FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE
- Canadian Commissions of Inquiry
- MacFarlane Paper
- Past and Current Educational Initiatives in Canada
- Options for Education Venues and Techniques
- Draft Educational Agenda/Topics
- Summary of Recommendations
The goal of educating justice system participants must be to proactively prevent miscarriages of justice. By educating Crowns, defence, police, members of the judiciary, forensic scientists and last but not least the public at large, we may be able to prevent wrongful convictions, thus promoting a strong, fair justice system and public confidence in the administration of justice. Indeed, the Morin and Sophonow Inquiries both identified the education of justice participants as a key aspect of any response to wrongful convictions and as a means to prevent them in the future.
As the preceding chapters have illustrated, there are some problems, themes and mistakes that arise time and again in documented cases of wrongful conviction. The frailties of eyewitness identification, “tunnel vision” on the part of police and Crowns, the use of jailhouse informants, and faulty forensic procedures are a few of the themes identified in various reports. These problems relate to the conduct of police, Crowns, defence lawyers and forensic scientists, and they are not confined to proceedings in the courtroom.
While many of the solutions and remedies identified in the various reports relate to specific areas, such as eyewitness identification and meticulous forensic science processes, it should be emphasized that overall attitudes and “culture” provide the milieu in which wrongful convictions can occur. Therefore, an effective education strategy must not only deal with specifics such as identification evidence and jailhouse informants, but should also provide information on the overall cultural attitudes that can develop in prosecution and investigation services. As culture and attitudes are often deeply ingrained, they can be difficult to change. Over time, and with the right kind of education and information, cultural and attitudinal changes can occur. In this regard, presentations not only by justice participants, but also by an interdisciplinary faculty including psychologists, criminologists and experts from other jurisdictions, will be invaluable.
When a miscarriage of justice occurs, it is not usually the result of one mistake, but rather, a combination of events. Therefore, just as the problems and errors are multi-layered, education must also be multi-faceted and directed at all of the participants in the justice system in order to be effective. Also, a fundamental understanding of the role of the Crown and the importance of fair and independent police investigations are two key ingredients that should be present in any education program dealing with the prevention of wrongful convictions.
Public confidence in the administration of justice is fostered by demonstrating that participants in the criminal justice system are willing to take action to prevent future miscarriages of justice. Any educational plan for the prevention of miscarriages of justice should include a public communication strategy to advise the public that the system is taking steps to prevent miscarriages of justice. It is also important to foster public understanding that fair, independent and impartial police investigations and Crown prosecutions are in the public interest.
The responsibility to prevent wrongful convictions falls on all participants in the criminal justice system. Police officers, Crown counsel, forensic scientist, judges and defence counsel all have a role to play in ensuring that innocent people are not convicted of crimes they did not commit. Education of these key players in the justice system is essential to the prevention of miscarriage of justice. This is an issue that does not touch on one single province or jurisdiction. The entire country would benefit from the development of a comprehensive education strategy with leadership from Ministries of the Attorney General, the Heads of Prosecutions Committee, the Canadian Association of Chiefs of Police and Chief Justices from across the country.
Educational programs are not without associated financial costs. While it is important to ensure that any educational plan be developed in a fiscally responsible manner, it is false economy to decide that education on the prevention of wrongful convictions is too expensive. Given the potential impact on individuals who are wrongfully convicted, the effect on public confidence in the administration of justice and the financial costs involved in commissions of inquiry and compensation, the Working Group believes the expenditure of public funds on these sorts of programs is well worthwhile.
Both the Morin and Sophonow Inquiries identified the education of justice participants as a key aspect of a systemic response to the risk of wrongful conviction:
a) The Commission on Proceedings Involving Guy Paul Morin
Recommendation 18 - Joint education on forensic issues
The Centre of Forensic Sciences, the Criminal Lawyers' Association, the Ontario Crown Attorneys' Association and the Ministry of the Attorney General should establish some joint educational programming on forensic issues to enhance understanding of the forensic issues and better communication, liaison and understanding between the parties. The Government of Ontario should provide funding assistance to enable this programming.
Recommendation 48 - Post-conviction disclosure by Crown counsel
The Ministry of the Attorney General should remind Crown counsel of the positive and continuing obligation upon prosecutors to disclose potentially exculpatory material to the defence post-conviction, whether or not an appeal is pending. Such material should also be provided to the Crown Law Office.
