Tag Archives: bias

Part 2 – Manufacturing Guilt: Wrongful Convictions

November 6, 2022 Efrayim Moldofsky 4 Comments

I believe [the accused] did something very, very wrong in that room. But I also believe that nobody has asked me to play God. I’ve been asked to apply the law. Justice belongs to God; men only have the law. Justice is perfect, but the law can only be careful. […]

If we as a jury wanted to understand why the burden of proof fell on the prosecution, and fell with such gravity, we needed only to reflect on what we had discovered directly about the real power of the state and its agents: there was, in a deep way, no recourse. Yes, there were appeal courts, constitutional protections, citizen juries like us. But in the end – in the end, there was, simply, the final power of the state. There was always this. This was a power even more terrifying, in a way, than a man with a knife in a closed room. That sort of raw, physical power, for all its horrors, can never extend indefinitely in all directions. If you were to run outside, people would object, would (in principle) come to your aid. In the room, you know this, even if you cannot actually escape. But there is nowhere to run from the state: more or less everyone outside the room (the courtroom, the prison) has already accepted the legitimacy of what the state chooses to do to you. In fact, all those people out there, they actually constitute the state itself. If you run out to them, they will help catch you. There is nowhere to go.

A Trial by Jury: Burnett, D. Graham: 9780375727511: Books – Amazon.ca, at pp. 139 and 163.

(Part 1)

Duped

In this excellent book (Duped: Why Innocent People Confess – and Why We Believe Their Confessions: Kassin Ph.D, Saul: 9781633888081: Books – Amazon.ca), social psychologist Saul Kassin deals extensively with the psychology of false confessions. He discusses many cases of false confessions, such as the Central Park Five, in which all five innocent youth confessed falsely.

Discusses the Kitty Genovese story (1964 Queens, NY) in extensive detail (chapter 2). The case is known popularly for the “bystander effect,” given that many people ignored a vicious rape/murder they could hear – although much of that has been questioned (see also). Winston Moseley was arrested, confessed (knowing extensive detail that no one else knew), and was eventually convicted (surprisingly not executed) and died of old age in jail decades later. He also confessed to a Kralik and Johnson murder. He was never prosecuted for the Johnson murder, while someone else was wrongfully convicted for the Kralik murder. Police refused to take Moseley’s confession seriously – particularly since they already had a confession from young Alvin Mitchell (after a 50-hour interrogation) for the Kralik murder (leading to the eventual wrongful conviction of Mitchell). One of the reasons for the Mitchell wrongful conviction was the trial judge (at the second trial – the first resulted in a hung jury) refusing to allow the victim’s dying statement (that she did not recognize her assailant, which would have excluded Mitchell but not Moseley) on technical hearsay grounds – gotta love evidence law!

One shocking quote about the refusal of the prosecutor to acknowledge its error (p. 140); a theme prominent in the following book, as well:

In a 2001 rape case in West Virginia, DNA testing not only excluded confessor Joseph Buffey but also matched a convicted sex offender. Yet rather than agree to vacate Buffey’s conviction, the prosecutor’s office proposed the new theory that Buffey and the sex offender were accomplices. This theory flatly contradicted the confession extracted from Buffey, which made no mention of an accomplice, and it contradicted the victim’s own lucid account of a harrowing and protracted ordeal involving a single perpetrator. (p. 140)

Another example cited is Juan Rivera, who was found guilty at a retrial – despite DNA evidence excluding him (p. 266).

Another terrible example is Billy Wayne Cope.

Another great quote (p. ix):

I’ve seen judges unwilling to serve as the gatekeepers they get paid to be by failing to exclude from evidence confessions that were quite clearly coerced, not voluntary.

I’ve seen prosecutors bend logic until it breaks, refusing to concede innocence despite DNA results that excluded the confessor, without doubt, and identified the actual perpetrator.

I’ve read contemporaneous newspaper accounts during trial that accepted the government’s public relations spin on the case hook, line and sinker.

Convicting the Innocent

In this book (Convicting the Innocent: Where Criminal Prosecutions Go Wrong: Garrett, Brandon L.: 9780674066113: Books – Amazon.ca), the author, Duke law professor Brandon L. Garrett, digs deep into many U.S. wrongful convictions (250 known DNA exonerations, obtaining trial transcripts of some 88% of them) and finds some appalling results. The most common exoneration was for rape (68% – for which the conviction rate apparently isn’t high enough), and another 21% convicted of both murder and rape (p. 5). A full 16% confessed to crimes they did not commit, with all but two of those confessing to details they could not have known without police “coaching” (p. 6). Eyewitness misidentification comprised 76% of the cases. “Invalid forensics” were found in 93 (of 153) analysts called by the prosecution. Informants were present in 21% of the cases. 17 were sentenced to death. More than 90% of the exonerees for whom transcripts were obtained asserted their innocence at trial. The majority of convictions went through multiple rounds of appeals untouched (p. 11). It took an average of 15 years for each exoneration. Judges and prosecutors sometimes opposed DNA testing. Most appallingly, judges (and prosecutors) sometimes initially refused to exonerate these people even after DNA proved their innocence (p. 11).

In one memorable case (David Gray), the prosecutor couldn’t remember when testifying whether he may have said something like “it won’t hurt you” when inducing a jailhouse informant to perjure himself (p. 122).

I got a kick out of a judge’s comments, during the sentencing of Michael Evans and Paul Terry, that the defendants walked with a swagger that suggested no remorse. Their lawyer bravely retorted that it is also clearly indicative of innocence (p. 162).

In the Rolando Cruz case, a few jurors later told the press that “half of the jurors had their minds made up before the trial even started” (p. 173).

At Arvin McGee’s third trial, a potential rogue juror (i.e. not prepared to convict) was extensively pressured by the other jurors to join the consensus for a guilty verdict. The defence’s mistrial application on this basis was subsequently denied. It took another 14 years for his DNA exoneration (p. 173).

In the case of Kennedy Brewer, the state refused to conduct DNA testing, lying that the sample was insufficient for testing. Many years later, post-conviction (for a brutal murder-rape of his own toddler daughter), Brewer managed to get the state to test the samples. He was excluded, so his conviction was vacated. However, the state kept him in limbo for the next 8 years, deciding whether or not to re-try him (p. 180).

Curtis McCarty had his conviction reversed twice (14 years apart) on appeal grounds, based on issues with the forensic evidence (the second time on fresh evidence about the misconduct of the expert, somehow discovered by his lawyers). He served 21 years in prison (p. 181).

In 10% of the cases that had written appeal decisions, judges had called the state’s case against the innocent and wrongfully accused “overwhelming” (p. 202).

In the late 1980s, Earl Washington Jr. had come “within nine days of his execution” (p. 219). Then, after 9 years on death row (in 1993), DNA testing practically excluded him – but not conclusively. As a result, his death sentence was commuted, but he remained in jail to serve a life sentence. He was only exonerated and released in 2001, after – get this – his lawyers discovered that the state had withheld a 1993 DNA test excluding him. A later independent audit sharply criticized the Virginia crime laboratory for producing false results and succumbing to political pressure to not exonerate Washington (p. 221).

In at least 49% of the cases, the exonerees had to obtain a judge’s order to get the DNA testing – suggesting the state improperly opposed the application (p. 227). For at least 18 exonerees, judges initially denied their applications for DNA testing (p. 228). For example, in the Bruce Godschalk case, the judge refused to order testing, seemingly convinced (wishful thinking, I’d suggest) by the strength of the confession that there would be nothing to see. Same with Byron Halsey. In other cases, it was denied on technical, procedural grounds. I’m guessing the legislation in the U.S. is far more favourable than in Canada, by the way, which is even more reluctant to entertain the possibility of innocence.

Shockingly, judges “refused to set free at least twelve exonerees despite at least preliminary DNA test results excluding them” (p 230).

A particularly cruel example is Roy Criner, where Texas Appeals Court Judge Sharon Keller fabricated creative excuses to justify not letting him go, even though DNA evidence excluded him (p. 230).

