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Clayton Ruby

Clayton Ruby

'War on crime' denies justice: top lawyer

Attitude of police, prosecutors cause wrongful convictions, argues Clayton Ruby

The Canadian justice system will never learn the lessons of the wrongly convicted so long as police and prosecutors approach criminal trials as a war with defence lawyers, says Toronto lawyer Clayton Ruby.

Two principal causes of miscarriages of justice -- the failure of the Crown to disclose vital information to the defence and the prosecution's use of jailhouse informants --- result from this mindset, says Mr. Ruby, who defended one of Canada's most prominent wrongly accused, Guy Paul Morin.

"The way we think about crime produces miscarriages of justice," Mr. Ruby says. "It is not a war. There is no enemy. It's just all of us trying to deal with a social problem. The trial is an exercise in producing a just result, not a victory, but a just result."

Last month, Felix Michaud, a 35-year-old New Brunswick man, was released from prison after being subjected to a textbook case of how criminal trials should not be conducted.

Moreover, he was convicted of first-degree murder in the wake of a Supreme Court of Canada decision that was supposed to lift the veil of secrecy and ease the adversarial atmosphere between the prosecution and defence in criminal trials.

Mr. Michaud was found guilty of first-degree murder twice; both convictions were overturned on appeal. When his lawyers asked for disclosure of the police investigation from the Crown before his third trial, they received more than 2,200 documents, whereas only 300 pages had been disclosed before the first two trials.

After serving almost nine years behind bars, the charge against Mr. Michaud was stayed when a judge found prosecutors and police had failed to disclose information key to his defence before his first trial. This "high degree of negligence" irreparably harmed Mr. Michaud's ability to offer a full defence against the charge.

Mr. Michaud was charged in July, 1992. Key decisions about what would be disclosed to the defence were made in the fall of 1993, two years after a watershed Supreme Court decision, today referred to by criminal lawyers simply as "Stinchcombe."

On Nov. 7, 1991, the Supreme Court ruled in the case of William Stinchcombe, a Calgary lawyer who was convicted of breach of trust. The case was appealed to the Supreme Court because the prosecution had refused to disclose the contents of a statement made by Mr. Stinchcombe's former secretary that was favourable to the defence.

Writing for the majority, Justice John Sopinka overturned Mr. Stinchcombe's conviction and said an accused has a constitutional right to see all material uncovered in the course of a police investigation.

"The fruits of an investigation which are in the possession of the Crown are not the property of the Crown for use in securing a conviction, but are the property of the public to be used to ensure that justice is done," he wrote. "The material must include not only that which the Crown intends to introduce into evidence, but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence. If the information is of some use, then it is relevant. The determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor."

This spring Mr. Michaud's lawyer, Gilles Lemieux, uncovered notes of a meeting before his first trial between the lead prosecutor and chief police investigator that suggests they decided not to use wiretap evidence because it was "mostly beneficial to the accused." The information was never disclosed to the defence, although it clearly fell within the parametres set out by Stinchcombe.

The Stinchcombe ruling was the Supreme Court's response to the wrongful conviction of Donald Marshall Jr., the Nova Scotia Mi'kmaq who spent 11 years in prison for a murder he didn't commit. In December, 1989, a commission of inquiry released a report on Mr. Marshall's conviction, recommending that there be full disclosure between prosecutors and the defence in order to guard against miscarriages of justice.

Justice Sopinka reproduced the recommendations of the Marshall inquiry in his ruling, noting a failure to disclose inconsistent statements of witnesses was one of the key contributing factors in the miscarriage of justice that sent an innocent man to prison for life at the age of 17.

Failure to disclose all evidence gathered in criminal investigations is a pervasive theme in wrongful conviction cases in Canada, says Toronto lawyer Melvyn Green, who works with the Association in Defence of the Wrongly Convicted.

Lack of disclosure played a role in the wrongful convictions of Mr. Marshall, Guy Paul Morin in Ontario and Thomas Sophonow in Manitoba.

In the case of Mr. Morin, who was charged in 1985 with murdering nine-year-old Christine Jessop, there was incomplete disclosure of both inconsistent statements of witnesses and forensic evidence. Mr. Morin was found not guilty in his first trial, was convicted at a second trial, but cleared by DNA testing in 1995.

