I was called into the police station to identify three suspects in a break and enter investigation one day some 20 years ago. I'd gotten a good look at the suspects, since I'd spent a few minutes having a smoke in a parking lot with the three strangers before they entered my neighbour's home.
I spent an hour combing through mug shots before settling on three forlorn looking individuals. I screwed up. I identified two people who were already in custody at the time of the break-in, but the cops mentioned that they would have a chat with the third person.
In light of my previous two strikeouts, I told them it would be imprudent for them to bother this guy. I even pulled out the overused platitude that it's better that 10 guilty people go free than one innocent person be convicted. They told me they didn't like my math.
After the exposure of numerous wrongful convictions in Canada in the past two decades, we have a good sense of the factors that often lead to miscarriages of justice: faulty identification, the failure to disclose evidence, bad science, tunnel vision and prosecutorial zeal. Despite knowing these factors, little is done to prevent their recurrence. In fact, it sometimes appears that the system rewards the very people whose conduct contributes to miscarriages of justice.
Recently, Williams Mullins-Johnson was released on bail pending a review by the Minister of Justice of his murder conviction, which had been based primarily on a report by Toronto pathologist Charles Smith. It's been reported that Smith has found new employment at Saskatoon City Hospital, despite the fact that Ontario's chief coroner has ordered a review of Smith's work in dozens of cases involving suspicious child deaths.
Mullins-Johnson has spent more than 12 years in prison for the alleged death and sexual assault of his niece, convicted on evidence in Smith's now discredited report. Without accountability for official misconduct or illegality, we will never be able to address the shortcomings of our justice system.
Most people don't know that quite a few convictions in sexual assault cases are lost due to prosecutorial excess. Verdicts are routinely overturned because of abusive cross-examination of the accused and inflammatory jury addresses. Inundated with American television images of the lawyer as verbal bully, prosecutors cannot resist the temptation to insult and grandstand.
The problem is so pervasive that the Ontario Court of Appeal has noted that "unless and until Crown counsel[s] stop this kind of improper and prejudicial cross-examination, the court will regrettably have to remit difficult and sensitive cases... back to trial, at great expense to the emotional well-being of the parties, not to mention the added burden to the administration of justice."
Of course, nothing changes because these bullying prosecutors suffer no consequences for their misconduct. Chances are they will end up being appointed judges.
Last week the Ontario Court of Appeal expanded the scope of liability for police by making them accountable not only for malicious prosecution but also for negligent investigation. Sounds like a progressive development, but in actuality the court was only confirming a ruling it made eight years ago.
The government wished to turn back the clock, and asked the court to overturn its earlier ruling. The government argued that holding officers liable for negligent investigations would pose insurmountable problems for the police. The court stuck to its guns and upheld the tort of negligent investigation but, as has come to be expected, the badly divided court did not find the officers to be negligent in the case under appeal. In that case, police in Hamilton were searching for a serial robber who had targeted 10 local banks. Jason Hill, an aboriginal man, was arrested and charged primarily as a result of eyewitness identification, which proved to be faulty.
Many mistakes were made. The police interviewed two eyewitnesses at the same time. The police showed other eyewitnesses a photo lineup of 11 Caucasians and one aboriginal, Hill. The police also released a photo of Hill to the media, which raised the danger of "unconscious transference," whereby eyewitnesses modify their identification to match the published photo of the suspect.
In light of the inherent frailties of I.D. evidence, the police must take measures to ensure the integrity of the identification process. Clearly that was not done in this investigation.
Negligence may be an open-ended standard of evaluation, but how can it not be negligence for the police to employ investigative techniques soundly condemned by the commissions of inquiry into the wrongful convictions of Guy Paul Morin and Thomas Sophonow?
Whenever we stumble upon another wrongful conviction, public officials wring their hands, appoint a commission of inquiry, provide some ex gratia compensation and sometimes even say sorry.
Rarely do we see concrete changes to prevent the recurrence of these tragic mistakes, and rarely are those involved in the miscarriage of justice held civilly accountable.
I am not suggesting that police and prosecutors should be held liable every time a mistake is made. Perfect justice is unattainable, since all judgment, even when aided by the tools of science, is fallible.
But what is the point of courts and commissions setting out rules of fair process for the collection of reliable evidence if those in charge of playing by these rules can ignore them without consequence?