Law Times

Law Times • February 1, 2016 Page 7 www.lawtimesnews.com COMMENT Hit show highlights importance of appellate review I n the early days of 2016, it seems obligatory to opine on the hit Netf lix documentary Making a Murderer. You either watched it or are now sick of friends talking about it. I don't have the space here to weigh in on the various theories swirling around Steven Avery's guilt or innocence. It's clear that many things went wrong during Avery's investigation and trial. However, I'd like to focus on how I think the show highlights the need for a rigorous process of post- conviction appellate review to ensure that if things do go wrong they're capable of being fixed. To recap, the series tells the story of Avery, a Manitowoc County, Wisc. man who served 18 years in prison for a rape he did not commit — but then had his post- exoneration freedom cut short by an arrest for murder, just as his wrongful conviction lawsuit against the county was headed to court. A young woman disappeared and was last seen at Avery's house. Her charred remains were found in a fire pit steps away from his front door. Her abandoned car was found on his property — with his blood and hers inside it. A key to her car was found in his bedroom. And so on. This was within days of two county police officers having been deposed in Av- ery's civil suit. And as fate would have it, those same officers took on key roles in the new investigation. Avery's impressive defence team un- covered cogent evidence of police malfea- sance, including possible evidence plant- ing. The jury didn't buy it. The filmmakers believe this was a mis- carriage of justice and advance a compel- ling case to this effect. Knowing that Avery's case had already been through multiple rounds of appeal, I went looking online for the appellate judgments in the hope that they could en- lighten me. I wanted to know how a pan- el of experienced judges would evaluate the apparently cogent evidence of police misconduct in the Avery investigation and how it would impact upon the ultimate validity of the verdict. On all the evidence, was it de- fensible for the jury to accept that the officers hadn't planted at least some of the evidence and that Avery was guilty? I didn't find what I was looking for. The one substan- tial judicial opinion I was able to obtain — a 2011 judgment of the Wis- consin Court of Appeals — is almost en- tirely bereft of the kind of factual detail that would allow a reader to get any insight into Avery's guilt or innocence. The court rather briskly dismisses a Fourth Amendment claim and an allega- tion of procedural irregularity in the dis- missal of one of the jurors. Most concerning to me, the court also upheld the trial judge's refusal to allow Av- ery to lead "third party suspect" evidence — that is, evidence that someone else may have committed the murder. The appeal court said this refusal was OK because none of the potential suspects had a mo- tive to hurt the victim. Well, as far as I can tell, neither did Avery. Suffice it to say that this judgment added nothing to my understanding of Avery's guilt or innocence. The other day I came across an excel- lent podcast on Making a Murderer, the first in a series by Ottawa lawyers Michael Spratt and Emilie Taman. Former Su- preme Court justice Louise Arbour, one of our greatest criminal law jurists, is a guest commentator. Because my line of work is largely criminal appeals, I was interested in Arbour's com- ments on the crucial role of first-level appellate courts in ferreting out potential miscar- riages of justice. She speaks eloquently about the need for appellate courts to scrutinize the trial record in exacting detail, and to sometimes make the dif- ficult call to order a retrial in circumstances where the pub- lic would rather see the case put to bed for good. As it happens, Arbour was the author of R. v. Biniaris, [2000], our court's lead- ing decision on when an appeal court can deem a verdict of guilt to be factually "un- reasonable." Arbour held that an appeal court must not intervene merely on the basis of a "lurking doubt" about guilt, but that such doubt is legitimately a "powerful trigger for thorough appellate scrutiny of the evidence." My concern is that "thor- ough appellate scrutiny of the evidence" is too often curtailed in favour of ref lexive deference to the jury or trial judge. Our ju- risprudence is replete with encomiums to the trier of fact's "unique position" to de- termine credibility by seeing and hearing the witnesses in person. But what if this accepted wisdom is mistaken? In prominent U.S. appellate judge Richard Posner's recent book Reflections on Judging, he describes how recent psy- chological research has challenged the notion that seeing a witness in person — observing his or her demeanour — assists in making accurate credibility judgments. This research suggests that common non-verbal clues to credibility are often misleading, and may hinder rather than help a rational evaluation of the content of the testimony. Review of a transcript may not be such a poor substitute for viva voce fact finding after all. One of our Supreme Court's lead- ing judgments stresses how hard it is for a trial judge to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events." To the court, this is a reason for defer- ence. But what if the "complex intermin- gling of impressions" in fact gives the trier of fact little or no advantage over an appellate court judging the case from a transcript? In that scenario, privileging the trial judge's