Radley Balko

See also Radley Balko very recently here:

You might think that if DNA testing could establish the innocence of a death row prisoner, a state would want to allow it, both so it didn’t execute an innocent man, but also so it could pursue real justice for the killer’s victims. You’d be wrong, at least in Texas. And the Supreme Court will decide this term whether Texas can get away with it.
Meanwhile, the Texas Court of Criminal Appeals has refused to overturn a conviction and death sentence, despite the fact that both the trial judge and the DA for the district where the prisoner was tried both say he was wrongly convicted.

Or Radley Balko on Charlie Vaughn (The maddening irrelevance of Charlie Vaughn’s innocence (substack.com)), emphasis added:

Arkansas provides no real way for prisoners like Vaughn to get back into state court, even when they have persuasive evidence of their innocence. This ought to be where the federal courts would intervene. But because of the Antiterrorism and Effective Death Penalty Act (AEDPA), a law signed five years after Vaughn’s 1991 conviction, the federal courts won’t even consider the evidence of his innocence. AEDPA gives prisoners like Vaughn one shot at federal review. The two other defendants never took their shot. Vaughn took his with that handwritten letter in 1995. So now he’s out of luck.

Believe it or not, this wrongful conviction inmate (self-represented, hand-written) appeal was dismissed in 1996 after a “careful and thorough review of the record” (chilling, probably false, and reminds me of similar language in R v NBM, 2021 ABCA 14: “Overall, when viewed with the benefit of the entire record, NM’s arguments in support of the first ground of appeal represent nothing more than a thinly veiled effort to convince the panel to reconsider the evidence and make different credibility assessments contrary to the standard of review and the role of this Court,” at para. 16; the word “record” is cited some 10 times there). He simply gets “one shot” and since he lost in 1995, he’s out of luck. Evidence of innocence be damned.

Manufacturing Convictions

In this 1998 book (Manufacturing guilt: Wrongful convictions in Canada: Anderson, Barrie: 9781895686937: Books – Amazon.ca), sociologists Barrie Anderson and Dawn Anderson go through several known Canadian wrongful convictions. They raise the very interesting point of a judge’s innate conflict of interest (p. 15):

Judges therefore have a tremendous responsibility to maintain justice. However, they also have the very important task of maintaining public confidence in the judicial system and emphasizing its legitimacy. To this end, lawyer Alastair Logan (1995) asserts, the judiciary will act to preserve the reputations of police officers, prosecutors, expert witnesses or others acting on behalf of the Crown when their reputation or the system is called into question. The possibility therefore exists that a judge may unintentionally or maliciously conduct a trial or instruct the jury in a way that is prejudicial to the accused, if he or she perceives that to do otherwise would somehow jeopardize the integrity of the judicial system.

Further, commenting on prosecutorial misconduct (p. 16):

Unfortunately, the desire to win has caused many lawyers to engage in questionable, even unscrupulous, tactics, which are frequently condoned by the legal profession as a whole. Lawyers learn quickly what works well in the courtroom and what does not. What works are techniques that may distort the truth, confuse the jury and make apparent liars out of honest witnesses. The legal system is highly structured and those within it share a culture that emphasizes winning cases rather than doing justice. For too many lawyers the courtroom has become a place of winning cases rather than a forum for discovering truth and serving justice. When the need to win takes precedent over truth, the seeds of wrongful conviction have been sown in the fertile soil of legal indifference, personal greed and public apathy.

The first case dealt with in depth is Donald Marshall Jr., which I dealt with in Part 1 (the last is Steven Truscott, which I discuss extensively here). The next is David Milgaard. In that 1970 Saskatchewan case, the police pressured witnesses to perjure themselves and fabricate testimony about observing Milgaard commit a crime – similar to Marshall (and Truscott). Despite a key witness later recanting his testimony and the presence of a viable suspect (Larry Fisher, convicted in 2000), the federal government refused to admit its mistake for years.

In 1992, the Supreme Court of Canada insisted Milgaard had “a fair trial” yet granted him a new trial due to the new evidence. Eventually, Larry Fisher was charged (in 1997). The state eventually conceded its mistake and paid $10 million compensation in 1999. Milgaard was a mere 16 years old at the time of arrest/conviction (slightly older than Truscott was) He died earlier this year.

The 1992 SCC decision is troubling (paras. 3-4, emphasis added):

It is appropriate to begin by stating that in our view David Milgaard had the benefit of a fair trial in January 1970. We have not been presented with any probative evidence that the police acted improperly in the investigation of the robbery, sexual assault and murder of Gail Miller or in their interviews with any of the witnesses. Nor has evidence been presented that there was inadequate disclosure in accordance with the practice prevailing at the time. Milgaard was represented by able and experienced counsel. No error in law or procedure has been established. At the conclusion of the trial, there was ample evidence upon which the jury, which had been properly instructed, could return a verdict of guilty.

However, fresh evidence has been presented to us. Ronald Wilson, a key witness at the trial, has recanted part of his testimony. Additional evidence has been presented with respect to Milgaard’s alleged motel room confession [to friends]. More importantly, there was evidence led as to sexual assaults committed by Larry Fisher which came to light in October 1970, when Fisher made a confession.

Myopically, the SCC tried to make Ronald Wilson the “fall guy” for this wrongful conviction. They went so far as to charge him with contempt of court for his previous perjured testimony (note that contempt and perjury are almost never used against perjuring Crown witnesses, strangely enough). They later vacated the contempt citation without explanation. Would it have been that difficult for the SCC to concede that the state engaged in egregious misconduct from start to finish?

Milgaard Inquiry (2008) – available here. Incidentally, Milgaard always viewed the Inquiry’s findings as a whitewash – likely correctly.

Like Truscott, Milgaard did not testify. It is unclear whether his lawyers were also blamed for the wrongful conviction on this ground. Hopefully not.

Note that Milgaard’s 1971 appeal was dismissed (R. v. Milgaard, 1971 CanLII 792 (SK CA), with leave to appeal later predictably dismissed by the SCC. No apology forthcoming, I presume.

In 1980, Larry Fisher’s wife told police she thought her husband is guilty of this crime. Ten years later, Milgaard’s appeal counsel (the legendary Hersh Wolch) found out about this through an anonymous tip (timeline). Note the Inquiry begrudgingly admits “that the decision by Saskatoon Police not to follow up on the Linda Fisher report was not reasonable” (p. 13).

Wilbert Coffin is the next case described. It is an interesting case from rural Quebec in 1953. Three American hunters were murdered, and the government – under pressure to pin the murders on someone – settled on Coffin. Despite an incredibly weak Crown case, he was convicted in 1954, and hanged in 1956 (following his predictably unsuccessful appeals). A good illustration of how the prosecutor can manufacture a conviction (and subsequent execution) out of whole cloth. It later appeared that police suppressed proof of his innocence – a letter from one of the hunters dated after Coffin had left – p. 69. It also appears his defence lawyer (Raymond Maher) dropped the ball; promising the jury that he would call 100 witnesses to prove his client’s innocence, he called none.

Guy Morin is another disturbing example of a 1984 wrongful conviction. He was fingered by police because he appeared weird to them. The nature of the crime (a rape-murder) is the same as both Truscott and Milgaard, as well as Sophonow’s. The victim was Morin’s 9-year-old neighbour. The police claimed that an unrecorded part of their interview with Morin made him a key suspect, in their minds (p. 75). As with Truscott and Marshall, police refused to take other viable suspects seriously (note: Calvin Hoover, eventually matched as the perpetrator through DNA, is not even one of the 4 other viable suspects mentioned).

Notably, there was no time for Morin to have done the deed if the victim’s mom got home when she originally said she did. Magically, her timeline then changed by 20-30 minutes – reminding me of similarities with Truscott. Still, the timeline required that he did “all this driving, raping, killing, cleaning and shopping” in 75 minutes – a strong argument of the defence at trial (p. 82).

Eventually, the police extracted what they considered a “confession” from Morin – over a few days, he told an undercover officer that “no one would ever know the real relationship he had” with the victim (p. 81). AHA!

Also, two jailhouse informants claimed that Morin confessed to them. Of course, they were given an incentive by police to testify.

Clay Ruby, the lawyer at the first trial, insisted on a backup position that Morin was insane. The jury ultimately acquitted. Very unfortunately, the crown appealed successfully (R. v. Morin, 1988 CanLII 8 (SCC) – a slim 4-2 majority upholding the majority of the ONCA; note that in the US the State is never allowed to appeal an acquittal). A subsequent appeal based on delay was denied at ONCA, as well.

