Thursday, August 4, 2011

Ashley Smith and Stolen Apples

The following book review shows that behind the well-known injustices many unknowns are languishing in jails and prisons and sadly only the obvious tragedies reach the ears and eyes of the public.
Case in Point: Ashley Smith, who stole some apples...

A review by Tim Pheotist of Dr. Gary Botting’s
WRONGFULLY CONVICTED: A cry from the heart from a victim of our Canadian Justice system


This heart wrenching brief account of David Milgaard's ... experience as a wrongly convicted person brought tears to my eyes. He uses the term "silence" , which is quite common in cases of wrongful conviction. While reading this overview, I felt as if I was reading the writing in my mind. Even though you know you are not guilty of a crime for which you have been charged, you are but one against a sea of very powerful people who can play with your life and the lives of your family...

An essay giving voice to the nightmares that haunt so many innocent people in today’s Canadian prisons.

David Milgaard, who spent 23 years in jail for a murder he did not commit, has written a compelling forward to a recently published book detailing nightmare cases of wrongful conviction in Canada.
“In prison, every horrible second seems to stretch forever,” he wrote. “A third of my expected life [has been] stolen from me forever.”

The essay kicks off Dr. Gary Botting’s Wrongful Conviction in Canadian Law, published by Butterworths LexisNexis, which reviews and cross-references every inquiry into wrongful conviction ever held in Canada. Botting’s legal practice, originally founded in Victoria in 1991, is now based in Vancouver.

Milgaard says he is only one of the many voices of the wrongfully convicted. “Of the hundreds if not thousands of convicted Canadians who have claimed to be innocent over the past half century, only eight of us have ever had our cases reviewed by Commissions of Inquiry,” he said. Six such inquires have been held so far, all within the last 20 years, in half of the ten provinces: Nova Scotia, Ontario, Manitoba, Newfoundland and Saskatchewan.

“Do not believe for a minute that the other five provinces lag far behind. For starters, there’s Ivan Henry in British Columbia – 26 years in jail for multiple crimes he did not commit. His 55 appeals and protests that he had been wrongfully convicted were ignored by the B.C. Court of Appeal for 20-plus years until the Pickton investigation revealed that the real rapist had gone on raping in the same way for years after Henry was put away. What went wrong there, where the police deliberately sat on evidence proving that the crimes were committed by a different person altogether? Surely British Columbians will want to find out?”

Milgaard pointed to cases in the other provinces as well. “Alberta has its wrongful prosecutions of Wilson Nepoose, Jason Dix and Daniel Wood, Quebec has Simon Marshal, New Brunswick has Felix Michaud, and Prince Edward Island has John Cooper. They all sued or negotiated settlements for wrongful conviction. But it was an uphill battle.

“That about covers the whole country!”

Milgaard points out the limitations of the inquiries into wrongful conviction, which so far have been limited to convictions for murder. “All eight of us received life sentences. If we had been wrongfully convicted of crimes with shorter sentences, it would have been much easier to do the time than to fight the system for years and years hoping to be exonerated.

“Which makes me wonder how many thousands of Canadians have been wrongfully convicted of crimes less serious than murder, but finished their sentences in sadness and silence because they knew their cases would never be heard? How many are forced to lick their wounds in private, and get on with their lives in shame, never again believing that justice exists in this country? Would they want to expose themselves to scorn and prejudice for years and years, like the eight of us have had to?”

Canada’s system of justice, says Milgaard, relies on lies. “That’s the advocacy system. Both sides can’t be true, so someone has to be lying. With wrongful convictions, the judge and jury have picked the lies over the truth. As long as the lies stand, the system feels good about itself. So Canada’s system of justice does not let the wrongfully convicted expose the lies.”

He says the Minister of Justice never of his own initiative applies the laws that Parliament has passed – laws designed to protect the innocent. “[The Minister’s] staff is concerned only with setting up roadblocks for years and years in the hope that those claiming that they were wrongfully convicted will get lost – in all senses of the word.”

He said the Minister seems to think that those who claim to be wrongfully convicted will give up their efforts to get exonerated once their sentences end and they have a chance to go home at last to what’s left of their “shattered and probably scattered families.” is set up so that innocent people, once they are convicted, simply cannot get a fair hearing, he said. Every day, inmates who have been wrongfully convicted see “guilty” men and women get out of prison because they have admitted their crimes and come to grips with their criminogenic factors. Meanwhile, inmates who have been wrongfully convicted cannot even get parole, because before the Parole Board will let them out of jail they have to “admit” to a crime they haven’t committed.

