Winnipeg Free Press - PRINT EDITION

Wrong way to review wrongful cases

  • Print

Regardless of its eventual outcome with the federal justice minister and perhaps the justice system in Manitoba, the Deveryn Ross case has exposed an ongoing flaw in the process by which wrongful convictions are corrected.

It is that there is an absence of true independence in the review mechanisms that have been established at both the federal and provincial levels.

This problem has been noted in many commissions of inquiry into wrongful convictions in Canada, which consistently called for the creation of an independent review body within the federal government along the lines of what Britain and other countries have done.

Canada has resisted doing so, but the Ross case animates a different aspect of the issue.

In order for the wrongly convicted person to establish merit to his or her claim, the trail inevitably leads through provincial prosecution offices where the original files are kept and where a Crown attorney once successfully prosecuted the person who says it was wrongful.

While Crowns are ethically bound to act as a 'minister of justice,' not seeking to win but rather to see that justice is done, nevertheless, trying criminal cases can be a very competitive game.

History has shown that on occasion both prosecutors and police play it with a stacked deck by skewing their investigation methods, ignoring evidence that doesn't suit the case or failing to disclose it to the defence and the court.

They fall into the trap of something called tunnel vision, and a recent report by Crown attorneys across the country cautions against tunnel vision getting converted into 'Crown culture' by which the prosecution adopts the bias of the police.

In study after study, the people who become engulfed in this maze of bias rarely intended to be wrong. They thought they had the true perpetrator and didn't intend to prosecute the wrong person. Which brings us to the Ross case. As detailed by Dan Lett in his column We should learn from past mistakes (May 21), when Ross applied to the federal justice minister to have his case reviewed, Manitoba hired the person who originally prosecuted him to compose a response.

Few people would be more naturally invested in ensuring the conviction was upheld than the person who led that prosecution. At least the federal department saw fit to retain an independent investigator to review the file. Not so in Manitoba, and this is where change must occur.

The original prosecutor of a case, and indeed all those in the prosecution office are in either a real or perceived conflict of interest when one of their cases is challenged as being a miscarriage of justice. But this is not where the problem actually ripens.

Final decisions about wrongful-conviction cases are reserved for the federal justice minister, however, the provincial minister can play a significant role in the process. For example, it was our provincial minister who asked his counterpart in Ottawa to reopen the case involving James Driskell.

The provincial minister should care as much about wrongful convictions as the federal minister and yet, the provincial minister must rely on information that could be tainted with the same hue of the trial.

There is a fairly easy way to address this issue.

Manitoba has an opportunity to take the lead in Canada and create a neutral and independent oversight entity that can provide the minister with a detached view of the wrongful-conviction cases as they proceed through the provincial Crown's office. No Crown attorneys would be asked to handle, review or investigate their own or their colleague's cases.

The ultimate power to open cases would still reside with the federal minister, but it would be a welcome and important symbol of its commitment to justice if the province recognized the bias inherent in the system and accepted within its legal jurisdiction the concept of independent review of wrongful-conviction cases.


David Asper is a Winnipeg lawyer and businessman.

Republished from the Winnipeg Free Press print edition April 23, 2014 A9

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes

    No

  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.

letters

Make text: Larger | Smaller

LATEST VIDEO

Winnipeg Cheapskate: Cheap summer weekends

View more like this

Photo Store Gallery

  • MIKE.DEAL@FREEPRESS.MB.CA 100615 - Tuesday, June 15th, 2010 The Mane Attraction - Lions are back at the Assiniboine Park Zoo. Xerxes a 3-year-old male African Lion rests in the shade of a tree in his new enclosure at the old Giant Panda building.  MIKE DEAL / WINNIPEG FREE PRESS
  • KEN GIGLIOTTI / WINNIPEG FREE PRESS / Jan 10  2011 ‚Äì WEB STDUP ‚Äì Frosty morning at -15 degrees C , in pic frost covers the the Nellie McClung statue  on the MB Legislature grounds at 7am

View More Gallery Photos

Poll

Should the city grant mosquito buffer zones for medical reasons only?

View Results

View Related Story

Ads by Google