Part II: No Transcript of Evidence Supporting Commital

In our last segment the preliminary inquiry judge specifically adjourned the proceedings in order to permit the Crown to adduce evidence linking Wilton Smith to the murder. Unfortunately, no one will ever be able to scrutenize the evidence which was said to have been presented at Wilton Smith's preliminary inquiry and which resulted in him being commmitted to stand trial on a charge of first degree murder in the Superior Court of Ontario. This is so because the Ministry of the Attorney General for Ontario either destroyed these documents pursuant to its "retention policy" or they lost them. Their position is somewhat ambiguous to me.


The Ministry Retention Policy:

When Wilton Smith retained me to look into the propriety of his conviction I naturally set out to review the evidence adduced at the preliminary inquiry and then move on from there. I could not believe the responses I received when I trieed to recover the transcripts and begin my work.

Ministry of the Attorney General's
letter dated February 28,
2008:

..."please be advised that all of the dates you requested are past the retention schedule set out by the Ministry of the Attorney General. Therefore, transcripts of the dates you requested cannot be produced in this matter."

Yours very truly,


Lynette McHale
Acting Supervisor


Follow up to Mr. Paul Lindsay,
Assistant Deputy Attorney General:

"I woudl be pleased if you would be good enough to provide me with an answer to the following questions:

1. What is the Retention Schedule which is referred to above by your agent ?

2. May I please have a copy of the said Retention Policy ?

3. What is the existing law in Ontario with respect to retaining or preserving transcripts on first degree murder cases or homicide cases generally ?

4. May I have a copy of that policy ?"


Ministry of the Attorney
General's letter dated March 4, 2009:

"Staff in the Toronto Region have now confirmed that tapes of Mr. Smith's preliminary inquiry are available if a transcript is still required. In order to obtain a transcript, please contact Aldo Bruno, Manager of Court Operations, 44 Yonge Street, College Park Building, 2nd Floor, Toronto, Ontario, M5B 2H4....If you still require information about our retention schedules, please let me know."

Yours very truly,


Diana Hunt
Director, Criminal/POA Policy and Programs Branch


Further response on behalf
of the Honourable
Christopher Bentley dated April 9, 2009:

"The Attorney General has requested that I respond to you on his behalf. Please be advised that your request requires further investigation. I have commenced this investigation and will be providing you with a detailed response in the near future.

Thank you again for writing.

Sincerely,


Lou Bartucci, A/Director Court Operations


Ministry of the Attorney General
expresses regret for lack of transcripts:

By way of letter dated June 30, 2009 Mr. Lou Bartucci concluded his investigation into the availability of the preliminary inquiry transcripts - in particular - the portion said to contain the evidence linking Wilton Smith to the crime. The following is what he wrote:

.."please be advised that the Ministry of the Attorney General has been unsuccessful in our attempts at locating the requested transcripts. Please be assured that staff at all levels of the courts have searched thoroughly in order to locate the transcript, as have staff in the Crown law Office but unfortunately a copy of the trancript or tape could not be found. I understand the importance of having the necessary transcripts in order to proceed with your matter adn I do appologize in advance for any inconvenience this may cuase."

Sincerly,

Lou Bartucci, A/Director, Court Operations


Commentary:

It is troubling to me that the requested transcripts are unavailable. It is even more troubling that I have yet to be provided with a clear answer as to their unavailability. To this day, no one from the Ministry of the Attorney General has provided me with a copy of their so called Retention Policy or provided an answer to the very simple questions I posed to Mr. Linday. I remain receptive to answers to these questions.

Note: This piece is written for the sole purpose of encouraging publice discourse on a matter of public importance. I encourage anyone with information regarding this Retention Policy to contact me without delay.

The Anatomy of a Wrongful Conviction: Wilton Smith's First Degree Murder Prosecution

On April 29th, 1994 my client, Mr. Wilton Smith, was convicted of first degree murder for the death of Patricia Innis in the Superior Court of Justice in Toronto. He has been serving a life sentence ever since. He has consistently maintained his innocence.

In an upcoming three part series I will outline the various flaws in Mr. Smith's prosecution and conviction which in my view call into question his conviction and continued detention.

Of course, I welcome any information which anyone may have that can assist me in assisting Mr. Smith to win his freedom. I may be contacted at:

Ernest J. Guiste, Trial & Appeal Lawyer
700 Bay Street, Suite 606, Box 130
Toronto, Ontario, M5G 1Z6
ejguiste@yahoo.com