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Wrong result. Still good law.

Cover Story
|Written By Shannon Kari
Wrong result. Still good law.
Photo credits: Guy Paul Morin: Alan Dunlop - Toronto Star; David Milgaard: Rick Eglinton - Toronto Star; William Mullins-Johnson: Lucas Olenuik - Toronto Star; Robert Baltovich: Colin McConnell - Toronto Star

In a brief oral judgment issued in late January 1995, then-chief justice Charles Dubin of the Ontario Court of Appeal formally entered an acquittal for Guy Paul Morin, ending a decade-long ordeal for the man wrongly convicted in the death of nine-year-old Christine Jessop. Fresh evidence, based on new DNA testing, excluded Morin. No jury “properly instructed in the law and acting judicially, could convict Mr. Morin on the charge upon which he stood trial,” stated Dubin, in the ruling issued 20 years ago. After two trials and nearly two years in custody, Morin was finally cleared of any responsibility in the 1984 rape and murder of Jessop, a crime that remains unsolved.

Former Quebec Court of Appeal justice Fred Kaufman headed an inquiry into Morin’s prosecution and his highly regarded report contained more than 100 recommendations to try to avoid future wrongful convictions. The report is one of the legacies of the Morin case. Another is the Supreme Court of Canada decision in 1988 that upheld a Crown appeal and ordered a new trial for Morin, which ultimately ended with a conviction four years later. In that decision, the Supreme Court agreed with the Ontario Court of Appeal and concluded that the trial judge made errors in his instructions to the jury and overstated the burden of proof for the Crown. The majority decision, written by justice John Sopinka, remains good law today, more than a quarter century later in determining how a trier of fact should assess the evidence in deciding whether the prosecution has proven its case beyond a reasonable doubt.

The Morin case is not an isolated example in Canadian criminal law jurisprudence. The prosecutions of Wilbert Coffin, David Milgaard, Robert Baltovich, Romeo Phillion, Kyle Unger, and others — either proven or widely believed to be wrongful convictions — are among a number of other instances where what turned out to be bad results generated legal principles or frameworks that are still followed in courtrooms across the country.

Reviews of these and other cases have usually focused on the actions of police and prosecutors, the forensic evidence, or increasing awareness of the dangers of evidence such as eyewitness identification. But a look back at the conclusions of a court, normally at the appellate level, has rarely been part of any review. Peter Sankoff, a criminal law professor at the University of Alberta, says it is not surprising that a re-examination of the cause of a wrongful conviction does not include the legal principles that may come out of the litigation. “There are often so many other factors that resulted in the conviction,” says Sankoff.

The Kaufman report cited “staggering” tunnel vision by the prosecution, faulty forensic evidence, and the use of questionable jailhouse informants as just some of the causes that led to the conviction of an innocent man. While it was not part of the review, the Supreme Court ruling in 1988 likely made it not only easier to obtain a conviction against Morin at his retrial, but any criminal defendant in the future.

The majority decision found the trial judge had improperly required the jury to apply the standard of proof beyond a reasonable doubt to individual pieces of evidence. This had resulted in a two-stage process of considering guilt or innocence, after fact-finding. “The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown’s case in bits and pieces,” wrote Sopinka. “The law lays down only one basic requirement: during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt,” he added. Jurors can arrive at the same verdict through different routes and do not have to rely on the same facts, the Supreme Court stated.

Clayton Ruby, who represented Morin at his original trial and the appeal at the Supreme Court in 1988, says the findings on the task for juries are sound, even if he argued for another outcome. “It is the right principle. I said that it was very likely that the jury understood that they had to look at the case as a whole. The court did not agree,” says Ruby.

A concurring judgment in Morin would have refined the task for juries, although justices Bertha Wilson and Antonio Lamer agreed with the majority that the acquittal should be set aside and a new trial ordered. “The jury must be satisfied, within the context of all the facts of the case, that each of the facts they rely on for a finding of guilt has been proved beyond a reasonable doubt,” wrote Wilson. Simply referring to the “case as a whole,” gives the jury “no guidance as to what standard of proof it must apply to the fact-finding exercise,” she added.

