Guest post by Kathryn M. Campbell - "Innocence Ottawa Takes first Steps towards Exoneration"

Every month, the Blog of the Department of Criminology publishes essays written by our colleagues featuring their research or their analysis of current issues. In this essay, Kathryn M. Campbell (Full Professor and director of Innocence Ottawa) presents her work with Innocence Ottawa supporting people who are wrongfully convicted.

Chaque mois, le blogue du Département de criminologie propose des billets rédigés par nos collègues et présentant leurs recherches ou leurs perspectives sur des enjeux d’actualité. Dans ce billet, Kathryn M. Campbell (Professeure titulaire et directrice d’Innocence Ottawa) présente son travail avec Innocence Ottawa qui supporte les personnes victimes de condamnations injustifiées.

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Innocence Ottawa Takes first Steps towards Exoneration

by Kathryn Campbell

On December 18th, 2009, Hailemikael (Michael) Kassa was convicted for the murder of Sonia Gaudet in Hamilton, Ontario; he is now serving a life sentence and has been in a federal penitentiary for the past thirteen years.  It is the position of Innocence Ottawa that he is not guilty of this crime. 

Innocence Ottawa began in 2012 as a pro-bono, student run innocence project aimed at facilitating conviction review for those individuals who are, in fact, innocent of the crime for which they have been convicted.  Conviction review is considered to be an extraordinary measure by the courts and is only available to those who have exhausted all of their appeals (provincial Courts of Appeal and Supreme Court) and where there is new (or fresh) evidence that was not previously considered by the courts.  In such cases, sections 696.3 and sec. 696.4 of the Criminal Code[1] allow the Minister of Justice to order a new trial, or refer the matter to the Court of Appeal “if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred.” 

On average, Innocence Ottawa receives approximately ten to twenty applications a year from individuals seeking assistance, mostly from incarcerated persons.  In order for an application to be accepted there are certain criteria that must be met, criteria based on the stringent requirements for conviction review set by Parliament:

a)     The applicant has been convicted of a serious indictable offence in Canada.

b)    The applicant maintains a claim of factual (actual) innocence.  Cases are accepted only if the applicant is innocent of the offence at issue.

c)     The applicant has exhausted all rights of appeal.

d)    The applicant must have new evidence which points to his/her innocence that was not available at trial and/or on appeal.

Consequently, the majority of applicants do not meet this bar and we must refuse them. These include applications from persons who believe their sentence is unfair (we can only argue for conviction not sentence review); from those designated as dangerous offenders by the court, for which we have no expertise; from those convicted of murder, claiming self defense (again a sentencing question); and from those where there is no new evidence, per se, who believe that the evidence presented at trial requires revisiting which is not permitted under conviction review.

Innocence work is frustrating. The legislative bar is such that many individuals, who believe they are innocent, are simply unable to meet this established standard.  Contrary to media representations of wrongful convictions, where courthouse step reunions with families are played out as the joyous culmination of the courts finally getting it right, they are simply not the norm.  The gold standard of a DNA exoneration is a remote possibility for most as it is seldom available in criminal cases[2]; exact figures are unknowable. For the majority of wrongful convictions there is no “smoking gun”, no long lost witness who suddenly emerges and retracts their identification of the accused, but sadly years of frustration and anguish at being jailed for something they did not do. 

Innocence work is difficult. If a case merits further investigation, it requires hundreds of hours of dedicated pursuit where students will undertake a number of tasks.  It involves, amongst other things, engaging in meetings with defense and appeal counsel, contacting and visiting the applicant in prison and meeting family members, following up promising leads, meeting with private investigators, assessing other potential suspects and other potential evidence, reporting to the group, and filing an application for conviction review.  At each stage of the process, students will consult with myself as the director and with criminal defense counsel at Spiteri & Ursulak LLP in Ottawa.  It can take years and given the reality of student turnover, it is not uncommon to have several students working on a given client file over time.  Students are the backbone of Innocence Ottawa, they give selflessly of their time to help the wrongly convicted, with no remuneration or academic credit for their work.   

In 2014, Mr. Kassa sought the help of Innocence Ottawa to support him in proving his innocence. His imprisonment for a crime he did not commit has had a profoundly adverse effect upon Mr. Kassa’s life and continues to affect him psychologically, emotionally, socially, and financially.  On July 29th, 2019 Innocence Ottawa deposited a memorandum for conviction review with the Criminal Conviction Review Group[3] (CCRG) on Mr. Kassa’s behalf.  After five years of diligent work, we were able to gather what we believe to be sufficient evidence that points to the fact that a miscarriage of justice likely occurred in his case.  Initially Sina Menz[4] (M.S.Sc.) and Jordan Bateman (M.S.Sc.) took on his case and put in countless hours meeting Michael and his family, travelling to Hamilton, Ontario to track down and interview witnesses, meeting with Mr. Kassa’s previous lawyers and private investigators, pursuing other suspects and other evidence and finally writing up a memorandum. In fact, given their commitment to Mr. Kassa’s innocence Sina and Jordan continued working on his case in the years following their graduation from the University of Ottawa. Latterly, other students became involved in the final stages of the process, including Erica Giulione, Hallie Tenant, Eilish MacNamara and Charbel Saghbini. All of these students were determined to prove what became increasingly clear early on: Michael Kassa was innocent of the crime for which he was convicted.  In fact, one of Mr. Kassa’s former lawyers compared his situation to that of Steven Avery of Netflix fame, whose miscarriage of justice for various reasons, now stands as a glaring example of the result of police and prosecutorial misconduct and incompetence.[5] 

While Mr. Kassa’s file is Innocence Ottawa’s first completed conviction review, we are working on a number of other files in various stages of the process. Innocence work is protracted and requires great determination on the part of the students involved in these cases.  Despite these many roadblocks, the University of Ottawa Criminology and Law students involved in Mr. Kassa’s and other cases have shown the reserve and strength of character needed to follow through on investigating what in many cases are egregious miscarriages of justice. 

NOTES

[1] R.S.C., 1985, c. C-46

[2] Daniel S. Medwed, “Talking about a Revolution: A Quarter Century of DNA Exonerations” in Daniel S. Medwed, Wrongful Convictions and the DNA Revolution: Twenty-five Years of Freeing the Innocent. (Cambridge University Press, 2017).

[3] The CCRG is comprised of a group of lawyers who are given the task of assessing the merit of client files for conviction review.  In the event that they are convinced that a file represents a case where a miscarriage of justice likely occurred, they will make a recommendation to the Minister of Justice who will then either reject the file, or if he or she believes that a miscarriage of justice likely occurred, they then have the authority to order a new trial or refer the matter to the court of appeal for the province or the territory in question.

[4] In fact, Michael’s experience became the topic of Sina Menz’ thesis entitled “Post-conviction Claims of Innocence: Investigating a Possible Miscarriage of Justice in the Case of Michael Kassa”, for which it was nominated for a prize. 

[5] Catriona Verner, “Has the Canadian Justice System Failed Michael Kassa even Worse than the US Justice System Failed Steven Avery?” November 3rd, 2016.  Hicks Adams LLP, online: https://hicksadams.ca/canadian-justice-system-failed-michael-kassa-even-worse-us-justice-system-failed-steven-avery/