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LEGAL REPORT: FORENSICS of new evidence justifying a review. But to get legal aid in order to investi- gate the case, they might need to have that fresh evidence in the first place. In Driskell's case, the report points out the minister wouldn't consider his applica- tion until he had received disclosure of the case against him from Winnipeg po- lice. They, in turn, wouldn't release that evidence until Driskell had applied for a review. Doing so in cases dependent on forensic evidence, which was precisely the issue at hand with Smith's cases, can be particularly daunting and expensive, Goudge notes. James Lockyer, a director for the As- sociation in Defence of the Wrongfully Convicted, points to Britain's experience with a CCRC since 1997 as proof of the value of such a body. "You just have to look at the figures," he says, noting that during the last 11 years, Britain's CCRC has referred 395 cases to the Court of Appeal, 260 of which have resulted in quashed convictions. In Canada, mean- while, justice ministers under the s. 696.1 process have referred 14 cases back to the courts during the same time period, a fact Lockyer says is an indication Can- ada's justice system is either more adept at avoiding wrongful convictions in the first place or is simply better at upholding them. He suspects the latter explanation to be the correct one. A key benefit of a CCRC, he says, is that it does much of the investigative work as long as the defendant alleging a wrong- ful conviction can prove a case has some merit. In Canada, meanwhile, the extent to which the Department of Justice staff- ers who handle s. 696.1 applications go out and collect evidence depends on who is on the case, say defence lawyers. "They do act on an investigative basis to a degree, but certainly not the way the CCRC does," says Lockyer, who argues that successfully launching a s. 696.1 application requires an "absolutely massive amount of work if you're going to do a proper job." Lockyer defended one of the victims of Smith's mistaken pathology, Wil- liam Mullins-Johnson. After spend- ing 12 years in jail for the death of his four-year-old niece, the Ontario Court of Appeal overturned Mullins' conviction in 2007. The move came after federal Justice Minister Rob Nicholson heard his review applica- tion. Just writing the 250-page brief to the department took seven weeks of work, says Lockyer. In the case of Steven Truscott, perhaps Canada's most prominent wrongful conviction, the 1,100-page brief "took me 11 solid months to write," he adds. Nevertheless, whether the federal gov- ernment will do anything about Goud- ge's concerns about the current review process or the latest recommendations from the Milgaard inquiry for a new investigative body is unclear. A Justice Department spokeswoman would only say in an e-mail: "We are reviewing the report and its recommendations." Besides his concerns about Smith's www.canadalawbook.ca 52 NO VEMBER / DECEMBER 2008 www. CA007_CL 1-2is.indd 1 mag.com 10/27/08 3:40:08 PM work, Goudge in his report also suggested the government undertake a wider probe into shaken-baby cases in