Recommendation 49 - Post-conviction continuing disclosure by police
The Durham Regional Police Service should amend its operational manual to impose a positive and continuing obligation upon its officers to disclose potentially exculpatory material to the Durham Crown Attorney's Office, or directly to the Crown Law Office, post-conviction, whether or not an appeal is pending. The Ministry of the Solicitor General should facilitate the creation of a similar positive obligation upon all Ontario police forces.
Recommendation 60 - Crown education respecting informers
he Ministry of the Attorney General should commit financial and human resources to ensure that prosecutors are fully educated and trained as to in-custody informers. Such educational programming should fully familiarize all Crown attorneys with the Crown policies respecting in-custody informers and appropriate methods of dealing with, and assessing the reliability of, such informers.
Recommendation 61 - Police education respecting informers
Adequate financial and human resources should be committed to ensure that Durham Regional police officers are fully educated and trained as to in-custody informers. The Ministry of the Solicitor General should liaise with other Ontario police services to ensure that similar education is provided to police forces which are likely to deal with in-custody informers. Such educational programming should fully familiarize all investigators with the police protocols respecting in-custody informers and appropriate methods of dealing with, and investigating the reliability of, such informers.
Recommendation 72 - Skills, Training and Resources
- Rank and file officers need be educated and trained on a continuing basis on a wide range of investigative skills. Their educators need themselves be fully trained in these skills and in their communication to others. Financial resources need be available, secure from erosion for operational purposes, to ensure that training for all Ontario police forces is state-of-the-art.
- Attention should be given by the Government of Ontario, on a priority basis, to the specific concerns identified by the York Regional Police Association and the audit of the York Regional Police force. The Government of Ontario should publicly announce the measures being taken to address the concerns raised.
Recommendation 73 - Education respecting wrongful convictions
- 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.
- An educational program should be developed for police officers which specifically addresses the known or suspected causes of wrongful convictions and how police officers may contribute to their prevention.
- The Ministry of the Solicitor General should take a leading role in promoting this programing. This program should draw upon the lessons learned at this Inquiry. Its design should be effected through the cooperative assistance of prosecutors and defence counsel. Adequate financial resources should be committed to ensure the program's success and its availability for all police investigators, both new and established.
- The Criminal Lawyers' Association should develop an educational program for criminal defence counsel which specifically addresses the known or suspected causes of wrongful convictions and how defence counsel may contribute to their prevention. This program should draw upon the lessons learned at this Inquiry.
- The Centre of Forensic Sciences should develop an educational program for its staff, including all scientists and technicians, which specifically addresses the role of science in miscarriages of justice, past and potential. This program should draw upon the lessons learned at this Inquiry. Its design should be effected through the cooperative assistance of prosecutors and defence counsel. Adequate financial resources should be committed to ensure the program's success and its availability for all Centre staff, both new and established.
- Ontario law schools and the Law Society of Upper Canada, Bar Admission Course, should consider, as a component of education relating to criminal law or procedure, programming which specifically addresses the known or suspected causes of wrongful convictions and how they may be prevented.
- The judiciary should consider whether an educational program should be developed which specifically addresses the known or suspected causes of wrongful convictions and how the judiciary may contribute to their prevention.
Recommendation 74 - Education respecting tunnel vision
One component of educational programming for police and Crown counsel should be the identification and avoidance of tunnel vision. In this context, tunnel vision means the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one's conduct in response to that information.
Recommendation 75 - Crown discretion respecting potentially unreliable Evidence
The Ministry of the Attorney General should amend its policy guidelines to strongly reinforce that it is an appropriate exercise of prosecutorial discretion not to call evidence which is reasonably considered to be untrue or likely untrue. Similarly, it is an appropriate exercise of prosecutorial discretion to advise the trier of fact that evidence ought not to be relied upon by the trier of fact, in whole or in part, due to its inherent unreliability. The Ministry should take measures, including but not limited to further education and training of Crown counsel and their supervisors, to ensure strong institutional support for the exercise of such discretion.
Recommendation 76A - Overuse and misuse of consciousness of guilt and demeanour evidence
- Purported evidence of ‘consciousness of guilt' can be overused and misused. Crown counsel and the courts should adopt a cautious approach to the tendering and reception of this kind of evidence, which brings with it dangers which may be disproportionate to the probative value, if any, that it has. Crown counsel and police should also be educated as to the dangers associated with this kind of evidence. This recommendation should not be read to suggest that such evidence should be prohibited.
