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J O U R N A L O F

CLINICAL
FORENSIC
MEDICINE
Journal of Clinical Forensic Medicine 13 (2006) 296–299
www.elsevier.com/locate/jcfm

Original communication

Wrongful convictions, lessons learned: The Canadian experience


Jeffrey R. Manishen (Barrister and Solicitor)
Ross and McBride LLP Hamilton, Ont., Canada L8N 3P7

Available online 6 October 2006

Abstract

Following the wrongful conviction of a man for the sexual assault and murder of a child, the Province of Ontario commissioned a
public inquiry to prevent future miscarriages of justice. The implementation of several recommendations regarding forensic laboratory
procedure and the presentation of expert evidence has proven to be beneficial to the Canadian criminal justice system.
Ó 2006 Elsevier Ltd and AFP. All rights reserved.

Keywords: Wrongful conviction; Expert evidence; Canadian criminal justice

In a democratic society such as Canada, great pride is This paper is intended to outline the highlights of his
taken on the fairness of its criminal justice system. The very recommendations regarding forensic science, the progress
foundations – the presumption of innocence, the burden of made in implementation, and the most recent efforts to
proof on the Crown, the standard of proof beyond a rea- improve the quality of Canadian criminal justice. It is
sonable doubt, the right of the accused to counsel and to hoped that other countries may derive benefit from Can-
remain silent, the obligation of the Crown to make full dis- ada’s experiences in the interests of justice on the interna-
closure of all evidence in its’ possession – all have as their tional level.
underlying basis the recognition that it is better for 10 who
are truly guilty to go free than to convict a single innocent 1. Overview of the prosecution of Guy Paul Morin
person.
Yet miscarriages of justice have still occurred in Canada On October 3, 1984, 9-year-old Christine Jessop went
with consequences which have included lengthy terms of missing. On December 31st, 1984, her remains were found.
imprisonment. Following a police investigation, a neighbour named Guy
Over the last several years, a number of wrongful con- Paul Morin was charged with first degree murder on April
victions have been identified. As a consequence, various 22nd, 1985. He was acquitted at his first trial but the ver-
measures have been employed to prevent the recurrence dict was reversed and a new trial ordered by the Court of
of such unfortunate events. Appeal for Ontario. On July 30, 1992, he was convicted
The most comprehensive analysis undertaken in Canada by a jury of the offence charged. He successfully appealed
occurred during The Commission on Proceedings Involv- that verdict and an acquittal was ordered by the Court of
ing Guy Paul Morin, a public inquiry ordered by the Gov- Appeal on January 23rd, 1995.
ernment of the Province of Ontario as a result of a The case against Morin involved an array of circumstan-
wrongful conviction on a charge of murder. Retired Que- tial, forensic and police evidence. In addition, the Crown
bec Court of Appeal Justice Fred Kaufman served as Com- called individuals who were referred to as ‘‘jailhouse infor-
missioner and released his Report on March 31, 1998 after mants’’ as to remarks they claimed Morin made to them.
extensive hearings on a broad range of issues. 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
E-mail address: jmanishen@rossmcbride.com. innocence. The real killer has never been apprehended.

1353-1131/$ - see front matter Ó 2006 Elsevier Ltd and AFP. All rights reserved.
doi:10.1016/j.jcfm.2006.06.006
J.R. Manishen / Journal of Clinical Forensic Medicine 13 (2006) 296–299 297

