What about wrongful convictions?
The recent acquittals of Gerald Stanley and Raymond Cormier (two older white men) of the respective murders of Colten Boushie and Tina Fontaine (two Indigenous youth) have sparked uproar across the country. Movements have grown questioning chiefly the fairness of the verdicts, and the criminal justice system, as they relate to Indigenous peoples in Canada. An overdue public dialogue has begun.
I am deeply concerned, however, at the general lack of attentiveness in one half of this dialogue for the perennial issue of wrongful convictions. Both trials implicated several predisposing circumstances and immediate causes traditionally associated with wrongful convictions: public pressure to convict, unpopular defendants, ambiguous circumstantial evidence and false confessions.1 Yet, in my view, much of the public commentary on these cases casually disregard these factors in their analyses. Further, in my opinion, many of the same commentaries, by implication, green-light convictions despite the absence of inculpatory evidence, and the presence of exculpatory and equivocal evidence.2
Commentary in the media
I acknowledge that invoking the possibility of wrongful convictions may appear, on its face, a cheap cop-out—a way of dodging the deeper issues. I am startled, however, by much of the language advanced in the #justiceforcoltenandtina movement. Respectfully, much of it, in my opinion, walks perilously close to implicitly advocating for presumptive guilt. Indeed, several of Professor David Milward’s statements are telling:
“If we expect acquittals to be the standard outcome in cases of Indigenous victims where we should otherwise expect convictions, how can Indigenous Peoples be faulted for their resentments? [emphasis added]”3
"Cormier made several statements to private citizens where, in my opinion, he all but outright said he killed Tina Fontaine, although the defence offered a different interpretation. And yet we see an acquittal in this case. [emphasis added]"4
"If you have Gerald Stanley not guilty and Raymond Cormier not guilty, like less than two weeks apart, I'm starting to think you have a real issue about jury nullification and substantive injustice."5
With the greatest of respect to Professor Milward, when all of the facts are considered, this language and analysis is troubling. If the presumption of innocence must be rebutted beyond a reasonable doubt by the state, then acquittals are meant, in principle, to be the default outcome in all cases by design. A reasonable prospect of conviction is not an expectation of conviction, and does not require a probability of conviction.6 The Crown’s job is not to secure convictions.7 Do we really want a system where, in principle, we expect convictions? If so, I would like to see a thorough analysis of how we intend to prevent wrongful convictions in a system where it is permissible to regard convictions as a foregone conclusion. Indeed, in such a system why have trials at all? Why not skip straight to sentencing?
Further, with respect to Cormier’s trial, how can an obvious lack of evidence on material elements of an offence be an issue of jury nullification or an injustice? There is a real question over whether there was even a murder and, if there was, questions over identification were also live. The cause of Ms. Fontaine’s death was undetermined.8
Dr. Dennis Rhee testified that he found no definitive injuries on her body or to her internal organs9. He said there was no evidence of a sexual assault, and no signs of a stabbing or major blunt force trauma.10 It was estimated her body was in the river for three to seven days.11 There was no evidence that she drowned, but it could not be ruled out.12 Christopher Keddy, who works at the RCMP forensics lab, testified that tests showed Ms. Fontaine's body had a level of alcohol slightly above the legal limit for driving.13 Keddy also said there was a relatively high level of THC - the active ingredient in marijuana.14 There was no indication of Gabapentin, but Keddy said the test the RCMP lab ran might not detect low levels of the drug.15 Under cross-examination, the defence suggested it couldn't be ruled out that Gabapentin was in Tina's system at a potentially lethal level in combination with other drugs; Keddy agreed.16 Further, there was no DNA evidence linking Cormier to Fontaine.17
If an acquittal in Cormier’s case is an injustice, the corollary of Professor Milward’s statement is that justice would be a conviction. This implied statement cannot be divorced from the absence of necessary inculpatory evidence, and the tendering of equivocal statements made by a man who is, by most accounts, an uneducated, marginalized, mentally-ill meth addict.18
In other words, a conviction would be justice despite the evidence, or lack thereof. That is utterly alarming. The fact that sometimes juries will accept an accused’s voluntary confession at the expense of exculpatory evidence or evidentiary inconsistencies led at trial (as Professor Milward pointed out) could mean, maybe, that there is a general problem with how confessions are weighed by triers of fact.19
Or, maybe, past results are not necessarily indicative of future results. Legal decisions need to be considered in context and not compared solely according to outcomes, otherwise they become largely indistinguishable. If we analyze and compare decisions divorced from the specific facts of cases and the individuals involved, do we bother to consider the external and internal reliability of the confessions at issue? Is “justice” disregarding the circumstances solely because juries in the past sometimes (perhaps inappropriately) place a heavy weight on confessions? If so, again, I would like to see a thorough analysis of how we intend to hedge against wrongful convictions in a “just” system since false confessions fuel the wrongful conviction dumpster fire.20
Of course, what I presume Professor Milward means is that we should expect, in a colloquial sense, convictions in instances where the evidence ostensibly points no other way. This analysis is still problematic though insofar as it presumes that the trier of fact must weigh evidence in a certain way. Consistency of results should be strived for, but not at the expense of sensitivity to the very facts before a trier of fact, otherwise the process is essentially automated.
