By Donna Laframboise, Toronto Star, 9 November 1992
Imagine that you're the prosecutor in one of the most sensational criminal trials in recent memory. That you believe the accused, Guy-Paul Morin, has savagely raped and murdered a 9-year-old girl. That you consider his previous acquittal by a jury to be a terrible mistake.
Your employer, the Ministry of the Attorney General of Ontario, is believed to have spent millions of dollars trying to obtain a re-trial. And, after years of legal wrangling, has succeeded.
Although your case against the accused is almost entirely circumstantial, you do have one piece of hard evidence. Two fellow prisoners say they heard him confess to the crime while in jail prior to his first trial.
Now imagine that you go to these two key witnesses - months after the trial has begun - and offer them a chance to back out. Suppose you say: "Look, you're going to be cross-examined by the defence and, because of your criminal and psychiatric histories, it's going to be embarrassing for you. So, if you want, we can just forget the whole thing."
Amazing as it sounds, this is what happened in the recent Guy-Paul Morin trial. Such an offer was, in fact, extended - first by a police officer and then by the crown attorneys themselves.
It's important to understand that, if these witnesses had chosen to accept it, a mistrial would likely have resulted. Since the jury had, in the prosecution's opening address, already been given a detailed account of what these witnesses would say, the prosecution had an obligation to call them to the stand. It's also significant that no one I've talked to in the legal profession has ever heard of such a thing happening before.
Does this make any sense? Are we really supposed to believe that experienced prosecutors would let someone they think is a murderer go free on the whim of two witnesses?
The crown says it hadn't fully considered the possible consequences of its actions; that in making such an offer it was merely trying to ensure that these witnesses wouldn't be hostile or reluctant in court. But the very fact that subpoenas exist suggests that prosecutors deal with these sorts of situations all the time.
And doesn't our legal system expect rape victims, for example, to testify anyway - no matter how embarrassing or painful the experience - because we believe that bringing criminals to justice must take precedence over people's personal feelings?
“offer was nothing more than a charade”
For their part, Morin's defence team argues that the offer was nothing more than a charade intended to make the witnesses' testimony appear more believable to the jury. They say it must have been made with a wink and a nod, so that everyone involved knew it wasn't genuine, but the witnesses could then claim they'd come to court of their own accord.
In this way, the jury would be left with the impression that these men must really have heard something unusual in order to still feel strongly about testifying to it years later.
Unfortunately, this line of reasoning sounds plausible to me. These witnesses were, after all, less than credible on their own merits. One of them has been convicted of several sexual assaults involving children as well as adults. The other, with criminal convictions for fraud and false pretenses (read: dishonesty), was identified by a psychiatrist in court as being a psychopath who lacks a conscience.
And, significantly, both these men bargained fiercely for lenient treatment in exchange for agreeing to testify about a confession Guy-Paul Morin denies ever making.
Are we, then, to conclude that the prosecution deliberately - and unethically - staged this offer in order to increase the chances of the jury believing these witnesses and, consequently, returning a guilty verdict against Guy-Paul Morin?
We may never know for certain. Because, although regulations require police to keep detailed notes about such matters, the officer who approached these witnesses neglected to do so. Nor did anyone make any tape recordings of who said what - or in what tone of voice - during these meetings.