On the retrial, the judge (James Donnelly – the name rings a bell; his father, Frank Donnelly was likely Truscott’s defence lawyer) was openly and extremely hostile to defence counsel (a team led by the excellent and legendary Jack Pinkofsky). In the interim, the victim’s body was exhumed, and revealed much misconduct on the part of the forensic team (most of the results were exculpatory). There were substantial unsuccessful attempts to have the charges dismissed on the basis of police/Crown misconduct (withheld disclosure). Nevertheless, he was convicted the second time around. Courtroom observers “detected the warmth [Judge] Donnelly displayed towards the prosecution team and the repressed hostility he directed at Pinkofsky” (p. 88 – note his inauthentic obituary stating he never allowed bullying, etc.). Donnelly “encouraged the jury to endorse the most ludicrous testimony of some Crown witnesses while rejecting important defence evidence” (p. 88). In a glaring misstep identical to one taken by the trial judge in Truscott, the judge provided speculation to fill in a major gap in the Crown’s evidentiary case.

In 1993, Morin was surprisingly granted bail pending appeal – only the second person in Canada to do so after a conviction of first-degree murder (p. 89). Thankfully, less than 2 years later – right before the appeal was to be heard – DNA evidence excluded him.

In this context (following the then-recent Milgaard, Morin and Marshall exonerations), the SCC came out with R. v. Stinchcombe, 1995 CanLII 130 (SCC) – theoretically improving the State’s disclosure obligations to accused. Whether or not it affected anything in practice is a different story.

Later Kaufman Commission (1996) – available here.

Thomas Sophonow was wrongly convicted of murder/SA in 1981 Winnipeg. A teenage female employee was murdered, and Sophonow’s description was similar to the man police were lookin for. The witness they relied on was John Doerkeson, who appeared to know a lot about the incident (surprisingly never appeared to be a suspect). Did I mention Doerkeson positively “identified” Sophonow eventually? Sophonow had a strong alibi, and police largely refused to “investigate” this alibi defence. The Crown refused to accept it, in any event. At the first trial, there was a mistrial (hung jury). At the second trial, the Crown witnesses’ evidence surprisingly improved significantly. The Crown also produced multiple lying jailhouse snitches. The judge significantly hampered the defence with caustic comments about its (truthful) theory and witnesses (p. 101). The wrongful conviction was thus manufactured by the Crown and with a significant “assist” to the sworn-to-be-impartial judge.

Defence counsel (the famed Greg Brodsky) won a retrial on appeal with little trouble, thankfully. On the third trial, the Crown Stuart Whitley engaged in the ridiculous tactic of trying on “the glove” himself and claiming that it should fit Sophonow if it fit him, as they were of similar size and build (it had previously not fit Sophonow). The judge (Benjamin Hewak) shockingly agreed with the Crown over defence objection. A further defence witness was sufficiently intimidated by police prior to trial to refuse to testify. After several days of deliberation, the Crown successfully applied to excuse a single juror – clearly the only one harbouring doubt about guilt. A conviction was entered minutes later.

The Court of Appeal properly overturned the conviction, emphatic that Sophonow should not be tried for a fourth time. The Crown unethically appealed the decision to the SCC – thankfully without success.

Sophonow sat in jail for 4 years for a crime he did not commit. The Manitoba government refused to provide any compensation – insisting that he needed to prove his innocence.

Fifteen years later (in 2000), Sophonow was cleared of the accusations and awarded $2.6 million, with an Inquiry struck. He still has no idea what information the state had, as they somehow continue to refuse to share it with him.

Law Blog

Manufacturing Guilt: Wrongful Convictions

October 23, 2022 Efrayim Moldofsky 2 Comments

We’ve all had clients convicted of crimes when we were sure of their innocence. I have two as I stand here. I can remember them, and they haunt me. You wonder, was it my fault? And you’re bound to blame yourself. In the two cases that haunt me, I have no doubt it was my fault.

But the problem is I’m not the one who has to serve the time because I messed up; it’s some poor individual and likely poor in every sense of the word who is going to have to do my time. And we know it can happen to anyone, from a judge of the Quebec Court of Appeal wrongly convicted of first degree murder in 2012 to a 14 year-old boy in Clinton, Ontario, wrongly convicted in 1959.

– James Lockyer, Sopinka Lecture, CLA conference, November 19, 2021, For the Defence, Aug. 2022, p. 9.

I’ve been reading a lot about wrongful convictions the last few years. There are no shortage of Canadian ones, but I have also been reading about other ones. Adnan Syed is a recent, notorious US wrongful conviction recently all over the news. Jacob Hoggard’s recent conviction and sentence has been all over Canadian news – it remains to be seen, but I have a strong suspicion that it is a legal (and/or factual) wrongful conviction – I wouldn’t mind the trial transcripts, if anyone has access to them. Further, I think the US criminal trial rules are more robust than Canada’s (for example, the state cannot appeal acquittals there), which makes the almost–daily stories of US wrongful convictions that much more concerning. In this post, I will discuss some of the ones I have been reading about (specifically, Donald Marshall Jr., Arthur Lucas and Ronald Turpin), and some common themes I’ve noticed. Please also see my detailed post about Steven Truscott, a grisly 1959 wrongful conviction of a 14 year-old boy (referenced above by the legendary James Lockyer – the other reference is to Justice Delisle.

Donald Marshall Jr.

Donald Marshall Jr. was a young, Indigenous male wrongly accused and convicted of murder in 1971 in Nova Scotia. He was released in the early 80s and it hit the public consciousness in 1986 with the release of the book Justice denied: The law versus Donald Marshall: Harris, Michael: 9780771596902: Books – Amazon.ca. Following the public outcry, a Royal Commission was struck (predictably), which ultimately criticized very harshly just about everyone involved in the case – up to and including the Court of Appeal justices who ultimately allowed the appeal.

I read Justice Denied, as well as a shorter book by Bill Swan, Real Justice: Convicted for Being Mi’kmaq: The story of Donald Marshall Jr.: Swan, Bill: 9781459404397: Books – Amazon.ca (one in a series of books about wrongful convictions – there’s also one on Truscott, Milgaard, Morin, Rubin Carter (U.S.), etc.).

Marshall and a young friend, Sammy Seale, were in a park late at night. Whether they were talking to or attempting to shake down an older man and his friend is not entirely clear. Either way, the older man stabbed Seale, killing him. Marshall ran away, but not before getting a minor gash on his arm from the knife (the man attempted to kill him, too). Marshall gave his story to police, and several friends backed up his story (they didn’t see the actual stabbing, but were there before and after). The police refused to accept Marshall’s story and insisted on pinning the murder on Marshall. They bullied his friends into testifying against him – openly suborning perjury by pressuring his friends into claiming they saw Marshall stab Seale and whatever other details the police insisted on feeding them.

At trial, Marshall was wrongly convicted. Among other things, the trial judge refused to allow the defence to question a key prosecution witness about his recantation of his evidence (right there at the courthouse). A week or so after the wrongful conviction, the young man who accompanied Roy Ebsary (the actual murderer) confessed to police about what exactly happened. The police refused to take it seriously, nor to disclose it to defence.

At trial, the prosecution insisted on showing the gory evidence – in all its detail – to the jury. Not at all for the purpose of inflaming emotions, of course. Another theme prominent in Lucas, below.

The Crown’s expert testified that Marshall’s injury was likely not self-inflicted. At trial, he claimed it was possibly self-inflicted. See what he did there? The Crown further attempted to get the jury to believe that there was no bleeding from Marshall’s injury that required 10 stitches (Justice Denied, p. 133). To that end, he openly misrepresented the evidence of one witness (Maynard Chant) to the jury – Chant had confirmed the arm was bleeding. The Crown wanted the jury to believe he had not bled, so that the blood on his jacket would have to have come from someone else (i.e. Seale). There wasn’t much forensic testing of blood back then – even now, forensic testing tends to not be done (or not disclosed, anyway) in cases where it doesn’t favour the Crown.

Crown tried to use “I hate cops” tattoo on his arm against him (195). Irrelevant bad character evidence clearly as popular then as it is today in manufacturing wrongful convictions.

