Chapter 10 – Education

I. Introduction

The 2005 Report focused on the connection between the education of justice system participants and the prevention of wrongful convictions. It suggested that education designed to help prevent future miscarriages of justice must be multi-faceted and directed at all participants in the justice system to be effective, because the errors that lead to wrongful convictions are multi-layered and are often the result of a combination of events.

This ideal has clearly found voice across Canada – the message to educate all justice participants about the causes and prevention of wrongful convictions is echoed in recommendations from recent Canadian inquiries and has led to the creation of continuing education courses and seminars for justice participants. It has even found a home in many Canadian law schools. Education continues to be recognized as one of the most direct routes to proactively preventing miscarriages of justice in this country. While there is more work to be done to ensure the continuation of newly created educational initiatives, especially in light of the present economy, the fact that a number of educational opportunities have been offered in recent years suggests that great strides have been taken across the country to guard against future wrongful convictions. The educational initiatives that have taken place across the country since the release of the 2005 Report represent our country’s best course to prevent miscarriages of justice.

II. 2005 Recommendations

1. A National Forum on the Prevention of Wrongful Convictions, co-sponsored by the Heads of Prosecutions Committee and the Canadian Association of Chiefs of Police, should be held to provide national leadership and direction.
2. The following options for educational venues should be considered :
   1. joint educational sessions involving Crowns, police, defence and forensic scientists;
   2. specialized conferences, courses and educational materials for police;
   3. specialized conferences for Crowns, as well as segments in continuing education programs;
   4. judicial information sessions;
   5. law school courses;
   6. bar admission course; and
   7. education opportunities for the defence bar.
3. The following educational techniques should be considered:
   1. presentations of case studies of wrongful convictions and lessons learned;
   2. small group discussions and role-playing, demonstrations of witness interviews, and conducting photo-lineups;
   3. on-line training for Crowns and police;
   4. distribution of educational materials/policies on CD-ROM;
   5. video-linked conferences;
   6. participation of psychologists, law professors and criminologists in educational conferences;
   7. guest speakers, including the wrongfully convicted; and
   8. regular newsletters on miscarriage of justice issues.
4. The following educational topics should be considered:
   1. role of the Crown and Attorney General;
   2. role of the police;
   3. tunnel vision;
   4. post-offence conduct and demeanour evidence;
   5. frailties of eyewitness identification;
   6. false confessions;
   7. witness interviews;
   8. alibi evidence;
   9. jailhouse informants;
   10. ineffective assistance of defence counsel;
   11. forensic scientific evidence and the proper use of expert evidence;
   12. benefits of DNA evidence;
   13. disclosure;
   14. charge screening;
   15. conceding appeals / fresh evidence.
5. Each prosecution service should develop a comprehensive written plan for educating its Crown attorneys on the causes and prevention of wrongful convictions.
6. Any educational plan for the prevention of miscarriages of justice should include a public communication strategy to advise the public that participants in the criminal justice system are willing to take action to prevent future wrongful convictions.

III. Canadian Commissions of Inquiry Since 2005

Recent Canadian public inquiries continue to make recommendations about the important role of education in the prevention of wrongful convictions. Many of the recent recommendations are not new, and endorse those of the earlier inquiries. The inquiries themselves provide significant educational case studies.

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

The following are some of the recommendations aimed at police officers and Crowns that involve an educational component as part of a systemic response to the risk of wrongful convictions:^{Footnote 359}

Number 8
The excellent RNC Training Program with Memorial University should receive strong support and recruits should be encouraged to obtain the degree and diploma as well as the certificate of completion of training.

Number 9(a)
The RNC should develop policing standards with respect to qualifications, initial and ongoing training and criminal investigation.

Number 9(b)
The Government of Newfoundland and Labrador should adopt such standards by legislation.

Number 10
Greater financial resources should be allocated to the development of the RNC through: acquiring and improving equipment; utilizing technology; arranging secondments for experience and training; increasing manpower; bringing salary scales into line with other comparable police forces.

Number 19
A Criminal Justice Committee should be established with representatives of the Chief Justice, Minister of Justice, Defence Bar, DPP, Legal Aid Commission, RNC and RCMP, to identify problems, engage in dialogue and seek improvements to the administration of justice on an ongoing basis.

b) Inquiry into Pediatric Forensic Pathology in Ontario (2008)

The Report notes that all participants in the criminal justice system have important roles to play in protecting the public against the introduction of flawed or misunderstood pediatric forensic pathology into the system which can lead to wrongful convictions.

Given the systemic nature of the inquiry and the breadth of its mandate, its recommendations focused on forensic pathologists in particular, the oversight of the discipline, and the role of forensic pathologists in the criminal justice system. Education plays a key role in the recommendations: the education of forensic pathologists in the science and the justice system and, ultimately, of all justice system participants about forensic science and its limitations, is most important to providing a system that reduces the potential of wrongful convictions.^{Footnote 360} Of particular note are the familiar themes in the following recommendations:

• Number 6: all medical students should be educated about the importance of the criminal justice system in medico-legal education, and the RCPSC^{Footnote 361} should ensure that accredited fellowship programs for forensic pathologists provide education in relation to expert evidence, the justice system, and the relevant aspects of evidence law and criminal procedure;
• Number 105: participants at case conferences should understand the respective roles of coroners and forensic pathologists, and how those roles affect the scope and nature of the opinions they can render, so police and Crowns don’t place unwarranted reliance on non-expert opinions and don’t pressure forensic pathologists to change their opinions to conform to a coroner’s determination of cause or manner of death;
• Number 107: The Ministry of Community Safety and Correctional Services, police colleges, and the OFPS^{Footnote 362} together should provide specialized training for select police officers with respect to pediatric forensic death investigations, as well as basic training for officers with respect to forensic pathology;
• Number 110: police officers should be trained to be vigilant against confirmation bias in their investigative work, especially in relation to pediatric forensic cases;
• Number 112: ongoing education should be provided to ensure that members of the Child Homicide Team^{Footnote 363} are knowledgeable about the scientific method generally and pediatric forensic pathology in particular;
• Number 127: the Ministries of the Attorney General and Community Safety and Correctional Services should fund regular joint courses for Crowns and defence counsel dealing with forensic pathology generally and pediatric forensic pathology in particular, to assist lawyers in developing the specialized knowledge necessary to act as counsel in pediatric forensic pathology cases;
• Number 127 (cont’d): the materials from these courses should be web-based so that lawyers may access them as a resource when the course is not being offered;
• Number 128: law schools should offer courses in basic scientific literacy and the interaction of science and the law;
• Number 134: the National Judicial Institute should develop programs for judges on threshold reliability and the scientific method in the context of determining the admission of expert scientific evidence.