“Many innocent prisoners feel they are forced to lie to bring the torment of prison time to an end,” he said. Furthermore, sometimes lawyers advise their wrongfully convicted clients to lie and admit to the crimes they have been charged with to avoid further torment.

“Of course, the lawyers don’t ‘know’ that their clients are innocent, even though they may ‘believe’ it. Some lawyers may characterize that kind of ‘white lie’ as ‘coming clean.’

“What they forget is, a lie is never clean!”

Keeping a person in prison until he is forced to tell a lie by incriminating himself is a form of torture, said Milgaard. With no end in sight, the torment goes on forever: the person never knows when he can expect to be released.

“But when the lie ‘Yes, I did it!’ has been uttered, the whole system of justice, from police to judges, can give a big sigh of relief and say, ‘We knew it!’

“The reward held out to me if I chose to lie? Freedom! The punishment for my being innocent and honest and sticking to my principles and not lying? Almost 23 years of prison time!”

Some innocent prisoners cave in to the system and say they did the crime so that they can get out a few years earlier. But once they have admitted to doing the crime, there’s no turning back “This situation is very, very wrong,” he said. “But that’s the kind of justice and penal system we have in Canada.”

The cases to which he alluded in the foreword to Botting’s book are now well known. In Ontario, Romeo Phillion confessed to a murder in 1972, then within 24 hours tried to retract his false confession – given because he wanted to show the police that he was willing to be cooperative. But nobody would listen. Thirty-five years later, it became clear that he had an iron-clad alibi all along, and was innocent of murder.

More than half a century ago, when he was fourteen, Steven Truscott received the death penalty for the rape and murder of 12-year-old Lynn Harper. “You shall be hanged by the neck until you are dead,” he was told in 1959. Authorities commuted his death sentence to a life sentence, and let him out on parole after ten years, but as far is Milgaard is concerned, this was simply “a cheap way to ease their guilt. As in my case, nobody would listen to him, not the Court of Appeal, not even the Supreme Court of Canada.”

Told by a judge looking into the matter in 2007 that Steven Truscott had likely suffered a miscarriage of justice, the Minister of Justice referred the Truscott case back to the Ontario Court of Appeal, who, while not going so far as to finding him factually innocent, left the Crown without enough evidence to proceed to a new trial.

“But justice delayed is justice denied,” said Milgaard. “To my mind, it was wrong of the Ontario Court of Appeal to say they couldn’t find Steven ‘factually innocent.’ Put it all together and do the math, with the blowfly and flesh fly evidence and everything, all multiplied out with the help of someone who knows statistics, and the chances of Steve being guilty are way less than one tenth of one percent – not much different from DNA evidence.

“Seems to me the Ontario Court of Appeal didn’t do the math!”

He said the government and the justice system never admit they are wrong even when they know they can’t be right. Only when the injustice becomes obvious do commissions of inquiry get set up – in his case, 35 years after his conviction for a rape-murder that he had nothing at all to do with. The DNA evidence eventually showed that the murder was committed by a serial rapist, Larry Fisher.

“Fisher sat on his hands for 23 years, knowing that I sat in prison all that time for his crime.”

In Canada, anyone charged with a crime is innocent until proven guilty beyond a reasonable doubt. But as David Milgaard soon found out, once a person is convicted, that’s the end of it: he is considered guilty, period. In order to get out of prison without lying to the Parole Board, as the system requires, he said, the person has to prove his innocence beyond a reasonable doubt – which is next to impossible to do from prison.

“I was lucky enough to have a mother who believed in me. She worked hard for more than twenty years to convince people of the truth: that I was innocent. But it didn’t help that the Crown Counsel on my case was so blinded by his own tunnel vision that he spent the first ten of those years, at government expense, trying to undermine everything my mother did at her own expense. He told the Parole Board time and again that I was dangerous, at risk to “reoffend” – even though I had never offended in the first place!

“If that isn’t offensive I don’t know what is!

“How could the Parole Board let that Crown counsel say the same old thing over and over and over, year after year, like a parrot? Worse, how could it listen, and give his recycled opinions any stock?”