Defence tried to cross-examine officer about crucial conversation between this officer and another witness (Chant). Crown objected on the basis of “hearsay” – given that the accused was not present for the conversation (144) – a pretty popular tactic (then and now) to try and minimize unfavourable evidence. The judge refused to allow the question, noting that the defence could ask when they questioned Chant. The author points out that it would be just as impermissible to ask the question of Chant as it was (supposedly) to ask it of the officer (146). Thankfully, when the Crown tried that objection later, he was unsuccessful (164). Chant admitted that he did not tell police anything at the time about the identity of the attacker – on 3 distinct occasions. Of course, his earlier statements to police were never provided, as police took even more “liberties” with disclosure back then than they do now.

Some very well-coached Crown witnesses were not providing the hoped-for testimony (regarding time of incident, other people around (151). At the prelim, Chant claimed he saw Marshall pull a knife out of his pocket and stab the victim. At trial, he said he saw him pull something out of his pocket, and he wasn’t sure what it was (155). The Crown “saved” that mistake by later reading out the transcript in the presence of the witness – clearly reminding him of his previous “forgotten” testimony. Suborning perjury again, methinks (159).

The witness didn’t recognize the attacker at the time and didn’t remember what the attacker had “hauled” out of his pocket. After much “gentle” prodding by both the Crown and the judge – mostly without the jury present – he adopted his previous perjury – for the most part (162). The judge also asked more questions at the end of his testimony – further reinforcing the evidence.

Meanwhile, the other main Crown witness, John Pratico, an extremely troubled young man, tried to recant his entire testimony before testifying – in the presence of one of the defence lawyers, the Crown, and Marshall’s father. He said his previous statement that he saw Marshall stab the victim wasn’t true. The Crown reminded him of the penalty for perjury – a common tactic designed to encourage perjury, ironically – if the false story is changed, the accused is threatened with “perjury.” It worked. His trial testimony was more-or-less what the Crown hoped for – pure perjury. He was actually very drunk at the time of the murder – as he admitted at trial (171) – Crown tried to use his admission to drinking to show his “honesty” – 213 – a common pathetic trick these days, as well. He admitted to telling another kid, Tom Christmas, that Marshall hadn’t stabbed Seale. He claimed to see the stabbing – despite being drunk – and that Marshall stabbed with his right hand – he was actually left-handed (note that the cut to his arm was to his left arm).

When defence tried to ask him about his recantation the day before, it was mostly shut down by the judge, “limiting” the defence to “relevant” matters – essentially deciding it was not relevant (how convenient! – 177). No one told the defence about Pratico’s being a patient in a psychiatric institution. The Crown and judge both seemed “convinced” that someone had “tampered” with Pratico, given that he had tried to recant some of his perjury (181). The Crown then brought up Tom Christmas (another Marshall friend) “threatening” Pratico, mentioned the associated charges, then conveniently neglected (he’d “momentarily forgotten” this detail – 183) to mention that he himself had previously withdrawn the charges – as they were obvious lies. Obstruction of justice by falsely accusing Christmas of same, no doubt.

This time, unlike in Truscott’s wrongful conviction, the accused chose to testify in his own defence. Not that it made much difference. He was railroaded all the same.

Credibility, reliability entirely the issues at trial. As in many of these cases, no “hard” evidence. Nothing but lies for the Crown case. As usual, the Crown got a wrongful conviction, and we’re all left scratching our heads wondering how it happened – on one of the rare occasions that we acknowledge a wrongful conviction.

The judge’s charge to the jury was very obviously biased against the accused (suggesting no motive to lie for Chant, for example, and that his flip-flopping was less than material, and that there was no evidence Chant and Pratico were “in cahoots” – 215-8). I guess there wasn’t “evidence” either that it was a complete frame job by the police, either.

The guilty verdict followed a mere 4 hours after the charge to the jury. The judge thanked counsel – praising the Crown for “displaying an attitude that was in the best tradition of the profession of law” (219). Did he mean by the Crown’s obstructing justice, suborning perjury or inducing a wrongful conviction? It’s not clear.

The sentence was life imprisonment – thank goodness capital punishment was abolished in Canada a few years before (de facto abolished in 1963, formally in 1976).

A few days after the wrongful conviction, the police had a witness (MacNeil) who actually witnessed the murder try to tell them what he knew. He was told to get lost, essentially – by both police and the Crown, after police very briefly questioned the actual murderer (believing his pathetic and self-serving denial and after he passed a lie detector test, despite having a very related criminal record involving a knife). Also, some of the Crown witnesses had previously told police versions of events similar to what the truth actually was – a truth practically beaten, of course, out of them by the police and Crown, and not disclosed to defence). Of course, defence was not told of any of this. Meanwhile, Marshall had been appealing his conviction – this information may have been helpful on a fresh evidence application.

Marshall had to lie (pretend he was guilty) to satisfy the prison officials to move him to a medium security institution (this is extremely common nowadays, too, particularly at parole hearings – heaven help a wrongfully convicted person who refuses to “admit” guilt or otherwise confess).

In 1981, Marshall was introduced by chance to the person who witnessed the murder. He then wrote to the actual murderer (Roy Ebsary), pleading with him to admit to his crime. He wrote, “I pray that you’ll be honest about it and ask God to give me the strength to forgive you and to forgive the people that were involved with my Trial” (308). Finally, the police opened a proper investigation into the wrongful conviction, and quickly determined the truth. He was finally allowed out on parole in 1982 – once it started to become obvious that he was, in fact, innocent.

After the fresh evidence hearing on appeal, both Crown and defence recommended an acquittal. The Crown’s factum included this gem: “it seems reasonable to assume that the public will suspect that there is something wrong with the system if a man can be convicted of a murder he did not commit” (366). YA THINK?

Apparently, the new story that Marshall provided to the new RCMP investigator Harry Wheaton was that he and Seale were attempting to rob Ebsary when the latter stabbed them. This was consistent with the story Ebsary finally told the investigator. Previously, Marshall had testified that they had merely offered cigarettes to Ebsary when Ebsary got angry at them. Bill Swan strongly criticizes this version (of a robbery) as having been pressured out of Marshall by the investigator in Marshall’s eagerness to get released from prison, even though it may have not been the truth (p. 155). Apparently, the Commission in 1989 was also highly critical of this detail, finding that Wheaton had placed stress on Marshall to induce this “detail.” It also served to partially absolve the system of its misconduct and greatly reduced the amount of compensation he was entitled to.

The Crown went on to blame the accused for his wrongful conviction – as appalling as it was false. Somehow, to uphold the “integrity” of the system, we need to blame the victims of it. What a joke. No mention at all of any of the perjury suborned by both the Crown and police, surprisingly. Shockingly, the 5 justices of the Nova Scotia Court of Appeal endorsed the Crown’s historical revisionism, disgracefully agreeing with the Crown that his wrongful conviction was entirely his fault (paras. 79-85, emphasis added – R. v. Marshall, [1983] N.S.J. No. 322 (NSCA) (QuickLaw/Google) – 48 pages):

Donald Marshall, Jr. was convicted of murder and served a lengthy period of incarceration. That conviction is now to be set aside. Any miscarriage of justice is, however, more apparent than real.

In attempting to defend himself against the charge of murder Mr. Marshall admittedly committed perjury for which he still could be charged.

By lying he helped secure his own conviction. He misled his lawyers and presented to the jury a version of the facts he now says is false, a version that was so far-fetched as to be incapable of belief.

By planning a robbery with the aid of Mr. Seale he triggered a series of events which unfortunately ended in the death of Mr. Seale.

By hiding the facts from his lawyers and the police Mr. Marshall effectively prevented development of the only defence available to him, namely, that during a robbery Seale was stabbed by one of the intended victims. He now says that he knew approximately where the man lived who stabbed Seale and had a pretty good description of him. With this information the truth of the matter might well have been uncovered by the police.

Even at the time of taking the fresh evidence, although he had little more to lose and much to gain if he could obtain his acquittal, Mr. Marshall was far from being straightforward on the stand. He continued to be evasive about the robbery and assault and even refused to answer questions until the court ordered him to do so. There can be no doubt but that Donald Marshall’s untruthfulness through this whole affair contributed in large measure to his conviction.

We accordingly allow the appeal, quash the conviction and direct that a verdict of acquittal be entered.