The inquiry was directed to investigate and determine 6. The police investigators had several meetings with the
why an innocent person was convicted. Following several scientists. There was a dispute on what the witnesses
months of testimony and submissions for all parties includ- told the investigators who operated on an under-
ing representation for the Crown, the police forces involved, standing of the opinions which formed part of the
Mr. Morin, the Jessop family, the Ontario Centre for decision to charge Morin. Further, one witness
Forensic Sciences (hereafter referred to as ‘‘the CFS’’) and claimed that she felt ‘‘pressured’’ by the investigators
other interested organizations, a 2-volume Report was regarding the strength of her opinions, whereas the
released detailing factual findings and recommendations. police asserted that they were simply concerned about
the length of time it took to receive her report.
2. The forensic evidence in issue 7. Contamination of the area where the fibres had been
tested was found to have occurred. This was not dis-
At both trials, the Crown called witnesses employed closed to the defence.
with the CFS to give opinion evidence regarding hair and 8. Between the first and second trials, many of the items
fibre evidence as well as indications of blood found in Mor- used in testing and related notes had disappeared.
in’s vehicle. In particular, a hair found on Christine’s neck- 9. Terminology such as ‘‘could not be excluded’’, ‘‘con-
lace could have come from Morin. Fibres found on her sistent with’’, ‘‘matches’’ and ‘‘could have come
clothing and one of her belongings had similarities to fibres from’’ had the capacity to overstate the strength of
from Morin’s home and car. The Crown was permitted to the opinions expressed.
lead evidence of the British study by Jackson and Cook on 10. Notwithstanding her training, one of the scientists
random comparisons and matches. The Crown made was not objective in her testimony in a fashion
extensive reference to this evidence as providing a link unduly favourable to the Crown.
between Morin and Christine, particularly as she had never
been in his car.
During the course of the Inquiry, Mr. Kaufman identi- 3. The recommendations and the response
fied several problematic areas in this evidence. Apart from
the possibility that evidence of such limited value as the Mr. Kaufman provided some 34 recommendations on
hair comparison or the ‘‘indications of blood’’ (which did the subject of forensic evidence and the Centre of Forensic
not mean the presence of human blood at a minimum) Sciences.1 In several instances, the CFS had made changes
should not have even been admitted given its potentially to their procedures by the time of the final submissions at
prejudicial effects, his findings included the following: the Inquiry. Several recommendations have resulted in sig-
nificant changes including:
1. The fact that the necklace hair could also have come
from 2 of Christine’s classmates was only identified 3.1. Recommendation 2– Hair comparison evidence of
after the first trial. The strength of opinion evidence limited probative value
regarding hair comparisons was very limited given
the state of scientific knowledge on the subject. With the availability of DNA options and the problems
Accordingly, the possibility that it also could have arising from the use of hair comparison evidence at this
come from Morin was of virtually no evidentiary value. and other trials, hair is now used investigatively. It is
2. There were a number of common features arising screened for roots for DNA analysis and is also used for
from the fact that the Morins and the Jessops were exclusions.2
neighbours, including the use of the same laundro-
mat, members of each family being in the other’s 3.2. Recommendation 6 – Forensic opinions to be acted upon
homes or cars, etc., which were not taken into only when in writing
account by the CFS witnesses as possible explana-
tions for the similar findings. The CFS Report Writing Policy requires that all verbal
3. The Jackson and Cook study was not interpreted cor- results be documented, followed up with a written report
rectly by either the witness or the Crown and did not and all details of the verbal and written results included
provide real support for the witness’ opinion, given dif- in the case file.
ferences 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
1
their opinions having regard to the small number of The entire list of recommendations are included in Appendix A as part
fibres available for comparison. of the ‘‘FPT Heads of Prosecutions Committee Report of the Working
5. Additional investigative work was carried out by CFS Group of the Prevention of Miscarriages of Justice’’ released January,
2005.
staff to look for other fibre transfers and no addi- 2
Information regarding implementation of the Kaufman Recommen-
tional matches were found. However, this work was dations at the Centre of Forensic Sciences including current policies and
not disclosed to the defence. other materials was provided by Mr. Ray Prime, Director of the Centre.
298 J.R. Manishen / Journal of Clinical Forensic Medicine 13 (2006) 296–299

