Emma Hawthorne from Canada writes: Thus case differs markedly from Canadian practise. There, the South Caroline Attorney General and Special Inistigaitions Unit went to work on the prosecutor's misconduct and to repair the harm done to innocent students by seeking an order to exonerate the wrongly accused students. In Canada, the Attorney General would line up with the regulator to defend the actions of the errant prosecutor against public complaints. No steps would be taken to clear the reputations of innocents lest potential civil damages grow, and the AG, regulator and government would pull out all stops to defend the prosecutor and smooth things over without charges. They would act as a pack, to get any civil suits filed by the wrongly accused dismissed on every technicality imagined (and a few you haven't) and politicians would ride it out as the 'cirminals who got away,' rather than the 'innocent accused', until the next election. Ten years from now those wrongly accused would still be mired in the mud of a Canadian cover-up, which could and likely would drag on for decades. In South Carolina the justice system is transparent enough to have picked up a pattern of wrongful prosecutions and then acted to restore public confidence. In Canada the public is naive and assumes they will never be wrongfully accused. Our system can also be fairly opaque, and takes much longer to right, such as in the matter of the wrongly accused parents of the children examined by Dr. Smith. If Canadians were paying attention recently they know that our Charter and Charter rights are readily cast aside by many in the criminal law system, by some members of the bench, and by all of our civil jusutice system which has enormous administrative law deficits that favour the monies and corrupt prosecutors. The only jsutice to be the subject of disciplined in Ontario in recent years was prosecuted for upholding the Charter. That's right. He found the Crown had breached too many Charter rights.He was disciplined for it.

• Posted 17/06/07 at 1:30 AM EDT |  |  

Emma Hawthorne from Canada writes: I forgot to mention thAT THE WRITTEN COMPLAINT FILED AGAINST The only justice to be disciplined in Ontario in recent years, was disciplined after Ontario's Attorney General Michael J., Bryant, himself, filed a complaint with the Candian Judicial Counsel after the justice roundly criticized Bryant's prosecutors for scores of Charter violations. In Ontario, justices take their careers in their hands if they uphold too many rights. South Carolina prosecutor Michael Nifong would likely have been congratualted for prosecuting vigorously and the courts would have foumd it was the accuseds' fault if they didn't discover Nifong's DNA-evidence coverup during the trial. Maybe their appeals would have been foreclosed on that basis alone. I admire the integrity of the South Carolina State Bar and wish we had even a fraction of their integrity here in Canada. We don't.

• Posted 17/06/07 at 1:45 AM EDT |  |  

Emma Hawthorne from Canada writes: Donald Kennedy I wish you were correct but believe you are dead wrong. No prosecutor has ever been disbarred in Canada, have they? It took the Supreme Court of Canada to decide in Kreiger that the law society could even investigate a Crown prosecutor for non-dislcosure. Heck even disclosure was up for grabs until a Court of Appeal aid down the lawin Stinchcombe. Wasn;t that a 12-year or so legal battle jsut to get fair treatment. Our system is designed to uphold the integrity of the system and protect 'the administration of justice.' Nice ideals, but here in Canada they are twisted to deflect all investigations of prosecutors, ignore illegal poklice activities, allow tainted evidence in (the thinking - if you can call it that - is that our 'system of jsutice' would be brought into disrepute if we kept tainted evidence out!!!), and making sure no defendant ever wins in a case against the Crown. No tax dollar is spared when it can be called into service to protect the Crown from a deserved legal attack. Sadly, we live in rats alley.

• Posted 17/06/07 at 3:20 AM EDT |  |  

Emma Hawthorne from Canada writes: Here is a link for US prosecutorial misconduct. There is nothing for Canada.

www.ethicsforprosecutors.com

Also the Nifong complaint, itself, is quite enlightening as to proper legal standards and how legal regulators should function when prosecuting.

