Excerpts from the report on the Commission on the proceedings involving Guy Paul Morin

Guy Paul Morin was charged in Ontario with the murder of a young girl who lived next door to him. When first tried, Mr. Morin was acquitted, and the Crown appealed. In his second trial, Mr. Morin was found guilty. Years later Mr. Morin’s counsel used DNA evidence to clear Mr. Morin of any guilt in the crime. The province of Ontario then began an inquiry to uncover the cause of Morin’s wrongful conviction. The following recommendations resulted from that inquiry. The complete report is available at: www.gov.on.ca/ATG/english/morin.

BarTalk thanks Robert Mulligan in Victoria for his time and contribution in selecting these excerpts.

5. Trial Judge’s Instructions on Science
Where hair and fibre comparison evidence is tendered as evidence of guilt, the trial judge would be well advised to instruct the jury not to be overwhelmed by any aura of scientific authority or infallibility associated with the evidence and to clearly articulate for the jury the limitations upon the findings made by the experts. In the context of scientific evidence, it is of particular importance that the trial judge ensure that counsel, when addressing the jury, do not misuse the evidence, but present it to the Court with no more and no less than its legitimate force and effect.

11. The Scientific Method
The ‘scientific method’ means that scientists are to work to vigorously challenge or disprove a hypothesis, rather than to prove one. Forensic scientists at the Centre should be instructed to adopt this approach, particularly in connection with a hypothesis that a suspect or accused is forensically linked to the crime.

17. Reciprocal Disclosure
Reciprocal disclosure of expert evidence should be established. The defence should be obliged to disclose to the Crown in a timely manner the names of any expert witnesses it intends to call as witnesses, along with an outline of the witnesses’ evidence.

27. Defence Access to Forensic Work in Confidence

1. The Centre of Forensic Sciences, in consultation with other stakeholders in the administration of criminal justice, should establish a protocol to facilitate the ability of the defence to obtain forensic work in confidence.
2. The Centre should facilitate the preparation of a registry of duly qualified, recognized, independent forensic experts. This registry should be accessible to all members of the legal profession.

29. Post-Conviction Retention of Original Evidence
The Ministry of the Attorney General and the Solicitor General, in consultation with the forensic institutions in Ontario, the defence bar and other stakeholders in the administration of criminal justice, should establish protocols for the post-conviction of original evidence in criminal cases.

38. Limitations Upon Crown Discretion in the Public Interest
The current Crown policy provides that the use of an in-custody informer as a witness should only be considered in cases where there is a compelling public interest in the presentation of their evidence. This would include the prosecution of serious offences. Further, it is unlikely to be in the public interest to initiate or continue a prosecution based only on the unconfirmed evidence of an in-custody informer. The policy should, instead, reflect that (a) the seriousness of the offence, while relevant, will not, standing alone, demonstrate a compelling public interest in the presentation of their evidence. Indeed, in some circumstances, the seriousness of the offence may militate against the use of their evidence; (b) it will never be in the public interest to initiate or continue a prosecution based only upon the unconfirmed evidence of an in-custody informer.

43. Agreements With Informers Reduced to Writing
The Ministry of the Attorney General should amend its Crown Policy Manual to impose a positive obligation upon prosecutors to ensure that any agreements made with in-custody informers relating to benefits or consideration for co-operation should absent exceptional circumstance, be reduced to writing and signed by a prosecutor, the informer and his or her counsel (if represented). An oral agreement, fully reproduced on videotape, may substitute for such written agreement. As well, in accordance with present Crown policy, any such agreements respecting benefits or consideration for co-operation should be approved by a Director of Crown Operations.

45. Conditional Benefits
Any agreement respecting benefits should not be conditional upon a conviction. The Ministry of the Attorney General should establish a policy respecting other conditional or contingent benefits.