This sort of view is also reflected by law students. For example, in a thoughtful article, Jesse Blackman, a law student at the University of Manitoba Faculty of Law, writes, “Finding guilt would give hope to families and communities holding on to the faith and hope of closure through the justice system for the disappearance of a loved one.”21
The views in the rest of his article are not wrong, and I do not think anyone can seriously dispute the reality that the criminal justice system disproportionately affects Indigenous peoples, particularly Indigenous women. There is still a human (read: non-legal) story to be told about these cases. But the implications of such statements need to be canvassed. Mr. Blackman’s comment, read in context, tacitly advocates the importance of finding guilt in cases involving Indigenous peoples as a means to building Indigenous peoples’ confidence in the Canadian legal system—this view extends presumably to Cormier’s case. If we accept, though, that there was little to no evidence on all the elements for murder in Cormier’s case, and in many similar cases, are we really willing to trade possible wrongful convictions to build Indigenous peoples’ faith in the system? All told, that is the inescapable inference here, inadvertent or otherwise. Further, in my opinion, what Mr. Blackman would call the police and the Crown making efforts to take MMIWG seriously looks more like a rush towards conviction to me.22
If anything, and with great respect to both, the Crown and police’s judgment on this case should be called into question. If anything, the police and the Crown overreaching and frantically tendering equivocal inculpatory evidence to convict due, in part, to extraordinary public and institutional pressures, is exactly why due process protections exist. If anything, it is mind-boggling to think the Crown could have proved Cormier murdered Fontaine when the Crown could not seem to prove that Fontaine was murdered at all.
Mr. Blackman’s comment echoes a statement released by the University of Windsor’s Faculty of Law, which included the following: “It is the architecture of law that must change. This means our system must change to not only recognize but include Indigenous laws. A reimagining and reinvention of our legal system is necessary.”23 I agree that we could integrate Indigenous laws into Canadian law, but which ones? Further, which Indigenous laws would have seen Stanley or Cormier convicted, and also be superior and fair to the current law in other circumstances, including those with Indigenous accused? Such laws may exist, but they are not apparent right now. Further, I do not imagine that Indigenous laws dispense with the presumption of innocence or guarantee whatever verdict the popular vote wants in a given case.
With respect, the criminal justice system’s protections should not be characterized as a sort of colonial inconvenience where white people kill Indigenous people with impunity. Further, how, if at all, does the University of Windsor’s proposed reimagining and reinvention of our legal system hedge against wrongful convictions? Are we truly comfortable with the apparent presumption that if there were some Indigenous jurors for the Stanley trial the verdict would have necessarily been different, as if an Indigenous juror is just going to convict a white person?
Professor Tanovich at the University of Windsor too has expressed his views on the matter. He seems to believe a ground for appeal could be formed on the basis that the hang fire defence has no air of reality, and that it was an error in law to put it before the jury.24 With respect, I disagree. One, the air of reality evidentiary threshold is the lowest evidentiary standard in law: some evidence is required to advance the defence.25 That evidence is not to be weighed.26 Two, Professor Tanovich’s analysis disregards and, to some extent mischaracterizes, what was actually said at trial. The Crown expert said that a hang fire cannot last more than 0.5 seconds.27 However, the defence expert said it is impossible to know how long a hang fire can last.28 This does not mean that the only evidence is that a hang fire is 0.5 seconds or less. It certainly does not mean that the jury is bound to accept this fact. It means that there are competing experts. The defence expert undermines the credibility of the Crown expert and the jury is entitled to reject the 0.5 second theory. In other words, there was some evidence upon which a properly instructed jury could acquit. At that point, the onus is on the Crown to prove beyond a reasonable doubt that “accident” is not available. Further, it ignores serious credibility issues with the Crown’s witnesses, namely that one admitted to lying in a police statement and the other admitted to lying on the stand in open court.29 If we review the trial judge’s charge, credibility was a live issue here.30 Hypothetically, even if the jury disbelieved Stanley’s evidence, it could have had serious issues with the Crown’s evidence—in which case, an acquittal is legally required.
The foregoing matters because, frankly, it reflects the sort of tunnel vision endemic to wrongful convictions. Tunnel vision is defined as “the single minded and overly narrow focus on an investigation prosecutorial theory so as to unreasonably colour the evaluation of information received and one’s conduct in response to the information.”31 We recognize that pressures from the media and special interest groups on police to charge prematurely and on prosecutors to convict has, in the past, contributed to this tunnel vision.32 Again, the Crown’s job is not to secure convictions. 33 Yet, much of the subtext of this discussion has centred on the Crown’s failure to do so. We also recognize that sensational cases contribute to that same tunnel vision.34 These cases would seem, in my view, to be the highest-profile cases since Jian Ghomeshi’s trial in 2016.
