Wednesday, 23 September 2015

A case of injustice (Part 1)

There are many times when a person has served a sentence in prison and then it is later determined that he had an unfair trial. This following case is an example of such a dilemma for a person who had an unfair trial. 

The issue in this case is whether an acquittal, a new trial or a stay of proceedings is the appropriate remedy for a miscarriage of justice arising from the non-disclosure of evidence to the defence prior to the trial.               

On July 7, 2004, a woman (complainant) was sexually assaulted in a basement suite in Surrey, British Columbia in Canada..  She then fled to a neighbouring house and emergency services were summoned.  RCMP (police) investigators attended the house, met with the complainant and transported her to hospital.  A Sexual Assault Nurse Examiner (“SANE nurse”), trained to conduct sexual assault examinations, gathered biological material suitable for DNA analysis, which was then turned over to the RCMP for forensic analysis. 

En-route to the hospital, the investigators had the complainant identify the location of the sexual assault, (the basement suite in Surrey).  Investigators obtained a warrant and searched the basement suite within hours of her complaint.  They found Mr. Dhillon (the man the complainant accused of sexually assaulting her) passed out on the floor, naked and in a state of extreme intoxication.  Various items were seized from the basement suite.      

During the trial. the complainant testified she was driven to the basement suite by two males.  Upon arrival, she said she met a third male in the suite.  The complainant described all three males as being “East Indian”.  She further testified that sometime after arriving at the basement suite, she was pushed into a bedroom where two of the three males raped her.  The complainant was clear that only two of the three males present in the basement suite participated in the assaults and the owner of the suite was one of those males.  The third male did not participate in the assaults.  The complainant identified Mr. Dhillon in-dock as the owner of the suite and as one of the men who assaulted her.

At the time of the trial, Mr. Dhillon was the only one of the three “East Indian” males described by the complainant who had been arrested.  He therefore stood trial as the sole accused.  Mr. Dhillon neither testified nor called witnesses in his defence.  However, some evidence was adduced on his behalf by admission.  For example, Mr. Dhillon admitted he lived in the basement suite the complainant had identified and that he was present on the evening in question.

Let me say from the get go, he should have testified if he was innocent. After all it was only her word against his. However if his DNA was found on or in her body, then he was wise not take the stand and testify unless he was going to say that the sex was consensual.

While the complainant’s narrative at trial was at times confusing and inconsistent with her statements to the investigators, the trial judge found her to be a credible and reliable witness.  He found, despite any inconsistencies or confusion, the complainant was clear that only two of the three men in the suite raped her and Mr. Dhillon was one of them. He certainly should have testified and denied her allegations if he was really innocent.

Mr.  Dhillon was subsequently convicted and then sentenced to four years’ imprisonment, after which he was deported to India.  After his deportation, previously undisclosed DNA evidence identified two male DNA profiles on the exhibits seized from the complainant`s clothing and the basement suite.  Neither profile matched Mr. Dhillon’s DNA.  The Criminal Justice Branch of the British Columbia Ministry of Justice appointed a special prosecutor to conduct a review of Mr. Dhillon’s file.  The special prosecutor concluded, in the circumstances, there had likely been a miscarriage of justice. It was obvious that Mr. Dillon was innocent.

The fresh evidence Mr. Dhillon sought to adduce on his appeal consisted of six forensic reports.  The first report was prepared by RCMP Evidence Recovery Unit member, Robert Groves (the “Amended Groves Report”), the second was prepared by RCMP forensic biologist Brian Beevers (the “Beevers Report”), and the third was prepared by RCMP forensic biologist William Price (the “Price Report”).  The remaining three reports were prepared by RCMP forensic biologist Kathleen Horley (the “Horley Reports”).  The Amended Groves Report and the Beevers Report were prepared before Mr. Dhillon’s trial in 2005, but were not disclosed to Mr. Dhillon or the Crown (prosecutor). The Price Report and the Horley Reports were prepared in 2011 and 2012, some six years after the trial, and not disclosed to Mr. Dhillon or the Crown until March 2013.

As a result of Judge Hyde’s post-conviction order made at the sentencing of Mr. Dhillon, a sample of Mr. Dhillon’s DNA was taken and forwarded to the National DNA Data Bank on March 8, 2006.  As to the DNA profiles of “Male 1” and “Male 2”, no official negative result was registered with Mr. Dhillon’s DNA sample as the Data Bank only generates positive results.  That is, the police agency submitting a DNA sample would not have been notified unless a match was produced.  Consequently, the fact Mr. Dhillon’s DNA did not match the DNA profiles designated “Male 1” and “Male 2” from the Beevers Report would not have come to the immediate attention of the investigators or the Crown. 