- Purported evidence of the accused's ‘demeanour' as circumstantial evidence of guilt can be overused and misused. Crown counsel and the courts should adopt a cautious approach to the tendering and reception of this kind of evidence, which brings with it dangers which may be disproportionate to the probative value, if any, that it has. Crown counsel should be educated as to the merits of this cautionary approach and the dangers in too readily accepting and tendering such evidence. In particular, where such evidence of strange demeanour is brought forward after the accused is publicly identified, Crown counsel, the police and the judiciary should be alive to the danger that this ‘soft evidence' may be coloured by the existing allegations against the accused. The most innocent conduct and demeanour may appear suspicious to those predisposed by other events to view it that way.
Recommendation 89 - Police culture and management style
Police forces across the province must endeavour to foster within their ranks a culture of policing which values honest and fair investigation of crime, and protection of the rights of all suspects and accused. Management must recognize that it is their responsibility to foster this culture. This must involve, in the least, ethical training for all police officers.
Recommendation 102 - Training respecting interviewing protocols
All Ontario investigators should be fully trained as to the techniques which enhance the reliability of witness statements and as to the techniques which detract from their reliability. This training should draw upon the lessons learned at this Inquiry. Financial and other resources must be provided to ensure that such training takes place.
Recommendation 106 - Crown education respecting interviewing Practices
The Ministry of the Attorney General should establish educational programming to better train Crown counsel about interviewing techniques on their part which enhance, rather than detract, from reliability. The Ministry may also reflect some of the desirable and undesirable practices in its Crown policy manual.
Recommendation 110 - Limitations upon criminal profiling
Police officers should be trained as to the appropriate use of, and limitations upon, criminal profiling. Undue reliance upon profiling can misdirect an investigation. Profiling once a suspect is identified can be misleading and dangerous, as the investigators' summary of relevant facts may be coloured by their suspicions. A profile may generate ideas for further investigation and, to that extent, it can be an investigative tool. But it is no substitute for a full and complete investigation, untainted by preconceptions or stereotypical thinking.
Recommendation 113 - Polygraph tests
- Police officers should be trained as to the appropriate use of, and limitations upon, polygraph results. Undue reliance on polygraph results can misdirect an investigation. The polygraph is merely another investigative tool. Accordingly, it is no substitute for a full and complete investigation. Officers should be cautious about making decisions about the direction of a case exclusively based upon polygraph results.
- The documentation respecting polygraph interviews, including any information provided to the examiner by the investigators or by the person examined, should be preserved until after the completion of any relevant court proceedings or ongoing investigations.
Recommendation 115 - Crown education on the limits of advocacy
ducational programming for Crown counsel should contain, as an essential component, clear guidance as to the limits of Crown advocacy, consistent with the role of Crown counsel. These issues may also be the subject of specific guidelines in the Crown policy manual or a Code of Conduct.
b) The Inquiry Regarding Thomas Sophonow
- I recommend that attendance annually at a lecture or a course on this subject be mandatory for all officers. The lecture or course should be updated annually and an officer should be required to attend before or during the first year that the officer works as a detective.
- Courses or lectures that illustrate with examples and discuss this problem should be compulsory for police officers and they would undoubtedly be helpful for counsel and judges as well.
Atmosphere of Suspicion as between Crown and Defence Bar
- It may seem trite but I recommend that regular meetings be held once or twice a year for the Crown and Defence bar. At those meetings, counsel on both sides could put forward their problems, discuss them and seek mutually satisfactory solutions to them. At some of these meetings, high-ranking police officers should attend and explain their position with regard to the issues raised. Some members of the judiciary and, perhaps, the media might be invited to attend occasionally so that all would be aware of the problems and could contribute to their solution. In that way, solutions satisfactory to all concerned could be reached. The entire administration of justice has too much at stake to permit any feelings of mistrust to fester and spread, thereby jeopardizing the ability of the courts to arrive at a fair and just result.
MacFarlane makes it clear that the reshaping of attitudes, practices and cultures within our the criminal justice system is critical to the fair functioning of the system. He specifically comments on educating and training justice system participants:
Prosecution agencies, judicial councils and defence associations should establish and regularly deliver training courses specifically designed to help prevent wrongful convictions. Templates presently exist. On March 27th, 2002, the Canadian Judicial Council voted unanimously to authorize the National Judicial Institute to create and deliver an intensive three day course to help Canadian Judges identify and counteract known and suspected causes of wrongful convictions. In the United States, the Innocence Project has developed a 13 part academic course on wrongful convictions for use in universities, colleges and law schools. Both Ontario and Manitoba have held similar seminars, the latter province hosting the “Jailhouse Confessions and Tunnel-vision Conference” in September, 1999.