• Posted 17/06/07 at 3:41 AM EDT |  |  

Emma Hawthorne from Canada writes: I think a Nelles prosecutor was fired. It's helpful to recall that she was out of the country duirng several suspect deaths!!!!! No physician was even even considered for investigation but absentee nurses were fair game!

A tiny career bump - prosecutor terminaiton - is a very small price to pay for wrongfully damaging a life. They probably took severence 'keep quiet' packages as well. Come to think of it, one never hears of prosecutors suing for wrongful dismissal.

• Posted 17/06/07 at 4:20 AM EDT |  |  

Emma Hawthorne from Canada writes: No one is suggesting adopting a US-style system. But in light of Nifong and our many, many flaws, urgent reform is needed here in Canada. Their prosecuting office failed, but in fact everything else worked. From the Attorney General's speical invesitgations unit to the media (a news-show did a feature on the Duke case), the medical expert was forthright, the information did come out about the Duke case and several earlier South Carolina fiascos by prosecutors, the state bar association had the wherewithal to act, the parents of the wrongly-accused had sufficient money to fight, etc. Here in Canada the media will not move without a government press release to give them instructions, our caselaw is poorly written, illogically indexed and referenced to certain biases, our Attorney General is unable to act or refuses to act to correct nearly any government wrong, our politicians are perpetually in sleep mode and will claim they cannot be involved in any justice matters, our Ombudsman lacks jurisdiciton, our law societies court justice ministries not challenge them, our medical experts tailor their opinions to the paying party's preferences. Our Charter is often ignored by the Courts and others. IN SHORT, OUR SYSTEM IS BROKEN.

• Posted 17/06/07 at 1:49 PM EDT |  |  

Emma Hawthorne from Canada writes: It was refreshing to see the panel hand down its decision in NIfong yesterday (televised) because an unmistakeable impression was provided that in fact both sides had a full opportunity to question the evidence and charges in a fair environment, and where even the defendant would have had a full opportunity to respond and call evidence. This could not happen here. In Canada, the prosecutor/.regulatory counsel is heard first, and often has exclusive access to cases hidden from the defendant. Canadian law societies do not set out a set of facts and precise legal standard engaging these facts said to be breached in any complaint, and our (idiotic) courts have failed to recognize sufficient civil justice rights to prevent this breach of fundamental justice rights. As the law societies also control the publication of court decisions (asll except the Sup. Ct. of Can) on government web sites such as canlii.org, they edit out all decisions that do not favour them. Our courts like paper and may read documents filed. They will not censor law societies who mis-state facts, fudge paperwork or make mis-statements to courts. Mr. Nifong was disbarred in part for making misleading statements to courts and tribunals. That would never happen here as the courts and tribunals would repeat any mis-statements profeered by the law society and or Crownas readily -accepted fact. Next, the Canadian court, after giving full latitute to the prosecution, would then constantly interrupt, confuse, make flippant remarks to and ignore the defence unless it liked the defence counsel. Although the Attorney General's court student court reporters record hearings to learn from, transcripts will rarely be available, and certainly never without errors, for cases important to defendants, because it will send sneior court reporters who will NOT record hearings. It's a Punch and Judy show.