Another legal debate over the duties of a judge in the instructions to the jury arose in the 1996 appeal of William Mullins-Johnson. The Sault Ste. Marie, Ont., resident was convicted in 1994 of raping and killing his four-year-old niece, spending 12 years in prison. Mullins-Johnson was acquitted in 2007, after new tests showed his original conviction was based on faulty evidence by now disgraced pathologist Dr. Charles Smith. The young girl had actually died of natural causes. Mullins-Johnson ultimately received more than $4 million in compensation from the Ontario government. What remains in place though, are the steps a trial judge must take in putting the defence theory to a jury. These were set out by the majority in the 1996 Ontario Court of Appeal ruling that upheld Mullins-Johnson’s murder conviction. It is necessary to look at the charge “as a whole” to determine if the juror has received “a fair picture of the position of the defence,” the majority wrote.

The late justice Stephen Borins dissented and would have ordered a new trial, concluding the evidence was “weak” that Mullins-Johnson, or anyone, had assaulted the girl. The appellate judge also suggested trial judges had a greater responsibility when explaining the defence theory to a jury. Evidence should be outlined, in a systematic way, that if accepted by a jury, could raise a reasonable doubt, wrote Borins.

The Supreme Court of Canada dismissed Mullins-Johnson’s appeal in a one-sentence oral ruling in 1998. The process suggested by Borins was also explicitly rejected by his Court of Appeal colleagues in 1999, in the dismissal of an appeal by Lisa Olsen and Michael Podniewicz in a notorious case involving the death of an infant.

The Court of Appeal decision in Mullins-Johnson continues to be cited not only on the issue of a trial judge’s responsibilities of explaining the defence theory to the jury, but also on the right of the Crown to bring up propensity evidence against a defendant, if he is trying to implicate another person at the trial.

In some instances, the principles set out can be very broad and the fact they came from a wrongful conviction case, can be incidental. The test for bail pending appeal after a conviction for a serious offence was developed in 1992 by the Ontario Court of Appeal in a ruling against Robert Baltovich. He was denied bail after his conviction in the death of his girlfriend. The legal test, though, is ultimately whether it is in the public interest to allow the release pending appeal.

According to Ruby, the principles may often be sound, regardless of the cases where they originated or were refined. The number of principles, which are still valid, that came out of prosecutions with wrongful convictions may be more of a “quirk” in the law, says Ruby.

While it is often other factors that lead to a wrongful conviction, Sankoff says there may well be instances when certain legal principles should be reviewed. “Sometimes it is a good idea. The law is always evolving. There are times when the law that courts give us, is in need for a rethink,” says Sankoff.

James Lockyer agrees that it can at times appear “strange” to hear cases cited as legal authority where there was a wrongful conviction. One of the founding directors of the Association in Defence of the Wrongly Convicted, he remembers an instance at the Morin inquiry, where a lawyer for the police cited legal rulings from Milgaard and Coffin, to support his arguments. For Lockyer though, appellate level courts would not end up developing legal principles in these cases if there was a different approach. “They deny themselves the authority to determine if it is the right verdict. There is too much deference to the trial judge and the jury,” says Lockyer.

The Toronto lawyer, who has been involved in a number of prominent wrongful conviction proceedings, has long advocated for a “lurking doubt” ground of appeal, as courts in England and Wales have adopted. This ground would permit an appeal court to quash a guilty finding at trial if it believes an injustice was done. In Canada, “the courts of appeal will not look at issues of guilt and innocence. They are courts of process,” says Lockyer.

Still, there are examples where reviews of wrongful conviction cases have produced strong criticism of the actions of the courts, if not the actual legal principles or frameworks that were established, or whether actual guilt or innocence should play a larger role.

The 1989 Royal Commission into the prosecution of Donald Marshall Jr. found the Nova Scotia Court of Appeal made “gratuitous comments” about Marshall’s own responsibility for his conviction. Even though Marshall was acquitted on appeal, the chairman of the commission described the decision as a defence of the criminal justice system at Marshall’s expense.

