the police could not provide the evidence through their notes of their grounds for searching the apartment and thus prove that the entry was authorized by law.

Likewise, in the 2007 Ontario Court of Justice case of R. v. Sookram,Footnote 409 Chisvin J. sharply criticized the officers for their failure to take notes concerning their reasons for stopping a motorist, which reflected negatively on their credibility. The judge concluded that there was no legal basis for the detention of the motorist. Since it was an unlawful detention, the ensuing search was also unlawful, thus Mr. Sookram’s ss. 8 and 9 rights had been breached. The evidence of guns and drugs was excluded.

In the case of R. v. Jarosinski,Footnote 410 Stone J. of the BC Provincial Court excluded the evidence of breath samples after finding violations of the accused’s s. 10 rights. A central problem was that the police officer did not make specific notes regarding what he said in relation to the right to counsel.

Inadequate police note taking practices can play a significant role both in wrongful convictions and in the investigation of allegations many years later when memories have faded and witnesses are no longer available. The lack of a proper police record in such cases clearly impairs the re-investigation. In order to ensure that complete police records exist to permit the proper re-investigation of cases where allegations of wrongful conviction are alleged in relation to the most serious charges, the quality of police note taking must be improved across police agencies. While it may be that note-taking is adequate in most cases, the issue is so important that policies and practices across Canada should be harmonized to ensure best practices are followed. In that respect, it is encouraging that several police agencies in Canada have made significant improvements – or changes are under way – in their note taking policies and practices.

For example, the RCMP is developing a national policy dealing with both the quality of police note taking and related retention issues. In March 2011, a nationwide notice was issued to all RCMP officers from Deputy Commissioner Knecht, which acknowledged the important role of note taking in police investigations. It stated in part:

The responsibility to take proper notes does not stop with the individual investigator, but is also a critical function of effective supervision and management. Our long outdated notebook policy is being rewritten to reflect increased supervisory oversight and monitoring of members’ notes to verify their quality and to address any note taking deficiencies. More specifically, the updated policy will more accurately reflect the significance of note taking and ensure that appropriate and accountable measures are established.

Supervisors and unit heads were instructed to ensure that members under their command adhere to good note taking practices and check notes monthly while the policy is formalized.

Notably, the Winnipeg Police Service, which was criticized for poor note taking and related issues in the Sophonow Inquiry, has since developed a comprehensive policy that addresses the major recommendations of the Sophonow Inquiry and other inquiries and could be considered a model policy for other agencies. For example, it instructs officers to write legibly, using a black ink pen and “if an error is made, cross it out with a single stroke so it can be read and initial it.” It also suggests using a separate notebook for major investigations when “the extent of the member’s involvement and the anticipated volume of information recorded indicates the material would be best organized in a separate notebook.”

Likewise, the Peel Regional Police Service has a comprehensive notebook policy that complies with a standard developed by the Ontario Police College. Further, the Edmonton Police Service developed a note taking course in 2009 and has made it available through its “Online Learning System.”

B. Retention of police notebooks/Crown files, trial exhibits

Other inquiries since 2005 have identified poor retention practices for police notes as a problem in investigations, but again, these inquiries were not examining cases of alleged wrongful conviction.

In its 2007 Final Report concerning the Kingsclear Public Interest Investigation, the CPC recommended that the RCMP examine the policies on notebook retention used by other police agencies to identify best practices applied across the country, especially for officers who are retired, transferred or who voluntarily resign.Footnote 411

In addition, Commissioner Glaude identified retention problems as a factor in his Report of the Cornwall Public Inquiry. Commissioner Glaude urged the Cornwall Community Police Service and the OPP to take appropriate measures to ensure that their retention policies regarding police officers’ notes are clearly defined, well understood and strictly enforced. The policies should ensure they stipulate that officers’ notes are police property, Glaude recommended. Should a police officer retire or go on extended leave, his or her notes need to be turned over to the police force.Footnote 412

Regarding the common law, the case of Romeo Phillion is a significant post-2005 example where the failure to locate important police notes and other evidence was a significant issue in the investigation into an alleged miscarriage of justice. In that case, a 1968 police report written by an Ottawa detective came to the attention of Mr. Phillion in 1998. It stated that Mr. Phillion had an alibi and could not have committed the Ottawa murder of which he had been convicted in 1972. However the police officer consistently maintained since 1998 that he later discredited that alibi. But no police notes, documentation or evidence were ever located to substantiate that claim. In fact, as the Ontario Court of Appeal noted, attempts to locate the detective’s notes of his investigation and any physical evidence related to the case were unsuccessful.Footnote 413 As a result of an application to the federal Minister of Justice under s. 696.1 of the Criminal Code, Mr. Phillion’s conviction was eventually quashed and a new trial was ordered. The Crown withdrew the charge; Mr. Phillion had spent 31 years in prison.

