Supreme Court of Canada says Ivan Henry can sue for Charter breach

In a unanimous decision, the Supreme Court of Canada held today that a cause of action will lie where the Crown, in breach of its constitutional obligations (i.e., its obligations under the Charter), causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.

While the bar remains high, it is nowhere near as high as the “malicious prosecution” bar—one requiring proof of malice on the part of the prosecutor.

A happy day for Ivan Henry, as the decision will doubtless spur settlement discussions. A happy day for the wrongly convicted community, as the decision makes prosecutors materially more accountable than before.

Ivan Henry & the Charter of Rights and Freedoms

May 1, 2015

Innocence Lost

If I’m right, the Supreme Court of Canada will rule today that wrongly convicted Ivan Henry has the right to sue the Crown for a breach of the Charter—no-one can be deprived of life, liberty and security of the person “except in accordance with the principles of fundamental justice.”

Henry’s lawyers argued in November 2014 that the Crown failed to disclose at trial a raft of potentially exculpatory information, including contradictory victim statements; the recovery of spermatozoa from some of the victims; and the fact that Donald McRae, a prolific sexual predator, had been a suspect.

As the law now stands, a wrongly convicted person must prove “malicious prosecution”—namely, an intentional abuse or perversion of the system of criminal justice for ends it was not designed to serve. In setting the bar so high twenty-five years ago, the highest Court in the land said it would be sufficient to ensure that the Crown would not be hindered in “the proper execution of its important public duties.”

The Court was right—only one case has succeeded since then.

However, should the Supreme Court of Canada rule in Henry’s favour, the need for proving malice will, at least in cases of wrongful conviction, be gone. Instead, any wrongly convicted person will simply be required to establish, at the very most, a “marked departure” from the standards expected of prosecutors within the profession.

In practical terms, what if any impact would such a decision have on Henry himself? From a legal perspective, precious little. While lawyers wrangle about the law’s niceties, Henry remains penniless; hoping that justice—the hard, cold cash kind—will occur before he dies.

Sentenced as a dangerous offender in 1983 for ten sex crimes he did not commit (see my book Innocence on Trial: The Framing of Ivan Henry (Heritage House, 2014)), Henry spent 27 years in prison before being acquitted—found “not guilty”—by the B.C. Court of Appeal in 2010. Arguing that he has not proven his factual innocence, the state has yet to pay him a dime in compensation.

Yet who among us could establish—if charged with a serious crime—that we are innocent? Absent DNA (in Henry’s case, the police “lost” the semen samples); an iron-clad alibi (the police and Crown failed to investigate his alibi statement); and/or the confession of the actual perpetrator (a man who went on to commit a minimum of 25, as high as 50, reported rapes after Henry was behind bars), proving actual innocence is well nigh impossible.

So much for the presumption of innocence, that “golden thread” supposedly running through our criminal justice system. The problem is that, once lost, that state of innocence is seemingly impossible to recover—no matter how reprehensible the behaviour of police and Crown.

Now sixty-eight, Henry has no money—no pension, no savings (he’d spent the pittance he earned in prison trying to win his freedom), and no job. Virtually unemployable, his health affected by years of inadequate medical and dental treatment, he has dedicated himself to alleviating the suffering endured by his two adult daughters by reason of his longterm incarceration. Tragically, the younger daughter passed on earlier this year. Henry blames the state for her demise—not just for wrongly convicting him in the first place, but for their abysmal treatment of him post-release.

(As a disturbing aside, guilty offenders get treated better than the wrongly convicted. Once released, they have the benefit of a half-way house, including board and room and the camaraderie of a peer group; help with job searches, financial and psychological counseling; etc.)

Should Henry succeed, a small ray of hope might open for him—the possibility that the defendants might see the light and initiate serious settlement discussions.

In 1999, David Milgaard received a $10 million settlement for his wrongful conviction. The facts of the Ivan Henry case cry out for a sum well in excess of that.

As though any amount of money could compensate him for the life of pain and suffering he has endured.

Still and all, money is money, and a nudge from the Supreme Court of Canada in the right direction cannot hurt.

Ivan Henry’s Charter Argument

Lawyers for Henry—the BCCLA and David Asper Centre for Constitutional Rights appearing as Intervenors—argued before the Supreme Court of Canada in November 2014 that malice on the part of the prosecutor – or any state actor – has no role to play in determining the availability of damages as a constitutional remedy.

http://bit.ly/1Bs7c9h

Fingers crossed but, even if the SCC says no, Henry’s “malicious prosecution” argument has every likelihood—-if his lawyers amend their pleadings to add the prosecutor’s 1. introducing two fake lineup photos; and 2.substituion of exhibits at trial—-of succeeding.

