Wrongful Convictions, Lessons Learned - The Canadian Experience

In a democratic society such as Canada, great pride is taken on the fairness of its criminal justice system. The very foundations - the presumption of innocence, the burden of proof on the Crown, the standard of proof beyond a reasonable doubt, the right of the accused to counsel and to remain silent, the obligation of the Crown to make full disclosure of all evidence in its’ possession - all have as their underlying basis the recognition that it is better for 10 who are truly guilty to go free than to convict a single innocent person.

Yet miscarriages of justice have still occurred in Canada with consequences which have included lengthy terms of imprisonment.

Over the last several years, a number of wrongful convictions have been identified. As a consequence, various measures have been employed to prevent the recurrence of such unfortunate events.

The most comprehensive analysis undertaken in Canada occurred during The Commission on Proceedings Involving Guy Paul Morin, a public inquiry ordered by the Government of the Province of Ontario as a result of a wrongful conviction on a charge of murder. Retired Quebec Court of Appeal Justice Fred Kaufman served as Commissioner and released his Report on March 31, 1998 after extensive hearings on a broad range of issues.

This paper is intended to outline the highlights of his recommendations regarding forensic science, the progress made in implementation, and the most recent efforts to improve the quality of Canadian criminal justice. It is hoped that other countries may derive benefit from Canada’s experiences in the interests of justice on the international level.

OVERVIEW OF THE PROSECUTION OF GUY PAUL MORIN

On October 3, 1984, 9 year old Christine Jessop went missing. On December 31st, 1984, her remains were found. Following a police investigation, a neighbour named Guy Paul Morin was charged with first degree murder on April 22nd, 1985. He was acquitted at his first trial but the verdict was reversed and a new trial ordered by the Court of Appeal for Ontario. On July 30, 1992, he was convicted by a jury of the offence charged. He successfully appealed that verdict and an acquittal was ordered by the Court of Appeal on January 23rd, 1995.

The case against Morin involved an array of circumstantial, forensic and police evidence. In addition, the Crown called individuals who were referred to as "jailhouse informants" as to remarks they claimed Morin made to them.

DNA profile evidence filed with the Court of Appeal in 1995 established that Morin was not the donor of semen found in Christine’s panties and, accordingly, proving his innocence. The real killer has never been apprehended.

The inquiry was directed to investigate and determine why an innocent person was convicted. Following several months of testimony and submissions for all parties including representation for the Crown, the police forces involved, Mr. Morin, the Jessop family, the Ontario Centre for Forensic Sciences (hereafter referred to as "the CFS") and other interested organizations, a 2-volume Report was released detailing factual findings and recommendations.

THE FORENSIC EVIDENCE IN ISSUE

At both trials, the Crown called witnesses employed with the CFS to give opinion evidence regarding hair and fibre evidence as well as indications of blood found in Morin’s vehicle. In particular, a hair found on Christine’s necklace could have come from Morin. Fibres found on her clothing and one of her belongings had similarities to fibres from Morin’s home and car. The Crown was permitted to lead evidence of the British study by Jackson and Cook on random comparisons and matches. The Crown made extensive reference to this evidence as providing a link between Morin and Christine, particularly as she had never been in his car.

During the course of the Inquiry, Mr. Kaufman identified several problematic areas in this evidence. Apart from the possibility that evidence of such limited value as the hair comparison or the "indications of blood" (which did not mean the presence of human blood at a minimum) should not have even been admitted given its’ potentially prejudicial effects, his findings included the following:

1. The fact that the necklace hair could also have come from 2 of Christine’s classmates was only identified after the first trial. The strength of opinion evidence regarding hair comparisons was very limited given the state of scientific knowledge on the subject. Accordingly, the possibility that it also could have come from Morin was of virtually no evidentiary value;

2. There were a number of common features arising from the fact that the Morins and the Jessops were neighbours, including the use of the same laundromat, members of each family being in the other’s homes or cars, etc., which were not taken into account by the CFS witnesses as possible explanations for the similar findings;

3. The Jackson and Cook study was not interpreted correctly by either the witness or the Crown and did not provide real support for the witness’ opinion, given differences in the areas tested or not tested in each case, as well as the conclusions which could properly be drawn;

4. The witnesses did not fairly describe the limitations in their opinions having regard to the small number of fibres available for comparison;

5. Additional investigative work was carried out by CFS staff to look for other fibre transfers and no additional matches were found. However, this work was not disclosed to the defence;

6. The police investigators had several meetings with the scientists. There was a dispute on what the witnesses told the investigators who operated on an understanding of the opinions which formed part of the decision to charge Morin. Further, one witness claimed that she felt "pressured" by the investigators regarding the strength of her opinions, whereas the police asserted that they were simply concerned about the length of time it took to receive her report;

7. Contamination of the area where the fibres had been tested was found to have occurred. This was not disclosed to the defence;

8. Between the first and second trials, many of the items used in testing and related notes had disappeared;

9. Terminology such as "could not be excluded", "consistent with", "matches" and "could have come from" had the capacity to overstate the strength of the opinions expressed;

10. Notwithstanding her training, one of the scientists was not objective in her testimony in a fashion unduly favourable to the Crown.