MacFarlane notes that “[d]eeply rooted attitudes, practices and culture are difficult to change, but there are several specific initiatives, which, if undertaken well, can assist in a reshaping process over time.” These specific initiatives include training on tunnel vision, avoiding the “game” theory of criminal prosecutions, fostering a culture of policing that values the honest and fair investigation of crime and the protection of the rights of all suspects and accused, and adherence to standards set by the International Association of Prosecutors.
This non-exhaustive list briefly describes some of the more recent educational initiatives in this area:
- Ontario Criminal Lawyers Association (OCLA) - The issue of preventing wrongful convictions is a regular part of the association's educational program. The association has annual conferences and posts legal materials for their members on their website. The OCLA works co-operatively with the Association in Defence of the Wrongfully Convicted (AIDWYC).
- Ontario's New Assistant Crown Attorney Training, 1999 & 2000 - The hiring of a large number of Assistant Crown Attorneys led to the development of a special training course for new counsel. It covered a range of topics including the role of the Crown and the recommendations of the Morin Inquiry.
- The Law Society of Upper Canada – The bar admission course materials do not deal specifically with the issue of wrongful convictions but deal with the related issues of the role of counsel, the duty of fairness and the Crown's disclosure obligations.
- Osgoode Hall Law School Miscarriage of Justice Conference, May 16-17, 2002 – Hosted by the Innocence Project, the conference focused on the causes of, and remedies for, wrongful convictions and how to investigate a wrongful conviction.
- National Judicial Institute Conference for Judges, September 2002 - “Judicial Safeguards for the Prevention of Wrongful Convictions.” A second course, “Frailties in the Criminal Justice Process: The Judge's Role,” was held in December 2003.
- Ontario's Four Regional Fall Conferences 1998 - Joint Defence, Crown, Police, Forensic Sciences Conferences to deal with the recommendations of the Morin Inquiry.
- Manitoba's Fall 2002 Post-Sophonow Inquiry Conference – Joint Defence, Crown, and Judicial participation.
- AIDWYC (Association in Defence of the Wrongfully Convicted) Conference, fall 2002. Speakers included: advocates, defence counsel and wrongfully convicted individuals.
- The Innocence Project, in conjunction with the Center on Wrongful Convictions at Northwestern University and the national organization The Innocence Network, has developed a thirteen-part, academic course on wrongful convictions for use in undergraduate universities, graduate programs, junior colleges, and law schools. "Wrongful Convictions: Causes and Remedies" is an interdisciplinary examination of the principal problems that lead to the conviction of the innocent and the leading proposals for reform. It can serve as a "core" offering for students participating in innocence projects at their schools or as a stand-alone course. The course is directed not only at future lawyers and journalists, but also at individuals training for careers in law enforcement, forensic science, corrections, criminology, psychology, and sociology.
- Canadian Law Schools - Many Canadian law schools are addressing the issue of wrongful convictions and the role of Crown counsel in their criminal law curricula. Some have specific courses on wrongful convictions and at Osgoode Hall, the Innocence project investigates real cases.
National Forum on the Prevention of Wrongful Convictions – Leadership by Ministries of the Attorney General/Heads of Prosecutions Committee/Canadian Association of Chiefs of Police
A strong commitment by leaders in the justice system across the country is required in order to implement effective educational programs that will assist in safeguarding against wrongful convictions. To this end, the Working Group believes a National Forum on the Prevention of Wrongful Convictions, with leadership from the Ministries of the Attorney General, Deputy Ministers, the Heads of Prosecutions Committee and Canadian Association of Chiefs of Police, should be convened. The objective of such a Forum would be to raise the profile of the issue and to send a message, not only to participants in the justice system but also to the public at large, that wrongful convictions will not be tolerated. It would demonstrate a strong national commitment to the issue and foster confidence in the administration of justice.
The Working Group believes a number of positive outcomes would result from the decision to hold a National Forum on the Prevention of Wrongful Convictions:
- The Forum could seek out best practices from across the country, and kick-start a national education campaign. By demonstrating leadership and support from key players at the highest levels, educational processes and programs will have a greater prospect of success.
- A National Forum will send an important signal to the community that police and prosecutors take the issue of wrongful convictions seriously, and are determined to take a leadership role in developing an action plan to prevent future wrongful convictions.