IV. Legal Developments and Commentary on Provincial and Territorial Education Initiatives

This non-exhaustive review sets out a number of recent educational initiatives that have taken place across Canada since the release of the 2005 Report.

Public Prosecution Service of Canada (PPSC)

In 2006, the PPSC was established as a separate federal government organization to replace the Federal Prosecution Service which was part of the Department of Justice Canada.

The annual PPSC School for Prosecutors has provided training to federal prosecutors concerning the prevention of wrongful convictions since the release of the 2005 Report. The School includes a panel on this subject as a routine aspect of its Level I course. Federal prosecutors also have the opportunity to attend conferences from time to time where education in relation to this issue is featured.

In addition, in 2009-10, the PPSC, in collaboration with the RCMP and Department of Justice Canada, conducted a series of day-long training sessions for prosecutors and RCMP officers in the three northern Territories. The training included presentations on eyewitness identification, false confessions and tunnel vision. In total, about 75 police and prosecutors attended the interactive sessions. The PPSC prosecutes all criminal offences in the North, including murder, whereas in the provinces, provincial prosecution agencies generally prosecute offences under the Criminal Code.

The PPSC continues to consider other ways and means to provide ongoing education and training to federal prosecutors in this important area. For example, the Service’s Deskbook was updated after the release of the 2005 Report to ensure that the lessons contained in the Report were incorporated into relevant Deskbook chapters. However, the Deskbook is currently undergoing substantial revision. The new edition will include, for the first time, a separate chapter on the Prevention of Wrongful Convictions. The inclusion of this chapter in the new Deskbook will enable the PPSC to draw greater attention to this matter and to provide basic education on this topic to all federal prosecutors.

British Columbia

Since the release of the 2005 Report, British Columbia has made concerted efforts to increase the awareness of wrongful convictions within the Criminal Justice Branch. Most notably, it has expanded educational and professional development opportunities in relation to this issue.

The topic of avoiding wrongful convictions has been highlighted in many of BC’s internal training events. There is an annual conference held every calendar year, attended by most of the Crown counsel from around the province. In 2005, the conference included a one-day plenary session on the topic of Wrongful Convictions. Included amongst the speakers were Thomas Sophonow and his counsel. In 2006, the half-day plenary session was “Preventing Wrongful Convictions: Understanding Eyewitness Identification” and speakers included Jennifer Thompson (the victim of a violent rape in 1984 who incorrectly identified Ronald Cotton as her assailant; he served 11 years in prison before being exonerated by DNA.) The 2008 conference offered a half-day session educating Crown about false confessions, in an effort to assist them in identifying problem cases and preventing wrongful convictions. This was attended by 200 Crown attorneys. In 2009, the morning plenary session focused on Trial Fairness and preventing wrongful convictions. Also offered at this conference was a half-day session on charge assessment, which included focused discussion regarding identifying factors which may lead to wrongful convictions. In 2010, the annual conference plenary focused on Expert Evidence and included as a keynote speaker and panel member Commissioner Goudge, who provided an overview of his work with the Goudge Inquiry.

Other internal educational events include advocacy training workshops for junior (1-5 years experience) mid level (5-12) and senior (over 12) Crown counsel, all of which involve case studies which focus on the appropriate exercise of Crown discretion, and each of which considered various factors which could lead to wrongful convictions. For the past five years, every new Crown counsel has attended a three-day conference to educate them on the role of the Crown. Included is a session on avoiding wrongful convictions and avoiding tunnel vision, with Crown counsel watching a recorded version of Jennifer Thompson’s presentation on eyewitness identification. In 2006, 130 B.C. Crowns attended an internal leadership conference, which included a half-day session on lessons learned from the Lamer Inquiry.

The Criminal Justice Branch has provided funding for a number of Crown counsel to attend various learning events provided by external organizations. A number of Crowns attended the “Unlocking Innocence: Avoiding Wrongful Convictions” international conference in Winnipeg, Manitoba in 2005, following which a working committee was formed to develop internal training on this issue for the rest of the Criminal Justice Branch. Crowns from B.C. attended seminars at Osgoode Hall Law School in Toronto in 2005 (Expert Evidence in Criminal Proceedings: Strategies for Avoiding Wrongful Convictions and Acquittals), 2006 (Eyewitness Identification & Testimony: Strategies for Avoiding Wrongful Convictions and Acquittals) 2007 (Expert Evidence) and 2009 (Good Science, Bad Evidence: New Perspective on the Reliability of Evidence in Criminal Proceedings). In addition, the Continuing Legal Education Society of British Columbia has provided sessions dealing with aspects avoiding wrongful convictions, as well as one in 2009 entitled “Preventing Wrongful Convictions.” A number of Crown counsel both taught at, and attended, this course. All Crowns have branch-funded access to all archived CLE webcasts.

British Columbia continues to examine changes in policy and procedures and is committed to the education and training of its prosecutors on issues related to wrongful convictions and miscarriages of justice.

Alberta

Alberta Justice held a conference for all Alberta prosecutors in May 2004, entitled “Preventing Miscarriages of Justice – Role of the Crown.” Featured speakers at the conference included Jennifer Thompson. Bruce MacFarlane, QC, then Manitoba’s Deputy Minister of Justice, spoke about how wrongful convictions occur and what the Crown can do to avoid them.

