Canadian Lawyer

26 J a n u a r y 2 0 1 5 w w w . C a n a D I a n L a w y e r m a g . c o m Unger, and others — either proven or widely believed to be wrongful convictions — are among a number of other in- stances where what turned out to be bad results generated legal principles or frameworks that are still followed in courtrooms across the country. Reviews of these and other cases have usually focused on the actions of police and prosecutors, the forensic evidence, or increasing awareness of the dangers of evidence such as eye- witness identifi cation. But a look back at the conclusions of a court, normally at the appellate level, has rarely been part of any review. Peter Sankoff , a criminal law professor at the Uni- versity of Alberta, says it is not surprising that a re-examina- tion of the cause of a wrongful conviction does not include the legal principles that may come out of the litigation. " ere are o en so many other factors that resulted in the conviction," says Sankoff . e Kaufman report cited "staggering" tunnel vision by the prosecution, faulty forensic evidence, and the use of question- able jailhouse informants as just some of the causes that led to the conviction of an innocent man. While it was not part of the review, the Supreme Court ruling in 1988 likely made it not only easier to obtain a conviction against Morin at his retrial, but any criminal defendant in the future. e majority decision found the trial judge had improperly required the jury to apply the standard of proof beyond a rea- sonable doubt to individual pieces of evidence. is had re- sulted in a two-stage process of considering guilt or innocence, a er fact-fi nding. " e eff ect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown's case in bits and pieces," wrote Sopinka. " e law lays down only one basic requirement: during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt," he added. Jurors can arrive at the same verdict through diff erent routes and do not have to rely on the same facts, the Supreme Court stated. Clayton Ruby, who represented Morin at his original trial and the appeal at the Supreme Court in 1988, says the fi ndings on the task for juries are sound, even if he argued for another outcome. "It is the right principle. I said that it was very likely that the jury understood that they had to look at the case as a whole. e court did not agree," says Ruby. A concurring judgment in Morin would have refi ned the task There are a number of legal principles or frameworks that are still good law today and routinely applied by courts, even though they originated from criminal proceedings that were later discovered to be wrongful convictions or at a minimum, widely believed now to be wrongful convictions. cases The "They deny themselves the authority to determine if it is the right verdict. There is too much deference to the trial judge and the jury." James Lockyer Wilbert Coffin [tinyurl.com/wcoffin] Before seeking to cross-examine one's own witness on any incon- sistent statement, there is a process to follow to try to refresh the memory of the witness. In its decision in R v. Coffi n , the Supreme Court of Canada said it is permissible to present previous state- ments to a witness to refresh his or her memory — although not to try to discredit the witness. In a 5-2 decision issued in January 1956, the Supreme Court upheld Coffi n's murder conviction in the death of a U.S. tourist in the Gaspé region of Quebec. Coffi n was hanged soon a er the high court's ruling, yet doubts about his guilt have remained for more than 50 years. Guy Paul Morin [tinyurl.com/gpmorin] Acquitted at his original trial, the Crown successfully appealed and a new trial was ordered. e Supreme Court of Canada concluded in 1988 that the fi rst trial judge misdirected the jury on how to reach a verdict. e top court said a jury must consider "the evidence as a whole" and determine whether the Crown has proven its case beyond a reasonable doubt. Individual pieces of evidence do not have to meet this standard and jurors can arrive at the same verdict through diff erent routes, when assessing the facts. Morin was then convicted of the murder of nine-year-old Christine Jessop at his retrial in 1992. More advanced DNA testing produced evi- dence that showed Morin could not be the killer and an acquittal was entered in 1995. cases cases David Milgaard [canlii.ca/t/g7c3z] In dismissing the murder appeal of Milgaard in the death of Gail Miller, the Saskatchewan Court of Appeal set out a framework in 1971 for cross-examining one's own witness over a prior incon- sistent statement, under s. 9(2) of the Canada Evidence Act. It also set out the path for a trial judge to take in deciding if a witness can be declared hostile under s. 9(1) of the act. e appellate court found the judge at Milgaard's trial was correct in fi nding a key Crown witness, who had given multiple statements to police, to be hostile. Proving the inconsistent statement should be done outside the presence of the jury. is was not the case at Milgaard's trial, but the Court of Appeal concluded it was not suffi cient to order a new trial. Milgaard spent 23 years in prison before he was released. DNA evidence later pointed to Larry Fisher, who was convicted of Miller's murder in 1999.

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