Fallibility of Eye-Witness Testimony (Megan Cassidy; The Republic)

Three decades ago, a victim’s imperfect memory sent Larry Youngblood to prison.

DNA evidence would later clear the Tucson man of involvement with a 1983 child abduction and rape, but not before he would languish for a total of nine years behind bars.

Advocates are pointing to this case and a growing number of others to discredit the sanctity of one of the legal system’s most cherished prosecutorial tools: eyewitness testimony.

Last week, the National Academy of Sciences released a report evaluating the scientific research on memory and eyewitnesses, underlining key variables that can lead to flawed identifications.

The report recommends various best-practice procedures, including blind testing, (when the officer performing the lineup is unaware of the suspect), videotaping the procedure, developing standardized witness instructions and asking the witness to rate his or her level of confidence at the time of the lineup.

The Innocence Project, a national litigation and public-policy organization that lobbies for freedom of the wrongfully convicted, has pushed for states to uniformly adopt these techniques, to mixed results.

Ten states so far have enacted the recommendations by law, policy or court action. Arizona is not one of them, but some jurisdictions have voluntarily embraced the reforms.

Innocence Project officials have advocated presenting photos or suspects in sequential order instead of simultaneously. Supporters say research shows the method helps prevent wrongful convictions by reducing the pressure to “pick one.”

The Tucson Police Department was one of four agencies to participate in an Innocence Project and American Judicature Society field study using sequential testing. The agency adopted the method following the study’s report, said Tucson police legal adviser Lisa Judge.

“The impetus for us was doing what we could to rely on the most credible evidence available,” she said. “Certainly you can’t ignore that across the nation, there’s evidence that points to wrongful convictions based on bad IDS.”

Youngblood’s saga began in 1983, when a 10-year-old boy was kidnapped from a Pima County carnival, molested and held for more than an hour. The boy received a rape examination and told investigators his assailant was a Black man with a bad right eye.

But when police presented a photo lineup to the boy nine days later, it was Youngblood, a Black Tucson man with a disfigured left eye, who stood out. Youngblood was arrested four weeks later.

Youngblood’s chief defense in trial was that the boy had been mistaken, but a jury disagreed. He was convicted in 1985 and sentenced to 10½ years in prison. In a crucial misstep, Tucson police failed to properly store DNA evidence collected from the boy at the time, rendering it useless for emerging forensic technology.

Legal battles over Youngblood’s right to DNA would free and reincarcerate the man until more sophisticated DNA testing became available for the evidence. In 2000, Youngblood’s claims of innocence were at last scientifically validated. He was not the assailant.

Instead, the evidence led investigators to Walter Cruise, a Black man who was blind in his right eye, and serving time in a Texas prison for unrelated charges of sex assaults against children. Cruise later pleaded guilty to the Arizona crime.

Carol Wittels, Youngblood’s public defender who fought for his freedom, said the prosecution’s case hinged nearly entirely on the victim’s identification, despite conflicting evidence.

Several people vouched for Youngblood’s alibi — that he was baking lemon meringue pies at the time of the abduction, Wittels said.

The victim had also noted there were tufts of gray in his assailant’s hair, while a hair expert testified that Youngblood’s black locks had never been dyed.

“Larry’s case always haunted me — he was such a sweetie,” she said. “I knew he was innocent.”

Eyewitness misidentifications have contributed to 72 percent of the 318 convictions that were later overturned by DNA evidence, according to the Innocence Project.

The true perpetrators were later identified in 39 percent of those cases, but were free to commit 98 additional violent crimes while the innocent were locked up, the organization says.

Experts say most of the mistaken eyewitnesses aren’t intentionally lying. While no single factor shoulders the blame for the human error, researchers say police practices often fall short on their efforts to ensure accurate eyewitness identification.

“(I)nsufficient training, the absence of standard operating procedures and the continuing presence of actions and statements at the crime scene and elsewhere may intentionally or unintentionally influence eyewitness identifications,” the report states.

Scientists have long understood memory to be malleable by time and outside variables, but advocates say jurors still place too much trust on the brain’s accuracy.

Amshula Jayaram, a state policy advocate for the Innocence Project, explains the recommended reforms as a cost-benefit analysis.

Defenders are getting trained on how to litigate using current sciences, she said, and officers using best practices are also protecting themselves from accusations of wrongdoing during an unreliable process.

“These practices are designed to improve accuracy, but you’ll never have 100 percent accurate eyewitness identifications,” she said. “Memory is fundamentally fallible.”