No doubt this dubious opinion from the NSCA adversely affected his compensation. It also reflects the grossly unethical inability of “the system” to admit fault – also something seen nowadays all the time. The judgment is – correctly – called “pitifully grandiose and self-serving” (369). The “judgment was quickly assailed in the press as a political rather than a judicial document, a mere whitewash” (369). Does anyone criticize the judicial system like that these days? Even a whisper that our justice system might be slightly political is generally roundly denounced these days – blasphemy! In Canada, of course – in the US, I understand criticism of the justice system is allowed.

When it came to compensation, the Crown refused to release its file to Marshall’s lawyer – adversely affecting his quantum of compensation (the less of their misconduct he know of, the better – from its perspective). He was finally offered $270,000 in 1984 – inclusive of his legal bills – an absolute pittance, which he accepted, because he was desperate. He also needed to waive the right to sue.

The actual murderer was eventually sentenced to one year of jail for the cold-blooded murder, the same offence a young Marshall was wrongly sentenced to life in prison for (R. v. Ebsary, 1986 CanLII 4648 (NS CA).

The entire 7-volume 1989 Royal Commission results appear to be available here. A brief 44-page synopsis is available here. It includes the following scathing comments about the Nova Scotia Court of Appeal (reproduced at Bill Swan, p. 155):

We are at a loss to understand how the Court of Appeal could conclude that there was no miscarriage of justice when, on the evidence before it, Marshall’s conviction was secured by perjured testimony obtained through police pressure, and his counsel was precluded from full cross-examination because of lack of disclosure by the Crown.

For any citizen to spend eleven years in jail in a federal penitentiary for a crime he did not commit constitutes – even in the narrowest sense – a miscarriage of justice in the extreme.

Apparently, the Canadian Judicial Council struck an investigation into the Court of Appeal’s conduct – almost unheard of these days on wrongful convictions, unfortunately. See p. 36 of its findings, strongly criticizing the NSCA for stating that it was not a miscarriage of justice. Despite the NSCA’s “legal error” and “inappropriate comments,” the CJC decided not to remove the judges from office (p. 39). Ah well. Shocking result when compared to that of Judge Camp – a blog post I need to get to already.

Another thing was his junior appeal lawyer (Stephen Aronson) worked mostly pro bono and suffered from burnout, quitting law after the experience. Similarities with Ross Mackay, below.

Arthur Lucas and Ronald Turpin

I read a terrific book about famed defence counsel Ross Mackay: Ross Mackay, The Saga of a Brilliant Criminal Lawyer: And his big losses and bigger wins in court and in life: Batten, Jack: 9781988824390: Books – Amazon.ca (2020). He is also referred to by James Lockyer in his 2021 Sopinka Lecture quoted above. A terrific defence lawyer who battled personal demons (addictions and whatnot) and died at 51 years old. The above two convictions were the last executions in Canada, and Mackay defended both (2 weeks apart, mind you) in 1962. The first (Lucas) seems to be almost certainly a wrongful conviction, while Turpin’s is 50/50, I’d say. See The end of the rope: The story of Canada’s last executions | The Star

Lucas was accused of a double murder in Toronto. There was almost no evidence of his guilt, other than a ring at the scene which had belonged to him (Lucas claimed to have pawned the ring). Police officer (Fallis) had seen Lucas in a diner the morning of the incident and would have made a helpful alibi witness had he been willing to assist Mr. Lucas (spoiler alert: he wasn’t).

On the morning of Day 1 of Lucas’ trial, the experienced Crown (Henry Bull) informed a young Mackay that he wanted to advance a last-minute motion to try the accused on both victims together. The main concern for Mackay was an extremely graphic photograph would now be entered into evidence before the jury, where it otherwise wouldn’t need to be. Helpfully, the Crown opined that it would “do no injustice to the accused” (p. 111). Technically, the judge denied the Crown’s application (in that he did not put both murders on the same information), but he allowed the application insofar as to allow the photographs from the non-related murder into the first trial. Ross had “the horrible feeling that Bull had suckered him. Bull was going to get the explicit and grisly photo of Newman shown to the jury” (p. 113).

When Mackay later objected to the photos on the obvious grounds of prejudice, Bull insisted they were needed to show the location of the injuries. Justice McRuer agreed with Bull “every step of the way” and went so far as to asset “I am quite sure the jury will not have their minds inflamed.” Did I mention, the judge was Jim McRuer AKA “Hanging Jim” – celebrated in this book, and later Chief Justice of Ontario.

Then, Bull introduced into evidence the blood-soaked bedsheets, leaving them in the courtroom for the next few days. Mackay later said, “there was no doubt in my mind that the stench of the bloody sheets effectively denied Lucas a fair trial” (p. 114). Duh!

For Lucas’ cross-examination, McRuer often joined Bull “in a kind of tag-team questioning” (p. 121). They focused on Lucas’ lifestyle as a pimp – entirely irrelevant to the charges and entirely prejudicial bad character evidence, likely to sway the jury toward conviction (surprise!). A law student observing the trial (Nancy Morrison – later a judge in BC) observed that the words being “hammered” at the jury throughout the trial were “pimp” and “Detroit.” To her, it seemed that Mackay “got no breaks whatsoever from the judge. But the Crown did” (p. 123).

During Mackay’s closing submissions, McRuer interrupted to admonish him that circumstantial evidence had more substance than Mackay was allowing for, and to accuse him of conjecture (p. 125).

The Crown’s closing (predictably, not at all interrupted by McRuer) suffered from some major flaws, including suggesting he had called all the evidence had had promised to (in fact he hadn’t; he had promised to exhibit slightly bloody clothing of Lucas’ and hadn’t) and suggested that Lucas’ testimony was new (in fact, he had given largely the same story to Detroit police officer McCarty – Mackay later regretted not subpoenaing McCarty to testify – although he likely would not have attended – and when appellate counsel later wrongfully blamed Mackay for the wrongful conviction it was largely on this ground).

A mere 2 weeks after Lucas was wrongfully convicted and sentenced to hang, Ronald Turpin’s trial began. The trial judge (George “Bill” Gale – also later Chief Justice of Ontario) insisted on starting the trial earlier – to Mackay’s great dismay and despite his desperate plea not to do so.

Turpin was charged with murder for killing a police officer (Nash). He insisted it was self-defence and the officer had shot first. He was well-known to police, and had good reason to believe they would kill him on sight, as he was considered armed and dangerous.

On the first day of trial, Mackay tried to have the trial moved out of Toronto, and hence adjourned by default. Gale refused the application, “seizing on the one misstep Mackay took in his pleadings” (p. 141). Examples of pre-trial negative publicity cited by Mackay included one in a tabloid called “Hush Free Press,” with Gale opining that it was “a rag circulated amongst persons who have peculiar tastes.”

The Crown was Arthur Klein. The defence was essentially self-defence. Turpin testified, obviously.

In Gale’s charge to the jury, he “left no doubt which side he preferred” (p. 157).

“You heard of his way of life,” Gale said of Turpin. “Is he likely to tell a falsehood to protect himself at this trial? Was he guilty of some contradictions in his own evidence?”

Gale couldn’t find a single item in Turpin’s story that could be described as credible. Many of the details were implausible. Some defied commonsense. Predictably Gale ridiculed Turpin’s version of the opening minutes of his encounter with Nash when, according to the picture that Turpin drew, Nash balanced his police flashlight, his own gun and Turpin’s gun, the keys to the truck […]

In Gale’s further opinion, the Crown had proven beyond a reasonable doubt that Turpin intended to kill Nash or to do him bodily harm that he knew was likely to cause death. Gale explained to the jurors that these were just his personal conclusions. The jurors could make up their minds for themselves. Then, rather as an afterthought, Gale offered a precis of Mackay’s case for the defence.

“It wasn’t very hard to see where things were headed,” Mackay’s assistant, Steve Posen, said years later. “The attitudes of Arthur Klein and Justice Gale were leading in the same direction, which was a conviction of capital murder.” […]

With the greatest of respect,” Mackay said, “Your Lordship has left the impression that there is nothing favourable to say about Turpin.”

“I am inclined to think that is so, Mr. Mackay,” Gale said.

I pause to note that judicial comments showing bias toward the Crown would appear to be entirely improper (note that the same thing happened in Truscott, Marshall, Lucas, etc.). It is appalling that this was (and/or is) acceptable to anyone.

