Chapter 3 – Canadian Commissions of Inquiry

Recent Canadian commissions of inquiry continue to uncover and denounce the now recognizable themes that are often present when innocent people have been imprisoned for crimes they did not commit.

The importance of these case-specific inquiries cannot be overstated – they have helped to enlighten all justice system participants, and indeed the public at large, that miscarriages of justice are a part of our justice system and not as rare as previously believed. More importantly, they point to a number of converging themes that must be addressed in efforts to prevent miscarriages of justice in Canada. The reports are cautionary tales for all justice participants and are required reading for those who would prevent these sad histories from repeating themselves.

Since the 2005 Report, four Commissions of Inquiry have issued their reports.

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

In June 2006, the Government of Newfoundland and Labrador released the report of the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, into the cases of Gregory Parsons, Ronald Dalton and Randy Druken^{Footnote 66}.

The Report^{Footnote 67} made more than 40 recommendations on all aspects of the criminal justice system, from legal aid to police investigations to Crown culture.

The report is available at: http://www.justice.gov.nl.ca/just/publications/lamerreport.pdf (PDF, 18 Mb). Note: To view PDF files you will need Adobe Acrobat Reader.

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

In February 2007, the Manitoba Government released the report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell,^{Footnote 68} headed by the Honourable Patrick LeSage, former Chief Justice of the Ontario Superior Court of Justice.

On June 14, 1991, Mr. Driskell was convicted of the first-degree murder of Perry Harder and sentenced to life imprisonment without eligibility for parole for 25 years.

On March 3, 2005, the federal Minister of Justice quashed his conviction and ordered a new trial. The same day, the Government of Manitoba stayed the murder charge.

In his report, Commissioner LeSage concluded there had been a number of “serious breaches of basic disclosure obligations at an institutional level”^{Footnote 69} which contributed to the miscarriage of justice suffered by Mr. Driskell. “It is not in serious dispute that Driskell was incarcerated for 13 years, one month and seven days for a crime for which he was wrongfully convicted.”^{Footnote 70}

Commissioner LeSage made a series of recommendations relating to police note-taking, post-conviction disclosure, unsavoury witnesses, direct indictments, hair microscopy evidence, and the use of stays of proceedings.

The report is available at: http://www.driskellinquiry.ca/pdf/final_report_jan2007.pdf (PDF, 5.4 Mb). *Note: To view PDF files you will need Adobe Acrobat Reader.

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

In September 2008, the Government of Saskatchewan released the Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard.^{Footnote 71}

In 1970, Mr. Milgaard was convicted of non-capital murder for the 1969 slaying of nurse’s aide Gail Miller in a snow-covered Saskatoon alley. On December 28, 1988, Mr. Milgaard applied to the Minister of Justice for a review of his conviction pursuant to then section 690 of the Criminal Code. On February 27, 1991, the Minister of Justice dismissed Mr. Milgaard’s first application, but after a second application, the Governor in Council referred the case to the Supreme Court of Canada on November 28, 1991.

On April 14, 1992, after the Supreme Court recommended to the Minister of Justice that she set aside the conviction and direct that a new trial be held, the Minister directed that a new trial should be held for Mr. Milgaard. On April 16, 1992, the Attorney General of Saskatchewan entered a stay of proceedings on that indictment. DNA evidence eventually exonerated Mr. Milgaard and was used to convict Larry Fisher of the murder of Gail Miller. Mr. Milgaard was eventually compensated $10 million.

In February 2004, the Government of Saskatchewan called a commission of inquiry into Mr. Milgaard’s wrongful conviction, headed by Mr. Justice Edward P. MacCallum of the Alberta Court of Queen’s Bench.

The Inquiry ran from January 2005 to December 2006, sitting a total of 191 hearing days. In total, 114 witnesses were called and over 3,200 documents were introduced in evidence.

The Commissioner made 13 recommendations, dealing with issues such as the retention of trial exhibits and police and prosecution files, statements taken from young persons, compensation of the wrongfully convicted, and the secrecy of jury deliberations.

The report is available online at: http://www.milgaardinquiry.ca/.

d) Inquiry into Pediatric Forensic Pathology in Ontario

In October 2008, the Government of Ontario released the report of the Inquiry into Pediatric Forensic Pathology in Ontario.^{Footnote 72}

The Inquiry, headed by Mr. Justice Stephen Goudge of the Ontario Court of Appeal, made 169 recommendations to improve the pediatric forensic pathology system in Ontario.

