Backgrounder

August 28, 2007

More than 900 Crown attorneys prosecute approximately 500,000 charges each year on behalf of the people of Ontario. It is a fundamental responsibility of the Crown to ensure that the public interest is served. This can only be done by keeping the duty of fairness in the forefront of every prosecution and by taking concrete measures to guard against any potential miscarriages of justice. Over the past several years, the ministry has acted, and continues to act, in numerous ways to minimize the risk of potential miscarriages of justice.

Acting on Recommendations from the Commission of Inquiry into the Proceedings Involving Guy Paul Morin

In April 1998, a Commission of Inquiry into the Proceedings Involving Guy Paul Morin, headed by the Honourable Fred Kaufman, a former judge of the Quebec Court of Appeal, released its report. As a result, the Ministry of the Attorney General implemented several measures to reduce the risk of wrongful convictions in Ontario, including the development of detailed Crown policies and training relating to:

• Restricted use of in-custody or "jailhouse" informers – to ensure any proposed evidence is carefully reviewed and sufficiently reliable
• The use of physical scientific evidence – to ensure it is presented with appropriate weight
• Witness interviews – to ensure prosecutors do not inadvertently influence a witness's testimony.

In addition, practice memoranda were issued on:

• The important dual role of Crown counsel as both prosecutors and ministers of justice
• The working relationship between police and the Crown.

Heads of Prosecution Committee on the Prevention of Miscarriages of Justice

Senior federal, provincial and territorial justice officials make up the Canada-wide Heads of Prosecutions Committee.

In fall 2002, the Heads of Prosecutions Working Group on the Prevention of Miscarriages of Justice was formed in response to a number of high profile wrongful conviction cases across the country, including David Milgaard in Saskatchewan, Thomas Sophonow in Manitoba and Guy Paul Morin.

Ontario has played a significant role in this group, which has a mandate to:

• Develop a list of best practices to help both prosecutors and police better understand the causes of wrongful convictions
• Recommend action such as policies, protocols and education to guard against future miscarriages of justice.

Ontario took a lead role in developing the Report of the Working Group and in January 2005, the report was approved at the Federal/Provincial/Territorial Justice Ministers' Meeting.

Given Ontario's leadership role in this area, many of the report's recommendations were already in place in this province. The ministry:

• Continues to refer cases to a committee of experts regarding use of in-custody informers first established in 1998 to review all in-custody informers who are proposed by the Crown as witnesses in criminal proceedings
• Continues to use an in-custody informer registry for people who were proposed to the committee regardless of whether or not they are called as witnesses
• Launched a revised Ontario Crown Policy Manual in March 2006, including practice memoranda and policies regarding the role of the Crown, disclosure, in-custody informers, interviewing witnesses, scientific evidence, Crown relationships with police, conceding appeals and fresh evidence
• Ensures that the Crown Policy Manual is kept up to date.

Ontario's Crown policies are available on the Attorney General's website at www.attorneygeneral.jus.gov.on.ca. Practice memoranda are also available to members of the public upon request.

Ontario Criminal Conviction Review Committee

In May 2006, the Attorney General announced the establishment of the Ontario Criminal Conviction Review Committee to provide expert leadership and act as a resource to Crowns across the province in the prevention of wrongful convictions. The committee is composed of six senior Crown counsel from across Ontario and is advised by the Honourable Patrick LeSage, former Chief Justice of the Ontario Superior Court of Justice.

The Committee:

• Reviews criminal convictions where it is alleged that there has been a miscarriage of justice
• Provides expert advice and guidance to Crowns in dealing with some of the difficult issues relating to potential miscarriages of justice
• Develops educational and policy programs aimed at preventing miscarriages of justice
• Develops protocols and best practices for dealing with these cases and preventing future miscarriages of justice.

Response to Chief Coroner's Review of Pediatric Forensic Pathology

On April 19, 2007, Ontario's Chief Coroner released the results of a review of 45 cases handled by pediatric forensic pathologist Charles Smith and determined there were problematic scientific findings in 20 of the cases, 12 of which involved convictions and one in which the accused was declared not criminally responsible.

Immediate Action

The Ministry of the Attorney General responded immediately by assigning Crowns to all of the cases where there were criminal convictions, and cooperating fully to expedite any actions taken by the defense in individual cases where injustices were claimed.

For example, the ministry quickly:

• Consented to bail in the case of R.v. Mullins-Johnson
• Consented to bail in the case of R.v. Trotta
• Agreed to an extension of time for an appeal application in the case of R.v. Sherrett.

Commission of Inquiry

On April 25, 2007, the Attorney General announced the terms of reference for a full public inquiry into the practice of pediatric forensic pathology and its future use in investigations and criminal proceedings, in light of the Chief Coroner's review.

Justice Stephen Goudge of the Ontario Court of Appeal was appointed to head the inquiry, supported by an expert panel of scientists and medical professionals chaired by Senator Larry Campbell, a former Chief Coroner of British Columbia.

Justice Goudge has been asked to review and assess the systemic policies, procedures, practices, accountability and oversight mechanisms, quality control measures and institutional arrangements related to pediatric forensic pathology. He is to report back to the legislature no later than April 25, 2008.

Information and updates on the inquiry can be found at the inquiry's website at www.goudgeinquiry.ca.

Ongoing Education for Crown Attorneys

Ontario is a national leader in Crown policy development and education. A four-week series of educational sessions is held every summer, a weeklong educational conference is held every spring and specific conferences and training sessions are held throughout the year so that Ontario's prosecutors can share experiences and best practices and learn from other jurisdictions.

The ministry ensures ongoing education for Crowns on a variety of factors and issues related to miscarriages of justice. Examples include:

• A comprehensive, multi-disciplinary training session on eyewitness identification in spring 2005
• An international conference on wrongful convictions held in Winnipeg in October, 2005
• A program at the Osgoode Professional Development Centre in November 2005, on expert evidence, focusing on wrongful convictions and wrongful acquittals
• A DNA evidence symposium held annually
• A presentation by the Ontario Criminal Conviction Review Committee at the spring 2006 educational conference.

Preventing and addressing miscarriages of justice is an ongoing priority of the Ministry of the Attorney General. The ministry is committed to addressing claims of miscarriages of justice in the past, and doing all that it can to prevent them in the future.

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