Decisions made by the trial court and the Saskatchewan Court of Appeal also came in for criticism by Justice Edward MacCallum, who headed the inquiry into the wrongful conviction of David Milgaard. The Saskatchewan Court of Appeal, in turning down Milgaard’s appeal in 1971, developed a framework under the Canada Evidence Act for cross-examining one’s own witness if testimony is contrary to a prior statement, or for declaring the witness to be hostile.

The prosecution was allowed to present a prior statement to police by a key Crown witness before the jury without a voir dire to determine the circumstances of how this prior version of events came about. “The Court of Appeal was wrong” when it concluded that Milgaard suffered no prejudice from this decision, wrote MacCallum, in his 2008 report. As well, the original decision by the trial judge “probably contributed to the wrongful conviction of David Milgaard,” the commissioner concluded.

The procedure developed by the Court of Appeal, while not followed in the Milgaard case, is still the accepted process in place when there are issues related to inconsistencies in the testimony of one’s own witness. So too, is the SCC’s 1978 decision involving another contentious issue — the admissibility of polygraph tests. The court concluded that polygraph tests are not reliable and are presumed to be inadmissible. This conclusion was reaffirmed by the top court nine years later in R v. Béland, which referred to the 1978 ruling as the leading case on this issue. The irony, is that the decision in 1978 was in the unsuccessful appeal of Romeo Phillion, convicted six years earlier in the death of an Ottawa firefighter. Phillion confessed, then recanted almost immediately.

The polygraph tests were conducted by John Edward Reid, a former Chicago police officer and a leading figure in the use of lie detector results. Reid, who was retained by the defence, concluded Phillion lied when he confessed to police. Justice Roland Ritchie, on behalf of the nine-member SCC panel, rejected the admissibility of Reid’s test results and the use of lie detectors. “In my view, Mr. Reid had neither the qualifications nor the opportunity to form a mature opinion of the propensity of the man he was subjecting to the test either as to truthfulness or otherwise,” said Ritchie. He went on to suggest if lie detector tests were admissible, then defendants would choose to give statements this way, instead of in court.

This is one of the few instances where Reid was retained by the defence, but his influence on criminal courts in Canada and the United States, extended well beyond the Phillion case. The so-called Reid technique of interviewing, which he developed, is still widely used by police detectives in Canada for interrogations. It has also come under increasing criticism in recent years, by the courts and in academic research, for allegedly having a propensity to elicit false confessions.

For his part, Phillion spent 31 years in prison, always maintaining his innocence. His conviction was quashed by the Ontario Court of Appeal in 2009 after a reference by the federal justice minister. The Crown decided not to proceed with a new trial and Phillion filed a $14-million lawsuit against police and the province. As a result of that litigation, Phillion may be again before the Supreme Court, more than 35 years after it ruled on the admissibility of lie detector tests. Ottawa police are arguing Phillion is seeking to relitigate issues that have already been decided. They are seeking leave of a Court of Appeal decision from July 2014 that overturned a lower court ruling and permitted the lawsuit to go ahead.

The Cases

There are a number of legal principles or frameworks that are still good law today and routinely applied by courts, even though they originated from criminal proceedings that were later discovered to be wrongful convictions or at a minimum, widely believed now to be wrongful convictions.

David Milgaard

[canlii.ca/t/g7c3z]

In dismissing the murder appeal of Milgaard in the death of Gail Miller, the Saskatchewan Court of Appeal set out a framework in 1971 for cross-examining one’s own witness over a prior inconsistent statement, under s. 9(2) of the Canada Evidence Act. It also set out the path for a trial judge to take in deciding if a witness can be declared hostile under s. 9(1) of the act.

The appellate court found the judge at Milgaard’s trial was correct in finding a key Crown witness, who had given multiple statements to police, to be hostile. Proving the inconsistent statement should be done outside the presence of the jury. This was not the case at Milgaard’s trial, but the Court of Appeal concluded it was not sufficient to order a new trial. Milgaard spent 23 years in prison before he was released. DNA evidence later pointed to Larry Fisher, who was convicted of Miller’s murder in 1999.