• Posted 17/06/07 at 2:44 PM EDT |  |  

Emma Hawthorne from Canada writes: The South Carolina State Bar proivded a high standard of justice no doubt because South Carolina Courts have required this. This could not happen here because, for example, at Osgoode Hall in Toronto, we have a bizarre 200-year-old situation where the law society resides WITH the courts that are supposed to be supervising itl. Rather than hold the regulator to a proper standard of administrative law, the courts of Osgoode Hall are holding the regulator to luncheon dates in the dining room. Court staffs are famous for accommodating the regulator, opening and closing court files in secret, "delaying" certain filings, fudging a few files. One can watch court staff members with bulky bags travel along York Street in Toronto on afternoons, before slipping back into the 'office' at Osgoode Hall with lgihter bags. While televising the hearing in South Carolina provided a measure of transparency there, here in Canada, and especially at Osgoode Hall, it would only have been a bizarre comedy hour - fuzzy charges, missing documents, foot-loose facts, impatient judges, hidden decisions that even the courts do not know about, and there would be no question of a full and fair hearing to determine the facts and then apply law. It would not be possible without first writing sufficient charges (ie in law and fact), providing equal access to prior decisions (Ontario's law society has a written policiy of NEVER releasing decisions wherein it loses!!) and fairly (and without lying) examining the evidence. Nevertheless, our media would function as a 40--second sound bite, then return to review the dining room menu. It would be a good first step to tackle mis-statements of prosecutors, require the courts to uphold S.7 Charter - fundamental justice rights (sufficient charges) and open up the dusty hidden files of our law societies. (open corts principle of access to prior decisions, S. 2(b) Charter. Justices uncomfortable with these requirements should leave the bench.

• Posted 17/06/07 at 3:17 PM EDT |  |  

Emma Hawthorne from Canada writes: Dear Route 90: The solutions are elegantly simple. 1. If our Chief Justice or an Attorney General stated that Osgoode Hall should only be a S. 96 courthouse, they could request this and it would be done immediately, because the admission would attract S. 96 challenges. 2. As it was 60 minutes, 20/20 or Dateline that initiated the inquiries with their excellent piece on the Duke prosecution, we could encourage independent media thinking here and ask our legal newspapers to stop taking direct orders from law societies, as they do now. Shame on them! 3. We could require our courts and all regulators (creatures of legislation) to acquire administrative law competence - so they they could recognize: a) a sufficiently worded complaint, b) ensure access to prior decisions (A Gitmo problem) c) provide a fair and impartial hearing in accordance with the principles of fundamental justice d) agressively prosecute - and disbar - any Crown prosecutor or equivalent (such as a law society prosecutor) who makes a misleading statement to any court or tirbunal. 4) Governments need to set up a functioning central complaints office to receive and act upon justice complaints. Currently this is NOT being done, all claims to the contrary. 5) Our schools need to better educate Canadians so that they can recognize corruption, document unfairness and effectively blow the whisle. You see, it would take precious little leadership, basic legal competence and almost no money to fix our system in just a few months. merely state thier concerns and request either that the ocurts move or that all of the other interests move away.

• Posted 17/06/07 at 3:42 PM EDT |  |  

Emma Hawthorne from Canada writes: My comment that our media acts only with government instructions was a little too impatient and not precise enough. I think our media often have the right motives but get caught up trying to maintain a fourth-estate power position and and also credibility in powerful justice systems which reporters know can quash them on whim. It is no easy task to negotiate such a system, especially an out-dated 19C justice system that has failed to modernize, that has so many hidden levers, and where people in positions of power do not hesitate to pick up the phone and scream at the media. I think the media can better navigate by focusing on reasonable questions and following reasonable lines of inquiry without deterrence. For example, when the Star atempted last year to question what it felt was too few prosecutions by legal regulators, it began with strength, but failed to hone in on proper measurements of whether and how the mandate was being fulfilled. The media often demands more to be done, but does not qualify exactly what precisely should be done. That devolves quickly to mob demands for another hanging! It could have focused on the conduct of benchers, their lack of training and ignorance of administrative law plus their breaches of their duties and hidden personal conflicts of interest. It could have asked administrative law experts to comment on the process. It could have asked why the LSUC (but not others) hides cases it loses!!!! Surely that is a red flag! It could have asked what should be done about mortgage fraud?(this now seems to be answered with insurance, court precedent and education of the public and bar). Our media need encouragement and must always perk up their ears when faced with puzzling silence. That's the big story - no one is talking about.

• Posted 17/06/07 at 4:14 PM EDT |  |  

Emma Hawthorne from Canada writes: Our media should do a story on how Canadians could or should deal with lying and unethical prosecutors. That would be news Canadians could use and it might lead to excellent follow-up stories.

• Posted 17/06/07 at 4:45 PM EDT |  |