I have now obtained a copy of the March 12th, 1992 stories published by both the Toronto Sun and Toronto Star on the Wilton Smith case. A photograph of Wilton Smith in prominently published on both publications. The Toronto Sun version has the following words under the photo: "Wilton Smith Surrendered". The photo of Mr. Smith appears to be the same photo in each publication.
The above information begs answers to the following questions:
1. Was Mr. Pryce a reader of either the Toronto Star or
Toronto Sun ?
2. Was the photo of Wilton Smith used in the line-up the
same photo which was published in the newspapers ?
3. What was the exact instruction provided to Mr. Pryce
when the line-up was shown to him ?
Note: This publication is made for the sole purpose of shedding light on an issue of public importance. Anyone having information on the issues raised in this publication are invited to contact the writer or the Toronto Police Service - Chief William Blair.
Wednesday, October 27, 2010
Friday, October 22, 2010
I had a dream: A law to protect women and children
I had a horrible dream the other night. It was in fact a very disturbing nightmare. I dreamt that Russell Williams, Robert Picton, Paul Bernardo, Clifford Olsen, and Ted Bundy were men of African descent - aka - Black. In my dream the government took drastic and draconian action and passed leglislation "designed to protect women and children." The legislation provided for the following:
An Act to Protect Women and Children:
Whereas emperical evidence demonstrates that men of African
descent present a clear and present danger to women and children
and that less intrusive means have proven to be ineffective in
remedying this pressing and serious social problem the
legislature hereby passes the within enactment. The following
is a summary of this law:
1. Segregation -men of African descent shall be banned
from owning property unless the government provides
express authorization;
2. Identification - all men of african descent convicted
of a designated sex crime or homocide shall be branded
with a P on their foreheads;
3. Identification - all men of african descent shall carry
a state issued i.d. card which they must show to police
on demand;
4. Incarceration - all men of african descent convicted
of a designated crime shall be jailed for life with no
chance of parole until their death.
I was quite relieved to wake up and find that this was all a dream. However, it has forced me to think about the following pressing questions:
1. Are law and policy makers doing enough to protect
women and children from the likes of Williams, Bernardo
Olsen, Pickton, and Bundy ?
2. Would the response be different if these men were Black ?
3. How does the budget dedicated to guns and gangs compare
to the budget dedicated to protection of women and children ?
What do you think ?
NOTE: This piece is written for the sole purpose of encouraging debate on a matter of public importance. Democracy works best when ideas are freely exchanged.
An Act to Protect Women and Children:
Whereas emperical evidence demonstrates that men of African
descent present a clear and present danger to women and children
and that less intrusive means have proven to be ineffective in
remedying this pressing and serious social problem the
legislature hereby passes the within enactment. The following
is a summary of this law:
1. Segregation -men of African descent shall be banned
from owning property unless the government provides
express authorization;
2. Identification - all men of african descent convicted
of a designated sex crime or homocide shall be branded
with a P on their foreheads;
3. Identification - all men of african descent shall carry
a state issued i.d. card which they must show to police
on demand;
4. Incarceration - all men of african descent convicted
of a designated crime shall be jailed for life with no
chance of parole until their death.
I was quite relieved to wake up and find that this was all a dream. However, it has forced me to think about the following pressing questions:
1. Are law and policy makers doing enough to protect
women and children from the likes of Williams, Bernardo
Olsen, Pickton, and Bundy ?
2. Would the response be different if these men were Black ?
3. How does the budget dedicated to guns and gangs compare
to the budget dedicated to protection of women and children ?
What do you think ?
NOTE: This piece is written for the sole purpose of encouraging debate on a matter of public importance. Democracy works best when ideas are freely exchanged.
Wednesday, October 6, 2010
Did comments by trial judge(Justice Ewaschuk)invite guilty verdict for Wilton Smith ?
Recommendation 81 of the Commission on Proceedings Involving Guy Paul Morin is arguably the most direct and cost-effective antidote to curing the malaise of wrongful convictions in our system of justice. It reads as follows:
"The Government of Canada, upon recommendation of
the Canada Law Reform Commission, should consider
whether the common law should be altered, through
legislative amendment, to limit the ability of a
trial judge to express his or her opinions on
issues of credibility to the jury and further alter
the obligation imposed upon a trial judge to outline
the most significant parts of the evidence for the
jury."
While the common law practice of allowing judges to comment and give their opinion on evidence to the jury may have worked well in the social, economic and educational realities of pre-industrialized English society, it is inconsistent with the basic tenets of our adverserial system and the rule of law. In a criminal jury trial there are four parties, namely, judge, jury, prosecutor and defence counsel. The judge is the judge of the law. His or her role is to see to it that the trial is conducted in accordance with law. The jury is the judge of the facts. Allowing the trial judge to comment on the evidence and provide his or her opinion on it to the jury usurpts the fact-findng function of the jury. The fact that the trial judge informs the jury that they are not bound by his or her opinion does not detract from the potential for harm. The rationale for this is simple. It is impossible to know with certainty what - if any impact - the comments or opinion may have on the jury. The mere possibility that it could influence the jury should be sufficient to justify its abolition. It is for counsel for the prosecution and the defendant to put their version of the facts to the jury for its consideration.
In this session I will attempt to illustrate how the practice of the trial judge providing commentary or opinion on the facts of the case during the charge in the Wilton Smith prosecution may have influenced the jury's finding.
Trial Judge's (Ewaschuk J.)Comments in
R v. Wilton Smith:
"I am turning now to my comments as to the charge.
Let me point out the obvious. The accused has
denied he killed Patricia Innis and no one has
testified that he or she saw the accused do it. Thus,
the real issue is whether the accused or Iona Davis
killled Patricia Innis. This issue is for you to
resolve, if possible, and is not for me to resovle.
