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Note on wrongful conviction of Nova Scotia man, part two

Thursday, February 24, 2022 @ 2:38 PM | By Vanessa Lisa Kiraly

Vanessa Lisa Kiraly %>
Vanessa Lisa Kiraly
The systemic factors contributing to miscarriages of justice in Canada include tunnel vision, false or unreliable witness testimony, untrustworthy evidence gathered from jailhouse informants and direct police misconduct. These factors adversely affect the reliability of an investigation and are commonly found in high-profile cases of wrongful conviction. When the factors that contribute to miscarriages of justice occur, it is often difficult to convince courts to reopen cases of wrongful conviction.

This difficulty may occur because evidence gathered against an innocent accused is augmented, while evidence that could prove the accused’s innocence is downplayed, not pursued, or destroyed. The causes of wrongful conviction present in Glen Assoun’s case and why they made Assoun’s exoneration challenging is discussed below (R v. Assoun [2006] N.S.J. No. 154).

Problem 1: Tunnel vision in police investigations

As stated by criminal law professor Dianne L. Martin, “The police investigation is inevitably at the heart of these miscarriages of justice because the police gather the evidence, identify the prime suspect and build the case for conviction.” Three predisposing circumstances may increase the occurrence of wrongful convictions. These circumstances include a high-profile case that places significant pressure on authorities to resolve a conviction, the marginalization of an outsider accused, and a case in which authorities rely on fundamentally unreliable evidence.

Tunnel vision refers to the occurrence of bias in police operations due to these predisposing circumstances. Tunnel vision results in police authorities using preconceptions and heuristics to “select evidence to build a case for the conviction of their chosen suspect while suppressing or ignoring information and interpretations that point away from guilt.” According to Martin, “When the investigative process is distorted by tunnel vision, misconduct becomes prevalent in note and record keeping, witness interviews, the interrogation of suspects among other distortions.”

In high-profile cases of murder, the pressure to convict could stem from a “highly-charged and politicized environment generated by high-profile cases” or the “willingness to prosecute and convict someone without real scrutiny of the evidence.” Miscarriages of justice also occur due to “institutional cynicism and neglect,” in which biased investigators assume that suspects with similar circumstances, attributes, and offences require little to no investigation.

Such is the case of Donald Marshall Jr., whose wrongful conviction led to the first public inquiry on wrongful convictions in Canada. In R. v. Marshall [1983] N.S.J. No. 322 Sergeant John MacIntyre headed a police investigation in which biased decision-making and tunnel vision were evident. MacIntyre crafted his investigation in a manner that only sought out evidence to convict Marshal and disregarded evidence against his conviction. The Royal Commission on the Donald Marshall, Jr. Prosecution found that MacIntyre failed to pursue the two men Marshall stated were involved in the murder. In Assoun’s case, it was discovered that Constable Macdonald also considered but failed to pursue other suspects. 

However, tunnel vision doesn’t stop at the initial police investigation; its effects overflow to other parts of the justice system, including the Crown and the RCMP. The RCMP refused proper disclosure of information that could have changed the outcome of Assoun’s case. Whether tunnel vision stems from bias or an overreliance on heuristics, it is a serious systemic issue that must be addressed at the initial police investigation and onward.

Problem 2: Unreliable witness testimony

Informer evidence is often used by police authorities to determine information about a suspect. Even if tunnel vision isn’t an issue and the safeguards ensuring threshold reliability of a witness’s testimony are present, miscarriages of justice can still occur. A witness may lie under oath, be mistaken in what they saw, or be coerced into adopting another individual’s version of the events. In Hill v. Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129, the eyewitness testimonies of two bank tellers contributed to the accused’s wrongful imprisonment. The two bank tellers were unwavering in their testimonies, although they were not shown photographs of the other suspects before the trial. There is evidence that the unreliable witness testimony of Margaret Hartrick and M.G. also contributed to Assoun’s wrongful conviction.

Testimony of Hartrick

Hartrick possessed unstable qualities that placed her credibility as a witness into question. She possessed a habit of recounting events from psychic visions to the police, an addiction to drugs, and provided contradictory evidence. Constable Peter Gallant testified about his experience taking Hartrick’s November 1996 videotaped statement, asserting that she was not offered any favours nor coerced during the process. On cross-examination, he stated that Hartrick talked to the police differently while recounting her psychic visions compared to when she provided information about her encounter with Assoun on the day of Way’s murder. Peter Gallant also stated that it is possible she “had time to fabricate her evidence” as the interview occurred one year after the murder. Moreover, Hartrick was well-acquainted with Way. In the end, her testimony turned out to be a false and inconsistent tale. Hartrick’s false testimony exemplifies the danger of relying on contradictory information provided by witnesses of questionable credibility.

Testimony of M.G.

M.G. was a young prostitute who testified at trial. She alleged that Assoun picked her up in his car, slit her breast with a knife and raped her. She stated that he repeatedly said Way’s nickname while committing the act, and said that Assoun admitted he would kill Way. Approximately 18 months after her alleged encounter with Assoun, she provided this information to police authorities. According to Innocence Canada’s 2019 report on Assoun’s case, M.G. no longer believed Assoun assaulted her. In a subsequent interview, she stated that Assoun was smaller than her assailant. A man of larger stature, like McGray, was better suited to be her attacker. One of the key pieces of information identifying McGray as the killer was also found in M.G.’s original testimony. She referred to her attacker as wearing socks and sandals in the middle of winter, a characteristic of McGray that was confirmed by several witnesses. The testimony of M.G. demonstrates the ease at which wrongful convictions may occur due to evidence provided by a mistaken witness.
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 second installment of a three-part series. Part one: Note on wrongful conviction of Nova Scotia man.

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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