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Gordon Mackintosh

Mackintosh acts to speed Driskell review
Reverses position as pressure mounts

Gord Mackintosh

JUSTICE Minister Gord Mackintosh bowed yesterday to growing evidence of a miscarriage of justice in the James Driskell case and agreed to help speed a federal review of Driskell's claims of innocence.

In a reversal of his previous position, Mackintosh stunned Driskell and his supporters by announcing he has written to the federal Justice Department -- which has launched a full investigation of Driskell's case -- asking them to send the new evidence back for judicial review.

Mackintosh said he felt it was important to advise the federal Justice Department of his opinion in the wake of comments last week by Justice John Scurfield of Manitoba Court of Queen's Bench. Justice Scurfield released Driskell on bail largely on new evidence which significantly weakened the Crown's case.

"When I look at the decision of Mr. Justice Scurfield, quite frankly I feel it's important that this matter be reviewed on a timely basis... and I think it should be referred back to the courts," Mackintosh said.

James Lockyer, a lawyer for Driskell, said Mackintosh's request that the case be sent back to the courts will significantly speed a federal review into the case. It could lead to an Appeal Court considering new evidence, or Driskell getting a new trial.

James Driskell

Driskell, who is still fielding a deluge of requests from the media for interviews, said he could not believe how quickly Mackintosh had changed his position.

"I am totally surprised about this," Driskell said from St. Pierre Jolys, 40 kilometres south of Winnipeg, where he is living while on bail. "This is the last thing I expected him (Mackintosh) to do. I expected him to bury this like everyone else."

Driskell was convicted in June 1991 of killing his friend, Perry Dean Harder. Convicted without a confession, a witness or a murder weapon, Driskell has always maintained his innocence.

New evidence uncovered in his case showed key witnesses were paid for their testimony and given immunity from prosecution for other crimes, but that none of these details was ever presented to the jury. The Winnipeg Police Service also possessed new evidence never revealed to a jury or Driskell's lawyers, including proof a key witness tried to recant after the trial.

It can take years for the federal Justice Department's Criminal Convictions Review Group to review alleged wrongful convictions under Sec. 696 of the Criminal Code, Lockyer noted. Under that provision, the federal minister has power to send a case back to an appellate court for review or order a new trial.

Consent from Manitoba for a judicial review should streamline the federal investigation significantly, added Lockyer, who is handling Driskell's case on behalf of the Association in Defence of the Wrongly Convicted.

"Obviously, it makes the federal justice minister's decision very easy," Lockyer said. "And just today the Convictions Review Group in Ottawa made it clear to me that this application will proceed very quickly. This should make it go even faster."

Before yesterday's announcement, Manitoba Justice had disputed Driskell's claims of innocence, and dismissed new evidence as unlikely to have influenced the jury which convicted him of first-degree murder in 1991. Independent counsel representing Manitoba Justice argued at the bail hearing last week that there was still abundant evidence Driskell was guilty.

However, Justice Scurfield determined the new evidence cast serious doubts on the original conviction. In fact, DNA tests done more than a year ago, which excluded three hairs used to convict Driskell at his trial, were in themselves enough to warrant release on bail, Scurfield stated.

"I am satisfied that if all of the new evidence had been presented to the Court of Appeal following the original trial, the conviction would probably have been set aside and he would probably have been granted a new trial," Scurfield said.

This assessment directly contradicted the opinion of senior Crown attorneys in Manitoba Justice, who examined the DNA results nearly one year ago and concluded they would not have affected the jury's decision.

In March, Driskell's legal team asked Manitoba Justice to make a joint application to the Manitoba Court of Appeal to review the new evidence, to avoid the time and trouble of filing an application for review to the federal Justice Department.

Manitoba refused, in large part based on an opinion that the appellate court would not hear the new evidence, Mackintosh said.

Lockyer noted, however, that while it is not the normal path for post-conviction review, it is unlikely an appellate court would refuse to at least review the new evidence and offer an opinion.

Even with Manitoba's consent to a judicial review, there are still important questions to be answered about which court should take the case, Lockyer said.

Federal Justice Minister Martin Cauchon could refer the case back to Manitoba Court of Appeal for a full review of all the new evidence, Lockyer said. That could prove to be time-consuming and costly, he added.

However, if persuaded the case against Driskell has been profoundly weakened, Cauchon could quash the conviction and refer it back to Manitoba Court of Queen's Bench, Lockyer said.

This remedy would require Manitoba to immediately decide whether to retry Driskell which, given the lack of evidence against him, would be unlikely, Lockyer said.