Later developments eventually established links between the DNA profiles identified in the Beevers Report and other individuals.  In July 2010, nearly five years after Mr. Dhillon’s conviction, Mohammed Ukhttar was convicted of an unrelated assault.  His sentence included an order requiring him to provide a DNA sample.  When that sample was analyzed, the National DNA Data Bank reported a match between Mr. Ukhttar and “Male 1”.  Surrey RCMP then took a renewed interest in another suspect in the case, Sital Bhatti.  Earlier in the investigation, Mr. Bhatti had come to the attention of the RCMP, but this was not vigorously pursued.  In August 2011, when Surrey Crown Counsel reviewed an information to obtain a DNA warrant for Mr. Bhatti, they learned that neither the Amended Groves Report nor the Beevers Report had been disclosed to the Crown. In any case, both Mr. Ukhttar and Mr. Bhatti, whose DNA profiles were identified, are awaiting trial for the sexual assault and physical assault of the complainant 

A special prosecutor was subsequently appointed to make a finding. He concluded that Mr. Dhillon was wrongfully convicted resulting in his trial being a miscarriage of justice.

Back in 1969, I was asked to be the chairman of a task force comprising of  legislators, judges, law professors and lawyers in Ontario that was to report to the government if innocent persons sent to prison should be compensated. We recommended that they should. Subsequently, one innocent man who spent 24 years in prison was awarded $10 million.

In my opinion, Mr. Dillion should be awarded a large sum of money and permitted to return to Canada. But will this happen? For the government to make that decision, certain aspects of the trial has to be considered.

The undisclosed information must be examined to determine the impact it might have had on the decision to convict”; and, second, the appeal court must inquire into whether there was a “reasonable possibility that the jury, with the benefit of all the relevant evidence, might have had a reasonable doubt as to the accused’s guilt”.  The latter question must be addressed as a separate issue from the assessment of the effect of the failure to disclose on the result at trial.  The test requires only that there was a reasonable possibility that the undisclosed evidence could have affected the outcome of the trial and that there is a possibility that the evidence could reasonably have been expected to have affected the result obtained at the trial.

There is no doubt in my mind that had the trial judge heard all the evidence, Mr. Dhillon would have been acquitted and not subsequently deported back to India.

The Crown also conceded both components of the two-step  test were met.  First, the Crown acknowledged there can be little doubt the DNA evidence could have had an impact on the trier of fact’s decision to convict Mr. Dhillon.  The Crown also conceded that the fresh evidence met the second stage of the inquiry because it gave rise to a miscarriage of justice.  

While the Crown conceded that the fresh evidence was admissible and the appeal should be allowed, there remained the question of the appropriate remedy available to Mr. Dhillon.  The Crown asked the Court of Appeal to invoke its ancillary power to grant a stay of proceedings.  Mr. Dhillon sought an acquittal or in the alternative, a stay of proceedings, or in the further alternative, a new trial. 

Where an appeal from conviction is allowed, there is a provision of the Criminal Code, that provides authority for the court to quash the conviction and either direct a verdict of acquittal be entered or order a new trial.  An appellate court generally does not have the power to allow an appeal, quash a conviction and then refuse to grant one of these two remedies. 

There are at least three discernible markers on the cogency continuum. At one extreme is evidence that satisfies the court of appeal that the appellant is innocent. Next on the continuum is evidence that, when considered with the evidence adduced at trial, satisfies the court of appeal that no reasonable jury could convict. If the new evidence reaches this degree of cogency, an appellant is entitled to an acquittal. Finally, there is evidence that is sufficiently cogent to meet the criteria for the admission of fresh evidence on appeal in that it could reasonably have affected the verdict at trial, but is not sufficiently cogent to exclude the reasonable possibility of a conviction. Evidence at this level of cogency requires a new trial.

If the appeal court is satisfied based on the trial record as augmented by the fresh evidence, that no reasonable jury could convict, the appeal court’s discretion must be exercised in favour of ordering an acquittal. However, an appeal court should not order a new  trial to give the Crown an opportunity to make a case against an appellant when, as matters stood at the end of the proceedings in the court of appeal, no reasonable jury could convict.

