Miscarriage of Justice

Aboriginal Incarceration is Increasing, Despite Falling Crime Rates

Written on Behalf of Affleck & Barrison LLP

Despite only comprising 4.3 per cent of the Canadian population, Aboriginals make up over 25 per cent of federally sentenced inmates. The percentage of Aboriginal women in federal prison is even higher – 36 per cent of all female federal inmates are Aboriginal.

In recent years, much attention has been drawn to the of the over-incarceration of black men in the United States, where black men are six times more likely to be imprisoned than white men. But in Canada, Aboriginals are incarcerated at 10 times the rate of non-Aboriginals. The problem is greatest in the Prairies. In Saskatchewan, for example, Aboriginals are 33 times more likely to be incarcerated. This is particularly concerning in light of Canada’s steadily declining crime rate which recently hit a 45-year low.

Just last week, Raymonde Saint-Germain, Quebec’s ombudsperson, released a scathing report on the treatment of Inuit people in the Quebec justice system. Ms. Saint-Germain highlighted numerous concerns after witnessing serious violations of inmates’ rights in northern Quebec. Ms. Saint-Germain also noted a dramatic increase in the number of Inuit in provincial jails over the past six years.

The reasons for the disparity are complex. Howard Sapers, Correctional Investigator of Canada, points to poverty, the history of colonialism and the lasting effects of the residential school system as some of the reasons why so many Aboriginal people suffer from problems that land them in the justice system. Cuts to social services, health care and education have also served to multiply the problems faced by Aboriginals in Canada. Another reason for the spike in Aboriginal incarceration is the harsh mandatory-minimum sentencing laws passed by Stephen Harper’s conservative government over the past decade which increased sentences for a wide variety of crimes while limiting parole opportunities. Finally, Aboriginal people are further disadvantaged by discriminatory practices and a biased justice system.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Further reading:




The Problem with Eyewitness Testimony

Written on Behalf of Affleck & Barrison LLP

In trials involving eyewitness testimony, the frailty of memory often becomes a key part of the defence strategy, . Eyewitness accounts can make a deep impression on a jury, especially when the witness is expresses a high level of certainty. However, although a confident eyewitness can make or break a trial, experience shows that mistaken identifications have and do occur and courts have long recognized this.

Many people believe that human memory works like a video recording of our experience, but according to experts, memories are actually quite fragile and susceptible to contamination. As the recent trial of Jian Ghomeshi shows, memories can change over time and be impacted by stress and trauma. The science behind why people remember certain details and not others, and why our memories and the way we recount them can change over time have been closely studied and arise frequently in court.

Several studies have been conducted on human memory and on the propensity for eyewitnesses to remember events and details that did not occur. It is not uncommon for victims to genuinely and confidently identify their attackers only to be proven wrong by DNA evidence years later, as was the case in the Netflix documentary Making a Murderer.

 But this does not mean that eyewitness identification is always unreliable. Sometimes eyewitness identification can be used to exonerate a person who is wrongfully accused of a crime. However, courts are now aware of the ability of third parties to introduce false memories to witnesses. There is only one chance to test the memory of an eyewitness as their memories can become contaminated. That is why it is so important that the testing conditions are adequate. Proper interview techniques and procedures by police and prosecutors are essential to ensure the reliability of identification evidence.

If you would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Making a Murderer: A Canadian Perspective

Written on Behalf of Affleck & Barrison LLP

WARNING: This blog post contains spoilers.

Around water coolers, on social media, and in the news, it seems that all anyone can talk about in the last few weeks is the new Netflix documentary, Making a Murderer. The true-crime miniseries has caused a sensation by casting doubt on the guilt of Steven Avery and Brendan Dassey for the 2005 murder of Teresa Halbach in Wisconsin.

The series focuses on Avery, who spent 18 years in prison for rape before DNA evidence helped to exonerate him. After his release, Avery began to prepare a multimillion-dollar lawsuit against Manitowoc County, Wisconsin. Only a few weeks after police officers were deposed in the civil suit, Avery was accused of the murder of Teresa Halbach, a photographer who had last been seen visiting Avery’ property. Brendan Dassey, Avery’s teenaged nephew, confessed to police that he was Avery’s co-conspirator in the rape and murder of Halbach. Although Avery maintained his innocence from the beginning claiming that he was framed by law enforcement authorities, both he and Dassey were found guilty of murder and sentenced to life in prison.

The response to the series has been strong. Online petitions seeking pardons for Avery and Dassey have received hundreds of thousands of signatures. In the aftermath of the show, characters featured in the series have come forward saying filmmakers were biased in their portrayal of the facts. Others suggest that the filmmakers deliberately ignored compelling evidence presented at trial pointing to Avery’s guilt. Regardless of whether Avery and Dassey are guilty, it is undeniable that police and prosecutors abused their powers. The series presents a compelling view of the experiences of the accused in the American criminal justice system  Even for skeptical viewers, it’s hard not to feel a stab of empathy at the way Avery, and especially Dassey were treated.

Canadian viewers captivated by the series can now tune in to The Docket, a weekly podcast by Michael Spratt, an Ottawa-based criminal defence lawyer, and Emilie Taman, a prosecutor, who discuss the series in the context of access to justice and the differences between the Canadian and American criminal justice systems. Each podcast discusses one episode of Making a Murderer and it does contain spoilers, so if you haven’t watched the next episode of the show, it’s best not to listen to the corresponding episode of The Docket.

If you have questions about access to justice in Canada, please contact the criminal defence lawyers at Affleck & Barrison online or at 905-404-1947.

For more information, check out our previous blog posts on the differences between the Canadian and American criminal justice systems:



Everyone Deserves a Fair Trial

Written on Behalf of Affleck & Barrison LLP

In Canada, everyone is entitled to a fair criminal trial. Except in specified circumstances, your previous wrongdoings should not be held against you at a trial on unrelated charges. A jury should not be influenced into thinking that you are a ‘bad person’ in general and are therefore likely to commit the crime(s) in question. In the recent decision in R v FT, 2015 ONCA 904, the Court of Appeal found Crown counsel focused too heavily on a defendant’s unrelated past misconduct and as a result, a miscarriage of justice occurred.

The defendant, F.T., was the father of four children. Two of his daughters, C.B. and R.G., alleged that they were sexually abused by F.T. for many years. At trial, the jury found F.T. guilty of multiple sexual offences. The defendant appealed the decision, arguing that the trial judge did not properly instruct the jury on the issue of F.T.’s prior discreditable conduct.

Although the evidence of each daughter overlapped, the Crown did not ask for a similar act evidence ruling that would have allowed the allegations of one daughter to support or confirm the allegations of the other. F.T. testified that the allegations of abuse were untrue. His evidence was support by his wife and two of his other adult children.

Crown counsel persistently cross-examined defence witnesses on the defendant’s use of his belt to discipline his children despite the fact that the defendant was not charged with assaulting any of his children with a belt.

The Court of Appeal found that the trial judge’s instruction to the jury was incomplete. The jury should also have been advised that they could not use the evidence of one daughter to support or confirm the evidence of the other. In addition, the trial judge should have instructed the jury that they could not use the evidence of F.T.’s discreditable conduct to find that he had a propensity to commit the crimes with which he was charged.

As a result, the Court of Appeal quashed all convictions against the defendant and ordered a new trial.

This article is a brief overview of a complex case and is not intended to be construed as comprehensive legal advice. To learn more about this case or any other criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.

To read the full decision, click here.