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Overturned convictions only 'tip of the iceberg'

High-profile victims of wrongful convictions, left to right, Romeo Phillion, Mullins-Johnson, Robert Baltovich and Alain Olivier, seated, talked about their experiences at a York University conference March 7, 2009.

Commission needed to probe miscarriages of justice, legal expert says

March 8, 2009

Tracey Tyler

The federal government's failure to set up an independent commission to investigate suspected miscarriages of justice has left Canada lagging behind other jurisdictions, a prominent legal expert says.

Nearly 300 convictions have been quashed by courts in Britain since the government set up an arm's-length agency in 1997 to investigate wrongful conviction claims, relieving individuals of the expense of proving their innocence.

More than 10,000 cases have been reviewed.

In Canada, no fewer than seven public inquiries have recommended a similar commission be established here but the federal government has stubbornly refused to follow through on the recommendations, Kent Roach, a University of Toronto law professor, told a conference on wrongful convictions at York University yesterday.

"That's just wrong," he said, adding that miscarriages of justice uncovered largely through the efforts of volunteer organizations probably represent a fraction of wrongful convictions in Canada.

"I fear we are only getting at the tip of the iceberg," Roach said.

Also speaking at the conference, organized by criminology students, were Canadians at the centre of some high-profile criminal cases, who collectively spent nearly 75 years fighting to get their convictions overturned.

Among them was Romeo Phillion, whose conviction for a 42-year-old murder was overturned Thursday.

"It was a long time waiting," said Phillion, 69, who spent 31 years in prison for the murder of Ottawa firefighter Leopold Roy.

"When you're in prison, you start thinking you're going to die there. You have to almost come to accept the fact that it might actually happen," said Robert Baltovich, who spent eight years in penitentiary and was acquitted last year of the murder of his girlfriend, Elizabeth Bain.

William Mullins-Johnson spent 12 years in prison after been wrongly convicted of murdering his niece, Valin, 4, on the basis of flawed pathology evidence from Dr. Charles Smith.

"I was stripped of my humanity," said Mullins-Johnson, who was acquitted in 2007. "I was forced to conform to an environment that was animalistic."

The Goudge inquiry into Ontario's forensic pediatric pathology system was the latest to recommend an independent review commission.

Roach said if only a fraction of the money Canada spends on public inquiries were instead used to establish such an agency it would be an improvement over the current system, in which the federal justice minister determines whether a criminal case should be reopened.

That process places the minister, who is also the country's chief prosecutor, in a conflict of interest, he said.

Part of the problem is DNA evidence has become the "gold standard" for exonerations, he added. When it doesn't exist, it becomes harder to persuade courts that a miscarriage of justice has occurred as a result of other problems in the case, such as faulty eyewitness identification evidence.

But DNA exists only in select cases, primarily rapes and murders. Many wrongful convictions have already been exposed using this evidence, so the pool of cases in which a wrongful conviction can be scientifically proven is drying up, he said.

That leaves people like Phillion, whose wrongful conviction claim was based on a buried police report and alleged false confession.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who
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