Summary of Recommendations

Summary of Recommendations

Chapter 2 - Understanding Tunnel Vision

1. Information on vicarious trauma should be provided to Crown prosecutors. Crowns should understand the symptoms of vicarious trauma, and how it affects the decision making-process. Those affected should receive appropriate support.
2. Where resources permit, prosecution services should consider formalizing the “devil’s advocate” position in Crown offices and on Crown Prosecutions Teams.
3. Case assessment tools or guidelines aimed at preventing wrongful convictions should be developed by the Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions, for consideration by prosecution services across the country.
4. Tunnel vision guidelines and policies should be developed by police and prosecution services which don’t currently have them.
5. Police services should be encouraged to continue to support delivering MCM training to those involved with major case investigations, as such training specifically addresses causes of failed investigations and gives strategies to mitigate them.
6. Other jurisdictions should be encouraged to consider British Columbia’s Major Case Management Team Commander accreditation process as a method to ensure only highly qualified personnel are assigned to lead major investigations.

Chapter 3 - Eyewitness ID and Testimony

1. The following are reasonable standards and practices that should be implemented and integrated by all police agencies:
   1. If possible, an officer who is independent of the investigation should be in charge of photo-pack presentation. This officer should not know who the suspect is, avoiding the possibility of inadvertent hints or reactions that could lead the witness before the identification takes place, or increase the witness’s degree of confidence afterward.
   2. The witness should be advised that the actual perpetrator may not be in the photo-pack, and therefore the witness should not feel that they must make an identification.
   3. The suspect should not stand out in the photo-pack as being different from the others, based on the eyewitness’s previous description of the perpetrator, or based on other factors that would draw extra attention to the suspect.
   4. All of the witness’s comments and statements made during photo-pack viewing should be recorded verbatim, by video and audio recording, or if that is not feasible, in writing. When an eyewitness makes an identification, a statement should be obtained from that eyewitness indicating how confident they are that the person identified is the perpetrator.
   5. If the identification process occurs on police premises, reasonable steps should be taken to remove the witness as soon as possible upon completion of the photo-pack presentation to prevent any potential feedback by other officers involved in the investigation and cross contamination by contact with other witnesses.
   6. Show-ups should be used only in rare circumstances, such as when the suspect is apprehended near the crime scene shortly after the event.
   7. A photo-pack should be provided sequentially, and not as a package, thus preventing ‘relative judgments’.
2. For prosecutors, the following practical suggestions should be considered:
   1. Assume the identity of the accused is always at issue unless the defence specifically admits it on the record. Timely preparation and a critical review of all of the available identification evidence, including the manner in which it was obtained, is required as it will affect the conduct and quality of the trial.
   2. Allow the witness a reasonable opportunity to review all previously provided statements and confirm that the statements were accurate and a true reflection of their observations at the time. Carefully canvass the full range of the indicia of the identification, including any distinguishing features that augment this evidence. Remember that it is the collective impact of all of the evidence that will be considered in support of a conviction. Defects in one witness’s identification can be overcome by the consideration of other evidence.
   3. Never interview witnesses collectively. Never prompt or coach a witness by offering clues or hints about the identity of the accused in court. Do not participate in a “show-up” lineup. Never show a witness an isolated photograph or image of an accused during the interview.
   4. When meeting with witnesses in serious cases, it is wise, if it is feasible and practical, to have a third party present to ensure there is no later disagreement about what took place at the meeting.
   5. Never tell a witness that they are right or wrong in their identification.
   6. Remember that disclosure is a continuing obligation. All inculpatory and exculpatory evidence must be disclosed to the defence in a timely fashion. In the event that a witness materially changes their original statement, by offering more or recanting previously given information during an interview, the defence must be told. In these circumstances, it would be prudent to enlist the services of a police officer to record a further statement in writing setting out these material changes.
   7. Always lead evidence of the history of the identification. It is vitally important that the trier of fact not only be told of the identification but also all the circumstances involved in obtaining it, e.g., the composition of the photo-pack.
   8. Be wary of prosecutions based on weak single-witness identifications. While not required by law to secure a conviction, ascertain whether there is any corroboration of an eyewitness’s identification in order to overcome any deficiencies in the quality of that evidence.
3. The use of expert evidence on the frailties of eyewitness identification is redundant and unnecessary in the fact-finding process. A proper charge and caution by the trial judge can best deal with the inherent dangers of identification evidence.
4. Workshops on Cognitive Interviewing should be incorporated in regular and ongoing training sessions for police and prosecutors.
5. Presentations on the perils of eyewitness misidentifications, including the academic research and results of experts in the field of memory and eyewitness identification, should be incorporated in regular and ongoing training sessions for police and prosecutors.

