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| Vanessa Lisa Kiraly |
Problem 3: Evidence gathered from jailhouse informants
Another type of informant to consider is jailhouse informants. Jailhouse informants are prisoners who allege that they heard a suspect or fellow prisoner confess to a crime. They are known to be unreliable as they oftentimes provide testimony in exchange for a benefit such as a lesser sentence or earlier release. Unfortunately, their evidence may be resorted to because their “unique position” allows them to acquire a confession directly from an accused.
David Carvery, a jailhouse informant convicted of murdering his cellmate, provided testimony against Glen Assoun at trial (R v. Assoun [2019] NSJ No 294). Carvery’s testimony stated that he conversed with Assoun at the Halifax County Correctional Centre. According to Carvery, Assoun admitted to killing Brenda Way by slitting her throat and throwing her body into a dumpster. Innocence Canada’s reports stated David Carvery indeed received a benefit for his testimony, in which his sentence was reduced. Such circumstances beg the question of what justice is done when weak and inherently biased evidence is put forth to “help” a jury make the least biased decision possible.
Problem 4: Direct police misconduct
Police authorities are the first individuals to gather evidence related to criminal investigations, and they have several opportunities to either destroy or exclude potentially exculpatory evidence. Police authorities are also capable of managing their “paper trail” to ensure that their actions go undetectable. Direct police misconduct was one of the reasons why Assoun’s exoneration took years to achieve. The Criminal Conviction Review Group’s (CCRG) preliminary assessment pointed to the fact that Assoun’s counsel Jerome Kennedy made several requests for disclosure to the Crown in order to prepare for Assoun’s 2006 appeal (R. v. Assoun [2006] N.S.J. No. 154).
The preliminary assessment also included information on internal discussions of the RCMP and Halifax Regional Police’s plan to never provide all the relevant information. It was revealed that Constable David Moore’s Violent Crime Linkage Analysis System (viCLAS) work on Michael McGray, a suspect who was recently discovered to be a serial killer, was ordered destroyed by RCMP seniors. Had the RCMP provided proper disclosure of Moore’s viCLAS profiling on McGray to Kennedy, it is possible that the fresh evidence provided in Assoun’s 2006 appeal would have satisfied the Palmer criteria (R. v. Palmer [1980] 1 S.C.R. 759). This could have led to a new trial, and presumably, Assoun’s eventual acquittal, 13 years earlier than it occurred in reality. The RCMP’s destruction of Moore’s viCLAS work shows how direct police misconduct makes it difficult to convince courts to reopen cases of wrongful conviction.
Conclusion
Tunnel vision, unreliable testimony of witnesses and jailhouse informants and direct police misconduct make it harder to discover the truth behind miscarriages of justice. According to a 2011 report by the Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions, efforts should focus on ensuring that Prosecution Committees, the Canadian government, and Canadian police forces are educated about the causes of wrongful convictions and that they are held accountable when wrongful convictions occur.
Assoun’s wrongful conviction shows that there is a desperate need for police accountability at local and national levels. Although the justice system, as a “human endeavour” will never be perfect, that doesn’t mean its actors, especially police authorities, shouldn’t be disciplined when they are at fault. The freedom of a wrongfully convicted individual is priceless, and its deprivation is avoidable.
This article is an adaptation of “The Causes of Wrongful Conviction and the Challenges Involved in Convincing Courts to Reopen Cases of Wrongful Conviction,” originally published in (2021) 2:2 Wrongful Conviction Law Review 155.
This is the third installment of a three-part series. Part one: Note on wrongful conviction of Nova Scotia man. Part two: Note on wrongful conviction of Nova Scotia man, part two.
Since designing her first collection at the age of 16, Vanessa Lisa Kiraly has worked as a designer, fashion event co-ordinator, creative director, photograph retoucher and photographer. She graduated from U of T with an honours bachelor of science degree and is a law student at the Lincoln Alexander School of Law at Ryerson University. She is the recipient of the Gardiner Roberts LLP scholarship for female law students with a business focus. Learn more at her LinkedIn profile.
Photo credit / rodnikovay ISTOCKPHOTO.COM
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