46. Policy on Kinds of Benefits Conferred
The Ministry of the Attorney General should establish a policy which sets limitations on the kinds of benefits that may be conferred on jailhouse in-custody informers or appropriate preconditions to their conferral.

48. Post-Conviction Disclosure by Crown Counsel
The Ministry of the Attorney General should remind Crown counsel of the positive and continuing obligation upon prosecutors to disclose potentially exculpatory material to the defence post-conviction, whether or not an appeal is pending. Such material should also be provided to the Crown Law Office.

49. Post-Conviction Disclosure by Police
The Durham Regional Police Service should amend its operational manual to impose a positive and continuing obligation upon its officers to disclose potentially exculpatory material to the Durham Crown Attorney’s Office, or directly to the Crown Law Office, post-conviction, whether or not an appeal is pending. The Ministry of the Solicitor General should facilitate the creation of a similar positive obligation upon all Ontario police forces.

51. Prosecution of Informer for False Statements
Where an in-custody informer has lied either to the authorities or to the Court, Crown counsel should support the prosecution of that informer, where there is a reasonable prospect of conviction, to the appropriate extent of the law, even if his or her false claims were not to be tendered in a criminal proceeding. The prosecution of informers who attempt (even unsuccessfully) to falsely implicate an accused is, of course, intended, amongst other things, to deter like-minded members of the prison population. This policy should be reflected in the Crown Policy Manual.

73. Education Respecting Wrongful Convictions

1. The Ministry of the Attorney General, in consultation with the Ontario Crown Attorney’s Association, should develop an educational program for prosecutors which specifically addresses the known or suspected causes of wrongful convictions and how prosecutors may contribute to their prevention. This program should draw upon the lessons learned at this Inquiry. Adequate financial resources should be committed to ensure the program’s success and its availability for all Ontario prosecutors.
2. An educational program should be developed for police officers which specifically addresses the known or suspected causes of wrongful convictions and how police officers may contribute to their prevention. The Ministry of the Solicitor General should take a leading role in promoting this programming. This program should draw upon the lessons learned at this Inquiry. Its design should be effected through the cooperative assistance of prosecutors and defence counsel. Adequate financial resources should be committed to ensure the program’s success and its availability for all police investigators, both new and established.
3. The Criminal Lawyer’s Association should develop an education program for criminal defence counsel which specifically address the known or suspected causes of wrongful convictions and how defence counsel may contribute to their prevention. This program should draw upon the lessons learned at this Inquiry.
4. The Centre of Forensic Sciences should develop an educational program for its staff, including all scientists and technicians, which specifically addresses the role of science in miscarriages of justice, past and potential. This program should draw upon the lessons learned at this Inquiry. Its design should be effected through the cooperative assistance of prosecutors and defence counsel. Adequate financial resources should be committed to ensure the program’s success and its availability for all Centre staff, both new and established.
5. Ontario law schools and the Law Society of Upper Canada, Bar Admission Course, should consider, as a component of education relating to criminal law or procedure, programming which specifically address the known or suspected causes of wrongful convictions and how they may be prevented.
6. The judiciary should consider whether an education program should be developed to specifically address the known or suspected causes of wrongful convictions and how the judiciary may contribute to their prevention.

74. Education Respecting Tunnel Vision
One component of educational programming for police and Crown counsel should be the identification and avoidance of tunnel vision. In this context, tunnel vision means the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one’s conduct in response to that information.

75. Crown Discretion Respecting Potentially Unreliable Evidence
The Ministry of the Attorney General should amend its policy guidelines to strongly reinforce that it is an appropriate exercise of prosecutorial discretion not to call evidence which is reasonably considered to be untrue or likely untrue. Similarly, it is an appropriate exercise of prosecutorial discretion to advise the trier of fact that evidence ought not to be relied upon by the trier of fact, in whole or in part, due to its inherent unreliability. The Ministry should take measures, including but not limited to further education and training of Crown counsel and their supervisors, to ensure strong institutional support for the exercise of such discretion.

