Law Times

PAGE 2 NEWS APRIL 28, 2008 / LAW TIMES Case shows system can 'work' Continued from page 1 "I reject any notion that the sys- tem is inherently flawed and this case exposes it," says Skurka. "It's one case, it has its problems, but at the end of the day, the right deci- sion emerged and that's one of the virtues of our system — we try not to let go until we ultimately get it right because liberty's at stake." But Alan Young, director of Osgoode Hall's Innocence Proj- ect, says the Baltovich case expos- es how Ontario's justice system freezes in big cases. "It always mystifies me how in cases of such a high profile, where the whole world is watching so to speak, these are the cases that grind to a halt," says Young. "That's something that's very bizarre, and I have no explanation for it. "It almost seems that our sys- tem has an inability to properly process high-profile cases when the whole world is watching. We get very nervous, very irresolute, and the bottom line is, even this case shows irresolution, because in my mind, the Crown should have realized the case was not worthy of resolution up to a year ago." "I don't know what it is, but when it comes to high-profile cases, nobody wants to make firm, quick decisions." Brendan Crawley, a spokesman for the Ministry of the Attorney General, says the Crown moved as quickly as it could on the case. "The appeal was a complicated matter and involved extensive fresh evidence," says Crawley. "In these types of cases, the appeal can't be heard until the defence has filed all of its fresh evidence, the Crown and police have had an opportu- nity to investigate and review it, and the parties complete all of the necessary cross-examinations. "In this case, once the fresh evi- dence was filed, the Crown worked very hard to ensure the matter pro- ceeded as quickly as possible." Crawley notes that the Crown announced plans to proceed with a new trial six months after the Court of Appeal ordered a new trial. Preliminary motions in the new trial took place in 2005 and 2006, and pretrial motions got underway in 2007. McGuinty, who suggested he was open to the idea. Bentley then said he' Heather McArthur work very hard" to ensure the mat- ter went ahead in a timely fashion, says Crawley, who wouldn't com- ment on whether the ministry would call for an inquiry into the case. Conflicting remarks were ini- tially made to the media between Attorney General Chris Bentley, who first rejected the need for an inquiry, and Premier Dalton "The Crown has continued to Baltovich acquittal another victory for AIDWYC BY ROBERT TODD Law Times T the Association in Defence of the Wrongly Convicted, a group many feel has found a niche with- in Canada's law community. "Society is now used to the fact that mistakes have been made, and they [AIDWYC] deserve a great deal of credit for keeping that in the public do- main, pressing the government," says William Trudell, chair- man of the Canadian Council of Criminal Defence Lawyers. "AIDWYC has educated us all that this could happen." Other recent successes for he Robert Baltovich ac- quittal adds another vic- tory to a growing list for DD LT RXQTHZB-05 Frntr ad 4/21/08 11:55 AM Page 1 AIDWYC include, the Octo- ber 2007 acquittal of William Mullins-Johnson, and the Au- gust 2007 acquittal of Steven Truscott. The organization also has been involved in the Lamer inquiry into alleged miscarriag- es of justice in Newfoundland and Labrador, the Milgaard in- quiry, and the Driskell inquiry. The non-profit organization has a stable of 30 lawyers who take on cases involving mainly poor defendants who have run up against a legal wall in their search for exoneration. While the group is based in Ontario, it has a for- mal chapter in Manitoba, while informal chapters are sprouting in Newfoundland and Calgary. AIDWYC says it seeks to take the place of an indepen- dent review body for wrong- ful conviction claims, a system Canada currently lacks. If the group chooses to take on a case, it applies for ministerial review to the Criminal Conviction Review Group of the federal Department of Justice, under s. 696.1 of the Criminal Code. "Hard work I suppose, that's about it," says AIDW- YC's James Lockyer, who led the the Baltovich team, when asked what has brought the group success. "And approach- ing it from the point of view of innocence." Such cases demand "fairly aggressive lawyering. "Defence work implies that Choose from a large array of modern or traditional styles Furniture Office you're defending what's coming, whereas, in many of these cases, it's really the opposite," he says. "You really have to almost play the role of the Crown and be ag- gressive to demonstrate that you didn't commit the crime, as op- posed to trying to raise a reason- able doubt that they can't prove that you committed the crime." Defence lawyer Steven Skurka brought in on the Baltovich case in 2005 to work with Association in Defence of the Wrongly Convicted (AIDWYC) lawyers James Lockyer and Joanne McLean, says too often cases are approached with an as- sumption of guilt. "Once you have a rush to judg- ment and a focus on a particular individual, where every action and every movement is being evalu- ated through the