In October 2005, approximately twenty prosecutors from Alberta Justice attended the Unlocking Innocence conference in Winnipeg.

Alberta Justice held a conference for all its prosecutors in May 2009, two days of which were devoted to “Just Outcomes.” Topics included: Eyewitness Misidentification; In-Custody Informant Evidence; Disclosure and Addressing Wrongful Convictions. The keynote speaker was James Lockyer, who presented an “Overview of Wrongful Convictions in Canada and Factors that Lead to Wrongful Convictions.”

Alberta Justice holds a Crown School each year. Every third year, the theme of the Crown School is Advocacy. Topics covered include: identification evidence and photo lineups; expert evidence and witnesses; and disclosure. In addition, formal orientations (five-day programs) are held for newly hired prosecutors. Topics covered during formal orientation programs include: the role of the Crown prosecutor; ethics and decision making; and plea negotiations.

Many of the police services in Alberta have implemented new policies and procedures, or have amended existing ones, to address causes of wrongful convictions. More importantly, training is offered in relation to the new policies and procedures that focus on this area.

Saskatchewan

Since 2005, Saskatchewan has made particular efforts to educate prosecutors on how to avoid tunnel vision and prevent miscarriages of justice. The annual prosecutor conferences for the past several years have included at least one component that is related to these issues. These sessions have included:

• 2007: Avoiding Miscarriages of Justice: What we have learned from the Driskell Report and Lamer Inquiry;
• 2009: Forensic Pathology Opinion Evidence;
• 2010: Avoiding Miscarriages of Justice: RCMP Sgt. Kathy Hartwig.

The conferences have also included panel discussions on ethical dilemmas facing Crown prosecutors.

The 2011 conference will feature a segment on eyewitness testimony and the frailties that are associated with this kind of evidence.

There have also been training sessions aimed at junior lawyers (less than five years’ experience) specifically on the topics of prosecutorial discretion and the decision to prosecute.

Manitoba

Manitoba was a partner in organizing the highly successful October 2005 conference “Unlocking Innocence: An International Conference on Avoiding Wrongful Conviction.”

Manitoba held its eighth Annual Crown-Defence conference in September 2010. Founded on the recommendations of Commissioner Cory in the Sophonow Inquiry Report, the conference began as a cooperative effort between prosecutors from Manitoba Justice and members of the defence bar. Soon afterwards, prosecutors from the former Federal Prosecution Service joined the organizing committee, who were then followed by representatives of the Winnipeg Police Service and RCMP, D Division. In 2008, the judges of the Provincial Court of Manitoba were welcomed as full participants in the conference. In 2010, it was announced that the Judges of the Court of Queen’s Bench would also be represented on the organizing committee. This annual event, now in its ninth year, has developed into a truly unique conference in Canada where Crown, defence, police and the judiciary have cooperated in developing and conducting a continuing education event.

Issues related to wrongful convictions and the prevention of miscarriages of justice have been a main focus of the conference since its beginning. In addition to in-depth panel discussions on the Thomas Sophonow, James Driskell and Goudge inquiries, many distinguished speakers from across Canada and the United States have attended to offer their views and insights into this significant area of concern to the justice community, including:

• Mr. Justice John Major
• Bruce MacFarlane, Q.C.
• Professor Bryan Stevenson
• Richard Wolson, Q.C.
• David Asper
• Rob Finlayson
• James Lockyer
• Mr. Justice Stephen Goudge
• Senator Larry Campbell
• Dr. Michael Pollanen
• Mark Sandler
• Professor J. Don Read
• Professor Lee Steusser
• Robert Wright, Q.C.
• Jerome Kennedy
• Mr. Justice Michael Moldaver
• Dr. Janice Ophoven
• Professor David Paciocco
• Wally Opal, Q.C.
• Mr. Justice Michael Code
• Mr. Justice L. LeBel

Ontario

Ontario remains committed to providing continuing education for its Crowns and encourages participation in educational opportunities with the police, defence counsel, and others for an interdisciplinary approach to understanding the phenomena of wrongful convictions. As a result, a number of developments have occurred since the release of the 2005 Report.

In May 2006, the Ontario Criminal Conviction Review Committee (OCCRC) was established to look into specific allegations of wrongful convictions, as well as to develop proactive strategies to prevent miscarriages of justice. The OCCRC, which is composed of six senior Crown counsel, who represent the appellate, policy and trial perspectives from across the province, was originally advised by the Honourable Michel Proulx, former Justice of the Quebec Court of Appeal, and is currently being advised by the Honourable Patrick Lesage, former Chief Justice of the Superior Court of Justice in Ontario.

In the spring of 2008, the Justice Excellence portfolio (JE) was established to:

• conduct the review of 129 Cases in the Shaken Baby Death Review arising out of the Goudge Inquiry;
• conduct the review of approximately 146 cases involving hair microscopy evidence, as a result of a recommendation in the Driskell Inquiry;
• review emerging issues associated with wrongful convictions; and
• develop Crown policy and an education plan to ensure Ontario prosecutors have the most current understanding of issues contributing to potential wrongful convictions.

a) Continuing Education

Ontario’s Ministry takes an active role in providing ongoing education for its Crowns. The following education and training continues to occur on an annual basis:

• A four-week series of educational sessions is held every summer and includes Crown summer school on Expert Evidence;
• an educational conference is held every spring;
• specific conferences and training sessions are held throughout the year where Ontario’s Crowns are encouraged to share experiences and best practices, and to learn from other jurisdictions;
• Ontario Crowns attend conferences offered by the Law Society of Upper Canada, Ontario Bar Association and Federation of Law Societies of Canada, as well as private organizations such as Osgoode Continuing Legal Education to update legal knowledge and meet mandatory continuing education requirement of the law society.

b) Education on the Recommendations of the Goudge Inquiry

• Spring Conference 2009-2010 included panels on the recommendations of the Goudge Inquiry;
• Summer school 2005-2010 included lectures on pediatric forensic pathology;
• Education Session in 2010 attended by Crowns, defence lawyers, pathologists, judiciary, focused on child homicides and included international medical experts as speakers and panel members;
• Spring Educational Conference 2005-2010 – three-day Crown conference included ethical issues, forensic updates, and expert evidence issues.