The Inquiry was appointed in April 2007 after the Office of the Chief Coroner of Ontario released the results of a review into 45 cases of suspicious child deaths between 1991 and 2002 where forensic pathologist Dr. Charles Smith either performed the autopsy or provided an opinion as a consultant.

In 20 cases, a panel of internationally respected experts in forensic pathology did not agree with the opinions given by Dr. Smith in a written report or court testimony, or both. In a number of these cases, the experts felt that Dr. Smith “had provided an opinion regarding the cause of death that was not reasonably supported by the materials available for review.” Twelve of those cases had resulted in criminal convictions, and one in a finding of “not criminally responsible.”

The Inquiry’s mandate was to conduct a systemic review and an assessment of the policies, procedures, practices, accountability and oversight mechanisms, quality-control measures, and institutional arrangements of pediatric forensic pathology in Ontario from 1981 to 2001 as they relate to its practice and use in investigations and criminal proceedings. The Commissioner was to make recommendations to address systemic failings and restore and enhance public confidence in pediatric forensic pathology in Ontario.

The Inquiry heard 47 witnesses, conducted 16 roundtable meetings, and reviewed 36,000 documents.

Commissioner Goudge concluded that there was “failed oversight” at all levels: “The oversight and accountability mechanisms that existed were not only inadequate to the task but were inadequately employed by those responsible for using them.”^{Footnote 73}

Since the release of the report, the Ontario Court of Appeal has heard several appeals in cases in which Dr. Smith testified and quashed at least five convictions.

The report is online at: http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge.

The following chart compares the key recommendations made by the four recent inquiries, as well as the three reports discussed in the 2005 Report. As well, each of the following chapters reproduces those inquiry recommendations relevant to the subject discussed in the chapter.^{Footnote 74}

The purpose of this report is clearly not to respond to each and every inquiry recommendation, nor is the Subcommittee necessarily endorsing them simply by reproducing them. However, these recommendations serve as a useful point of departure for discussion and have been carefully considered in the Subcommittee’s deliberations. As well, in many jurisdictions, much has been done to respond to, and implement, these recommendations and that too is highlighted in each chapter.

Recommendations by Commissions of Inquiries

1. Forensic Evidence

Morin^{Footnote 75}

• Limitations on Forensic evidence has to be appreciated by all the parties in a court proceeding and explained to the jury
• Forensic material should be retained to allow for replicate testing
• Scientists should be working to challenge or disprove a hypothesis rather than to prove one
• Defence should have access to forensic experts
• Scientists should be trained in testifying so their evidence isn’t misinterpreted

Sophonow^{Footnote 76}

• All reasonable tests should be performed on the evidence (duty on Prosecution and Police)

Driskell

• “Positive” conclusions should be reviewed and verified by another medical examiner
• Different examiner should be used to guard against “confirmation bias”
• Microscopic hair evidence should be received with great caution and when received, jurors should be warned of the inherent frailties of such evidence.
• Where hair microscopy evidence remains admissible, any conclusions should be expressed in “exclusionary” rather than “inclusionary” terms
• Judges must scrutinize the proposed evidence and weigh its probative value against its prejudicial effect

Goudge

• Professionalization of forensic pathology through legislative change, forensic pathology education, training and certification; recruitment and retention of qualified forensic pathologists; and adequate, sustainable funding to grow the profession.
• Reorganize the Ontario Forensic Pathology Service, reorganize relationships and strengthen service agreements between OFPS and regional units, teamwork between forensic pathologists.
• Forensic pathologists rather than pediatric pathologists should take the lead in criminally suspicious cases.
• Expand the number of pediatric forensic pathologists as quickly as possibly.
• Create Registry of Pathologists, consisting of “approved” pediatric forensic pathologists to conduct all criminally suspicious cases.
• Pathologists must recognize the limits of their expertise, be aware of the dangers of being misinterpreted, and effectively communicate their opinions and confidence levels within the criminal justice system.
• Enhance oversight, accountability and quality control / assurance through clear lines of responsibility for oversight and accountability, an institutional commitment to quality, development of a peer review process, and external standards and review mechanisms.
• Current best practices guidelines for forensic pathologists, as developed since 2001, should be followed and developed further.
• A Code of Practice and Performance Standards to reflect a consensus on how levels of confidence should be calculated.
• Specially trained and educated police officers, the creation of a Crown Child Homicide Team, and increased Legal Aid tariffs for defense counsel with the necessary skills to defend pediatric death cases.
• Regular joint courses for Crown and defense counsel for education in forensic pathology and law school courses in basic scientific literacy and the interaction of science and the law.
• Judges should be continuously educated on and vigilantly exercise their gatekeeper roles: defining the limits of the expertise and confining the witness’s testimony to it and ensuring that all evidence meets the test of threshold reliability.
• Development of a Code of Conduct for expert witnesses who testify in criminal cases.
• The Province of Ontario should provide adequate resources to ensure coronial and forensic pathology services in Northern Ontario.
• Coroners should receive training on cultural issues, particularly surrounding death, to facilitate the performance of their responsibilities.

