Winnipeg Free Press - PRINT EDITION

Wrong way to review wrongful cases

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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

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