Chapter 4 - False Confessions

1. All interviews of suspects and key witnesses in investigations involving offences of significant personal violence (e.g., murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.) should be audio and video recorded. Audio and video recording should not be confined to a final statement made by the suspect, but should include all contacts with the suspect through the course of the investigation.
2. Investigation standards should be continuously reviewed to ensure that they include standards for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process and to accurately preserve the contents of the interview. This should include an understanding of the case law and academic literature related to the appropriate balance between “persuasion” and “accusatory” interview strategies.
3. Police investigators and Crown prosecutors should receive ongoing training about the existence, causes and psychology of police-induced confessions, including why some people confess to crimes they have not committed, and the proper techniques for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process.
4. Investigation standards should be reviewed to ensure there is a consideration of the inherent risk of false confessions in Covert Operations. These risks are not limited to a “Mr. Big” operation but also may be a factor in any type of undercover scenario where the suspect is unaware that he/she is speaking with the police or a police agent.

Recommendations Specific to Mr. Big Undercover Operations

5. Police should ensure there is no release of holdback evidence, such as the specific details of the offence, for example, the murder weapon used and the nature of the deceased’s injuries, either to the public before the operation is mounted or to the target during its course. This care should be taken in recognition of the fact that the most significant marker of reliability of a confession to Mr. Big is the target’s knowledge of the details held back by investigators. In addition, the undercover operator(s) working closely with the target should also not be provided with any information concerning the holdback evidence.
6. Police should take great care to ensure that a target’s vulnerabilities, such as his or her young age, mental health, social isolation or dire financial straits, are not exploited or taken advantage of during the operation.
7. Police should take care in the use of scenarios portraying violent or threatening conduct seemingly perpetrated by undercover officers. Their convincing portrayals that they are members of a criminal organization not ill-disposed to violence should not be created without first giving thought as to whom the violence or threats of violence are being directed, that individual’s connection to the criminal organization, and the closeness of his or her relationship to the target.
8. Prosecution services should consider offering in house training on the lessons to be learned from Hart and its new analytical framework, given the serious nature of the charges for which the technique is most often employed.
9. Crown counsel conducting a trial involving a Mr. Big undercover operation should have a clear understanding of the Supreme Court’s ruling in Hart and the limitations imposed on such operations. Counsel should obtain from investigators a written breakdown of all the scenarios employed in the course of the operation, from pre-operation background checks to initial contact through to the culminating confession to Mr. Big and any post-confession re-enactments or attendances at the crime scene with the target. Crown should determine how many of these scenarios were recorded and obtain transcripts, if available. Crown should either listen to the recordings or review the transcripts, or both.  Special attention should be paid to scenarios involving violence or threats of violence. If these are viewed as potentially problematic to the prosecution, either due to their prejudicial effect or due to abuse of process concerns, discussions with the officer(s) who designed the operation should occur so that timely decisions can be made about adducing contextual evidence to address the specific operational decisions made to include them. In making decisions about leading this type of contextual evidence, Crown should bear in mind the permissible bounds of such evidence.
10. Crown counsel should consult with prosecutors in the various prosecution services across Canada who have conducted trials in which Mr. Big undercover evidence was led or appeals in which admissibility and abuse of process rulings are in issue, to share experiences and to benefit from lessons learned.

Chapter 6 - Forensic Evidence and Expert Testimony

The recommendations of the 2005 and 2011 Reports continue to be relevant and are endorsed by the Subcommittee. Education, in particular, is a continuing and continual priority. In addition, the following recommendations are made:

1. The federal, provincial and territorial governments should support the creation of a permanent national multidisciplinary group to study and make recommendations concerning aspects of forensic sciences in Canada.
2. The federal, provincial and territorial governments should consider amendments to the Criminal Code and other provincial legislation, including rules of criminal procedure, to codify, clarify and enhance the common law rules concerning the admissibility of expert opinion evidence.
3. All levels of court should consider amendments to Practice Directions concerning the requirements for the admissibility of expert opinion evidence.

Chapter 7 - Education

1. A national course with modules for police and Crown that can be delivered on-line should be developed and updated periodically;
2. An on-line course should be complemented by the development of a curriculum intended to be delivered in person once the on-line course had been completed;
3. Once the on-line and in-person curriculum is developed, a national “train the trainers” course should be developed so that all police and prosecution services can ensure that appropriate staff are trained in delivering the curriculum; and
4. All police agencies and police training institutions should be encouraged to review current investigative training programs (e.g., major case management and team commander training, forensic interviewing courses, general investigator courses) to ensure that the causes and solutions for wrongful convictions are integrated in this training given that such training is entirely consistent with promoting investigative excellence.