- A National Forum will assist in providing all justice sector participants with a clearer understanding of what their respective roles are in preventing wrongful convictions.
- A National Forum would provide an opportunity to bring in leading experts on wrongful convictions to help police, prosecutors and other justice system participants gain a better understanding of the causes of wrongful convictions, as well as the concrete measures that can be adopted to prevent them. It would also allow for the exchange of ideas and recommendations for the prevention of wrongful convictions on a national basis.
- A National Forum will ensure that all parts of the country will have access to education and training on preventing wrongful convictions. A National Forum will provide the economy of scale to permit smaller jurisdictions to fully participate in this important project.
- A National Forum could develop and promote a nation strategy to combat wrongful convictions, with regional educational conferences and programs to follow.
It is proposed that the Forum be co-sponsored by the Heads of Prosecutions Committee and the Canadian Association of Chiefs of Police. Close consultation with organizations such as the National Judicial Institute, Canadian Bar Association and Association in Defence of the Wrongly Convicted would be essential to the success of the Forum.
Subsequent to the writing of this report, the Manitoba government, in conjunction with the University of Manitoba, has begun to plan an international conference on wrongful convictions in Winnipeg in October 2005. A representative of the Working Group is on the organizing committee and the Working Group believes this conference can achieve the same objectives as the proposed National Forum and wholeheartedly supports the initiative.
Joint Educational Opportunities
Given the multi-faceted nature of the causes of wrongful convictions, a holistic approach to education, which involves joint conferences of Crowns, police, defence and forensic scientists, can provide an approach with all segments of the justice system working together to find solutions. This sort of collegiality can assist in breaking down barriers and foster goodwill between police, Crowns, defence and members of the judiciary. It can also promote a fuller understanding on the part of all parties of the roles of various justice participants. The following components of the joint educational conference should be considered:
- A joint police/Crown/defence conference could occur in various larger provinces, with the smaller provinces sending participants in person or by video links. Presentations could be made which cover topics of interests to Crowns, police, defence and forensic scientists - for example, evidence-gathering techniques, suspect forensic evidence, the usefulness of DNA evidence etc. Other sessions could focus on areas of interest that are specific to the individual participants - for example, specific issues related to forensic evidence.
- Local educational opportunities should be explored. The Sophonow Inquiry suggested some strategies to ameliorate what was described as the “atmosphere of suspicion as between Crown and defence.” Justice Cory suggested the creation of bilateral committees at the local level.
Police Education Opportunities
Police services in Canada have been taking steps to address the topics raised in the various wrongful conviction inquiry reports. For example, “Major Case Management” courses, covering investigative techniques, are now offered to police across the country. As well, audit panels have been set up to independently review major investigations. The following police education options should be considered to supplement and enhance the training that is currently being carried out:
- Due to the unique role of police, specialized conferences and educational materials should be developed. Some jurisdictions could hold a separate “wrongful convictions” conference for the police. In Ontario, for example, this could be sponsored by the Ontario Association of Chiefs of Police. Invitations could be extended to police services across Ontario and other jurisdictions, in order to allow for an exchange of ideas amongst police services and to provide smaller police services the benefit of such training.
- Training on wrongful convictions should be made a part of standard police college training; for example, it should be offered at the Ontario Police College, Canadian Police College and the RCMP Police Academy.
- Training should also be included as part of continuing education programs within local police services. Experienced officers and supervisors could benefit from continuing education in carrying out their own duties and also in becoming better equipped to review the actions of the officers who report to them. Crown Attorneys and the local defence bar could be present at these educational programs.
- The Canadian Association of Chiefs of Police annual conference should incorporate information sessions on wrongful convictions.
- Resources should be available to allow the police to attend external wrongful convictions conferences, such as the one by AIDWYC.
The Canadian Police College has been a national trend setter for police training; it will therefore be important to involve the CPC in any future educational endeavours. The Ontario Ministry of the Attorney General and the Manitoba Department of Justice are also good resources to assist in developing agendas for the police. In 1998, in response to the Morin Inquiry, Ontario's Criminal Law Division put on a joint police/Crown conference on the prevention of wrongful convictions.
It must be stressed that increased police education on this topic will not only advance the important goal of preventing wrongful convictions, but by reinforcing proper investigative techniques, such training will also advance the equally crucial goal of ensuring that the guilty are convicted.
