Thank you.
My name is Neil Wiberg. It's an honour to appear in front of you.
Just as a little tombstone information for you, I was called to the bar of Alberta in 1984, was appointed QC in 2006 and I transferred to the bar of British Columbia in 2018. I'd also like to say that when I was in the Kamloops office, I was the deputy regional Crown counsel. I was honoured to work with Frank Caputo as one of the prosecutors in our office. He was an excellent prosecutor.
Frank first asked me to talk about how often we receive these types of reports from the minister. In my career, I've only seen one since 1984, and that actually was in this past year. It was a case in British Columbia, in Kamloops, where an individual was convicted of first-degree murder.
It turned out that there was some change in the science of drowning and hypothermia and some recent evidence came from new forensic pathologists that put the first-degree murder conviction in doubt. There's no doubt that this accused committed a sexual assault and killed the victim, but it actually should have been a manslaughter charge rather than a murder charge. The minister made the report and the Court of Appeal reversed the decision and entered a stay on the murder charge.
I've only seen one in my career, both in Alberta and in British Columbia.
I'd also like to say that since I began my career, a number of steps have taken place that I think are very positive and have reduced the chances of wrongful convictions.
First of all is disclosure. When I started out in 1984, all that was provided to the defence was their client's criminal record, their client's statement and a synopsis of the facts. Nothing else was disclosed. Witness statements were not disclosed. Police reports were not disclosed. Police notes were not disclosed. If there was tunnel vision that was obvious from seeing those documents, the defence would have no idea and wouldn't have seen those.
In cases like Morin, Marshall and Milgaard, there wasn't disclosure provided in those days. The Stinchcombe case that came in 1991 and ordered disclosure on all relevant material is very, very helpful.
Number two, DNA has really changed the scope and, in my opinion, has reduced the number of possible wrongful convictions. DNA not only convicts individuals but eliminates individuals.
I had a case when I was in Lac La Biche, a very strong circumstantial case, where there was some hair evidence. I thought there might have been reasonable and probable grounds to lay a charge of murder, but the police came to me and said there could be DNA available, not the nuclear DNA we're associated with, but mitochondrial DNA. There were hair-shafts in the victim's hands. As well, from a general warrant, there was hair plucked from the potential accused. The mitochondrial DNA was not available to be analyzed in Canada, but it could be in North Carolina.
As the Crown responsible for the case, I said: “This matter has to be examined. Send the DNA to North Carolina.” The samples were sent to North Carolina and came back as not a match. Think of it. This individual was inconvenienced for 15 minutes while a DNA sample was taken, and it turned out that he was never charged because the DNA was not a match. The acceptance of DNA as a science, the DNA warrant regime and the DNA data bank have greatly helped, in my opinion, to reduce the chances of wrongful convictions.
Third, there are cameras everywhere now, so you don't always have to rely on eyewitness testimony. The fact that there are cameras everywhere is very helpful in prosecuting cases and getting to the truth. I had a sad case in Edmonton where an 80-year-old woman was run down by a city bus. We suspected the bus driver might have been speaking on a cellphone. The video showed clearly that the woman was walking within a crosswalk and that she had waited for the walk light to come on.
I'd also mention that photo lineups have been changed and also that in-custody informants are rarely used any more. Those were a big problem. Also, provinces have adopted tunnel vision rules.
I was the Crown in the Mayerthorpe case. I spent two years giving pre-charge advice to the police. Once charges were laid, I was no longer the Crown, because—