I assume for the following commentary that the Crown
has proven beyond a reasonable doubt that the accused
killed Patricia Innis."
"The person who killed Patricia Innis severed her
cervical or neck spine with one blow from a sharp,
heavy instrument. It is a reasonable and logical
inference that that person intended to cause Miss
Innis' death or, in the least, meant to cause her
bodily harm that he knew was likely to cause her
death and was reckless whether death ensued or not.
It is not a mandatory inference, but is the most
likely inference in this case. Simply bring to
bear your assessment of the accused and all of the
evidence of the case in determining whether the
accused's state of mind was such that he had
the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy
instrument by inflicting the one deadly blow to
her neck. I assume then that the accused had the
requisite intent for murder and turn next to the
issue of whether the murder was planned and deliberate."
"Certainly if the accused was the person who sharpened
the machete, if he phoned Delroy Benjamin with the
false promise of a job in order to lure him out of the
apartment and if the accused brought a fake present for
Miss Innis in order t gain entry into the apartment, all
of these factors may be taken into account in determining
whether he had formulated a plan to murder Miss Innis.
As for the question of deliberation, the issue is more
problematic since there is no evidence of what occurred
between the accused adn Miss Innis when he killed her.
It appears that Miss Innis did not cry out so that it is
likely that she was not expecting the blow. If so, they
were also likely not face-to-face quarelling otherwise
she would have expected the blow. She would have seen it
coming. It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a plan to
kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her. That inference is permissive.
It is not mandatory and the Crown must prove those
essential matters beyond a reasonable doubt. The
accused need not prove anything."
"Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed
neither intent requisite for murder. On this scenario,
I agree with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is in the least, guilty of manslaughter."
"At this point, I am going to interject to say this -
that a review of Susan Kern's evidence indicates that
she found blood on both legs, outer legs of the accused's
jeans. If you want that evidence read back to you,
simply ask for it later through the form of a note. The
court reporter will gladly read it for you and would
gladly read any other evidence that you wish to have read
back to you."
"Obviously, the identification was made at least ten to
eleven months after Mr. Pryce had seen the man with the
machete at the machine shop."
Analysis and Commentary:
The following comments from the trial judge's comments to the jury had the potential to influence the jury in finding Wilton Smith guilty:
1. "I assume for the purpose of the following commentary
that the Crown has proven beyond a reasonable doubt
that the accused killed Patricia Innis."
2. "Simply bring to bear your assessment of the accused
and all of the evidence of the case in determining
whether the accused's state of mind was such that he
had the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy instrument
by inflicting the one deadly blow to her neck."
3. "I assume then that the accused had the requisite intent
for murder and turn to the issue of whether the murder
was planned and deliberate."
4. "It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a
plan kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her."
5. "Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed neither
intent requisite for murdr. On this scenario, I agree
with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is, in the least, guilty of manslaughter."
6. "Obviously, the indentification was made at least ten
to eleven months after Mr. Pryce had seen the man with
the machete at the machine shop."
7. "At this point, I am going to interject to say this - that a review of Susan Kern's evidence indicates
that she found blood on both legs, outer legs of
the accused's jeans. If you want that evidence
read back to you, simply ask for it later through
the form of a note. The court reporter will
gladly read it for you and would gladly read any
other evidence that you wish to have read back to
you."
I have thought long and hard to find some valid purpose in support of the seven
above-noted comments by the trial judge on the evidence and with the greatest of respect I am unable to find one. Why the assumption of guilt in statements 1-3 ?
What exactly is the message the trial judge is conveying to the jury in statement
4 ? These comments appear to be pointing out an outcome to the jury which points to guilt. This conclusion is bolstered by the fact that portion of the trial transcripts which is headed comments does not invite a conclusion of acquittal anywhere. Points 6 and 7 are consistent with this. In point 6 the evidence as to when Mr. Pryce made his observations was a fact capable of raising reasonalbe doubt since Mr. Pryce's own evidence appears to have been that the observation was made when Wilton Smith was already in police custody. Point 6 effectively deprives Wilton Smith of that doubt.
NOTE: This piece is written for the sole purpose of shedding light on an issue of publice importance and encouraging public discourse on such issues. I invite those who are more qualified than I to share their views and knowledge on the questions raised above.
October 11th, 2010
"The Government of Canada, upon recommendation of
the Canada Law Reform Commission, should consider
whether the common law should be altered, through
legislative amendment, to limit the ability of a
trial judge to express his or her opinions on
issues of credibility to the jury and further alter
the obligation imposed upon a trial judge to outline
the most significant parts of the evidence for the
jury."
While the common law practice of allowing judges to comment and give their opinion on evidence to the jury may have worked well in the social, economic and educational realities of pre-industrialized English society, it is inconsistent with the basic tenets of our adverserial system and the rule of law. In a criminal jury trial there are four parties, namely, judge, jury, prosecutor and defence counsel. The judge is the judge of the law. His or her role is to see to it that the trial is conducted in accordance with law. The jury is the judge of the facts. Allowing the trial judge to comment on the evidence and provide his or her opinion on it to the jury usurpts the fact-findng function of the jury. The fact that the trial judge informs the jury that they are not bound by his or her opinion does not detract from the potential for harm. The rationale for this is simple. It is impossible to know with certainty what - if any impact - the comments or opinion may have on the jury. The mere possibility that it could influence the jury should be sufficient to justify its abolition. It is for counsel for the prosecution and the defendant to put their version of the facts to the jury for its consideration.
In this session I will attempt to illustrate how the practice of the trial judge providing commentary or opinion on the facts of the case during the charge in the Wilton Smith prosecution may have influenced the jury's finding.
Trial Judge's (Ewaschuk J.)Comments in
R v. Wilton Smith:
"I am turning now to my comments as to the charge.