Maricopa County Attorney Bill Montgomery said today it would be a rare case that rises or falls on the basis of an eyewitness alone without any other evidence.

Montgomery and Innocence Project officials have disagreed on the subject of sequential versus simultaneous eyewitness identification testing.

Montgomery said he has resisted the reform because scientific evidence has not backed up the claim that the sequential method is preferable. He pointed to a recent case in which a Pennsylvania man’s murder charges were dropped after a mistaken sequential identification.

The Problem of Tunnel Vision in Criminal Justice

Posted on the Innocence Project Blogsite By: Keith Findley, Co-Director of the Wisconsin Innocence Project

The 160-plus post-conviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. One commonality in almost all of the cases, however, is that they feature some form of tunnel vision.

Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. Tunnel vision is the process that leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular outcome, and then to filter all evidence in a case through the lens provided by that outcome. Through that filter, all information that supports the adopted outcome is elevated in significance, viewed as consistent with the other evidence, and deemed relevant and probative, while evidence inconsistent with the chosen theory is easily overlooked or dismissed as irrelevant, incredible, or unreliable.

Tunnel vision both affects, and is affected by, other flawed procedures in the criminal justice system. Mistaken eyewitness identifications, for example—the most frequent single cause of wrongful convictions— can convince investigators early in a case that a particular individual is the perpetrator. Police and prosecutors, convinced of guilt, might recruit or encourage testimony from unreliable jailhouse snitches, who fabricate stories that the defendant confessed to them, in hopes that they will benefit in their own cases from cooperation with authorities. Or forensic scientists, aware of the desired result of their analyses, might be influenced—even unwittingly—to interpret ambiguous data to support the police theory, or worse, fabricate results. All of these additional pieces of evidence then enter a feedback loop, bolstering the witnesses’ confidence in the reliability and accuracy of their incriminating testimony, and in turn reinforcing the original assessment of guilt held by police, and ultimately prosecutors and courts.

Tunnel vision typically begins in the initial stages of criminal cases—during the police investigation. But tunnel vision is in fact more pervasive than that; it infects all phases of criminal proceedings, beginning with the investigation of cases, but then proceeding also through the prosecution, trial or plea-bargaining, appeal, and post-conviction stages.

Tunnel vision is a well-recognized phenomenon in the criminal justice system. Most of the official inquiries into specific wrongful convictions have noted the role that tunnel vision played in those individual cases of injustice. For example, former Illinois Governor George Ryan’s Commission on Capital Punishment, the Innocence Commission for Virginia, and official Canadian governmental inquiries, among others, have all identified tunnel vision as a significant problem in the cases in which an innocent person was wrongly convicted.

In some ways the criminal justice system demands or teaches tunnel vision overtly. For example, police are widely taught that, once they believe a suspect is guilty, they should interrogate the suspect by shutting down all denials of guilt and employing psychological tactics designed to achieve a single goal: a confession. And court rules make it difficult to present evidence of alternative, third-party suspects, or to introduce new evidence of innocence once a conviction has been obtained. Each of these processes can contribute to injustices when they contribute to focusing on an innocent person and unwillingness to consider the guilt of the true perpetrator.

Wrongful Convictions in Plea Bargaining

Wrongful Convictions in Plea Bargaining

  • Anthony Conference
    Author: Kristin Smyth, Law Student, Osgoode Hall

    In 1989, Anthony Hanemaayer plead guilty to a sexual assault Paul Bernardo later confessed to. With AIDWYC’s help, Hanemaayer was exonerated in 2008.

    It is becoming increasingly apparent in Canadian society that the justice system is not perfect and that innocent people can and are convicted of crimes that they did not commit. The wrongful convictions of individuals like Guy Paul Morin and David Milgaard have received considerable attention in the media and legal community. The concept of innocent people who plead guilty during “plea bargaining” is receiving more attention amongst legal commentators and laymen alike. Much of the concern stems from the contested role that a “bargain” should play in a judicial system dedicated to due process. It has been argued that the use of the word bargain implies that the justice system is a commodity that can be bought by those who understand how to work the system.[1] Canadian citizens have a right to the presumption of innocence and a right to a fair trial. “Backroom negotiations” with prosecutors call into question the fairness of the system.

    Why would an innocent person plead guilty?

