Advances in DNA technology have helped solve some murders and exonerate a number of wrongly convicted men and women. From gunshot residue tests to hair and fibre analysis and DNA testing, forensics are playing an increasingly important role in criminal investigations. Jurors place much weight on scientific evidence and expert testimony because of the air of infallibility and accuracy that science enjoys. This gives experts inordinate influence during criminal trials and makes the expert witness a powerful weapon in the Crown and defence’s arsenal. However, it is critical that they remain objective in their analysis and avoid being influenced by the person who hired them. Remaining neutral and keeping an open mind is tricky business, particularly since medical examiners, pathologists, and other forensic experts work closely with police officers and Crown prosecutors. Experts could be influenced, however subtly, to find evidence that supports a conclusion the police have already reached.
Until 2003, forensic pathology was not a recognized medical subspecialty in Canada and there was no formal training or certification. Consequently, many forensic pathologists did not have training in their field of practice; they learned on the job. In addition to a lack of neutrality, lack of training, and lack of adherence to scientific conventions can lead forensic experts to peddle bad science as credible evidence, leading to wrongful convictions and lost years behind bars.
The flip side is that the advent of DNA evidence has opened prison doors, letting a number of wrongfully convicted people free. According to the Innocence Project in New York, the first person exonerated by DNA evidence was in 1989. Some 266 people have been exonerated in the United States thanks to post-conviction DNA. At least seventeen of them served time on death row.
While DNA evidence has been a boon for so many wrongly convicted people, it has also presented a challenge for individuals who don’t have access to the evidence that could exonerate them. DNA evidence has become the gold standard for exonerations. Without it, it’s harder to convince courts that a miscarriage of justice has occurred based on other evidence such as faulty eyewitness identification or bad science. This makes the fight for exoneration and compensation much more difficult.
Until a landmark Supreme Court of Canada ruling in 1991, the Crown prosecutors’ failure to disclose evidence was an ongoing issue that could prevent an accused from getting a fair trial. Defence lawyers frequently felt ambushed during trials, as they were not given access to documents that could help them mount a full defence, or potentially exonerate their clients. With little duty to disclose, the Crown only had to provide defence counsel with the evidence that the prosecution considered relevant.
In 1991, the Supreme Court of Canada ruled that the Crown has a duty to fully disclose all evidence to the defence — not just the information it planned to present in court. In an adversarial justice system, securing convictions can take precedence over finding the truth. In a stinging comment, Justice Felix Cacchione told the Marshall inquiry that some prosecutors seemed to measure their success by the number of convictions they were able to secure: “Unfortunately, I found with certain persons it was a matter of how many notches did you have on your ‘win’ belt.”[5] This raises the question: What is the role of the prosecutor in the criminal justice system? Is it to win convictions or to find the truth?
Judges bring their own level of knowledge and experience with criminal law to their positions. In Quebec, for example, lawyers need to have been in practice for ten years before they can apply to become a provincial court judge. However, the law doesn’t require that they have courtroom or criminal law experience. That’s why former Newfoundland Supreme Court of Appeal Justice William Marshall told a conference on wrongful convictions that trial judges can also make errors that lead to wrongful convictions. “It is difficult to perceive how any credible inquiry into a wrongful conviction could be commissioned without expectation that every stage of the judicial process leading to the miscarriage — including the judiciary’s acquittal of its responsibilities — would be vetted,” Justice Marshall told his audience.[6] Inquiries should also examine mistakes that judges may have made that could have contributed to a wrongful conviction. Respecting judicial independence shouldn’t occur at the expense of examining their performances.
The road to exoneration is a long and costly one for victims of a miscarriage of justice. Once they have exhausted the appeals process, the final avenue is to appeal to the federal minister of justice to review their conviction under Section 696.1 (formerly Section 690) of the Criminal Code. The Criminal Conviction Review Group’s lawyers review applications and make recommendations to the minister. If they find that a wrongful conviction is likely to have occurred, the minister can order a new trial, refer the case to a court of appeal, or refer specific questions to a court of appeal for an opinion. However, an applicant has to demonstrate they have new and significant information that was not available during the trial or appeals but which could have affected the outcome had it been available at the time. After determining that an application meets this criteria, a lawyer from the CCRG can conduct an investigation that includes interviewing witnesses to clarify or verify information, ordering scientific tests such as DNA testing, consulting police, prosecutors, and defence lawyers who were involved in the case’s trial and appeals.
But much work happens before a file arrives in the hands of the CCRG. Canadian inmates rely heavily on the Association in Defence of the Wrongly Convicted in Toronto (AIDWYC). It includes a group of lawyers who volunteer their time to review cases on a pro bono basis and prepare Section 696.1 applications. The association was born from the Justice for Guy Paul Morin Committee, which was created in 1992 to support him after he was wrongly convicted of murdering the little girl who lived next door. Volunteers spend hundreds of hours sifting through files, re-interviewing witnesses, analyzing court transcripts, and searching for any information that may have been overlooked previously and could cast doubt on a conviction. AIDWYC has helped exonerate a number of people, including Nova Scotia’s Clayton Johnson, Newfoundland’s Greg Parsons and Randy Druken, Ontario’s William Mullins-Johnson, Steven Truscott, and Gordon Folland, Manitoba’s James Driskell, and Saskatchewan’s David Milgaard. Prisoners also depend on the Innocence Project, a program run by the faculties of law at Toronto’s York University and Montreal’s McGill University. The Innocence Project at Osgoode Hall Law School in Toronto helped exonerate Gary Staples and Romeo Phillion.
Critics say the federal justice department’s process for applying for possible cases of wrongful convictions is flawed because the people who review the cases answer directly to the Department of Justice — the same government department that is responsible for Canada’s justice system. They claim that there is a real or perceived bias toward defending the justice system. The final decision on cases is left to a politician: the justice minister. In 1989, the royal commission into Donald Marshall’s wrongful conviction recommended that Canada create an independent agency to examine cases of possible wrongful convictions. In the intervening twenty years, that recommendation has been made by other inquiries including, most recently, the 2008 Commission of Inquiry into the Wrongful Conviction of David Milgaard.
These recommendations call for an independent agency modelled after Britain’s Criminal Cases Review Commission, which was created in 1997 to investigate suspected cases of wrongful convictions or unfair sentencing, sending those with merit to the courts. The staff of approximately 100 (compared to about six in Canada’s CCRG) is accountable only to the commission’s eleven commissioners. The organization receives about 1,000 applications to review each year and refers about 4 percent to appeal courts. About two thirds of those referred to the courts have led to quashed convictions. As of December 31, 2010, this process had resulted in 309 overturned convictions.
Once an exoneration has been won in Canada, compensation for a wrongful conviction doesn’t always immediately follow. Marshall’s case marked the first time that a Canadian was exonerated for a murder after serving a lengthy prison sentence. The idea that the justice system