Let me point out the obvious. The accused has
denied he killed Patricia Innis and no one has
testified that he or she saw the accused do it. Thus,
the real issue is whether the accused or Iona Davis
killled Patricia Innis. This issue is for you to
resolve, if possible, and is not for me to resovle.
I assume for the following commentary that the Crown
has proven beyond a reasonable doubt that the accused
killed Patricia Innis."
"The person who killed Patricia Innis severed her
cervical or neck spine with one blow from a sharp,
heavy instrument. It is a reasonable and logical
inference that that person intended to cause Miss
Innis' death or, in the least, meant to cause her
bodily harm that he knew was likely to cause her
death and was reckless whether death ensued or not.
It is not a mandatory inference, but is the most
likely inference in this case. Simply bring to
bear your assessment of the accused and all of the
evidence of the case in determining whether the
accused's state of mind was such that he had
the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy
instrument by inflicting the one deadly blow to
her neck. I assume then that the accused had the
requisite intent for murder and turn next to the
issue of whether the murder was planned and deliberate."
"Certainly if the accused was the person who sharpened
the machete, if he phoned Delroy Benjamin with the
false promise of a job in order to lure him out of the
apartment and if the accused brought a fake present for
Miss Innis in order t gain entry into the apartment, all
of these factors may be taken into account in determining
whether he had formulated a plan to murder Miss Innis.
As for the question of deliberation, the issue is more
problematic since there is no evidence of what occurred
between the accused adn Miss Innis when he killed her.
It appears that Miss Innis did not cry out so that it is
likely that she was not expecting the blow. If so, they
were also likely not face-to-face quarelling otherwise
she would have expected the blow. She would have seen it
coming. It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a plan to
kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her. That inference is permissive.
It is not mandatory and the Crown must prove those
essential matters beyond a reasonable doubt. The
accused need not prove anything."
"Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed
neither intent requisite for murder. On this scenario,
I agree with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is in the least, guilty of manslaughter."
"At this point, I am going to interject to say this -
that a review of Susan Kern's evidence indicates that
she found blood on both legs, outer legs of the accused's
jeans. If you want that evidence read back to you,
simply ask for it later through the form of a note. The
court reporter will gladly read it for you and would
gladly read any other evidence that you wish to have read
back to you."
"Obviously, the identification was made at least ten to
eleven months after Mr. Pryce had seen the man with the
machete at the machine shop."
Analysis and Commentary:
The following comments from the trial judge's comments to the jury had the potential to influence the jury in finding Wilton Smith guilty:
1. "I assume for the purpose of the following commentary
that the Crown has proven beyond a reasonable doubt
that the accused killed Patricia Innis."
2. "Simply bring to bear your assessment of the accused
and all of the evidence of the case in determining
whether the accused's state of mind was such that he
had the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy instrument
by inflicting the one deadly blow to her neck."
3. "I assume then that the accused had the requisite intent
for murder and turn to the issue of whether the murder
was planned and deliberate."
4. "It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a
plan kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her."
5. "Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed neither
intent requisite for murdr. On this scenario, I agree
with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is, in the least, guilty of manslaughter."
6. "Obviously, the indentification was made at least ten
to eleven months after Mr. Pryce had seen the man with
the machete at the machine shop."
7. "At this point, I am going to interject to say this - that a review of Susan Kern's evidence indicates
that she found blood on both legs, outer legs of
the accused's jeans. If you want that evidence
read back to you, simply ask for it later through
the form of a note. The court reporter will
gladly read it for you and would gladly read any
other evidence that you wish to have read back to
you."
I have thought long and hard to find some valid purpose in support of the seven
above-noted comments by the trial judge on the evidence and with the greatest of respect I am unable to find one. Why the assumption of guilt in statements 1-3 ?
What exactly is the message the trial judge is conveying to the jury in statement
4 ? These comments appear to be pointing out an outcome to the jury which points to guilt. This conclusion is bolstered by the fact that portion of the trial transcripts which is headed comments does not invite a conclusion of acquittal anywhere. Points 6 and 7 are consistent with this. In point 6 the evidence as to when Mr. Pryce made his observations was a fact capable of raising reasonalbe doubt since Mr. Pryce's own evidence appears to have been that the observation was made when Wilton Smith was already in police custody. Point 6 effectively deprives Wilton Smith of that doubt.
NOTE: This piece is written for the sole purpose of shedding light on an issue of publice importance and encouraging public discourse on such issues. I invite those who are more qualified than I to share their views and knowledge on the questions raised above.
October 11th, 2010
Tuesday, September 28, 2010
LESSONS FROM MORIN INQUIRY OFFER HOPE TO WILTON SMITH AND OTHERS
"Guy Paul Morin was 25 years old
at the time of his arrest.
He had no criminal record.
He lived with his parents in
Queensville, Ontario. He had a
grade 12 education. He had
attended various courses in
auto upholstery, spray painting,
gas fitting, air conditioning and
refrigeration. He worked as
a finishing sander with a furniture
manufacturer in October 1984, when
Christine Jessop disappeared.
His acquittal by the Court of Appeal
on January 23, 1995 was based on
fresh DNA evidence which established
that he was not the donor of semen
stains found on Christine Jessop's
underwear. Senior Crown Counsel and
then the Attorney General of Ontario
conceded that Mr. Morin was innocent,
and apologized to him for the 10-year
ordeal he and his family had undergone.
Ultimately,compensation was paid to him
and his parents by the Government of Ontario."
The above quote is taken from the Executive Summary and Recommendations of the Commission on Proceedings Involving Guy Paul Morin. That commission was established by the Government of Ontario to inquire into the investigation of the death of Christin Jessop and the prosecution of the charge that Guy Paul Morin murdered Christine Jessop. The Commission made a number of thoughtful recommendations with a view to preventing similar miscarriages of justice in the future. A number of those recommendations provide invaluable insight, context and credibility to the theory that Wilton Smith was wrongly convicted of first degree murder in 1994 and that his conviction ought to vacated. In this issue I will outline a key recommendation from the Commission on Proceedings Involving Guy Paul Morin which is applicable to the Wilton Smith investigation and prosecution - namely - education respecting tunnel vision.
