National Post

April 1, 2002

Judges get course aimed at cutting bad convictions

First session by end of year: Increase in wrongful court outcomes alarms justices

Cristin Schmitz
Southam News
National Post


David Clark, Vancouver Province
Thomas Sophonow

OTTAWA - Deeply troubled by the small but mounting number of miscarriages of justice coming to light in Canada, the country's chief justices have approved an intensive new course to help judges prevent wrongful convictions.

When the Canadian Judicial Council met in Ottawa last week, the leaders of federally appointed courts quietly voted to authorize the National Judicial Institute to create a three-day course that will help trial judges spot and neutralize the recurring causes of wrongful convictions, The Lawyers Weekly reports in its next edition.

The poisonous cocktail of ingredients found by experts to contribute to miscarriages of justice include: overconfident eyewitnesses who misidentify perpetrators; bogus prosecution "experts" who bamboozle juries with junk science; lying jailhouse informants who invent confessions to curry favour with the authorities; and overzealous prosecutors or inept defence counsel who jeopardize an accused person's right to a fair trial.

"The idea is to give trial judges a kind of tool kit that addresses these various areas and gives them suggestions on how they might handle them," said James O'Reilly, an Ottawa lawyer and a member of the team of judges, academics and lawyers that is designing the program to help judges guard against miscarriages of justice.

George Thomson, executive director of the National Judicial Institute, said two provincial commissions of inquiry into wrongful convictions have recommended specialized training for trial judges.

"This would be an educational program that would be offered to a small number of judges to begin with, because it's going to be a skills-based course where ... you actually have to work through simulated case situations that raise these issues."

The Ottawa-based educational body for Canadian judges will likely deliver the course to the first group of 35 trial judges by year's end. The material could eventually be offered to all judges across Canada through the educational programs of their local courts, Mr. Thomson said.

The emergence of DNA testing and other scientific and legal advances is forcing criminal justice systems worldwide to confront the tragedy of wrongful convictions. Donald Marshall Jr., David Milgaard, Guy Paul Morin and Thomas Sophonow, who collectively spent nearly 40 years behind bars for murders they did not commit, are among the dozen or so Canadians whose convictions have so far been overturned or cast in serious doubt.

In the United States, more than 100 people on death row have been released due to improper murder convictions, and two years ago the governor of Illinois declared a moratorium on executions when it was revealed that more than half the people sentenced to die (but not executed) since 1977 were eventually exonerated.

"Over the past couple of decades we have seen spectacular cases of wrongful convictions in Canada, the U.S., the U.K., Australia and other countries, and naturally those countries in particular have been very concerned to see that there are appropriate remedies in cases of alleged wrongful conviction, and that measures be taken in order to prevent them in the first place," Mr. O'Reilly said.

The new course for judges will highlight what is considered to be the leading cause of wrongful convictions: overconfident eyewitness testimony.

Eyewitness misidentification was one factor in the wrongful conviction of Mr. Sophonow for the 1981 strangulation slaying of 16-year-old Barbara Stoppel, according to the inquiry report on the Manitoba case by retired Supreme Court of Canada judge Peter Cory.

Mr. Cory urged trial judges to clearly warn juries that a witness's confidence doesn't signal accuracy and that "tragedies have occurred as a result of mistakes made by honest, right-thinking witnesses."

Mr. O'Reilly cited the recent example of an American attorney who was brutally raped.

"She decided there was nothing she could do about the fact that she was being sexually assaulted except try to memorize the face of her assailant so that when it came time for identification and trial she would be the perfect witness, and so she was," he said.

"She had enormous credibility as a lawyer. She was very composed, and gave detailed evidence about how it was she could remember her assailant, and then identified him in court and this person was convicted on the strength of that evidence and then later it came to light through, I believe, DNA analysis that she had picked out the wrong person."

Eyewitness misidentification was one factor in the wrongful conviction of Mr. Sophonow for the 1981 strangulation slaying of 16-year-old Barbara Stoppel, according to the inquiry report on the Manitoba case by retired Supreme Court of Canada judge Peter Cory. Mr. Cory urged trial judges to clearly warn juries that a witness's confidence doesn't signal accuracy and that "tragedies have occurred as a result of mistakes made by honest, right-thinking witnesses."

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