In Mr. Sophonow's case, the Crown failed to disclose statements that helped to confirm his alibi after he was accused of killing a 16-year-old girl in 1981.

While the Supreme Court has dealt with the disclosure issue, it hasn't yet ruled on the use of jailhouse informants.

Like in the cases of Mr. Morin and Mr. Sophonow, Mr. Michaud was convicted with the help of testimony from a jailhouse informant who testified that he confessed to the crime while in prison.

Jailhouse informants are dangerous, Mr. Ruby says. "The problem is that those people will say absolutely anything and because they're lifelong criminals, they tend to be convincing when they lie. They're given immunity as long as they testify 'truthfully,' which means truthfully in the view of the police who want them to say things that are incriminating to the accused. So it's a circle which produces, inevitably, perjured testimony."

In Ontario a prosecutor must now seek the approval of a committee of senior prosecutors before using jailhouse informants. But, Mr. Ruby says this doesn't go far enough.

"It doesn't solve the problem in the least, because you simply cannot tell when they are telling the truth. The idea that all these accused are going into jail and confessing to other criminals is attractive but fanciful," he says.

In Mr. Ruby's view, the larger problem is too many police and prosecutors feel the trial is a war between opposing camps.

"If you view a trial like that you don't want to make disclosure," he says. "It's out of that mind set that these injustices flow. You've got to change the mindset of what a criminal trial is about. And increasingly, the 'war on crime' motif has become popular in Canada.

"So governments encourage this mindset, and then they profess to be appalled when it produces miscarriages of justice. 'How awful,' they say with shock. Well, what did you expect?"

An attorney' right of access to evidence

Stinchcombe was a lawyer who was charged with breach of trust, theft, and fraud. The Crown, the federal government, accused him of taking property that had been given him "in trust" (for safekeeping). Stinchcombe denied the accusation.

The RCMP interviewed Stinchcombe's former secretary. Her statement was tape recorded. Crown counsel told Sinchcombe's lawyer about the tape recording but did not tell him what the secretary had said. Defence counsel, Stinchcombe's lawyer, asked for a copy of the statement. His request was denied.

The secretary was interviewed again. Stinchcombe's lawyer again requested the disclosure of information. Once more, his request was refused.

Unexpectedly, the secretary was not called as a Crown witness at the trial. Intrigued by this omission, the defence counsel suspected the secretary had said some positive things about Stinchcombe - statements that would help his client. He asked that the secretary be called as a witness or that he be given a copy of her statement. Yet again, his request was denied. The defence counsel brought the case before the Supreme Court of Canada.

The court said that defence counsel should get all relevant information. In fact, the Crown has a legal duty to give all relevant information to the defence. (There are exceptions, such as when the information would identify an informer.)

Most people think that the job of a prosecutor or Crown counsel is to get a conviction: Win the case and put the accused in jail. Not quite. The role of Crown counsel is to "lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. "The evidence gathered from an investigation is not the sole possession of the Crown. It is to be shared by both sides to ensure the interests of truth and justice.

Important note: This theory works fine when you are dealing with fraud and breach of trust. But what if the alleged crime is one of sexual assault? What if the defence wants to know what the alleged victim said to her counsellor or psychiatrist in confidence? Does the right of the accused to be able to defend himself (termed "to make full answer and defence") override the victim's right to privacy? Should there be a balance?

To examine these questions, see the cases of O'Connor, Carosella and Mills.
Balancing the rights of the accused and those of the victims?

These two references may be outdated.

Nowhere does anyone claim that it is okay to withhold disclosure in order to perpetrate a fraud upon the court.

Everywhere courts rule that the right of an accused to full answer and defence overrides the right of a complainant to privacy and provides sensible suggestions judges may use to prevent victimization of complainants.

The initial police investigation reports are the most important documents which any accused should have immediately following the laying of charges. We have been finding examples of police laying charges on the information of complainants without doing any independent investigation. We submit that the police are not worried so much about their secret investigation methods being exposed but the fact that they rarely do any investigation at all.

For years, when the media was effectively silenced by sweeping bans, we can be certain there were many more crimes like those committed by police in the Clayton Mentuck sting.