Recommendation 74:
Education respecting tunnel vision
"One component of educational programming
for police and Crown counsel should be the
identification and avoidance of tunnel vision.
In this context, tunnel vision means the single-
minded and overly narrow focus on a particular
investigative or prosecutorial theory, so as to
unreasonably colour the evaluation of information
received and one's conduct in response to that
information."
Analysis:
Wilton Smith was convicted of first degree murder following a jury trial in April 1994 with Justice Ewaschuk. No one testified to seeing him commit the act. No murder weapon was ever recovered. He testified in his own defence that the person who committed the act was Ms. Iona Davis - a crown witness who claims to have found the body and called the police. She did not testify to witnessing Wilton Smith commit murder.
You will recall that the preliminary inquiry judge told the lawyer representing the prosecution when they moved for committal on the charge that he did not find that there was any evidence linking Wilton Smith to the crime. The parties adjourned the proceedings and resumed in order that the prosecution would adduce this evidence linking Wilton Smith to the crime. Wilton Smith was committed to stand trial but we will never know what that evidence was since the transcripts of that important part of the proceedings were destroyed pursuant to the Ministry of the Attorney General of Ontario's Retention Policy.
Joseph Pryce did not
testify at the preliminary
inquiry:
Joseph Pryce - the Crown witness - who testified to seeing Wilton Smith come into his shop to sharpen a machete had his first contact with police investigators on January 25th, 1994. This was five days following Wilton Smith's first attendance in Superior Court after being committed to stand trial for first degree murder after a judge stated clearly that there was no evidence linking him to the crime.
Was Joseph Pryce
the missing link ?
"In this case you don't have to look
very far. You look at the very manner
in which Patricia Innis died, a fact
ladies and gentlemen, that is not in
in this case. Can't be in dispute.
So what the defence do dispute is that
the accused picked out - that Joseph
Pryce picked out the accused."
The reasonable conclusion to be drawn from the above-quoted words of the prosecutor with respect to the purpose and function of Mr. Pryce's testimony is that his evidence is indeed the missing link. Patricia Innis was killed when her neck was severed by a sharp instrument. Joseph Pryce 'picked out" Wilton Smith as a person who attended his shop to sharpen a machete therefore he is the killer.
Classic tunnel vision:
The above reasoning represents classic tunnel vision. The deceased was killed by a sharp instrument to her neck. A witness is brought in by investigators suggesting he saw Mr. Smith come into his shop to sharpen a machete. The witness is very sketchy on identification features and when he made the observation but somehow those significant frailties in his evidence are glossed over or overlooked.
In this particular case the evidence tends to suggest that tunnel vision appears to have made its way into the trial judge's charge to the jury. Notwithstanding Mr. Pryce's testimony in cross-examination that his observation was made six months ago the learned trial judge expressly told the jury otherwise. He told them, "obviously the observation was made at least 10 - 11 months after Mr. Pryce had seen the man with the machete at the machine shop."
Commentary:
Joseph Pryce's testimony "linking" Wilton Smith to the murder of Patricia Innis is akin to the informer evidence tendered against Guy Paul Morin - both should have been the subject of greater scrutiny and properly excluded from evidence. If Mr. Pryce saw a man come into his shop to sharpen a machete when Wilon Smith was already in police custody for the crime it stands to reason that he "picked out" the wrong man. The trial records that I have reviewed to date suggests that Wilton Smith was already in custody for the crime when Mr. Pryce puts him as sharpening a machete at his shop.
In the next issue I will discuss Recommendation 81: Outline of facts and personal opinions of the trial judge. In Ontario the trial judge is entitled to provide his or her opinion to the jury and to outline the significant facts.
Note: This piece is written for the sole purpose of encouraging public discourse on an issue of public importance. Democracy and the rule of law works better when the players are all informed.
at the time of his arrest.
He had no criminal record.
He lived with his parents in
Queensville, Ontario. He had a
grade 12 education. He had
attended various courses in
auto upholstery, spray painting,
gas fitting, air conditioning and
refrigeration. He worked as
a finishing sander with a furniture
manufacturer in October 1984, when
Christine Jessop disappeared.
His acquittal by the Court of Appeal
on January 23, 1995 was based on
fresh DNA evidence which established
that he was not the donor of semen
stains found on Christine Jessop's
underwear. Senior Crown Counsel and
then the Attorney General of Ontario
conceded that Mr. Morin was innocent,
and apologized to him for the 10-year
ordeal he and his family had undergone.
Ultimately,compensation was paid to him
and his parents by the Government of Ontario."
The above quote is taken from the Executive Summary and Recommendations of the Commission on Proceedings Involving Guy Paul Morin. That commission was established by the Government of Ontario to inquire into the investigation of the death of Christin Jessop and the prosecution of the charge that Guy Paul Morin murdered Christine Jessop. The Commission made a number of thoughtful recommendations with a view to preventing similar miscarriages of justice in the future. A number of those recommendations provide invaluable insight, context and credibility to the theory that Wilton Smith was wrongly convicted of first degree murder in 1994 and that his conviction ought to vacated. In this issue I will outline a key recommendation from the Commission on Proceedings Involving Guy Paul Morin which is applicable to the Wilton Smith investigation and prosecution - namely - education respecting tunnel vision.
Recommendation 74:
Education respecting tunnel vision
"One component of educational programming
for police and Crown counsel should be the
identification and avoidance of tunnel vision.
In this context, tunnel vision means the single-
minded and overly narrow focus on a particular
investigative or prosecutorial theory, so as to
unreasonably colour the evaluation of information
received and one's conduct in response to that
information."
