Monday, June 28, 2010

R v. Wilton Smith - "I am innocent" - Part I

Wilton Smith came to Canada in search of a better life. As many others before him - he left his island country of Jamaica with big dreams and the hope of better days. This dream and goal came to an end when he was arrested and charged with first degree murder in connection with the death of his then girlfriend on March 10, 1992. Since this unfortunate day - Wilton Smith has been in prison for a crime he maintains he did not commit. In the first of a three part series I wish to share with who ever cares to read or listen his story. It is a story that is becoming all to common in our system of law.

Before embarking on some of the details of the evidence and the legal proceedings gernerally, I believe that it would be fruitful to do some preliminary work - such as outlining the Criminal Code offence of first degree murder and the prosecution and defence theories.

First Degree Murder:

Murder is first degree murder when it is planned and deliberate.

The key witnesses:

Wilton Smith: The defendant was involved in relationship with the deceased. He was charged with a threat to cause death to the deceased on or about December 1, 1991. However, between the time of charge and the resolution of that charge Wilton and the deceased had reconciled. Wilton did not have immigration status in Canada at the material time.

Patricia Innis: Wilton and Patricia were a couple. Patricia had a three year old daughter from a previous relationship who resided with her at her one bedroom apartment in Toronto. For some months prior to her death, Delroy Benjamin and his girlfriend Iona Davis resieded with Ms. Innis in her apartment. Both Delroy and Iona were from Jamaica and in Canada illegaly at the material time.

Iona Davis: Resided with the deceased along with her boyfriend Delroy.

Delory Benjamin: Resided with the deceased along with his girfriend Iona.

Joseph Pryce: Proscecution identification witnesss. Came into the picture after Wilton was arrested, charged and committed to stand trial. Toronto Police Service investigator, Det. Bronson testified that he attended an establishment in North York known as Microm Screw on January 25th, 1993 and spoke to the owner one, Mr. Latiff and an employee, Mr. Pryce regarding the case. Pryce ultimately testified at trial that he was shown a photolineup and that he picked out Wilton as having attended at the establishment to sharpen a machete. There are a wealth of serious issues which call into question the reliability of this witnesses evidence but that will be left for later.

Ava Hood, Judith Innis, Iona Davis and Margaret Creal were permitted to give hearsay evidence regarding utterences allegedly made to them by the deceased regarding her fear of Wilton Smith.

Prosecution Theory:

The prosecution alleged that Wilton Smith killed Patricia Innis by inflicting a wound to her neck with a machete on March 10, 1992. They maintained that he alone had a motive to kill her since he was previously charged with threatening to cause death to her on or about December 1, 1991.

Defence Theory:

Wilton testified in his own defence. He testitied that he was in fact present when Ms. Innsis was killed. He testified that Ms. Iona Davis killed Ms. Innis after he and Delroy Benjamin were involved in a fight and Ms. Innis attempted to intervene and threatened to call the police. Wilton testified that Ms. Davis struck Ms. Innis with a meat-cleaver in the neck area. He testified that there was considerable blood and this is how Ms. Davis' blood ended up on him. It is of some significance that although Iona and Delroy were a couple that in and aroud the time of her death Wilton maintains that she was carrying Delroy's child.

Preliminary Inquiry:

The first degree murder charge against Wilton was subjected to a preliminary inquiry under the Criminal Code of Canada from April, 1992 until December 1st, 1992 before His Honour Judge Bentley in what is now the Ontario Court of Justice at College Park in Toronto. A preliminary inquiry is a pre-trial proceeding in which the prosecution is required to lead evidence before a judge to establish that there is sufficient evidence to send the case to trial in the Superior Court. The standard of proof is quite low. The prosecution needs simply establish that there is some evidence upon which a properly instructed jury could return a finding of guilt. The preliminary inquiry judge does not weigh the evidence - that is the preliminary inquiry judge does not make credibility findings. His or her role is simply to receive the evidence in support of the charge and determine whether there is some evidence upon which a properly instructed jury could find guilt. The finding that there is sufficient evidence is referred to as a commital order.

Justice Bentley Expressed Reservations on the Record:

A transcript from the preliminary inquiry indicates that on July 29th, 1992 the court heard submissions on commital from counsel for the parties. This transcript reveals the following statement by the preliminary inquiry judge:

THE COURT: I've - I want to review the evidence again. I'm have some difficulties with this matter as you're probably aware. I want to review it in light of your submissions. I don't think I'm in a position to make a decision today."