c) Training on the Causes and Prevention of Wrongful Convictions

Training on the causes and prevention of wrongful convictions since the release of the 2005 Report includes:

• Spring 2005: The Annual Spring Educational Conference included a comprehensive, multi-disciplinary training session on eyewitness identification;
• October 2005: Several delegates attended the international conference in Winnipeg;
• November 2005: approximately ten Crown attorneys were funded to attend a program at the Osgoode Professional Development Centre on expert evidence, which focused on preventing wrongful convictions and wrongful acquittals;
• Spring 2006: the Annual Spring Educational Conference, “Prosecuting in 2006 and Onward,” included topics such as consideration of the accuracy of verdicts and eyewitness identification, both of which are directly related to the prevention of wrongful convictions. Panels included a number of presentations on the appropriate use and limitations of scientific evidence, and speakers highlighted the necessity of all participants in the criminal justice system to work vigilantly to avoid wrongful convictions. There was also a presentation on the creation of the Ontario Criminal Conviction Review Committee and its mandate as well as other updates on the work currently underway in this area.
• Spring 2008: the Annual Spring Educational Conference included a multi-disciplinary presentation on the use of Confidential Informants, as well as updates on the Goudge Inquiry, Evidence of Co-Conspirators and regular topics such as Drinking and Driving, Charter Updates, and Sentencing Updates.
• Spring 2009: The Annual Spring Educational Conference included presentations on the Goudge Inquiry, Lesage-Code Report, Dealing with the Under-represented Accused, and Youth Justice in the context of the Review of the Roots of Youth Violence Report.
• Spring 2010: The Annual Spring Educational Conference included Investigative Detention and Right to Counsel issues, an update on the Goudge Inquiry recommendations and the use of Expert Evidence and Crown Ethics issues.

All conferences and training sessions cover a variety of issues related to miscarriages of justice. The proper role of the Crown and prosecutorial ethics have featured prominently at bi-annual Ontario Crown Attorney training conferences, as well as at the annual Crown summer school courses.

Quebec

Since 2005, at the annual Prosecutor School, the Director of Criminal and Penal Prosecutions (DCPP) has ensured that all new prosecutors have been educated about the prevention of wrongful convictions. In April 2006, SIF (le congrès des procureurs du Québec) offered a full-day course on the prevention of wrongful convictions, attended by 460 prosecutors. In 2008 and 2009, all Quebec prosecutors received two training sessions on amendments made to the guidelines regarding the prevention of wrongful convictions.

New Brunswick

Following the release of the 2005 Report, New Brunswick created a standing committee called the “Prevention of Wrongful Convictions Committee,” now known as the “Conviction Review Committee.” Following a thorough review of the 2005 Report, the Committee prepared and presented its report to the Assistant Deputy Attorney General (Public Prosecutions) in November 2004.

In October 2005, three Crowns attended the Winnipeg international conference. In November 2005, The Saint John Police Force and the Office of the Attorney General of New Brunswick hosted a two day conference entitled, “Understanding Wrongful Convictions.” The conference explored various topics that have been identified as critical in the prevention of wrongful convictions. Approximately 100 people attended the conference, including Crown prosecutors, defense counsel, police, as well as public safety employees. The topics presented were eyewitness identification, tunnel vision, AIDWYC and more.

The Lamer Inquiry Report became mandatory reading for all provincial Crown prosecutors. Regional meetings were held in early 2007 in all regions of the province to discuss the many aspects of the Lamer Inquiry Report and its implications for Crown prosecutors. These meetings were facilitated by the members of the Conviction Review Committee and included the viewing of recorded speakers from the Winnipeg conference.

Nova Scotia

The Nova Scotia Public Prosecution Service held numerous internal professional development programs for its Crown Attorneys prior to and after 2005. Many of these education programs involved a component(s) that related to recognition of the causes of wrongful convictions or the prevention of wrongful convictions. The following is a summary of these education efforts to prevent wrongful convictions since 2005:

1. Nova Scotia Public Prosecution Service, 2005 Fall Conference – included a presentation on “Wrongful Conviction Issues – Eyewitness Identification and Tunnel Vision.” It was attended by all Crown attorneys in Nova Scotia who were not required to attend court.
2. Nova Scotia Public Prosecution Service, 2006 Fall Conference – included a presentation on the role of, and services offered by, the RCMP Forensic Laboratory with emphasis on DNA issues. It was attended by all Crown attorneys in Nova Scotia who were not required to attend court.
3. Nova Scotia Public Prosecution Service, 2007 Fall Conference – included a presentation by a psychologist on the possibilities and causes of an accused providing false confessions to the police. It was attended by all Crown attorneys in Nova Scotia who were not required to attend court.
4. Nova Scotia Public Prosecution Service, 2008 Fall Conference – included presentations on the revised “Disclosure Protocol” and on the use and benefits of DNA evidence. It was attended by all Crown attorneys in Nova Scotia who were not required to attend court.
5. Nova Scotia Public Prosecution Service, 2009 Fall Conference – included a presentation on when Crown Attorneys could face civil lawsuits for the tort of malicious prosecution. It was attended by all Crown attorneys who were not required to attend court.
6. Nova Scotia Public Prosecution Service, 2010 – newly hired Crown Attorney Orientation / Professional Development Program included a presentation on the proper role of the Crown, Chapter 17 of the Code of Ethics, and the Krieger and Miazga decisions of the Supreme Court of Canada, as well as a presentation on “Best Practices in Prosecutions.” These presentations were attended by approximately 15 newly hired Crown attorneys.