76A. Overuse and Misuse of Consciousness of Guilt and Demeanor Evidence

1. Purported evidence of ‘consciousness of guilt’ can be overused and misused. Crown counsel and the courts should adopt a cautious approach to the tendering and reception of this kind of evidence, which brings with it dangers which may be disproportionate to the probative value, if any, that it has. Crown counsel and police should also be educated as to the dangers associated with this kind of evidence. This recommendation should not be read to suggest that such evidence should be prohibited.
2. Purported evidence of the accused’s ‘demeanor’ as circumstantial evidence of guilt can be overused and misused. Crown counsel and the courts should adopt a cautious approach to the tendering and reception of this kind of evidence, which brings with it dangers which may be disproportionate to the probative value, if any, that it has. Crown counsel should be educated as to the merits of this cautionary approach and the dangers in too readily accepting and tendering such evidence. In particular, where such evidence of strange demeanor is brought forward after the accused is publicly identified, Crown counsel, the police and the judiciary should be alive to the danger that this ‘soft evidence’ may be coloured by the existing allegations against the accused. The most innocent conduct and demeanor may appear suspicious to those predisposed by other events to view it that way.

77. Admissibility of Exculpatory Statement Upon Arrest
The Government of Canada should consider a legislative amendment permitting the introduction of an exculpatory statement made by the accused upon arrest, at the instance of the defence, where the accused testifies at trial.

78. Admissibility of Canine Scent Discrimination
Trial judges should exercise great caution in permitting evidence of canine ‘indications’ to be tendered as affirmative evidence to prove guilt.

79. Evidence of Other Suspects
It may be appropriate to revisit the rule regarding the admissibility of evidence of the other suspects having committed the crime, in light of the concerns raised at this Inquiry.

80. Jury Research
The Criminal Code should be amended to permit research into the jury’s deliberative process, with a view to improving the administration of justice.

81. Outline of Facts and Personal Opinions by the Trial Judge
The Government of Canada, upon the recommendation of the Canada Law Commission, should consider whether the common law should be altered, through legislative amendment, to limit the ability of a trial judge to express his or her opinions on issues of credibility to the jury and further alter the obligation imposed upon a trial judge to outline the most significant parts of the evidence for the jury.

82. Cautioning the Jury that Evidence may be Coloured by Criminal Charges or Other External Influences
Trial judges should be alert to the concern that honest witnesses’ perceptions of events may be coloured by the existence of criminal charges against the accused, the notoriety of the crime which he or she faces, or the fact that the authorities, whom they respect, admire, and deal with, are supportive of the prosecution. Where this concern arises on the evidence, trial judges should instruct the jury to be mindful of potential colouration in assessing the evidence of these witnesses and that miscarriages of justice have been occasioned in the past due to honest, but faulty, accounts of witnesses whose perceptions were coloured by criminal charges or other external influences.

83. Treatment of the Person Charged in Court

1. Absent the existence of a proven security risk, persons charged with a criminal offence should be entitled, at their option, to be seated with their counsel, rather than in the prisoner’s dock.
2. Crown counsel and the Court should be encouraged to refer to the persons charged by name, rather than as ‘the accused.’

84. Exercise of Prosecutorial Discretion Respecting Fresh Evidence on Appeal
The Ministry of the Attorney General should amend the Crown policy manual to support the exercise of prosecutorial discretion by appellate Crown counsel to consent to the reception of fresh evidence on appeal when the fresh evidence raises a significant concern on such part as to the innocence of the Appellant.

85. Crown Discretion Where Significant Concerns as to the Appellant’s Innocence
The Ministry of the Attorney General should amend the Crown policy manual to support the exercise of prosecutorial discretion by appellate Crown counsel to consent to the reception of original evidence raises a significant concern on such part as to the innocence of the Appellant.