Chapter 8 - False Guilty Pleas

1. The federal government and other appropriate federal and provincial entities in Canada should undertake research regarding:
   1. the circumstances that lead to false guilty pleas in Canada;
   2. the extent of the phenomenon;
   3. the extent to which certain groups may be particularly vulnerable to false guilty pleas, and, if so, why; and
   4. what changes, if any, should be made to reduce the risk of false guilty pleas in Canada.

   In particular, this research should examine:

   • the factors that have been identified as playing a role in false guilty pleas, to determine the significance of each factor, such as the impact of being denied bail or being offered more lenient sentences in exchange for guilty pleas;
   • the impact of the proposed amendment to s. 606 of the Criminal Code in Bill C-75, if it becomes law, to assess whether it addresses concerns about this section that have been raised in the academic literature;
   • the longstanding principle that an early guilty plea is a mitigating factor at sentencing and its relationship to false guilty pleas;
   • the experience of other countries, such as Britain and various United States jurisdictions, which have either limited the size of the sentence discount that is offered to an accused in exchange for an early guilty plea, or banned or curtailed plea bargaining, to assess the impact of such approaches on reducing the risk of false guilty pleas;
   • whether other Criminal Code amendments are required to better guard against false guilty pleas;
   • whether an accused person in Canada should have additional plea options; and
   • whether the mandatory use of a model uniform plea comprehension form in Canada would assist in reducing the risk of false guilty pleas.
2. Prosecution services in Canada should review Crown policies regarding resolution discussions and other relevant policies, such as the Decision to Prosecute and bail policies, to ensure they contain adequate safeguards, guidelines and clear direction to prosecutors, to assist in guarding against false guilty pleas.

In particular:

1. All prosecution services have policies that indicate that a criminal charge cannot proceed unless there is a reasonable prospect of conviction, or words to that effect. All Decision to Prosecute policies of Crown prosecution services should be reviewed to ensure they clearly state that the Crown can proceed with a prosecution only if the decision to prosecute test has been met, and that plea resolution discussions cannot proceed where this standard is not met;
2. During resolution discussions, Crown prosecutors should be alive to the risks that:
   1. an early guilty plea offer may create an incentive for a factually innocent person to plead guilty, and
   2. a factually innocent person who has been detained, particularly for a minor offence, may be motivated to plead guilty.

3. The Federation of Law Societies of Canada, as well as provincial and territorial law societies, should examine their rules of professional conduct to ensure they provide adequate and clear direction to defence counsel and Crown counsel, to the extent appropriate, to better guard against factually innocent persons pleading guilty.
4. The National Judicial Institute and other organizations that provide educational programs and resources for judges in Canada, should be encouraged to continue to provide content that includes the state of the research concerning the phenomenon of false guilty pleas in Canada, and the role of judges in the prevention of false guilty pleas.

Chapter 9 - Crown Advocacy

1. Training

   Ensuring that prosecutors participate in training designed to reinforce ethical advocacy is an important obligation of a modern prosecutorial agency. Such training should not be limited to junior counsel; in fact, many of the most notable examples of prosecutorial misconduct were committed by senior counsel. Both the Lamer and Kaufman reports recommended that training on Crown advocacy be implemented to help protect against wrongful convictions. It is also common for law societies to require a certain number of hours of professional development every year, and some require a professionalism component.

2. Mentoring

   Mentoring may be seen as a particular type of training, and is a venerable tradition in the legal profession. Ensuring that young lawyers, in particular, partner with a senior practitioner may be particularly important where a prosecutor without any significant background in criminal law starts employment.

3. Policy Manuals

   All prosecution agencies in Canada should review their policies on a wide variety of matters dealing with the proper exercise of prosecutorial discretion. As members of law societies, prosecutors are bound to follow the ethical code of their law society, but policy manuals are capable of reinforcing the ethical messages of these codes. Policies that give guidance on jury addresses, for example, can help avoid some of the most blatant forms of prosecutorial misconduct.