The Honourable Madam Justice MacKenzie wrote the decision of the British Columbia Court of Appeal in this case. The other two justices agreed with her decision. She said in her decision;

“First, while I agree there has been a miscarriage of justice, I do not find an acquittal to be the appropriate remedy.  In my view, the fresh evidence is not sufficiently cogent to exclude the reasonable possibility of a conviction The test for an acquittal is strict: the court must be satisfied that no jury acting reasonably could convict on the evidence.  I am not satisfied that an acquittal would be the only reasonable possibility.  My conclusion is supported by the fact that, at trial, the complainant clearly identified Mr. Dhillon as one of her assailants.  In addition, the police found him in the same condition as the complainant described. While a conviction may not be likely, the circumstances do not justify entering an acquittal. 

I further agree with the Crown that although the complainant’s credibility would be seriously challenged at a new trial, it is not for this Court to assess her credibility.  Credibility must be left to the trier of fact. Thus, the normal remedy in this case would be a new trial.  However, I consider this is one of those “clearest of cases” that justifies a judicial stay of proceedings to prevent an abuse of process.  First, while there is no evidence of bad faith on the part of the Crown, the non-disclosure of the Amended Groves and Beevers Reports constitutes a serious breach of Mr. Dhillon’s section 7 Charter right to full disclosure and a fair trial.  Without the DNA evidence, Mr. Dhillon was unable, amongst other things, to pursue other avenues of investigation, properly consider the calling of witnesses, or further impugn the complainant’s credibility.  This prejudice is irreparable.  It would be perpetuated if a new trial were ordered.” unquote

You may remember that I said that Mr. Dhillon should have taken the stand and denied sexually assaulting the woman. This he chose not to do. Further, the fact that his DNA was not found on her clothes does not mean he didn’t sexually assault her. The lack of his DNA on her clothes could simply mean that he didn’t ejaculate like the other two men did.

Second, a new trial nine years after Mr. Dhillon’s first trial and over six years after he has finished serving his sentence and been deported to India would perpetuate an injustice and undermine the integrity of our judicial system.  Mr. Dhillon spent four years in prison.  If convicted on a retrial, he would unlikely receive a longer sentence than he has already served.  In addition, the fresh evidence gives rise to questions as to whether Mr. Dhillon participated in the sexual assault of the complainant.  The Crown concedes that the complainant’s description and identification of the three men was confusing.  Accordingly, it is not in the interests of justice to order a new trial. Although a conviction may not be likely, it cannot be ruled out as a reasonable possibility that he would be convicted a second time.” unquote

A new jury might not give him the benefit of reasonable doubt. I will try to define what “reasonable doubt” really means.

A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to be an absolute certainty.  Such a standard of proof is impossibly high.  A reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context, and jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”. As well, the word “doubt” should not be qualified other than by way of the adjective “reasonable”.  To instruct a jury that a “reasonable doubt” is a “substantial” doubt or a “serious” doubt may have the effect of misleading the jury.  Lastly, it is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that jurors should be advised that they can convict if they are “certain” or “sure” that the accused is guilty. 

Further, a judge or a jury may not believe the testimony of the defendant but there may be other evidence submitted to them that may give them reason to believe that he may be innocent and if they are aware of that particular possibility, then they will give the defendant the benefit of their reasonable doubt. That doesn’t mean that he didn’t commit the crime. It could simply mean that he might have committed the crime but the judge or jury are not convinced with an absolute certainty that he really did commit the crime.

There is one point I want to mention that is pertinent in this particular case.  It was his basement apartment. Although he was found asleep when the police arrived, he had to be awake when the other two men and the woman arrived since he would have had to let them into his apartment. Even if he didn’t sexually assault the woman, he had to have known that the other two men were sexually assaulting the woman and if that is so, then he is also culpable for permitting that to happen to the woman.

Because there is the possibility that Mr. Dhillon may have sexually assaulted the woman, even if that is a remote possibility, I have to presume that the appeal court when denying costs to be awarded to Mr. Dhillon, they had that remote possibility in their minds.

The court`s decision was as follows as written by the Honourable Madam Justice McKenzie and affirmed by the other two justices.

 In the result, I would admit the fresh evidence, allow the appeal from conviction, set aside the order of this Court of October 23, 2006 that dismissed Mr. Dhillon’s conviction appeal, set aside the convictions and order a stay of proceedings.

As to being permitted to return to Canada, I doubt he would be successful. As far as Canada Immigration is concerned, a stay of proceedings is not an acquittal of the charges.    

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