    The question you have probably been asking is why would anyone in their right mind plead guilty to a crime that they did not commit? While it may be difficult to imagine, there are many reasons. First, going to trial is scary. For an accused, going to trial means uncertainty. Their lives are in the hands of the judge, and sometimes a jury, and no one can know for sure what either will do. On the other hand, if they negotiate with a Prosecutor, it is more likely they will receive a more lenient sentence than were they to go to trial and lose. This perceived security can be enough for an innocent person to plead guilty and admit to the crime, rather than risk a trial where the outcome can be much worse. Professor Ellen S. Podgor argues that “our existing legal system places the risk of going to trial…so high, that innocence and guilt no longer become the real considerations.”[2]

    Another reason someone may plead guilty is to avoid the significant financial, psychological and opportunity costs of going to trial. Not only can the trial process be terrifying to an accused, it’s expensive and stressful. Going to trial means usually means paying a lawyer for countless hours of work for a trial which could last months or even years. Furthermore, the accused cannot typically work while a trial is ongoing, costing them even more money.

    Psychological studies have assessed the decision making process that occurs when an innocent person is accused of something that they did not do. In one such study, college students were left in a room with one other “student” to complete logic problems. One of the students was then, wrongly, accused of cheating and given the option of either accepting a plea bargain or having to appear before the Academic Review Board (where 80-90% of students were found guilty). 56.4% of the innocent participants falsely admitted guilt in order to reduce the punishment given. Admittedly, the situation just described cannot capture the pressure and gravity of the choices that an innocent accused must make when standing before the criminal justice system. Nevertheless, the anxiety experienced while anticipating punishment is similar and the study can offer important preliminary insights.

     Why is the problem largely unrecognized?

    In 1973, the Ontario Law Reform Commission described plea bargaining as “an unhealthy philosophy quite alien to our concept of an open, fair and public administration of justice.”[3]Despite Canada’s historical unease with how plea bargaining interacts with judicial fairness, we have scant answers to our many questions concerning wrongful convictions in plea bargaining. Why don’t we know how many people plead guilty to crimes that they did not commit? The simple is because we rarely hear of the cases again. They don’t appeal. They don’t cause a fuss. Nobody asks questions. Wrongful convictions often only come to light as a result of the significant effort and resources expended by individuals in a search to uncover the truth.[4] It is often only the most serious of cases that benefit from those efforts and resources because the pay-off from success is greatest.[5] It is possible that many of the cases which involve innocent people who plead guilty were lesser offences and the convicted either did not have, or felt that it was not worth, the resources that would have been required to discover the truth. Based on these factors, it is likely that any study which looks at the problem of plea bargaining and false self-condemnation will significantly underestimate the true extent of the issue.[6]

    What is to be done?

    If Canada did not allow plea bargains, the justice system would come to a near standstill. Following the Supreme Court of Canada’s decision in R v Askov,[7] approximately 50,000 cases, in Ontario alone, had to be dismissed due to unreasonable delay. In response, the Martin Committee was assembled to review and make suggestions regarding pre-trial procedures in the criminal courts. The Martin Committee gave plea bargaining their stamp of approval to increase expediency. Today, a much higher proportion of convictions result from guilty pleas than from trials.[8]

    With the awareness that plea bargaining is not leaving the system anytime soon, how do we ensure that wrongful convictions do not occur? According to Judge H. Lee Sarokin, the only solution is “vigilance by all those involved.”[9] It is unclear whether this is the only solution. This is a question that needs to be asked by the legal community and more thorough research and discussion must occur if we ever hope to reach an acceptable answer.


    [1] G. A. Ferguson and D.W. Roberts, “Plea Bargaining Directions for Canadian Reform” (1974), 52 Can Bar Rev 497 at 550.

    [2] Ellen S. Podgor, “White Collar Innocence: Irrelevant in the High Stakes Risk Game” (2010) 85 Chicago-Kent L Rev 77 at 77.

    [3] The Law Reform Commission of Ontario, Report on Administration of Ontario Courts, Part II(Toronto: Department of Justice, 1973) at 119.

    [4] Ibid  at 4

    [5] Samuel Gross et al, “Exonerations in The United States 1989 Through 2003″ (2005) 95 J Crim L & Criminology 523.

    [6] Lucian E Dervan & Vanessa A. Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem” (2013) 103 J Crim L & Criminology 1.

    [7] R v Askov, [1990] 2 SCR 1199.

    [8] Christopher Sherrin, “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev Legal Soc Issues 1 at 2.

    [9] Judge H. Lee Sarokin, “Why do Innocent People Plead Guilty?” The Huffington Post (29 May 2012), online: Huffington Post <http://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239.html>.

    Conviction: The AIDWYC Blog is written by volunteer authors. The opinions expressed herein do not necessarily represent AIDWYC’s position or policies.