Representing the wrongly convicted

Christopher Guly for The Lawyers Weekly

September 11, 2009

For those who have spent time behind bars for crimes they did not commit, James Lockyer and Joanne McLean have become the dynamic duo for having wrongful murder convictions quashed.

Both board members of the 16-year-old Association in Defence of the Wrongly Convicted (AIDWYC), the two criminal defence lawyers have been involved in some of the most high profile cases over the past 15 years, successfully securing exonerations for Guy Paul Morin, David Milgaard, Bill Mullins-Johnson and Rob Baltovich - to name a few.

British-born Lockyer, with his strong and mellifluent English-accented oratorical skills in court, and McLean, with her razor-sharp attention to detail in compiling facts for a case, both make it look easy. But it's far from that.

"It's hours and hours and years of preparation," explains McLean, who 20 years ago articled with Lockyer's firm at the time, Pinkofsky, Lockyer, Kwinter.

"On appeals, you're looking for mistakes at trial and what you can repair. With wrongful convictions, you have to go further and completely take the case apart and build it up again to what really happened, or to at least demonstrate that there's no case."

For instance, getting the Ontario Court of Appeal to set aside Baltovich's 1992 second-degree murder conviction 12 years later, and having the Crown withdraw its case against him during his retrial last year, hinged on the AIDWYC team obtaining crucial evidence that was never disclosed during his first trial.

One item was a diary note Baltovich's girlfriend, Elizabeth Bain, whom he was accused of murdering in 1990, gave him in an envelope three days before she disappeared. Baltovich told police he had given the entry, which Bain apparently wrote two years before, to her father.

At the first trial, the Crown characterized the note (which Bain's father testified that he did not have) as a "Dear John letter" that enraged Baltovich and caused him to kill her. However, when preparing for the September 2004 appeal of Baltovich's conviction, McLean was given access to the Crown's file, including Bain's original 1989 diary in the form of a loose-leaf binder.

The very first page dated, Sept. 16 [no year indicated], and folded as if it had been in an envelope read "I saw Rob Baltovich today," which, as McLean points out, "is not what you write if you saw your boyfriend that day. It had to have been written before he was her boyfriend - in 1988 or 1987."

McLean contends that either Bain's father returned the note to the diary before handing it over to police or submitted it separately.

At the appeal, AIDWYC produced more significant evidence to prove Baltovich's innocence.

McLean obtained access to the entire police investigative file, which was never requested by Baltovich's defence lawyers at his trial.

Baltovich told police that on the night of June 19, 1990, when Bain vanished, he went, as he often did, to meet her after her evening class at the University of Toronto's Scarborough campus, where they both were students.

Spotting a man, who, based on his appearance, fit the description of a man Bain had once dated, Baltovich decided to wait on a second-floor balcony and see whether the guy in fact was there to meet Bain too. But when the class concluded, the man went off with another female student and Bain never showed.

In the police file, McLean found an officer's handwritten note detailing an interview with that very man who said he saw Baltovich on that June 19 evening. That information was not presented during Baltovich's first trial and, in fact, the Crown took the position that he was never there.

"It was complete verification that not only was Rob hiding up there, but that he had no reason to do so if Elizabeth was dead," says McLean.

She explains that when defence lawyers are representing a client who claims innocence, it's absolutely vital to obtain all Crown and police files on that individual. And that takes time.

In 1995, after McLean and Lockyer obtained the results of DNA testing that cleared Guy Paul Morin of his July 30, 1992 conviction for the rape and murder of nine-year-old Christine Jessop in 1984, David Milgaard called Lockyer at home and asked that a similar test be done to also help clear his name. Lockyer spent the next two years seeking access to clothing worn by Gail Miller, the Saskatoon nurse whom Milgaard was convicted of raping and murdering in 1969. A year later, he was convicted and served 23 years in prison.

Lockyer finally persuaded the federal Justice Department to release the clothing, which was sent for DNA testing at a Forensic Science Service lab in Yorkshire, England.

On July 17, 1997, Lockyer got the results and "they were brilliant," he says. "They cleared David and proved it was Larry Fisher who committed the murder."

