Opinion: ‘The system is completely imbalanced in favour of the investigators and the prosecution’
A comprehensive new national report on what police and prosecutors can do to prevent wrongful convictions doesn’t go far enough.
Released by the Federal-Provincial-Territorial Heads of Prosecutions Committee, entitled “Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada,” it is the third in a series that includes volumes from 2005 and 2011.
The report canvasses the latest information and updates earlier recommendations on the usual causes of wrongful convictions: Tunnel vision, eyewitness misidentification, false confessions, in-custody informers and the abuse of forensic evidence and expert testimony.
Still, watching a handful of the many documentaries on wrongful conviction on Netflix or another streaming service would provide as good a survey and have far more emotional impact.
Not surprisingly as it was written by senior cops and prosecutors, the report concludes there is a high level of awareness within the police and Crown about the causes of wrongful convictions and what can be done to prevent them.
They might be aware, but I don’t think much has changed over the years.
Another wrongfully convicted B.C. man, Kyle Unger, who spent 14 years behind bars, received an out-of-court settlement Monday in Manitoba.
His was the fourth case involving former Crown prosecutor George Dangerfield, responsible for three other overturned murder convictions!
Here in B.C., there are at least two murder convictions that seem likely to be declared miscarriages of justice.
The controversial Mr. Big stings run by the RCMP continue to snare naive individuals, costing taxpayers tens-of-millions of dollars in wasted investigative costs and legal settlements such as the latest in Manitoba.
Last year, another prosecution built on one of these sophisticated, expensive ruses collapsed on Vancouver Island.
Seven commissions of inquiry have highlighted police and prosecutorial conduct that contributed to wrongful convictions.
Yet the litany of victims continues to grow and cast a pall across the country … Stephen Truscott, Donald Marshall, Thomas Sophonow, David Milgaard, Guy Paul Morin, Ivan Henry …
While those high-profile cases got attention, however, they are the tip of the iceberg — underneath the surface, there are many more.
“It’s the little cases — that’s where you get a lot of miscarriages of justice,” Vancouver lawyer Tom Arbogast explained.
“That’s where there needs to be attention. Cases where someone is charged with say, sex assault, or property crime that they might not have done, how do you fight that when there are so many of them in the system? It’s not just the big tent-pole cases that are the problem, it’s all the little ones, too.”
Veteran Vancouver defence lawyer Donna Turko agreed.
“The report doesn’t go as far as I would have liked to see and is more of a summary of existing knowledge,” she said.
“There is no mention of many other problems such as a lack of experienced murder lawyers, especially outside of the bigger cities — another causality of poor legal-aid funding. There is nothing mentioned of the need for uniform policies of retention of evidence by police, Crown, courts and defence. And it is silent on post-conviction disclosure.”
Still, the report does represent progress.
For the first time, the new volume includes chapters on Crown advocacy, false guilty pleas and certain at-risk populations, such as youth, women and Indigenous Canadians, who are more likely to be wrongfully convicted.
It recommends further research into the circumstances that lead to false guilty pleas because they are becoming more and more frequent — the legal fees and the time spent fighting a case in clotted courts can be more costly than a guilty plea and fine or brief jail stint.
When most working people don’t qualify for legal aid and the legal fees on even a minor criminal charge will financially cripple them, a plea deal — even if they are innocent — can make economic sense.
“I’m encouraged that things like this are being discussed — false guilty pleas,” Arbogast said.
“That’s something that hasn’t been appreciated and it happens. The system is completely imbalanced in favour of the investigators and the prosecution. It’s going to lead to a situation like in the U.S. where you get these cases just railroaded through the system. Hopefully, that’s something that’s now front and centre.”
Arbogast has been handling the historic appeal of Phillip James Tallio, convicted in 1983 after he pleaded guilty to second-degree murder.
He hopes to present the complicated matter to the B.C. Court of Appeal in February or March 2020, nearly four years after it was filed in December 2016.
Tallio has been in prison since he was 17. Think about it.
Arbogast noted the new report cited a much-quoted Supreme Court of Canada comment on false guilty pleas: “It behooves governments and other criminal justice system participants to investigate the scope of the problem, why it is happening, and whether all reasonable steps that could be taken to reduce false guilty pleas in criminal cases in Canada are being taken, or whether more can and should be done.”
“You have all these studies from 2005, 2011, and now 2019 — but what is being done?” he asked rhetorically.
“As you know we Canadians are great at navel-gazing, studying and making recommendations, but I don’t think we’re great at taking the ‘reasonable steps’ part. We’ll write them down and then make them shelf-ware. Hopefully, this report will spur and continue to spur some change.”
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