Tuesday, March 16, 2010

Grossly unjust official foot-dragging by Canadian authorities

How long are 2,100 days? That's six whole years. It's enough time to see a child from birth to the first grade. Or, in Canada's current political climate, enough time for three general elections and a few prorogations.It is a particularly long time if you have to spend it in limbo.

This is how Deveryn Ross has lived the last six years of his life. A successful lawyer, Ross was convicted of fraud in 1995 for his role in a botched restaurant venture in Brandon. He spent less than a year in jail, having been released as a low-risk offender following the Headingley jail riot.

Ross was accused of deceiving investors, some of whom had money taken from their retirement savings without their knowledge. In some cases, signatures were forged to access the money.

For a decade after his release, Ross worked tirelessly to earn a review of his case by the federal justice minister. He discovered that two other men involved in the venture admitted to the Manitoba Securities Commission they had deceived investors. This was not disclosed at his trial.

In May 2004, Ross filed an application under the Criminal Code to have the federal justice minister review his case. In July 2004, the Department of Justice Canada assigned Alex Pringle, a noted Alberta lawyer, to review the case. This was done to avoid a conflict of interest; the prosecutor in Ross's case, Paul Jensen, was now working for the DOJ.

The Free Press published a detailed investigation of the case in March 2005, which included new evidence that supported Ross's claims of innocence. Former Manitoba attorney general Jim McCrae and former Brandon police chief Dick Scott both publicly called for a review of the case.

A few weeks after the story appeared, along with an editorial criticizing delays in the federal process for reviewing claims of wrongful conviction, the man in charge of that process wrote to the Free Press. Kerry Scullion, head of the Criminal Convictions Review Group objected to the Free Press's assertion that these reviews take too long. "Barring any unexpected complications, the review will be completed in a little less than 18 months from the time the application was received," he wrote.

Unfortunately, "unexpected complications" were exactly what unfolded.

The first unexpected complication was Pringle's workload. After agreeing to review the Ross case, Pringle accepted several large and complex assignments, including an extended gig at the judicial inquiry into the wrongful conviction of David Milgaard.

In an interview, Scullion acknowledged Ross's application has taken much longer than anticipated, in part because of Pringle's workload. However, he said that is a risk when you contract with top defence lawyers to review claims of innocence.

That was, however, not the only unexpected complication. Correspondence from Pringle, recently obtained by the Free Press, shows both Manitoba Justice and the Manitoba Securities Commission were tardy in turning over case files. In fact, the MSC fought Ottawa on the release of one key document that, Ross's lawyers believe, shows there was a vigorous debate within the commission about whether to disclose evidence to Ross during his trial. Ross has kept these details from the public out of a concern it would have further delayed his application.

The final unexpected complication was the political environment. There have been three federal elections since Ross filed his application, and one change in government. Elections, and the accompanying cabinet shuffles they bring, tend to reset the game clock on wrongful convictions.

Pringle finished interviewing witnesses in February 2007. A preliminary investigative report was completed in May 2008. A final report was sent to federal Justice in June 2009.

Those reports confirm evidence was not disclosed to Ross prior to his trial. They also confirm new evidence supporting Ross's case. It is now up to Federal Justice Minister Rob Nicholson to determine if all this adds up to a miscarriage of justice.

Often, when faced with a massive failure of process, the authors of that failure try to find reasonable excuses for unreasonable delays.

It seems reasonable there might be delays when you hire a top lawyer with a busy schedule to review a case of this complexity. But given the circumstances -- a man who had his life stolen from him when he was convicted of this crime -- the contractor could demonstrate a greater sense of urgency or turn it over to someone who can.

It also seems reasonable that political uncertainty would lead to delays. Again, one would hope someone would take a look at the clock and realize that cabinet shuffle or no, this has taken too much time.

Hiring independent counsel to avoid a conflict of interest is reasonable. But allowing the case to drag on for six years leaves Ottawa open to allegations it has dragged its heels on a case involving one of its own employees.

In the long and painful campaign to reclaim his life, Deveryn Ross lost 2,100 days that no one will be able to replace. All the reasonable excuses won't change that.

Original report here

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