Unreal dream": wrongful convictions.

• Author: Normey, Rob

Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.

--Judge Learned Hand

A principal reason for abolishing the death penalty in civilized nations is the danger that an innocent accused has been wrongly condemned by the judicial system. Many stand with the Marquis de Lafayette, who proclaimed, "Till the infallibility of human judgments shall have been proved to me, I shall demand the abolition of the penalty of death."

Canada, like other progressive nations, has abolished the death penalty. Someone convicted of a serious offence is subject to a life sentence but not to execution. This addresses one serious problem in the criminal law. An equally grave concern is the potential that an innocent person will serve a life sentence or at least a stretch of many years. How concerned should we be about this prospect? What measures should Canada establish to reduce the risk of such an occurrence?

The informed observer of Canadian criminal law should need little convincing that wrongful convictions do occur. A review of the findings of the Royal Commission on the Donald Marshall, Jr. Prosecution or the Commission on Proceedings Involving Guy Paul Morin may be in order for those wishing an initial overview of the threat which exists. The Royal Commission which examined Donald Marshall Jr.'s conviction for murder in 1971 and his subsequent dealings with the criminal justice system made a number of key findings in its 1989 report. In its Summary of Findings it stated, for instance:

"We find:

* that the Crown Prosecutor and the defence counsel in Donald Marshall, Jr.'s 1971 trial failed to discharge their obligations, resulting in Marshall's wrongful conviction.

* that the Crown Prosecutor should have disclosed the contents of prior inconsistent statements to the defence.

* that the Court of Appeal made a serious and fundamental error when it concluded that Donald Marshall, Jr. was to blame for his wrongful conviction.

* that the Court selectively used the evidence before it -- as well as information that had not been admitted in evidence -- in order to reach its conclusions."

Needless to say, Donald Marshall, Jr. was exonerated of wrongdoing in relation to the death of Sandy Seale, the man whom he had been convicted of murdering

Guy Paul Morin was another individual convicted of murder and eventually proven innocent. For a compelling account of his trial, conviction, and fight for redemption read Kirk Makin's Redrum the Innocent. The Commission on Proceedings Involving Guy Paul Morin issued its recommendations in 1998. Among them, we might focus on the following two:

"Recommendation 73

The Ministry of the Attorney General, in consultation with the Ontario Crown Attorneys' Association, should develop an educational program for prosecutors which specifically addresses the known or suspected causes of wrongful convictions and how prosecutors may contribute to their prevention. This program should draw upon the lessons learned at this Inquiry. Adequate financial resources should be committed to ensure the program's success and its availability for all Ontario prosecutors.

This recommendation also contains statements on the need for similar education programs for police officers and criminal defence counsel.

Recommendation 117

The Government of Canada should study the advisability of the creation, by statute, of a criminal case review board to replace or supplement those powers currently exercised by the federal Minister of Justice pursuant to section 690 of the Criminal Code."

Let us return to these recommendations after analyzing another high-profile case that has recently been in the news. One of the best-known criminal cases in Canadian history was the conviction of 14 year-old Steven Truscott for the rape and murder of 12 year-old Lynne Harper. The...