Justice Bentley Reasserts his
Reservations and adjourns again:

On August 10th, 1992 Justice Bentley told the parties in open court that there was not sufficient evidence to commit Wilton Smith to stand trial on the charge of first degree murder. In simple terms the court told the prosecution that there was no evidence linking Wilton Smith to the crime. Here is an excerpt of one of his quotes from the transcript:

THE COURT: But, certainly, well, we would have a disagreement; I can't see it, quite frankly. There's all sorts of evidence which doesn't amount to real evidence, in my opinion. It amount to a great lot of suspicion, but suspicion isn't real evidence, and although the threshold is very low, there's no doubt about it, in a preliminary inquiry there has to be some real evidence linking the accused to the crime and I --

He later goes on to say the following:

THE COURT: Well, I haven't made a decision, okay I'll be candid with you. I have not made a decision. But is was my feeling, after reviewing the evidence, that I had sufficient concern that I wanted to address both of you in open court and advise you of my position....

THE COURT: So I understand it's a bit unusual, but it's a very serious charge and I feel that I am within my rights to do what I'm saying to you today.

The proceeding was accordingly ajourned to September 14th, 1992 so that the prosecution could put forward the evidence which would tie Wilton Smith to the crime as the preliminary judge recommended.


In Part II I will pick up from where I left off.

Note: This commentary is written for the sole purpose of encourgaging debate on a matter of public importance and trying to shed light on what I believe having reviewed this case to be a miscarriage of justice. Truth can be surpressed but it can never be destroyed. In a similar way to how truth is a full defence to an allegation of defamation - truth is an answer to a wrongful prosecution. A jury's findings of fact is only as good as the reliability of the evidence put to it. If part or all of this evidence is flawed on a material point it must follow that the decision is wrong.

Anyone with information to share is encourged to contact me - Ernest J. Guiste. Tel. (416) 364-8908 or

Sunday, June 27, 2010

Special Amendment to Public Works Proctection Act Unconstitutional

The recent decision by the Ontario Government to increase police arrest powers for the G20 Summit is unconstitutional and a callous disregard for fairness and fundamental justice. At the request of Toronto Police Chief, Bill Blair, the Ontario Government passed legislation authorizing police to request identification documents of persons within a prescribed proximity to the G20 site and to arrest and detain those who fail to comply but faild to formally publish these amendments to the public.

It is a well established principle in our system of law that in order for a law to have legal effect those affected by it must have fair notice of its enactment. The simple rationale for this is that one can not comply with a law that one is not aware of. This is not to say that one's subjective lack of knowledge will afford one a defence. In our system the passing of a law takes legal effect once it is published in a recognized publication like the Ontario Gazette. Once the law is so published the community are deemed to have knowledge of it.

The recent statutory amendment increasing police arrest powers has yet to be published in this fashion. My search of e laws - an Ontario Government website dedicaed to publishing the laws and regulations of the province revealed that amendment was filed on June 14th, 2010 and came into effect on June 21st, 2010. Assuming these facts to be correct - there is a clear absence of fair notice of this very fundamental change to our law.

A few years ago I had the opportunity to raise this defence when I defended a man charged with importing khat. Khat is a substance which is popular in the Somali and Kenyan communities. It is a plant which is chewed and is said to be a stimulant. At one time this substance was legal to use and import into Canada. However, a week or so prior to my former client's arrest the law was changed but the published law was not yet available at the Brampton Public Library. Charges against my client were stayed following a Charter Application alleging a lack of fair notice and thus a violaiton of the Charter. While the Canada Gazette publication in my client's case was published but not yet in the shelf at the Brampton Public Library and therefore not accessible to the public, the subject amendment to the Public Works Act does not appear to have been published as yet.

It is very easy and tempting to attempt to justify this serious breach of fair notice and fundamental justice in the name of public safety. However, this type of thinking misses the point. Faced with two very important competing interests, namely, public safety and the individual's right to liberty the Constitution and the rule of law dictate that such a change in the law be subject to the scrutiny of debate in the legislature. The inherent dangers involved in this type of law making should be obvious. Where does it end ? Who decides on the question of "public safety" and what is the criteria ? Government lack of respect or attention to fundamental justice and fair notice is like a cancer. It spreads and destroys if not cured !

EJ Guiste

Note: This commentary is written for the sole purpose of encouraging public debate on an issue of public importance. Democracy works better when people are informed and they participate.