Legislative Electronic Publications -- Attorney General Announces Commission Of Inquiry On Driskell Matter, Releases Enns Report

Manitoba Government News Release:
Information Services, Room 29, Legislative Building, Winnipeg, Manitoba R3C 0V8 Telephone: (204)
945-3746 Fax: (204) 945-3988

March 03, 2005

ATTORNEY GENERAL ANNOUNCES COMMISSION OF INQUIRY ON DRISKELL MATTER, RELEASES ENNS REPORT

Attorney General Gord Mackintosh today announced that a formal commission of inquiry under the Evidence Act of Manitoba will be ordered by cabinet into the James Driskell matter. The attorney general also released a review of disclosure issues in the case completed by retired provincial court judge John Enns.

"In light of the conclusions from the Enns report and the federal government’s decision announced today, an inquiry process is needed to learn from issues arising from this matter," Mackintosh said. "When the justice system fails as it has in this case, we need to get to the bottom of it and take every step possible to guard against future matters that could erode public confidence."

The province will name a commissioner and terms of reference will be finalized in the next several weeks. Independent reviews of aspects of the case will be made available to the commissioner.

Enns was asked to examine the issue of whether the police provided full and appropriate disclosure of all relevant information to Crown officials and whether the Crown then provided full and appropriate disclosure to the defence in the prosecution of James Driskell for first degree murder at the trial in June 1991 and for the subsequent appeal in December 1992.

Enns indicated the disclosure policies the police and Crown now follow have improved substantially and are much more comprehensive and detailed than they were a decade ago, but he is very critical of a number of areas of disclosure by the Crown in the Driskell case in 1991.

Enns finds the issue of non-disclosure of evidence related to a possible perjury by a lead witness is of "grave concern." He concludes that this disclosure did occur in 2003 and the Crown who reviewed the files in 2000 was "understandably of the view that . . . disclosure of this information had occurred shortly after April 13, 1993." In referring to prior conduct in the early 1990s, Enns finds " . . . that by actions or more precisely by inaction amounting to gross negligence bordering on the criminal offence of obstruction of justice, important disclosure did not take place."

Along with the review by Enns, other efforts to investigate the case include:

urging of the federal justice minister by the attorney general in 2003 to do a timely review of the case including expressing his view that the case be reopened,
completing a prosecution review of the file, as directed, that was initiated in 1999,
agreeing to conduct and pay for DNA analysis of hair samples in 2002,
urging counsel for Driskell to initiate a review of the case under section 696 of the Criminal Code of Canada in 2003, and
sharing the Enns Review with both the federal government and with Driskell’s counsel in 2004.

"I hope that the commission of inquiry will provide us with with recommendations to improve the integrity of our justice system," said Mackintosh. "Proper disclosure, for one, has become a cornerstone of a fair trial especially in the last 10 years. While the Enns review has assured us that current disclosure policies meet all standards, we look forward to any improvements coming out of the commission of inquiry."

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BACKGROUND INFORMATION

Actions Already Taken in Manitoba

Manitoba has taken a lead role in improving practices that affect how fairly the justice system works, especially in the area of disclosure.

Actions to strengthen practices includes:

A new protocol developed and put in place by the joint police-Crown disclosure working group to improve disclosure processes between the Crown, Winnipeg Police Service and the RCMP.

The Federal, Provincial and Territorial Miscarriage of Justice Report. Preparations and presentation were led by Manitoba’s assistant deputy attorney general. The paper recommended best practices in preventing wrongful convictions that have been adopted and surpassed by Manitoba.

Formation of the Forensic Evidence Review Committee. Put together by the province, the committee reached back 15 years to double-check certain homicide cases involving hair comparison evidence.

Expansion of the Reach-Back Review Committee mandate to examine sexual assault and robbery cases that meet the same criteria and an invitation to defence counsel to bring forward any other cases of concern.

Manitoba is a partner in organizing an international conference on avoiding wrongful convictions. Unlocking Innocence will bring judges, lawyers, prosecutors, law enforcement personnel, legislators and others together in October to examine the issues and search for remedies.

Development of information technology systems to support disclosure continues. A new disclosure tracking module has just been added to the prosecution computer system. Approximately $4 million has been invested in information systems in this area over the past three years and general resources have increased more than 68 per cent.

Urging the federal government to consider all aspects of disclosure in pending legislative reform. Manitoba has offered assistance to the federal government in its plans to revise the Criminal Code disclosure obligations.

Firm directives and training sessions for all Crown attorneys on disclosure are in place now and stress the importance of disclosure and the key elements of the policy to further support the culture of disclosure within the prosecutions area.

Establishment of Canada’s most restrictive policies on jailhouse informants, now in effect in Manitoba following recommendations from the Sophonow Inquiry.

Appointment of a director of Continuing Legal Education for Prosecutors. Regular seminars, for example, are organized to ensure Crown attorneys are up to date on developments in the practice of criminal law.

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