In 2010, Amina Chaudhary, who is serving a life sentence for first degree murder, filed an application in the Ontario Superior Court of Justice for a declaration that:

It is a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms that upon conviction for an offence prosecuted as an indictable offence all evidence and exhibits pertaining to the case be preserved for the lifetime of the offender, unless (1) the offender waives this requirement, or (2) a Court Order is obtained, upon notice to the accused, allowing for the destruction of any or all of the evidence.Footnote 414

Although Mr. Justice Edward Belobaba struck the application as being so “imprecise and ill-defined as to be completely unworkable,”Footnote 415 he said it was not frivolous and made the following comments:

Every police force, coroner’s office and forensic investigation agency has its own procedure about the preservation and retention of evidence. Some are set out in written protocols; others are more informal. Some are dictated by municipal bylaw; others simply reflect internal policy. In general, the more serious the crime, the longer the retention period.

It is fair to say that there is little to no uniformity in the post-conviction evidence retention policies that exist across the country. There is, for example, no legislated federal or provincial standard. It is also fair to say that the loss or destruction of evidence post-conviction is a recurring problem for the wrongfully convicted, a problem that has been highlighted by several recent commissions of inquiry including those reviewing the convictions of Stephen (sic) Truscott, Guy Paul Morin and David Milgaard.Footnote 416

In response to the various inquiry recommendations, federal/provincial/territorial deputy ministers of justice recently approved the establishment of a broad-based working group to study the issue of national standards for the retention of exhibits and evidence in criminal cases.

The Subcommittee agrees that there remain ongoing unresolved issues relating to the retention and storage of police notes and files, not to mention physical evidence such as trial exhibits, which can pose significant barriers to the investigation of alleged wrongful conviction cases years after the fact.

It is encouraging, however, that in an informal survey of a sample of police agencies from across Canada, every agency consulted had policy addressing the need to retain police officers’ notebooks when they retire or otherwise leave the agency.

Conclusion

A number of police agencies in Canada have made efforts to improve police note taking practices and/or made changes to retention policies since 2005. Nevertheless, problems appear with sufficient frequency to justify continued focus on this issue. More efforts must be made to ensure that all police agencies in Canada implement adequate policies and practices to reduce the incidence of inadequate note taking or notebook retention contributing to miscarriages of justice.

2. Disclosure

The November 2008 Report of the Review of Large and Complex Criminal Case Procedures by Justice Patrick LeSage and Professor Michael CodeFootnote 417 is the most significant Canadian inquiry in recent years to examine disclosure procedures and practices. Citing the disclosure issues in relation to the wrongful murder conviction of Donald Marshall Jr. in Nova Scotia in the 1970s, LeSage and Code recognized that “the failure to comply with this right (to disclosure) is closely related to the risk of miscarriages of justice. …[It] is one of the most important obligations in the criminal justice system.” Footnote 418

3. Ineffective Assistance of Counsel

The Innocence Project in the United States has identified “bad lawyering” as one of the seven most common causes of wrongful convictions.Footnote 419 The U.S. government responded to concerns in this area by introducing the Justice for All Act of 2004, which became law in October 2004. Although this Act became law prior to the publication of the 2005 Report, it was not discussed in the Report. The Act includes the Innocence Protection Act, which, among other things, includes provisions to assist states that have the death penalty to create effective systems for the appointment and performance of qualified counsel as well as better training and supervision for both defence lawyers and prosecutors.

V. Discussion of Recommendations

While no recommendations were made in the 2005 Report on these issues, the Subcommittee notes that these matters have been highlighted in various Commissions of Inquiry and in the jurisprudence in the ensuing years. The Subcommittee therefore wishes to emphasize that these issues remain ongoing matters of concern that require attention.

1. Police note taking and Related Issues

As described earlier, notwithstanding the improvements implemented or in progress in several police agencies in Canada, the quality of police note taking and related issues remain matters of concern for the Subcommittee. Since the survey conducted for this report was necessarily limited in scope, it remains unclear if the improvements noted are reflected in the majority of police agencies in Canada. The Subcommittee therefore recommends that a formal survey of police note taking practices, policies and related issues in Canada be undertaken.

2. Disclosure

Experts who have examined the literature and the cases on wrongful convictions have identified lack of disclosure as a critical factor in wrongful conviction cases.Footnote 420 Indeed, it has been an important issue in a number of the high profile wrongful conviction cases in Canada, including in the recent case of James Driskell. The Subcommittee emphasizes this fact to illustrate the importance of both police and Crown remaining ever mindful of their disclosure obligations. The Subcommittee proposes no further action in this regard.

3. Ineffective Assistance of Counsel

The Subcommittee merely highlights the fact that questions concerning the conduct of defence counsel have been raised in relation to a number of the post-2005 Canadian cases of wrongful convictions.

4. Emerging Issues

Concerns Relating to Guilty Pleas

One issue that has received attention lately relates to the concept of “plea bargaining” or “plea compression,” where the prosecution offers a reduced penalty, and may agree to reduce the charge, in exchange for a guilty plea. An early guilty plea is recognized in the Canadian jurisprudence as a mitigating factor in sentencing, largely because it is seen to demonstrate remorseFootnote 421 and an acceptance of responsibility by the offender, and avoids the need to have the victim testify. Plea bargaining is a well-established discretionary process conducted between the parties out of the public eye that is generally accepted and valued by all criminal justice system participants. However, following a handful of recent cases before the Court of Appeal for Ontario, concerns are emerging as to whether the practice has, in some instances, enticed innocent persons to plead guilty to avoid the risk of receiving harsher sentences if convicted after trial.