Analysis:
Wilton Smith was convicted of first degree murder following a jury trial in April 1994 with Justice Ewaschuk. No one testified to seeing him commit the act. No murder weapon was ever recovered. He testified in his own defence that the person who committed the act was Ms. Iona Davis - a crown witness who claims to have found the body and called the police. She did not testify to witnessing Wilton Smith commit murder.
You will recall that the preliminary inquiry judge told the lawyer representing the prosecution when they moved for committal on the charge that he did not find that there was any evidence linking Wilton Smith to the crime. The parties adjourned the proceedings and resumed in order that the prosecution would adduce this evidence linking Wilton Smith to the crime. Wilton Smith was committed to stand trial but we will never know what that evidence was since the transcripts of that important part of the proceedings were destroyed pursuant to the Ministry of the Attorney General of Ontario's Retention Policy.
Joseph Pryce did not
testify at the preliminary
inquiry:
Joseph Pryce - the Crown witness - who testified to seeing Wilton Smith come into his shop to sharpen a machete had his first contact with police investigators on January 25th, 1994. This was five days following Wilton Smith's first attendance in Superior Court after being committed to stand trial for first degree murder after a judge stated clearly that there was no evidence linking him to the crime.
Was Joseph Pryce
the missing link ?
"In this case you don't have to look
very far. You look at the very manner
in which Patricia Innis died, a fact
ladies and gentlemen, that is not in
in this case. Can't be in dispute.
So what the defence do dispute is that
the accused picked out - that Joseph
Pryce picked out the accused."
The reasonable conclusion to be drawn from the above-quoted words of the prosecutor with respect to the purpose and function of Mr. Pryce's testimony is that his evidence is indeed the missing link. Patricia Innis was killed when her neck was severed by a sharp instrument. Joseph Pryce 'picked out" Wilton Smith as a person who attended his shop to sharpen a machete therefore he is the killer.
Classic tunnel vision:
The above reasoning represents classic tunnel vision. The deceased was killed by a sharp instrument to her neck. A witness is brought in by investigators suggesting he saw Mr. Smith come into his shop to sharpen a machete. The witness is very sketchy on identification features and when he made the observation but somehow those significant frailties in his evidence are glossed over or overlooked.
In this particular case the evidence tends to suggest that tunnel vision appears to have made its way into the trial judge's charge to the jury. Notwithstanding Mr. Pryce's testimony in cross-examination that his observation was made six months ago the learned trial judge expressly told the jury otherwise. He told them, "obviously the observation was made at least 10 - 11 months after Mr. Pryce had seen the man with the machete at the machine shop."
Commentary:
Joseph Pryce's testimony "linking" Wilton Smith to the murder of Patricia Innis is akin to the informer evidence tendered against Guy Paul Morin - both should have been the subject of greater scrutiny and properly excluded from evidence. If Mr. Pryce saw a man come into his shop to sharpen a machete when Wilon Smith was already in police custody for the crime it stands to reason that he "picked out" the wrong man. The trial records that I have reviewed to date suggests that Wilton Smith was already in custody for the crime when Mr. Pryce puts him as sharpening a machete at his shop.
In the next issue I will discuss Recommendation 81: Outline of facts and personal opinions of the trial judge. In Ontario the trial judge is entitled to provide his or her opinion to the jury and to outline the significant facts.
Note: This piece is written for the sole purpose of encouraging public discourse on an issue of public importance. Democracy and the rule of law works better when the players are all informed.
Tuesday, September 14, 2010
Crown: Joseph Pryce Trustworthy - Justice Ewaschuk Appears to "Correct" the Timeline of his Observation
The lawyer representing the Crown made no reference to the very live issue of when Mr. Pryce's observations of the man sharpening the machete was made in his closing address to the jury. He skillfully made the following points to the jury:
1. Joseph Price got it right,
2. Joseph Pryce is an honest, hard working,
decent citizen with no axe to grind,
with nothing against the accused,
3. you can trust him; and
4. the deceased died by a sharp instrument to her neck.
Excerpt from Smith
Appeal factum:
"It is respectfully submitted that the misstatement of fact
regarding when Mr. Pryce saw the man with the machete was
highly prejudicial. One of the primary frailties of
identification is timing. If someone could not have been
there because they were somewhere else, i.e. alibi, this is
strong evidence of false identification. Here, at the times
given by Mr. Pryce, the Appellant was already arrested and in
custody. By incorrectly stating that Mr. Pryce saw the person
10 or 11 months before the police came, the learned trial judge
effectively took away this alibi. (R v. Quercia (1990) 60 C.C.C.
(3d) 380 (Ont.C.A.)"
Excerpt from Crown
Counsel's closing
statement to jurors:
"Joseph Pryce isn't a witness who came forward, who
volunteered, who was anxious to be here. He saw a picture
on tv - the accused. His picture was released to the t.v.
It's a sideways black and white just like Joseph Pryce said.
Joesph Pryce is also a careful man. He said, "I couldn't tell.
I couldn't be fair from that picture. It wasn't good enough
for him to identify the person. The caution that you have to
use in your justy room Joesph Pryce was using as well ladies
and gentlemen. He was being as cautious as you hae to be after
listen to what his lordship will tell you. He exercised some
restraint and he said, I looked at that picture and I thought
there's the guy who came in and sharpened the machete, but I
wasn't sure. Joseph Pryce wanted to be fair. Can you have any
doubt, ladies and gentlemen, that Joseph Pryce is anything but
an honest, hard working, decent citizen with no axe to grind,
with nothing against the accused ? He just came here and told
you exactly what he saw and did not get it wrong."
The Crucial Misstatement
by the trial judge (Justice Ewaschuk):
"Notwithstanding those limitations, Mr. Pryce identified
the accused later from a 12 man photo array as the
person with the machete. Obviously, the identification
was made at least ten to eleven months after Mr. Pryce
had seen the man with the machete at the machine shop."