Gale said Mackay had “brilliantly defended” Turpin. McRuer had said Mackay was “a credit to the profession” in his pro bono defense of Lucas (Legal Aid – as terrible as it currently is – practically didn’t exist back then). Nevertheless, Mackay was somehow “blamed” for the Lucas wrongful conviction.

Appellate counsel Walter Williston decided to make Mackay the “fall guy” for the Lucas wrongful conviction (p. 164). He was unsuccessful at both levels of appeal, although at the SCC, one justice (Cartwright) properly thought it was a wrongful conviction and provided a lone dissent. At the Ontario Court of Appeal (QuickLaw/Google – you’re welcome), “Laidlaw admitted that McRuer erred pretty significantly, all his errors being prejudicial to Lucas, but it was just too bad that these errors weren’t substantial enough to add up to a miscarriage of justice. And in perhaps the most egregious of McRuer’s errors, namely his failure to catch Bull’s false claim about the “damning evidence” of the bloody clothing, the ultimate blame lay, not with McRuer [nor Bull], but with Mackay” (p. 167).

Kerwin, for the SCC majority, found that “everybody made errors during the trial. Bull did, McRuer did, and so did Mackay. Probably, Kerwin appeared to say, Mackay’s errors were the most damning of all. Mackay should have brought Inspector McCarty’s exchanges with Lucas to the trial judge’s attention. That would have eliminated the prosecution’s claim that Lucas invented his own story of innocent behaviour at the time of the killing. It might have made a different in the jury’s decision. But it was too late for any of this, too late to introduce the McCarty material” (p. 169).

Mackay struggled with his demons moreso following these convictions and hangings. The “nightmares with the murmuring soundtrack of the Lucas and Turpin voices still assaulted him every time he lay his head down” (p. 170). Eventually, Mackay’s practice improved, although he was later disbarred for trust accounting irregularities. A few years later, he applied and was re-admitted, but his alcohol (and/or gambling) addiction eventually devolved into a cocaine addiction, and he died of cancer at 51 years old.

Mackay was wrongfully accused of ineffective assistance of counsel while the judges and Crowns were essentially let off the hook – a recurring theme, I’ve noticed.

Sophonow, Morin, Milgaard, etc.

Let’s keep going – shall we?

Eh, I’m already close to 5,000 words (8 pages single-spaced). I think I’ll stop here and aim to continue with a Part 2 in coming weeks, focusing on the following books: Manufacturing guilt: Wrongful convictions in Canada: Anderson, Barrie: 9781895686937: Books – Amazon.ca, Convicting the Innocent: Where Criminal Prosecutions Go Wrong: Garrett, Brandon L.: 9780674066113: Books – Amazon.ca, and Duped: Why Innocent People Confess – and Why We Believe Their Confessions: Kassin Ph.D, Saul: 9781633888081: Books – Amazon.ca.

Law Blog

Policing Thoughtcrime: The Role of Law Societies?

December 29, 2021 Efrayim Moldofsky Leave a comment

I’ve been thinking a lot recently about the role Law Societies play in regulating the opinions expressed by lawyers. Lawyers are required to be “respectful” of tribunals and courts, yet they’re also required to be critical of injustice when they see it. How does one reconcile these sometimes-conflicting duties, and who decides what behaviour is acceptable?

We live in a time of societal reckoning. Given the pandemic and some of the issues that have been front and centre, it is a time when many are challenging fundamental assumptions about how (and by whom) law is created, enforced and imposed. Although respect for our legal systems is required, fundamental rethinking of our legal systems themselves may require some creative thinking – and may occasionally show less respect than we’re accustomed to for the systems we have in place. People are beginning to challenge systemic racism and biases in our justice systems. Is that suggestive of respect for our legal system? I’d think not.

I’ve been openly critical of courts and our justice system – usually in specific instances – on my blog, for instance. I asked on Twitter (back in April) what people think of this, given that I had noticed several lawyers on Twitter deleting comments they had made that were slightly critical of the Supreme Court. One lawyer privately noted that he liked the points that I made. Another lawyer (bravely) publicly commented that “The litany of wrongful convictions in this country have exposed a series of systemic issues in our justice system. Robust and reasoned criticism should be encouraged” – which is perhaps more aspirational than practical. The very fact that lawyers are constantly deleting their comments is precisely indicative of the concern I am raising – if lawyers are terrified of criticizing courts, what kind of justice system is this altogether? An Orwellian version of 1950s McCarthyism? Other present-day countries for whom freedom of speech is an absolute joke?

It brings to mind the saga of Joe Groia – the lawyer who was harassed by the Law Society of Ontario for decades, finally to be vindicated by the Supreme Court some 4 years ago. He spoke at my school a while back, and he was easily the most inspiring figure I heard there – and I heard more than one Supreme Court justice speak. More on him below.

Judges

A major problem with our justice system is its aura of invincibility. Judges are practically equated with deities. This is not helpful to anyone, yet it permeates the culture in legal circles. I think treating judges as human beings would go a long way toward leveling the playing field and making our justice system more equitable, accessible and just.

For example, judges are “presumed to be impartial” and courts are often very resistant to the idea that a judge made a mistake – or worse, appeared to be biased against one side or another. I actually had a judge practically scream at me (while denying a mistrial application) about how fair all judges on the bench were – prior to my successful appeal of his trial decisions – primarily on the ground of bias.

Why are we so resistant to the idea that judges are human beings, and often simply do not bring their best selves to work? Lawyers – including very senior ones – are constantly disciplined for various misdemeanours and accounting irregularities, etc. Why do we assume that, once someone is appointed to the bench – particularly given that many appointments are political – they turn into a saint who can do no evil? Who does this fantasy serve? Certainly not the public nor the “administration of justice.” See Richard Posner’s excellent book for more on the humanity of judges.

Note the excellent decision of R. v. Gashikanyi, 2017 ABCA 194 – cited approvingly by the Supreme Court in R. v. Parranto, 2021 SCC 46 at para. 139 – in which Berger JA notes that judges are “no different than butchers, bakers, and candlestick makers” (para. 72). In para. 74, he notes – quite correctly, I’ll note – that “a disproportionate opportunity” is afforded to “certain judges to shape the jurisprudence of the Court.” Rowbotham JA strongly disagreed – ironically noting the “very high” presumption of judicial impartiality, “not easily displaced” (para. 116).

In R. v. Sitladeen, 2021 ONCA 303, Miller JA criticizes scholarly articles as “legal advocacy” and a “backdoor admission of expert social science evidence” (paras. 101, 99). If this is true, it is concerning, given that the majority of Supreme Court of Canada decisions rely on “legal advocacy” – including recent, extensive reliance on Professor Craig’s book “Putting Trials on Trial” – which I critically review here.

In R v Stephan, 2021 ABCA 82, the ABCA found that the trial judge’s behaviour gave rise to a reasonable apprehension of bias (para. 148). The Crown had delicately suggested not that the judge was “actually biased, only that the cumulative effect of some of his comments give rise to that perception” (para. 111). In that case, the trial judge had commented negatively about the accent and language skills of a proposed Crown expert. Based on my understanding of the facts of that case, I disagree with the Court of Appeal’s finding that the judge’s words would lead to a reasonable apprehension of bias (or actual bias), and the Crown subsequently stayed the proceedings anyway. It also appears that the expert was an absolute fraudster. In any event, would it have been a breach of Crown ethical duties had they alleged that the judge was actually biased? I would hope not – but again, it’s difficult to reconcile with the duty to be respectful of the court.

In R. v. Brown, 2003 CanLII 52142 (ON CA), the Ontario Court of Appeal dismissed a Crown appeal of a summary conviction appeal that had overturned a conviction where allegations of racial profiling against the arresting officer were found to be improper – at the trial level. Morden JA found that “open indication of distaste or, to use a synonym, aversion, during the presentation of a case is utterly inconsistent with the duty of a judge to listen dispassionately with an open mind” (para. 103).

