Law Times

PAGE 6 JUNE 30 - JULY 7, 2008 / LAW TIMES Law Times ..... Associate Publisher .... ........... ..... . . . . . . . . . . . . . . . . . . . . . . .......... Matt LaForge ..... .........Alicia Adamson . . Advertising ............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ All rights reserved. stored in a retrieval system without written per- mission. The opinions expressed in articles are Law Times Inc. www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number Law Times is published 40 times a year by Law lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS - postal returns and address changes should include hsteenkamer@clbmedia.ca or ADVERTISING klorimer@clbmedia.ca, kpascoe@clbmedia.ca, kliotta@clbmedia.ca sshutt@clbmedia.ca at 905-726-5444 rnoonan@clbmedia.ca publication and disclaims all liability in respect Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter New eyewitness rules needed E yewitness identification evi- dence may be honest. But it can be mistaken. Just ask Anthony Hanemaayer. Near- ly 20 years ago he pleaded guilty to a knifepoint sex attack to which school- girl slayer Paul Bernardo has since taken credit. Last week the Ontario Court of Appeal exonerated Hanemaayer and withdrew his guilty pleas, set aside his convictions, and entered acquittals. "I'm just glad everybody realizes in everybody's eyes that it wasn't me," Hanemaayer told reporters after his acquittal. "I'm a very soft kind of guy and to have something like that over my head or to think people would think of me that way is mind-blowing." But, didn't he admit he did it? Yes. In fact, in 1989 Hanemaayer changed his plea to guilty midway through his trial arising from the 1987 knifepoint attack of a 15-year-old Scarborough girl. He explained that in exchange for his plea he got a more lenient two years less a day in jail as opposed to the lengthy prison term he'd certainly get if convicted at trial. Hanemaayer believed, after listen- ing to the victim's mother testify, that he could actually be convicted and sent away. After all, the mother was an eyewit- ness who identified Hanemaayer as the man she saw in her child's dark bedroom that awful September morning. News reports say that in an affidavit, the 40-year-old London, Ont. roofer said he pleaded guilty because he was "scared," and thought he was going to be found guilty. But with Bernardo's confession during a jailhouse interview with po- lice two years ago came the obvious — Hanemaayer didn't do it. His lawyer, James Lockyer, said this was a "textbook example" of the dangers of eyewitness identification evidence. Indeed, we once got a valuable lesson of Lockyer's excellent point first-hand: During jury deliberations for a notori- ous murder trial, the lead detective, a veteran of Toronto's homicide squad, warned a bunch of us journos about the perils of eyewitness ID evidence. The cop had turned up for the wait sporting contact lenses, jeans, and a spiffy leather jacket, as opposed to glasses and one of the snappy suits he wore in court. To prove his hypothesis, the officer called over one of our colleagues. Even though the wily detective sat in front of the crack reporter for three months during the trial, in these circumstances the scribe didn't recognize the cop until the obvious was pointed out. Have you ever seen a gaggle of reporters become slack-jawed en masse? "The fresh evidence points to only one conclusion, Paul Bernardo com- mitted this attack," prosecutor Howard Leibovich said in a legal argument filed with the court. "It is clearly in the in- terests of justice that the fresh evidence be admitted, the appeal allowed and the appellant's conviction(s) set aside." The Crown did the right thing, though we agree with the Association in Defence of the Wrongly Convicted that Hanemaayer's matter should have been reopened immediately after Ber- nardo made his revelation. Justice Marc Rosenberg told Hanemaay- er it's "profoundly regrettable" that a case of honest but mistaken eyewitness identifica- tion led to this "miscarriage of justice." But Lockyer said this can still hap- pen as long as courts hear cases based on eyewitness identification testimony from a lone witness, and he urged the court to address the problem. Rosenberg said there are "lessons" that can be learned from this matter and the court intends to release written reasons. If ever there's a case that should spark changes in how this type of evidence is used, this is it. — Gretchen Drummie M Forty years of history at Friedland Enterprises That's artin Friedland's re- cent book My Life in Crime and Other Aca- demic Adventures is both a per- sonal memoir and a lively review of much that has happened in Canadian legal policy during the last forty years. Friedland, now university professor emeritus of law at the University of Toronto, believes hazard and happenstance drive developments in law and le- gal policy more often than we might admit. He says the same about his own life. His career as an academic lawyer, he says, was not the result of focused ambi- tion. His important work has often come along by accident. Well, yes. But even when he was a new professor, a colleague nicknamed him "Friedland En- terprises" for the vigour of his re- search and the many public poli- cy forums to which he applied it. Endless curiosity, hard work, and organization, and an ever-ques- tioning mind — these all helped prepare the soil in which luck and chance could blossom. Most of My Life in Crime explores the many public policy inquiries to which Friedland has contributed over the years. He advised on the regulation of gambling and other questions of public morality. He did one of the early studies of gun con- trol. He reported on regulation of the securities industry. He con- tributed to studies of the structure of the courts, legal aid, national security law, wrongful conviction, and military justice reform. He did significant research on double jeopardy and on bail and deten- tion before trial. He helped plan the Law Reform Commission and was a founding commissioner. He has examined judicial indepen- dence and judicial salaries. Any lawyer or student inter- ested in these issues will find much of value in Friedland's survey of each — and may be surprised at how lively and en- gaging Friedland's narratives of them are. Throughout, he mixes the public policy story with a History By Christopher Moore funny, upbeat, unpretentious autobiography that testifies to his myriad friendships, his re- lentless enthusiasm for new ex- perience, his gift for team build- ing and, it seems, his unfailingly sunny outlook. Again and again Friedland wryly reports on 40 years' ex- perience of how public agencies have commissioned research from him and then, almost by reflex, have tried to censor or suppress the findings. Indeed, if there is a consistent theme in the memoir, it may be his concern for misuses of authority. Not just governmental or po- lice authority, either. Friedland questions judicial authority as well, skewering judges' determi- nation to be judges in their own www.lawtimesnews.com case when it comes to deter- mining their salaries. In an era when the Charter is sometimes taken as the be-all and end-all of Canadian law, Friedland writes that the Charter-era Supreme Court's "overly am- bitious approach to reforming the criminal law has in fact held back rational development of the law through the legislative route" (page 282). Letting Par- liament take the lead in shaping public policy is a matter, he says, not of legitimacy but of "institu- tional competency." The judges, he thinks, disagree. In 1979 a colleague in Israel told Friedland how "thrilling" archival research could be, and Friedland plunged in. He first explored the curious way that a criminal code drafted by 19th century English scholar R.S. Wright was supplanted through- out the commonwealth by the "more authoritarian" rival code of James Fitzjames Stephen. That "wonderful experience" as legal historian led him to write a trilogy of true crime narrative histories (The Trials of Israel Lip- ski, The Case of Valentine Shortis, and The Death of Old Man Rice). These in turn led to his magnifi- cent history of the University of Toronto in 2002. Friedland writes in the voice of a lucky man, one who has been kept busy, kept entertained, and kept useful over many years. He is still advising on policy matters hither and yon, still mulling re- search worth returning to, and even thinking of a novel or two. Friedland Enterprises is still a going concern. My Life in Crime and Other Academic Adventures by Martin L. Friedland was published in 2007 by University of Toronto Press and the Osgoode Society for Canadian Legal History. LT Christopher Moore is the author of McCarthy Tétrault: Build- ing Canada's Premier Law Firm and other works in legal history. His web site is www.christopher- moore.ca.

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