The law needs to be changed, he said, so that prosecutors can’t continue to prosecute their cases years after the trial with the same old wrong evidence. “Allowing that to happen brings the whole system of justice into disrepute.”

Milgaard said that he wanted to impress upon readers these four central points, drawn from personal experience:
1. It is horrible to spend time in prison for a crime you did not commit. Think of it: prison sentences are the worst punishment Canada has been able to come up with for the worst criminals committing the worst crimes. In the case of someone serving time in prison for something he or she did not do, the “punishment” is torture.

2. Fighting the Canadian Government for compensation long after being released from prison after exoneration feels like being in prison all over again. I was fighting for myself and for my family for years all over again. How would you feel? It was a long, long struggle, and it was degrading. I strongly recommend the government to make monies available to any man or woman struggling to prove they are innocent.

3. Seeking justice in cases of wrongful conviction and bringing cases such as mine to everyone’s attention is costly in terms of time and money, especially since Justice Canada, along with prosecutors and the police, drag their feet and dig in.

4. Justice delayed is justice denied. Canada’s system of investigating and reviewing miscarriages of justice is way too slow. We need a system where an independent Board that is not part of the criminal justice system or the government looks at all cases where anyone claims he has been wrongful convicted. When this Board finds that the person is innocent, the government should quickly free them and give them compensation.

David Milgaard concludes his essay by singing the praises of Wrongful Conviction in Canadian Law and its author. In the book, Dr. Botting looks at the seven different commissions of inquiry that have been held in Canada so far, to determine what they recommended and whether their recommendations have been followed or ignored. One inquiry in Newfoundland heard three cases at once, and the Gouge Inquiry uncovered several more cases of wrongful conviction in Ontario.

“For years Gary Botting has tirelessly devoted his time and his personal resources to the cause of the wrongfully convicted,” Milgaard said.

“Hopefully this book will allow the police and pathologists and prosecutors and lawyers and judges and governments to cross-reference the recommendations easily so they don’t repeat their mistakes of the past. And maybe it will help other wrongfully convicted people like me to see that they are not alone, and should continue fighting to be heard.”

Ashley Smith's Inquest: It's Our Call

As reported in The Vancouver Sun July 19, 2011

"Two doctors were cleared of wrongdoing in relation to the care they provided Ashley Smith while she was incarcerated, the Ontario Health Professions Appeal and Review Board concluded in a recent decision.

"However, the review is critical of the treatment Smith received before her eventual death in an Ontario prison.

"From our perspective, it is difficult to understand how the resources of Correctional Services Canada and the numerous health professionals who were involved with (Smith), particularly within the last year of her life, could not have somehow appropriately treated her admittedly severe behavioural problems," the review, dated July 15, states.

"The review was brought to the board by the Elizabeth Fry Societies, on behalf of Smith's family, to appeal an earlier decision by the College of Physicians and Surgeons of Ontario that had previously cleared two physicians of any wrongdoing in their assessment of Smith while she was in prison.

"One of the physicians was a family doctor conducting weekly consultations at the Grand Valley Institute for Women, while the other was a psychiatrist who made similar weekly visits to the prison.

"The Smith family's original complaint wanted to ascertain why Smith was not referred to a psychiatric facility in the days leading up to her death and whether it was a result of inadequate care from one, or both, of the physicians.

"The College of Physicians decided to take no action against the two doctors. The Smith family requested the Appeal and Review Board go over that decision because they were "not satisfied" with the ruling.

"We have concluded that the (College of Physicians) did conduct an adequate investigation and its decision was reasonable," the review board concluded.

"Smith died at age 19 in 2007 after tying a ligature around her neck in a Kitchener, Ont., cell as prison guards watched. In the final 11 months of her life she was transferred to various prisons 17 times because of bad behaviour, overcrowding and staff fatigue.

Reported by

Results from assorted inquiries and inquests gather dust on desks across the country. Don't expect government agencies to improve their treatment of youth, indeed anyone, sent to jail but urgently in need of medical and spiritual attention. What can you and I do?