COMMENTARY:
The identification evidence tendered by the prosecution against Wilton Smith at his trial for first degree murder comes dismally short of the standard of a fair trial. Clearly, Joseph Pryce did not testify at the preliminary inquiry. This is clear because police maintain they attended at his shop on January 25th, 1993 - a mere five days following Mr. Smith's first attendance in Superior Court on January 20th, 1993. Mr. Pryce or the Crown seems to suggest in his closing at least that Mr. Pryce may have responded to a photo of Mr. Smith which was published on the news. The following questions come to my mind and require answers:
1. Was there in fact any publication of Mr. Smith's
photo by any Toronto area broadcasters in and
around the time of his arrest ?
2. If there wasn't Mr. Pryce's testimony is unreliable.
3. How was the initial police contact made ?
4. Reading between the lines in the Crown's closing on this
point one is left with the distinct impression that Mr.
Pryce saw the photo on tv and contacted the police who
then attended with their photo-lineup. Was there in fact
evidence on this point called at the trial ?
5. What does Crown counsel mean by this - "Joseph Pryce
isn't a witness who came forward, who volunteered, who
was anxious to be here. He saw a picture on tv - the
accused. His picture was released to tv. It's a sideways
black and white just like Joseph Pryce said. Joseph Pryce
is also a careful man. He said, I couldn't tell. I couldn't
be fair from that picture. It wasn't good enough for him to
identify the person. The caution that you have to use in your
jury room Joseph Pryce was using as well, ladies and gentlemen."
6. Did the police also show Mr. Pryce the picture they maintain
was published on tv along with the 12 man photo-lineup on
January 25th, 1993 ?
7. Did the police show the photo array shown to Mr. Pryce to
anyone else ?
8. Did the police make any inquiries as to when Mr. Pryce made
his observations ?
September 15th, 2010
E.J. Guiste.
1. Joseph Price got it right,
2. Joseph Pryce is an honest, hard working,
decent citizen with no axe to grind,
with nothing against the accused,
3. you can trust him; and
4. the deceased died by a sharp instrument to her neck.
Excerpt from Smith
Appeal factum:
"It is respectfully submitted that the misstatement of fact
regarding when Mr. Pryce saw the man with the machete was
highly prejudicial. One of the primary frailties of
identification is timing. If someone could not have been
there because they were somewhere else, i.e. alibi, this is
strong evidence of false identification. Here, at the times
given by Mr. Pryce, the Appellant was already arrested and in
custody. By incorrectly stating that Mr. Pryce saw the person
10 or 11 months before the police came, the learned trial judge
effectively took away this alibi. (R v. Quercia (1990) 60 C.C.C.
(3d) 380 (Ont.C.A.)"
Excerpt from Crown
Counsel's closing
statement to jurors:
"Joseph Pryce isn't a witness who came forward, who
volunteered, who was anxious to be here. He saw a picture
on tv - the accused. His picture was released to the t.v.
It's a sideways black and white just like Joseph Pryce said.
Joesph Pryce is also a careful man. He said, "I couldn't tell.
I couldn't be fair from that picture. It wasn't good enough
for him to identify the person. The caution that you have to
use in your justy room Joesph Pryce was using as well ladies
and gentlemen. He was being as cautious as you hae to be after
listen to what his lordship will tell you. He exercised some
restraint and he said, I looked at that picture and I thought
there's the guy who came in and sharpened the machete, but I
wasn't sure. Joseph Pryce wanted to be fair. Can you have any
doubt, ladies and gentlemen, that Joseph Pryce is anything but
an honest, hard working, decent citizen with no axe to grind,
with nothing against the accused ? He just came here and told
you exactly what he saw and did not get it wrong."
The Crucial Misstatement
by the trial judge (Justice Ewaschuk):
"Notwithstanding those limitations, Mr. Pryce identified
the accused later from a 12 man photo array as the
person with the machete. Obviously, the identification
was made at least ten to eleven months after Mr. Pryce
had seen the man with the machete at the machine shop."
COMMENTARY:
The identification evidence tendered by the prosecution against Wilton Smith at his trial for first degree murder comes dismally short of the standard of a fair trial. Clearly, Joseph Pryce did not testify at the preliminary inquiry. This is clear because police maintain they attended at his shop on January 25th, 1993 - a mere five days following Mr. Smith's first attendance in Superior Court on January 20th, 1993. Mr. Pryce or the Crown seems to suggest in his closing at least that Mr. Pryce may have responded to a photo of Mr. Smith which was published on the news. The following questions come to my mind and require answers:
1. Was there in fact any publication of Mr. Smith's
photo by any Toronto area broadcasters in and
around the time of his arrest ?
2. If there wasn't Mr. Pryce's testimony is unreliable.
3. How was the initial police contact made ?
4. Reading between the lines in the Crown's closing on this
point one is left with the distinct impression that Mr.
Pryce saw the photo on tv and contacted the police who
then attended with their photo-lineup. Was there in fact
evidence on this point called at the trial ?
5. What does Crown counsel mean by this - "Joseph Pryce
isn't a witness who came forward, who volunteered, who
was anxious to be here. He saw a picture on tv - the
accused. His picture was released to tv. It's a sideways
black and white just like Joseph Pryce said. Joseph Pryce
is also a careful man. He said, I couldn't tell. I couldn't
be fair from that picture. It wasn't good enough for him to
identify the person. The caution that you have to use in your
jury room Joseph Pryce was using as well, ladies and gentlemen."
6. Did the police also show Mr. Pryce the picture they maintain
was published on tv along with the 12 man photo-lineup on
January 25th, 1993 ?
7. Did the police show the photo array shown to Mr. Pryce to
anyone else ?