THE RECOMMENDATIONS AND THE RESPONSE

Mr. Kaufman provided some 34 recommendations on the subject of forensic evidence and the Centre of Forensic Sciences. In several instances, the CFS had made changes to their procedures by the time of the final submissions at the Inquiry. Several recommendations have resulted in significant changes including:

Recommendation 2 - Hair comparison evidence of limited probative value

With the availability of DNA options and the problems arising from the use of hair comparison evidence at this and other trials, hair is now used investigatively. It is screened for roots for DNA analysis and is also used for exclusions.

Recommendation 6 - Forensic opinions to be acted upon only when in writing

The CFS Report Writing Policy requires that all verbal results be documented, followed up with a written report and all details of the verbal and written results included in the case file.

Recommendation 7 - Written Policy for Forensic Reports

A comprehensive Report Writing Policy and Guidelines has been established. Its’ objectives include an account for the integrity of items including chain of continuity; identification of tests conducted , items examined and the reasons for items not examined or requested tests not done; the results of the examination and testing; and the conclusions that can reasonably be drawn and the relevant limitations on such conclusions. An information sheet, including a glossary of terms used, details of the examination employed and, where appropriate, examples of verbal qualifiers of likelihood ratios, accompanies the report.

Recommendation 15 - Documentation of Contamination

In accordance with the requirements of the Report Writing policy, perceived contamination possibilities are to be addressed in the report. Identified contamination must be addressed in accordance with the Corrective and Preventative Action policy, including a report to the Forensic Science Advisory Committee regarding the incident and action taken. An amended report is required if contamination is identified after a report is issued and all parties are advised.

Recommendation 19 - Creation of Advisory Board to the Centre

This has been established with representation from all parties including Crown and defence counsel as well as the police. A similar Forensic Services Advisory Committee has been established in 2004 through the Office of the Chief Coroner of Ontario for provincial pathologists and forensic scientists in other disciplines.

Recommendation 20 - Quality Assurance Unit

At the time of the Inquiry, the Centre employed a dedicated Quality Manager. Subsequently, a full QA Unit was established. It organizes audits for many procedures in place. The Policy Co-Ordinator annually revisits and refines policies established since the Inquiry and provides training to staff. The Training Manager’s role has expanded to include responsibility for the Organizational Section.

Recommendation 21 - Protocols Respecting Complaints to the Centre

The Centre utilizes a Court Letter sent to all counsel involved in proceedings at which a scientist from the Centre has testified. The letter is sent administratively rather than at the instance of the scientist. All letters are acknowledged and all complaints investigated, usually including a review of the transcript of the testimony. The Court Letter response is shared with the scientist and the respondent is informed of the outcome of the investigation.

A report of all complaints is received annually by the Director and action taken is given to the Advisory Committee.

Recommendation 22 - Post Trial Case Conferences

These have occurred infrequently. However, an increasing level of pre-trial case conferences has been utilized to facilitate investigations.

Recommendation 24 - Monitoring of Courtroom Evidence

A court monitoring policy requiring managers to make a genuine effort to observe evidence by one of several means, most preferably direct observation in court, has been established. Mock courts are employed for scientists who may not have been called to testify for significant periods of time. Direct personal review has been significantly increased.

Recommendation 25 - Training of Centre Staff

In addition to training on the issues of miscarriages of justice and ethics, a CFS-specific Values and Ethics course for all staff is currently being developed.

CURRENT EFFORTS TO PREVENT MISCARRIAGES OF JUSTICE IN CANADA

In addition to the many substantial efforts to implement the recommendations of Mr. Kaufman, Canadian officials have continued to seek to identify the causes of wrongful convictions and to develop practices to prevent their recurrence.

As a consequence of the Morin Inquiry as well as others, the Federal, Provincial and Territorial Heads of Prosecutions Committee established a Working Group on the Prevention of Miscarriages of Justice.

The Report, available on the internet at http://canada.justice.gc.ca/en/dept/pub/hop, deals with recommendations on a range of topics including tunnel vision, eyewitness identification and testimony, false confessions and other areas. The recommendations on Forensic Evidence and Expert Testimony are attached in full at Appendix [1] herein and emphasize enhanced training, education and resources for prosecutors dealing with expert evidence.

The Province of Manitoba has established a Forensic Review Committee to address issues involving the possible miscarriage of justice for offences including sexual assault and robbery as a result of the use of microscopic hair comparison evidence.

An international conference, "Unlocking Innocence: Avoiding Wrongful Conviction", involving judges, Crown and defence counsel, law enforcement personnel, journalists and victims of wrongful convictions, scheduled for October 20-22, 2005, will seek further solutions to this serious problem.

CONCLUSION

As the criminal trial process will always involve a multitude of human variables for all participants, there is no universal method to prevent a wrongful conviction. It is hoped, however, that the identification of specific problems and the implementation of practices designed to ensure fairness and accountability will result in the optimal utilization of science and expertise in the search for justice.

Appendices

[1.] Department of Justice Canada, Forensic Evidence and Expert Testimony , "FPT Heads of Prosecutions Committee Report of the Working Group on the Prevention of Miscarriages of Justice"

[2.] Ontario Centre of Forensic Sciences, "Forensic Analysis Information Guidelines", April, 2004

[3.] Ontario Ministry of Community Safety and Correctional Services Testimony Review Program Report Card

[4.] Province of Manitoba, Forensic Evidence Review Committee Report, September, 2004