Another judge who was publicly criticized is Judge Camp.[1] He was famously disgraced publicly (perhaps “tarred and feathered” would be a more accurate account) for making statements about a complainant in a sexual assault trial that were said to be demeaning. I think he did nothing wrong, and it’s a shame he was fired. What’s worse is so many judges do far worse than what he was accused of – usually towards presumptively innocent accused persons (for example, disbelieving them without good reason, presuming them to be guilty, etc.). I’ve never heard of anyone being disciplined for that – especially if they’re less overt about their views (“I mean, mistakes happen, right? That’s why we have appeal courts”, etc. etc.). Even in disturbing cases of wrongful convictions rarely being overturned (for example, R. v. Ururyar, 2017 ONSC 4428 – the trial judge’s reasons were simply “incomprehensible” and 4 of 6 grounds of appeal from conviction were valid – paras. 57, 62, 64, 66), I don’t recall a stitch of public outcry for sanctions against the judge – why is that? It’s a good thing that judge didn’t say anything even slightly distasteful to a lying complainant, as Judge Camp may have – otherwise, he’d be unceremoniously dumped, too. See also the R. v. Howe, 2015 NSCA 84 fiasco I discuss (alongside Ururyar) here – note the Ururyar judge’s recent virtue signaling post here – an apology to the public and to the accused would have been far more appropriate. See also here and here.

In R. v. Ibrahim, 2019 ONCA 631 (Star), the ONCA was highly critical of the trial judge’s (ON Superior Court Justice Robert Clark) “injudicious” (para. 95) approach, criticized his criticism of the ethics of counsel (finding them to be “unfair” and unfounded” – at para. 87), and criticized his refusal to allow counsel to rely on their observations at trial (para. 89). The appeal court was also quite concerned about allegations of injudicious judicial “deportment” (yelling, etc.) alleged by the appellant, not deciding whether it gave rise to a reasonable apprehension of bias (para. 109). In the conclusion, the appeal was granted on other grounds (para. 116). See paras. 113-114, emphasis added:

We appreciate that a lengthy murder trial can be very stressful for all involved — the jury, witnesses, counsel, court staff, the judge, spectators and, most especially, the accused person and his or her family, as well as the deceased’s family, friends and supporters. There is so much at stake. Emotions may run high. Things may be said that should not have been, or words spoken in an ill-advised manner. In most cases these moments naturally pass, perhaps after a short break. Sometimes an apology may be warranted. Nevertheless, and notwithstanding where fault lies, it is the trial judge’s responsibility to reduce the stress of conflict, not to exacerbate the situation through harsh words, a raised voice, or distracting and hostile non-verbal communications.

As Lord Denning said in The Family Story (London: Butterworths & Co. (Publishers) Ltd., 1981), at p. 162: “When a judge sits to try a case with a jury, he is himself on trial — before his fellow countrymen. It is on his behaviour that they will form their opinion of our system of justice.”

The mistrial application was dismissed (R. v Ibrahim, 2016 ONSC 7665 – a hefty 66-page decision) – subsequently criticized despite its length. Note defence counsel was racialized – same defence counsel as in R. v. Hill, 2011 ONSC 3935. Another racialized defence counsel recently disparaged here. Their crime? Speaking truth to power. I’ll get into this further, below.

Same judge also in R. v. Ruthowsky, 2018 ONCA 552 – appeal bail sadly denied. Also, similar allegations made against this same judge in both R. v. Gager, 2020 ONCA 274 (albeit dismissed – para. 150) and R. v. Mills, 2019 ONCA 940 (dismissed, e.g. para. 238) – hat tip Chris Sewrattan. Note also R. v. Roberts-Stevens, 2018 ONSC 6184, at paras. 62, 92-95 – agreeing with Paciocco JA’s observation in Ruthowsky that allegations of bias should ideally be brought at trial – not on appeal for the first time.

Same judge again in 2010 – mistrial granted. Note very senior defence counsel in that case (Eddie Greenspan) – one shudders to imagine how a junior counsel would have fared (not that I’ve ever been on the receiving end of a judge’s unseemly wrath for bringing an appropriate – and subsequently vindicated – mistrial application). Then again, in 2017, the same judge granted a mistrial for having uttered an obscenity during trial – just about everyone heard it, but he somehow insisted that he did not, in any event. What is that – 6 known requested (2 granted) mistrials from the same judge in less than a decade? Simply obscene. See here and here for more on this.

This judge was appointed in 2003, had been a Crown since 1984. Retired just last year. No publicly available record of discipline that I could find – likely safe to assume he received no discipline and/or complaints despite his clearly egregious misconduct over the course of a decade or longer.

The assertion that judges – who earn upwards of a half million dollars a year – are somehow vulnerable and deserving of extra protection (e.g. Rule 5.6 of the LSA’s Code of Conduct) is simply preposterous and inappropriate. Seriously?

See also Abbe Smith, Judges as Bullies (2017).

Lawyers’ Civility Requirement

Lawyers sometimes bravely and rightly criticize our justice system. For example, “Systemic racism in criminal punishment is not a uniquely American phenomenon”.

Pre-Groia: “Judge Camp’s conduct and reasons in Wagar angered and disgusted me.” – Prof. (now ABQB Justice) Alice Woolley, emphasis added, ABlawg. Further,

The exhortation to fair and temperate criticism needs to be understood in light of these broader concerns. As the Supreme Court said in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, “lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so” (at para 68).

Or “…The findings affirm Woolley’s initial impressions when she first reviewed the transcript of the original trial. “I had a friend at the Crown and he read it with me,” she recalls. “We said, ‘oh, my God, this is jaw-dropping.’” Also temperate and respectful?[2]

The SCC released its decision – 4 years ago – in Groia v. Law Society of Upper Canada, 2018 SCC 27. Finally, some direction! In its decision, the Court recognized that trials are “often hard fought” and are “not tea parties” (Groia, paras 3 and 99). It is clearly virtuous – and arguably obligatory – lawyerly conduct to “raise fearlessly every issue, advance every argument and ask every question, however distasteful” to advance a client’s interests within the boundaries of the law (Groia, para 73). This is especially true in the criminal context, where liberty interests are at stake and the client has a constitutional right to make full answer and defence (Groia, para 62).

“In other words, allegations that are either made in bad faith or without a reasonable basis [may] amount to professional misconduct” – paras. 81-83. In other words, the presence of good faith and a reasonable basis should be absolute bars to a finding of misconduct. It would be nice if this were the standard enunciated and applied by Law Societies – rather than their obtuse, ambiguous, and contradictory ones (more on this below). Perhaps Law Societies can start by updating their “archaic” (p. 30) legislation in this manner – which clearly were updated after the Groia decision (sarcasm). While they’re (hopefully) at it, getting rid of the “confidentiality” requirement around complaints would also make sense, given that it protects no one but itself from criticism.

Apparently, despite the SCC’s very clear direction in Groia (following a decades-long, obscenely expensive, crippling and wrongful Law Society persecution of him), some law societies appear unprepared to accept its conclusions. Clearly, it is not only some appellate courts that choose to ignore Supreme Court decisions when they are not to their liking.

I have engaged in a bit of research while preparing this blog post, and it is my position that the “line” of civility is extremely ambiguous – pre-Groia, anyway. I have specifically reviewed, among other sources, The Advocates’ Society (rule 78); Groia v. Law Society of Upper Canada, 2018 SCC 27 – reviewed here, and the Law Society of Alberta’s Code of Conduct, e.g. 5.1-1. I note the commentary on 5.6 (emphasis added):

A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet, for the same reason, a lawyer should not hesitate to speak out against an injustice. […]

Criticizing Tribunals – Proceedings and decisions of courts and tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers, but judges and members of tribunals are often prohibited by law or custom from defending themselves. Their inability to do so imposes special responsibilities upon lawyers. First, a lawyer should avoid criticism that is petty, intemperate or unsupported by a bona fide belief in its real merit, since, in the eyes of the public, professional knowledge lends weight to the lawyer’s judgments or criticism. Second, if a lawyer has been involved in the proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than objective. Third, when a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to, and should, support the tribunal, both because its members cannot defend themselves and because, in doing so, the lawyer contributes to greater public understanding of, and therefore respect for, the legal system. [4] A lawyer, by training, opportunity and experience, is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.

