The state stands accused in Manitoba

"Victims of the state," Winnipeg Free Press
By: Staff Writer, 2/10/2009

IN our adversarial system of law, the nearly limitless powers of the state and its police forces are pitted against defendants represented, usually, by a solitary lawyer with limited resources and powers of investigation. It sounds like an unequal and unjust contest, except for the fact that defendants are protected by the assumption of innocence, the right to remain silent without negative inference and the requirement that the Crown prove its case beyond a reasonable doubt. It is not a perfect system, but it can work if everyone does their job with integrity and respect for the principles of justice and fair play.
In Manitoba, however, there is growing evidence of a systemic pattern of abuse in the recent past among some members of the prosecutorial branch and some police officers who had contempt for the rights of accused persons. Working on the assumption of guilt and the desirability of conviction, they seemed to have taken the view that the legal system was slanted in favour of the bad guy and that extraordinary and unjust measures were required to lock them up.
Their modus operandi resulted in the wrongful conviction of Jim Driskell and the wrongful prosecution of Thomas Sophonow, both for murder. Kyle Unger has been granted bail while the same government department that convicted him for murder considers whether to respect a federal recommendation that he be granted a new trial, which almost certainly will see him acquitted. A fourth case, that of convicted killer Frank Ostrowski, has been slowly working its way through the complacent and self-satisfied halls of justice.
Evidence of police and prosecutorial misconduct, even if untested in court, should spark immediate foot-stomping in the corridors of the state. In the Driskell case, however, the state responded not with alarm that it may have wrongly imprisoned a citizen, but with the stubborn view that it did not matter if his trial was unfair because he was probably guilty anyway. The Crown made this argument, even though it was clear, as a judge later ruled, that a jury might have acquitted him if he had been given a fair trial.
Incidentally, the Crown attorney who was supposed to handle the Driskell bail hearing declared a conflict, so the government hired a lawyer from the private bar to make its case at literally the last moment. Having fixed the trial to ensure a conviction, the Crown was now saying through the farce of independent counsel that its sins did not matter, even though it recognized it was not fit to represent the public interest at the hearing.
The same pattern is repeating itself in the Ostrowski case. A federal investigation concluded recently that there is a "reasonable doubt basis to conclude that a miscarriage of justice likely occurred," but the province has known the issues for years. It knows because it was its justice officials and law-enforcement branch that allegedly manipulated the evidence to assure a conviction. It has known for a long time that a case was coming, but nowhere is there any evidence that it has taken any action other than to prepare for another adversarial process.
Unlike defence counsel, who are professionally obliged to represent the best interests of their clients, the Crown ought to represent the public interest in ways that bolster confidence in the legal system. That means, as previous legal rulings have declared, that information collected by the Crown belongs to the public and must be shared with the defence to ensure the principle of fair and open trials. It should also mean that the state acts quickly to address credible allegations of possible misconduct.
That, however, has not been the pattern. And it's why Canada needs a new system for investigating claims of wrongful conviction on a timely and impartial basis. The only way to overturn convictions today, after all appeals have been heard, is through an application to the federal justice minister. Canada needs a new agency, similar to those in other countries, where miscarriages of justice can be swiftly resolved. It is fundamentally wrong to allow the state and its legal system to manage complaints of wrongful conviction, particularly when the state's officers often end up in the dock.

http://www.winnipegfreepress.com/opinion/editorials/editorial---victims-of-the-state-63232147.html