Wilbert Coffin

[tinyurl.com/wcoffin]

Before seeking to cross-examine one’s own witness on any inconsistent statement, there is a process to follow to try to refresh the memory of the witness. In its decision in R v. Coffin, the Supreme Court of Canada said it is permissible to present previous statements to a witness to refresh his or her memory — although not to try to discredit the witness. In a 5-2 decision issued in January 1956, the Supreme Court upheld Coffin’s murder conviction in the death of a U.S. tourist in the Gaspé region of Quebec. Coffin was hanged soon after the high court’s ruling, yet doubts about his guilt have remained for more than 50 years.

Guy Paul Morin

[tinyurl.com/GPMorin]

Acquitted at his original trial, the Crown successfully appealed and a new trial was ordered. The Supreme Court of Canada concluded in 1988 that the first trial judge misdirected the jury on how to reach a verdict. The top court said a jury must consider “the evidence as a whole” and determine whether the Crown has proven its case beyond a reasonable doubt. Individual pieces of evidence do not have to meet this standard and jurors can arrive at the same verdict through different routes, when assessing the facts. Morin was then convicted of the murder of nine-year-old Christine Jessop at his retrial in 1992. More advanced DNA testing produced evidence that showed Morin could not be the killer and an acquittal was entered in 1995.

William Mullins-Johnson

[canlii.ca/t/6j7m]

The Ontario Court of Appeal, in a 2-1 decision, dismissed the first-degree murder conviction of Mullins-Johnson, convicted of sexually assaulting and killing his four-year-old niece. The majority concluded the verdict was not unreasonable and set out the role of a trial judge in putting forward the theory of the defence to a jury. “There are no magic words that have to be used by a trial judge. The question in the end is whether the theory of the defence was properly exposed to the jury,” when looking at the charge as a whole, said the majority, in the 1996 ruling. In dissent, the late justice Stephen Borins said a trial judge must go further than simply presenting the theory of the defence. A jury must also receive “proper guidance in relating the evidence to the issue or issues, which constitute the defence position,” he wrote. The Supreme Court of Canada dismissed Mullins-Johnson’s appeal in a one-sentence oral ruling. Mullins-Johnson spent 12 years in prison. He was acquitted by the Court of Appeal in 2007 after subsequent tests showed his niece was not assaulted or murdered and the conviction was based on faulty forensic evidence.

Kyle Unger

[canlii.ca/t/1pfk2]

In 1993, The Manitoba Court of Appeal dismissed Unger’s appeal of a murder conviction in the death three years before of a 16-year-old woman found dead in the woods near a ski resort after a music festival. Police evidence obtained by a so-called Mr. Big sting was not excluded because “courts should be setting public policy on the parameters of undercover operations,” the appeal court said. It did order a new trial though for the co-accused Timothy Houlahan, because of what it called “inflammatory” comments by Unger’s trial lawyer. The appellate court set limits on what a defence lawyer can say to a jury about a co-accused who chooses not to testify. Houlahan committed suicide after his release on bail pending a retrial. Unger spent 14 years in prison before his release. New tests showed a hair found on the victim did not belong to him and there were questions about the “confession” he gave to undercover police officers. Unger was acquitted in 2009.

Robert Baltovich

[canlii.ca/t/g1cd8]

The Ontario Court of Appeal denied bail to Baltovich in the fall of 1992 after his second-degree murder conviction in the death of his girlfriend Elizabeth Bain. The court set out the test for bail pending appeal, following a conviction for a serious offence. An applicant must show that the appeal is not frivolous, that he will surrender into custody in compliance with any court order and that bail is in the public interest. The same test was cited by Justice Marc Rosenberg when Baltovich was granted bail in 2000, after eight years in custody and with his appeal yet to be heard. Stronger appeal grounds and a material change in circumstance were listed as some of the reasons to grant bail. A new trial was ordered in 2004 by the Court of Appeal and he was acquitted in 2008 after the Crown called no evidence at the retrial. In 2010, Baltovich filed a $13-million lawsuit against police and the province, litigation that is still ongoing.

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