Further, with respect to Professor Milward’s opinion that Cormier essentially outright admitted to persons not in authority that he killed Fontaine, we also know that people with mental illnesses are disproportionately likely to make false confessions, even independent of police questions.35 Supposing Cormier’s statements could be appropriately construed as an admission, and I do not think they can be, how much stock do we want to put in them given what was learned about Cormier at trial? I would hope that we are not seriously willing to overlook all of these factors and all of this evidence to secure convictions for noble causes.
Some final thoughts
None of the above is to say that MMIWGs should be taken in any other way than gravely seriously. Moreover, I accept that political, social, and cultural values are encoded all throughout the architecture of the criminal justice system. Further, I understand that Indigenous peoples were forced by the violence of the colonial state to renounce their cultures and forcibly adopt a foreign culture, values and laws; they rightfully do not want to be ruled by a legal system that has oppressed them and still has unequal outcomes that disadvantage them. I am appalled by those who would comment “Too bad for you. Get over it.” If Canada is to take seriously the honour of the Crown, and that our laws are a living tree, the system can, and must, grow accordingly.
I do not purport to have any answers. Nonetheless, I think it is appropriate and necessary to caution against views that, when examined in context, appear at very least, indifferent to wrongful convictions so long as the noble cause is attained. One can certainly lay blame at the feet of Child and Family Services, and all three levels of government for their cruel lack of interest in Fontaine’s life. One can, I think, fairly argue that the police’s obvious investigatory ineptitude in the Stanley investigation signals a collective indifference to criminal cases involving Indigenous victims. Further, I do not at all take issue with having a dialogue and Indigenous people expressing their anger and resignation about the system. These feelings are legitimate. We must talk about these issues. But lurking underneath this conversation are demands to lock people in jail for very long periods of time for crimes they may not have committed. Unless we want to revisit the presumption of innocence, the focus of this dialogue must also shift.
Ultimately, I want this dialogue to continue. It is not just about law or even democratic principles but it is a chapter in our human story on how we are to appropriately value historically disadvantaged peoples. I would submit that the quality of the dialogue has been, for the most part, excellent. These two verdicts clearly demonstrate many Indigenous peoples’ legitimate distrust of and alienation from the justice system. I certainly take no issue and sympathize with the view, “As an Aboriginal person, I feel devalued by these verdicts on a human level.” The Canadian justice system is not beyond reproach. However, neither are criticisms of it or calls to action. The notions that “justice” in either case would have been a conviction, that Indigenous law done by Indigenous people would necessarily have supported convictions, or that an acquittal is in itself an injustice should be soundly rejected. I am all for “doing better”, but that needs to include a full consideration of the consequences of our counter-narratives and proposals.
1 Bruce MacFarlane, “Convicting the Innocent: A Triple Failure of the Justice System” (2006) 31(3) Man. L.J., online: < http://www.canadiancriminallaw.com/Faculty%20of%20Law/comm/convicting_the_innocent.pdf>.
2 There are many things I would like to discuss that simply cannot be done in the span of one blawg post. I would briefly acknowledge upfront that this post does not at all address Professor David Tanovich’s issues with the trial’s judge jury charge and his concerns about the relevance of the defence’s lay witnesses. Further, I recognize the problem with not discussing the role of and issues with juries in relation to wrongful convictions as well as these trials. Finally, both trials also raised, in my eyes, the interesting question about the role of law professors when weighing in on controversial morally-loaded matters—that too is left untouched here.
6 Report of the Law Reform Commission of Canada: Controlling Criminal Prosecutions: the Attorney General and the Crown Prosecutor, Working Paper 62, (Justice Canada, 1990), 81–82 [LRC on Prosecutions]; Martin Report, supra note 8 at 51, 58–59, 63; Report of Commissioner Stephen Owen on the Discretion to Prosecute Inquiry, 1990, at 102-104 [Owen Report]; and John L1. J. Edwards, The Attorney General, Politics and the Public Interest (London Street & Maxwell, 1984) at 413-414.
7 Boucher v The Queen, (1955) SCR 16 at 24.
14 Supra note 7.
19 Supra note 11.
20 Supra note 1.
25 R v Cinous, 2002 SCC 29.
26 Ibid at para 54.
31Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (1998) , online: <https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/>.
32 Bruce MacFarlane, “Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System” (2008), online: <https://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/policy_research/pdf/Macfarlane_Wrongful-Convictions.pdf>
33 Supra note 6.
34 Supra note 32.
35 Richard A. Leo, “False Confessions: Causes, Consequences, and Implications” (2009) 37(3) J. of the American Academy of Psychiatry and the Law, online: <http://jaapl.org/content/37/3/332>.