For example, Rule 22: “Advocates should use tactics that are legal, honest, and respectful of courts and tribunals” (Advocates’ Society). Rules 79-87 include what counsel are entitled to expect from the judiciary, including 82: “Advocates are entitled to expect that judges will not unfairly or unjustifiably reprimand, criticize, disparage, or impugn counsel, litigants, and witnesses, or demonstrate or engage in intemperate and impatient behaviour.”

See also A. Woolley, Does Civility Matter?, (2008), at 188: and “Uncivil by too much civility”?: Critiquing Five More Years of Civility Regulation in Canada, 2013 CanLIIDocs 759, at 266.

Civility in the Courtroom | CanLII: Nicole Lewis, 2019 (stumbled upon excellent freely-available Carleton County Law Association’s criminal law conference materials, 2014-2019). Notes “contradictory” and “ambiguous” (I’d prefer “obtuse”) Law Society rules regarding civility (pp. 3-4), and mentions Groia.

Speaking of Groia, the prominent lawyer Frank Addario trashes the Law Society of Ontario in this 2015 article for the Star. It is so good I will need to quote the majority of it:

In an age when wrongful convictions are unearthed regularly and newspapers abound with stories of government misconduct, one might expect the role of defence lawyers to have earned a modicum of respect.

Guess again. The unsettling case of lawyer Joseph Groia is a shining example of how poorly the role of defence counsel is understood.

Groia is accused of defending his client too enthusiastically. […]

The scorecard is grim for Groia. After a slew of hearings, he faces a one-month suspension of his right to practise law and an order that he pay $200,000 in legal costs. Further appeals will likely focus on two central questions: Is there a need to rein in the defence bar? And if so, is there a means to do so that will not endanger the trial process?

The answer to each question is an emphatic no.

Groia’s sin during the lengthy Bre-X trial was to allege, noisily, that Felderhof had been abused and railroaded. Depending on one’s perspective, his manner was gratuitously rude and bombastic or tough, fearless and effective.

That a lawyer vigorously defending his client could be seen as deserving of professional censure reinforces the popular urban myth that defence counsel are more disruptive than helpful when it comes to achieving justice.

The courtroom is not a trousseau tea, where genteel bewigged lawyers agree to disagree. For the defendant it is a fight for his life; one in which the odds are stacked against him by a better-resourced opponent wearing the white hat. A certain amount of toughness is necessary.

If certain defences are off the table because they are too rude to advance, it is not the defence lawyer who suffers; it is the credibility of the legal system as a vehicle for getting to a just result. If a defence lawyer runs the risk of suffering reprisal, how can she be expected to take an unpopular or even irritating position? […]

Recently, the Ontario Court of Appeal overturned an attempted murder conviction on the basis that the trial prosecutor behaved with unacceptable zeal. The defendant — an intensely religious man entangled in a vitriolic separation — was accused of inciting the couple’s three children to drown their mother. In his closing address to the jury, the Crown referred to the defendant as a dangerous “Jesus nut.”

The chance of this prosecutor being disciplined or fined is close to zero. He might be counselled to temper his enthusiasm, an appropriate solution. Groia, on the other hand, saw his reputation and his pocketbook trashed for his transgressions. […]

If it is too much to expect the general public to understand the importance of what we do, it cannot be too much to ask of those who regulate our profession.

See also this great article on Groia, prior to the SCC decision (emphasis added):

The Ontario legal regulator has done absurd things over the years, but the most egregious is to attack Joe Groia and make him the poster child of a civility campaign.

When the justice system is splitting at the seams, students can’t find jobs, unrepresented litigants are clogging courts and new competitors are emerging to eat lawyers’ lunches, the law society focuses on civility. Rome burns and Nero fiddles. […]

His biggest transgressions were a sharp tongue, piercing words and pushing back hard for his client, despite a threatening letter from Big Brother hanging over his head.

He’s paid the ultimate price. His legal bill is nearing $2 million […]

There’s the rub. In an adversarial system, it takes two to tango, yet Groia was the only one charged. No prosecutors were called on the carpet for their tactics in that trial.

Groia’s case has become one of historical revisionism, with every level of court and tribunal doing what lawyers are so good at — second-guessing, navel gazing and using hindsight. Facts are cherry-picked or ignored to support viewpoints. […]

Rather, the legal regulator circled the wagons around lawyers at the securities regulator, including Naster [Crown], who later worked for the law society on the prosecution of former Torys LLP lawyers Beth DeMerchant and Darren Sukonick.

The profession should be concerned about the Groia case because, in civility prosecutions, defence counsel wear the target on their back.

A 2013 paper by lawyer Don Bayne examined law society statistics from 2010 to 2012 and found that 88 per cent of the incivility complaints involving criminal lawyers were against defence counsel; only 12 per cent involved Crown counsel. Also, judges complain more about criminal lawyers than any other type of lawyer. Bayne identifies a number of instances where the prosecution crossed the line in the Felderhof case, but he notes that Crown counsel “bore no discipline measure of responsibility for its role in the Felderhof incivility.” […]

Let’s hope the SCC sees it as broadly as Brown. Otherwise, litigators, get out your muzzle; the law society is watching you.

All excellent points. Defence counsel absolutely have a target on their back – particularly junior and racialized ones. Crowns are almost never the subject of serious scrutiny by Law Societies – bizarre, given its clear mandate to “protect the public” and the incredible power wielded by that particular office. Would Groia have been able to survive the onslaught had he been less senior and respected? Unlikely. He was called to the bar in 1981 – over 20 years before the brouhaha began.

Racism

The following SCC decision is said to be a racist decision: R. v. S. (R.D.), 1997 CanLII 324 (SCC) – a case I comment on here. See Richard Devlin’s 1995 article pre-dating it and Constance Backhouse’s recent (and quite troubling) article. See criticism from Prof. David Tanovich of our criminal justice system, based on this case. Another good example of a critique of our justice system by a prominent and excellent defence lawyer: “The problem is that it’s so rare to see the presumption of innocence actually play out in the courtroom – especially when the accused is racialized.” I haven’t heard of anyone (yet) getting into trouble for this type of criticism of our highest court. Are allegations of racism condoned while allegations of butchering the law of sexual assault or ignoring the presumption of innocence so obviously beyond the pale and/or scandalous?

I’ve reviewed a recent, “successful” Law Society of Alberta persecution of a senior, racialized defence lawyer on grounds of incivility. Noting Groia, the appeal panel upheld the prior finding of misconduct. The lawyer had sent around a letter complaining about the ethics of a judge whom he had dealt with extensively as a Crown in her prior career (LSA obviously refusing to publish the judge’s name). Given its acknowledgment that Groia suggests good faith and a reasonable basis can be absolute bar to a finding of misconduct, the panel (surprisingly?) found that it was not in good faith. A determination premised on what, you ask? Well, he hadn’t complained to the Law Society (para. 111), so clearly it was a frivolous complaint! I’d be tempted to call this reasoning “asinine” but I’m not sure if that’s permitted. Who do I ask?

A complaint about a former Crown who is now a judge is not an isolated event – nor by definition unjustified, as the LSA appears to think. See R. v. Strybosch, 2021 ONSC 6109.

Why the Law Society was not concerned about the substance of the complaint about the judge (or other Crowns in that office), choosing instead to shoot the messenger, is unclear. Are they protecting the public? It sure doesn’t seem that way. Instead, they seem eager to sanction (and muzzle) racialized, primarily junior, defence lawyers. For shame.[3]

[1] Not the first or last time a judge was ambushed in the court of public opinion (see 1990 case of Judge Bourassa).

[2] Speaking of temperate criticism, see Prof. Dufraimont’s new article on rape myths – my Twitter critique of it here and here. Noting my review of Prof. Sankoff’s seminar and this.

[3] Note the LSA’s lip service to “diversity” – e.g. “My Experience” Project – Law Society of Alberta, claiming to give voice to those who have experienced racial discrimination in Alberta.

25 “I have had my fair share of experiences that I can’t term as anything other than discriminatory and stereotyping, specifically by judges”, 2,

4 – “While for the most part, I have been treated with a basic level respect by colleagues in practise, I continue to experience “microaggressions” every day from lawyers and judges a like, that remind me that I am still an outsider” and “We are in a unique position to actively challenge, test, and thereby shape the legal system, and I would argue – it is our duty to do so.”

See also 8, 11, 13, 17, 18, 20, 23, 24, 26, 30.

Moldofsky Law