Justice Miscarried
Inside Wrongful Convictions
in Canada
Hélèna Katz
Dedication
To the men and women whose lives have been stolen from them by wrongful convictions, and to the dedicated and passionate people who work tirelessly to free them.
Contents
Introduction
Part I - Police Investigation: Making the Case
Chapter 1 - Unreliable Witnesses: The David Milgaard Case
Chapter 2 - Racism: The Donald Marshall Jr. Case
Chapter 3 - Cooking up Evidence: The Jason Dix Case
Chapter 4 - False Confession: The Simon Marshall Case
Chapter 5 - Withholding Evidence: The Gary Staples Case
Part II - Forensic Investigation: Nailing the Evidence
Chapter 6 - Jailhouse Informants and Faulty Forensics: The Guy Paul Morin Case
Chapter 7 - Deadly Cereal: The Ronald Dalton Case
Chapter 8 - Down the Stairs: The Clayton Johnson Case
Chapter 9 - Natural Causes: The William Mullins-Johnson Case
Part III - Before the Court: Pleading the Case
Chapter 10 - Prosecutorial Misconduct: The Thomas Sophonow Case
Chapter 11 - Eyewitness Misidentification: The Michel Dumont Case
Chapter 12 - Questionable Tactics: The Case of Gordon Folland
Appendix A - Other Cases of Wrongful Conviction in Canada
Appendix B - Compensation for Wrongful Convictions
Appendix C - Commissions of Inquiry into Wrongful Convictions in Canada
Appendix D - Resources
Appendix E - Further Reading
Acknowledgements
Introduction
“You are asking the government for mercy, for something you have never done.”
— David Milgaard, about his application to the federal justice minister to have his wrongful conviction for murder overturned.
A friend once confessed that it bothered her that people who have been convicted of a crime and imprisoned have the right to appeal their convictions and sentences.
“The appeals system wasn’t made to protect the guilty,” I said. “It was created to protect people who are wrongly convicted. Do you really want to have innocent people behind bars with no way to right the wrong when the justice system makes a mistake?” She nodded thoughtfully and agreed that the justice system needs checks and balances.
Behind the proud façade of Canada’s criminal justice system lie the shattered lives of the people unjustly caught in its web. Justice Miscarried tells the heart-wrenching stories of twelve innocent Canadians who were wrongly convicted, and the errors in the justice system that changed their lives forever. The sad truth is that while laws may appear to be infallible, the people who apply them are not. No one is immune to error — not those who gather evidence over the course of a police investigation, nor those who conduct autopsies and forensic testing, prosecute and defend cases, and preside over trials. Wrongful convictions were once viewed as isolated occurrences, but that is no longer the case. More than a half-dozen inquiries, from Saskatchewan to Newfoundland, have highlighted systemic reasons why things can — and do — go horribly wrong. Unfortunately, the people in the justice system aren’t necessarily good at admitting to mistakes and correcting them quickly. As lawyer James Lockyer told The Globe and Mail, “A wrongly convicted person becomes a victim on an express train without brakes.”[1]
Canada doesn’t have the death penalty, but the impact of wrongful convictions should never be underestimated. Life behind bars is dangerous, it’s a world where being assaulted by other inmates isn’t unusual. Ronald Dalton, who was wrongly convicted of murdering his wife, described prison life in an interview with The Globe and Mail:
There was always a pervasive air of tension in prison. The first time you’re in the gymnasium and a shotgun goes off from the gun tower, that gets to you. You develop a heightened sensitivity to what is going on around you. You learn to read the lay of the land, because you don’t know who is having a bad day or carrying a shiv. You can’t go around proclaiming your innocence in prison. Once you’re there, nobody wants to hear your sad story, because they all have their own. But you never give up hope, because it’s all you have to cling to. I’ve seen people go steadily downhill after they lost their last appeals, and had no more hope left.[2]
The prison system is not kind to people who have been wrongly convicted. Parole boards frequently perceive their continued statements of innocence as a lack of remorse, and evidence that they have yet to be rehabilitated. Consequently, they are frequently denied parole and end up spending many more years in prison than if they had admitted guilt for a crime they didn’t commit. Meanwhile, the lost years away from their families can never be regained. Dalton spent more than eight years behind bars. He missed seeing his three children grow up. His daughter was in kindergarten when he went to prison; within days of his release, he watched her graduate from high school. As the cases profiled in this book clearly demonstrate, the assumption that every conviction is legitimate is incorrect.
The stigma of a criminal conviction follows its victims long after their incarceration. When Thomas Sophonow was acquitted in 1985 of murdering Winnipeg doughnut shop waitress Barbara Stoppel, he hoped that other people would give him a chance. But he knew what lay ahead. “The theory of the propagandist is that if you repeat something often enough, over and over again, people seem to accept it as being the truth.”[3] A colleague at the manufacturing plant where he worked in 2002 hung a tag with the word “murderer” on his coveralls.
Wrongly convicted men and women aren’t the only victims. What about their families and those of the injured or murdered victims? They, too, are often traumatized by wrongful convictions. The victims’ families often feel some relief from knowing that the perpetrator is behind bars. But what happens when they learn that the real perpetrator continues to roam free? Do they relive the trauma of losing a loved one all over again along with not knowing what really happened? Nobody is held accountable if a murder remains unsolved. As time marches on and the trail gets colder, it can become more difficult to find the real killer. And what does it do for the confidence of the victims and their families in the criminal justice system? As Tim Orydzuk’s mother Jane pointed out in a letter to the editor that appeared in the Edmonton Journal, “There have been compound losses for the two families. Not only did we lose our boys, but we lost our faith in the Canadian justice system…. In the eyes of the justice system, it’s over. Nobody has been held accountable. There is still an empty chair around our table and a little girl who wonders why she has to grow up without her daddy.”[4]
In some cases of wrongful conviction, such as the murders of Sandy Seale and Gail Miller, another person is eventually found guilty of the crime that was initially attributed to an innocent person, such as Donald Marshall Jr. and David Milgaard, respectively. Even in such cases, families have to relive the trauma of losing a loved one as another trial with yet another suspect takes place.
The book’s first section profiles five cases where some of the most egregious errors were made during police investigations. Forensics experts