The following can be found at

BACKGROUND: Ashley Smith, 19, died in her prison cell at Grand Valley Institution near Kitchener, Ont., in October 2007 from self-strangulation. She had been transferred between federal institutions 17 times during her final 11 months, most of that time kept in segregation and often on suicide watch dressed in a highly restrictive gown. Jailed at age 13 for a crab apple-throwing incident in New Brunswick, Smith was eventually transferred to an adult facility after she kept getting into trouble behind bars by constantly kicking, grabbing and spitting at guards. Lawyer's for her family and the media have been fighting Coroner Dr. Bonita Porter's efforts to limit the scope and evidence to be called at the inquest which had been placed on hold. The inquest is of interest to this Blog because it relates to the openness of public death investigations - and the necessity to ensure that deaths warranting inquests get full scrutiny.

"The Ashley Smith inquest has a new coroner at the helm," the National Post story by Christie Blatchford published June 30, 2011, under the heading, "Coroner replaced in prison death inquest: Oral arguments presented to coroner Bonita Porter will now have to be repeated, Smith's lawyer says," see

"Dr. Bonita Porter, who had presided over the oft-delayed and troubled inquest into the strangulation prison death of the mentally ill teenager, has been replaced by Dr. John Carlisle," the story continues.

"The Ontario government made the announcement in a brief press release Wednesday.

The announcement pointed to Dr. Porter's pending retirement this fall as the reason for the abrupt move.

Due to the expected length of the inquest, "Dr. Porter, who is scheduled to retire in November, would have been unable to complete the inquest when it resumes in the fall," the release said.

But a line in the announcement hints at another significant reason for the mid-race switch to a new horse -Dr. Carlisle is not only a medical doctor, but also a lawyer and veteran law professor.

If ever an inquest illustrated the need to have a lawyer or judge in the driver's seat, as some other provinces do, it was this one.

Dr. Porter had formally granted "standing" to about a dozen groups and individuals -meaning these parties are entitled to cross-examine witnesses -some of them represented by some of the fiercest advocates in the Ontario bar.

Almost daily, she faced procedural and evidentiary challenges from these lawyers, and from those representing the press, and was often clearly out of her depth.

Several times, lawyers appealed one or another of her decisions to the Ontario Divisional Court, most famously when Dr. Porter ruled that prison videos, showing Ms. Smith being forcibly injected with anti-psychotics and subjected to other harsh treatment at Quebec's Joliette Institution, weren't relevant to her state of mind.

Ms. Smith, then 19, strangled herself with a ligature in her cell at Kitchener's Grand Valley Institute for Women on Oct. 19, 2007, about three months after she had been repeatedly strapped to a stretcher and drugged at Joliette.

Last month, the court called Dr. Porter's decision not to seize the videos confusing, overturned her and told her to re-think the matter.

Neither did it appear Dr. Porter was getting particularly good advice from her own legal team, made up of three lawyers from the provincial attorney-general and a fourth who appeared occasionally to argue particular issues.

If originally coroner's inquests were medical investigations into a death, the high profile ones, particularly those involving matters that have captured the public's attention, have long since morphed into contests that are much more legal in nature than medical.

Dr. Porter adjourned the inquest late last month, and about a week ago, with her key decision about the Joliette videos and two others still pending, announced the proceeding would resume in September.

She promised at that time to deliver her rulings -critical to the scope and openness of the inquest -this week.

Instead, Dr. Carlisle will now "review and decide" on these issues.

Before joining the coroner's office in 2004, Dr. Carlisle served as a medical officer with the College of Physicians and Surgeons of Ontario and as a professor at York University, where he taught a course in law and medicine for more than 25 years. These credentials appear to make him almost uniquely well-qualified to steer the inquest back on the right course.

When the proceeding adjourned last month, the five member jury had heard only part of the evidence from only one witness.

Julian Falconer, lawyer for Ms. Smith's family, was furious at the announcement, calling the inquest "a colossal waste, a mess."

He said he and other lawyers have "wasted weeks and weeks" of oral argument on the three motions that were before Dr. Porter, and pointed out that now these will have to be reargued because Dr. Carlisle has heard none of what they have to say.

"It begs the question of what's going on at that office," Mr. Falconer snapped. "And remember what this delay does to the family."

Ms. Smith, originally sent to a youth facility in her home province of New Brunswick for throwing crabapples at a mailman, ended up spending most of the last three years of her life in isolation, or segregation, units of youth and adult facilities, provincial and federal prisons, and several hospitals.

She was transferred among these various facilities no fewer than 17 times in less than a year, once being strapped to her airplane seat in the process."

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