Lockyer was also able to make an important link in the 1989 wrongful conviction of Anthony Hanemaayer on charges of break and enter and assault and assault with a weapon. During Baltovich's retrial last year, Lockyer and McLean believed convicted murderer and rapist Paul Bernardo might have also murdered Bain (with whom he was acquainted) and asked the Crown to provide them with "everything they had" on Bernardo. One of the items was a videotaped interview police conducted with Bernardo (now available on YouTube) in which he admitted to being the perpetrator of the crimes for which Hanemaayer was convicted.

Last year, Lockyer applied to the Ontario Court of Appeal to re-open Hanemaayer's appeal and, on June 25, 2008, the court entered acquittals on the convictions.

But since 1995, when he represented Morin and began what has become a crusade to defend what AIDWYC terms the "factually innocent," 59-year-old Lockyer has witnessed "tremendous resistance" over his 32-year career in criminal law from Crowns, attorneys general and the courts to setting aside wrongful convictions often seen as "exposing" the justice system to criticism.

"It's a way of showing that the system works," he says. "If the justice system can acknowledge that wrongs are going to happen, then it should see correcting a wrong as a demonstration of the power and integrity of the system."

A two-time federal NDP candidate, Lockyer believes that one way to achieve that goal would be for Canada to create a post-conviction panel modelled on the Criminal Cases Review Commission (CCRC) in the U.K., which identifies "unsafe convictions."

He explains that since the CCRC's establishment 12 years ago, the independent public body's investigation of possible miscarriages of justice has resulted in 390 cases being referred to an appeal court. Of those, 277 were quashed out of a total of 11,786 applications, as of May 31, 2009.

By contrast, Justice Canada's Criminal Conviction Review Group (CCRG) has sent only 14 cases (out of about 90 applications) back to the courts in Canada over the same period of time. All but three resulted in new trials, acquittals or stayed charges.

Lockyer points out that the Canadian ministerial review process is based on the old British system in which the Home Secretary was the final arbiter in reviewing applications. In Canada, the federal justice minister has the last say and that makes the system "too politicized," says Lockyer, a partner with the Toronto-based firm, Lockyer Campbell Posner.

"You're going to the ultimate prosecutor to convince him you've been wrongly convicted."

But former criminal defence lawyer Kerry Scullion, who now serves as director and general counsel of the CCRG, insists that "not one bit of politics" is involved in the review process.

He explains that if his group conducts an investigation, it then outlines its findings on an application and requests comments from both the applicant and the attorney general of the province involved. As well, a special independent advisor to the minister - retired Quebec judge Bernard Grenier - reviews the investigative process along the way before an application hits the desk of the minister.

However, Lockyer argues that unlike the "reactive" nature of the CCRG - which requires an individual seeking ministerial review under s. 696.1 of the Criminal Code to submit a detailed application including copies of trial transcripts and factums filed on appeal, and "new and significant" information that could have affected the outcome of the case - Britain's CCRC is "proactive."

"Many of the people who come before the commission in the U.K. are not represented by counsel, so the commission does all the work preparing the case," explains Lockyer, who is currently working on a wrongful-conviction factum on behalf of Frank Ostrowski, a Manitoba man who has spent more than two decades in prison on a first-degree murder conviction.

He says that while six federal public inquiries have recommended the creation of such an independent commission in Canada, he has "absolutely no realistic expectation" that will ever come to pass anytime in the near future - particularly when the "law and order" Tories hold power in Ottawa.

(In recent memory, the best hope for establishing a CCRC-like tribunal would have been under former Justice Minister Irwin Cotler's watch, says Lockyer, who added that such a body might put him "out of a job." )

But defending the wrongly convicted also brings unique challenges at the human level, explains McLean, who as a child wanted to become a lawyer after reading about the sad story of Steven Truscott, whom AIDWYC helped exonerate almost 50 years after he was sentenced to death for the murder of Lynne Harper.

"You're dealing with somebody who has been severely damaged. Being in prison for something you didn't do has to make you more resilient or more defiant, but it also has to take a piece of you," she says, adding that AIDWYC's clients have displayed "unbelievable strength and class" throughout their ordeals.

"The other thing really prevalent amongst innocent people - particularly ones that have never encountered the law before - is that they found out that it's not true that you cannot be convicted of something you didn't do," McLean explains.

"So, you've got huge trust issues going on as well - certainly about the system and the police, and possibly about their trial lawyers, which can extend to all lawyers."

But, despite the long and emotional road to exoneration, there is an unmistakable sense of satisfaction with the final outcome.

Says McLean: "We literally get to hand somebody their life back."

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