86. Fresh Evidence Powers of the Court of Appeal

1. In the context of recanted evidence, the requirements that evidence must reasonably be capable of belief to be admitted on appeal as fresh evidence and must be such that, if believed, it could reasonably be expected to have effected the result, should be interpreted to focus not only on the believability of the recantation, but also upon the believability of the witness’ original testimony, given the recantation. If the fact that the witness recanted, in the circumstances under which he or she recanted, could reasonably be expected to have effected the result, these requirements are satisfied, whether or not the Court finds the recantation itself believable.
2. Consideration should be given to further change the due diligence requirement to provide that the evidence should generally not be admitted, unless the accused established that the failure of the defense to seek out such evidence or tender it at trial was not attributable to tactical reasons. This requirement can be relieved against to prevent a miscarriage of justice.

87. Power of a Court of Appeal to Entertain ‘Lurking Doubt’
Consideration should be given to a change in the powers afforded to the Court of Appeal, so as to enable the Court to set aside a conviction where the exists a lurking doubt as to guilt.

88. Crown Appeal Against Acquittal
The Government of Canada, upon the recommendation of the Canada Law Reform Commission, should study the advisability of amending the Criminal Code to provide that a Crown appeal against (a jury) acquittal is only to be allowed where the court concludes, to a reasonable degree of certainty, that the verdict would likely have been different, has the error of law not been committed.

89. Police Culture and Management Style
Police forces across the province must endeavor to foster within their ranks a culture of policing which values honest and fair investigation of crime, and protection of the rights of all suspects and accused. Management must recognize that it is their responsibility to foster this culture. This must involve, in the least, ethical training for all police officers.

94. Investigation of an Alibi
Where the defence discloses the existence of an alibi in a serious case, police should be encouraged to have the alibi investigated by officers other than those most directly involved in investigating the accused. Often, the investigation of an alibi need not draw extensively upon the knowledge of the investigating officers themselves. This recommendation permits a more objective, less predisposed approach to the potential alibi.

95. Accountability for Unsatisfactory Police Testimony
If police give testimony found to be false or which Crown counsel reasonably considers to be unreliable, Crown counsel should report these matters to the Chief of Police for investigation. The Ministries of the Attorney General and Solicitor General must implement measures to ensure that these situations are reported to the Chief of Police for investigation, that such investigation occurs, and that the results of the investigation are communication to Crown counsel or to the Court.

96. Police Videotaping of Suspects

1. The Durham Regional Police Service should amend its operational manual to provide that all interviews conducted with suspects within a police station be videotaped or audiotaped, absent truly exigent circumstances. Any practice of interviewing a suspect off-camera before a formal videotaped interview undermines this policy. Similarly, a practice of encouraging suspects to speak off the record or off-camera during an interview undermines this policy. Videotaping or audiotaping ultimately narrows trial issues, shortens trials, protects both the interviewer and the interviewee from unfounded allegations and encourages compliance with the law; such a policy also enables the parties and the triers of fact to evaluate the extent to which the interviewing process enhanced or undermined the reliability of the statement.
2. The Durham Regional Police Service should investigate the feasibility of adopting the practice of the Australian Federal Police of carrying tape recorders on duty for use when interviewing on other locations, or indeed for use when executing search warrants or in analogous situations.
3. Where oral statements, which are not videotaped or audiotaped, are allegedly made by a suspect outside of the police station, the alleged statements should then be re-read to the suspect at the police station on videotape and his or her comments recorded. Alternatively, the alleged statement should be contemporaneously recorded in writing and the suspect ultimately permitted to read the statement as recorded and sign it, if it is regarded as accurate (Of course, the recommended practice must also confirm to the Charter s.10(b) and other legal requirements).
4. Where the policy is not complied with, the police should reflect in writing why the policy was not complied with.
5. The Ministry of the Solicitor General should work to implement this policy (in the very least) for al major Ontario police forces.