8. Did the police make any inquiries as to when Mr. Pryce made
his observations ?
September 15th, 2010
E.J. Guiste.
Sunday, September 12, 2010
MR. PRYCE: THE CROWN'S "STAR" WITNESS
Earlier in this series the statement by the preliminary inquiry judge to the the prosecution was shared with you. The judge told the prosecution in no uncertain terms that they lacked evidence connecting Wilton Smith to the murder of Patricia Innis. The proceeding was adjourned for the prosecution to adduce some evidence linking Wilton Smith to the crime. Wilton Smith was in fact committed to stand trial on December 1st, 1992 but the evidence heard at the continuation dates of November 30th and December 1st, 1992 have either been destroyed or lost according to the Ministry of the Attorney General for Ontario.
You will recall as well that the deceased's head was severed with a sharp instrument. No one witnessed Wilton Smith commit the killing.
Police locate Mr. Pryce
two months post committal:
Mr. Pryce works in a store in North York which, among other things, sharpens knives. Police maintain that they attended at his store on January 25th, 1993, showed him some photographs and he identified Wilton Smith as having attended his store to sharpen a machete. Mr. Pryce was called by the prosecution and he testified that a man attended his store to sharpen a machete, he was shown some pictures by the police and he picked out Wilton Smith's as the man who attended at his store to sharpen the machete. As remarkable as it sounds this is exactly how it played out.
Serious and profound
flaws in Mr. Pryce's
evidence:
Mr. Pryce was unable to elaborate on any specific characteristic of the man he claimed attended at his store to sharpen a machete. In addition and perhaps more significant is that it appears that the man who attended at his store to sharpen the machete did so when Wilton Smith was already in custody for the crime and could not have attended. When questioned by Mr. Smith's lawyer in cross-examination when the man attended at his store he responded that it was six months ago. Six months from January 25th, 1993 would land us in July,1992. The records show that Wilton Smith was arrested on March 11th, 1992 and has remained in custody since that time. He could not have attended when Mr. Pryce says he claims he saw him. It is just impossible.
Ordinarily such effective cross-examination leads to a finding of acquittal. If the star prosecution witness says that he saw the man sharpen the machete in his store when the defendant was in fact already in custody it is an understatement to say that the prosecution case has a serious problem. However, what happens following this brilliant piece of cross-examination soundly calls into question the propriety of Wilton Smith's conviction for the killing of Patricia Innis.
Excerpt from trial judge's(Justice Ewaschuk)
charge to the jury:
"The witness Joseph Pryce testified that the accused
came into his work place, Micron Screw Products in
Downsview, to have his machete sharpened. Mr. Pryce
testified that he had only seen the person with the
machete once before at Caribana and that he did not stay
with him during the whole of the ten to fifteen minutes
the person was there sharpening the machete. Furthermore,
he did not notice a scar on the person's nose and could
only describe him as short and having black hair and black
skin. Notwithstanding those limitations, Mr. Pryce
identified the accused later from a 12 man photo array as
the person with the machete. Obviously, the
identification was made at least ten to eleven
months after Mr. Pryce had seen the man with the
machete at the machine shop."
In relaying the prosecution theory the trial judge made the following statements about Mr. Pryce's identification evidence:
1. "Joseph Pryce is a damning witness against the
accused";
2. "Pryce did not know the accused was out on bail
for charges against Miss Innis";
3. "Pryce did not even know Miss Innis";
4. "Yet he was able to pick the accused out of 12
different black men in the photo array";
5. "The machete, of course, was the perfect sharp,
heavy instrument to have caused the single,
clean slash in Patricia Innis' neck. The blow
was so forceful that it severed her cervical
spine."
Timing of Mr. Pryce's
machete sharpening sighting
a very live issue:
The question of when Mr. Pryce saw the man who the prosecution maintains was Wilton Smith was a very live issue in the trial. This conclusion is irrefutable from the trial judge's summary of the defence position to the jury. The trial judge stated the following to the jury:
As for Joseph Pryce, his identification of the
accused as the man with the machete is
inherently unreliable. He could not give the
police a detailed description of the man,
detected no accent and saw no scar on the man's
nose. At trial, he showed the length of the
machete as being about 23 inches whereas in his
statement to the police he said it was more than
12 inches long. He was not sure when the man
came in with the machete, but said it could have
been about six months before the police came.
The police, of course, saw Mr. Pryce about ten
months after Miss Innis' death. Furthermore,
it appears that City Pulse did not broadcast a
black-white profile of the accused after his
arrest."
Prosecution Response:
In the next session you will be provided with excerpts from the prosecution's closing to the jury. You will see how they address the very serious question of the timing of Mr. Pryce's observations. You will also be presented with excerpts from the appeal factum prepared on behalf of Mr. Smith.
You will recall as well that the deceased's head was severed with a sharp instrument. No one witnessed Wilton Smith commit the killing.
Police locate Mr. Pryce
two months post committal:
Mr. Pryce works in a store in North York which, among other things, sharpens knives. Police maintain that they attended at his store on January 25th, 1993, showed him some photographs and he identified Wilton Smith as having attended his store to sharpen a machete. Mr. Pryce was called by the prosecution and he testified that a man attended his store to sharpen a machete, he was shown some pictures by the police and he picked out Wilton Smith's as the man who attended at his store to sharpen the machete. As remarkable as it sounds this is exactly how it played out.
Serious and profound
flaws in Mr. Pryce's
evidence:
Mr. Pryce was unable to elaborate on any specific characteristic of the man he claimed attended at his store to sharpen a machete. In addition and perhaps more significant is that it appears that the man who attended at his store to sharpen the machete did so when Wilton Smith was already in custody for the crime and could not have attended. When questioned by Mr. Smith's lawyer in cross-examination when the man attended at his store he responded that it was six months ago. Six months from January 25th, 1993 would land us in July,1992. The records show that Wilton Smith was arrested on March 11th, 1992 and has remained in custody since that time. He could not have attended when Mr. Pryce says he claims he saw him. It is just impossible.