Crown Education Options
- Individual provinces should host Crown conferences on the prevention of wrongful convictions. Crowns from other jurisdictions could be invited to attend. This would allow for Crowns from smaller jurisdictions to benefit from education in this area. In addition, the use of video links with smaller jurisdictions could be explored.
- Prevention of wrongful convictions should be a standard part of continuing education programs for Crowns across the country. For example, Ontario has regular Crown Schools every summer and hosts two educational conferences annually, in addition to other educational opportunities. The Federal Prosecution Service holds an annual Prosecutors School in the fall. The prevention of wrongful convictions should be included in regular conference and course materials. In this way, Crowns will be reminded of the dangers of wrongful conviction and can have ongoing training as new issues arise.
- New prosecutors should be required to attend seminars on wrongful convictions. These seminars can be either included in regular office or regional meetings or in specific training for new Crowns. Ontario already provides new Crown training on the role of the Crown and other pertinent areas.
- Crowns should be encouraged to attend and participate in external wrongful conviction conferences.
- Each prosecution service should develop a comprehensive written plan for educating its Crown attorneys on the causes and prevention of wrongful convictions.
Judicial Information Sessions
- Building on the success of the National Judicial Institute's December 2002 and 2003 courses, judicial training sessions could incorporate updates on law relevant to miscarriages of justice.
- Several educational modules have been developed with the specific intent of educating members of the judiciary on how to prevent miscarriages of justice.
- Members of the judiciary could be invited to participate in panels at Crown, defence and police educational programs.
Canadian Law School Education Options
- Recommendation 73(e) of the Morin Inquiry suggested that Ontario law schools and the Bar Admission Course consider an educational component addressing known or suspected causes of wrongful convictions and their prevention.
- Many Canadian law schools are addressing the issue of wrongful convictions and the role of Crown counsel in their criminal law curricula. These should be expanded.
Bar Admission Course
Law societies across the country should develop and include in their curriculum an educational module dealing with the causes of, and ways of preventing, wrongful convictions.
Education Opportunities for the Defence Bar
- The issue of wrongful convictions should be a regular part of defence counsel's educational activities. The Ontario Criminal Lawyers Association hosts regular conferences and provides extensive legal resources to its members. Co-operation between defence counsel in smaller provinces with criminal lawyers associations in larger provinces should be encouraged.
- Defence counsel should be encouraged to attend external educational seminars on the causes of wrongful convictions and on the ways of preventing them. (AIDWYC and the Innocence Project are examples of external educational resources.)
- Defence counsel should be encouraged to participate in panel discussions at Crown educational conferences/seminars and invite Crown representatives to their educational events.
Possible Educational Techniques
There are a number of methods that could be used at various conferences to present information with respect to miscarriages of justice:
- Presentation of case studies of wrongful convictions and lessons learned (ie: Milgaard, Morin, Sophonow, Marshall etc.) This technique is important as it emphasizes that the problem of wrongful convictions is not just a matter of legal theory, but involves real people who have spent many years in prison before being ultimately exonerated.
- In the context of small group discussions, participants can identify problematic areas and tools to reduce the risk of wrongful convictions.
- Theory can be put into practice by developing practical exercises, such as role-playing, demonstrations of witness interviews, and conducting photo-lineups.
- On-line training for Crowns and police is another learning mechanism that should be considered.
- Educational materials/policies could be distributed on CD-ROM to provide inexpensive access and promote information sharing across the country. Both Ontario and Manitoba have Crown policies on a variety of areas that focus on the prevention of wrongful convictions. Ontario's policies include: The Role of the Crown, In-Custody Informers, Conduct of Witness Interviews, Physical Scientific Evidence and Conceding Appeals and Responding to Fresh Evidence Applications and Police/Crown Relationship. These materials can, and should be, shared across the country.
- Video-linked conferences would enable larger provinces to share resources with smaller provinces. Video conferences could also be useful for ongoing educational training.
- Psychologists, law professors and criminologists should be invited to take part in educational conferences. The involvement of experts from outside of the justice system is extremely important, given the need to shift and adjust attitudes and “culture.”
- Guest Speakers: It is compelling to hear from the wrongfully convicted. One of the most compelling sessions at the AIDWYC conference was a panel of the wrongly convicted. Other guest speakers could include people such as Jennifer Thompson, a victim who wrongfully identified an individual as her rapist. She spoke at the first NJI course and at Justice Canada and is an accomplished speaker.
- Regular newsletters could keep Canadians involved and updated on miscarriage of justice issues.