Chapter 10 - At-Risk Populations

General Recommendations

1. When an accused is giving a recorded statement to police regarding an alleged offence, the entire interview should be recorded, from beginning to end, not just the portion where the accused confesses to the crime;
2. Police forces should review their policies to determine if it is ever appropriate for the police to lie during interrogations to particularly vulnerable persons about the strength of the evidence against them, for example, by informing the accused that the police discovered their fingerprints or DNA evidence at the crime scene, when no such evidence exists;
3. The federal government should consider conducting research regarding whether certain segments of the population are at increased risk of wrongful convictions, and if so, why, and what can be done to reduce the risks of wrongful convictions within these at-risk groups;
4. The federal government should consider conducting research into the current practice of offering significant sentence reductions in return for guilty pleas, given that an unintended consequence has been the wrongful convictions of factually innocent persons, including populations that have been identified as being at particular risk of entering false guilty pleas. Not only is this an unacceptable outcome, it also creates barriers in the future to seeking legal redress, given the prejudicial impact of a guilty plea;
5. All Prosecution Services should review their policies regarding resolution discussions to ensure the policies require that:
   1. the offender is admitting all elements of the offence to which a plea is being entered;
   2. the facts and evidence against the accused support the offence for which a plea is being entered;
   3. the Crown is satisfied there is a reasonable prospect of conviction;
   4. the prosecution service policy states clearly that the Crown cannot accept a guilty plea from an accused where the Crown has knowledge or concerns that the accused is factually innocent, and
   5. the Crown is particularly sensitive to guilty pleas being entered by accused persons from identified groups who are recognized as being at particular risk of wrongful convictions;
6. Greater training should be provided for police, Crowns and judges generally regarding why certain populations may be at particular risk of wrongful convictions; and
7. In particular, police officers across Canada should receive special training regarding best practices in relation to the interrogation of accused persons from at-risk populations.

Recommendations Particular to Women

1. A review should be undertaken of the admissibility and proper use of demeanor evidence, specifically in cases where the accused are women and/or members of other vulnerable, at-risk groups.
2. All prosecution services should review their relevant policies to ensure they alert prosecutors to the risk of falling victim to gender stereotypes, as well as other forms of discrimination, during the course of their prosecutions, from the initial file assessment to the resolution of the case.
3. A standard jury instruction should be developed to caution juries about placing undue weight on the demeanor presentation of a witness, particularly in cases which involve female and other at-risk accused, whose emotional reaction may have been noted by the court as “unusual” or “unexpected”, and not incompliance with typical gender and cultural stereotypes.

Recommendations Particular to First Nations, Inuit and Metis People

1. Police agencies should consider adopting policy that would provide for the presence of a support person when interviewing vulnerable Indigenous persons;
2. All police agencies in Canada should review their interviewing techniques to ensure they are consistent with current best practices, which include gathering information in a non-confrontational manner, particularly for vulnerable persons, including Indigenous persons; and
3. More effort should be made to develop increased capacity for interpreters who speak Indigenous languages and dialects to assist in police investigations and in trials.
4. More resources should be allocated to develop increased capacity for interpreters who speak languages and dialects spoken by Indigenous persons to assist them and their defence counsel immediately after arrest, at bail hearings, in deciding on whether to plead guilty or go to trial, and any other discussions where understanding both language and concepts is important;
5. There should be better training available for defence lawyers who represent Indigenous persons to address cross-cultural issues that may create barriers to effective communication;
6. In recognition of the disproportionate impact of detention orders against Indigenous persons and to reduce the potential for a factually innocent Indigenous person to plead guilty to avoid time in detention, Gladue factors, as is contemplated in s. 515(10) of the Criminal Code, may be a relevant consideration at the bail stage of a prosecution.
7. When Indigenous persons are released on bail, care should be taken to avoid imposing conditions where there is an insufficient nexus to public safety and which are likely to be breached, creating problems in the future for Indigenous persons qualifying for bail;
8. The research that began in early 2017 by the the Department of Justice Canada’s Research and Statistics Division (RSD) on the issue of guilty pleas among Indigenous people should be strongly supported and its eventual recommendations carefully considered and appropriately resourced.
9. Consideration should be given to amending s. 606 of the Criminal Code to ensure that Indigenous persons (and other vulnerable individuals) understand and consider all reasonably foreseeable consequences of a guilty plea.

Recommendations Particular to Young Persons

1. The federal government should consider conducting research regarding the rate at which young persons in Canada waive their right to consult counsel under s 146 of the Youth Criminal Justice Act;
2. The federal government should consider conducting research regarding the extent to which young persons, particularly those between the ages of 12 and 14, who are under arrest or detention or otherwise suspects, understand the meaning and implications of waiving their rights to counsel and their right to silence before giving a statement to police.