Canadian Lawyer

w w w . C a n a D I a n L a w y e r m a g . c o m J a n u a r y 2 0 1 5 29 cases The William Mullins-Johnson [canlii.ca/t/6j7m] e Ontario Court of Appeal, in a 2-1 decision, dismissed the fi rst- degree murder conviction of Mullins-Johnson, convicted of sexually assaulting and killing his four-year-old niece. e majority concluded the verdict was not unreasonable and set out the role of a trial judge in putting forward the theory of the defence to a jury. " ere are no magic words that have to be used by a trial judge. e question in the end is whether the theory of the defence was properly exposed to the jury," when looking at the charge as a whole, said the majority, in the 1996 ruling. In dissent, the late justice Stephen Borins said a trial judge must go further than simply presenting the theory of the defence. A jury must also receive "proper guidance in relating the evidence to the issue or issues, which constitute the defence posi- tion," he wrote. e Supreme Court of Canada dismissed Mullins- Johnson's appeal in a one-sentence oral ruling. Mullins-Johnson spent 12 years in prison. He was acquitted by the Court of Appeal in 2007 a er subsequent tests showed his niece was not assaulted or murdered and the conviction was based on faulty forensic evidence. Kyle Unger [canlii.ca/t/1pfk2] In 1993, e Manitoba Court of Appeal dismissed Unger's appeal of a murder conviction in the death three years before of a 16-year- old woman found dead in the woods near a ski resort a er a music festival. Police evidence obtained by a so-called Mr. Big sting was not excluded because "courts should be setting public policy on the parameters of undercover operations," the appeal court said. It did order a new trial though for the co-accused Timothy Houlahan, because of what it called "infl ammatory" comments by Unger's trial lawyer. e appellate court set limits on what a defence lawyer can say to a jury about a co-accused who chooses not to testify. Houlahan committed suicide a er his release on bail pending a retrial. Unger spent 14 years in prison before his release. New tests showed a hair found on the victim did not belong to him and there were questions about the "confession" he gave to undercover police offi cers. Unger was acquitted in 2009. Robert Baltovich [canlii.ca/t/g1cd8] e Ontario Court of Appeal denied bail to Baltovich in the fall of 1992 a er his second-degree murder convic- tion in the death of his girlfriend Elizabeth Bain. e court set out the test for bail pending appeal, following a convic- tion for a serious off ence. An applicant must show that the appeal is not frivolous, that he will surrender into custody in compliance with any court order and that bail is in the public interest. e same test was cited by Justice Marc Rosenberg when Baltovich was granted bail in 2000, a er eight years in custody and with his appeal yet to be heard. Stronger appeal grounds and a material change in circumstance were listed as some of the reasons to grant bail. A new trial was ordered in 2004 by the Court of Ap- peal and he was acquitted in 2008 a er the Crown called no evi- dence at the retrial. In 2010, Baltovich fi led a $13-million lawsuit against police and the province, litigation that is still ongoing. 1971, developed a framework under the Canada Evidence Act for cross-examining one's own witness if testimony is contrary to a prior statement, or for declaring the witness to be hostile. e prosecution was allowed to present a prior state- ment to police by a key Crown witness before the jury without a voir dire to determine the circumstances of how this prior version of events came about. " e Court of Ap- peal was wrong" when it concluded that Milgaard suff ered no prejudice from this decision, wrote MacCallum, in his 2008 report. As well, the original decision by the trial judge "probably contributed to the wrongful conviction of David Milgaard," the commissioner concluded. e procedure developed by the Court of Appeal, while not followed in the Milgaard case, is still the accepted process in place when there are issues related to inconsistencies in the testimony of one's own witness. So too, is the SCC's 1978 deci- sion involving another contentious issue — the admissibility of polygraph tests. e court concluded that polygraph tests are not reliable and are presumed to be inadmissible. is conclusion was reaffi rmed by the top court nine years later in R v. Béland, which referred to the 1978 ruling as the lead- ing case on this issue. e irony, is that the decision in 1978 was in the unsuccessful appeal of Romeo Phillion, convicted six years earlier in the death of an Ottawa fi refi ghter. Phillion confessed, then recanted almost immediately. e polygraph tests were conducted by John Edward Reid, a former Chicago police offi cer and a leading fi gure in the use of lie detector results. Reid, who was retained by the defence, concluded Phillion lied when he confessed to police. Justice Roland Ritchie, on behalf of the nine-member SCC panel, re- jected the admissibility of Reid's test results and the use of lie detectors. "In my view, Mr. Reid had neither the qualifi cations nor the opportunity to form a mature opinion of the propen- sity of the man he was subjecting to the test either as to truth- fulness or otherwise," said Ritchie. He went on to suggest if lie detector tests were admissible, then defendants would choose to give statements this way, instead of in court. is is one of the few instances where Reid was retained by the defence, but his infl uence on criminal courts in Canada and the United States, extended well beyond the Phillion case. e so-called Reid technique of interviewing, which he de- veloped, is still widely used by police detectives in Canada for interrogations. It has also come under increasing criticism in recent years, by the courts and in academic research, for alleg- edly having a propensity to elicit false confessions. For his part, Phillion spent 31 years in prison, always maintaining his innocence. His conviction was quashed by the Ontario Court of Appeal in 2009 a er a reference by the federal justice minister. e Crown decided not to pro- ceed with a new trial and Phillion fi led a $14-million lawsuit against police and the province. As a result of that litigation, Phillion may be again before the Supreme Court, more than 35 years a er it ruled on the admissibility of lie detector tests. Ottawa police are arguing Phillion is seeking to relitigate is- sues that have already been decided. ey are seeking leave of a Court of Appeal decision from July 2014 that overturned a lower court ruling and permitted the lawsuit to go ahead. cases cases

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