Education modules for various participants in the justice system should be developed and modified depending on the exact audience of the forum. A list of topics has been compiled using reported causes of wrongful convictions identified in various reports and commissions. While many reports and academic papers have focused on immediate systemic failures relating to witness interviews, eyewitness identification, and disclosure of evidence, wrongful convictions often relate to a more fundamental issue - attitudes, practices and cultures within the criminal justice system. A clear understanding and delineation of the role of the Crown, police and forensic scientists is crucial to the prevention of wrongful convictions. In this context, while some of the topics proposed will relate to specific laws and procedures, others should provide a more fundamental understanding of the phenomenon of tunnel vision as well as the various roles and responsibilities within the criminal justice system. The topics recommended for consideration are the following:
1) Role of the Crown and Attorney General
Education on the proper role of the Crown can usefully be conducted not only as part of Crown and police conferences, but also in joint conferences involving defence counsel. Ethical responsibilities of both defence and prosecution should be emphasized at law school and be re-emphasized in practice as a part of continuing legal education programs. Topics to be covered could include:
- Overzealous prosecution;
- Witness interviews; and
- Tunnel Vision.
2) Role of the Police
Within the police community there is a culture of honest and fair investigations that are open-minded. Training, both as part of joint sessions with Crowns and other justice participants, as well as other specific police training opportunities, should emphasize this.
3) Tuel Visnnion
In order to combat the phenomenon of tunnel vision, proper investigation of alternative suspects by the police is required. A review of the tension between Crown independence and the concept of Crown/police “team” should be explored. Crowns must be fully aware of limits on advocacy, cross-examination and closing addresses.
4) Post-Offence Conduct and Demeanour Evidence
A number of appellate courts, including the Supreme Court of Canada, have been critical of the use of the term “consciousness of guilt” and have cautioned against the Crown using such terminology. Instead, “post offence conduct” or “evidence of conduct after-the-fact” should be employed. This concern was echoed in the Morin Inquiry. It is recommended that Crown counsel and police be educated on the dangers associated with consciousness of guilt and demeanour evidence.
5) Frailties of Eyewitness Identification
Ongoing police education should include the proper procedures to be used in dealing with identification witnesses. Protocols should be developed incorporating the recommendations in the Morin and Sophonow Inquiries. Education for Crown counsel should include the appropriate witness identification procedures and the factors that can affect the strength of an identification witness.
6) False Confessions
Police training should include material on the existence, causes and psychology of police-induced false confessions. Police should also receive training on the indicia of reliable and unreliable statements.
7) Witness Interviews
Police should receive training on the appropriate manner to conduct witness interviews. The effective prosecution of serious or sensitive cases often requires Crown counsel to also interview witnesses. Crown counsel should be educated on proper interview techniques to avoid unintentionally influencing a witness to change his or her evidence to accommodate the prosecution theory.
8) Alibi Evidence
Alibi evidence was a factor in the Sophonow Inquiry, as Thomas Sophonow was convicted despite the fact that his alibi evidence was true and established his innocence. Education regarding the Sophonow Inquiry recommendations should be a part of Crown, defence and police training.
9) Jailhouse Informants
There should be education about jailhouse informants and other analogous types of witnesses generally. This education should focus on the circumstances in which jailhouse informants may be used, as well as the dangers, justifications and safeguards. Careful consideration by the police and Crown counsel should extend to unsavoury witnesses generally.
10) Ineffective Assistance of Defence Counsel
Providing qualified defence counsel is among the most important safeguards against wrongful convictions. Ongoing education on the causes of wrongful convictions should be available to all defence counsel.
11) Forensic Scientific Evidence – Junk Science – Proper Use of Expert Evidence
This is an area where all participants in the criminal justice process could benefit from additional education.
12) Benefits of DNA Evidence
Just as the use of DNA technology increasesthe chances of guilty parties being identified and held responsible for the crimes they commit, the use of DNA can also exonerate the innocent. The DNA Identification Act provides the opportunity to use DNA to solve criminal cases and identify the true offender while excluding innocent people. Crown counsel and police should be trained on the uses and benefits of DNA evidence, and of the need to make applications to obtain orders for its inclusion in the national DNA databank.
Disclosure has been identified as an important safeguard against wrongful convictions as it permits the accused to know the case against him/her and adequately prepare a defence. Ongoing education regarding police and Crown disclosure obligations should be a prominent part of educational training.