Milgaard

• Dedicated medical examiner’s facilities should be established in one or more major centers where autopsies in cases of sudden death would be performed by qualified forensic pathologists in the service of the province

2. In-Custody (Jailhouse) Informants

Marshall^{Footnote 77}

• Limited use

Lamer

• Recommendations from the Sophonow Report should be incorporated into Crown Policy Manual

Sophonow

• Prohibited except in rare circumstances (e.g., kidnapping where witness knows whereabouts of Victim)

Driskell

• Recognition of the fact that their evidence may be suspect
• Policies should be revised to specifically provide that all benefits requested, discussed, or provided or intended to be provided at any time in relation to any “central” witness be recorded and disclosed

a) Prosecution procedure for using in-custody informers

Morin

• Crown policy should reflect dangers of such evidence
• Reliability of evidence is key (lists 13 criteria on assessing reliability)

Lamer

• Recommendations from Sophonow should be applied

Sophonow

• 3 criteria from Morin are focused on: [(1) information could only be known by one who committed the offence; (2) information is detailed and revealing; (3) confirmed by police investigation as correct and accurate] AND the other 10 are also noted

(b) Jury warning

Morin

• Warning stronger than a Vetrovec should be given

Lamer

• Recommendations from Sophonow should be applied

Sophonow

• Very strong direction as to the unreliability of the evidence

3. Police

a) Training of Officers

Marshall

• More intensive training for cadets involved with high profile crimes
• Training should be monitored by parties outside the police force
• Evaluation of investigative capabilities
• Training with respect to sensitivity on visible minority issues

Morin

• Setting of minimum standards respecting initial and on-going training

Sophonow

• Attendance at annual lecture/course for all officers on tunnel vision

Driskell

• Policies and steps taken in August 2006 by the Canadian Association of Chiefs of Police in regard to the prevention of miscarriages of justice are recommended

Lamer

• Policies and protocols should be established to assist officers in obtaining independent expertise
• Policing standards should be developed with respect to qualifications, initial and ongoing training and criminal investigation
• Provide improved training on note taking

(b) All interviews conducted with suspects should be video/audio-taped

Marshall

• Recommended

Morin

• Recommended
• If not videotaped, trial judge can draw negative inference

Sophonow

• Recommended
• If not videotaped, general rule is should be inadmissible

Driskell

• Recommended

Lamer

• Recommended
• (field interviews should be audio-taped)

Milgaard

• Recommended

(c) Police should be encouraged to videotape interviews with witnesses whose testimony may be challenged in court

Morin

• Recommended
• Training for police interview techniques to enhance reliability

Lamer

• Recommended

Sophonow

• Interviews with Alibi witnesses should be video/audio taped and inadmissible if not transcribed

Milgaard

• Recommended

(d) Special care to be given for certain categories of witnesses when interviewing

Marshall

• Recommended for youth or mentally unstable witnesses/suspects

Sophonow

• Recommended for youth or mentally unstable witnesses/suspects

Lamer

• An expert should be “on-call” to assist in the interviewing of child witnesses

(e) Alibi witnesses: officers other than officers involved in investigation of Accused should investigate alibi of accused

Morin

• Recommended

Sophonow

• Recommended

(f) Avoidance of tunnel vision

Morin

• Education of police officers on how to identify and avoid tunnel vision
• Status of investigating officers should not be elevated for pursuing “best” lead/suspect