prism of guilt, it becomes a very dangerous situa- tion," says McArthur. "Because no matter what action is taken and no matter what happens, it's evaluated through a prism of guilt. And if evidence comes forward that shows a certain assumption is wrong, in- stead of stepping back and evaluat- ing it, then things just shift." McArthur says Baltovich's vin- d consider the possibility. Heather McArthur, who was shows lawyers the value of continu- ing to ask questions, but notes it can be difficult for young lawyers. "Sometimes we're overwhelmed and too impressed by what ap- pears to be Mount Everest, but people are climbing Mount Ever- est. You need years of experience to question and test the system. Sometimes when you're younger and you kind of accept things and rely on authority, and assume that people are smarter than you and they have the answers. make us realize that we can all do better, and we have to keep ques- tioning and believe in our clients and realize the system is not infal- lible, but it can work at the end." McArthur says the case also "I think these kinds of cases dication has kept her faith in the justice system alive. "There has finally been a recog- nition that he's an innocent man. I have to be pleased with that," says McArthur, who was brought in to deal mainly on issues in Baltovich's defence involving Bernardo's al- leged role in Bain's murder. Trudell says the country is mov- credits Lockyer and AIDWYC for their "prodigious industry." Lockyer says there's no end to the number of alleged wrongful convictions for lawyers to take on. AIDWYC is working on cases involving Christopher Bates, who was sentenced to life in jail in 1993 for the murder of a Quebec shop- keeper; Wilbert Coffin, who was hanged for murder in Quebec in 1956; Romeo Phillion, who was convicted of murder in 1972; and Kyle Unger, who is serving a life sentence for a 1990 murder. Lockyer says the'll take on any lawyer willing to work hard. "It's actually good learning for any de- fence counsel, because we do tend to sometimes, perhaps, be reactive more than proactive," he says. LT ing forward on efforts to fill holes in the system as they come along. The Ontario Ministry of the At- torney General earlier this year an- nounced a review of complex crim- inal case procedure, led by former chief justice Patrick LeSage, and the federal government has set up a steering committee on efficiencies and access to justice. "To me, having been in this business for 35 years, the system is sweet," says Trudell. "It takes too long sometimes, but if you keep clawing at it and you keep realizing that it's made by people, and people are not infallible . . . I expect to see in years ahead for the next genera- tion less wrongful convictions." McArthur says the case high- lights the importance of the 1991 landmark Supreme Court of Can- ada decision in R. v. Stinchcombe on the disclosure of evidence. "When Rob was first convicted, it was in a very new Stinchcombe era, and there were things discov- ered during the appeal process that had not been known to the defence when the trial went ahead the first time," she says. Trudell says the Baltovich case ADI Voilà Chair Cutting Edge Ergonomic Design and Green too Special offer FREE DELIVERY IN ONTARIO Call Andrew Jackson for details Phone 1-888-393-3874 ext 4551 email andrew_jackson@dyedurham.ca yourONE source supplier for C U PREFERRED SUPPLIER Office & Furniture Products • Corporate Promotional Products Printing & Graphic Services • Law Office Essentials Corporate Supplies • Search & Registration Services E OFFICE & FURNITURE PRODUCTS dyedurham.ca • Phone: 1-888-393-3874 • Fax: 1-800-263-2772 www.lawtimesnews.com reiterates to defence lawyers the importance of working diligently. She says she and her team were prepared for trial with "strong, scientific, forensic evidence that would have had a powerful ef- fect in terms of showing that the Crown attorney's case had a lot of difficulties with it." Trudell says more must be done to consider evidence at the front end of investigations. "We ask police officers to act as lawyers, in terms of gathering evi- dence, what's relevant, what should be disclosed. We need Crown in- put in the front end before it comes into the system. I don't know whether the Baltovich case is one of those . . . but we can do a better job of making sure that product is as it should be." He says, "We don't do a good job of running the business of criminal justice," and that prosecu- tors must ensure cases aren't being brought into the courts at the same time as ongoing investigations that could exonerate the accused. "That's in everybody's interest," says Trudell. McArthur says the defence has not pondered seeking compensa- tion for Baltovich. "He has been proclaiming his innocence for 18 years, and he's fi- nally heard that 'Not guilty.' Now he just wants to breathe a while. It's going to take a while to sink in, but when it does, I think he just wants to lead a normal life just like anybody else." She adds that, "Rob is prob- LT ably tired of lawyers and tired of judges and tired of courts and probably just wants to get on with his life." W e ' r e a D y C S a 8 I n E 9 H a p N d & 9 i R m a 1 n C D o a A n Y M

• Cover