Newfoundland and Labrador

The Lamer Inquiry has entrenched the phenomena of wrongful convictions and miscarriages of justice into the consciousness of prosecutors in the province. As a result, there has been much activity in relation to wrongful convictions since the release of both the 2005 Report and the Lamer Inquiry Report. Increased awareness that wrongful convictions occur has resulted in greater education and training in this area. The Department of Justice currently provides training sessions for prosecutors in the areas of eyewitness identification, interviewing children and child witnesses, and expert witnesses (especially pathologists and experts in behavioural sciences). On a broader perspective, these sessions are aimed at reminding prosecutors of the proper role of the Crown and the proper limits to Crown advocacy, and offer ways to identify and prevent tunnel vision.

Additional funding continues to be allocated for training and education sessions and conferences out of province as well, such as the annual Criminal Law Conference and Ontario Crown School.

The province’s newly-established Criminal Justice Committee is assessing the viability of hosting a conference in the next two years on preventing wrongful convictions.

There have also been changes in the Royal Newfoundland Constabulary (RNC), which now incorporates lectures on wrongful convictions for new recruits. From 2008 to 2010, there were 45 RNC members trained in the investigative interviewing technique known as the PEACE model. All officers will receive some form of this training. Officers who are currently, or will soon be, performing the duties of a team commander attend an eight-day course in Major Case Management. Topics such as applying a critical thinking methodology, involving prosecutors in the delivery of legal and strategic advice throughout the investigation, and presenting a major case management submission to a Joint Management Team, are canvassed.

Prince Edward Island

The 2005 Report was distributed to all Crown attorneys in the province and discussed at various Crown meetings. All PEI Crown attorneys attended the Nova Scotia conferences in 2005, 2006, 2007, 2008 and 2009 described above.

The recommendations from the Report, as well as recommendations of the various commissions of inquiry, were discussed and debated at meetings of the Associations of Chiefs of Police. Recommendations directed at police investigative techniques have been incorporated into the curriculum at the Atlantic Police Academy.

V. Developments in Educational Initiatives in Canadian Law Schools

Many Canadian law schools are currently addressing the issue of wrongful convictions in their law school curricula:

• University of British Columbia Law School (UBC Law) – offers a course entitled, “Preventing Wrongful Convictions;”
• University of Alberta Law School – offers an “Advanced Evidence” course that includes a segment on the evidential causes of wrongful convictions (e.g., eyewitness identification evidence, jailhouse informant evidence, false confessions and the voluntariness rule, the role of expert evidence and new science in wrongful convictions);
• University of Manitoba Law School – Bruce MacFarlane, QC, offers a course entitled, “Miscarriages of Justice” that examines the causes of wrongful convictions, how to avoid them, detection mechanisms and remedies that should be provided when a miscarriage of justice has occurred;
• Osgoode Hall Law School – offers a course entitled, “Forensic Science and the Law,” which introduces students to the interdisciplinary nature of forensic science and the law and includes an examination of wrongful convictions to highlight the utility and frailties of forensic science. Osgoode also offers participation in its Innocence Project as a credit course;
• Osgoode Hall Law School Professional Development Program, LLM – a required course, “Wrongful Convictions,” explores both causes and remedial approaches adopted by different jurisdictions;
• Osgoode Hall Law School Professional Development Continuing Legal Education Program (OPD) – OPD continues to offer programs, seminars and lectures to working lawyers and other professionals that are specifically related to wrongful convictions; many of their programs are web cast, and/or offered via “Distance Learning,” allowing those who wish to participate the opportunity to do so using web-stream technology;
• Specifically, Osgoode’s OPD Program has held five programs directly in response to the 2005 Report:
  1. Expert Evidence in Criminal Proceedings, Strategies for Avoiding Wrongful Convictions and Acquittals, December 3, 2005
  2. Eyewitness Identification and Testimony, Strategies for Avoiding Wrongful Convictions and Acquittals, April 8, 2006
  3. Second National Forum on Expert Evidence in Criminal Proceedings, Strategies for Avoiding Wrongful Convictions and Acquittals, November 3, 2007
  4. Expert Forensic Evidence in Criminal Proceedings: Avoiding Wrongful Convictions, May 9, 2009
  5. Good Science, Bad Evidence? New Perspectives on the Reliability of Evidence in Criminal Proceedings, December 5, 2009
• University of Toronto Law School – has offered courses that deal with wrongful convictions. In addition, the university is home to the newly created Centre of Forensic Medicine and Science, an interdisciplinary Centre created, in part, to provide ongoing education for medical and legal students, as well as professionals, involved in the justice system;
• University of New Brunswick’s Law School – offers a “Wrongful Convictions Workshop” consisting of two phases. The first phase involves students familiarizing themselves with the general issue of wrongful convictions, focusing on systemic causes and examples from well-known cases; the second phase involves working with AIDWYC counsel on two suspected cases of wrongful conviction from New Brunswick. The course has a waiting list.
• The University of Ottawa Faculty of Common Law offers an upper level course entitled “Studies in Criminal Law: Wrongful Convictions.”

In addition to the above courses, several law schools have established “Innocence Projects” which offer law students first-hand experience in investigating potential cases of wrongful convictions:

• Osgoode Hall Law School’s Innocence Project;
• Innocence McGill;
• University of British Columbia Law School’s Innocence Project. It is a full-year course which incorporates in its weekly meetings speakers from the legal and forensic science communities. It recently announced a partnership with the Graduate School of Journalism to involve journalism students in investigating cases;
• The University of Ottawa Faculty of Common Law;
• University of New Brunswick’s Law School offers assistance to AIDWYC in that province;
• University of Western Ontario.

The Subcommittee recommends the continuation and expansion of these courses so that all law students across Canada are exposed to this issue and receive education about addressing and preventing wrongful convictions.

VI. Other Options for Education Opportunities

a) National Forum on the Prevention of Wrongful Convictions – Winnipeg 2005

The 2005 Report recommended a National Forum on the Prevention of Wrongful Convictions to raise the profile of this issue by sending a message to all justice participants, as well as to the public at large, that wrongful convictions will not be tolerated. The Report suggested the creation of a National Forum which would include leadership from the Ministries of the Attorney General, Deputy Ministers, the Heads of Prosecutions Committee, and Chiefs of Police to demonstrate a strong national commitment to the issue and to foster confidence in the administration of justice. The Report listed a number of desired outcomes following the creation of a National Forum on this issue.