Sophonow

• Attendance at annual lecture/course for all officers on tunnel vision

Milgaard

• Mandatory sharing of investigation reports between all police forces assisting in major cases
• Reports should be directed to file manager to become part of the major case management file

(g) Use of polygraphs

Morin

• Police should be instructed as to the proper use and limitations of polygraphs

Sophonow

• Not a substitute for a full and complete investigation
• Caution must exercised to ensure that too much reliance is not placed on results and that the investigation is not misdirected as a result
• Polygraph test should always be videotaped
• Must NOT be conducted after an interview with an investigator
• Investigator must not fulfill role as polygraph examiner

(h) Limited Use of Criminal Profiling

Morin

• Police should use as an investigative tool only

(i) Must be a comprehensive and consistent retention policy for police notebooks

Morin

• Notebooks should be easily located
• Ultimate goal should be towards computerization

Lamer

• Recommended

Sophonow

• Notebooks should not be stored by individual officers
• Should be stored by the municipality (might be preserved on microfiche)
• Kept for 20-25 years

Driskell

• Recommended
• (Disclosure to Crown of all information relating to the investigation whether relevant or not)

Milgaard

• Indictable offence cases: Notebooks in original form should be retained for a year, then scanned into permanent, secure electronic record

(j) Preservation of exhibits

Milgaard

• In all homicide cases, all trial exhibits capable of yielding forensic samples should be preserved for a minimum of 10 years. (Convicted persons should be given notice of impending destruction allowing for applications for extensions.)
• In all indictable offences cases, documentary exhibits should be scanned and stored electronically

Sophonow

• Exhibits should be kept for 20 years

(k) Eye Witness Identification

Sophonow

• Lays out additional procedure for live line-up identification
• Lays out additional procedure for photo-pack line-up identification
• Strong and clear directions to jury on frailties of eye-witness identification
• Expert evidence on accuracy of eye-witness identification should be readily admitted

(l) Missing person investigations

Morin

• Police should be mindful that it may escalate into major crime investigation and must take appropriate measures to preserve evidence
• Lists proper procedure to employ in a body site search

(m) Note Taking

Morin

• 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;
• 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;
• There should be a comprehensive and consistent retention policy for notes and reports. Original notes must be retained to enable their examination by the parties at trial and their availability for ongoing proceedings;
• A policy should establish practices to enable counsel and the police themselves to easily determine what notes and reports do exist;
• The pages of all notebooks, whether standard issue or not, should be numbered;
• Policies should be clarified, and enforced, respecting the location of notebooks;
• 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;
• The computerization of police notes must be the ultimate goal towards which police forces should strive;
• Policies should be established to better regulate the contents of police notebooks and reports reinforcing the need for a complete and accurate record of interviews conducted by police, their observations, and their activities.
• Policies should be established to ensure real supervision of note taking practices, including spot auditing of notebooks.

Lamer

• Adopt and incorporate the recommendations for interviewing, note-taking and statement-taking as outlined in the Morin Inquiry Report.

4. Crown

Lamer

• Crown Policy should include direction on when withdrawal of charges, stays of proceedings, and elections to call no evidence and request an acquittal, are appropriate

Driskell

• In the context of s. 696 cases, if “stay” is to be used, the decision should be made personally by the Attorney General

(a) Training

Marshall

• Programs to identify and reduce system discrimination

Morin

• Crown should be educated on identification and avoidance of tunnel vision
• Evidence of other suspects should be revisited

Lamer

• Senior Crowns should mentor junior Crowns on matters relating to critical analysis of evidence and the limits of Crown advocacy

Driskell

• Senior Crowns should foster critical thinking in their younger counterparts

Milgaard

• Crown attorneys should be educated regarding tunnel vision and should avoid leaving the impression that they are heavily interested in a case on a personal level

(b) Strength of evidence

Morin

• Crown duty not to raise evidence that is reasonably considered to be untrue

Lamer

• Director of Public Prosecutions should establish a failsafe system to ensure the evidence in every major case is critically assessed by a Crown attorney, at the latest, upon completion of the preliminary inquiry
• Crown Policy should be in place to guard against Crown calling inherently unreliable evidence.

