Canadian judges getting cautious?

That poisonous plea-bargaining at issue again. It should be outlawed

One of the greatest fears of any criminal court judge must be presiding over a wrongful conviction. This was clearly on the mind of Guelph Superior Court Justice Bruce Durno Wednesday, when he realized he might be about to send an innocent man off to the clink.

Durno was presiding over the case of a Canadian soldier who had earlier pleaded guilty to sexual interference, possessing child pornography and making obscene material. At the time of the plea back in April, the man admitted he took obscene photos of his seven-year-old niece, touched her sexually and had a huge amount of child porn on his computer when police came knocking.

But Wednesday, Durno was confronted with a presentencing report in which the man was quoted saying the allegations were "completely false" and that he pleaded guilty, among other reasons, because he could not afford to defend himself at trial and did not want to put his niece through the ordeal.

This sent red flags popping up all over Durno's court. Before being assured the man admitted his guilt, Durno commented there have been many high-profile wrongful convictions following trials. "A wrongful conviction entered on an inappropriate guilty plea is as bad, if not worse," Durno said.

How true. At approximately the same time Durno was expressing his concerns in a Guelph courtroom, at Osgoode Hall in Toronto defence counsel James Lockyer was addressing that very same theme. Lockyer, primarily known around these parts as the leader of Steven Truscott's Appeal Court team, represents 40-year-old Anthony Hanemaayer, who was finally acquitted this week in a 1987 sex attack on a teenage girl in her own bed.

Unlike Truscott's 1959 murder conviction, which Crown lawyers fought tooth and nail to have upheld, prosecutors in the Hanemaayer case conceded he had not committed the crime and invited the Appeal Court panel to acquit him, more than 20 years after his arrest.

In arguing the Truscott case, Lockyer only had a boatload of proof of sloppy police work and previously ignored alibi evidence to make a pitch for his client. In the Hanemaayer case, he had something a little more easy for the Crown to digest: a confession from notorious serial killer and Scarborough rapist Paul Bernardo. Court heard Bernardo's lawyer contacted police in 2006 to say his client wanted to discuss other crimes. During that interview, Bernardo admitted committing the 1987 crime.

One unusual wrinkle in the Hanemaayer case is that he pleaded guilty midway through his 1989 trial. So he must have done it, right? Not exactly. It turns out the key Crown witness -- the victim's mother -- was mistaken when she swore Hanemaayer was the man she saw sitting on her daughter with a knife in his hand.

In an affidavit filed with the Appeal Court, Hanemaayer said he changed his plea because the evidence was stacked against him. His lawyer at the time said the Crown would offer two years less a day in a reformatory if he pleaded guilty, but would ask for six to 10 years in penitentiary if he was convicted after trial. Hanemaayer, apparently not much of a gambler, pleaded guilty to something he hadn't done and was sent to jail. "Anthony Hanemaayer's wrongful conviction could happen just as easily in 2008 as it did back in 1989," Lockyer said outside Osgoode Hall.

Cases such as Truscott's, and now Hanemaayer's, should make everyone involved in the administration of justice a little more cautious. Durno's approach to the Guelph case this week proves that is happening.

Original report here. As we see here however, there was reasonable objective evidence of guilt and the guy got 16 months for pornography.




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