ineffable determination of veracity over an appellate panel's rational scrutiny of the written record raises a seri- ous risk of mistakes going uncorrected. The Avery jury may well have been impressed by the officers' demeanour on the stand, but this shouldn't preclude a searching review of whether their story was tenable. As Posner observes, there are still defensible institutional reasons for a reasonable measure of deference to first- level findings. But in matters of guilt or innocence, we need to do more to distin- guish these valid pragmatic reasons from those that may give us false comfort in the accuracy of the result. LT uMatthew Gourlay handles crimi- nal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. Refugee crisis brings legal community together; reminds us of what's possible BY JACQUELINE BONISTEEL O n a Wednesday evening in late Septem- ber, I found myself among a motley crew of Ottawa lawyers. From seasoned big- firm litigators to sole practitioners fresh out of law school, the room at City Hall was packed. We had gathered for a training session on the basics of preparing refugee resettlement applications. Most of those present were not refugee lawyers, but they were willing to learn in the wake of Alan Kurdi's death and media focus on the plight of Syrian refugees. The objective was to prepare us to run a pro bono legal clinic and information sessions for community mem- bers the following evening. The leaders of the initiative admitted that they had no idea how many people would show up, but they thanked us all for coming out regard- less of what happened. People did show up to our event. So many people showed up, in fact, that the overf low room was over- f lowing. For hours, a steady stream waited patiently for their 15 minutes with a lawyer. There were many recent immigrants with family members stuck in Syria and surrounding countries, but many others who had no personal connection to the crisis. The common denom- inator was that everyone wanted to help, and everyone was hungry for information on the where, when, and how of doing so. That evening was the highlight of my legal career so far. It represented all that is good about our profession. At one point, I looked up to take a breather between consultations and scanned a room buzzing with energy. The legal community had banded together in a time of crisis to act as a source of information, expertise, and re- sources. At a time when many felt helpless and when the government was not presenting answers, lawyers had stepped in to offer a starting point for action. The Refugee Sponsorship Support Program quickly morphed from idea to national initiative. The Ottawa clinic was only the first step of an ongoing marathon, but the accomplishments so far have been impressive. The program has now been rolled out across Can- ada, with hundreds of lawyers trained and assigned to represent sponsorship groups on a pro bono basis. In collaboration with the Canadian Bar Association Im- migration Law Section, a list of participating lawyers across the country was developed and made public. The RSSP web site has become a rich source of infor- mation, and a comprehensive network of organizations supporting refugees is being formed. Jennifer Bond, who helped spearhead the initiative, has been named special advisor to Canada's Minister of Immigration, Refugees and Citizenship. There have been challenges, and there will be more. Beyond the standard logistical challenges, the politici- zation of the refugee crisis can make it a fraught area for those seeking to help. Public perceptions can change from one day to the next, and those perceptions carry tangible repercus- sions for policy directives and support for refugee- focused initiatives. As an immigration and refugee lawyer, I have heard a full spectrum of opinions about refugees from friends, clients, colleagues, and acquaintances. Many express concern about the potential security threats, particularly in the wake of the Paris attacks. Others worry that we do not have the resources to accommodate those we have committed to reset- tling. Others would prefer to see Canada re-direct its focus to economic immigration. When these conversations arise, I do my best to ad- dress misconceptions (for example, there is no evidence that refugees pose any heightened security risk as Cana- da engages in extensive security screening of all refugees resettled in Canada), but I am often left with the appre- hension that perhaps the momentum of a few months ago was a passing moment in a rarely opportune politi- cal climate in Canada. Momentum can fade. Our hard work to enact change can fizzle out. In such moments, I have been returning to that eve- ning last fall. I recall the energy, the motivation, and the collective will that made the event happen on such short notice. I remember that, regardless of the difficulties involved, our community is full of good people com- mitted to helping those in need. I remember that work- ing through complex problems is what we lawyers are trained to do. And I remember that our legal commu- nity can be the force gently reminding our community of what's possible. LT uJacqueline Bonisteel is an associate at Corporate Immigration Law Firm in Toronto. She is an ex- ecutive member of the Canadian Bar Association's Immigration Law Section. The views expressed here are her own and do not reflect the positions of any organization with which she is affiliated. A Criminal Mind Matthew Gourlay u SPEAKER'S CORNER

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