14) Charge Screening
The community relies on Crown counsel to vigorously pursue provable charges while protecting individuals from the serious repercussions of a criminal charge where there is no reasonable prospect of conviction. Crown counsel should receive training on charge-screening protocols and the limitations of reliance on public interest factors where no reasonable prospect of conviction exists. The importance of this limitation is highlighted in particularly heinous or notorious crimes where public passions are inflamed.
15) Conceding Appeals / Fresh Evidence
There should be education for police and prosecutors on the importance of careful review at the appellate stage, including the consideration of fresh evidence.
- A National Forum on the Prevention of Wrongful Convictions, co-sponsored by the Heads of Prosecutions Committee and the Canadian Association of Chiefs of Police, should be held to provide national leadership and direction.*
- The following options for educational venues should be considered :
- joint educational sessions involving Crowns, police, defence and forensic scientists;
- specialized conferences, courses and educational materials for police;
- specialized conferences for Crowns, as well as segments in continuing education programs;
- judicial information sessions;
- law school courses;
- bar admission course; and
- education opportunities for the defence bar.
- The following educational techniques should be considered:
- presentation of case studies of wrongful convictions and lessons learned;
- small group discussions and role-playing, demonstrations of witness interviews, and conducting photo-lineups;
- on-line training for Crowns and police;
- distribution of educational materials/policies on CD-ROM;
- video-linked conferences;
- participation of psychologists, law professors and criminologists in educational conferences;
- guest speakers, including the wrongfully convicted; and
- regular newsletters on miscarriage of justice issues.
- The following educational topics should be considered:
- role of the Crown and Attorney General;
- role of the police;
- tunnel vision;
- post-offence conduct and demeanour evidence;
- frailties of eyewitness identification;
- false confessions;
- witness interviews;
- alibi evidence;
- jailhouse informants;
- ineffective assistance of defence counsel;
- forensic scientific evidence and the proper use of expert evidence;
- benefits of DNA evidence;
- charge screening;
- conceding appeals / fresh evidence.
- Each prosecution service should develop a comprehensive written plan for educating its Crown attorneys on the causes and prevention of wrongful convictions.
- Any educational plan for the prevention of miscarriages of justice should include a public communication strategy to advise the public that participants in the criminal justice system are willing to take action to prevent future wrongful convictions.
-  p. 78.
-  pp. 78-79.
-  The course includes a fifteen-hour, 13-lecture, digital multimedia curriculum on CDs, produced by Houston attorney Sam Guiberson and presented by the nation's top experts on issues of innocence. Lecturers include Barry Scheck and Peter Neufeld of the Innocence Project on DNA testing and innocence, Professor Gary Wells on eyewitness identification evidence, Professor Michael Saks on junk forensic science, Stephen Bright of the Southern Centre for Human Rights on ineffective assistance of counsel, Professor Michael Radelet on innocence and the death penalty, and Bryan Stevenson of the Equal Justice Initiative of Alabama on innocence and race.
-  A survey conducted by CACP indicates that there is currently no direct training by police services on the issue of miscarriages of justice or wrongful convictions. However, there are several specialized courses being conducted by police services and police academies which incorporate and study some of the individual causes of wrongful convictions, with a particular emphasis on police-induced confessions in the context of courses on statement taking, or tunnel vision and eyewitness misidentification during major case management and general investigation courses. In February 2004, the Sûreté du Québec, the RCMP and the Québec police academy jointly hosted a conference on statement-taking which focused some of the discussions on police-induced confessions. In May 2004, a presentation was given by senior officers in the North West Region of the RCMP on the work done by the Working Group. This will become a permanent fixture in commissioned officer training for the Region.
-  Articles discussing Thompson’s experience include: Mark Hansen, “Forensic Science: Scoping out Eyewitness Ids,” 87 A.B.A.J. 39, April, 2001; Helen O’Neill (The Associated Press), “The Power of Faith / Eleven Years After Jennifer Thompson’s Mistaken Identity Sent Him to Jail, Ronald Cotton’s Spirit of Forgiveness Let Them Be Friends,” Newsday (New York), Wednesday November 8, 2000, Part II; Page B06.
- * Subsequent to the writing of this report, the Manitoba government, in conjunction with the University of Manitoba, has begun to plan an international conference on wrongful convictions in Winnipeg in October 2005. A representative of the Working Group is on the organizing committee and the Working Group believes this conference can achieve the same objectives as the proposed National Forum and wholeheartedly supports the initiative.
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