Recently, the Ontario Court of Appeal has dealt with a small number of cases where the defendant pleaded guilty to a serious criminal offence that he or she did not commit, and later sought to appeal the conviction. In each case, the guilty plea was valid in the legal sense; however, fresh evidence admitted on appeal established that the guilty plea should be set aside as a miscarriage of justice.Footnote 422 The Court exercised its discretion to look behind the guilty pleas to try to understand why the accused persons pleaded guilty to crimes they did not commit: “[E]ven though an appellant’s plea of guilty appears to meet all the traditional tests for a valid guilty plea, the court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the guilty plea and that demonstrate a miscarriage of justice occurred.” Footnote 423

The factors that emerged pointed to the pressures faced by the defendant, such as the reality that those found guilty after trial often received harsher penalties. The Court was troubled by the fact that the inducements to plead guilty to avoid the risk of trial and the potential imposition of harsher sentences were extreme enough to entice innocent persons to plead guilty, especially when huge discounts in penalty were offered in exchange for the guilty plea. In Hanemaayer, the Court 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.”Footnote 424 In the cases of Mullins-Johnson, Sherret-Robinson, C.M, C.F., Brant and Kumar, each involving the death of an infant or child, the expert opinion of Dr. Charles Smith was relied on by the police, the Crowns, and the defence. Given Dr. Smith’s stature at that time, each accused and his or her counsel did not believe they could contest his opinion successfully. In Kumar, for example, the accused was charged with the second degree murder of his five-week-old-son. In addition to accepting the impossibility of successfully challenging the powerful evidence of Dr. Smith at that time, the Court found that Mr. Kumar, like Mr. Hanemaayer, faced a “terrible dilemma” when the justice system held out a “powerful inducement”“a reduced charge, a much-reduced sentence (90 days intermittent instead of a minimum of ten years), all but the elimination of the possibility of deportation, and access to his surviving child.”Footnote 425

These cases involving Dr. Smith were identified previously at the Goudge Inquiry, where the issue of “plea compression” was apparent in a number of child homicide cases that resulted in guilty pleas to lesser charges, often for reduced sentences, often to avoid the severe consequences that would follow convictions on the original charges.Footnote 426 Commissioner Goudge made the following recommendation to address the concern that individuals may plead guilty to crimes they did not commit:

Recommendation #114:

The Child Homicide Team should, as an important component of its role, review cases in which plea offers have been made to the defence. This role will arise either as part of the mandated consultation by the prosecuting Crown with the team at every stage of the prosecution, or at the initiative of the defence.

The effect of this recommendation would be to ensure that Ontario’s Child Homicide Team, already involved at each stage of the prosecution, would be accessible to the defence to review any plea resolutions. This process would ensure that the correct charge(s) has been laid and an appropriate penalty for the offence has been offered, should a guilty plea proceed.

It is important to note that prosecution agencies and law societies across Canada, as well as the Criminal Code, provide some relevant guidance to lawyers working in the criminal justice system. For example, in the Deskbook of the Public Prosecution Service of Canada, the chapter concerning plea and sentence discussions and issue resolution indicates that Crown counsel’s approach to resolution discussions must be based on important principles, including fairness, openness and accuracy, and that Crown counsel may participate in resolution discussions where the accused is willing to acknowledge guilt unequivocally and the consent of the accused to plead guilty is both voluntary and informed.Footnote 427 Similarly, the Guidebook of Policy and Procedure for the Conduct of Criminal Prosecutions in Newfoundland and Labrador encourages resolution discussions, but clarifies that pleas must be informed and voluntary and that agreements will be terminated if the accused maintains a position of innocence.Footnote 428 Likewise, the Crown Counsel Policy Manual for provincial prosecutors in B.C. encourages Crowns to initiate resolution discussions but advises Crowns to ensure that the accused accepts legal and factual guilt in relation to the proposed guilty plea.Footnote 429

Additional guidance can be found in the rules of professional conduct established by law societies across the country, which guide the conduct of prosecutors and defence lawyers in each province and territory in Canada. For example, the rules of the Law Society of Upper Canada state that a defence lawyer cannot knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable. A related rule states that a defence lawyer shall not knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, or misstating facts or law.Footnote 430 Law Society rules of professional conduct, as well as those of the Canadian Bar Association, also identify the general duties of prosecutors, which include the duty to act fairlyFootnote 431 and honourably.Footnote 432

Finally, s. 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 and that he or she also understands that the plea is an admission of the essential elements of the offence, the nature and consequences of the plea, and that the court is not bound by any agreement made between the accused and the prosecutor.

The extent to which defence lawyers and prosecutors require more direct and specific guidance in this important area is beyond the mandate of the Subcommittee; however, the discussion above serves as an important cautionary tale for the administration of justice.Footnote 433

The Subcommittee wishes to reiterate that all participants in the criminal justice system must be vigilant to guard against creating an environment in which innocent people are induced to plead guilty.

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