Ordinarily such effective cross-examination leads to a finding of acquittal. If the star prosecution witness says that he saw the man sharpen the machete in his store when the defendant was in fact already in custody it is an understatement to say that the prosecution case has a serious problem. However, what happens following this brilliant piece of cross-examination soundly calls into question the propriety of Wilton Smith's conviction for the killing of Patricia Innis.
Excerpt from trial judge's(Justice Ewaschuk)
charge to the jury:
"The witness Joseph Pryce testified that the accused
came into his work place, Micron Screw Products in
Downsview, to have his machete sharpened. Mr. Pryce
testified that he had only seen the person with the
machete once before at Caribana and that he did not stay
with him during the whole of the ten to fifteen minutes
the person was there sharpening the machete. Furthermore,
he did not notice a scar on the person's nose and could
only describe him as short and having black hair and black
skin. Notwithstanding those limitations, Mr. Pryce
identified the accused later from a 12 man photo array as
the person with the machete. Obviously, the
identification was made at least ten to eleven
months after Mr. Pryce had seen the man with the
machete at the machine shop."
In relaying the prosecution theory the trial judge made the following statements about Mr. Pryce's identification evidence:
1. "Joseph Pryce is a damning witness against the
accused";
2. "Pryce did not know the accused was out on bail
for charges against Miss Innis";
3. "Pryce did not even know Miss Innis";
4. "Yet he was able to pick the accused out of 12
different black men in the photo array";
5. "The machete, of course, was the perfect sharp,
heavy instrument to have caused the single,
clean slash in Patricia Innis' neck. The blow
was so forceful that it severed her cervical
spine."
Timing of Mr. Pryce's
machete sharpening sighting
a very live issue:
The question of when Mr. Pryce saw the man who the prosecution maintains was Wilton Smith was a very live issue in the trial. This conclusion is irrefutable from the trial judge's summary of the defence position to the jury. The trial judge stated the following to the jury:
As for Joseph Pryce, his identification of the
accused as the man with the machete is
inherently unreliable. He could not give the
police a detailed description of the man,
detected no accent and saw no scar on the man's
nose. At trial, he showed the length of the
machete as being about 23 inches whereas in his
statement to the police he said it was more than
12 inches long. He was not sure when the man
came in with the machete, but said it could have
been about six months before the police came.
The police, of course, saw Mr. Pryce about ten
months after Miss Innis' death. Furthermore,
it appears that City Pulse did not broadcast a
black-white profile of the accused after his
arrest."
Prosecution Response:
In the next session you will be provided with excerpts from the prosecution's closing to the jury. You will see how they address the very serious question of the timing of Mr. Pryce's observations. You will also be presented with excerpts from the appeal factum prepared on behalf of Mr. Smith.
Sunday, August 29, 2010
"VERTICAL MOSAIC" IN RIGHTS ADJUDICATION ?
The Supreme Court of Canada's recent decision in Ward allowing a lawyer whose Charter rights were violated to recover compensation without the prerequiste of proving bad faith or malice on the part of the state actor reminded me of that outstanding scholarly work written by John Porter entitled The Vertical Mosaic. In this scholarly work the late John Porter pointed out that the Canadian mosaic is stratified along racial/cultural and socio-economic grounds with some groups on the top and some groups on the bottom. Porter's groundbreaking work revealed that persons of Bristish origin are overrepresented among the elites.
The question that came to my mind after reading the Supreme Court of Canada's decision in Ward was this - if we assume that the late Professor Porter's theory is sound then it stands to reason that a study of the highest court's pronouncements on rights issues compared by the race/cultural background of the litigants should reveal a similar hierachy.
I am not a scholar. I am not a sociologist. I am a mere rights lawyer. Based on my personal observations and experiences I feel confident in stating the following hypothesis: the adjudication of rights in Canada is far from equal based on race/cultural and socio-economic backround and some groups are at the top and some groups are at the bottom in the same manner as pointed in Porter's Vertical Mosaic. Aboriginal-Canadians and African-Canadians are at the bottom. Canadians of British background are at the top. Some will be tempted to explain this away by pointing to socio-economic factors. Again, I feel confident in stating that even if one controls for socio-economic factors that the hypothesis stands.
A young scholar looking for something worhwhile to study would be wise to tackle this hypothesis. They could start with the Supreme Court of Canada and then the various provincial and federal courts of appeal. At the end their work will contribute to making things a little better for all !
Note: This piece is written for the sole purpose of encouraging debate on a matter of public importance.
The question that came to my mind after reading the Supreme Court of Canada's decision in Ward was this - if we assume that the late Professor Porter's theory is sound then it stands to reason that a study of the highest court's pronouncements on rights issues compared by the race/cultural background of the litigants should reveal a similar hierachy.
I am not a scholar. I am not a sociologist. I am a mere rights lawyer. Based on my personal observations and experiences I feel confident in stating the following hypothesis: the adjudication of rights in Canada is far from equal based on race/cultural and socio-economic backround and some groups are at the top and some groups are at the bottom in the same manner as pointed in Porter's Vertical Mosaic. Aboriginal-Canadians and African-Canadians are at the bottom. Canadians of British background are at the top. Some will be tempted to explain this away by pointing to socio-economic factors. Again, I feel confident in stating that even if one controls for socio-economic factors that the hypothesis stands.
A young scholar looking for something worhwhile to study would be wise to tackle this hypothesis. They could start with the Supreme Court of Canada and then the various provincial and federal courts of appeal. At the end their work will contribute to making things a little better for all !
Note: This piece is written for the sole purpose of encouraging debate on a matter of public importance.
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