In October 2005, the Province of Manitoba, in conjunction with the University of Manitoba Law School, organized a highly successful international conference on avoiding wrongful convictions, which achieved many of those goals. “Unlocking Innocence: An International Conference on Avoiding Wrongful Conviction” was held in Winnipeg, on October 20-22, 2005. The conference brought together judges, prosecutors, defence lawyers, law enforcement personnel, scientists, legislators, journalists, victims and academics from around the world to explore all aspects of the causes, prevention, detection and remedies of miscarriages of justice. The registrants traveled to Winnipeg from across Canada, and from the United States, England, Nigeria, Scotland, Bermuda, Norway, Hong Kong, and Australia.

Pertinent details about the presenters and presentations are included below to demonstrate how this type of national conference, involving participants from different fields and jurisdictions, can embrace a wealth of information and perspectives on such a fundamentally important issue in an inclusive and collegial atmosphere. The keynote speakers and their areas of presentation included:^{Footnote 364}

• The Honourable Peter Cory, Commissioner of the Sophonow Inquiry, identified a number of contributing factors toward the wrongful conviction of innocent people and expressed the view that “we must be sure that the deprivation of that fundamental liberty [the bedrock of democracy] is appropriate and is demonstrated beyond a reasonable doubt on evidence that is fair and a process that is fair;”
• Jennifer Thompson, a North Carolina victim of a brutal attack who incorrectly identified her attacker during a police line-up which ultimately led to his conviction until DNA evidence proved his innocence eleven years later;
• James Lockyer, a leading advocate in Canada on behalf of the wrongfully convicted and one of the founders of the Association in Defence of the Wrongfully Convicted (AIDWYC), spoke about how exposure of wrongful convictions is critical to the administration of justice because it acknowledges the innocence of the wrongfully convicted person and reopens the case in search of the real offender;
• Janet Reno, former Attorney General of the United States, spoke about methods of avoiding wrongful convictions and the crucial role that everyone in the legal community plays in the prevention and detection of wrongful convictions;
• Peter Neufeld, co-founder of the New York-based Innocence Project, spoke about the improvement of forensic science to help exonerate the wrongfully convicted; he also stressed that DNA testing and other forensic science evidence should not be required for the exoneration of those wrongfully convicted, given there are countless cases where scientific testing is not possible due to the lack of available scientific evidence;
• The Honourable Irwin Cotler, then Minister of Justice and the Attorney General of Canada, insisted that justice officials be guided by the pursuit of justice, and delivered a passionate plea for all justice system participants to develop a “culture of prevention to pre-empt these factors;”
• Bryan Stevenson, Executive Director of the Equal Justice Initiative of Alabama, pointed out that the principle of justice is based on fairness, not the marginalization of race or poverty; however, in the United States the justice system often treats guilty rich people better than innocent poor people;
• Dr. Adrian Grounds, forensic psychiatrist at the Institute of Criminology and Department of Psychiatry at the University of Cambridge, has conducted research on the psychiatric effects of wrongful conviction and imprisonment, and the treatment and support needs people face when released from long-term imprisonment;
• Dr. Don Read, Department of Psychology at Simon Fraser University, spoke about the issues associated with eyewitness misidentification;
• Alan D. Gold, defence lawyer, reviewed forensic science and the extent to which it provides reliable evidence in court, and argued that fundamental justice encompasses only reliable evidence and the prospect of imprisonment or other loss of liberty based upon unreliable evidence violates our standards of what is proper and just;
• Gisli Gudjonsson, Professor of Psychology at the Institute of Psychiatry in London, spoke about his examination of the phenomenon of false confessions, and highlighted psychological vulnerability and police impropriety as the two main causes for false confessions.

In addition to these keynote speakers, several panels offered various perspectives on the following issues:

• Lost Lives: The Human Side of Wrongful Convictions – Michael Austin (who spent 27 years in a Maryland prison for a murder he didn’t commit); Joyce Milgaard (who spent 23 years fighting to free her son); Ronald Dalton (who spent almost nine years in a Newfoundland prison for strangling his wife and was acquitted on a retrial); Justice Jeffrey Oliphant (Manitoba Court of Queen’s Bench);
• The Need for Experts on Eyewitness ID: Not Seeing Eye to Eye – a debate between defence counsel Mona Duckett of Royal, McCrum, Duckett & Glancy in Edmonton, and law professor Lee Stuesser of the University of Manitoba Faculty of Law;
• Splitting Hairs: A Case Study in Reviewing Faulty Science – Bruce MacFarlane, QC, then Deputy Attorney General of Manitoba, and General Counsel Rick Saull, reviewed the work of Manitoba’s Forensic Evidence Review Committee (FERC), which examined serious cases in which now discredited hair comparison evidence was relied upon to secure a conviction;
• Jailhouse Informants: The Problems and Solutions – Richard Wolson, defence lawyer and Commission Counsel during the Sophonow Inquiry, and Rob Finlayson, then Assistant Deputy Attorney General with Manitoba Justice, focused on the detrimental impact of jailhouse informant testimony on the reputation of the criminal justice system, as it is often a contributing factor to miscarriages of justice;
• In-Custody Interrogations: Protecting the Accused/ Preserving the Record – Peter Neufeld, co-founder of the Innocence Project in New York, Neil Barker, Director of the Polygraph School at the Canadian Police College, and Renee Pomerance, then Crown Counsel for the Ontario Ministry of the Attorney General, discussed the issues of tunnel vision, false confessions, and how non-adherence to proper in-custody interrogation procedure may contribute to wrongful convictions;
• Truth or a Train? Light at the End of the Tunnel Vision – Chief Jack Ewatski of the Winnipeg Police Service, and Jacqueline St. Hill, Director of Winnipeg Prosecutions for Manitoba Justice, discussed the role all participants in the criminal justice system can play in combating tunnel vision;
• The Role of the Media in Unlocking the Innocent – examined the critical role journalists often play in uncovering wrongful convictions, and debated the ethical and legal issues facing reporters in the process; perspectives were offered from the media (Kirk Makin, Globe and Mail; Dan Lett, Winnipeg Free Press), the defence (David Asper), the government (Bruce MacFarlane, QC);
• Wrongful Detection Models: Two Examples, External Observations and Rebuttal – two different systems for investigating allegations of wrongful conviction were discussed. Kerry Scullion, Department of Justice Canada, explained the work of the Criminal Conviction Review Group. Graham Zellick described how England’s Criminal Cases Review Commission, an investigative body independent of the criminal justice system, works. The Honourable Peter Cory closed the panel by presenting his observations on the benefits and drawbacks of each system;
• Righting the Wrong: Remedies and Compensation – The Honourable Peter Cory, Dr. Adrian Grounds, and Madam Justice Sheilah Martin, Court of Queen’s Bench of Alberta, examined whether, once a wrongful conviction has been confirmed, a public inquiry should be held, and how should the level of compensation be determined.