3.3. Recommendation 7 – Written policy for forensic reports tre has testified. The letter is sent administratively rather
than at the instance of the scientist. All letters are
A comprehensive Report Writing Policy and Guidelines acknowledged and all complaints investigated, usually
has been established. Its objectives include an account for including a review of the transcript of the testimony.
the integrity of items including chain of continuity; identi- The Court Letter response is shared with the scientist
fication of tests conducted, items examined and the reasons and the respondent is informed of the outcome of the
for items not examined or requested tests not done; the investigation.
results of the examination and testing; and the conclusions A report of all complaints is received annually by the
that can reasonably be drawn and the relevant limitations Director and action taken is given to the Advisory
on such conclusions. An information sheet, including a Committee.
glossary of terms used, details of the examination
employed and, where appropriate, examples of verbal qual- 3.8. Recommendation 22 – Post-trial case conferences
ifiers of likelihood ratios, accompanies the report.3
These have occurred infrequently. However, an increas-
3.4. Recommendation 15 – Documentation of contamination ing level of pre-trial case conferences has been utilized to
facilitate investigations.
In accordance with the requirements of the Report Writ-
ing Policy, perceived contamination possibilities are to be 3.9. Recommendation 24 – Monitoring of courtroom
addressed in the report. Identified contamination must be evidence
addressed in accordance with the Corrective and Preventa-
tive Action Policy, including a report to the Forensic Sci- A court monitoring policy requiring managers to make
ence Advisory Committee regarding the incident and a genuine effort to observe evidence by one of several
action taken. An amended report is required if contamina- means, most preferably direct observation in court, has
tion is identified after a report is issued and all parties are been established. Mock courts are employed for scientists
advised. who may not have been called to testify for significant peri-
ods of time. Direct personal review has been significantly
3.5. Recommendation 19 – Creation of advisory board to the increased.
Centre
3.10. Recommendation 25 – Training of centre staff
This has been established with representation from all
parties including Crown and defence counsel as well as In addition to training on the issues of miscarriages of
the police. A similar Forensic Services Advisory Commit- justice and ethics, a CFS-specific Values and Ethics course
tee has been established in 2004 through the Office of the for all staff is currently being developed.
Chief Coroner of Ontario for provincial pathologists and
forensic scientists in other disciplines. 4. Current efforts to prevent miscarriages of justice in
Canada
3.6. Recommendation 20 – Quality Assurance Unit
In addition to the many substantial efforts to implement
At the time of the Inquiry, the Centre employed a ded- the recommendations of Mr. Kaufman, Canadian officials
icated Quality Manager. Subsequently, a full Quality have continued to seek to identify the causes of wrongful
Assurance Unit was established. It organizes audits for convictions and to develop practices to prevent their
many procedures in place. The Policy Co-Ordinator annu- recurrence.
ally revisits and refines policies established since the As a consequence of the Morin Inquiry as well as others,
Inquiry and provides training to staff. The Training Man- the Federal, Provincial and territorial Heads of Prosecu-
ager’s role has expanded to include responsibility for the tions Committee established a Working Group on the Pre-
Organizational Section. vention of Miscarriages of Justice.
The Report, available on the internet at http://can-
3.7. Recommendation 21 – Protocols respecting complaints ada.justice.gc.ca/en/dept/pub/hop, deals with recommen-
to the Centre dations on a range of topics including tunnel vision,
eyewitness identification and testimony, false confessions
The Centre utilizes a Court Letter4 sent to all counsel and other areas. The recommendations on Forensic Evi-
involved in proceedings at which a scientist from the Cen- dence and Expert Testimony are attached in full at
Appendix A herein and emphasize enhanced training,
3 education and resources for prosecutors dealing with
The Information Sheet Examplar and Examples of Verbal Qualifiers
forming Appendices 2 and 3 to the Report Writing Policy are attached
expert evidence.
hereto as Appendix B. The Province of Manitoba has established a Forensic
4
Appendix C. Review Committee to address issues involving the possible
J.R. Manishen / Journal of Clinical Forensic Medicine 13 (2006) 296–299 299

miscarriage of justice for offences including sexual assault 5. Conclusion


and robbery as a result of the use of microscopic hair com-
parison evidence.5 As the criminal trial process will always involve a multi-
An international conference, ‘‘Unlocking Innocence: tude of human variables for all participants, there is no uni-
Avoiding Wrongful Conviction’’, involving judges, Crown versal method to prevent a wrongful conviction. It is
and defence counsel, law enforcement personnel, journal- hoped, however, that the identification of specific problems
ists and victims of wrongful convictions, scheduled for and the implementation of practices designed to ensure
October 20–22, 2005, will seek further solutions to this seri- fairness and accountability will result in the optimal utiliza-
ous problem. tion of science and expertise in the search for justice.

5
The Terms of Reference of the Manitoba Forensic Review Committee
are attached as Appendix D.

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