Sophonow

• Will render trial unfair if Crown raises prejudicial issues without adequate evidence

Driskell

• Direct indictment only where exceptional circumstances justify such a procedure (due to the loss of opportunity for accused to test the Crown’s case)
• Accused’s counsel should be invited to make submissions to the Attorney General in cases where there has not been a preliminary inquiry

(c) Interviewing Techniques

Morin

• Lists criteria for increasing reliability of interviews including taping of interviews

Lamer

• Crown Policy should provide clear guidelines for the interviewing of child witnesses

(d) Crown advocacy

Morin

• Crowns should be trained on limits of crown advocacy including being prevented from appealing jury acquittal

Driskell

• Experienced Crown attorneys should foster critical thinking and independence in younger counterparts

Lamer

• Crown Policy should provide clear guidelines as to the limits of Crown advocacy
• Senior Crowns should mentor junior Crowns relating to appropriate limits of advocacy

(e) Crown disclosure

Marshall

• Amendments to Criminal Code re: disclosure

Morin

• Creation of committee to review and discuss disclosure issues

Driskell

• Paramount
• Recommended that pre-trial disclosure policy be extended to include post-trial disclosure.
• Revised policy must incorporate a procedure by which Manitoba Justice receives this information from the police and then discloses it to the accused or counsel

5. Lack of independent review of wrongful convictions

Marshall

• Independent board to review wrongful convictions

Morin

• Independent board to review wrongful convictions

Sophonow

• Independent board to review wrongful convictions

Lamer

• Independent review of the Office of the Director of Public Prosecutions with a view to ensuring that “Crown culture” that contributes to wrongful convictions is eliminated

Driskell

• Where person comes forward claiming a wrongful conviction, Manitoba Justice should direct an independent external review of the case

Milgaard

• Independent board to review wrongful convictions
• Review agency would report directly to the Court of Appeal of the province or territory which registered the conviction
• Complaints to police calling into question the safety of a conviction should be referred to the Director of Public Prosecutions

6. Relationship between Crown and Defence

Morin

• Provincial government should provide funding for criminal bar to discuss relevant issues

Sophonow

• Atmosphere of suspicion as between crown and defence bar should be alleviated by regular meetings to discuss issues

Lamer

• A Criminal Justice Committee should be established to identify problems, engage in dialogue and to seek improvements to the administration of justice on an ongoing basis

7. Lack of disclosure of Alibi defence

Morin

• Legislative amendments should be made to permit an accused’s exculpatory statement made upon arrest in certain conditions

Sophonow

• Disclosure by the defence should be within a reasonable time

8. Lack of sensitivity of the Criminal Justice System to visible minorities

Marshall

• All levels of the Administration of Justice (Judiciary, Counsel, Corrections, etc) should make efforts in this regard
• Creation of separate community controlled Justice system for Aboriginal peoples

9. Treatment of the accused

Morin

• Person charged with crime should be treated neutrally in court

10. Jury Charge

Morin

• Jury should be cautioned that evidence may be coloured by the criminal charges or other external factors such as the notoriety of the case

Sophonow

• Jury should be cautioned with respect to eye-witness fallibility and unreliability of in-custody informants

11. Limited powers of the Court of Appeal

Morin

• Court of Appeal should be allowed to entertain “lurking doubt” when deciding whether to set aside a conviction
• “Fresh evidence” powers of the Court of Appeal should be expanded/changed

Lamer

• Rules of the Court of Appeal should be reconsidered with a view to authorizing the Court to intervene sooner

12. Procedure in laying of charges

Marshall

• Sets out additional recommendations for Police and Crown

13. Lack of clarity of public interest considerations

Marshall

• Lists criteria related to the public interest with respect to continuing a prosecution

14. Amendments to the Criminal Code

Lamer

• Amendments to permit jurors to be interviewed, subject to stringent conditions, by commissioners conducting inquiries into wrongful convictions, should be pursued
• Amendment to raise the threshold criterion for directing a verdict of acquittal should be pursued

Milgaard

• Amendments to allow for academic inquiry into jury deliberations with a view to gathering evidence of the extent to which jurors accept and apply instructions on the admissibility of evidence. (Amendments to s. 9 of the Canada Evidence Act should then be considered)

15. Judiciary

Lamer

• When vacancies occur in superior courts, the Chief Justices and the Minister of Justice should be vigilant in identifying the need for criminal law experience and expertise
• Chief Justices must be cautious in the assignment of judges to complex criminal trials

16. Compensation

Milgaard

• Factual innocence as sole criteria for paying compensation is unduly restrictive. Door should not be closed for lack of proof of factual innocence.