Following the close of the conference, Justice Marc Rosenberg of the Ontario Court of Appeal and Professor Kent Roach of the University of Toronto’s Faculty of Law delivered an educational panel for the judiciary entitled, “Frailties in the Criminal Justice Process: The Judicial Role.”

b) Joint Educational Opportunities

A number of the provinces have hosted joint education sessions in recent years involving any combination of Crowns, police, defence lawyers, judiciary, and other experts that participate in the criminal law system. These joint educational opportunities offer participants a theme or topic, such as the prevention of miscarriages of justice, which is discussed from different perspectives, thus providing valuable insight for all participants.

One prime example of a joint educational opportunity is the “Pediatric Head Injury and the Law” conference hosted by the Ministry of the Attorney General in Ontario in March, 2010. Crown attorneys, defence counsel, members of the judiciary and pathologists attended to focus on issues related to pediatric forensic pathology and wrongful convictions.

In October 2010 in British Columbia, the Continuing Legal Education Society hosted a Crown-Defence Conference, attended by many police officers, entitled “Preventing Wrongful Convictions,” which addressed a host of issues relating to the causes and prevention of wrongful convictions.

The recent creation of the Centre for Forensic Science and Medicine at the University of Toronto^{Footnote 365} is an interdisciplinary initiative dedicated to advancing teaching and research in the forensic disciplines.^{Footnote 366} Of particular importance to the Centre is recognition of the interface between the law and the social sciences. As well as offering inter-professional education for students of medicine and law, the Centre offers continuing professional development initiatives for the medical and legal communities, and intends to facilitate research into areas of controversy and debate in forensic medicine and science, among other educational endeavours.^{Footnote 367} The Centre is currently developing symposia and workshops for continuing professional development for lawyers and the judiciary.

c) Police Education Opportunities

The educational initiatives undertaken by a number of police agencies across the country are to be commended. The Subcommittee continues to endorse its earlier recommendations regarding continuing education in relation to the prevention of miscarriages of justice. As stressed in the 2005 Report, increased police education with respect to the prevention of wrongful convictions and reinforcing proper investigative techniques and training will accomplish two very important goals: (1) preventing wrongful convictions; and (2) ensuring the guilty are convicted.

Since the 2005 Report, considerable training focused entirely or partially on the problem of wrongful convictions as been developed and delivered at the national, provincial and municipal levels. The training is most frequently (but not exclusively) delivered in the context of “Major Case Management” training, which includes content specifically designed to address the problem of wrongful convictions. It is also included in various investigative training courses.

The following is a non-exhaustive list of training relevant to preventing wrongful convictions provided at the national, provincial and municipal level in Canada.

National

At the national level, the Canadian Police College in Ottawa delivers a number of courses related to major case management and serious crime investigation that have some element directed at the issue of wrongful convictions, most notably the two-week Major Case Management Course, which is significantly informed by the findings of commissions of inquiry into wrongful convictions and other failed investigations. The course is supported by a very comprehensive manual developed and regularly updated by the Canadian Police College.

Police agencies from across Canada take advantage of opportunities to send qualified members to the Canadian Police College in Ottawa for Major Case Management training. This CPC program is also delivered at the RCMP’s Pacific Region Training Centre (PRTC) in Chilliwack, B.C. and is attended by RCMP and municipal officers from throughout B.C.

Provincial

In British Columbia, the RCMP created a “Foundations of File Coordination” course. Since 2009, 12 courses have been delivered to approximately 225 police officers. All candidates are required to have read several summaries of wrongful convictions cases including Morin, Sophonow, and Dix, as well as other cases where there were significant investigative failures, including Bernardo and Murrin. Police officers from the RCMP and municipal police departments across Canada have received this training. It is expected this course will be delivered in other provinces as well.

In addition, the RCMP’s Pacific Region Training Center delivers a course titled “Introduction to Major Case Management,” now available on-line through the Canadian Police Knowledge Network (CPKN).

In 2008-2009, the RCMP delivered three-day “Critical Thinking” workshops to RCMP and municipal police officers in B.C., targeted at Team Commanders, Primary Investigators and File Coordinators – the three key positions in the Major Case Management Command Triangle. This training was made available to Crown counsel as well. The main goal of these workshops was to provide police officers critical thinking skills to use to target tunnel vision in investigations. Training aimed at avoiding tunnel vision was also delivered to RCMP in northern communities in 2009-2010.

The Justice Institute of BC (JIBC) in New Westminster provides both basic and advanced training for all municipal police officers in B.C. The JIBC contracts with the Ontario Police College to provide a nine-day Major Case Management (MCM) course. A module specifically to address the issue of wrongful convictions has been included since the Morin Inquiry. Further, an important feature of MCM training is emphasis on conducting ethical investigations which follow best practices and respect the current state of the law and public expectations. In addition, other courses provided by the JIBC, such as the Major Crime Investigators’ course, also include modules on preventing wrongful convictions.