98. Police Videotaping of Designated Witnesses
The Durham Regional Police Service should implement a similar policy for interviews conducted of significant witnesses in serious cases where it is reasonably foreseeable that their testimony may be challenged at trial. This policy extends, but is not limited to, unsavory, highly suggestible or impressionable witnesses who anticipated evidence may be shaped, advertently or inadvertently, by the interview process. The Ministry of the Solicitor General should assist in implementing this policy (in the very least) for all major Ontario police forces.

99. Crown Videotaping of Interviews
Crown counsel should not be mandated to videotape or audiotape their interviews with witnesses. However, the Ministry of the Attorney General should study, in consultation with the Ontario Crown Attorneys’ Association or representative Crown counsel, the feasibility of limited videotaping or audiotaping of selected interviews, where the tenor of the anticipated interview or the nature of the person being interviewed would make such a contemptuous record desirable to protect Crown counsel or would be in the interests of the administration of justice.

106. Crown Education Respecting Interviewing Practices
The Ministry of the Attorney General should establish educational programing to better train Crown counsel about interviewing techniques on their part which enhance, rather than detract, from reliability. The Ministry may also reflect some of the desirable and undesirable practices in its Crown policy manual.

107. Conduct of Crown Interviews

1. Counsel should generally not discuss evidence with witnesses collectively.
2. A witness’ memory should be exhausted through questioning and through, for example, the use of the witness’ own statements or notes before any reference is made (if at all) to conflicting evidence.
3. The witness’ recollection should be recorded by counsel in writing. It is sometimes advisable that the interview be conducted in the presence of an officer or other person, depending on the circumstances.
4. Questioning of the witness should be non-suggestive.
5. Counsel may then choose to alert the witness to conflicting evidence and invite comment.
6. In doing so, counsel should be mindful of the dangers associated with this practice.
7. It is wise to advise the witness that it is his or her own evidence that is desired, that the witness is not simply to adopt the conflicting evidence in preference to the witness’ own honest and independent recollection and that he or she is, of course, free to reject the other evidence. This is no less true if several other witnesses have given conflicting evidence.
8. Under no circumstances should counsel tell the witness that he or she is wrong.
9. Where the witness changes his or her anticipated evidence, the new evidence should be recorded in writing.
10. Where a witness is patently impressionable or highly suggestible, counsel may be well advised not to put conflicting evidence to the witness, in the exercise of discretion.
11. Facts which are obviously uncontested or uncontestable may be approached in another way. This accords with common sense.

110. Limitations Upon Criminal Profiling
Police officer should be trained as to the appropriate use of, and limitations upon, criminal profiling. Undue reliance upon profiling can misdirect an investigation. Profiling once a suspect is identified can be misleading and dangerous, as the investigators’ summary of relevant facts may be coloured by their suspicions. A profile may generate ideas for further investigation and, to that extent, it can be an investigative tool. But it is no substitute for a full and complete investigation, untainted by preconceptions or stereotypical thinking.

115. Crown Education on the Limits of Advocacy
Educational programming for Crown counsel should contain, as an essential component, clear guidance as to the limits of Crown advocacy, consistent with the role of Crown counsel. These issues may also be the subject of specific guidelines in the Crown policy manual or a Code of Conduct.

116. Adequacy of Funding for Defence Counsel and Prosecutors

1. The Government of Ontario bears the heavy responsibility of ensuring that the Ontario Legal Aid Plan and the Criminal Law Division of the Ministry of the Attorney General are adequately resources to prevent miscarriages of justice.
2. The adequate education and training of Ontario prosecutors requires dedicated financial and other resources to ensure that all prosecutors are relieved from courtroom duties to attend educational programs and that such programs are comprehensive.

117. Creation of a Criminal Case Review Board
The Government of Canada should study the advisability of the creation, by statute, of a criminal case review board to replace or supplement those powers currently exercised by the federal Minister of Justice pursuant to section 690 of the Criminal Code.

This article was published in the June 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.