Municipal

In addition to training provided at the national and provincial level, other training occurs internally in municipal police departments as well.

For example, the Vancouver Police Department, the largest municipal police department in B.C., has an extensive in-service training program and its “Level II Investigators’ Program” includes a half-day module specifically targeted at preventing wrongful convictions.

The Calgary Police Service in Alberta and the Toronto Police Service in Ontario – each the largest municipal forces in their provinces – both deliver training specific to preventing wrongful convictions. Calgary Police Service has a mandatory e-learning module on Miscarriages of Justice that police recruits complete, which is complemented by one hour of classroom time to complete the session.

Several other municipal police agencies, including those in Winnipeg, Edmonton and Halifax, deliver major case management and other investigative training which includes elements directed at how to avoid wrongful convictions.

d) Judicial Opportunities -- National Judicial Institute (NJI)

The National Judicial Institute’s (NJI) three-day seminar, “Preventing Wrongful Convictions,” concentrates on the judge’s role in identifying and managing factors that can increase the likelihood of wrongful convictions. This course was first presented to Canadian judges in 2001 and has been offered on a number of occasions since then. In addition, modules from the course have been offered at various court requested programs across the country.

The NJI’s latest offering of this intensive skills-based course was in October 2010. The seminar continues to evolve in the aftermath of several Canadian commissions of inquiry into wrongful convictions. Most recently, the course has given particular attention to the problems of expert evidence in light of the Goudge Inquiry in Ontario. Other topics include eyewitness identification evidence, false confessions, suspect witnesses, ineffective assistance of counsel, circumstantial evidence and prosecutorial misconduct.

e) Bar Admission Course

The Subcommittee continues to support its earlier recommendation that law societies across the country include an educational module in their curriculum that deals with the causes and prevention of wrongful convictions, as well as the ethical responsibilities of the prosecution and defence. The course could offer case-specific examples to illustrate the fact that this is a problem that occurs in Canada more often than previously believed, and that must be combated by all justice participants.

f) Education Opportunities for the Defence Bar

The Subcommittee endorses its earlier position that the issue of wrongful convictions should continue to be part of defence counsels’ educational activities on a regular basis. The Ontario Criminal Lawyers’ Association, the Advocates’ Society, Osgoode Professional Development and other continuing legal education programs host regular conferences and continue to provide extensive legal resources to its members. These educational activities should be encouraged.

Defence counsel should be invited to participate in panel discussions at Crown educational conferences and seminars, and invite Crown representatives to their educational events. Providing guest lectures at law schools on this issue, together with Crown representatives, should be encouraged to foster awareness and a deeper understanding of this complex issue for law students. Joint education opportunities should be encouraged.

VII. Possible Techniques to Promote Educational Initiatives

The 2005 Report included a number of methods to present information with respect to miscarriages of justice. The Subcommittee strongly encourages the implementation of each of these methods for a rich and varied approach to providing education in relation to miscarriages of justice across Canada:

• presentation of case studies of wrongful convictions and lessons learned, to emphasize that the problem of wrongful convictions is not just a matter of legal theory, but involves real people wrongly incarcerated, while the real perpetrator runs free;
• small group discussions, which allow participants to identify problematic areas and tools to reduce the risk of wrongful convictions;
• practical exercises such as role-playing, demonstrations of witness interviews, conducting photo-lineups, etc., to allow participants to put theory into practice;
• distribution of educational materials and policies by CD-ROM, DVDs, and/or providing on-line links for inexpensive access, which will promote information sharing across the country;
• video-linked conferences to allow larger provinces to share resources and educational opportunities with smaller provinces and to provide ongoing educational training;
• multi-disciplinary conferences involving experts from outside the justice system to help adjust attitudes and the culture within the justice system;
• guest speakers;
• regular newsletters to keep Canadians involved and up-to-date on miscarriage of justice issues and conferences.

VIII. Status of Recommendations Regarding Educational Agenda and Topics

The 2005 Report pointed out that a clear understanding and delineation of the roles of the Crown, the police, and the forensic scientist is crucial to the prevention of wrongful convictions. An itemized list was provided and many of the suggestions were incorporated into some of the recent educational programs offered to prosecutors and police across the country.^{Footnote 368} All items recounted in the 2005 Report should continue to be a part of continuing education and should be incorporated into law school curricula so that law students will be cognizant of these issues at the outset of their careers.

IX. Education in the Future

Tunnel vision, frailties in eyewitness identification, the use of jailhouse informants, and faulty forensic science are some of the common problems that ultimately lead to cases of wrongful convictions. However, more troubling is the intangible, inherent “culture” with its entrenched attitudes and practices that provides the milieu in which wrongful convictions can result. As recognized in the 2005 Report, it will take time, and the right kind of education, to foster the necessary cultural and attitudinal changes.

Justice system participants are to be commended for their increased awareness and efforts to improve the cultural milieu that has been identified as a leading cause of wrongful convictions in Canada in the hopes of preventing future miscarriages of justice. It is most important that this work be continued if it is to have any lasting effect.

Due to current economic restraints, new, innovative ways of delivering education must be explored. The creation of joint educational conferences that can be webcast on-line for all justice participants to access may be one way to contain costs while continuing to provide education in this area. Funds can be pooled together from various groups and Ministries. Offices can be encouraged to facilitate group discussions about the topics raised at the conference. In difficult economic times, the solution is not to forego continuing education, but to find creative ways to make it happen.

Given the staggering impact on people who are wrongly convicted, the damaging effect of wrongful convictions on public confidence in the administration of justice, and the financial costs involved in commissions of inquiry and compensation, the Subcommittee maintains its position that the expenditure of public funds on education programs in the hopes of preventing future miscarriages of justice is well worthwhile.

The Subcommittee continues to endorse all of the education recommendations in the 2005 Report. Furthermore, in light of the success of the Winnipeg conference, it would be useful for a follow-up conference should be considered to canvass the developments over the past five years, together with the latest issues in relation to wrongful convictions.